RUGARABAMU ARCHARD MWOMBEKI v CHARLES KIZIGHA AND THREE OTHERS 1985 TLR 59 (HC)

RUGARABAMU ARCHARD MWOMBEKI v CHARLES KIZIGHA AND THREE OTHERS 1985 TLR 59 (HC)

Court High Court of Tanzania - Dar Es Salaam

Judge Mtenga J

CIVIL CASE 83 1979 B

Flynote

Torts - Defamation - Damages - Defendants published of the plaintiff false

information without lawful justification or excuse - Plaintiff arrested, detained and

interrogated - Plaintiff's business dwindled - General public shunned him - C

Whether general damages awardable.

Torts - Damages - Assessment of - Assessors of unanimous view that Shs.470,400/= be

awarded - Plaintiff's failure to produce books of accounts to prove what he actually

earned before publication of the article - Plaintiff had D opportunity to mitigate the

damage - Whether assessor's view correct.

-Headnote

The plaintiff claimed general damages in the sum of Shs.1 million for defamatory

information published of him by E the defendants. The assessors were of the

unanimous opinion that general damages in the sum of Shs.470,400/= be awarded.

The plaintiff did not show to what extent his business suffered after the publication of

the offending article in the Daily News newspaper, nor did he produce his books of

accounts to substantiate his claim. F

Held: Since the plaintiff has not told the court how much he has been earning in his

various businesses before and after the publication of the offending article, assessment

of damages cannot be based on his unsubstantiated figures which appear to be

exaggerated. G

Case Information

Plaintiff awarded Shs.200,000/=.

Case referred to:

1. East African Standard v Gitan [1970] E.A.678 H

Mbuya, for the plaintiffs

Banturaki, for the defendants

Judgment

Mtenga, J.: The plaintiff in this case is a businessman and he is suing the three

defendants for damages for libel. I

The first defendant is employed by the second defendant. The second

1985 TLR p60

MTENGA J

defendant is a registered company incorporated under Cap.212 of the laws of

Tanzania, and he is the proprietor A of "The Daily News" which is a National

Newspapers. The third defendant is a Limited liability Company incorporated under

Cap.212 of the Laws of Tanzania and is the Publisher of the second defendant's

Newspaper - "The Daily News".

The libel complained of was contained in an issue of the "Daily News" owned by the

second defendant of 13th B day of August, 1976 and it was written by one Charles

Kizigha the first defendant who was an employee of the second defendant and it was

printed and published by the third defendant and it reads as follows: C

....Bank rejects Charcoal Export application.

By Charles Kizigha.

The Bank of Tanzania has rejected applications of Officials of an unregistered firm -

Tanzania Charcoal Dealers - D who wanted foreign exchange to go to Iraq to

negotiate Charcoal trade, it was learnt yesterday.

The Officials were named as Ndugu Rugarabamu Archard Mwombeki and Ndugu

Mohamed.

The documents at the Bank of Tanzania revealed that the two people have been

corresponding through the Iraq E Embassy in Dar es Salaam with charcoal dealers in

Iraq.

They are reported to have assured Bank official that they had a lot of charcoal to

export to Iraq, Bank sources said.

An official from the office of the Registrar of Companies said that "We have just

received an application for F registering the firm and we are still considering it".

The forms were submitted on AUGUST,9, this year and a receipt number N. 916141

was issued after a payment of Shs.45/= as fees was made.

The partners of the Tanzania Charcoal Dealers were Ndugu Tonny Wilson Sindano

who stays in Upanga Road G at Plot Number 71 and Ndugu Rugarabamu Archard

Mwombeki residing in Kinondoni Block Number 31 house Number 15 D, the forms

indicated.

It was further indicated that the company would deal with charcoal and other related

products. The offices of the H company are at Mosque/Libya Streets on Plot Number

1809/88.

The Principal Secretary in the Ministry of Trade, Ndugu A.G. Cheyo, said, "I have

heard of the Company but the I Ministry has not yet been informed officially about

its existence nor its nature of business."

1985 TLR p61

MTENGA J

The innuendo averred by the plaintiff in paras 7 and 8 of the Plaint was: A

7. "(a) That the plaintiff was operating a firm that is not registered

contrary to the laws of the country.

(b) That the plaintiff by operating a company that is not registered

was committing an offence. B

(c) That the plaintiff by dealing with Iraq Embassy Officials showed

that his dealings were suspicious and/or illegal.

(d) That the plaintiff managed to go through to the Bank of

Tanzania without the knowledge of the Ministry of Trade C

(e) That the plaintiff was hoarding charcoal in the country.

8. or in the alternative, the said words meant and were understood to mean: D

(a) That the plaintiff was a Criminal.

(b) That the Plaintiff is a bogus unscrupulous and dishonest businessman.

(c) That the plaintiff was a saboteur of our economy by draining the

country's foreign exchange for personal use or E advantage.

Furthermore, the plaintiff claims that in consequence thereof, he has been seriously

injured in his character, credit and reputation in the way of his business, and he has

been brought into public scandal, odium and contempt and F he has suffered

damage.

On the other hand, the three defendants through the services of their advocate Mr.

Bantulaki learned counsel from Tanzania Legal Corporation pleaded justification to

the article quoted above. G

At the commencement of the trial, issues were agreed as follows:

1. Whether the defendants printed and published or caused to have

printed and published the words complained of in para 5 of the plaint.

2. Whether the words complained of did bear or were capable of bearing

any meaning defamatory of the plaintiff. H

3. Whether the words were true or false.

4. Whether the publication was priviledged or was a matter of fair

comment.

5. Whether the publication referred to caused an injury or loss to his

business or to his person. I

6. To what relief are the parties entitled.

1985 tlr P62

MTENGA J

Mr. Rugarabamu (PW.1) in his sworn statement told the court that he is a

businessman dealing with various A businesses such as selling charcoal, selling

timber, preparing uniforms; clearing and forwarding goods; and preparing chicken

feed for sale.

In his business for selling charcoal, he has a firm known as "Tanzania charcoal

Dealers" and his partner in this B charcoal business is called Tonny W. Sindano. The

firm is a registered one under the Companies Ordinance bearing Registration No.

39434 dated the 11th day of August, 1976 -Exhibit p.1. Before he started this C

charcoal business, he requested the Ministry of Trade to look for him outside market

vide his letter Exhibit p.2 dated the 15th day of May, 1976. The letter Exhibit p.2 was

responded by the Ministry of Trade through its letter Exhibit p.3 dated the 27th day

of May, 1976 which was addressed to the Director General of the D Government

Purchasing Board Republic of Iraq and copied to the plaintiff. Later the Government

of Iraq by way of telex message Exhibit p.4 corresponded with the plaintiff. The

plaintiff then went to the Ministry of Trade with a request to be give an Export

Licence but the Ministry of Trade referred him to the Forest Department for this was

the department in a position of giving him an Export Licence in goods obtained from

the forest. Forest E department referred him to TWICO., for TWICO was the sole

company allowed by the Government to export Charcoal abroad and if they failed to

export Charcoal abroad they should have given him a letter authorizing him to do so.

TWICO referred the plaintiff to Tanzania Timber Export Company. Tanzania Timber

Export F Company admitted before the plaintiff that they have failed to export

charcoal but they advised the plaintiff to joint them in this business venture or else

they were not ready to give him an export licence. The terms of their agreement

were that Tanzania Timber Export Company was going to charge the plaintiff 10% of

the charcoal he was going to export and that the charcoal is going to be exported

through the name of Tanzania Timber Export G Company. The plaintiff was

required to write a letter to Iraq informing them about this agreement and the

plaintiff complied with this advice and he wrote a letter a copy of which was

tendered in Court as Exhibit p.5 to the H Government of Iraq and he too remitted a

copy of this letter to the Ambassador of Iraq based in Dar es Salaam. He also sent to

Iraq a sample of his Charcoal and to prove this he produced Exhibit p.6 which is Air

Way Bill No. 094 - 7145 -9452 of East African Airways dated the 26th day of June,

1976. He did not get a reply from Government of Iraq thus he went again to the

Office of Tanzania Timber Export Company to inquire about the I same where he

was told that the Government of Iraq had already entered into a contract to buy

charcoal with the Government of Kenya and he was so informed by the General

Manager of Tanzania

1985 TLR p63

MTENGA J

Timber Export Company who was recently in Nairobi Kenya. He then decided to go

and see the Officials of A Bank of Tanzania with the view of negotiating for foreign

currency so that he goes to Iraq to negotiate about the sale of charcoal to Iraq with

the officials concerned there. Bank of Tanzania officials advised him to obtain first a

B letter from Tanzania Timber Export Company before his request was considered.

As he was going to the office of Tanzania Timber Export to obtain the letter as

advised by the officials of Bank of Tanzania, he passed through the post office to

collect his mails. There he found a letter exhibit p.8 dated the 20th July, 1976 C

addressed to the plaintiff by the counsellor of Iraq Embassy here in Dar es Salaam. In

the said letter Exhibit p.8 the said Counsellor advised the plaintiff that he should

expedite about the arrangements of sale of charcoal to his Government purchasing

Board in Iraq. The plaintiff took the letter Exhibit p.8 up to Tanzania Timber Export

Company and showed it to the General Manager of that Company whereby the

General Manager gave him a D letter Exhibit p.9 which he took to the Bank of

Tanzania as advised. The Bank of Tanzania again advised him to go to the Ministry of

Trade to get a letter of support and he got it and the same was tendered in court as

Exhibit p.11. Later the plaintiff got a copy of a letter Exhibit p.12 addressed to the

Governor of the Bank of Tanzania by the Principal Secretary to the Ministry of

Commerce and Industries and copied to the plaintiff advising the E Governor of the

Bank of Tanzania not to give any clearance to the plaintiff to go to Iraq to negotiate

about the deal of sale of charcoal with the Government purchasing Board of Iraq for

the sole Company allowed to export charcoal from the country is Tanzania Timber

Export Company. On receipt of the copy of the letter Exhibit F p.12, the plaintiff

wrote a letter of protest to the Principal Secretary of the Ministry of Commerce and

Industries but unfortunately he failed to produce a copy of that letter and copied that

letter to the Governor of the Bank of Tanzania.

The General Manager of Tanzania Timber Export Company respondent to the letter

of protest of the plaintiff by G writing a letter Exhibit p.13 to the Principal Secretary

of the Ministry of Commerce and Industries and copied the same to the Governor of

the Bank of Tanzania, the Principal Secretary to the Ministry of Natural Resources

and the plaintiff. But before that the Bank of Tanzania refused to give clearance to

the plaintiff to travel to Iraq to H negotiate about this deal resulting his letter of

protest as stated above. Hereafter the Bank of Tanzania also responded to the

plaintiff's letter of protest for on 27th August, 1976 the Director General of the Bank

of Tanzania wrote a letter reference No. 1406 dated the 27th August, 1976 and

tendered as Exhibit p. 14 to the I Principal Secretary, Ministry of Trade advising him

to convene a meeting so that

1985 TLR p64

MTENGA J

the business deal of selling charcoal to Iraq should take effect. As a result of this, a

meeting on 13th August, A 1976 was held and the plaintiff was summoned to attend

this meeting and indeed he at

tended it. Other members who attended this meeting were:

1 Mr. J.N. Mushi - The General Manager of Tanzania Timber Export

Company; B

2. Mr. A.I. Mongi - one of the Managers from Tanzania Timber Export

Company;

3. Mr. E.M. Mzara from the Ministry of Forest and Natural Resources; C

4. Mr. B.D.S. Scoor - an expert at Tanzania Timber Export Company;

5. Mr. E.S. Mbaga who represented the Principal Secretary to the

Ministry of Trade. D

In the said meeting, it was resolved that one member from Tanzania Timber Export

Company and a representative from the plaintiff's firm should go to Baghdad in Iraq

to negotiate about this charcoal business E deal. It was also agreed in this meeting

that the plaintiff's firm should hand over charcoal to Tanzania Timber Export

Company to sell it to Iraq on the Plaintiff's behalf and in return, Tanzania Timber

Export Company should charge 10% of the money accrued from the sale. The minutes

of the said meeting were tendered in court as exhibit p.15. F

To his surprise, on the 13/8/76 when the plaintiff was going to attend the above stated

meeting a friend of his one Mr. Joel Ndyamu (PW.2) gave him a copy of the offending

Daily News which he tendered as exhibit p.16 which is owned by the second

defendant and published by the first defendant an employee of the second defendant

and printed by the third defendant. G

The plaintiff claims that the story appearing in the said newspaper article was not true

for he never requested for a licence from the Bank of Tanzania to sell out charcoal;

therefore the heading of the article was not true, and that H by the 13th day of

August, 1976 when this offending article came out, his firm had already been

registered and it was registered on the 11th day of August, 1976 as exhibited in his

certificate of registration exhibit p.1. He asserted as a lie that by 13/8/76 his firm was

not registered as put in the article exhibit p.16. The plaintiff further I claims that

the defendants showed the plaintiffs' residential and business addresses in the article

exhibit p.16 so that police officers should arrest them for they were considered by the

defendants to be criminal offenders. J

1985 TLR p65

MTENGA J

The plaintiff further asserted that it is not true that the Ministry of Trade did not

know about their charcoal A business as put in the article exhibit p.16 by the

defendants for from May, 1976 his firm had been corresponding with the Ministry of

Trade and held meetings with the officials of that Ministry as stated above. The

plaintiff therefore claims to have been defamed. B

As a result of this article exhibit p.16, officials from Anti-Corruption Squad on the

23/8/76 went to the office of the plaintiff along Moscow/Libya Street as advertised in

the article exhibit p.16 and arrested the plaintiff and his C partner in business.

These anti-corruption officials identified themselves as being Corneus Kafipa and he

took him up to his office near Army Headquarters. In his room, Kafipa took out a

copy of the Daily News of the 13/8/76 and enquired from the plaintiff to account as to

how his firm would get money to bank up its charcoal business and as to whether his

firm has other dubious dealings with the money requested from the bank of D

Tanzania. He then gave the plaintiff a sheet of paper to write down his statement.

However, the plaintiff refused to write down any statement, whereby Mr. Kafipa

threatened to torture him; thereupon, the plaintiff admitted to write down his

statement. The plaintiff's partner was interrogated by another police officer in a

separate room. E Both of them were released on that very day at 6.30 p.m. after

being warned that they should not leave Dar es Salaam City for any time they could

be called upon.

Later sometime in September 1976 the plaintiff received a letter ref. No. 47543 dated

the 11th September, 1976 from the Government purchasing Board of Iraq exhibit p.

17 which states in part and I quote: F

We would like to inform that we had to put your offer of 17th of August in

abeyance due to high price.

The plaintiff claims that he suspected the Iraq Embassy in Dar es Salaam to have sent

a copy of the Daily News G of 13/8/76 exhibit p.16 to its Government in Iraq

resulting his Charcoal business deal with Iraq Government to be revoked as shown in

the letter exhibit p.17. The Plaintiff never went to see Tanzania Timber Export

Company again for he is already thought by the Company as a crook and Tanzania

Timber Export Company never sold H charcoal to Iraq as agreed upon for the

Company depended upon the plaintiff's firm to get the said Charcoal.

The plaintiff further claims that in the first order Iraq Government wanted to buy

3,000 tons of charcoal from his firm that's to say about 60,000 bags of charcoal each

weighting 50kgs. at a price of Shs.55.02 per bag could I have been sold to Iraq

Government had the agreement not been

1985 TLR p66

MTENGA J

revoked by Iraq Government due to this article appearing in the Daily News exhibit

p. 16 of 13/8/76. He claims A that he rang a person working with Iraq Embassy in

Dar es Salaam and he got reminded by that person to read his home papers. The

plaintiff further claims that if this business took of, his company could have earned a

profit B of Shs.900,000/= net and this profit was lost due to the article which is

defamatory written by the defendants.

Later the plaintiff approached the second defendant to correct his errors appearing in

the article of 13/8/76 Daily News exhibit p.16 and to offer an apology and the second

defendant promised to do so on 16/8/76 but he never C kept his promise. On 21st

August, 1976 through the services of their advocate one Mr. Raithatha, the plaintiffs

wrote the Daily News second defendant a letter exhibit p.18 asking him to offer an

apology and to pay the plaintiff a reasonable sum by way of damages. On 23rd

August, 1976 the second defendant wrote a letter D Ref. No. ED/CEN/55 to the

plaintiffs through their advocate Exhibit p.19 and part of this letter reads and I quote:

...While we are making out own investigations on the matter we would like to

have from you a sample letter which could be the basis for discussion on a possible

apology. E

On receipt of this letter Exhibit p.19, the plaintiff through the services of his other

advocate one Mr. Rahim on F 22nd December, 1977 wrote the second defendant

another letter Exhibit p.20 demanding for an apology, while reminding him of his

previous letter Exhibit p.18. On receipt of this letter Exhibit p.20 the second

defendant wrote a letter Exhibit p.21 bearing Reference No. p BS/AM/119/12/77 dated

the 27 the December, 1977 to the Chief Corporation Counsel seeking for legal advice

on the matter. The plaintiff claims that up to the time he came G to court the

defendants have never apologized nor have they given him any reasonable

compensation for their defamatory article appearing in the article of the Daily News

of 13th August, 1976 Exhibit p.16.

The plaintiff further contended that prior to that article Exhibit p.16 the second

defendant also published some H other articles which were defamatory about

Charcoal business and he tendered such articles as Exhibits p.22 p.24 respectively.

In conclusion, the plaintiff testified that he is a businessman dealing with other

businesses apart from dealing with I the sale of charcoal he is dealing with the sale of

wood; tailoring of uniforms; Clearing and forwarding goods; Manufacturing chicken

feed and animals; and he used to get an annual net profit of::

1985 TLR p67

MTENGA J

1. Tailoring Sh.200,000/= up to 300,000/=' A

2. Timber Shs.300,000/= to Shs.400,000/=

3. Clearing and Forwarding of goods Shs.600,000/=

He claims to have had a lot of customers prior to the publication of the offensive

article Exhibit p.16 but B thereafter, he no longer gets such a great number of

customers and when he appears in his favourite bar known as "White House Bar" to

drink along Libya Street here in Dar es Salaam his friends and customers ridiculed and

laughed at him calling him all sorts of names and he was stopped selling charcoal

because some of his customers consider him to be a criminal offender. He asks now

this court to award him Shs.1 million as damages for this C defamation plus costs of

this suit.

Mr. Joel Ndyamkama (PW.2) testified that he is a friend of the plaintiff and that he is

a sales Manager of Colt Motors. Sometime in August, 1976 he bought a copy of the

Daily News and to his surprise he saw an offensive article defaming the plaintiff and

he took that copy of the Daily News Exhibit p.16 to the plaintiff and from then D on

he considered the plaintiff to be a crook who ran a business without registering it, and

he looked down upon him. By then the plaintiff had already applied to the Colt

Motors to buy two cars for the purpose of running his E Charcoal business but when

the Managing Director of Colt Motors saw the article appearing on Exhibit p. 16, he

cancelled the application because he considered the plaintiff to be a crook.

On the other hand, the defendants admitted to have published the article Exhibit p.16

but they pleaded justification and they called two witnesses in their support and these

were Mr. Enest Ambali (DW.1) and Richard F Benjamini Mnguhai (DW.2).

During the hearing of this case the court sat with three assessors as provided under

section 57(1) of the Newspaper Act, 1976 but during final submissions it was reported

that one of the assessors was dead and this situation left the court with only two

assessors. G

I directed the two gentlemen assessors that in a libel action, the plaintiff has to prove

three things. Firstly he has to prove whether the defendants published those words

complained of; secondly, did the words refer to the H plaintiff? and lastly, were the

words complained of, defamatory. The test of what is defamatory is whether the

words complained of would tend to lower the reputation of the plaintiff in the

opinion of right-thinking persons.

On the first issue as to whether the defendant printed and published those words

complained of in paragraph 5 of I the plaint? Well the defendants do not deny that

and their defence counsel through his submissions readily admitted to have done so.

Further still, the plaintiff

1985 TLR p68

MTENGA J

managed to produce the article in issue Exhibit p.16. A

The second and third issues can be answered together. As rightly contended by Mr.

Mbuya, learned counsel for the plaintiff, which contention I wholly agree with,

defamation is a false and malicious statement about a man to B his discredit.

Whether or not a statement is defamatory, the court has to look at the contents of the

statement to see as to whether it is true or false and malicious or whether it discredits

the one about whom it relates. Having this in mind, two facts are not true on the

Daily News issue Ex.p.16 The heading of the article says: "... Bank C rejects Charcoal

export application." This is not all that true for the evidence as stated above clearly

shows that the plaintiff requested for travel clearance to go to Iraq where the

prospective customer was and he never applied for an export Licence as the heading

of that article Exhibit p.16 wants the public to understand. Surely D and right

thinking person on reading the heading of that article on Exhibit p.16 would come to

the conclusion that the business deal between the plaintiff and Iraq Government for

selling the latter charcoal was finished for without having an export Licence, the

plaintiff could not be in a position of selling charcoal to Iraq Embassy who are based

here in Dar es Salaam and who took part in this deal by negotiating on behalf of their

Government were E embarrassed.

The next item which I consider to be false is contained in paragraph one of the article

in Exhibit p.16 and it read: "... The Bank of Tanzania has rejected applications of two

officials of an unregistered firm....." This I think was as well bad news for Iraq

Government together with the officials of Iraq Embassy in Dar es Salaam naturally F

believed through this article Exhibit p.16 that they were negotiating with, an

unregistered firm and it was as well bad news to right thinking people at large for the

public thought that the plaintiff was a crook who wanted to have business with

foreign Government without having a registered firm. The defendants agreed that

they printed and G published the article but asserted that was true and pleaded

justification to it. To support their assertion, they brought the Registrar of Companies

Mr. Richard Benjamini Mnguhai DW.2) who told the Court that the plaintiff's

company was registered on 16th August, 1976 three days after the article Exh.p.16

complained of was printed and published. This is not at all true for the plaintiff's

certificate of registration Exhibit p.1 clearly shows H that the plaintiff's Company

was registered on 11th August, 1976 before the publication of Exhibit p.16.

Another false statement in the article Exhibit p.16. is contained in the last paragraph

of it and it reads:

...The Principal Secretary in the Ministry of Trade, Ndugu A.G. Cheyo, said, I

have heard of the Company but the Ministry I has not

1985 TLR p69

MTENGA J

yet been informed officially about its existence nor its nature of business. A

I say that this statement is false because right from the start as I explained above in

the evidence of the plaintiff (PW.1) that the plaintiff has approached the Ministry of

Trade to enquire about the possibility of exporting B charcoal abroad for sale. As a

result of the plaintiff's inquiries, the Ministry of Trade has written a letter Exhibit p.3

to Iraq Government reminding it about its trade delegation of 1973 looking for wood

charcoal and the C Ministry of Trade had asked the Iraq Government to contact the

plaintiff directly and copied that letter to the plaintiff and indeed, the Ministry of

Trade had requested the plaintiffs firm to get into contract with TWICO and TAN

TIMBER which the plaintiff's firm did. After long correspondence between the

plaintiff and Iraq D Government the plaintiff sent a sample of his charcoal to Iraq

Government as shown in the Air Way Bill Exhibit p.6 and as a result, of this, the Iraq

Government purchasing Board wrote back to the plaintiff wishing to buy an initial of

3,000 tons of charcoal. It is therefore not true that the Ministry of Trade was not

officially aware of the existence of the plaintiff's firm.

The next issue is whether the words used in the article Exhibit p.16 were defamatory

of the plaintiff. To this Mr. E Mbuya learned counsel for the plaintiff referred me to

the case of East African Standard v Gittan [1970] E.A. 678 where it was held by Spry

Ag. J. as he then was that the test of what is defamatory is whether the words

complained of would tend to lower the reputation of the plaintiff in the opinion of

right-thinking persons; F and one could look at the general impression they are

likely to create in the minds of reasonable persons. In the instant case of article

Exhibit p.16 has carried, an innuendo that there was an illegal firm in the sense that it

was not registered and that this unregistered firm was carrying on business without

complying with the requirements of the law resulting the Bank of Tanzania to react

by refusing to grant it export licence for exporting charcoal G abroad. There is

evidence on recording by the plaintiff (PW.1) and his witness (PW.2) that after

publication of this article exhibit p.16 which evidence was not disputed that the

plaintiff (PW.1) and his partner were arrested and interrogated in connection with

this charcoal business as exhibited in the article Exhibit p.16. Moreover the H

plaintiff's application to buy two motor vehicles from Colt Motors for his charcoal

business as stated by his friend (PW.2), was also revoked as a result of the publication

of this article Exhibit p.16. Later PW.2 went to the plaintiff and enquired from him

as to whether what he had read in the article Exhibit p.16 was true and when the I

plaintiff went to drink in one of the bars he normally used to frequent the "White

House Bar," he was

1985 TLR p70

MTENGA J

looked down upon as a crook by his customers and friends. I agree with Mr. Mbuya's

contention that by then A the Daily News was the only substantial media in the

country with a wide circulation and among the people who read it were the people of

Iraq Embassy in Dar es Salaam whom the plaintiff with the knowledge of the

Ministry B of Trade was contacting with Iraq Government trying to sell charcoal in

Iraq.

In conclusion therefore, I agree with the unanimous opinion of the two gentlemen

assessors that the article exhibit p. 16 was recklessly prepared on incorrect

information and the publication of this article appearing in exhibit p.16 C has

injured the reputation of the plaintiff and it has exposed him to hatred, contempt and

it has damaged him in his business profession. The defendants acted in this manner

without lawful justification or excuse and the information was false.

I now come to consider the fifth and sixth issues and these two issues can be

consolidated together for they are inter-related. With that I directed the two

gentlemen assessors to consider the following: D

(a) Gravity of the defamation,

(b) Whether the libelous imputation was conveyed to the general mass of

readers of the Daily News, E

(c) Regard should be taken on the defendants' refusal to publish an

apology.

The two gentlemen assessors were of the unanimous opinion that the plaintiff should

be awarded Shs.470,400/= as general damages. F

It is true that the innuendo appearing on Exhibit p.16 was disparaging to the

plaintiff's character and the article imputed the commission of a crime by the plaintiff

and that is why he was arrested, and detained for interrogation by the anti-corruption

officials for a number of hours. As a result of the libel plaintiff's business has

dwindled as G the general public has shunned away from him. For they look down

upon him as a crook after reading that article. Even though I look at this claim with a

bit of scepticism for it is likely that the plaintiff might have exaggerated this claim out

of feelings of indignation. Indeed the plaintiff's business contact with Iraq

Government H had come to an abrupt end due to the publication of this libellous

article Exhibit p.16 but also due to high price as complained by the Iraq Government

in their letter Exhibit p.17. Also take into view that the Daily News had a wide

circulation for it is read not only in the whole country but also in neighbouring

countries. More and above, I the second defendant's conduct after publication of the

libel aggravated the matter. The second defendant did not respond to letters sent to

him by the plaintiff's advocates nor did he offer an apology. I agree that in these

1985 TLR p71

circumstances the plaintiff is entitled to substantial damages bearing in mind that the

plaintiff's means of livelihood A has seriously been threatened.

I am not however, in agreement with the opinion of the gentlemen assessors that the

amount of damages be in the region of Shs.470,400/=. The plaintiff tried to bring in

some figures in order to convince the court as to how B much he used to earn before

the publication of this offending article but he never told the court as to how much

he is now earning in his various businesses after the publication of this article and nor

did he produce his books of accounts to prove what actually he earned in his various

businesses before the publication of this offensive article C Exhibit p.16 and this

being the position, the plaintiff might have exaggerated out of feelings of indignation

and the figures of profits of his businesses might not be all that accurate. It should

also be borne in mind that the business contract with the Iraq Government was not at

all concluded and the plaintiff had all the opportunity to mitigate the damage by

selling his charcoal locally.

It is therefore my view that the interests of justice will be served if the plaintiff is

awarded Shs.200,000/= as D general damages plus costs and interest. It is so ordered.

Plaintiff is awarded Shs.200,000/=

1985 TLR p71

F