Athumani Khalfani v P.M. Jonathan 1983 TLR 6 (CA)

ATHUMANI KHALFANI v P.M. JONATHAN 1983 TLR 6 (CA)

Court Court of Appeal of Tanzania - Dar Es Salaam

Judge Mustafa JJA, Mwakasendo JJA and Makame JJA

CIVIL APPEAL 12 of 1983

Flynote

Tort - Defamation - Defamatory statement-Meaning of Tort - Defamation - Malice required where communication privileged.

Tort - Defamation - Malice does not exist where defendant honestly and reasonably believes in the truth of the communication.

Tort - Defamation - "Privileged occasion" - Communication to the Chief Justice - Whether privileged.

-Headnote

The appellant appealed against the decision of the High Court which ordered him to pay damages to the respondent for libel. The libel consisted of a communication to the Chief Justice made by appellant alleging that the respondent was corrupt. The detailed facts of H the case appear in the judgment.

Held: 

(i) A person making a communication on a privileged occasion is not restricted to the use of such language merely as is reasonably necessary to protect the interest or discharge the duty which is the foundation of his privilege; but on the contrary he will be protected even though his language should be violent or excessively strong; if having regard to all the circumstances of the case he might have honestly and on reasonable grounds believed that what he wrote or said was true and necessary for the purpose of his vindication, though in fact it was not so;

(ii) malice is required where the communication is privileged;

(iii) malice does not exist where a defendant honestly and reasonably believes in the truth of the communication.

Case Information

Appeal allowed.

Case referred to:

1. Adam v Ward, [1917]AC 309

Editorial Note: The High Court decision is reported in [1980] TLR 175.

[zJDz]Judgment

Mustafa J.A.: The respondent successfully sued the appellant Athumani for libel in the High Court (Lugakingira, J.) and was awarded damages amounting to Shs. 33,000/= inclusive of a sum of shs 20,000/= which represented exemplary damages. From that decision the appellant is appealing.

The facts very briefly are as follows. The respondent was a judge of the High Court of Tanzania during 1978 and in that capacity in July, 1978 he tried a Civil Case at Dodoma in which the parties were the appellant Athumani and one Mahusein Salum.

The respondent reserved judgment. Something happened in October, 1978, before judgment was read. As a result the appellant Athumani made a complaint to the Permanent Commission of Enquiry and was directed to report to the Chief Justice. Athumani did so, and was told to put the complaint in writing which he did in a letter to the Chief Justice dated 6/11/78. The letter was exhibited in Court as Exhibit P2 and formed the basis of G the libel action. In it Athumani had alleged that the respondent had shown bias in favour of his opponent Salum, that the respondent, while on a visit to the locus in quo had winked at or otherwise made a gesture to Salum, that he had seen Salum with the respondent in the respondent's car and had seen the respondent and Salum together at H two different guest houses. He also referred to information supplied to him by Dodoma Court Chief Clerk, one Mkufya concerning the familiarity between the respondent and Salum and about a transaction involving the payment of money by Salum to the respondent. 

Enquiries were apparently conducted by the Chief Justice on these allegations, but nothing turned on them in so far as this appeal is concerned. The respondent, after retiring or resigning from the bench, filed the action for defamation which has given rise to this appeal.

The trial judge found that the letter of 6/11/1978 Exhibit P2 was published to the Chief Justice by Athumani, that it was defamatory of the respondent but that it was published on an occasion of qualified privilege. He found no publication to the Permanent Commission of Enquiry or the Police. However he found that Athumani was actuated by malice when he published the said letter Exhibit P2, which thus destroyed the privilege. He therefore awarded damages as mentioned earlier against Athumani.

We are satisfied that the trial judge was right in finding that there was publication to the Chief Justice, that the letter was defamatory of the respondent, and that it was published on a occasion of qualified privilege. Athumani's advocate on appeal before us does not dispute these findings. However the issue on appeal is whether there was malice or evidence of malice which destroyed the privilege. The respondent, though duly served, was absent and unrepresented and we thus do not have the benefit of his arguments.

The appellant Athumani in evidence stated inter alia:

The most important thing in this case are acts of bribery. When I saw these acts, and signs of them, I decided to complain to the C.J. confidentially. It is easy to see signs of corruption but it F is difficult to prove corruption. But by the grace of God, both the giver and the receiver have confirmed it. What I wrote to the C.J. had only one purpose. It will be recalled that plaintiff said the Arab was brought into his office and he agreed that they talked about bribery. That is the G incident I wrote about in para 6 of my letter to C.J.

Again

....I did not say anything false about him. I had no malice...

Again

...I asked myself whether it was a simple matter to accuse a judge. The answer was no; it was a grave matter.

Again

...In reporting to the C.J. that Judge Jonathan was corrupt. I wanted justice. Another judge. It is true I also wanted him arrested and, if possible prosecuted or detained..

The respondent Jonathan in his evidence stated inter alia:

...In October, 1978, when I was in my chambers one morning a messenger......told me someone....wanted to see me on official matters....The person who entered was the plaintiff in the Civil Case I have referred to. The messenger had then left. Mahusein (Plaintiff) then wanted to know the progress of the case. I told him to go home and that he would be called for B judgment. He there and then told me he had received my message from my Clerk. He then asked me whether I had received his message from that Clerk. I was surprised. I told him I had not sent anybody to him nor had I received any message from him. I asked which Clerk was that? He replied "Mkufya" - who was Chief Clerk of this court. I asked him to call Mkufya so that I could question him in his (plaintiff's) presence. He begged me to drop the matter. He expressed the wish that the matter ends there. I recall he told me he had given Mkufya Shs. D 250/=. I told him to go away and await date of judgment.

When he left, I sent a messenger to call Mkufya...Mkufya denied everything...

He then told me that it was Mahusein who had followed him (Mkufya) and asked him to see me on that case. Mkufya said he refused the request. But Mahusein allegedly insisted so in the end Mkufya gave in. He then received the money from Mahusein. I told him "give me the money then". He replied that he received it and kept in safe custody... I told him to go and bring the money. He agreed and left. Shortly after Mkufya left my chambers, I called the D.R. Ndugu Kazimoto. I told him what had transpired. We decided to wait for Mkufya to return. A long time (2 hours) went by. Mkufya never came back to my chambers...Kazimoto then brought Mkufya... He completely denied even that G (receiving and keeping the money)...

Kazimoto brought Mahusein in the same day and we all met in my chambers and in Mkufya's presence. Mahusein repeated what he had told me earlier. Mkufya denied everything... I then directed Kazimoto to take appropriate action...Kazimoto transferred Mkufya...

Kazimoto was not called to give evidence. Mahusein Salum testified and stated that one day Mkufya approached him and told him that the judge (respondent) would expedite I writing the judgment if he gave 2,000/= as a present. He said he did not believe Mkufya and did not give the money. He went to the respondent to verify the story. He asked if the respondent had sent Mkufya to him for Shs. 2,000/=. He stated in evidence:

The judge was first shocked. Then he recovered and laughed and decided to summon Mkufya. I requested him to leave the matters there, lest the situation becomes serious...He said we would be informed when the judgment was ready...

Salum seems to have denied giving any money to Mkufya. 

Mkufya in his testimony stated inter alia:

I was transferred to Kondoa because Mahusein Salum went to tell judge Jonathan that I had taken Shs. 2,500/=. He denied approaching Salum or receiving any money from him or that he had told the respondent that he had the money. He stated that he had told the appellant Athumani that Salum was used to calling at the respondent's chambers but denied telling Athumani that he was getting bribes on behalf of the respondent.

It seems clear to us that pending the decision in the civil case between appellant Athumani and Salum there was some transaction involving the giving or receipt of a bribe on the part of Salum and Mkufya allegedly acting as agent for the respondent.

That was clear from the respondent's evidence. The appellant Athumani claimed that Mkufya had passed on that information to him. So Athumani was in possession of information which must have greatly upset him. As Athumani stated in evidence:

The most important thing in this case are acts of bribery...

Was Athumani justified in believing the information supplied to him by Mkufya, and did he honestly believe that acts of bribery had taken place? After receipt of Mkufya's information Athumani took steps which culminated in his letter to the Chief Justice, Exh. P2.

Did Athumani make the report to the Chief Justice maliciously? The trial judge found that he did. In his judgment he said inter alia:

Malice has been variously stated as ill-will, spite, improper motives, indifference to truth etc. In I short when a person publishes of another a statement which is false and defamatory and does so for ill motives he is said to publish the statement maliciously... The burden of proving malice rests on the plaintiff...He can discharge the burden in several ways.. Fortunately or other-wise I do not have to go very far in establishing the defendant's motives...I will do no more than to quote his very words: B

"I reported to the Chief Justice that Judge Jonathan was corrupt. I wanted justice. Another judge. It is true, I also wanted him arrested and if possible prosecuted or detained".

These confessions are self explanatory and the defendant never sought to revise them. These are confessions of malice. The defendant was not just interested in the fate of his case. He also wanted to wreak vengeance on the plaintiff, in short, to ruin him... and find that the defendant was actuated by vaulting malice in communicating to the Chief Justice....

The trial judge also referred to the transfer of Mkufya who he thought was Athumani's trusted consultant and concluded that the said transfer trigged off the complaint to the Chief Justice.

The trial judge disbelieved the evidence of Athumani and his witnesses to the effect that the respondent and Salum had been seen together in guest houses and found that the allegations of bias contained in the plaint were not proved. He seemed to find further support of malice in these unproved allegations.

With respect we do not think that the trial judge was justified in coming to the conclusion he did. Athumani clearly believed what Mkufya had told him about a transaction involving bribery. He was obviously upset. As he said, "the most important thing in this case is bribery..." What he did was to take up the matter and he did so with circumspection. He eventually complained to the Chief Justice. In so reporting he had said he wanted justice. He said he had no malice and did not say anything false about the respondent; that is he told the Chief Justice what he honestly believed to be the truth. He was obviously trying to protect his own interest. He also said, "...I also wanted him arrested and if possible prosecuted and detained". If the respondent was in fact guilty of H corruption, he would naturally be arrested and prosecuted or detained. The trial judge used this sentiment expressed by Athumani as a "confession of malice". We do not think so. In Adam V . Ward [1917] AC 309 a House of Lords decision and a leading case on defamation, Lord Atkinson stated at p.339: 

The authorities, in my view, clearly establish that a person making a communication on a A privileged occasion is not restricted to the use of such language merely as is reasonably necessary to protect the interest or discharge the duty which is the foundation of his privilege; but on the contrary he will be protected, even though his language should be violent or excessively strong; if having regard to all the circumstances of the case, he might have honestly and on reasonable grounds believed that what he wrote or said was true and necessary for the purpose of his vindication, though in fact it was not so.

This passage has been cited with approval in Tanzania and other East African courts. Did Athumani, when making his complaint to the Chief Justice, honestly believe that his complaint was true? Athumani himself said that he had said nothing false about the respondent and had no malice towards him.

Was Athumani telling the truth? We will examine the objective conditions obtaining at the material time. There was clear evidence, given by the respondent himself, that a transaction involving bribery or attempted bribery had taken place. That is the gravamen E of Athumani's charge. The other incidents were merely in support of that charge.

We think that Athumani had good reason to believe the information Mkufya had given him, which in the event had proved to be substantially true, in so far as an attempt at bribery was concerned. If he had reported to the Chief Justice in this honest belief, then he had no malice, even if the information furnished was false.

The trial judge found that the respondent never by himself or through Mkufya solicited or obtained a bribe from Salum. That may well be so; but the evidence given by the respondent himself established that there was a transaction involving a bribe or attempted bribe, with him as the central figure.

We make no comment on the respondent's conduct when he was faced with the confessions of bribery made by Salum and Mkufya in his chambers except to say that it seems rather odd. We would have expected at least an immediate and instant confrontation of the parties concerned, including the appellant Athumani, when Salum told him in the privacy of his chambers that he had sent him Shs. 2,500/= obviously as a I bribe. If that had been done we venture to think no suspicions against him could have arisen.

In the circumstances we think that Athumani on reasonable grounds honestly believed that his complaint to the Chief Justice was true and we do not think that there was sufficient evidence of malice to destroy the qualified privilege under which the publication was made.

We have noted the remarks made by the trial judge concerning the issue of the award of exemplary or punitive damages. We do not propose to deal with this matter as it is unnecessary in view of the conclusion we have reached in this appeal. We will only say that it is generally inadvisable to embark on an examination and detailed analysis of a controversial issue of this nature without the assistance of counsel on both sides.

It may be that the trial judge has come to the right conclusion on this question, but we will reserve any decision on this matter for a more appropriate occasion. We allow the appeal, set aside the judgment and decree of the High Court and substitute therefore an order that the claim for damages be dismissed with costs to the appellant Athumani both here and below.

Appeal allowed.

1983 TLR p13

F