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
F 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 G 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 I protected even
1983 TLR p7
MUSTAFA JA
though his language should be violent or excessively strong; if having regard to all the
A 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 B the truth of the communication.
Case Information
Appeal allowed.
Case referred to: C
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
D 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
E 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 F 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. I
1983 TLR p8
MUSTAFA JA
Enquiries were apparently conducted by the Chief Justice on these allegations, but A
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 B 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 C 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 D 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. E
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 H
...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 I true I also wanted him arrested and, if possible prosecuted or
detained..
1983 TLR p9
MUSTAFA JA
The respondent Jonathan in his evidence stated inter alia: A
...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 C
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 E 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. F
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... H
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
1983 TLR p10
MUSTAFA JA
and did not give the money. He went to the respondent to verify the story. He asked
if A 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 B 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 C taken Shs. 2,500/=.
He denied approaching Salum or receiving any money from him or that he had told
the D 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 E
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 F 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 G 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 H 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
1983 TLR p11
MUSTAFA JA
and does so for ill motives he is said to publish the statement maliciously... The
burden of A 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. C 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.... D
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 E 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 F 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 G 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: I
1983 TLR p12
MUSTAFA JA
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 B 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. C
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 D 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 F 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 G 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 H
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.
1983 TLR p13
In the circumstances we think that Athumani on reasonable grounds honestly
believed A 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 B 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 C 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 D therefore an order that the claim for damages be dismissed with costs to
the appellant Athumani both here and below.
E Appeal allowed.
1983 TLR p13
F
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