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

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