RUGARABAMU ARCHARD MWOMBEKI v CHARLES KIZIGHA AND THREE OTHERS 1984 TLR 350 (HC)

RUGARABAMU ARCHARD MWOMBEKI v CHARLES KIZIGHA AND THREE OTHERS 1984 TLR 350 (HC)

Court High Court of Tanzania - Dar Es Salaam

Judge Mtenga J

CIVIL CASE 83 OF 1979 E

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 - Whether

general damages awardable. F

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

awarded - Plaintiff's failure to show how much he was earning after publication of

the offending article - Plaintiff's failure to produce books of accounts to prove what

he actually earned before publication of the article - Plaintiff had opportunity to

mitigate G 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 H him by 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. I

1984 TLR p351

MTENGA J

A 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.

Case Information

B Plaintiff awarded Shs. 200,000/-

Case referred:

1. East African Standard v Gitan [1979] E.A. 678

C Mbuya, for the plaintiffs

Banturaki, for the defendants

[zJDz]Judgment

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

defendants for damages D for libel. The first defendant is employed by the second

defendant. The second defendant is a registered Company incorporated under Cap.

212 of the laws of Tanzania, and he is the proprietor of "The Daily News" which is a

National Newspapers. The third defendant is a Limited liability Company

incorporated E under Cap. 212 of the Laws of Tanzania and he is the publisher of the

second defendant's Newspaper - "The Daily News."

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

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

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

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

.... Bank rejects Charcoal Export application.

By Charles Kizigha.

G The Bank of Tanzania has rejected applications of the Officials of an

unregistered firm - Tanzania Charcoal Dealers - who wanted foreign exchange to go

to Iraq to negotiate Charcoal trade, it was learnt yesterday.

H The Officials were named as Ndugu Rugarabamu Archard Mwombeki and

Ndugu Mohammed.

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

been corresponding through the Iraq I Embassy in Dar es Salaam with charcoal

dealers in Iraq.

1984 TLR p352

MTENGA J

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

to export to Iraq, Bank sources said. A

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

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

forms were submitted on August, 9, this year B and a receipt number N. 916141 was

issued after a payment of Shs. 45/00 as fees was made.

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

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

Mwombeki residing in Kinondoni Block Number C 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 company are at Mosque/Libya Streets on Plot Number

1809/88. D

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

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

existence nor its nature of business." The innuendo averred by the plaintiff in para 7

and 8 of the plaint was: E

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, F

(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,

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

8. Or in the alternative, the said words meant and were understood to

mean:

(a) That the plaintiff was a Criminal,

(b) that the Plaintiff is a bogus unscrupulous and dishonest

businessman H

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

country's foreign exchange for personal use or advantage.

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

injured in his I character, credit and reputation

1984 TLR p353

MTENGA J

A in the way of his business, and he has been brought into public scandal, odium

and contempt and 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 pleased justification to

the article quoted above.

B 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;

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

meaning defamatory of the plaintiff;

3. Whether the words were true or false;

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

comment;

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

business or to his person;

6. To what relief are the parties entitled.

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

businessman dealing with E various 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 pattern in F this charcoal business is called Tonny W. Sindano. The

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

39434 dated the 11 day of August, 1976 - Exhibit P.1. Before he started this charcoal

business, he requested the Ministry of Trade to look for outside markets vide his letter

G 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 17th day of May,

1976 which was addressed to the Director General of the Government Purchasing

Board Republic of Iraq and copied to the plaintiff. Later the Government of H 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 given 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 department referred him to TWICO, for TWICO was the sole company

I allowed by the Government to export charcoal abroad and if they failed to export

charcoal abroad

1984 TLR p354

MTENGA J

they should have given him a letter authorizing him to do so. TWICO referred the

plaintiff to Tanzania A Timber Export Company. Tanzania Timber Export Company

admitted before the plaintiff that they have failed to export charcoal but they advised

the plaintiff to join 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 B

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 Company. He was then advised by Tanzania Timber Export Company

to write a letter to Iraq informing them about this agreement C 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 Government 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 D 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 same where he was told

that the Government of Iraq had already entered into a contract to buy charcoal with

the Government of E Kenya and he was so informed by the General Manager of

Tanzania Timber Export Company who was recently in Nairobi Kenya. He then

decided to go and see the officials of Bank of Tanzania with the view of negotiating

for foreign currency so that he could go 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 letter from F 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 29th July, 1976 G

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 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 H Export

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

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

The Bank of Tanzania again advised him to go the Ministry of Trade to get a letter of

support and he got it and the same was tendered in court I as Exhibit p.11. Later the

plaintiff got a copy of a letter Exhibit p.12

1984 TLR p355

MTENGA J

A addressed to the 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 B of the

copy of the letter exhibit 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.

C The General Manager of Tanzania Timber Export Company responded to the

letter of protest of the plaintiff by 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 D

clearance to the plaintiff to travel to Iraq to 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. 14106 dated the 27th E August, 1976 and

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

convene a meeting so that the business deal of selling charcoal to Iraq should take

effect. As a result of this, a meeting on 13th August, 1976 was held and the plaintiff

was summoned to attend this meeting and F indeed he attended it. Other members

who attended this meeting were:

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

Company;

G 2. Mr. A.I. Mongi - one of the Managers from Timber Export Company;

3. Mr, E.M. Mzava from the Ministry of Forest and Natural Resources;

4. Mr. B.D.S. Scoorer - an expert of Tanzania Timber Export Company;

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

Ministry of Trade.

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

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

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

that the

1984 TLR p356

MTENGA J

plaintiff's firm should hand over charcoal to Tanzania Timber Export Company to sell

it to Iraq on the A 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.

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

meeting a friend of B 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. C

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 charcoal;

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

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

and it was registered on the 11th day of August, 1976 and 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 claims that the

defendants showed the plaintiffs' residential E 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.

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

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

for from May, 1976 his firm had been F 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.

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

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

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

anti-corruption officials identified themselves as being police officers and that they

wanted to interrogate them in connection with the article appearing in the Daily

News of 13/8/76 exhibit p.16. The plaintiff was handled by a police officer who

identified himself as H 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 I money

1984 TLR p357

MTENGA J

A requested from the Bank of 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 B interrogated by

another police officer in a separate room. 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

11th September 1976 C from the Government purchasing Board of Iraq exhibit p.17

which states in part and I quote: "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 of

D 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 E never sold

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 is to say about 60,000 bags of charcoal each

weighing 50 kg. at a price of Shs. 55/02 per F bag could have been sold to Iraq

Government had the agreement not been revoked by Iraq Government due to this

article appearing in the Daily News exhibit p.16 of 13/8/76. He claims 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

off, his company could have earned a profit of Shs. G 900,000/= net and this profit

was lost due to the article written by the defendants which is defamatory.

Later the plaintiff approached the second defendant to correct 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 H but he never 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 I defendant wrote a letter Ref. No. ED/GEN/55 to the plaintiffs

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

1984 TLR p358

MTENGA J

...while we are making our own investigations on the matter we would like to

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

apology.

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

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

another letter Exhibit p.20 demanding an apology, B 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. BS/AM/119/12/77 dated

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

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

defendants have never apologized nor have they given him any reasonable

compensation for their defamatory statement appearing in the article

of the Daily News of 13th August, 1976 Exhibit p.16. D

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

defendant also published some other articles which were defamatory about charcoal

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

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

businesses apart from E dealing with the sale of charcoal: he is dealing with the sale

of wood; tailoring of uniforms; clearing and forwarding goods; manufacturing chicken

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

1. Tailoring Shs. 200,000/ up to 300,000/- F

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 G thereafter, he no longer gets such a great number of

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

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

laugh at him calling him all sorts of names and he has stopped selling charcoal

because some H 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 defamation plus costs

of this suit.

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

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

Daily News Exhibit p.16 I

1984 TLR p359

MTENGA J

A 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 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 B the Colt

Motors to buy two cars for the purpose of running his 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.

C 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. Ernest Ambali (DW.1) and Richard Banjamini Mghuhai (DW.2).

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

section 57(1) of the D 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.

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

three things. Firstly E he has to prove whether those words complained of, were

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 defendants printed and published those words

complained of in F paragraph 5 of 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 managed to produce the article in issue Exhibit p.16.

G 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 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 H 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 rejects Charcoal export application.

This is not all that true for the evidence as stated above clearly shows that the

plaintiff requested for travel I clearance to go to Iraq where the prospective

customer was and he never applied to an Export

1984 TLR p360

MTENGA J

Licence as the heading of that article Exhibit p.16 wants the public to understand.

Surely any right thinking A 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 to selling charcoal to Iraq B

Government; and naturally the officials in 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 embarrassed.

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

in exhibit p.16 and it C reads:

.... The Bank of Tanzania has rejected application of two officials of an

unregistered firm... D

This I think was bad news for Iraq Government together with the officials of Iraq

Embassy in Dar es Salaam who naturally 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 E the plaintiff was a crook

who wanted to have business with a foreign Government without having a registered

firm. The defendants agreed that they printed and pleaded justification to it. To

support their assertion, they brought the Registrar of Companies Mr. Richard

Benjamini Mugulue (DW.2) who told the court that the plaintiff's company was

registered on 16th August, 1976 three days after the article Exhibit F 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 that the plaintiff's company was

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

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 H Ministry has not yet been informed officially

about its existence nor its nature of business'.

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

the evidence of the I plaintiff (PQ.1) the plaintiff has approached the Ministry of

Trade to enquire about the

1984 TLR p361

MTENGA J

A possibility of exporting 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

Ministry of Trade has asked the Iraq Government to contact the plaintiff B directly

and copied that letter to the plaintiff and indeed, the Ministry of Trade had requested

the plaintiff's firm to get into contract with TWICO and TANTIMBER which the

plaintiff's firm did. After long correspondence between the plaintiff and Iraq

Government the plaintiff sent a sample of his charcoal to C 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.

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

defamatory of the plaintiff. To this Mr. Mbuya learned counsel for the plaintiff

referred me to the case of East African Standard v Gitan (1970) E.A. 678 where it was

held by Spry Ag. J. as he then was that the test of what is defamatory is E whether

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

opinion of right-thinking persons; and one should look at the general impression they

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

Exhibit p.16 has carried an innuendo that there F 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 causing the Bank of Tanzania to

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

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

publication of this article exhibit p.16 which evidence was G 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. More and above, the

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

business as stated by his friend (PW.2) was also H refused 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 plaintiff went to drink in one of the bars he normally used to frequent the

"White Horse Bar", he was looked down I upon as a crook by his customers and

friends. I agree with Mr. Mbuya's contention that by then the Daily News was the

only

1984 TLR p362

MTENGA J

substantial media in the country with a wide circulation and among the people who

read it were the people A of Iraq Embassy in Dar es Salaam when the plaintiff with

knowledge of the Ministry 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 B exhibit p.16 was recklessly prepared on incorrect

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

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 libellous imputation was conveyed to the general mass of

readers of the Daily E News,

(c) Regard should be taken of 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 the plaintiff's business has G dwindled as

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 H contact with Iraq

Government had come to an abrupt end due to the publication of this libelous article

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

letter Exhibit p.17. I also take into account that the Daily News had a wide circulation

for it is read not only in the whole I country but also in neighbouring countries.

More and above, the second defendant's conduct after

1984 TLR p363

MTENGA J

A publication of the libel aggravated the matter. The second defendant did not

respond to letter sent to him by the plaintiff's advocates nor did he offer an apology. I

agree that in these circumstances the plaintiff is entitled to substantial damages

bearing in mind that the plaintiff's means of livelihood has seriously been threatened.

B 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 much he used to earn before

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

much he is now earning in his various businesses after the publication of this article

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 Exhibit. p.16 and this

being the position, the plaintiff might D 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.

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

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

F Order accordingly.

1983

Editorial Board

Chairman

The Hon. Mr. Justice F.L. NYALALI,

Chief Justice, Court of Appeal of Tanzania

Chief Editor

Dr. L.P. SHAIDI, Faculty of Law,

University of Dar es Salaam

Editors

The Hon. Mr. Justice A. RAMADHANI,

Chief Justice, Zanzibar

The Hon. Mr. Justice K.S.K. LUGAKINGIRA

High Court of Tanzania

Mr. M.A. LAKHA Advocate, High Court of Tanzania

Mr. E.L.K. MWIPOPO, Director of Public Prosecutions,

Attorney General's Chambers

Mr. R.J. RWEYEMAMU, Corporation Counsel,

Tanzania Legal Corporation

Mr. A.M. MISKIRY, State Attorney, Zanzibar

Assistant Chief Editor

Mr. N.N. NDITI, Lecturer, Faculty of Law

University of Dar es Salaam

SCOPE OF THE SERIES

These Reports cover cases decided in the Court of Appeal of Tanzania and the High

Courts of Tanzania and Zanzibar

CITATION

These Reports are cited thus [1983] T.L.R.

Judges of the Court of Appeal in 1983

1. The Hon. Mr. Justice F.L. Nyalali Chief Justice

2. The Hon. Mr. Justice A. Mustafa Justice of Appeal

3. The Hon. Mr. Justice L.M. Makame Justice of Appeal

4. The Hon. Mr. Justice R.H. Kisanga Justice of Appeal

5. The Hon. Mr. Justice Y.M. Mwakasendo Justice of Appeal

Judges of the High Court of Tanzania in 1983

1. The Hon. Mr. Justice N.S. Mnzavas Principal Judge (J. K.)

2. The Hon. Mr. Justice B.A Samatta Puisne Judge

3. The Hon. Mr. Justice L. Mfalila Puisne Judge

4. The Hon. Mr. Justice D.P. Mapigano Puisne Judge

5. The Hon. Mr. Justice K.S.K. Lugakingira Puisne Judge

6. The Hon. Mr. Justice E.W. Katiti Puisne Judge

7. The Hon. Mr. Justice B.D Chipeta Puisne Judge

8. The Hon. Mr. Justice N.M. Mushi Puisne Judge

9. The Hon. Mr. Justice L.J. Maina Puisne Judge

10. The Hon. Mr. Justice J.A. Mroso Puisne Judge

11. The Hon. Mr. Justice L.J. Chua Puisne Judge

12. The Hon. Mr. Justice R.J.A. Mwaikasu Puisne Judge

13. The Hon. Mr. Justice F.A. Munyera Puisne Judge

14. The Hon. Mr. Justice R.J. Ruhumbika Puisne Judge

15. The Hon. Mr. Justice M. Mwakibete Puisne Judge

16. The Hon. Mr. Justice R.B. Maganga Puisne Judge

17. The Hon. Mr. Justice H.E.D. Sizya Puisne Judge

18. The Hon. Mr. Justice Y.S. Rubama Puisne Judge

19. The Hon. Mr. Justice C.G. Mtenga Puisne Judge

20. The Hon. Mr. Justice H.J. Mkatte Puisne Judge

21. The Hon. Mr. Justice A.G. Korosso Puisne Judge

22. The Hon. Mr. Justice A. Bahati Puisne Judge

Judges of the High Court of Zanzibar in 1983

1. The Hon. Mr. Justice A. Ramadhani Chief Justice

Cases Reported

1983 TLR p1

A