IN THE UNITED REPUBLIC OF TANZANIA

THE HIGH COURT OF TANZANIA

(DAR ES SALAAM DISTRICT REGISTRY)
AT PAR ES SALAAM
CIVIL CASE No. 220 OF 2018
BENARD KAMILIUS MEMBE...................................PLAINTIFF

Versus
CYPRIAN MAJURA MUSIBA.............................. 1st DEFENDANT
THE EDITOR,
TANZANITE NEWS PAPER................................2ndDEFENDANT
CZ INFORMATION & MEDIA CONSULTANT LTD,
PRINTERS OF TANZANITE NEWS PAPER............ 3rdDEFENDANT

JUDGMENT
31st August, 2020 -28th October, 2021

J. A. DE - MELLO 3;
This is a suit for defamation, whereby the Plaintiff prays for Judgment,

Decree and, Orders against the Defendants, as follows;

I. Special Damages in the sum of Eight Billion, one hundred

million (TShs. 8,100,000,000/=)

II. General Damages for libel in the sum of Two Billion (TShs.

2,000,000,000/=)

III. An injunction restraining the Defendants and eachjof them,

whether by themselves, their servants, or acteqt^ or

 otherwise, from further publishing or causing to be

published the said similar defamatory of the Plaintiff.

IV. Interest on the principal sum at the commercial rate of

12% from the date of the cause of action to the date of

judgment.

V. Interest on Decretal sum from the date of the judgment till

payment in full.

VI. Any other relief which this court may deem fit to grant

VII. Cost for the suit

Attracting the public, it is worth narrating albeit briefly, who these two

parties are. On one hand, there is this Bernard Kamillius Membe,

former ruling party member, climbing and, excelling through the ladders

within the Executive arm of the government, as a Minister for Foreign

Affairs and, International relations and, the ruling party, Chama Cha

Mapinduzi. He even joined the list of fourty one (41) aspirants for

Presidential elections in the year 2015. He however could not sail

through, as the late John Joseph Magufuli scooped the highest out of

them all. It was during the fifth 5th phase government that of, John

Pombe Magufuli, when the 1st Defendant and, his media, the 2nd and

3rd Defendants, emerged. He, the 1st Defendant, claimed to be a self

styled, "Independent Activists", in Swahili, "M^ii^Jiarakati Huru",

which he all the time and, boldly bragged. He is therefore, a natural

person, adult, Christian, working for gain, at his own, Tanzanite

Newspaper, having the second Defendant, as the Editor and, in charge of

production of contents of Newspapers, whereas; the third is a company

registered in Tanzania under the Companies Act No. 12 of 2002, and,

the Printer. At the time the matter commenced, both parties duly complied

with orders for appearance but, things took a different course, observing

absence of both on the 27thof December, 2019 and, 1stof September

2020. With such vacuum the Court, issued last order before the suit is

dismissed for 'want of prosecution'. The next date was scheduled for

4thof August, 2021, in which the Plaintiff himself emerged and, satisfied

that, the Defendant is defiant, and, following prayers, the Court

proceeded Exparte. Three times consecutively and, with none appearance

whatsoever of the Defendants, the Plaintiff proved his case summoning

three witnesses including himself. PW1, Bernard Kamiiius Membe,

sixty seven (67) years of age, opted to be sworned, being a Christian,

narrating his professional and, career background. Other than serving as

Minister for Foreign Relations for nine years (9), he also served as the,

Deputy Minister for Home Affairs in 2006, Deputy Minister for Energy,

following his assumption as a member of Parliament in 2000 to 2015, Hon.

Ambassador, in Canada 1992-2000, Security and, Int^jence Services,

from 1978 to 1990. He brought the Court to his other passion, as political

Analyst of SADC Countries, which by large attracted a reputable and,

respected personality, locally and, regionally. In the year 2008 up to 2009,

still serving as Minister of Foreign affairs, he was appointed Chairperson

of East Africa Community, usurping another chairing, at the Counsel

Minister of African Union. He bragged with confidence to serve as the

Chairperson of Commonwealth Ministerial Action Group, CMAG, in

charge of disputes in Sri Lanka, and, Pakistan in years, 2010-2012, but

sadly, his appointment to oversee the 2015 Zimbabwe elections was

met with setbacks following false and malicious insults and, demeaning

defamatory words from the 1st Defendant, tainting his repute and,

respect, that he built over years. He explained the rationale behind

establishing the Centre of Peace and Conflict Resolution, whose

mandate was basically, to address disputes in Southern African

Development Cooperation (SADC) region namely; Congo DRC, Malawi,

and, Zimbabwe. With particular interest was Zimbabwe's economic

sanctions. To support this position, he tendered certificate of

incorporation of the Centre, which was admitted and, marked as exhibit

PI. While in Zimbabwe in that, mission in the year 2018, he came to learn

of defamatory insults levied against him, through the Tanzanite Media

\

one owned by Cyprian Majura Musiba the JLsV^^fendant. The

4
Newspaper, dated the 25th of October, 2018, displayed on its front

page, published, "Membe aanza Mbio za Uraisi" claiming to be in

Zimbabwe to solicit funds for elections. The newspaper was admitted and,

marked exhibit P2, as he termed this to be pure lies and highly

fabricative. Four days later on the 29th of October 2018, while still in

Zimbabwe, again another defamatory publication was published in that,

same newspaper reading; "Vigogo 14 hatari kwa nchi watajwa"

which, on its front page, had his name and, photograph. Tendering the

same, it was admitted as exhibit P3. As if that was not enough, again

and, on the same newspaper, on the 6th of November, 2018, another

defamatory publication was printed going by the headline; "Kikao

Kizito" with sub-heading "Membe, Zitto, Rostam wakutana faragha

saa kadhaa" with a photograph reflecting the 'duo' attending the funeral

service of Rostam's father. The newspaper was marked and, admitted as

exhibit P4. Heartbroken and, highly devastated, was yet another

publication stating; "Kauli ya Dkt. Bashiru, Membe apagawa",

whereby on page 3, detailing the lies. With all these allegations, the ruling

Party which he served, summoned him to appear before Secretary General

to defend myself, which logically was a mockery, as it was Musiba who

supposed to appear and, not him. Similarly, this newspaper was tendered

and, admitted as exhibit P5. Again and, amidstSfte summoning, the

5
trend continued on the 3rd of December, 2018, it was published that;

"Wananchi: Membe hana mvuto wa kisiasa" with sub-heading,

"wasema mikakati yake ya uraisi kazi bure", totally disregarding the

truth that, he vacated the constituency at his own free will, having served

it diligently and, respectfully, for almost fifteen years (15). The

newspaper was admitted and, marked as exhibit P6. It was his firm

belief that, for professionalism, whatever the allegations, journalism

demands balancing of the stories prior to release of stories, which was

not done. The year 2018, was not exhaustive, as again on 18th of May,

2019, there was another publication on front page, published; "Membe

achanganyikiwa" and, again in absence of balancing, it was released,

making it marked as exhibit P7. On the 19th of June, 2019, another

publication was released by the going; "TAKUKURU yawasaka

washirika wa Membe" whose page 4, provided the details, with the

front page portraying a large photograph of him, in the alleged conversion

of funds from the Libya government. The newspaper was admitted as

exhibit P8. On the 19th of May 2019 the defendants had another

publication reading; "Membe kajikata mkia mwenyewe, Maisha ya

kubebwa yanamtesa, tabia za ubinafsi, mchumia tumbo

vinamsukuma kuropoka ovyo" and, tendered, the Court marked it as

exhibit P9. Worth noting here was the fact that, at ttys^ncture, already

6
he was in this Court for defamation suit, notwithstanding. While all this

was happening, the 1st Defendant, in his online media popularly known as

Tanzanite Social Media, continued to attack and, defame the Plaintiff

fearlessly and, confidently. He at one time, through online media

announced the Plaintiff to be a very dangerous citizen justifying for death

penalty, he stated. At no time, he found himself and, his family

vulnerable, afraid of being attacked by the public but, witnessed unknown

vehicle surrounding his home, which forced him to hire guards for nine

(9) months. He even observed being tailed by unknown people, which

lead him to report the matter to Director of Criminal Investigation but, to

no avail. At one time, the "unknown persons" arrived at his constituency

in Lindi, hiding their identities, in a tinted vehicle which he promptly

reported to police who arrested them but, with no details thereafter was

disclosed. Considering his diplomatic background, and, in course of these

allegations, he found himself declined his diplomatic status, upon which

his Diplomatic Passport was re-called. As a follow up on the summons by

his party, his letter to the Secretary General Bashiru Ali, never was

responded to. A copy of a letter received by his Party dated 7th of

December 2018 was admitted and, marked as exhibit P10. However,

it was until the 20th -22ndDecember, 2020 when he was summoned to

appear before the party's Ethics Committee, indgdiiqk>the former

Secretary General Abdulrahman Kinana and, Yusufu Makamba,

but, himself appearing on June, 2020, for his defence, the verdict which

saw him un-ceremoniously evicted from the party, though he still

maintains his membership to date. He is of firm belief to have been badly

tarnished, with all reputation, credibility, career highly injured, left him

disassociated and, lonely, being associated with terrorists. It even and,

badly affected his Centre that, had acquired credibility for long, following

the travel ban imposed against the twelve delegates aligned for

monitoring elections in Zimbabwe. He then tendered exhibit P ll, as

proof to support his contention which the Court admitted accordingly. In

line with this, the Centre's project endeavored for removal of sanctions in

Zimbabwe costing at one million and, six thousands dollars (1.6 Million

USD equivalent to TShs. Four Billion (TShs. 4,000,000,000/=)

Tanzanian Shillings similarly, was suspended awaiting clearance from

the government of Tanzania, as a result of allegations from the

defendants. He brought to Court, the loss incurred following the said

suspension drawn from a rented accommodation at a prime location,

specifically for Centre's operations and, administration, one which was

located at 5th Mirambo street, which was to be funded by Kuwait

donors but, cancelled, rendering the Bill of Quantities and, Architectural

Designs, irrelevant, which the Court admitted and, fn^ ed as exhibit

P12. When this was ongoing, the Plaintiff was overwhelmed, with many

calls from colleagues, dignitaries, members of diplomatic cops, all wanting

to know what this was all about. He however, shared a letter from the

then UN Secretary General one Ban Ki Moon appreciating his services

which he took with pride, marked as exhibit P13. The insults took his

former constituency members with awe and, shock, failing to comprehend

the whole affair to their long time respectable leader. It is with this back

background that, he believes to have been seriously injured and,

recklessly illegally attacked, as he prayed for restraining the Defendants

to continue with their from defamatory statements against him, Special

Damages to the tune of TShs. 8,100,000,000/=, General Damages

TShs. 2,000,000,000/=, interest on the principal sum at commercial

bank rates, interest on decretal sum, and, any other reliefs, the Court

might find deem and, fit to grant.

In course of hearing, the Plaintiff lined one Patrick Tsere, hereinafter

referred to as PW2, another seasoned diplomat, whose last duty station

was in Malawi, a seventy one (71) years retiree and, a Christian. In his

sworn evidence, he testified to have known the Plaintiff for long, as his

Minister but, also as a friend too, a staunch Catholic, ex-seminarian and,

God fearing personality. He claimed to have learnt of the accusations from

unknown person popularly called Musiba, the 1st De(endant here, both
from online and, print media, as he referred to exhibits P2, P3, P4. It

is that relationship but, purely professional, that he was one of the

Directors of Regional Centre for Peace exhibit PI in which the Plaintiff is

it Chief Executive Officer. He corroborated failure to proceed with the

Centre's activities, as a result of the insults and, defamatory allegations,

levied against the Plaintiff. This, he concluded, shattered the Plaintiff

dreams. Then came PW3, Amiri Mkombelo, aged sixty (63) years, a

farmer Moslem, from the same Plaintiff's constituency, by affirming he

testified to reside at Rondo Chiponda at Lindi Region and, once the

Village Chair, where the two grew up together, and, acted as his right-

hand man from the village, where as a result of his good deeds the

villagers ordained the Plaintiff as their traditional leader. He too claimed

to have read from the newspapers and, heard online clips the demeaning

and, insulting defamatory statements towards the Plaintiff, like the one

"Membe ni hatari, kachanganyikiwa", referring to exhibit P2 and,

P3. This disturbed and, shocked the villagers who had high regard of the

Plaintiff's repute and, position in the society, let alone the country as a

whole. There was a time he recalls, when the Plaintiff was too mad but,

personally sent by the villagers to cool him down, as he considered legal

action. This said, the Plaintiff, after responding tpj^(t^ several issues,

closed his case.

10
While this is an Exparte Judgment, it is worth noting that, the matter had

and, in the presence of the Defendants, passed through two rulings, one

for 'Extending Time to file their Written Statement of Defence

and, the other on three preliminary points of objection as follows;

1. The Court had no jurisdiction to adjudicate the matter

2. The Plaintiff has no cause against the Defendants

3. The Plaint is fatally defective for violating Order VI Rule 3

of the Civil Procedure Code Act Cap. 33

While prayers for 'extending time to file Written Statement of Defence'

was granted amidst, opposition by the Plaintiff, the objections raised did

not sail through, as the matter was slated for hearing of the substantive

matter on its merits, on 2nd July 2019 and, 24th December, 2019

respectively. In presence of Counsels for the Plaintiff alone, on 24thJune,

2021, three issues were farmed for determination as stipulated

hereunder;

1. Whether the Defendants published defamatory statements

against the plaintiff?

2. If above is answered in the affirmative, what damages were

occasioned and suffered by the plaintiff?

3. To what relief are the parties entitled to^

ii
It is however, a cardinal principle of law that, Exparte hearing does not

guarantee an automatic win by the Plaintiff, as the burden to prove his

case and, which attracts a balance of probabilities that governs civil cases,

perpetual prevails. See the cases of Anthony M. Masanga vs. Penina

(Mama Ngesi) & Others, Civil Appeal No. 118 of 2014

(Unreported). A synopsis by the learned Author Sarkar in SARKAR ON

EVIDENCE, 14th E 1993 at page 1339, persuasively commenting on

Indian provision of the Law similar to ours, on the burden of proof, partly

has the following;

"...that the initial onus is always on the Plaintiff and if he

discharges that onus and makes out a case which entitled him to

relief, the onus shifts on to the Defendant to prove those

circumstances, if any which would disentitle the Plaintiff to the

same (Basirudini vs. Saaebulla, 32 CW No. 160)."

Having gathered the evidence that the Plaintiff and, his witnesses

testified, I find it prudent to define what, defamation refers to. The term

had its legal origin from time in memorial as was observed in the case of

Sim vs. Stretch (1936), by Lord Atkin as;

"A statement which tends to lower the claimant in the estimation

of right thinking members of society generally, and in particular

to cause him to be regarded with feelings of^^red, contempt,

12
ridicule, fear and dis-esteem. (See: Vivienne Harpwood,

Principles of Tort law, Fourth Edition, Cavendish Publishing

limited, London pg. 372) Simple vulgar abuse is not defamatory,

other statements which are intended only as humour or satire

could be actionable. Indeed, political opinion frequently finds

expression in satire which has the effect of ridiculing prominent

people. However, satirists can often escape liability for

defamation by using the defence of 'fair comment on a matter of

public interest'. Statements which reflect on a person's moral

character or professional competence clearly will be defamatory.

What is defamatory in one age will not necessarily be so in

another".

Sharing the same common law practice, our jurisdiction has, on several

and, many occasions adopted the same, as was held in the case of

Hamisi vs. Akilimali (1971) HCD 111;

"According to that case, defamation is communicating to the

mind of another, matters which are untrue and likely in the

natural cause of things substantially to disparage the reputation

of the third person".

In Winfield and, Jolowicz on Tort defines the term as follows:

"Defamation is the publication of a state|T>i*^Lwhich tends to

13
lower a person in the estimation of a right-thinking member of

society generally, of which tends to make them shun or avoid

that person"

From the above our local jurisdiction has similarly and so guided defined

defamation as was laid down in the case of Rugarabamu Archard

Mwombeki vs. Charles Kizigha & Three Others [1985] TLR 59 at

page 68 that;

"...is a false and malicious statement about a man to his

discredit."

There are simply two basic forms rather, types of Defamation, namely;

'Libel and, Slander'. Libel, is committed by way of printing, writing,

painting, effigy or publishing any defamatory matter concerning

another person with intent to defame that, other person. In short, in this

type of defamation, the prints remain permanent and, visible perpetually.

Slander, is from uttering spoken words. It is audible and, temporary.

(Sections 38 and, 40 (1) of Newspapers Act 1976 (No. 3 of 1976).

To be able to arrive to the two forms, four tests must be formulated to

prove defamation; First, such statement must be defamatory; second,

the defamatory statement must refer to the Plaintiff. Thirdly, defamatory

statement must be published to a third party and, lastly, the victim must

be damaged, injured and, suffer by the statement's^ using serious harm

14
to the claimant. In the case at hand, and, in answering the first framed

issue as to whether the defendants published defamatory statements, the

first test shall be applied. The Plaintiff produced a total of thirteen (13)

exhibits most of which were newspapers from the second and third

defendants as listed hereunder; Exhibit P2 was Tanzanite newspaper of

25th October, 2018, printout No. 251 with bolded letters published

"Mikakati ya Membe uraisi 2020 yafichuka" and, with headines;

"Adaiwa kwenda DRC, Zimbabwe kusuka Mikakati, Afanya

Mazungumzo mazito na wafanya biashara, Azungumza na Gen.

Mstaafu wa Jeshi la Zimbabwe"

Reading in between lines, particularly on the second column at page 3,

it reads;

"...Duru za kiuchunguzi kutoka nchini zinasema kuwa, Membe

amekuwa akitamba kwenye mataifa anayokwenda kuwa yeye ni

gwiji wa wizi wa kura ili kuwashawishi wakongo wampe

nafasi..."

From the word "gwiji wa wizi wa kura" meaning expert in rigging

election through the ballot box, definitely tarnishes someone repute and,

paints an illegal but, dirty picture.

Exhibit P3, Tanzanite newspaper printout No. 254 of 29th October,

2018, published in bold letters capturing the Plaj[nti^photograph in front

15
page that, "Vigogo 14 hatari kwa nchi watajwa". Attracting interest

at page 3 it was written;

"Vigogo 14 wanaodaiwa kuwa ni hatari kwa usalama, ustawi,

uchumi na maendeleo ya nchi na serikali ya awamu ya tano..."

"...Mkurugenzi wa kampuni ya CZ Information and Media

Consultant Limited aliwataja vigogo hao...Kampuni hiyo inamiliki

magazeti ya Tanzanite, Fahari Yetu, Tanzania Perspective na

Tanzanite Online TV ambapo kwa mujibu wa Musiba,

amesema..."

Amongst those mentioned is, he Plaintiff himself, AbdulRahman

Kinana, Zitto Kabwe, Hawa Ghasia, Subhash Patel, Lazaro

Nyalandu, Yusuph Makamba, Rostam Aziz, Nape Mnauye

and, lastly Valentino Mlowola, allegedly a threat for economic

growth, political instability of the country development. It is the 1st

Defendant himself and, without mincing words, who made the said

print statement being the Director of CZ Information and

Media Consultant Limited.

Exhibit P7 was published stating • th^t^ "Membe

achanganyikiwa" and, on page 4 it was written*^

16
"...Membe huyu anaongea upuuzi kabisa juu ya uchumi

wetu, yeye na washirika wake ndio walituharibia nchi sasa

ujinga wao wasitake kuuleta tena"

"...Musiba aliongeza kuwa Membe kwa kutumia nafasi

yake alikuwa analeta wawekezaji wa makampuni feki

ambao sehemu kubwa walijihusisha na utakatishaji wa

fedha.."

"...yeye Membe ajiulize kwanini wakati akiwa Waziri wa

mambo ya Nje na Ushirikiano wa Kimataifa biashara ya

madawa ya kulevya ilishamiri sana nchini, sasa tujiulize

anaposema kakatwa mkia je kuthibitiwa kwa biashara ya

madawa ya kulevya kumemuathiri ndio ana sema hivyo..."

Gathering the story that, accompanied the headline, were serious

allegations of stupidity, foolishness, money laundering,, dealing in

narcotic drugs and,embezzlement, in confidence and plain white. In

as far as the Plaintiff's testimony, neither a chance to balance the

stories nor justification whatsoever, was afforded to him. Exhibit

P6, printout No. 285 of 3rd December, 2018 on the front page

with a picture wrote, "Wananchi: Benard Membe hana mvuto

wa "Kisiasa" incorporating a sub-heading^£yvasema mikakati

17
yake ya Uraisi 2020 kazi bure". Page 3, third column it was

written;

"...aliwahi kuipigia chapuo kampuni ya MEIS Industries

kulipwa malipio ya dola million 34 za marekani (Sh Bilioni

54.4) kinyemera..."

Exhibit P9 was the newspaper Tanzanite, of 19th May, 2019,

print out No. 450 again and, bearing the Plaintiff's photo, the front

page published that; "Membe kajikata mkia mwenyewe,

Maisha ya kubebwa yanamtesa, tabia za ubinafsi, mchumia

tumbo vinamsukuma kuropoka ovyo".

Simply but, seriously, the newspapers portrayed the Plaintiff, as a selfish,

bootlicker, and, spiteful speaker, rendering him invalid hence irrelevant.

It is not a secret that, the Plaintiff built his political career within the ruling

party and, government, for a considerable period of time, as proved by

himself and, corroborated by PW2 and, PW3. It is even true that, at no

point during his tenure, was his position put to question. The Plaintiff left

his career to contest for a Presidential race, believing to have all what it

takes to be one. He even was among the top remaining five in that race.

Since then and, soon thereafter, it is during the fifth 5th phase

government, when these attacks commenced, injuring his personal and,

moral character, professional and, political compete'rtce, to the extent of

18
raising alarm and, concern amongst his cycle, friends and, general public

locally, regionally and, internationally. There is no doubt his solid

reputation was lowered in the eyes of any right-thinking member of

society. This then undoubtedly and, firmly answers the first limb of the

issues framed. The statements defamatory in nature were intentional,

false and, without any justification. The magnitude of the statements were

voluminous, violent, crude, as they impute criminal offence for treason.

Protection of one's reputation as a matter of importance not only to

himself and family but for public good not to be debased falsely. Our

Constitution of the United Republic of Tanzania in its Article 12(1)

stipulates; "Every person is entitled to recognition and respect for

his dignity".

In the case of Professor Ibrahim Lipumba vs. Zuberi Juma Mzee

[2004] TLR 381, the Court observed, as it associated itself with Lord

Nicholls in the case of Reynold vs. Times Newspaper [200] 2 LRC

750 at page 760;

"Reputation is an integral part of dignity of the individual. It also

forms basis of many decisions in a democrative society which are

fundamental to its wellbeing; ...Once bermiched by an

unfounded allegation in national newspaper^a/imputation can be

damaged..."
19
Second test and, in addressing as to whether or not the said defamatory

statements referred to the Plaintiff, it is vivid and, quite glaring that, it is

this same Plaintiff Bernard Kamillius Membe and, none other, that all

the readings in the exhibits admitted, print media, to be precise, directly

mentioned his name that of "Membe" accompanied with his photograph

on the front pages. Thirdly, is to whether they were published for public

consumption and, in such defamatory nature. Again and on a high gear,

the whole essence of publishing and in print form, was nothing less than

that cause, to tarnish the Plaintiff. Not only did the two witnesses read

but, the rest of the public members locally and, elsewhere did. You will

agree with me that, the newspaper gained momentum and, prominence

during the 5th phase government, attracting wider interest to many of its

readers. PW1 stated to have read the news for the first time while in

Zimbabwe. He and, the rest of the witnesses, let alone his family, the

general public, all continued to be bombarded with such statements and

consecutively during that period. From the foregoing the Plaintiff and,

unopposed owing to defiance by the Defendants, all the three ingredients

for proof for action for defamation namely; that the statements were false

and, defamatory, pointing rather, referring to him the Plaintiff and

,published by none other than the Defendants themselves had been

proved from all the defendants newspaper. The tpe^i^Jn defamation

20
cases is that its falsity is presumed in favour of the Plaintiff as stated by

B.M Gandhi in his Law of Tort book 1987 Easter Book Company Law

Publishers, Delhi India that;

"...the falcity of a defamatory statement is presumed by the

Court in favour of the Plaintiff. It is for the opponent to prove the

truth of the statement. The Plaintiff therefore need not prove the

falsity of the statement...It is customary to allege that the

statement is false but since the burden to prove that it is true i.e.

justification or the technical name for truth, lies on the

defendant, it is not the worry of the Plaintiff to prove its falsity..

however...it is necessary for the Plaintiff to allege in his plaint

that the imputation is false and malicious".

As gathered, the Plaintiff alleged so, testified and, lined up witnesses but

absence of the Defendant to prove, had been wanting for reasons of

absence. However, it is the duty of the Plaintiff to prove malice against

him as was settled in the case of Astus Njale Masule & Samson

Mipawa Molla vs. Dogani Lunala [2002] TLR at page 201. Much as

journalists are obliged to inform the public on various matters of public

interest through publications, they are so privileged, unless actuated by

malice. On the other hand, the onus for proof of malice lies with the

Plaintiff and, none other. From the evidence gatfr^d, it is obvious the
21
Plaintiff wondered and disturbed of the hatred and dislike that the

Defendant had against him. It is his further belief that, the series of

publications were malicious, reckless, published without verification,

purposely intended to destroy the Plaintiff and, injure his repute.

What else can the Plaintiff resort to, if not for reliefs sought in his plaint

in paragraph 20? This will answer the second issue as to damages, having

been ridiculed, shunned and, tarnished in the society, where he

commanded high respect and, confidence. The extent on which the

suffering has been experienced touches on his emotions, career,

ambitions and, businesses, just to mention a few. The Centre for Peace

and, Reconciliation, he had put in place had stalled since then, translating

into financial and social losses as proved by exhibits above.

Notwithstanding, registering this to relevant authorities, he felt his safety

and, comfort in danger, which lead him to secure guards for personal

security. He mentioned to have been summoned and, interrogated by his

party and, ended up being dismissed from membership. This naturally

caused mental and, emotional torture for the allegiance and, loyalty he

had all along. He deserves compensation

The last issue for determination is what are the reliefs, he is entitled to?

It is common knowledge that, publication of any false and, defamatory

statements, in permanent form of newspapers^i^jibel' and, actionable

22
per se i.e without proof of any damage. The law presumes that, from

ordinary course of events or mere invasion of ones rights to his or her

right to his reputation, damage will naturally flow. This is different from

slander which attracts proof of actual damage. The Plaintiff prayed for

Special damages in the sum of Tanzanian shillings Eight Billion, one

hundred million (TShs. 8,100,000,000/=), General Damages for libel,

in the sum of Tanzanian shillings Two Billion (TShs. 2,000,000,000/=).

He even prayed for injunction, restraining the Defendants and each of

them, or agents, from further publishing the said defamatory statements,

and, Interest on the principal sum at the commercial rate of 12% from

the date of the cause of action to the date of judgment.

Paragraph 27 of the Plaint depicts the breakdown as for Special Damages;

i. Lowering the reputation of the Plaintiff TShs.

5,000,000,000/=

ii. Loss of business TShs. 1,000,000,000/=

iii. Psychological torture TShs. 1,000,000,000/=

iv. Cost of legal services TShs. 100,000,000/=

making a total of TShs. 8,100,000,000/ = billion

Paragraph 28 shows General Damages to the tune of TShs.

2.000.000.000/= thus adding to the above of a total of TShs.

10.100.000.000/=. Not contested owing to.gbWlce of the Defendants,

23
and, drawing from the case of Peter Joseph Kilibika & Another vs.

Patrick Aloyce Mlingi, Civil Appeal No. 7 of 2009, Court of Appeal

of Tanzania at Tabora, defining damages as;

"That sum of money which will put the party who has been injure

or who has suffered in the same position as he would have been

if he has not sustained the wrong for which he is now getting

compensation or reparation. See the history from Lord Blackburn

in Livingstone vs. Rawyards Coal Co. (1850) 5App. Case. 25 at

page 39.

It will be improper, not to refer the case of Asquith, C, J. in Victoria

Laundry v Newman [1949] 2 K.B. 528 at page539 said damages are

intended to put the Plaintiff

"... in the same position, as far as money can do so, as if his

rights had been observed."

In P.M. Jonathan vs. Athuman Khalfan 1980 TLR175 at page 190

Lugakingira J; (as he then was) stated;

"The position as it therefore emerges to me is that

general damages are compensatory in character. They

are intended to take care of the plaintiffs loss of

reputation, as well as to ^ct as a solarium for mental

pain and suffering"

24
Commencing, with Special Damages to the tune of TShs.

8,100,000,000/= the law is very clear that, they must specifically

pleaded and, proved. (See Peter Joseph Kilibika & Another vs.

Patrick Aloyce Mlingi {supra), Martin Nashokingwa vs. Marcus

Mdemu and Others {supra) which made reference to Zuberi

Augustino vs. Anicet Mugabe [992] TLR 137, Maritim and

Another vs. Anjere [1990-1994] 1 EA 312 and, Stanbic Bank

Tanzania Limited vs. Abercrombie & Kent (T) Limited, Civil

Appeal No. 21 of 2001 (unreported)

The Plaintiff prayed for TShs. 5,000,000,000/= for loss of reputation,

which undoubtedly, is the case, considering his career and political

background, being former member of the Governing Council and, Central

Committee of CCM, former member of Parliament of Mtama

Constituency, former Deputy Minister of Finance and, former Minister for

Foreign Affairs. Undisputed too, is his Consultant Firm, the Centre for

Peace and Reconciliation which had not operated as a result of such

statements and, as proved. Looking at this its nature can not be

quantified. In Zuberi Augustino vs. Anicet Mugabe, (supra) the Court

stated and, I quote;

"It is trite law and we need not cite any authority, tha^pecial

damages must be specifically pleaded and proved".

25
In absence of proof of family disturbance to the tune of TShs.

1.000.000.000/=, hiring security for nine (9) months but no contracts,

psychological torture to the tune of TShs. 1,000,000,000/= again

without medical report from a qualified specialist, renders the claim

incompetent. For instructing and, engaging an Advocate, yes, he was in

Court but, it is until and when bill of cost is lodged and heard for proof

hence, the claim is pre mature. Exhibit P ll shows the budget of team

from Regional Center for Peace Conflict Management & Election to the

tune of United States Dollars 1.6 million dollars equivalent to TShs.

4.000.000.000/=, accompanied with a letter to Minister of Information

and Publicity and, Broadcasting Services of Government of Zimbabwe

dated 16th March, 2020 and 2nd May, 2018, being a proposal for the

services to be rendered but, again with no tangible commitment set.

Exhibit P12 the alleged Bills of Quantity for the Centre house/Office

from Ujenzi and, Paints 2000 Ltd. dated 29th May, 2017 js§ the tune of

TShs. 55,353,092/=, is wanting, not substantiate

26
The heading reads;

"Proposed Centre for Peace and Conflict Management Office Fit

Out on Part of Second Floor at 50 Mirambo Building", to support

my contention that it is a mere intimation.

In assessing and, arriving to award general damages, which is purely the

Court's discretion, with a view of compensating the injured Plaintiff for

loss of reputation but, more even a solarium for mental pain and,

suffering. The latitude upon which this Court has to base its award, a

number of factors to arrive at a figure just to the Plaintiff must be

considered, as highlighted in the case of Bary John Jones vs. Eve

Pollard, Mirror Group Newspaper Ltd and Steve Bailey, 1996

EWCAS Civil, 1186 as follows;

1. The objective features of the libel itself, such as its gravity,

prominence, circulation o the medium in which it was

published and any repletion.

2. The subjective effect on the Plaintiff's feelings (usually

categorized as aggravating features) not only from the

publication itself, but also from defendant's conduct

thereafter both up to and including trial itself.

3. Matters tending to such as the

publication of an apology.
27
 4. Matters tending to reduce damages e.g. evidence of the

Plaintiff's bad reputation, or evidence given on trial

5. Special damages

6. Vindication of the Plaintiff's reputation past and future

I have taken into account the nature of the publications in print and,

permanent form, but, on a higher note is the Plaintiff's status being a

celebrated a Politician, the reckless and, deliberate manner in which the

Defendants conducted themselves, in publishing such libelous news.

Notwithstanding all this, the Defendant imputed on the Plaintiff a

dangerous personality to the stability of the country, terming him as one

of the "vigogo hatari kwa usalama wa nchi". He even alleged him

to be untrustworthy for converting public funds for his personal ambitions

and, against the government. You will agree with me that, in assessing

damages in libel suit is not easy task, demanding each case to be

considered on its own facts. Bernard Kamillius Membe was not only

a Politician but, also an Executive dignitary, holding several Ministerial

positions, within the government of the United Republic of Tanzania.

Such allegations are undoubtedly very serious, dangerous, as repeatedly

stated but, bodly printed, imputing even criminal offence for treason. The

Defendant neither appeared to defend his c^s^pgr issued an apology

 when issued with a demand notice, for reasons well known to himself.

His conduct and behavior leaves a lot to be desired.

Based on the discretion bestowed in me, judiciously exercised, I award

TShs. 1,000,000,000/= billion as general damages.

In upshot, I hereby find the Defendants liable for defamation and, I

hereby grant Plaintiff the following reliefs: -

v. Exemplary or punitive damages in the sum of TShs.

5.000.000.000/=

vi. General Damages for libel in the sum of TShs.

1.000.000.000/=
vii. An injunction restraining the defendants and each of them,

whether by themselves, their servants, or agents or

otherwise, from further publishing or causing to be

published the said similar defamatory of the plaintiff.

viii. Interest on the principal sum at the commercial rate of 12%

from the date of the cause of action to the date of judgment.

ix. Cost for the suit.

lA ^ i& L O
)

I JUDGE

28th October, 2021

29