Sahawa Masaga vs Joseph Kija (PC Civil Appeal No. 119 of 1971) [1973] TZHC 18 (14 April 1973)

I PT THE HI(Ui COUItT OF TAUZAUIA AT N.AHZA, (o) civ APAJ 1 T 0 119 0 1971 (Froa tae decision of t'c JDitrict Court of Shinyonga t Sninyga iiCivi1 'Appehi No.. 12 of '1971a Before'N.'H. Btdeberi, 'District gitrato & Shinymga Urb"n Frinry Court Civil Cse uo. 172 of 1970) SAHAIA iPSA...........,. . .. .. • . 4 . .•... • .. i... APPELLANT Versus TDENT 1JGSEPHKIJA. • . • . •, • , , . • . . . iB1T EL.-IWY,J. This ic second apoesi by Sawaka I asaga who was the successful party in the Urban Primary Cqurt. of Shinyanga w1.cre ho was awardd.darnages amountimg to ohs. 1000/- to the alleged de:Faj.iation This, award was set aside on appel an t is now before rcr or doteimination. 0. Both parties were unreproccated and present at the hori'i of this appeal.... . ' . . The appellont woo eiip1rod by ndo Cooperation Society. On the 2nd of P eb'rucry,. 1970 he was on duty together with other eip1pye. In the course of wor 1 ing, the rioaey was exhuted. Thc i ruer3, who hod sent their cotton there were told th.,t the money oas exh'.usted. A proposal was put to them d it was accepted. :Th farmers were told, if taey, agree.d they,could: sell their .cottoi to.the sad society, but they opuld return later to colirect the money when money .oçrs received by the society, The.responent, Jooeph...Iio adsent1iip son y Apolinary, to seU .cot,±onon hte..behalf,..aad, hç...did so.' Appliñary, as O - her, agreed to collect the money when the money was ovilable. Apolimary brtefed his father, .. the respondent y what. appened and the respondent agreed withvihrot hisson did. our'dnys later, the society received money'. It accounced to the farmers to appear and collect ,.thr money, Apolin. ry appeared and co11ec±ed'.t1oe.f1pney on behalf of his father upon present tion of the requsite donument. It w's in evideicc, in the books (f: accounts, that Apolinary received the money ...nd signed the entry in tJaOb'ooks. However, after Saba Saba celebrations the respondent apod 0t the'. office of the Society, where he met the appellant, and demanded payment of the money. He was told th; t his son hod collected he'honey, and ho was shown the documents, but he would not conceded. TTe went to the Police station when he filed a formal complainant relating his money, and the appellant was arrested and charged for theft of the respondentst money. However, the c]rarge.wao dismissed because'.the respondent did not appear to prosecute Ii cae Following this, the appellant felt th t he was defamed by the charge of thoft and that he ,sufferred finanaial loss following his suspncton from duty. In decidin.th .t the appellant was dcfcsiied, the trial court took. into account th'f-t' that the respondent insisted on ranking the allegation of theft against the appellant even when he was fully aware that his own son had taken his money, and, probably, these had misa- pprepri.ted it. The trial court, with the un ominous opinion of the gentimen assessors hold thu respondent guilty of the civil wrong of defamation and assessed damages at sho. 1000/- to be paid to the appellant. . . . ./2.

... . ./ 2 . In reversing the.Sjdgehent Of the trial court, the appellate court ruled th t the filing of the complainant was not done with malice to the appellant; that the respondent had reasonable couse to think that his money Was stolen; that there was nothing wrong for him to seek the aid of the police to investigte his allegtiono, cnd, that there w evdence tiat thO reoroac1et know tL1.t son h d collected the hOi,T Ieged Iheldtat the 'bivil Wrong was not prpved. I find that the appellat6 court misdirected itsclf in considering this case. There was no dispute that the respondent made allegation of theft against the he appellant. I disagree with the appellate court when it 'sai th t re was no 'eVidrde 'thi "tiie rcsp5ondent knew'that his son took the money. There was such evidence. The respondent himslf admitted that he saw the si L hature of his son in the records of the thct 'e 1'C1 5'dblT:ectd fie s'?dne 5 . 5 ThIs is conclunsivo proof that the money was taken by his son and not by the appellant. His act, therefore, of lodging theft complainant with the police was not only malicious but defamatory and unjustified.. The respondent had already seen th't the money had been tm:en by his son 9 who was his agent in these proceedings, there was no need for calling in the police.0 In his defence, he respondent alleged that he reported to the police becauso his son ewjadled his mQney, but if that was'.'the c -.oe, the 4 . :appelaat would not -h:.'ve beenaarres -ted and charg.ed. ,:'ihe p'lice would have rrested his son. It \VEe malicious and dolibeate of the 1CODO- idnt to, r.oprt agains:t the appellant .whnn there was clear roof that the raoney was not stolen, but was collected by his o n .L The respondont, with rsspect to the appellate court, had no reasonable cause to think that the appellant'otole his money. I fi:nd thht - -'the trial court vms riht in finding that the respondent had defamed e character of the appellant and caused prejudice against his work.. It is common knowJ,'&'e that it is a civil ;wI.ong to allege Criminal charge against 'anybody,. and this .eeer' to be: the case arioffgt bhoSkuma 0ustom.'.ry -I4çw. I. accodingly -alJow ti4s ppe,al,'aund rostore the triding of th e trial court. ...' . .... .. •. . The cppelllnt cs1cd f r 20Q0/— shillings as genral dauagts .h -- for defompat,ip of cha 't race. bu± the trai .aourt ruled th:at ohs. 1000/a, was faIr and 'eaaonale asaount in' tho.., o.ieümhtances. of this bhe.. : h : v,b no ..behte, tnf,omat.ions to jnrtify holding otherwise. .L. The trial-court, tihich. o p, rat e dr :in. .th e, -context -of.thp a-ren was better informe. of what woula.be:, consi'de'ed 'as. retOohb'lC: ámount I accor- dixig'rsb.toro.tia.':.shs. Ooo/- as the fair nkount ' -of damage's." The .'eep'ondent should also'pay cbsts hinounting to ste.. .'13 0/—. ..De1ered th Cor.t,,'atJ'.'Lwv'aiza, On the I4thday of April 1973 •--:• in the absence of p'arti,es.''" . ... . - • . ' . . . -. .' -. (z. a . JUD.GE'.' Order As I indic:tcd to the pertics, wher t 1ay were in court, they " ..should.bo notified of the results of, this appeal throue,District Court of Shinynn.a. (z. .N. IhIIY) JUDCE. l4/4/73. A