Cyprian Majura Musiba & Others vs Dorcas Richard Membe (Civil Appeal No. 41 of 2022) [2026] TZCA 387 (2 April 2026)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM fCORAM: WAMBALI. J.A., KAIRO, J.A. And NANGELA, J.A.l CIVIL APPEAL NO. 41 OF 2022 CYPRIAN MAJURA MUSIBA .................................................... I st APPELLANT THE EDITOR TANZANITE NEWSPAPER..................................2N D APPELLANT CZ INFORMATION & MEDIA CONSULTANT LTD PRINTERS OF TANZANITE NEWSPAPER................................3 rd APPELLANT VERSUS DORCAS RICHARD MEMBE (An Adminstratrix of the estate of the late Bernard Kamilius Membe) . .................. RESPONDENT (Appeal from the Judgment and Decree of the High Court of Tanzania, at Dar es Salaam) (De-Mello. 3 .) dated the 28th day of October, 2021 in Civil Case No. 220 of 2018 JUDGMEMT OFTHE COURT 3rd October, 2025 & 2n d April, 2026 KAIRO. J.A.: This appeal seeks to challenge the decision of the High Court of Tanzania at Dar es Salaam in Civil Case No. 220 of 2018 delivered on 28/10/2022. It all started when the late Bernard Kamilius Membe, a former Tanzanian Minister for Foreign Affairs and Member of Parliament decided to file a defamation suit jointly and severally against the i

appellants. The claim arose from what was alleged to be a series of defamatory publications in Tanzanite Newspaper between October 2018 and May 2019. The alleged publications included headlines created by the appellants accusing the respondent of election deceit, being a national security threat, money laundering from Libya, narcotic drug dealings, etc, among others. According to the respondent's pleadings in the record of appeal, the unsubstantiated claims were accompanied by the respondent's photograph and the same were also echoed on the 1s t appellant's online platforms. The publications allegedly tarnished the respondent’s reputation, stalled his Centre for Peace and Conflict Resolution resulting to a suspension of projects worth TZS.4 Billion and expulsion from CCM membership. It is averred that, the hitches did not end there, as the respondent had also his diplomatic passport revoked and slammed with a travel ban. That, for all those difficulties encountered, the respondent claimed to be paid by the appellants jointly and severally, a special damages of TZS. 8.1 billion for reputation loss, business loss, psychological torture and legal costs. The respondent further prayed to be paid general damages of TZS. 2 billion for libel, an injunction order restraining the appellants from further publications or causing to be published similar defamatory information against the respondent and interest.

Armed with the joint written statement of defence (WSD) contesting the claims of the respondent, the appellants raised three points of objections which were all overruled by the trial court. According to the record of appeal, the appellants seemed to have erratic court appearances. Basically, they failed to appear for the hearing of the suit when it was scheduled. The omission made the trial court, upon being moved by the respondent, to order for the striking out of the appellant's WSD. Further, the High Court ordered for ex-parte hearing. During ex-parte hearing, the respondent's side summoned 3 (three) witnesses, the respondent inclusive who testified as PW1. At the end, the trial court was satisfied that, the claim raised by the respondent was meritorious. Thus, the appellants were ordered to pay him punitive damage totaling TZS. 5 billion, general damages amounting to TZS. 1 billion, an injunction restraining each of the appellant, their servants or agents from further publishing or causing to be published the said similar defamatory information against the respondent, interest on the principal sum at the commercial rate of 12% from the date of the cause of action to the date of judgement and costs of the suit. The appellants were not amused by the said decision, hence decided to approach the Court so as to challenge it.

At the hearing of the appeal before the Court, the appellants were represented by Mr. Sylvanus Mayenga, learned counsel. On the adversary side, the respondent enjoyed the legal services of Messrs. Shundi Mrutu and Jonathan Mndeme, both learned counsel. Before we proceeded with the hearing of the appeal, Mr. Mrutu implored the Court to take cognizance of the information on the demise of the respondent on 12/5/2023 through a letter written to the Deputy Registrar on 8/3/2025 which is also part of the record of appeal, to which we did. The learned counsel went on to inform the Court that, following the respondent's demise, his wife, one Dorcas Richard Membe petitioned and was granted letters of administration to administer the estate of the deceased respondent. In the circumstances, Mr. Mrutu prayed that the name of the adminstratr ix, Dorcas Richard Membe be inserted and made a party to the appeal in the place of the departed respondent in terms of rule 105 (1) of the Tanzania Court of Appeal Rules, 2009 (the Rules). There being no objection from Mr. Mayenga and considering the circumstances, we granted the prayer. Accordingly, Dorcas Richard Membe a legal representative of the late Bernard Kamilius Membe was joined in the appeal in place of the deceased. 4

Mr. Mayenga on his part informed the Court that, the appellants had filed joint written submissions into which they raised two additional grounds of appeal. The learned advocate prayed to adopt the grounds of appeal and the written submissions without more. However, after engaging him on the additional grounds raised and upon reflection, Mr. Mayenga prayed to abandon them, the prayer which was accordingly granted. Considering the type of judgment and the subsequent orders to be given at the end, we wish to state from the outset that, we shall not revisit the detailed facts of the case adduced at the trial court despite being the first appellate court mandated to do so. Nevertheless, reference to some facts and evidence shall be made whenever we find it necessary to verify our deliberations. For the same reason, we do not also intend to reproduce all of the grounds of appeal having observed that, the first ground of appeal suffices to dispose of the appeal. The ground is couched as follows:

1. That, the learned trial Judge grossly erred in law by composing a judgment based on unsworn and unaffirmed testimonies o f PW1, PW2 and PW3, contrary to the legal requirements envisaged under the Oaths and Statutory Declaration Act [Cap 34 RE 2019] (the Act).

Submitting on it, Mr. Mayenga contended that the learned trial judge erred in law by composing judgment basing on unsworn and unaffirmed testimonies of PW1, PW2 and PW3 contrary to the requirements envisaged under the law. Expounding, the learned counsel argued that, the record of appeal reveals that, PW1 proceeded to testify without being sworn in. He went on to argue that, the same situation happened to PW2 and referred us to the relevant part of the record of appeal for verification. He contended that, though the record of appeal shows that the court clerk led PW1 and PW2 to take oath, but it was his argument that, no oath could have been administered without first recording the witness's name, occupation, age and religion. That apart, he contended; the record of appeal also reads "court clerk leads PW3.....", yet, there is no clarification on where or on what was PW3 led to, let alone the fact that he was led without giving his particulars, which is unconceivable, and shows that, the procedure was flawed and no oath was administered to the witnesses. Mr. Mayenga went on to submit that, sections 3 and 4 (a) and (b) of the Act has put a mandatory legal requirement for any court either by itself or an officer dully authorized by it on that behalf, to administer oath and affirmation and further that, every person to be examined upon oath, give evidence on oath under section 4 (a) (b) of the Act. Despite that, he

argued, no oath or affirmation was administered by the trial court to PW1, PW2 and PW3 before giving their testimonies, as a result, the proceedings were vitiated. To back up his arguments, he cited the decisions of the Court in Catholic University of Health and Allied Science (CUHAS) v. Epiphania Mkunde Athanase (Civil Appeal No. 25 of 2020) [2020] T7CA 1890 (11 December 2020 TANZLII) and Iringa International School v. Elizabeth Post, (Civil Appeal No. 155 of 2019) [2021] TZCA 496 (20 September 2021), both from TANZLII. He insisted that, though PW1 was recorded to be a Christian, no oath was administered to him and that, his Christian faith did not exonerate him from adhering to mandatory legal requirement of taking oath. As a conclusion, Mr. Mayenga prayed the Court to find the first ground meritorious and allow the appeal. In his response, Mr. Mrutu refuted the arguments and accused Mr. Mayenga for what he called "misplaced arguments". It was his contention that, all of the witnesses were led to take oath before giving their testimonies. For verification, he referred us to particular parts of the record of appeal in which, according to him, confirms the oath/affirmation taken by PW1, PW2 and PW3 respectively, before they testified. Mr. Mrutu downplayed the referred sections 3 and 4 (a) (b) of the Act together with the cited cases by Mr. Mayenga arguing the same to be irrelevant to the

case at hand because the alleged defects do not exist. He therefore, implored the Court to reject the arguments and find the first ground devoid of merit and dismiss it. In his brief rejoinder, Mr. Mayenga repeated what he submitted in chief insisting that, nowhere was it shown in the record of appeal that, the witnesses were introduced before being sworn/affirmed which he argued to mean that, the procedure to administer oath/affirmation was flawed. Having considered the rival submissions by the learned counsel and thorough scanning of the record of appeal before us, the issue for our determination is whether or not the witnesses were subjected to an oath or affirmation before the trial court recorded their testimonies. Before we proceed to address it, we wish to put it clear that, we have revisited the original file of this case and observed that, what was recorded therein is exactly what is reflected in the record of appeal placed before us. As ailuded to, the grievance in this ground revolves around non swearing/affirming the witnesses before recording their testimonies. For ease of reference and the deliberation to follow, we find it apposite to reproduce the necessary excerpts in the record of appeal: 8

Regarding the testimony of PWi, the record of appeal reveals the following: "Clerk leads PWI to oath. Names: Bernard KamiHus Membe Age: 65 years Occupation: Consultant Residence: Mkocheni/Lindi Religion: Christian" PWI then proceeded to give his evidence. On the other hand, for PW2 the record of appeal reads: "Court:... One o f my last case as I align myself for retirement. It is only that hearing has taken place that I find myselfconstrained to transfer. We hear the two witnesses. Court clerk leads PW2 to his oath Name: Patriclsere Age: 71 years'old Occupation: Retired Ambassador Residence: Kinyerezi Ilala Religion: Christian Shumbi leads two examinations in chief

PW2" Then PW2 started to testify Again for PW3, the following is apparent in the record of appeal: "Shumbi: I pray to summon my third witness Court cierk leads PW3 Name: Amri Mnkomboio Age: 63 years old Occupation: Farmer Residence: Chipanda Lindi Religion: Muslim Shumbi counsel leads PW3 to examination in chief" Then PW3 proceeded with his testimony. The reproduced part of the record of appeal is where the parties' contention lies. According to Mr. Mayenga, the recorded part of the proceedings is insufficient to verify that, an oath or an affirmation was administered to the witnesses while Mr. Mrutu is of different opinion. The question is whether the referred recording legally suffices to be termed as an oath/affirmation. Our outright answer is in the negative and we shall fortify our stance shortly. 10

Procedurally, the court at the trial would assign a status of a witness to be referred to when testifying as "PW1" or "PW2" etc, depending on the order and the total number of the witness testified at the trial. The presiding Judge or Magistrate will record the witness' particulars as the witness introduces himself/herseff as regards his/her name, age, occupation, religion/faith, fixed abode or residence and then, the witness will be sworn/affirmed. Upon completion, the court will accordingly record words indicating the completion of the swearing like "....and states..." then proceed to record his/her testimony. As for the case at hand, the record of appeal shows that, the witnesses were ironically led to oath/affirmation before introducing themselves and their particulars recorded. This raise doubts if at all the witnesses were sworn/affirmed. In the circumstances, the Court is left to speculate what really transpired in the court room regarding taking oath/affirmation by the witnesses. The foundational principle of a judicial system requires the courts not to decide a case on speculation or guessing on what transpired or for the case at hand, whether proper procedure was followed when swearing/affirming witnesses. We need not over emphasize nor cite any authority on that. It is our firm view that, the above recorded excerpts show that, the procedure was flawed either one, 11

by not swearing the witnesses at all, or two, by swearing them without introduction and recording their particulars. Either of the two however, shows that the procedure was flouted as correctly argued by Mr. Mayenga. Abiding with the above stated fundamental principle, the alleged swearing/affirmation of PW1, PW2 and PW3 in this case with respect, is negated. As submitted by Mr. Mayenga, and correctly so, swearing or affirming a witness before taking his/her evidence is a mandatory legal requirement under the provisions of section 3 of the Act. We hasten to add that, the proper procedure is to have their introduction regarding their personal particulars recorded before subjecting them to swearing/affirmation. The reason is not far-fetched, that is; it is through the witness' particulars during introduction that the trial court gets to know the type of oath to administer. Besides, section 4 of the same Act, makes every person to be examined upon oath, give evidence on oath. We have consistently stated the requirement in our previous decisions including in Catholic University of Health and Ailed Sciences (CUHAS) v. Epiphania Mkunde Athanase, (supra) and Iringa International School, v. Elizabeth Post (supra), both cited by the appellants as well as in Nestory Simchimba v. Republic (Criminal 12

Appeal No. 454 of 2017) [2020] TZCA 155 (1s t April, 2020) and Daudi Hagha v. Salum Ngezi and Another (Civil Appeal No. 313 of 2017) [2021] TZCA 638 (3 November, 2021), both from TANZLII. In the respective decisions, we reiterated our stance that failure to subject the witnesses to either oath or affirmation is fatal and renders the recorded evidence a nullity and for that reason, such evidence cannot be acted upon by the court to determine the right of the parties. In the same vein, it is our finding that, the evidence of PW1, PW2 and PW3 recorded without being sworn/affirmed was no evidence at all. On that account, we respectfully disagree with Mr. Mrutu that, the respective witnesses were sworn/ affirmed before their testimonies were recorded by the trial Judge. In the result, we find that, the trial Judge strayed into error to rely on the respective evidence to determine the right of the parties in the case before her. Therefore, we are constrained to allow the first ground of appeal on the basis of the pointed out flaw. Since the findings in the first ground of appeal suffices to dispose of the appeal, the need to consider other ground of appeal does not arise. Consequently, we invoke our jurisdiction under section 4 (2) of the Appellate Jurisdiction Act Chapter 141 to nullify the High Court's proceedings from when the witnesses started to testify onwards, that is, 13

on 04/05/2021 and set aside the decree thereof. Otherwise the remaining part of the proceedings remains intact. We further order the case file be remitted to the trial court so that the matter can be re-tried from there. Appeal allowed to the extent above stated and considering the circumstances, we make no order as to costs. DATED at DODOMA this 23r d day of March, 2026. F. L. K. WAN BALI JUSTICE OF APPEAL L. G. KAIRO JUSTICE OF APPEAL D. J. NANGELA JUSTICE OF APPEAL The judgment delivered this 02n d day of April, 2026 in the presence of Mr. Sylvanus Mayenga, learned counsel for the appellants, Mr. Shundi Mrutu, learned counsel for the Respondent and Ms. Rehema Makakala Court Clerk via Virtual Court; is hereby certified as true copy of the original. JS A. L. Kalegeya DEPUTY REGISTRAR COURT OF APPEAL 14