Masule and Another v Lunala (Civil Appeal No. 10 of 1999) [2000] TZHC 685 (25 September 2000)

ASTUS NJ ALE MASULE AND SAMSON MIPAWA MOLLA r. ________________________________ DOGANILUNA LA __ _ ASTUS NJALE MASULE AND SAMSON MIPAWA MOLLA v. DOGANI LUNALA HIGH COURT OF TANZANIA AT TABORA (Mwita, J.) CIVILAPPEALNo. 10 OF 1999 (From Meatu District Court in Original Civil Case No, 7 of 1998,) Tort - Defamation - Comments made at a duly convened public meeting - Whether comments amount to slander. Tort - Defamation - Presumption of malice in false and defamatory allegations

• Previleged occasion rebuts the presumption. The respondent, a Ward Education Coordinator for Lubiga Ward, Meatu District, supervised the collection of voluntary contributions for the construction of ’ school building. The appellants were among the village members who made the voluntary contributions. There was a delay in completion of the said building and the village members wanted to know how the contributions had been spent. One of the villagers wrote a letter to the Prime Minister, with a copy to the District Commissioner, alleging misuse of the said contributions by the respondent The letter was subsequently read out at a public meeting convened by the District Commissioner. Comments by the appellants at the said meeting tended to approve the allegations in the said letter. The respondent then instituted a suit at the Meatu District Court against the appellants claiming damages for slander.The court entered judgment in favour of the respondent. On appeal. Held: (i) Comments made at duly convened public meetings are entitled to the defence of qualified privilege: a privileged occasion arises where the defendant has an interest in making the communication to the third party and the third party has a corresponding interest in receiving it;

198 TANZANIA LAW REPORTS [2002]T.L.R. A (ii) The appellants ’ comments were made on a privileged occasion, and if they appeared to be defamatory the defence of qualified privilege was available to the appellants unless the comments were actuated by malice; (iii) Malice, which is presumed in every false and defamatory statement, stands rebutted by a privileged occasion; in such cases, in order to make a libel or slander actionable, the burden of proving actual or express malice is on the plaintiff. Appeal allowed C Cases referred to:

1. HS Mangat v. B. Sharni [1968] HCD, n. 167
2. Horrocks Y Lowe [1974] 1 All ER 662 D 3) Novati Joseph and another v. Sebastian Muzo [1978] LRT, n.14
3. Naiman Moiro v. Nailejlet KJ Zablon [1980] T.L.R. 274 JUDGMENT E (25 September 2000) Mwita, J.: Since 1994 Dogani Lunala was a ward Education Co- F ordinator for Lubiga Ward, Meatu District. His residence was at Lubiga Village. In 1996 he supervised the collection of voluntary contributions at Lubiga village with the object of financing construction of school building at the said village. Astus Njale Masule and Samson G Mipawa Molla are among the village members who made the voluntary contributions. TZS. 260 000 was realized as a result of such contributions. There was a delay in completion of the said building. Village members were demanding that the education authorities should account or H give an explanation as to how the said money was expended. A letter was written, apparently by one of the village members called John Masunga alias “ Msema Kweli ” and addressed to the Prime Minister. It was copied to the Meatu District Commissioner, among I others. It was alleged in the said letter that the said money had been used by Dogani Lunala, not for the intended purpose, but for his

ASTUS NJ ALE MASULE AND SAMSON MIPAWA MOLLA v. DOGANILUNALA. 199 personal matters such as paying bribe in respect of a traffic case A facing him. On 16 April 1998 the Meatu he convened a public meeting at Lubiga Village. The District Commissioner chaired the said meeting. At the said meeting, the District Commissioner read the said letter B after which he invited comments from the public. Comments by Astus Njale Masule and Samson Mipawa Molla tended to approve the allegations in the said letter. c As a result of such comments Dogani Lunala instituted a suit at Meatu District Court against Astus Njale Masule and Samson Mipawa Molla claiming TZS. 3 050 000. damages for slander. The District Court entered Judgment in favour of Dogani Lunala and awarded him TZS. 800 000 general damages. b Aggrieved, Masule and Molla have appealed to this Court. At the hearing of this appeal both parties appeared and argued the appeal. None of them was represented by counsel. E The comments appear to have been made on a privileged occasion. A privileged occasion arises where the defendant has an interest in making the communication to the third party and the third person has the corresponding interest in receiving it. This reciprocity is of F the essence of the matter of HS Mangat v. B Sharni (1). So far as public interest is concerned the interest to be protected is that of the public at large in the honest and efficient discharge of public duties and the reciprocal duty of an individual is to disclose breaches of that duty. Thus charges of misconduct against public officials would be privileged if made to the official ’ s superior with a corresponding interest to receive them. A privileged communication is one in respect of which the law holds that the public interest in free speech overrides, wholly (in case of absolute privilege) or conditionally (in case of qualified privilege), the private right to an untarnished reputation.

200 TANZANIA LAW REPORTS [2002]T.L.R. A Comments made at duly convened public meetings are entitled to the defence of qualified privilege. In Horrocks YLowe (2) at page 671 Lord Diplock said: g My Lord ’ s what is said by members of a local council at meetings of the council or any of its committees is spoken on a privileged occasion. The reason for the privilege is that those who represent the local government electors should be able to speak freely and frankly, boldly and bluntly, on £ and matter which they believe affects the interests or welfare of the inhabitants. They may be swayed by strong political prejudice, but they were chosen by the electors to speak their minds on matters of local concern and so long as they do so honestly they run no risk of liability for defamation of those who are the subjects of their criticism. In Novati Joseph and another v. Sebastian Muzo (3) at page 58 Mfalila J. (as he then was) said: This meeting was called to discuss, among other things, thieves and their E accomplices in the area and money for the Uhuru Torch. Both these topics directly concerned all the villagers of Kazinga Katoro, and no stretch of imagination could limit the problem of thieves to TANU members alone. It was a village problem whose solution the villagers assembled to discuss. F The villagers were therefore discussing law and order in their village at a meeting properly called by the village authorities. It was important that the discussion at such a meeting be as free and frank as possible. This was the only way to come at the root cause and find a solution. For this G purpose the villagers were free to say anything including defamatory statements provided that they were not motivated by malice. In Naiman Moiro v. Nailejlet KJ Zablon (4) the Court of Appeal held that where a person is under a moral or social duty to make H certain statements and does make statements which appear to be defamatory the defence of qualified privilege would be available provided such statements are made without malice. In the instant appeal the meeting was duly convened by the District 1 Commissioner to discuss allegations of misuse of village funds.

ASTUS NJALE MASULE AND SAMSON MIPAWAMOLLA v. ________________________ DOGANILUNALA ___________________________ 221 The appellants had made contributions to the said fund. The object for which money had been contributed had not been achieved. The matter concerned all members of Lubiga village It was important that discussions at the said meeting be free and frank. That was the only way to uncover the alleged misuse of funds. The District Commissioner had the duty to receive the comments. The appellants ’ comments were thus made on a privileged occasion. If the said comments appeared to be defamatory, the defence of qualified privilege was available to the appellants unless their comments were actuated by malice. The learned trial magistrate rejected the defence of qualified privilege. He said in his judgment: ... the fact that there was no traffic case at which the plaintiff had to bribe the police, and that he has no motor cycle at all, reveal that the defendants ’ statements approving the Prime Ministers' letter were actuated by malice, since such statements were outright false statements. Hence the trial magistrate ’ s finding of malice on the part of the appellants is based on the falsity of the allegations in the said letter. In Maiman Moiro v. Naiiejiet KJ Zaibon (4) at page 277 Nyalali, C.J. said: It would appear that the learned trial judge found malice on the basis that the allegations made by the appellant against the respondent had no foundation, in other words, they were false allegations, I am of the view that the learned trial judge misdirected himself in law in finding malice on the basis of the falsehood of the allegations, falsehood is one of the factors which constitute the act of defamation but is not per se a factor which constitutes malice. From the above it is clear that malice in law, which is presumed in every false and defamatory statement, stands rebutted by a privileged occasion. In such case, in order to make a libel or slander actionable, the burden of proving actual or express malice is always on the plaintiff. Malice in that sense means making use of a privileged occasion for

202 TANZANIA LAW REPORTS [2002] T.L.R. A an indirect and improper motive. Such malice can be proved in a number of ways, such as by showing that the defendant did not honestly believe in the truth of the allegations or that he believed them to be false; or that the defendant was actuated by hatred or dislike, or a B desire to injure the plaintiff and is merely using the privileged occasion to defame; or by showing that out of anger, prejudice or wrong motive, the defendant cast aspersions, reckless whether they are true or false. Lack of honest belief is destructive of privilege. Similarly is reckless c publication of defamatory matter without considering or caring whether it be true or not. But if the defendant honestly believed in the truth of his allegations, the protection of privilege is not lost simply because he leaped to his conclusions on inadequate material or because he D believed in the truth of the allegations on account of gross and unreasoning prejudice, although these factors along with other material may be used for holding that the dominant motive in publishing the statement was hatred or some other improper motive taking away the defence of privilege inspite of the defendants belief in the truth of the allegations. E In the instant case no evidence was adduced to prove that the defendants were actuated by hatred or ill-will, or a desire to injure the plaintiff and were merely using the privileged occasion to defame F him. Hence apart from the inference from the falsity of the allegations there are no circumstances from which malice could be inferred. As it has not been shown that the defendants did not believe in the truth of the allegations in the said letter, the defence of privilege has not been destroyed. From the above reasons the appeal is allowed with costs. H I