Astus Njale Masule & Another vs Dogani Lunala (H/c Civil App No. 10 of 1999) [2000] TZHC 500 (25 June 2000)

I' ·•. IN 1 l'HE IIIG~ COUFJ.' OF 'J:AieANIA .!ft' : A.BORA,. H /C CIVIL APP -q,&, NO. 10 OF 1999 (OR'L CIVIL GAS NO. 7 OF 1998 MWU DISl:.ttICJ.c COlRL') ·1- -~ c:r,,u:i:i NJlu..:S :-'rt 0 ULE. o •• • •••• ) w ,_.. - • ;.u Ai-'f F.LL.Al-0: S 2. SAMSON f,ITF/,.'W..I. MOLLA ••••••• ) DJGA1'1I L 'U.t:C.A.LA $:i.nce 1994 !Pgani Lunala was a d ID:I.ucaion Co--ordinator for Lubic;a ward, Mcai;u Di.t.rict,. His residence was at. Lubiga. Village., In 1996 he supcrvis0.d. t,he collect,ion of voluniaxy con1iributions, ,;d; Lv.biga village with "i,he objed, of financing const,ruc:-tion of a school building a.t the said villa.gee Ast,us Njale MtsD.le and Seoson Mipawa. Molla aro among t,he village members who made t.he volunt.ary contributions., $.1s. 260,oooJ= were r ee.lised as a r esvJ. t, of st~ll c ont.r ibutions. here was a delay in complet,ion of t,he said builcling" Village members were demanding t,hat the education authori-i.ies should account or give an explanai,ion a.s to how t,hG said money ·was expended.. A le-t,i"reI' was wri tt.en, apparen•i,ly by one of the village m001lJer s called John Mc.sv.11ga @ "Msema RNeli" and addressed t,o ihe prime Minister. It, was copied i.,o t,b.e Meat.u Di.st,rid, Cornissioner, among others. It was alleged in the said. let,ter that t,he said money had been used by D:,gani Lunala, not for i.he in·l·,ended purpose, btii, for his personal matters such as pa.yinc bribe in 1'0S1.Ject of a t,raff ic crase facing him. On 16/4/)8 t.b.e Meatu Dist.ric't, Commissio1;1er oonvenecl a pu}Jlic meetine at JAibiga. Village. '1.'he Di.si.r id, Comnissioner chaired i,he said meei,inec- At t.he said meeting, t.he Di.s1.ric•b Commissioner read 1.he said letiter af-.,er I which he invited conments from "he public. Conments by .!\st.us }!ale Ma.sde I and 8;l.mson Hipa:wa Molla t,ended to -• t.he allegations in 1,he said letter ' I I As a result, of such coi:men-'c,s 1):)ga.ni Lunala inst.i·'i,u:'i,ed a suit. 2t M(;r..t.u Distr id, Cottri; against Asi".us Uja.le Masvle shs.3,050 1 000/= ckl.mages for slancler. ~he I and SS.l!lson Mipo'.l.wa Molla claimi11[; District Court, entered judgment, ·'

•• ,i . " 2 in favour of Ibgani Lunala and n.wa:rded him shs.8'.)0 1 000 /= general dnmo.ges.,, Agg:rieved 1 :Masule and Molla have appealed to this court • . At the hGo.ring of "'i,his · appeal bot,h parties appeared ,.:.nd argued 1.,he appeal" Uone of t,hem was represcnt,ed by col.lrlsel. '.1:he con111eni;s a-ppe~ t,o hn.ve been ma.de on a privilege occasion. A privilege occasion a.rises where °i,l::.e defendant has an in"iierest, in ma.king . the cornmun.i.cni;ion t,o i,he 1ihir.d po.rt,y and 1,he t,hird 1 :ierson has 1,!:te corre- spending in-:,el'.'est. in receiving ht- · i:t'h:rQ eciproci "ty is of t,hc essence of the ma.-t,·lier; Ht,~ MAiG!&' Ven. ST:Lmid(196) H.C.D. n. 167f! So .:f3J: as public intoresi, i~ coacerned the interest; "i;o be .,.:roteci.,ed is t,hat, of ·;he public at. large in -i:,he honest, and efficient. discha.rge of , I p L'iblic dui·,iGs c..ncl the reciproc3J. duty of a.."1 i~dividml is t,o disclose ' breach es of ,hat dui.y • 'J.'lms clnrges of misconduct against, public off id,.. a.ls v;otild 1Je privileged if made to the official's s11perior with a corre- sponding int,r'!l'est, to roocive -.hem,,, A. pr hrilege conrnunicat.ion · is one in respect of which 1,he law holds trot the ptfolic interest in free speech overrides, wholly (in case of absolut,e privilGc;e) or conclit.ion::i.lly (in case of qualifiod privilege),: tho priv2ciie ri 6 11t, to an unt,o.rnished re 1 )o.t,a.tion. qorrr.1on:l,s m::i.de at duly corrv0red public meeting are en,itled to the defence of q1.t."'lified privilege. In l1011WCR3 Yo LOUE ( 1974) I .All E R 662 at P• 671 Lord Di.plock said: 1 !,!y Lord' Gt what is· said. by members of a local council at mect,i1t,;s of t,he council or r..rry of its corrrnittees is SJ:)Oken on a. privileged oc:c:3.sion. 'the reason for 'the _privilege is t.ho. those who r0?vresent, the local government electors should be ~ble to speak freely and frankly, boldly and bluntly, on I ar-0' mc.id,er which !1ey believe affects he int,erest,s o:r welfare. of t,110 in.habitants. 'llhey may be swayed by strong lJ ol i tic al prejudice, they way be obst.inate and pig;..-heo.ded, stt4;,icl and obi;uae, but, they were chosen by t,he electors to speak t,heir mino..s on ma+.t,ers of loc::11 concern and so long as t.hey do so honcsHy t.hey run no r:i.sk of liability for. defamat,ion of those who are the subjects of t,heir criticism." In NOV.iI JOSEPH l:l..ND MJC.i:HF::R VO SEBASl: trn l\lUO' ( 1978) I

,.. • • "'I T'J.!his rneet,ing was cn.11 ed t,o discUss, among other things, :'r.hieves and their accomplicrns in the 3.!'ea and money fo:r tJ.ie 1.hto:-u i:.corch. Both t.hese topics directly concerned o.1.1 i.he villagers of fill.zinga .Kil.taro, and no stretch. of in13.gin.-:,:t;ion could limit. t;he probl_e~ of 'thieves t,o 'l'lilm nembe:rs ::i.lone. It was o. villa.ge __ oblem whose solu·,,ion the villagers assembled t,o d:isc-Uss,.- 'J.lhe Villagers wexe t,hcref o:re discus sin& 12;w cnd oder-:.1n t,hc3ir village at a meeting properly called by· the village aut,hori t,ics It wns important t,hat. t.he discussion at such a meoting be as :free and frank as 1.:,ossible. his was t,he only wo.y t.o come at the root. ·cc1L1se and find a soluti,m,. Fol' i,hio pLtt'pose the Villc1gers were free to say mzyt,hing including defamatory stat,ement,s provided that t,hey were not, moi,ovated by malico"" In NJ\Jlic2 N:OIRO Y. NAILim., -K.,J. ZABLON ( 1980) 'J.'LR 274 the Court of Appeal h,ald t,hat whGre a 1i erson is under a moral or social duty to make cel'l,ain sii,-1 .. t.ements and does make statements which appea.r to be q.efa.- matory i',hc .defence of qmlifiecl privilege would be available provided such stc1:liemGn·i.s ure ma.de wH,lJ.out malice. In t.ho inst,ant a.ppen.l t,he meeting was duly convened by the Di.si;rid, Comnissioner ·ho discuss n.l leg2.. tions of misuse of village f.unds. 'l!he appellani;s had made contributions t,o the sa.id fund., ']he object for which r.1011e3r had been ccntribu.t,ed had not been achieved. 1 .l:he mo.tter concernea. all mGmbers of Lubica village. It was importani, thn.t discs:i- ons a.i, t,he sa.icl meeting be free and rrank:. 'l!hat was the only way to uncove1r t,he alleged misuse of fu...i-1ds. ~he Di.strict Comnissioner had the duty io 2'cccivo t.he conment,s. S!he appeliants• comments were thus ma.do on a privileged occasion. If tho said c:cmraents appeared to be defamatory 1 the defence of qua.lified privilcgo was available to ,~he appellants unless their co1:nm1ts wexe actuated by malice. 'llhG le:1rned trial m:~isi.rn.t0 :rejected the defence of u1lified pr:i,... vilege, He said in his jv.dc,mont: 11 c-o i,hc f::i.ct that T,here wo.s no traffic case at which t,he pla:i.n:,iff bad to bribe ·~he police,· and, that he b.'ls no moi,cl' cycle at all, xevcal that ihe defenda.nt,s' statemen'ts

ii • .. 4 approving t.he Prime Minister~• letter wore actuated by mnlice 1 since such si,ai;ements were out.right. f.:::lse si,a t,emcm.iise ". Renea -t,hG trial in:1gist,ratc_f's finding of malice on t,he pa.rt Qf t,he· appollant,a is based on t.he ..J.nity . of ,,he allega.t,ions in t,he sa.id 1ctt,erc said: 1 'In ~ case in 14hich it, is sougrely on the de.fence of qun.lified privilege, it, is for t,h9: defendant to p:rove the . facts nnd· c-i.Dcumst,ancos which est.ablish that the occasion wa,s privileged.. If he does so, the burden of shwing actu.-' al or G)ress ma.lice xest,s qJon t.hc plaintiff }sEi.-iOURE v. ; I - D!!U.IIDE ( 1891) A.O •. 73) and if t.his is shown, communioa- tions mc1do, even 011 a privileged occasion can no longer be regarded as priyilegocl coonunicat,ions. If "1,ho judge rules that the occasion was noi, privileged the pla.in-1,iff is not, called Upon -to prove actual malice. In such a case the aw inrvl ies malice from t.he f3.lsi ty of -t.h0 sta.t,ernent.: CAPll'AL AND CO_U11J.'IP$ BA.. Vo HEffJ.'Y ( 1882). 7,. App Ca.s." In I:IOlBOCIG V., LOWE ( 1974) .All :TIR 662 the House of Lords held iJ1at, since "the defen?!.2..nt, however prejudiced he had, been, or however irrat:L- onal in loaping to conclusions u.nfo.vourable to t,he plaint,iff, had bol&- ived in i.ho truth of what, he h2.cl said he was entitled t,o succeed in his defenc:e of privilege. .LU tJ.iough gross and unreasor...ing prejudice could give :rise to an inference of malice where i 1, constituted evidence that the defcnd,.1...'1i, h.:id been indifferent, to ihe truth or falsi t,y of what ho ho.ct. saia. it cou.ld hot t..,,. so in a cc:i.se when it had in(:ucec. him to believe in the tr L1t.h of his nJ..legations nnrl tJ.1ere ;were no oihe:r circumstances from which m.::.lice could be inferred. At, Pt-666 Viscount Dilhorne saidg "I c.lo l1ot believe Lorcl Dmnil1g MR"s obs_erva.tion iJiat, mbe>.l' s of a local authorit,y, so long as t.hey beli6"rc wlmii tJ1ey sa.y to be 1,rue 1 are not. liable for defn.mGr- tion· o..nd., wb.en he said 13u-i, so long as t.hey are honest -!;hey go clear; were meant to apply generally and not, J

5 just, tc t,ho facts of -,his case. For a. man who honestly believes ,•1hn.t b.c says _.mD.Y yet, be actuated by ma.lice anc. such ma.lice m~y be 0si« .. 1.blished by other eviclence 1.ihan ·l;i.1e inference t,o be dr::i.w11. from 1.he falsity of the s'tin:l;oraont,, It, is t,h::1t ir:tf orcmce which is nega:t,ived by Ai", 1),669 Lord Di.pH:ck saidg 11 u the mot,ive with which i",he defenc1':mi. on a privilcGed occasion made a sta.t,cment, C::.efuma.tory of e plaintiff becomes crt1cie.l. Tho _pro"i,r.:1ci.,ion-mgh:t, however, be illusory if t,he- onus ln.y on ¥pi·t-o:Pove tha,; he was ad,unt,cd solely by a. sence of the::;;elevani dut,y 6r <l tlesir0 to protect the relevant interest • .So he is ont,it,lecl t,o be pr .. otectecl. by the privilege unless some otJ:1 dominant c::.nd 'imp:ro-pGr motive on his .,;,a.rt is provcll1: "Express m3.lice 11 is b.e term of art clesc.ri,.. pf,ive oi such a moi,ive" BroaCJ.y speaking, it means mnlico :i.n tb.e popuJ.ar sense of a. desire to injure the person who is defcmcc.:. cmC:!. t,his is genera.Hy t.hc mot,ive. which 't;he plainti:ff set,s out, to JJ.rove. But. to clest,.roy the privilege the desire t.o injllI'e mL2St, be the dominant motive for the defanutory publication; Knowle(!ge "t.hat ii; will Lave that, effect is not, enough if 'tihe c.lefend,,.1.nt, is nevertheless acti1~ in ccordance with a sense of dut,y or· in "tcna fid.e pro-t.ect,ion of his own legi tirnate iniierosts ':Che moi;ive with· which n. p·{lrson publishes defamatory rn:'.ltter can o;,il.y be inferred from wh.:1t. he did or said. or knew. If it, be proved that lie did not believe t,hat what he p ubl is.,.11.ocl w.1a true this is generally conclusive evic.!ence of express malke 1 for no sehse of /duty or desire to pro·ted, his own legitimo,te interests can justify n. mun in folling deliberate Md. injllI'ious falsehoods about, J anotJ.1er, so.vo in t,he except,ional case where a person mi:y be under a duty to po,ss on, without endorsing, defamo:i:,ory reports made by some 01.hc:r person.tt l)i.1e11 ne come back home, in Re.S.. MANGJn'. V.Bo SRAiUiA (1968) HCD n.167 it 1-1-:1s held that mo.lice, cloes noi exist where t,he defencbnt

, . honest,ly ci..nc.1 :reasonably believes in the truth of the ccr.1rnunico.tion.,. In Mi'.Jl.W:T MOIRO VO lfAILEJI~ R.J o ZAIBON ( 198o) 'l:LR 274 at Pit,277 "It. wovlcl appear i;Jiat, the le::.u-n:ed. trial judge found. malice on the basis -;ha-I, t,~1e· a.llagat.ions made by · t,he CT3?pcllant, against "i,be 'r_9

spondent. h'.'l.d no foun&l- 1,ion1 in o·ther wcrtls, -;hey wre fnlse allegn.tionso I ,:--.r,1 of ·l,he view t,na:l; T,he lec.rned t.ric:.l judge mia- direct,Gd himself in law in firiding:mo.lice on t,he I bnsis of 1,he fru. sehood of ',he aJ. lega;tions. lit:.l s<Jhood is one of iihe factors whic-11 constitute the it of rlofqmc-.tion but, is not PER S}l! a factor 1·1hich const,i,... tv:i;cs malice." From -".he nhove authorhies, ii. is cl oar that mG.l:i.ce in law, which is prestm1ecl in every false anc1. clo:famatory statement, st,ands rebutt.od lJy a pr1vilogecl or:casion. In sU<:l-1 a case, in order -t,c mn.k:o a libel or slander a.ctionable, 1,he burden of 9roving ac1.i . .1al or e:xpress ma.lice is al ways on t,he pb.int,iff. }lnl ic c in 1.ba;t sense means r.13..1<:ing Use of a privilGGGcl occo,sion for an incfucc;-t and ir:iproper moi,ive. $uch r.ialice can be provecl in 3. mxnber of W:\Ys, such as i• showing 1,11.'.:.-t 1,b.e defendrurli did noi, honcst,ly believe in ·r,he truth of the allegations or t.hr.1.t he believed t,hcm i.o be fB-lse; or: t,bat t,he defendan"t was ac:-,,u.zrt,ed by ba~~d or dislili:e, or c. clesire t,o injure t,he plaintiff and is merely using the privileged. occasion to clefnmo; or by shewing that out. of an£,-er, preju- dice or 101,g mo-t.ive, the flefcnd.a;1t, cast. aspersions, rockoss 1-1hei,her they are t;ruo or fa.ls.. Lck of honest belief is destruct.iva of priv:ir- lege,c, ·S:i.milarly is reckless publicat,ion of defamat.ory m:it.t,er without considering or do.ring whet,her it- be i.r ue or not. nut if t,he defendarrl', honestly bolievocl·in the t,rui",h of his aJ..logations, t.he prot,ection of privilago is not lost· simply becuse h~ leapad to his concluaions on inad.equat,0 mat.orial er bGc'"'usc hG believed in 'the truth of t,he allega- tions on ::i.c:count, of gross and u.nrea.soning 9rejudice, ali,hough these fad,ors al0i1g wi1,h ot,her m:d,erial may be useJ. for holding thn:t the dominani; mo•i,ivo in publishing t.llo s-r,::i.tement was b.a.t,red or some 01,her improper mo-hive t,aking away t,ho · defence of privilege inspi te cf the dt,fenc.1an~,,s belief in ,~he t:rut,h of 1,he al leg3tiohse

7 In -t,he inst,ant case no avid.once was ad.ducerl t,o prove tba.1, t.he defenc.1~.,ni;s wore e.ctu.::i:t,ed. by ho.t,red or ill-will, or a desire "t.o injure th,s pla:i.11~,iff ancl were mP-rGly uaing 1,h0 privileged. occsion "t,o defame him.. HencG -... pc:.rt from t,he inforence,from 1,he falsit,y of the a..llega:t.:i- cms t,hGJ.'e a:re no circucsliances fr om which mc:.l ice could 1.Jo inferred.to As it bas no·l·, been shown 1that, "t,ho clofendq.nt.s did no1 .. believe in t,he t,ruth been dcst,rcyocl.e ' For t,hc G.1 lf/e ref..Or:.s t,b.c Oi:>oal .is allowed witih cost,se JUinE ·.,: '.··1· !. }:? ;_ n.M. Mw.ci: A JUinE, 25/Jfi:DOO