Andrew Mushi and 3 Others vs Editoe Heko Newspaper and 2 Others (Civil Case No 266 of 1995) [2000] TZHC 113 (16 June 2000)

,. . ... 1. 2. 3. 4. BUBESHI 2 J: IN THE HIGH COURT OF TANZANIA DAR ES SAL/i/M DISTRICT REGISTRY l\ T DAR ES SJ\L1\1\M CIVIL C1SE N0.266 OF 1995 ANDREW MUSHI I MDREA CHITOJO I • . . . o • • o MAILA JVJ./,KAMBI l TOGOLANI MGONGI l l . VERSUS THE EDITOR HEKO ·NEWSP./\PER HEKO PUBLISHERS PRINTPAK (T) LIMITED JUDGMENT PL/1INT!FS DEFENDANT This claim was filed by the four plaintiffs, Andrew Mushi, Andrea Chitojo, Maila Makamoi and Togolani Manongi. However when the matter came up for hearing the second plaintiff Andrea Chitojo did not appear in court on account of illness. It is pertinent to add that up to the tir.:e the court was summing up to the aseessors the P 2nd plaintiff was still absent, and since he did not appear to give evidence, it was aGreed that this judgment cover the three plaintiffs only who·appeared in courtp namely ./\ndrew Kushi, Maila Makambi and Togolani Manongi. The filed claim is for libel against the three defendants jointly and severally for the sum of 20 million in favour of each of the plaintiff. The libel is vased on the publication in an article contained in HEKO Newspaper No.178 of August, 10th~ 12th 1995 titled; 11 Pamoja na viongozi wa Urafiki kuhujumu · TShs.460 m - - - - - Njama za kuwarudisha kazini zaandaliwa l.Vlwi~gine ajichotea millioni 89.5- -" •.• /2

rlltlii<•--'-'------ 1 ., .. 2 It was the plainfiffs, case that the article contained falsehood information and therefcre defamatory of their characters. The defendants did, on 20/12/96, file their joint written statement of defence wherein they admitted to have published the article. However they denied that the said publication was defamatory and claimed that what was published was true - hence fair· comment. On 19/3/97 the court was informed by counsel that pleadings were complete and matter set for-hearing 0 And then Dr. Mvungi for the defendants applied to withdraw for lack of instructions. The defendants then appeared in person and sought for more time in which to engage another counsel. From then on the defendants never appeared either in person or by counsel necessitating the court to grant leave to the plaintiffs to proceed exparte by oral evidence. The first to testify was Maila Makambi. He stated before the court -that he was employed at URAFIKI Textile Mill as Sales/Stores Manager from 199) to 1997. He tendered in'court the the Exhibit Pl the article in Heko Newspaper and st3ted that the leaders mentioned in that article included himself, as well as his two colleagues Andrew J.Vlushi and Togolani Makambi. He denied that there was any misuse of funds as claimed. He explained that the money they get from Hazina was used to rehabilitate the mill. And as for money for purchasing cotton that was sent direct to Shirecu. · He claimed that all the allegations levelled at hirr. were not true and he has been phychologicallychologically affected by what was published. That their counsel sought for an apology from the defendants vide Exhibit P2 but no reply was received. He was claiming for an award of TShs.20 rnillon as damages. PW 2 ,_wns Jmdrew Hedoci I'-Cushi, He stated that in 1995 he was appointed as the General u Manager of rafiki Textile Mill. Be added that when the " article was published he was away in China. He denied to have handed over TShs.100 million to the PW l·for .... /3 .

3 buying cotton and neither did he use TShs.189 million for purchasing 50 bales of cotton. He stated that when they wanted to post mcney to SHIRECU, that was done through tele·graphic tansfer T .• T. or bankers cheque. He danied the contents of the published article,. ·_He lamentec. that the publication has brough his character into disrepute and added that hAd it not been for this article he would have retained his p0st as General Manager. He prayed to be awarded damages in the sum of TShs.20 million And publication of an apology. PW 3 was Togolani Semriwa Manongi. He stated that he was employed at Urafiki Textile Mill as Production Manager. He added that due to the workers unre.st . ~ at the mill he was also locked out in June, ·< .. ;1··1"'1:-.:;..~·.., ..... ,- 1995. He stated that the employees were aggrieved after being told to go on leave without pay. · He admitted to have read the article published in HEKO

but denied that what was published as containing any grain of truth. He exp18ined that after the matter was investigated they -;-·ere ordered to :•f::f ,.,,t :1:=:ick for . work. PW 3 is also claiming an aw0.rd of TShs.20 million as damages. After hearing evidence I sumoned up to the sente gentlemen assessors. They were of the unanimous opinion that the plaintiffs character had been injured as result of th~ publication. They stated that the defendants did not app~ar to give evidence on the allegations, That the defendants published the article without an indepth research. On the issue of damages the 1st assessor awarded each plE1intiff TShs. 10 million,. as well as printing of an epology. The 2nd assessor was also of the same view that 3n _award of TShs.10 million to each plainting would meet the ends of justice. Having considered the evidence tendered, this court is of the view thgt the plaintiff's claim has been proved on balance of probability. The article published wa.s clearly defam;::itory and the defendant's •.• /4 l'.'l

4 did not appear to state their defence.Like the gentlemen assessors I ar.1 of the view that the plaintiffs are entitled to damages in the surn of TShs.10 million each as well as interest and cost. Delivered before Jundu/kllindu for Plaintiffs. kAiJ:J~' A.G. BUBESHI JUDGE 16/6/2000