Angyelile Sunda vs Solomon Mbalekile (PC Civil Appeal No. 46 of 1998) [1999] TZHC 385 (17 December 1999)

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J!Os.?I 1 J. IN THE HIGH COUR:!, 1 01i' TA!lf.Z.ANI.A AT MBEYA (PC.) CIVIL APPEAL NOo 46 OF 1998 (From the decision of Rtwglol8 Di.strict Court at Tukuyu in Civil Appeal No. 36 of 1998 ---Befo-r-e~-- P.~Do Komba ... District Magistrate)

• ..... __ ANGYELILE SUNDA • o ~ ---: .- • -.- ...... Q ••• ~ • • APPELLANT ..... , . Versus . SOLOMON MBALEKILE oo••ooeoooao•••ooe RESroNDENT JUDGMENT The appellant, .Angyelile Sunda. -was. the t-ween {m.sh8Jlga) in the marriage betwee. the respondent, Solomon ,l-lliaJ,elc.ile 1 and his wife, Faiz2.es Itorola (SU2). They were, therefore, very well known to each other. Th~ appellant was the .chairman of their Lu:s.i.ngo -'4clX'd sa-v~ 9llli. eo:-ed:Lt. oe!t#., The respondent and SU2 were members of the society. On 16.1.97 the ·respondent and his wife (SJl2} quarred with the res.ult. that SU2 left the matrimonial home. SU2 went to the appellant who, at her request, lent her shs.5,000/= from the society. She then went to her mother in Mbeya. The appellant had not consulted the respondent befox-e lending the money to SU2. The parties were .later reconciled ..ap.d cohalJ.itation resumed .. On learning about ·the ind~~ of SU2 to the society (shs.5 1 000/=) the respondet filed a claim of shs.60,000/= against the appellant for adultery with SU.2 before the ward tribunal. of Lusingo .. Tl-+e only groud the reapo,ndent ' gave was that the appellant had lent the mney (Shs.5 1 000/=) to SU2 without his consent. The respondent lost the claim but the parties- \·Jere reconciled. The appellant then preferred this suit against the ~ndent b&fJ:U"the primary court of Katumba claiming shG.160,000/= for defamation. He claimed that the claim made by the respondent before the tribunal had-injurd his reputation and exposed hi.rn to hatred, cont.empt or ridicule .. o••••••• /2

The primary court unanimously decided in favour of the appellant holding that he was perfectly entitled to lend the money to SU2 and that no adultery was establishedo The respondent was aggrieved and preferred an appeal to the district court of Rungwe district at Tuk.μyu which allowed the appeal on the ground that the plaint had .disclosed no cause of action. The appellant, in turn, felt aggrieved, hence this appeal in which both parties entered appearances in court and said they abided by the memorandum of appeal and the written reply to it, respectively. I would, with respect, _agre.e.· witl~ the district C()ur_t that the statement of claim did not disclose a cause of action and that it ought to have been rejected. It went thus: "Mnamo tarehe 8.129? ulimdhalilisha mdai Angyelile Sunda na kumpeleka Baraza ·1a Kata _kwa madai kwamba unamda_i ugoni shso60,000/= kwa vile mdai alimkopesha fedha shilingi 5,000/= za chama cha kulipa na kukopa basi ni mkewe." The claim, in my view, did not make any senseo It was vagueo It was difficult to discern from ·the statement of claim not only what the clai.'11 was about but its basis as well. Something else too. The suit for defamation was clearly a misconception. The tort of defai11ation consists in the publicatiqn of a false or defamatory statement concerning another.person witho1:1t lawful jus:t;.ification. But the publication here was in the form of a case filed before 1 and heard by, .. :-'.a,, trftnmal. The publication was thus in ~ judicial proceeding as defined under ' ·• ·section 5 of the Penal Code, and this made the· su1i for defamation untenable __ in · ,1aw.. Perhaps malicious prosecution, but certainly not 'defamation. I accordingly find this appeal devoid of merit and dismiss it with costs .. AT MBEYA • ._r _... .. ,. 17 December 1999. For Appellant: Present; For Respondent: Present. B.P. MOSHI JUDGE • .. ,...