Mpanda District Council vs Eldard Sospeter (DC Civil Appeal No. 23 of 1997) [1999] TZHC 411 (15 August 1999)

IN THE HIGH COURl' OF TANZANIA . :• . AT MBE'lA {DC) CIVIL APPEAL NO. 23 OF 199? ' (From Mpanda Jliatr!it Civil: 'Case No-~ ?/96.} VERSUS· ELDA.RD SOSPETm .. ~ ...... ,O ••• :. o., ............. RES~ JUDGEMENT WAMBURA PR-i (:ill) • t Thi& Judgement ·.ro.1.low; an app~ fi1.ed ~ t-t}?Mda -:et~~ wru1 ·l"ep.resented by Mr.. Mbise (Advocate), on ·the following grounds:- evaluation of evidence. . That the suit was bad for non-joinder of ldio. "l'an&eJri.a. Dar es Salaam (RTD) M d1:endts while' :it was alleged that the <lfSJil&tor., et.a..tements weN broat.erl :thro\lgb._ ~ ro.dio. 3,. '11he Resident Magistrata .i:-rQl'OO. in ·•onducting ;-aha:; N2, ' . FW3 and even PW4 were reliable mtnesses °lldl in.fa.ct. t were the very ones .mo dismised the respondent from . employment. Thus th 'gave evidence in regenCQ ·t'r<m :t' pbSts. 4. Th.a award ot Tshs • .500, t~ the respondent ~ oog :in that he failed to pro his . They ~ preyed ~ have the appeal allowed with costs • . In. ha rei;ily -Mro }1us.hokorwa {Adv), appearing .f a.t' the yas.pde!l.t ,,aJJ.~ that.- 1 .• The trial Magis;t.:mte :g.J'.'O:perlJ e"l!aluated the evidence The place or non joinder is belata~ made here8 The witnesses referee to qualified to in law to testify and no objection was actually raised durins the hearing,., 4. The award of Tshs.500000/= was te courts own d~etion finding it o bet on the·law side because the libel seri0'1S in.nature.

• • 2 They thus prayed to have the appeal dismissed with costs. First e..ndforemost while goine; through the proceedings of this case and that of District Court Civil Appeal 22/97 wanting to consolidate the judgements, I noted that a preliminary objection on the matters was overruled so I have decided to deal with the two judgements separetelyo Now after coin5 throuch the arguments for and against the appeal the main issues are whether the appellant cause¢· or uttered the defamatory statements broadcasted by HTd, and whether the clamag@s awarded of Tshs.500 1 000/= '\ •' . · ..... was justified or not. ·a.,.,. I ·wish to first po.int . out no where in rec_o:r:\l .tben I come across the specific defamatory words~ All witn9.state·they heard it bein5 broadcasted in RTD ..... th,t;,the i:::01m.cils ·mo;1ey hnd been stolen and some employees dismissedo If it is what is sta.ted in pir:i. 6 of the plaint I would say that the truth and the cause of being thesE: two appeals in court to deny., I would actually not call such a statement to be-'·defruiiafory at all. - --·- . •' .... Be it as it may be, but ar;ain the evidence ip record does not cleary ..... . . .. state ns to who actually passd over the dim~~~l information to RTD who uttere,\i. t1i.e ·a1i"egedly defrunatory words if' 1y. Yes while DW1 refuses to have that information in his recorc;ls, Vj, PW3 and PW4 under the chairmanship of . . . ........ PW2 said it yv" the• coiit~~-ii"-·decision to have the said dismissal announced by Rl'P. However, no one says who was entrusted with the d;ty to announce the same. If the council c.id- ·no"t' assign this duty to a specific person than if such a· statement wos .. uttered ·outside its sources, the council cannot be held . . ... . to be responsible, mo_:c.e beci1Us 'i' f el it wo.s very unsnfe for the trial court to rely upo the evidence of the said witnesses who 3.pc1.r1r for being members of the council which announced the dismissal had at that. time also lost their • employmoot too • . .,. . .. · But af.;;in nssuming thnt these words were. really defamatory, were the damages awQrded justified? The only thing which ean m.'.Jke the award ·julltifi::ib1e is when the allegation reaches the requ.ired standard of proof in an case its that of posilitieer· which has ta.. be reached by the plaintiff ✓- and not by· the defendant ·0!3 suggested by the trial m3.gistrate •. If he saw that the plaintiff did not reach that standard it was for himo_d.ismiss•the suit .. and not shift the b~~den,..to the defendaE:to ·There had to be stro evidence

• ""--'~ to prove this Jii:;t 1 iifiJh f> bl;j.eve was -not done also there wa:;; no . . . . // (.,_ .'- ·-. -· justificntioir'~of· awarding the appellant th(\t amount. ,.· ~~.· r- . . . . .. 1 1 ,,. / , • • f.- '•· •. f' V1 '. . ... I thus,' allow t4e appeal with '-costs cmd Rie;ht of Appeal is. accordinely ;: ,- ' . ;. explained.,·; - · 1 \ l.l-' \ - • \ .,;:, '. ' ~ ... ·- •,·•:..,, .· ·- J .· ,':/ ./ • S .A.Ne Wambura PRINCIPAL HESIDENT MAGISTRATE (EJ) 15/8/1999 •