Michael Tomito and Another vs Joseph Slana and Another (Civil Case No. 2 of 1998) [1998] TZHC 2506 (24 August 1998)

IN THE HIGH COURl,1 OF TANZANIA" AT JJIDSHA CIVIL Cl~~ No.2' OF 192§ . MICHAEL TOMITO ROSE·TOMITO ••• ••• • • • ••• ••• i ••• • •• INTIFFS . - Versus - · JOSEPH SLiNil. .: · .. lDPk J.QEPfi..; _ ::: __ ...· _. ·-·--•-•-·-•-•-•--•-•-· · •• . __ DD'END ___ -ANT· ___ _ R U L I ff. GI MROSO 2 JUOOE: . The plaintiffs have brought a defamation action against the defendants alleging that 1'the defendants bad slandered them on . ' several occassions by imputing that they were withes (or perhaps a wizard and a witch respectively). They claim damages in the • t •, sum of shillings 20,000,000/=. It is ot, disputed that those are general damages (alt_hough, as· general damages, it was wrong. pleading to state the specific amount}.·: General damages· are assessed by the court). In their joint written sateme.nt of defence as filed by their advocates the defendants.have inter alia raised . ' a preliminary po:μit that the suit being• of slander and special damage was not pleaded,• ,it is not actionabl ,mrf :presumably ,should · bedisrnissed'with costs. Both sides in the case are represented by advocates and by consent it was ordered that they should file written suhmiBSions on'the preliminary point. ,They both agree that the law applicable ' . . in this country on: the tort -of .slander iff .English Law as on 22nd ' '. July, 1920,which is the recaption date according to section 2 of the Judicature and Application of Laws Ordinance, Cap.453 "f the Laws .• · It is correct lawf thereforE ,that slander is not actionaQle unless special: damage is pleaded 3ut there are exceptions to that general rule. Mr. Sa.baya, learned idvoca.te . for he plaintiffs, has hel · fully cited the r9lativel;y recnt case· of RUOORL CP'tAVULA vs. .. ..... MOHAMED ATBUMANI (1982) T:':. p.100 which is a judgment of this court ---: .. \ . '.( ' ........ • /'Z {

(Samatta, Judge as he then was) wh.i,c.h shows that.¥ English Cormnon Law slander can ·be actionable without proof- of special damage where:- (a} there is an imputation of a criminal . . offence punishable with imprisonment; (b) there is an imputation of a contagious or infections disease . , t • likely to prevent othe persons from associating wj.th he plaintiff; (c) there is an imputation of unchastity, adultery or lesbianism to any woman or girl, and (d) there is imputation of ,..mfi tness, dishonesty or incampetence in any office, profession_, calling, trade or bu&.iness held or carried on by the plaintiff at the time when .the Al~~ published. The above points are based on the judgment in he English Case of JONES vs. JONES (1916) 2 A.C. 481. If the case before the court can be shown to come under ·any"of te above exceptions then it is actionable ;e_er se nothwithstanding that special damage was not pleaded •. r The plaintiffs allege that the defendant$ on several occsions published of the plaintiffs slanders to the.effect that they pr~cticed withcraft and that they bewitched a son ef the defendants. Section 3 of the Witchcraft Ordinance, Cap.18 of the Laws provides that a person who exerqii:;~s wi ~chcr.aft Cf?mmi ts an offence ~or which, under section 5 of the same Ordinance, he will be liable to imprisonment for seven yeari;s. The effect of the allegations in the plaint therefore i 9 that the plaintiffs were . . .. . ~,. impute_d b;y the def end ants to be criminal·s ,because they practiced witchcraft. Such imputation is enough to make the slander action- able per se and I so hold. It follows that I must dismiss the pre- liminary objection with costs to the plaintiffs. At Arusha. 24/8/98 JAMfjn. J. A. MROSO JUDGE ·Mr. Merinyo for Sabaya and for the Defendants. I I )