Dr. Gabriel L. Komba vs The Editor of "Moto Moto" and Others (Civil Case No. 49 of 1994) [1998] TZHC 2039 (7 August 1998)
Judgment
IN THE HIGH COUR'::: OF TAhZA1-.IA DAR ES SALi'.J:,,_°i", DISTRICT REGISTRY AT DAR ES SALAAi•1 CIVIL CASE 1·,o .49 OF 1994 .DR GABRIEL L. KObBA •• ., •••• PLAll'lTIFF' VERSUS
- J'HE EDITOR OF 11 1',0T0 1•10TO" ••••• ~ . 2 E ,., F'UBT rs··· ':''.""",:RS ~, D"-,Ti'El' D .. TS • • ;:::, .. .,_J !i.e., • ~ o o • .. • • • • ~ • K .11,J.: "' 1-l 1 ...
- FRil
TFAK ( T) LI1'1ITED •• 2 ••••• f J U D G 1•1 E .1.T BUBESHI, J: The plaiAtiff Dr. Gabriel Kolllba was employed by the i"'iinistry of Agriculture fro.llt 2/4/1970. By the time he retited-·in February;· 1995 he held the post of ·· Assistant Comrr.issicl"er iP Livestock Development. He was iri charge of imporil"g livestock drugs. He has f i1ed this suit £::x .. "' libel against the •1.ree ... defel"da nt' s claimi r,g from the:n jointly and severally . · a sum of Shs.,200000,000/=; · The defenc..a11ts through their courisel-Raphel Cha...,"la- •.. prepared their writteri statemerit of defel"ICe ireludi rig there-in several annextures. However there i·s no evideT"ce that the writteri staterueT"t of deferice was duly filed in court although the documerits bear a stamp of _the Registrar High C,:;urt: dated 21:/11/199~." Be it as-·it rr:ay this court had ordered, on 15;'9/94, the Plaintiff to proceed exparte, by oral evidepce. l'--1r. 8. Tenga of Law Associates appeared for the ro_aiptiff iri these proceedigs • . The Plair.tiff \'k'I,:::) was the sole witres-s testified that he llea.:l-d the LiYestock sector arid was irichan:e of . . ~ illLr,?r\irig livest:Jc:k drugs. He was· i ri charge of all the live.stock in the cou.ntry al"ld· had Y.!J.p._e-;v- him some 5 officers.. 1 8TIG of wh~:r,1 was based at Temeke and he is. the or'le that wou:J_d irriport drugs af.ter··getting a go ahe~d from the Plaintiff. He. ci.:;mplairied that t 1 1otomoto ..... /2
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magazine h,3_d published 11 ar·ticles OY' importation of
drugs articles which hs claim were defarrator-y-· of"·,hi,s
character and that the r-ubtlcations were false.
He te-ndered i-r c;_:.urt Exhibit P 1 which is ari article
from Jviotomoto dated 5 - 13 l:ovember, 199:3. The
court adrni tted the Ph)toco;,y after being infc.,I'JI!el
had bee-r gutted down i.-n the fire that destroyed the
NASACO buil,:lir.ig wherein the oflices ,)f Law 11.ssocia-tes
had beer, located. Ext:-.ibi t 1-- · l carried publication to the
effect that, the Plai-rtif.f in o:;llaboration with other
persoPs flouted the procedure laid dowYl for importirg
li veste-ck ::d
that· -ihe ori5inal d.c.·cun,eft'ir, the 9'.lstody ,).f his counrugs thus occasi.Jrii r 1 g a loss of TShs. 945--
million tc the Drugs Revclvirig Fund. That the Plaintiff
wa::i demanc.lir.g 10% cormiiissic:r, out of the deals.
t.It was furthcr·alleged that the plair>tiff collaborated
with H/S Interche.llL Fharma "Ltd to puro:1ase drugs worth
Sh!'-.144 343,4007 = which later ex::>.ired,. · That the
Plaintiff co].labc,ra.teF.l wi_th Dr,, Be Yi lVioshi, then
Fri ncipal Secretar:r i y, sarr!e 1lh:ristry
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to secure a loaP
from CRDB in favour of 1v1/s Interchem; the latter who
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subseque r.tly supplied large quantities of low quality
drugs to the tun~ of Shs. 748,5 million.
The Plaintiff went ori to state that Exhibit I· ;·
was published. i-r h'iotoic.oto issue cf r-:over, 1 ber 19 - 25th,
1993. That the article earried-allegation.s that the
plaintiff has used. the illgotten rrioy,ey to build a-house
worth millior.s of shilli-ngs at iv1akongo,. 'I'he plairitiff
testifiec: further that i-n the 3rd - 9th Decerr:ber, 199~~-
issue of .1·10-te,n:.oto adT:ii ttep. as Exhibit P 3. the de·fe,-,da ,,-,ts
pubiish2d an article to thG effect that the plai:rtiff
grar>ted, to M/s bay a-rid Baker arid Hoescht·-(E A) Ltd,··
a contrae-t fc:-c t:he sur-ply arid d.istributio-n ~f v;eteririarY
drugs, and in the pr.1cess,. occasioni:rg lass ~;f i.i.,,illions
of shillings Cue to irripro})er docur,ientatiori receipts.
The Plai'Y1tiff we-rt on to state iri his eviderice that
the defericlants published arv:.1ther--article•·iri l'!~ctor.uoto issue
of 10 - 16th Dec2n:ber, 1993 - teridered iri court a:-s
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Exhibit P Li- -·to the effect that the plai.ritiff iri
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collabcratL; r with other pe;rsor>s, imported· i:rti') the couritry
hug2 quantj_ties· of a particular drug,. Y-:it ccruh,orily used.
He aci.ded· tl1e.t i r> the l\oton..c.to is.sue of 24 .... 30th Decer.1ber, 93,
the eleferia;:-:·cci published ari article accusiJ"g the
plai Y1tiff of delibsrat8 inactio .... where ari accountaYlt of
with the Linistry va;
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is.qed 'followiYlg a loss of
h 14
. l 7 . .,,, · - . ..; f t . l ' ' d
S··s.. ill.l. ___ lCDe _r.Le cor.ip12cl_fle•.c O ar lC 0 was -cenJ.ere
i,.., c·ourt as E..xhibi t P 5.
'rhe Plair.tiff test.if:ied further that the dcfe-ndarits
i:ublished yet ar0th2r articl,~ in hotooto issu2 of
31st Dece,:1b0r, 1993 --7thJa-nuary, 1994 where it was
alleged that the plairtiff together with Dr. Ben /w!oshi his
pri-ncipla.l secret-ary delib-2ratelY faiied-·to sub.tu.it for
audit··and E<iI.:'Utiny, f.:.)r fire-years coritinuously, the
accouT1ts of-·the Drug .Revolvi:r.g Furrl. -·That this was· dore
so-.-as t.9 cunceal the I£isuse and misma-ragernent of the
Fur.cl. This article· was tende-Tsd as th,:? court ·the procedure u_s.efixi:'iibi"t F 6.
The article vr2rt -::)Yl to say of the Plair,tiff that-
togethGr wi.th Dr. Be-n Loshi authorised huge quaT'ti ties·
of th2 drugs. hILS:A!·: a.ncl i• 1 ILVERN, which -drugF.
are l'.lOt coi..rnoriJ.y used.
The-·Plr::.:.i-ntiff testif-i.e(t that his lawyers wrot the
. asKing fer
defer,dapts on 23/12/93[an apologise-·but the latter did.
-not only o:ffeT ar aPclogy but coriti-nues. to
publish the oi'fe-nsi ve articles. 'l'he·-letter addressed
to E-;,· S. Fublishers, the 2nd defer1darit is referred to i-r the
pl°airit 0s arriexture GK 7.
explained
orctel~~ Plaintiff L t.-_cre1::.:--
Lr1rug,s ...
The wi ny,er ·,,vr)1J_J.:.l the ri be ref erred to the lVlinisty . of
Heal th f·or. necessary acticT'. That the drugs w01..;.ld be bought
according to the furxis av.:3.ilahle •
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. ..J-gBri:c:f1y stated
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the Plaintiff testified that
after receivi:r.g-·the total requireH,erits froh, the Regional
offices;· thi2 C2ntral--'Terider Board would call :fr bids
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The :Plaint.:.:ff adn,i tted to the possibility- of
accuiirulation of 2xpired drugs. But he explai:red that that
was due t•.) ::he .fact that the proe·edure adopted was
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,. f .J..h Fu ' th ·1 . . . .t:'f ' t · ~ · ' t 1 •
orig. .fS . ,.:r L,_ e --r,c, e p ai r11.L 1:e s liiea ;u·t-
i t was last audited in 1992, Ple.:i ntiff te nd:ered in court
a eo-nfider-tial report er ·t:he i -nvestigatiori d.-:n1e by the
fv1i:nistry or, the allegatio,ns published--ir the Hotollloto
paper. The court aiii tb;?d ti,e do•un12'.t as Exhibit F 7.
It is il:J:pp'."Jrturie to cor1,E1ent o Exhibit· 7.
First of aJ.l the docuri,e-rt ·was--not teroered by the
author or tho adclresseC:;-. The piaiYltiff did. r:it have
custody-· of the--report -not to n 1 e:r,tion the fact that what
was ten:iered in court appears to have been taken out of
the i\iini::otry
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s 6cY1fideY1t.ial Registry without followirig the
proper pr,:icsdure. This ·court is n-Jt sure-·of its-authe'riticity.
I~ the prewis•2s I hole:;_ that for the reaso-ns give,.., J. find E
Exhibit P 7..., though adnli tted for lack of obj0ctio11,
has rio prohativ-2 value. It woul.:. hav0 bee:r. simple· to have
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the- 0'rle who 1;repareci- the report corue- and testify 011 the
cor,te-nts but certai -nly YlJt the plai -ntiff hin,s?lf.
The pL1i:ntiff de:ried causir,g firiancial loss· tG l:ri2
1vii 11is try. As mr the h-: 'vise - i 11
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··ako rigo the p],ai ritiff
testified-·that · he has peen buildi .,,,g the house usi '!'"lg
labour co :ntrctct:. Th3.t the value_ cf the hous·e is between
7-·- 8 1L.illi-:-J11-·a-rd that todate the house is nt complete;
only-·the gr:m:nd floor is ready for occupatioT! arid that the
plai-ntiff reides ther? v.rith his __ family.
The Plantiff die. "Y'Ot call a'l'IY wi t'l'less and yet he
de-ried all the 3.llegaticl'"\s published in the l\1otomoto
issues.
-· -- All the· three acse3sors who- sat with m2 were of the
·u11ariin1ous opiniop that··the ·Plai-ntiff has riot established
his claim- for defariiation. That he did l')ot suI,.li1ori to ··
his aid•·a'Y'y \•1it'l'l2ss, to _support his claim 0 Garitley on
Libel arid Sle .. :ncler 5th Edi tiori - by Richard O .Sulli veri
states on page I:
;;The law recognises ifl-·e-.cery mar, a right
to have the estilllatiori iri which he stands
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in the opinion o~ others· unaffected
by false staternerits to his diserecli t ,.
Acy disrarage·mer,t of his good name is
an irf-ririgemerit of this right arid therefore
a v,TcY!gful act, ··:for which civil, and
sometimes crimial proceediPgs will
lie,.;'
The learJ'lod author states further that:
nThe law presumes i-r the Plail'1tiff
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·s
favour that the .
ar,d i ri preseYICe of
Assessors.
1., n - 'I ,
J~ rf .\ . .i·.f'; Ii ·
/\j, .. -~~=-) fl~.)- -:~:,'1,.1_.,(.,..
A.G. BUBESHI
' .
JUDGE
7/8/98wrds ar·e false,. ur 1 less the
defenda-r.t proves the contrary.ii
However as 2lready observed, the Plai ritiff vms the
· sole witl"less 4 l'-;o or..e was sumn,oned from the lViinistry to
ci:yu.e and testify o-n his side:• The author of Exhibit P 7 ·
iri particular .would have .,greatly assisted the Plai·ritiff
1
-s
case. The Pl.:J.iritiff hacl·to estA.b1ish·his claim ol"1 balarx;e
of-Probability.
Like the gentlerr,e11 assessors I fi r>d that the plairitiff
has ;Cailed to prove his claim that the publications iri
Motomoto vrerr? fulse heY1ce defamatory of his character.
Claim dismissed.
Delivered before