Tort Case of Defamation
Tort Case of Defamation
Tort Case of Defamation
AT MWANZA
VERSUS
JUDGMENT
TIGANGA, J.
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7.1
Aggrieved by the decision, the appellant appealed before this court
against the decision. In such effort he filed this appeal against the
decision of the District Court of Sengerema advancing four grounds of
appeal as follows;
2. That the trial magistrate erred in law and fact to demand receipt
4. That the trial magistrate erred in law and fact to overlook a fact
that evidence by the appellant's side proved general damages on
the part of the respondents.
The respondents were physically served but they did not appear.
However this court made an order that they be served by publication in
Mwananchi News Paper of 15/01/2020 yet still they did not appear,
consequently the appeal was ordered to be heard ex parte.
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convicted committed the offence. According to him, as the respondents
® were found guilty and convicted that is a conclusive proof that they were
responsible for the allegation.
That the appellant was seeking for damages for defamation of the
word uttered that "tapeli mkubwa anajimilikisha ardhi" the statement
which was not true and lowered the reputation of the appellant.
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defamatory words of the defendant, yet still the court assessed damages
for the plaintiff.
(a) that, the judgment and decree of the trial court be quashed
and set aside
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(b) that, the appellant to be compensated for loss caused by the
® respondents.
(d) Any other reliefs that this honourable court deems fit and
just to grant.
I entirely agree with the counsel for the appellant that the
provision of section 43A of the Evidence Act (supra) provides that;
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"A final judgement of a court in any criminal proceedings shall,
after the expiry of the time limit for an appeal against that
judgement or after the date of the decision of an appeal in
those proceedings, whichever is the later, be taken as
conclusive evidence that the person convicted or acquitted was
guilty or innocent of the offence to which the judgement
relates."
The obvious question which everyone would ask, when did these
properties appreciate the value from hundredth thousands to tenth
millions. Obviously coming to court in the circumstances one need to
have strong evidence which would controvert the evidence already on
record, which in this case at trial there was no such evidence. That
means the trial magistrate rightly so found when she held that the
appellant failed to prove the claim in compensation.
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That takes me to the second ground of appeal, which complains of
® the trial magistrate's demand of receipt and other documents to prove
the costs, while the respondents demolished the appellant's toilet,
bathroom and one residential room and her restaurant. From the
findings in the first ground of appeal, any one adjudicating matters of
this nature, would ask the plaintiff if he had any extra evidence like the
receipt or any other documents proving the great value other than that
one proved in the criminal case. In the circumstance therefore, it was
proper for the trial magistrates to ask for such a proof. That being the
case then the second ground of appeal also fails for the reasons given
herein after.
I agree that the exhibit Pl proved the criminal offence and that is
not a bar to civil suit, however, as held in respect of the first and second
ground of appeal, the trial magistrate rightly considered the said exhibit
but the exhibit was not conclusive evidence without further evidence, to
prove that the appellant was entitled to damages. The other evidence
which would have entitled the appellant the damage was supposed to
be the evidence of proof that she was earning from the damaged
properties and that, that damage caused her failure to earn. Without
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that evidence the appellant is precluded from complaining. This ground
® also fail for lack of merit.
On the fourth and last ground, that the trial magistrates erred in
law and fact to overlook a fact that evidence by the appellant's side
proved general damages on the part of the respondents. In support of
that ground the counsel for the appellant submitted that, the appellant
proved general damages on the part of the respondents, he submitted
further that the defendant was not only supposed to compensate the
plaintiff for only actual loss, but also for general damages and punitive
damages. He cited the case of Angela Mpanduji vs Ancilla Kilinda
[1985] T.L.R (HC) in which it was held inter alia that, punitive damages
are awarded not only to compensate the plaintiff for actual loss suffered
but also as a punishment to the defendant so that the defendant will not
repeat his act. It was submitted in conclusion that the appellant was not
compensated at all, but she was paid only 615,000/=
I agree with him that the court has a duty to make appropriate
order for compensation where there is enough evidence to do so. In this
case, I have passed through the evidence submitted by the plaintiffs'
witnesses who are basically two, the only statements that I met which
had it been proved would have taken to be defamation was the word
that the respondents said against the appellant that, "tapeli mkubwa
najimilikisha ardhi", which simply meant that the appellant was a
"conman who has been squandering land". There is nowhere, where it
was said that the words in any way injured the reputation of the
appellant to entitle her damage.
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In the tort of defamation at least the followings are the elements
® that the plaintiff must prove before he is entitled to damages. He must
prove four elements.
(i) First, the plaintiff must prove that the defendant made a
false and defamatory statement concerning the plaintiff.
(ii) Second, the plaintiff must prove that the defendant made
an unprivileged publication to a third party.
(iii) Third, the plaintiff must prove that the publisher acted at
least negligently in publishing the communication.
(iv) Four, that in some cases the plaintiff must prove special
damages.
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aa
(iv) Where they impute unchastity or adultery to a woman or
e girl.
In this case the evidence brought by the appellant has not proved
that the case was falling in one of the exceptions mentioned above,
neither has it proved any damage that the plaintiff suffered, to entitle
him the award of damage. That being the case, the fourth ground of
appeal also fails, it was then justified for the trial magistrate to hold that
the case was not proved as required by law. That said, the whole appeal
crumbles, for the reasons given.
It is so ordered.
-»a:
J. C. Tiganga
Judge
13/07/2020
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J. C. Tiganga
Judge
13/07/2020
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