MAKORI WASSAGA v JOSHUA MWAIKAMBO AND ANOTHER 1987 TLR 88 (CA)

 

MAKORI WASSAGA v JOSHUA MWAIKAMBO AND ANOTHER 1987 TLR 88 (CA)

Court Court of Appeal of Tanzania - Dar Es Salaam

Judge Omari JJA, Mfalila JJA and Mapigano Ag JA

18 September, 1987 G

Flynote

Tort - Defamation - Libel - Qualified privilege as a defence - Circumstances disallowing the defence.

-Headnote

The appellant was claiming damages against the respondents contending that the latter had written and published libellous statements against him. The trial judge found that one of the statements was defamatory but went on to hold that the occasion afforded the defendants the defence of qualified privilege. The issue on appeal was whether the trial judge erred in so holding.

Held: (i) To offset the defence of qualified privilege it is not sufficient that the statement in question is consistent with the existence of malice, but must be inconsistent with bona B fides and honesty of purpose;

(ii) mere want of reasonable or probable cause is not conclusive to disrupt the defence of qualified privilege because the law first requires that a privilege should be used honestly and not that it should be used carefully;

(iii) Obiter: The Court of Appeal cannot entertain a new ground of appeal if no supplementary record of appeal has been lodged, or no application for leave to amend the memorandum has been made and granted;

(iv) Obiter: A party is bound by his pleadings and can only succeed according to what he has averred in his plaint and proved in evidence; hence he is not allowed to set up a new case.

Case Information

Appeal dismissed. E

Cases referred to.

1. Moore v Canadian Pacific Steamship Co. [1945] 1 All E.R. 128.

Judgment

Mapigano, Ag. J.A., Omar and Mfalila, JJ.A.: This is an appeal from the judgement of the High Court at Dar es Salaam, dismissing a suit brought by the appellant Makori Wassaga against the respondents Joshua Mwaikambo and Hamisi Mpendu and awarding the costs to the respondents.

The appellant was claiming damages against the respondents contending that the respondents had written and published libellous statements against him. The action was founded on a letter, exhibit PI, copies of which the respondents had admittedly sent to the State House and the Anti-Corruption Squad on or about 4/6/85. That letter accused the appellant of having caused his employer, M/S. Building, Hardware and Electrical H Supplies Co. Ltd. - BHESCO for short - to suffer a loss of Shs. 1,290,014/=. The respondents were also employees of BHESCO and at the material time they were holding the posts of Acting General Manager and Security Officer, respectively. The latter alleged that the appellant had acquired three houses, one of which rented, and four motor vehicles some of which commercial. The letter also alleged that the appellant was I operating a clearing and forwarding company. Interestingly, the appellant admitted in his evidence A that he had acquired some of those assets. The letter pointed out that the appellant was a leader (within the meaning attaching to that term by the Leadership Code) and thus implied that he had violated the stipulations of the Leadership Code with which every public servant in Tanzania should be familiar.

It is apposite to state the background to the publication. Sometime in March, 1983, one Okidi, a Shinyanga-based building contractor, went to BHESCO in Dar es Salaam for the purpose of purchasing certain building materials. He was a new customer at that place but I am inclined to believe that he and the appellant had known each other before. C He had a letter of recommendation from the Ministry of Works.

Apparently he had no cash in his hands; he only carried a cheque book and he proposed that he made the purchases by means of cheques drawn on his bank at Shinyanga. The cashiers of BHESCO were reluctant to accede to his proposal, but the appellant prevailed upon D them and he actually made a guaranty for the due acceptance and payment thereof. The appellant was then the Acting Marketing Manager and therefore the cashiers' superior. The total amount on those cheques was Shs. 1,290,014/=. The said Okidi collected the goods from the BHESCO's godown and he was in the company of the appellant when E he did so.

It transpired that Okidi had no sufficient funds in the hands of his bank to cover the cheques. The cheques were therefore dishonored and this naturally gave management of BHESCO great concern. Frantic efforts were made to have Okidi pay the amount. F Those efforts succeeded in part: Okidi paid a sum of Shs. 621,795/20, leaving a balance of Shs. 668,218.80. The appellant was taken to task about the matter. Indeed, his conduct during the sales engendered great suspicion. And subsequently there was an occasion when he snatched the dis-honoured cheques from the accountant of the G company and took them away. When he was required to return them he gave a lie that they had been robbed at Manzese. But when pressure was brought to bear upon him he surrendered the cheques.

The matter was discussed by the Management Committee of the Company and it was resolved and directed that a report be made to the police, and that was done. Thereafter the letter exhibit P1 was written. The name of the addressee did not appear on that letter, but as I stated earlier, copies thereof were sent to the State House and the Anti-Corruption Squad. The letter is divisible into two parts. The first part concerns the I purchase of the goods by Okidi, the dishonouring of his cheques and the involvement of the appellant in the incident. The second part relates to the properties the appellant had allegedly secured and the businesses he was operating.

The learned trial judge, Kazimoto, J., found that the first part of the letter was not defamatory of the appellant; but he held, in effect, that the second part was, innuendo-wise, and for myself I consider that the judge was right. The judge then considered the defence of qualified privilege that had been set up and he took the view that the occasion afforded the respondents that defence. It has been argued on behalf of the appellant that the judge was wrong. With respect, we disagree. On the evidence on record I consider that the judge was entitled to hold as he did.

The next question that passed was whether the respondents were motivated by malice in publishing that letter to the State House and the Anti-Corruption Squad, and I do not have to point out that the onus was upon the appellant to prove malice on a  preponderance of evidence. The respondents contended that they were actuated by a sense of duty and not malice, and the learned judge seemed to accept that contention.

Mr Maira, learned counsel for the appellant, has argued that the respondents must have E been acting out of sheer personal spite, because he said, (a) it was not established that the appellant owned all the assets mentioned in the letter and; (b) the matter regarding the dishonored cheques had been reported to the Management Committee and the police.

That is a ponderable point. However, malice, in the strict legal use of that term, is not identical with personal spite, it means wrong or improper motive, and in relation to the defence of qualified privilege the mere want or reasonable or problem cause is by no means conclusive. That is so because the law just requires that a privilege should be used honestly and not that it should be used carefully. Counsel is referred to

Moore v Canadian Pacific S.S. Co. [1945] 1 All E.R. 128, 133. And it is not sufficient that the statement in question is consistent with the existence of malice, it must be inconsistent with bonafides and honesty of purpose. Mr Maira has also drawn our attention to the fact that the letter was published to P.W.6 H David Jacob who admittedly had no corresponding interest or duty to receive it. The story narrated by P.W.6 as to how he came to be possessed of a copy of the letter, which account was vehemently disputed by the respondents, strains belief considerably, I to put it mildly. But I really do not want to go into this matter in any detail, because, in my opinion, the publication of that letter to P.W.6 cannot be entertained by this Court, as a matter of law. For these reasons; one, it was not alleged in the plaint; two, it was never canvassed in the court below; and three, it is not raised in the memorandum of appeal. In general, and this is I think elementary, party is bound by his pleadings and can only succeed according to what he has averred in his plaint and proved in evidence; he is not permitted to set up a new case. And in reference to appeals, it is also trite to observe that this Court cannot entertain a new ground of appeal if no supplementary record of appeal has been lodged or no application for leave to amend the memorandum has been made and granted.

For the reasons I have stated I would dismiss this appeal and grant costs to the respondents. As the other Members of the Court agree, it is so ordered.

 Appeal dismissed.

1987 TLR p92