Court name
High Court of Tanzania

K. Hassani vs Kithuku & Chali () [1983] TZHC 34 (22 August 1983);

Law report citations
1985 TLR 212 (TZHC)
Media neutral citation
[1983] TZHC 34

Sisya, J.:  This is an action for slander.  It has been brought by the plaintiff, Karoyo Hassani, but prosecuted by his son, Juma Kumba, to whom he has donated a power of attorney on the I

grounds of his own old age, ill health and personal discomfort of attending the Court. A
The plaint is, to say the least, crude and home made.  At most it could be the work of some aspiring bush lawyer.  The donee of the power of attorney, i.e. Juma Kumba, himself appears, without being derogatory to him, to be as raw as the plaint.  I chose to B accommodate him and his plaint all the same because his position is, to my mind, a true  representation of the hard facts of our life and  also because the said plaint discloses a cause of action.  I fully subscribe to the view that substantive justice should never be sacrificed for mere technicalities of the procedural law.  The words complained C of and which the first and/or second defendant uttered in relation to the plaintiff were to the effect that he, i.e. the plaintiff, was wizard; he has a two legged pot in his house which turned into snakes and bit people to death; he also has a drum which was made of the genitals of a woman and its drum stick was a male organ;  and that the rice and meat D which he prepared and served guests whenever he celebrated 'Maulid' at his house were actually excrements of goats and meat of baboons, respectively.
Both respondents were duly served with copies of the plaint but they failed and/or neglected to file written statements of defence.  The hearing, therefore, proceeded and/or was conducted ex parte. E
Three witnesses gave evidence on the side of the plaintiff.  These were Juma Kumba (PW1), a neighbour of his,  Msafiri Martin (PW2), and his i.e.  Juma's older brother, Hamisi Kumba (PW3).  Their story is the same and it reveals a somewhat disgusting and absolutely nauseating episode that befell the plaintiff at his own house on 22/8/81.  From F the totality of their evidence it becomes clear  that the first defendant is a native medicineman who claims to  possess occult powers which enable him to spot out and emasculate those who practice witchcraft.  During the relevant period he was moving from village to village, apparently on the invitation of the local residents and/or, to the G very least, with the connivance of  the local village governments.  According to PW3, the second defendant was first accused's companion.
On 22/8/81 during the morning hours the first accused was accompanied by a noisy multitude which was chanting "To Karoyo's!"  The said multitude comprised males and H females, young and aged.  Those in the frontline bore a coffin like  object.  They also carried with them some pails of water.  Msafiri (PW2) saw and heard the crowd as it passed near his house at 6.00 a.m.  He was then cleaning his teeth.  Thinking that there was a funeral he, eventually, decided to  and did follow the crowd.  Juma (PW1) was I then at his father's house with his father, the plaintiff, when he heard and saw the crowd approach.

The evidence of Juma and Msafiri, which stands unopposed, shows that when the crowd A arrived at the plaintiff's house the plaintiff got out of his house.  According to Juma he followed suit because he was worried as he did not know where the 'dead body' was being taken to.  The first defendant then ordered that the 'coffin' should be carried round the plaintiff's house  fourteen times.  This was done and then it was placed at the B plaintiff's door.  At that stage the plaintiff querried as to what it was that they were doing to him.  The first defendant silenced him by telling him to keep quiet, adding that he would see the outcome.  Thereafter, the first defendant told girls who were in the crowd to go inside the house and urinate in the pails.  This they did and then their urine was C sprinkled at every corner in the room as kafara, i.e. for, as first defendant announced, neutralising purposes.  After that the first defendant turned to the plaintiff and began to undress him in public.  The plaintiff asked again as to what wrong he had done.  The first D defendant's response was as at first:  He silenced the plaintiff and added that he would see the outcome.  The first defendant removed the plaintiff's cap, coat, kanzu and shoes.  It seems the first defendant wanted to continue stripping the old man of his complete attire.  According to Hamisi (PW3), who already had had a confrontation with the defendants in another village a few days earlier, he arrived at the plaintiff's house at the time when the latter was resisting having his shirt removed as well.  Although he saw the E local village chairman, one Omari Hassani, and the local militiamen  among the crowd the sight of the plaintiff being harassed by the first defendant embittered him.  Fearing that he may, finally, be forced 'to take the law into his own hands' he left the place immediately and proceeded to the District Headquarters at Muheza and reported the F matter to the District Party and Government officials.
Juma and Msafiri told the Court that after the first defendant had succeeded in having the plaintiff's shoes removed he, i.e. first defendant, then addressed the plaintiff within their hearing, as follows:  'You are finishing Maramba residents.  I will talk about your G wizardry so that the people may know about it well.  The water and urine which the girls spilled in your house is kafara so that whatever you have inside there is neutralised'.  After that the first defendant turned to the crowd and began to announce to them that  there was a pot in the house which contained witchcraft; that there was a second pot H with two edges in the bed room; that the said two edges used to turn into vernomous or deadly snakes which bit people; that there was a small drum in the roof which was made of female genitals; that its drum stick was a penis; and that its purpose was for summoning all witches and wizards.  After his address the first defendant turned to the plaintiff and asked him if he, i.e. first defendant, should take out all these instruments of I witchcraft from the house.  The

plaintiff's reply was to the effect that since his permission had hitherto not been sought A there was no point in doing so at that stage.  He added that the first defendant could proceed to do whatever he wanted to do.  The first defendant said that he would not take the said things out on that day because circumstances were not favourable.  He added that he would do so on the following day. B
Both Juma and Msafiri told the Court that the first defendant also told the plaintiff that the rice which he was preparing and feeding people during Maulid celebrations was no rice at all; it was goats' droppings, and the meat was not beef at all but meat of baboons and hyenas.  According to Msafiri at  this stage he became disgusted and he left and C went away.  He, i.e. Msafiri, told the Court that he used to celebrate Maulid festivals at the house of the plaintiff whom he described as a respectable old man.
Juma (PW1) told the Court that the plaintiff urged that whatever could be done should be done there and then.  The first defendant, however, remained  adamant and insisted D that he would take out the things, presumably for display and consequent destruction, on the morrow at 8.00.  He, i.e. the first defendant, then announced to the crowd to disperse and return on the following day.  Juma went on to tell the Court what happened to the plaintiff later that very evening, in the night, and on the following day.  The said E facts, as also do some of those already narrated here in above, reveal and/or are relevant to the tort of trespass - both to the person and to property - which is not the subject matter, or a part thereof, of this instant proceeding.  I, therefore, do not see the point of recounting them.  Suffice it to say that had he so wished and/or so acted the F plaintiff could have properly brought up a suit for trespass as well in the present suit.
Be it as it may, as aforementioned, this suit was not contested.  The defendants may have left it to their professed occult powers (or was it the girls' urine which was sprinkled in the plaintiff's house?) to neutralise the plaintiff's desire to seek legal redress and/or G protect them from the requisite law suit.  If so then they must be living in a fools' paradise.  As the position stands the evidence on the plaintiff's side remains unchallenged and uncontradicted and I have absolutely no reason whatsoever to disbelieve it.
   I framed out four issues in this case and these are: H
   1.   Did the defendants, jointly or severally, utter the words complained of?
   2.   Are the said words defamatory of the plaintiff?
   3.   If they are, are they actionable per se? I
   4.   To what reliefs are the parties entitled?

On the first issue I am satisfied, and I so find, that the first defendant did utter the words A complained of.  There is, however, no evidence to show that the second defendant was present on 22/8/81 at the plaintiff's house.  Hamisi (PW3) mentioned that he saw him, i.e. second defendant, in the company of the first defendant but that was at Daluni and not Maramba.  The time was also different in that, according to PW3, that was B about five days before the incident at the plantiff's house.  Juma (PW1) also talked of the first accused's companion or student.  He, however, did not mention the name of the second accused.  In the final event I find that the first defendant uttered the said words alone and I find this as a fact. C
Now, turning to the second issue, I entertain no doubt whatsoever in my mind that the words which the first defendant said of the plaintiff and which the latter has complained of are defamatory of the plaintiff.  They are the type of words that are likely to expose the plaintiff to hatred, ridicule or, contempt or calculated to injure him in his social D standing in his community and I find this as a fact.  There can be no doubt that these words were spoken to a crowd of villagers who believe in witchcraft - a scourge of our rural as well as part of the urban communities.  Needless to say, this was done maliciously as the first defendant knew or had  reason to know of the falsity of his words.  In short, I answer the second issue in the affirmative. E
To put it briefly slander is or consists of defamatory matter merely spoken.  Under common law, except in four cases, the plaintiff in an action for slander must prove special damage.  The four exceptional cases are: F
   1.   Where the words impute to the plaintiff the commission of a criminal offence punishable by imprisonment.
   2.   Where they impute to him a contagious or infectious disease.
   3.   Where they are spoken of him as a professional or businessman.
   4.   Where they impute unchastity or adultery to a woman or girl. G
In the instant matter the words impute to the plaintiff  the killing of human beings, of malice aforethought, which is a crime which carries capital punishment.  The words also imputed to the plaintiff the possession of instruments of witchcraft, to wit, the two pots, H the drum made of a female organ and its male-organ drum stick, which is a criminal offence punishable by imprisonment under the Witchcraft Ordinance.  The words that the plaintiff was practising witchcraft on his fellow residents of Maramba and that he had instruments for that purpose in his house will therefore, support an action for slander, Iwithout special damage and I so hold.  This disposes of the third issue.

Finally, I now turn to the issue of the reliefs to which the parties are entitled.  In his plaint A the plaintiff prays for Shs.25,000/= which he does not classify as general or special damages.  The evidence produced does not show that the plaintiff suffered any special damage as a result of the slanderous words.  In Winfield and Jolowicz on Tort, 9th B Edition, at page 249 and 250 the learned authors stated that "where there is no need to prove special damage in defamation, the plaintiff can recover general damages for the injury to his reputation without adducing any evidence that it has in fact been harmed, for the law presumes that some damage will arise in the ordinary course of things.  It is enough that the immediate tendency of the words is to impair his reputation".  This C passages describes the correct position at law on this aspect of the case so tersely that I, with gratitude, adopt it as my own.
Taking into account the fact that the plaintiff was, as described by Msafiri (PW2), a respectable old man who used to celebrate Maulid in accordance with his religious D beliefs and also the number of specific but false and malicious allegations made by the first defendant and, in all the circumstances of the case I am of the considered view that the amount of Shs. 25,000/= as general damages will meet the justice of the case.
In the final result I give judgment for the plaintiff as prayed with regard to the first E defendant.  No case, however, has been made out against the second defendant.  The claim against him is consequently dismissed.  The first defendant will bear the costs of this suit.
F   Judgment for the plaintiff.