A Samatta JK: This is an action for damages for defamation. In his plaint the plaintiff, Rev Christopher Mtikila, avers, inter alia, that the second defendant, Mr Augustine Lyatonga Mrema, maliciously uttered defamatory words to the first defendant, the Editor of `Business Times', a B newspaper circulating in Tanzania and beyond, the substance of which was that the plaintiff was plotting to kidnap him (the second defendant) using foreign mercenaries. The second defendant is the Minister of Home Affairs in the Government of the United Republic of Tanzania. The plaintiff C further alleges in the plaint that on 18 October 1991, the first defendant maliciously and without just cause published in his newspaper these words. He is claiming from both defendants, among other things, damages in the sum of Shs 250 million.
D When, on 10 April 1992, the case was called, Mr Werema, appearing for the second defendant, raised a preliminary point of law. I hope I am not misrepresenting or failing to do justice to the learned State Attorney if I seek to summarise his contentions as follows: since the alleged defamatory words, if they were at all uttered, must have been made in the course of discharging his ministerial duties, E the second defendant cannot in law be sued in his personal capacity. According to counsel, the only option open to the plaintiff in this case is to sue the Government of the United Republic after seeking and obtaining the necessary consent of the Minister responsible for legal affairs, under the provisions of s 6 of the Government Proceedings Act 1967. The second defendant can be sued in his personal F capacity in this case only if, to use Mr Werema's own words, the Government has abandoned him, the second defendant. Counsel hastened to add that no such abandonment has taken place. The plaintiff, who appeared in person, contended; citing several authorities, that, as a citizen he has a right in law to sue in tort a person, who is a State Minister, in his personal capacity and that that right G is not qualified.
There can be no doubt that Mr Werema's argument raises a point of considerable interest. Before I proceed further, however, I should, I think, quote s 6 of the Government Proceedings Act 1967, as H amended by the Government Proceedings (Amendment) Act 1974, heavily relied upon by Mr Werema in his not uninteresting argument. The section reads:
`6. Notwithstanding any other provision of this Act, no civil proceedings may be instituted against the Government I without the previous consent in writing of the Minister:
Provided that no such consent shall be necessary for the making of the Government a party to any interpleader A proceedings.' (The term `Minister' is defined in s 2(1) of the Act as meaning the Minister responsible for legal affairs.)'
I wish to make it perfectly clear that in dealing with the preliminary point, I assume, without deciding, two things: B
1. The Government Proceedings Act (hereinafter referred to as `the Act') is, insofar as it purports to restrict the right of a person to sue the Government, constitutional, that is to say, C it does not offend any of the provisions of the Constitution of the United Republic of 1977 as amended (hereinafter referred to as `the Constitution').
2. Mr Werema, who is employed as a State Attorney in the Attorney-General's Chambers, is entitled in law to represent the second defendant in this case. D
Having made those assumptions, I proceed now to consider the merits or otherwise of the preliminary point.
The doctrine of vicarious liability, whereby the master or principal is liable for tortious acts or E omissions of his servant or agent, committed in the course of the servant's or agent's employment or agency, being part of the common law, is undoubtedly, part of the law of this country. What is the policy underlying that doctrine?
Although there is no unanimity among legal scholars and judicial authorities as regards the right F answer to that question, I confess that I am greatly attracted, if I may respectfully say so, by the answer which Lord Denning MR gives to that question in Lanchbury and Others v Morgens and Others (1).
The Master of the Rolls poses the question and proceeds to answer it. It would be presumptuous on G my part to attempt to improve on his language. He says at 606:
`What is the basis of this doctrine of vicarious liability? To answer it, I would first ask: what does "vicarious" mean? I turn to the Shorter Oxford English Dictionary, 3rd ed (1944), Vol II. It means one "that takes or supplies the place of H another . . ." So vicarious liability means that one person takes the place of another so far as liability is concerned. Familiar instances are where the master shoulders the lability of his servant; or the principal shoulders the liability of his agent; and so forth. Whenever the law imposes vicarious liability, it does so for reasons of social policy - reasons which commend I
A themselves to the people at large. If a servant injures another by his negligence, his master should make good the loss. It does not matter whether the servant or agent is acting for the benefit of his master or principal, or not. Suffice it that the master or principal has put him in a position where he may do injury to another; and should be liable for B the way in which he conducts himself therein. It is true that the master or principal is not personally at fault. But it is only that he should be made vicariously liable. Otherwise it would mean that the injured person would get no redress: for, more often than not, the servant or agent has not the means to pay: whereas the master or principal has the means: or, at any rate, ought to insure against the liability so as to get the means to pay. In this way the C innocent victim is not left to bear the whole loss himself. It is distributed amongst the community in a way that is fair to all.'
It seems clear from this passage that the master or principal and his servant or agent are in law joint D tortfeasors. Either or both of them can be sued, for, the liability of the master or principal depends on the liability of the servant or agent. The proposition that the doctrine of vicarious liability does not transfer the principal liability of the servant or agent to the master or principal is amply supported by authorities. In Stephen's Commentaries on the Laws of England, 21st ed, Vol II, there is the following E passage at 445:
`. . . the liability of the superior for the tortious acts of his subordinate in no way exempts the latter from personal liability to the party injured. The question is not: "which is liable?" but "Are both liable?". In many cases, of course, F the liability of the subordinate is of little practical value; because he is, in popular language, `not worth powder and shot'. But this is by no means always true.'
G In Halsburys Laws of England, 3rd ed, Vol 25, at 546, the learned authors deal with the question concerning the liability of the servant as follows:
`A servant who commits a tort is, as a general rule, liable in damages to the person injured thereby, and his liability H is not affected by the existence of a contract of service, or, where he commits the tort in the course of his employment and within the scope of his authority, by the existence of the corresponding liability of his master for the same tort, since he is the actual tort easer.'
I The learned authors of Halsburys Laws of England, 3rd ed, vol
37, deal with the point in two passages at 135 and 136. The passage at the former page reads: A
`The person who actually commits a tort is in general liable although in committing it he is acting as servant of another person, and although he has no reason to know or suspect that the act is wrongful, unless the act is incapable of being regarded as a tort in the absence of actual or imputed knowledge.' B
and that on 136 reads as follows:
`Each of two or more joint tortfeasors is liable for the entire damage resulting from the tort, subject to any C contributory responsibility of the injured persons. Persons are liable as joint tortfeasors where the act giving rise to the tort is a joint act done in pursuance of a common purpose. In particular joint liability arises where an agent, including a servant, commits a tort whilst acting within the scope of his authority. In such cases agents are jointly D liable with their principals for the consequences of their torts.'
In Young v Edward Box & Co, Ltd (2) Denning LJ examined briefly the legal position of the servant or agent where the doctrine of vicarious liability is sought to be brought into play. He said at 793: E
`In every case where it is sought to make a master liable for the conduct of his servant the first question is to see whether the servant was liable. If the answer is yes, the second question is to see whether the employer must shoulder the servant's liability.' F
To return home, as eventually one must, I should, I think, quote what I ventured to say about twelve years ago in Moris A Sasawata v Matias Maleko (3) and, later, quote what the Court of Appeal said G in I G Lazaro v Josephine Ngomera (4). In Sasawata's case I said, at 160:
`I have always understood it to be the law of this country that, as a general rule, the actual perpetrator of an act which in law turns out to be a tort is personally liable for damages irrespective of on whose behalf or for whose benefit he did the act and irrespective of the fact that he gained nothing personally. That law is, I think, in harmony with H common sense.'
As I shall, I hope, presently sufficiently demonstrate, I am bound to adhere to those words. In Lazaro's case (supra) the appellant was I
A aggrieved by a decision of this Court (Mroso J) whereby a decision of the Resident Magistrate's Court of Mbeya awarding the respondent, a woman constable, damages for defamation against the appellant, who was a Regional Police Commander at the material time, for calling the former at a parade a prostitute. The suit was filed against the appellant in his personal capacity. In the Court of B Appeal it was contended on behalf of the appellant, relying on s 3(4) of the Act, that, the appellant could not be sued in his private capacity as he was acting in his official capacity at the time in question. The Court rejected that argument. Mustafa JA, in whose judgment the other members of C the Court concurred, said, at 2 of the cyclostyled judgment:
`With respect, I am astounded by this contention. Section 3(4) of the Act 16 of 1967 merely renders the Government civilly liable vicariously for acts done by its servants in the course of their official duties. In matters of tort, a tortfeasor, D the person who commits a tort, is always primarily liable. An employer is vicariously liable if his servant commits a tort in the course and within the scope of his employment. That does not absolve the liability of the servant for the tort committed. It only means that the employer is also liable as the tort was committed when the servant was supposed E to be acting in place of or for the employer whose act it becomes.'
To distinguish this case from the case now before me requires, in my respectful opinion, the labours of Sisyphus and the sophistry of a Roman jurist. Mr Werema sought to meet the impact of that case F by contending that in that case, unlike in the instant case the Government had `abandoned' the appellant by refusing to grant its consent to be sued. With profoundest respect, I can see nothing in the judgment of Mustafa JA, which suggests, even remotely, that the said abandonment played some G part in the outcome of the appeal. On the contrary, it seems patently clear from the passage I have quoted that it was the opinion of the Court that the ability of a victim of a tort to sue the Government does not confer immunity from suit on the servant or agent of the Government who actually H committed the tort. In other words, whether or not the victim succeeds to secure the consent of the Government to sue it, his right to sue its servant or agent is in no way affected.
Mr Werema also sought to rely on Lucas Matafu v Hon M M Songambele (5) in his gallant attempt to persuade me to hold that the plaintiff's action against the second defendant is incompetent in law. In I my settled opinion, that case is no authority for the proposi-
tion which the learned advocate has advanced in the instant case. That case was an application for A an order directing the respondent to re-open the appellant's bar which the respondent had ordered, in his capacity as a Regional Commissioner, to be closed. The respondent was cited in his personal capacity. Mfalila C (as he then was) held that was an error in law. He said, at 45: B
`The third difficulty relates to the competency of this application. I take it that for the purpose of the Government Suits Ordinance Cap 5 this application is a suit. It is alleged in the affidavit that the respondent Songambele closed the applicant's Bar and tenantable premises. I cannot imagine how the respondent could have done this in his personal capacity. He must have used his authority as a Government Officer to effect whatever he did so that the final C responsibility lay with the Government. For instance if indeed the respondent closed these two premises, and he were either transferred or removed from office tomorrow, he would not as Songambele have the authority to re-open them even if he wanted or was ordered to. These premises were therefore closed by orders of the Government and D if any redress is needed it must be sought against the Government. The procedure for getting civil remedies against the Government is provided in the Government Suits Ordinance, and this must be complied with before this Court can assume jurisdiction. Since this was not done, this Court has no power to make any order against the E Government.'
The application was dismissed. Clearly, that case is distinguishable from the instant case. In that case the `action' was not grounded in law of torts; the appellant was not seeking damages for F wrongful closure of the bar. What he was seeking was, in effect, an order that the Government allow the bar to re-open. As rightly pointed out by Mfalila J, that order could be issued only against the Government. In any case, if my understanding of Mfalila J's judgment is wrong, that judgment cannot G be followed in view of the existence of a judgment of a higher court holding the contrary. The action in the instant case is grounded in tort, and, for reasons I have given, it is my opinion that it was not necessary in law for the plaintiff to institute proceeding against the Government.
Unless this Court is compelled by a statutory provision which alters the common law principle, it H cannot turn the plaintiff away. Is there any such a provision in our law? To that question I now turn my attention. It is an elementary rule of law that the common law cannot be altered by the legislature except in express terms or by clear implication. In my view, there is no provision in the Act (the I Government Proceedings Act) or in any other legislation - includ-
A ing the Constitution - which expressly or by necessary implication takes away the right of a citizen or other person enjoying the protection of the law of this country to sue a Government's servant or agent who, in the course of his official duties, has allegedly committed a tort against him. Section 6 of the Act was not, in my settled opinion, intended to, and did not cause such a change in B the law. I take leave to express some doubt, with respect, whether if such a provision existed it would pass the test of constitutionality. As the law currently stands, there is no legislation which confers immunity, qualified or otherwise, upon ministers or public officials from being sued in their C personal or private capacities for torts alleged to have been committed by then in the course of their official duties. It should be distinctly understood that a suit in tort against a person who happens to be a minister or public official is not in law bad if the alleged tort was committed in the course of his D official duties, a suit against the Government. One does not, in such a suit, require the consent of the Government (the Minister responsible for legal affairs) to institute the proceedings. Save as provided in law, a person cannot be a tortfeasor and yet not be liable to a suit. Neither under the Constitution nor under any other law do ministers enjoy exemption from civil proceedings. Like in the case of E private persons, vicarious responsibility and initial liability are two different branches of liability. Apart from any legislative enactment, there is a right of access to the courts of law in every citizen and in every stranger within the country. That right is a fundamental one: it is jealously guarded by courts.
F In spite of his very strenuous argument, Mr Werema has not come within miles of persuading me that there is merit in that argument. It is my view in this case that the plaintiff is, for reasons I have endeavoured to express, entitled in law to sue the second defendant in his (the second defendant's) private capacity.
G It is tempting to part with the case there, but I think it proper to say this: the question whether the alleged publication is defamatory and whether the defendants are liable as allowed or at all is a matter which will be decided by the Trial Court. What I was concerned with in this ruling was solely H whether in this case the plaintiff is precluded by law from suing the second defendant in his personal or private capacity. That is the question which I have endeavoured to answer in this ruling.
I The preliminary point fails and is consequently rejected with costs.
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