IN THE HIGH C0\4.R1t0;,€lF TANZANIAAT DAR ES $.&;~AAM,

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DIMON MOROGORO TOB~tC~PROCESSORS LTD DEFENDANT

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Date of Last order~5/8/2008

Date of Judgment 19/08/2008)':4,~'

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The Plaintiff RAMADH~~~\i;r~~jjv1ALENGO instituted a suit" ~ :,..,1:~~"i·~:·'~': ,.,

against DIMON TANZANIA:. "LTD and its successor DIMON

Defendants, respectively.

According to the last AMENDED PLAINT dated 10/4/2001,

the Plaintiffs claim is for; breacA'9~~~,'i~l?J;lcontract based on failure byLH Il'~ ';~:::~, g

1st Defendant to release the b~1~~ceof the loan (para 11); defamation

through a letter published by the 1st Defendant on 23/4/1997

concerning the plaintiff, (paras ;l4,15,J6 and 17); Loss of earning

~)arising out of the Defendant's actl()n publishing the said letter to

other companies (para 18) and fo~ c~~~ing the arrest of the Plaintiff

and questioning by the Pollee dn 30/4/1997 which was doneJ

"maliciously and without reasonable and probable cause". The Plaintiff has" ",'/;',r,

,I DCh", alOd.tprayed for judgment and decre,e'I~g~rostthe defendant jointly and

1 ,.', rj'(;I '"

severally for general and speCific damages, set out in the amended

plaint together with interest.

i . ;';~J.

The Defandants filed a joint Wntten Statement of Defence to".~/

'\"

the Amended Plaint in which they denied to Plaintiffs claim, except~.. . "1

paragraphs 14 and 15 thereof, which relate to the alleged defamation, '1" , ", 1,1C{,'1

letter, which the Defendants pleaded was truthful and justified.

, .{tJ'rl!;i:~lli\~;',,:The Plaintiff was repr~~entedby Mr. Rweyongeza learned

J Tl; t'l'Yadvocate while Dr. Nguluma'a'dvocate represented the Defendants.

asked PW1 to come back a£t~t;',tw.Q,.wgeksand when he went backTV" ,'ll'~j l''\.. -~ -of. ~_ 1,:,~',,,'~t:,~._~t.\:-,~,

~,._"- - ~ : - ~~}';~t,·;

MZIWANDA told him to go qg~inafter another two weeks but even,., (' "(".' j,(

then PW1 did not get the money. l?W1stated that he decided to sell

his cattle in order to bring more labourers from Kigoma.l •."r;~./. ~-

He said he sold the cattlei:because the disbursement of thel -j \ ;;.

money (from Defendant) had been delayed and he would be late to

do the cultivation. '1

PW1 further stated he~~,oiu§~ttlrorelabourers from Kigoma

and started cultivation. PW1 ~~!Hlh~'~~~Sable to cultivate 16 acres of:' r-I~""j~'·i":'~'_t'

tobacco, 5 acres of maize and 1,acre of groundnuts. He stated that all) /", r ( l~\i

the 27 employees were living at his home and he used to feed them

and they used to cost him about shs. 60,000/= per month for food) .. -,""j

, ' Li I\. 'f

and that he also paid for their medicaR,9n. PW1 further stated that he, ;'~i

" .had agreed with his employees)1t~tpe would pay them after the

tobacco season and each would be paid"shs. 120,000/= .

He said after cultivation follow~d harvesting which started in

February, 1997. He said he cJllt~ya,~~tiP~ly16 acres of tobacco instead

of 20 acres, because by the, ti~~ ..h~t:~~1:(.thelabourers, it was already+ tr/~":I;f~,~_,-! 1

late. PW1 stated that whi1eth~¢Wtivation was going on, he was also~ ~A.~, I

making a follow up on the money ptomised by the company, but he

did not succeed to get the.rpor~X:i,,~;J;.l;~piteof numerous promises.'l~,,\\ ,,' }!)"t~,.J

PW1 further stated that ~~1~t,-1~#~~t~;,tiby an Agricultural Officer

JOHN RANKEN to writetl:f~~~minder to the company and he

produced the letter as Exh. ,PI dab~d:3/1/97. He said although the

balance was Shs. 650,000/= he asked for Tshs. 870,000/= because the

cost of food had gone up. PW1 sqid lte gave the letter to LOUIS the, :: ~ J,.J

Director but Louis told him that they were no longer giving money toL,ft. ,

, "dfarmers. PW1 said after the refusal he contacted another company

STAMCOM (T) Ltd whose director asked PW1 to write a letter. He

produced a copy of the said le~ter as Exh. P2 dated 10/1/97. PW1"! I !,

further stated that in the said, l.e;t~,r.,~~~skedto join STAMCOM (T), ~ ," '~~"~"'"

Ltd as DIMON (Defendan~)h~~J~~~:~t~?provide him with the loan., ."l~';;,'~:,~ '/,'~c~~, ••,:;_':

PW1 said he asked for1;~~\s:1;1000,050/ = and that he informed

STAMCOM (T) Ltd that he h~~rqh:eady obtained Tshs. 700,000/=

from DIMON and also farm in puts worth shs. 1,436,000/= so that

they would be aware he had tak~, ai.~pan. PW1 further stated that,:"? :~'> I

the money was for feeding the lab9~!~rS and also for use on the

farm. He aid he asked STAMCOJ~fit~~;~ettlehis debts with DIMON.• 1 ~~. )

PW1 further stated that his reg;ue~~/o,_~TAMCOMwas not successful

but he did not know why an4r)th~ydid not reply to his letter. PW1I \

said after failing to obtain the second_fa!ming loan from STAMCOM, ' ,\

,l'i',"'','] ,t

(T) Ltd his farming did no~ p;r~f.fft:"~~~(l~lannedbecause some of his

employees went away re~~~~~~f,s6me acres of tobacco being

damaged. He said he harvestt}i5'1~5kg of tobacco and if all the 16

\;:·8 ·,h"

1

acres had been well cUltiva1ie~',l~ewould have harvested 11,OOOkgof

tobacco.'" l,

'~(:'\'> f'l: t .";.(;i, !lilf,·,iil"'., ';;~<;" r;H.,~,~~};}.'1

He said he therefore sU~~~~dJ0sB,'of5,975kg of tobacco valued,{p "

at shs. 3555,000/= as a kilogram/of tobacco was selling at the average~,~/ .. , ,: "

of Tshs. 600 per kg. PW1 said the loss was due to his farm having not

been properly cared for and that h~ ~ailed to properly care for the:' 1 . ,J'.~,,~l. ' 'J,

farm, because some labourers left,and others went to work for other.)""\\'~

people. He said that he also failed, to buy fertilizers and otherir ,~, ,Y".

agricultural inputs because he was not given the loan by STAMCOM

(T) Ltd. He further stat~d Jhat, h~ had no loan agreement withi ~'f/l\ V\

STAMCOM and that it was DIMON WHO DID NOT GIVE HIM"lei'"

mE LOAN .OF Shs.680,O?P~~I~~fttated that after seIling his

tobacco he paid DIMON T~hs't~~t~~~6~£ll=',,~t"'f"i'

f;(J\I'I']>:! ,"" ,i •

He said he sold his tobacco to DIMON and that is when he

repaid their loan. PW1 further stated after repaying the loan he was'i:

left with Tshs. 870,000/= which w1t;sriP't enough for him to do further- \~. ~

cultivation. He said the failure of DIMON to advance the whole loan'1,111 l,,,~\}i,

resulted in his failure to properlY~Clre!for his farm and also failure to

run his life. He said he w~~lNvi~ffi}ihgreat poverty. He said his

inability to continue with f~rining made him suffer a loss of,. -r I~f~

Tshs. 1,117,600/= because hec.anj ~~:110ngerget contracts to supply

tobacco to other companie~; J~j1~~~~r stated that the relationship, ,J~~{~,:: )\' -1}\.~

between him and DIMON d.eJ~n9rated because they suspected him: \ 1

1

of having stolen tobacco.'5~e 'i~ki~l. they wrote letters to other

companies like STAMCOMj t:tT.<::>. INTERBEX, RUBCO and to the\,

Regional Commissioner, the police and~igwa Refugee Centre .. II '\'. IV 'J

He said the letters sta..te4·\\,t.hljS..•.·~Wll·..•.'had diverted his tobacco and'.' ".' '~..fJ~.{.... 'j....T,\ ..t.'.~..•:.:.'1. <C...' ,. .lJ"J,·'t .,~.•\ rl. ~,),~ , ,ir\ ; ..1} l

sold it to T.L.T.C. instead o~.f~)~Jfrgth.~same to DIMON. PWl said

they said PWl was not a gooa~'p~r~onand they should be careful to

deal with him. PWl further stated he wrote a letter to TLTC

thorough the Primary Cooperative Society in the following season,:t' t·

but he did not get a reply. He 'went on to say that he saw the,

Manager of TLTLC Mr.NASSSORO"'who promised to consider his( . H

request but he did not get the IO'!,Il. rW1 said the members of the

public considered him to b~~~11!~i~lwhenthe police came to arrest". {.,

him on 25/4/97.' 1'I .\

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'....'"J .~,?i~~.\;....:, ~'X}I':l~i)dN~~,~·~q. .

He said he received a re.ij~r:tnat:,)<ishiki had come with polIce~Jf.'n~:

officers and the police left instrY-C#9nsthat PWl should report to the

Regional Crimes Officer of Tabora Region. PWl said he reported to

the RCO on 30/4/97 to the police. VY,hohad left the message one

MOSESMWAKYUSA.

Pwl stated that MOSES MWAKYUSA ordered him to squart." ,~~•.. ,~ J.

and take off his shoes ~nl~\:i~tn~p' 'took PWl to his office for'.;:;'1' ~::"" '

interrogation. He said he was'cisked i~.ihehad diverted his tobacco tos""'",

one HAMISI JAHAZI MAHUZI, wmahhe denied. He said he made" t. t \ ; . It),V '1'

'\"'" Of ',.Ii y .•.

a long statement to the pQ,1ice~:Q~fe~~~'lNhotold PWl to wait for the,~~!J~t~·:'tto" t;:j '~':'1~

(,CI.:,t{'f':~\~! '1 'tl"~"10

RCO who showed PW1 the letter frdrHDIMON alleging that he had

diverted tobacco. PW1 producedl:~'toty of the letter dated 23/04/97,I' '. '

as Exh. P3. He said he got the said letter from the police and that it

was copied to the companies Iit';h~a~mentioned earlier .•• >l<

, / ,t.,~. '\, I -'I ".(i',AI-:r ."

PW1 stated that he ~astF,~,}9~:j~fJMceStation from morning till1~',l:1'-t~ri/" i'~H\K{; ,

evening when the Police Off~9,~#;~~1lbWkdthe to leave telling him that

if he was needed he would ;~~"informed. PW1 stated that he had

remained at the Police Station involuntarily and he was not free to go

where he pleased. He stated further that his family got worried and

he became ill and was hospitaliZ;)%~jHe further started that the

information about his being called'~9_~~ePolice Station spread to his. .,,,;

village and to Tabora Town bec,\~\.~e,~~was a famous person as he

had vied for a parliamenta~~~~1ltf~n 1995. PW1 stated that he was

affected by being called a thiefny DI~ON. PW1 went on to say that

DIMON MOROGORO .T.9~'~5D~~·~)tPROCESSORS LTD was

registered after DIMON TAN;iiA,(~i~f\~%~IMITED(1st Defendant) had,~,Jj; ~'J;

established a processing pi~t~t!He said the assets of DIMONI "I"'" >-

TANZANIA LTD were transferred to DIMON MOROGORO

TOBACCO PROCESSORS LTD. PW1 stated that he was claiming, t,

Tshs.3,555,OOO/- from the de{enda,rtts,eeing the loss he suffered from<~11"

failing to attain his farming targff,-ts,i.n~theproduction of tobacco. He.J.. ~t,I ,~.~~'t,

, . ~"

further stated that DIMON breached' the loan agreement, by not~-, ' J.

;._;'\Lr4.

advancing the balance of1;'s~~t]~gei~pO/- for which he was claiming

Tshs.10,OOO,OOO/-. "

He further stated that for:tY\~"'d~~~mationhe was claiming to be,I, '~

paid shs.500,OOO,OOOj- and 'shs.50,POQ:'QOOj- (fifty million) for being, .,it. P(, \f.

detained at the Regional P6liJ~\~§taff6nTabora. PWI further stated he

was claiming Tshs.117,600,OOOj- as cdtnpensation for loss of business

as the result of being callep:c¥t.~\~f:~~d;hence failed to get contracts

from tobacco buying compani~~;i,~ffr~N~therclaimed the sum of Tshs.

3 million as salaries which he paid ,to his employees, interest at court

rate and the costs of the suit.

PWI was cross examined; atf:H~ngth by Dr. Nguluma, the',.,I

Defendants advocate. PWI st,ate~"~.M~~the season for cultivation of

tobacco was between August toef;l4 of,\April.He said he used to pay

his employees once a year. H:~,~t~a~cl~,i~was true that DIMON (T) Ltd

asked him to join them. By joining t~~ll1means to grow tobacco and

sell to DIMON. PWI said a~,.tir~,~1.ftt1~lefusedto join DIMON and

decided to continue withhis:\jE~~~CiliW\\ZooperativeSociety. He said

his Primary Cooperative Soci~.fVas working with TLTC (Tanzania

Leaf Tobacco Company). He stated that the Cooperative Society used

to benefit from TLCT by obtaining agricultural inputs from TLTC

and selling tobacco to TL1~. He :~~~dhe was member of theif',"

cooperative Society and used tOI.~~~~J~~/roQ1it by getting agricultural

inputs and selling his tobacco through the Cooperative Society. He';}r~t ;,~.

said he joined the Cooperatiy~~\e<8.~~$ehiSfinancial means were low.

He said this financial means dfca not ~ow. PWI stated that DIMONj •. I

t

approached him because they were satisfied with his farming. He

said he was asked to join DIMON"pn condition that they would give, \ ,,'\ .~~

him a loan and he would sell tobacC'o to DIMON. PWI said those,:.:~"'1,"1 ii!"~ ,,~-~, t', l

, "<ti ~ ,.Ii" t,:"";:oo.'

terms differed from those of th~ i,'rin¥~,ryCooperative Society as ther' ~I 1"I

Cooperative Society was not.gi~.i,,1,1g)ut loans., He said he joined

DIMON because of the 'l;~~'{(~oney) and he informed the40,)01>' ~: .

Cooperative Society that he was bec?iNfNg an individual farmer. PWI,', . t>~" l,~'''{:l' "

said it was not true that he wds;'fh~1t.jtf~·,\.vhowent to DIMON because'~:i.'i,f.",,::\,;~i.' " ~.'iYql':. '.:I:';~-':

he needed help but it was 'lJIMON .who came to him. He said

STAMCOM did not go to him:!/6'e~ausethey did not know him. PWI

said DIMON knew him because they already had farmers in his area

and when they were going to the1~'~'f,alp1ers they saw his farm. PWI, 1. ..,

further stated in cross examination:-r,x" I

'f ,".. 1.', .\1;·';''',(;:';1;, ·t~

"after Ihad failed t~t,getadditionalloan from. I" (l} i),;cl~;:l'

DIMON Isold mye(i,t:tll?t:~\"'J'1V1

~,,\ 1.•\

At that time Ihad a bal~nq~4~1Fjt~~f~OOO/-from the first installement

of the loan of Tshs. 700,000/-~mrep:d~Ut.ng my cattle I obtained Shs.

350,000/-. After selling my cattle';~;J11entto Kigoma to look for labourers and, 'L

I left other labourers clearing my shamba. They cleared 20 acres. I grew

crops on 16 acres. I had cultivated 16 acres. Before I went to Kigoma 1 had 7I • Y

empolyees. From Kigoma I brought JddifiP~al 10 labourers. I had said that

after I had obtained the loan jrOrJ;l.Ii}f0-0l:J I employed 4 additional

labourers. This was before Iwent t;'fKig8~a. Before I was given money by

DIMON I had 3 labourers and after I obtained money from DIMON I

engaged 4 more, making a total of }?,. ,~:Qur(4) of the labourers left. The'1r! ,1,,'

labourers were being fed by me dnd they'jtved in my home. All of them used

to work together. I told the court th~(T'~~rfltivated 5 acres of maize and one, '1"" ;'ft

acre of groundnuts and maize. Igot.rfJ:e t1Jputs from Dimon T Ltd. I agree~ • ."..~ i. )

with you that my labourers didf~i6hiywork on cultivating tobacco but

also maize and groundnuts. Prom th~,;.,!oan and agricultural inputs I

obtained from Dimon I was abl~t9 pglb~v~te 22 cares of crops. Dimon are,;-, \ ': ' ;1:>,:': i '~-~~'r"'" .,

involved in the cultivation of mai~~:.a,nd'lgr.oundnuts that is why they gavei "~;\

me inputs. If someone says Dim,~~iwere not involved in the farming of;" ,I,

maize and groundnuts I will have nothing to say. I said there was an

Agronomist from Dimon called John who used to visit my shambai , ,I.,/

frequently. He came to inspect work:rin lfrty shamba. He was employed by, [,

" ' •• /01Dimon I can say the Agrol1omisr:was our advisor. I did benefit from

I "'::1", .;j,-. ,.",' ••

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the advice given through Dimon Iwasdlrle to benefit by getting a good

tobacco crop. My 16 acres of tobg9co"4iq not get enough fertilizers. I got a~::i,' '-,:. '." ~" J

, ! /'rW/l,. f'f.J 'good crop but the crop but the JCt:op was smaller than I had expected. I

applied 75 bags of fertilizers which coveriil1 acres. The other acres did not

get fertilizers. Dimon had givelz 'hi~jj~%~~11~~~sand inputs. I needed 90 bags, "J

I, .l,,~e~.c- .' ,1:1,':·(! t?~:'but I got only 75 bags. The fertilizers and(lnputs were required to be applied.,

"i II ': ",to only 11 acres. They were not enough.

I had to get more fertilizer and i,npu.tffrom Dimon. Dimon had to give4t1, i"h

me both money and fertilizers and dgr~p~~tural inputs. In my claim I had

only claimed the failure of Dimon to;p.d,dd~~ethe balance of Tsh.690,000 on7 "Jj

, 'f'<'i

the loan and not on short s'uP~i~~Fo!fertilizers and agricultural inputs

because the dispute had already arisen.

In my experience one ac"e.,or\~obag~!required 6 bags of fertilizers. I

bag cost shs. 16,500/-. If Ihad obtai111#ttf#1,oan cultivation would have gone

on smoothly and employees would nd,t ha~~ run away. In paragraph 6 of the

plaint I have claimed that Ihad applle~fora loan of Tshs. 1,390,000/- from".i:/,i.'j {:

the 1st Defendant. ""1"> i

I would have cultivated 20 ac're~,and I would have obtained a good

crop. I have not told this court" IWs.,/lhH~ll·'I said that I didi not get a good

crop because Dimon did not give~~e e~~~gh fertilizers and inputs. There, 11,//1, ,

was no agreement on the loan 0(tTshs:l,390,OOO/-. Dimon had asked me to

submit a budget and they would advance me money Isaid Dimon first gave

me Tshs.700,OOO/-

/'"

On the expected loan of Tshs.i~39~'~poj-' there was an unpaid balance: P

of Tshs.690,OOO/-. In Exh. PI J ,aske(J Dimon to give me a loan

ofTshs. 870, 000/-. If this addi1l~n~(?,1~~~ requested is added to the

Tshs.700,OOO/- advanced by DIMON, the total sum is tshs.l,570,OOO/-. This"; ,,; j .,'j

sum is bigger than the sum ofShs.1"q~OrP90 referred to in paragraph 6 of• ) {/V1Ze11', 1

the plaint. I agree that Exh. PI hqs (qdifferent sum from the sum referred to,'.','): ,-'

;; I<Jii "tl'tin paragraph 6 of the plaint. thetl~,Mmin Exh. PI is a new budget as a new

:!!:1~'

budget the request had to be reconsidered:' Exh. P.l was written to DIMON

on 3/1/97. Exhibit P.2 is dated 10/1/97. Exh,P2 was written after one week

of the letter to Dimon Exh. Pl. I:am'l1ott~~ only client of DIMON (T) Ltd.""t·,'_' .'

.\ i

'i ~.;}~y;,,....., r'Vt!\~i! i

. . :M,) 1'~;~""i>' 'After wrltmg Exh. P.1 I went 'tq:s.~q.'fhttDirector Louise of Dimon (T) Ltd

.:;; ~- ". '.' ,.~. ~. ,""

with the letter and he told me ';t~~lDimon was not giving out loans to

farmers.

In Exh. P2 I wrote to STANCOM?Jtlying that I had followed up my

loan with Dimon with frequent ren;zi.fJ;tie:~~:without getting a reply. I have

also told this court that the letter I wrote te/'Dimon on 3/1/97 was sent by me

and I got a reply on the same dagL,t.~att};1bloans would be given. I agree that

having got the answer from Dimon on the same day there was nothing for,.

me to make a follow-up on. In Ex~. P1l,q~~~d for a loan ofTshs.870,OOO/-." j -.,.:' '." / ". :.~

~,,:\/',,>ti/l

I . .,.", ..... '."." <") l·,~ \' t'~ J;~,t~1

. /,SP~~ ".In Exh. P2 which I wr,f:itei) week later I asked for a loan of

t'/fl'(' { .•Tshs.1,050,OOO/- I had a budget. The budget changed according to the period

of delay. In Exh. P1 I told Dimon that I had already grown tobacco on 11

acres and 6 acres were awaiting to be,1?la1;l,t~d.In paragraph 9 of the plaint I, .' ·1···'"j ',,' \J, i"., •.!",'

had stated that I had grown tobacco on16 acres. The 11 acres I had already

applied fertilizers that is why I statJ~ti~;'~xh. P2 that I had grown tobacco

on 11 acress. It is true that when.the 1s~.·.·defe..ndant refused to grant me a loan, .,' , . ~i . .. 'I} "-'T

pursuant to Exh. P1 I had cuitiv&tkd 11 acress of tobacco. In paragraph 9 I11d, ~

have stated that I had cultivated 20 acres and planted 16 acres. Thesej i j,I'fi\,J

additional acres I planted after ['had .b¢¢nrefused the loan. STANCOM did;:'.:"7'" ,j

not reply to my letter Exh. PZ.

Ii"

In Exh. P2 I had stated in paragraph 2 that I expected to harvest kg.

14,000 valued @ shs.600/- per kg. I also listed in Exh. P2 what needed to be(

'.le"re

~. l',\,;.h, 1

done to complete my farrningrJ4ufreWfeJ1M~I did not tell STANCOM that I'.. ", c. .; Ie:.: •..•.'...'.,·:'.

needed money to plaint tobacco on,."th'e '4 remaining acres out of the 20 acres.~:,:;») (

which had been cultivated. There is c no where in Exh. P2 that I asked\'\

STANCOM for fertilizers or for agricultural inputs for my farm.

~< j'

In paragraph 8 of my plaint J'hav~:"stated that the failure to advancei) ,

the balance of the loan made it imp;pssible for me to plant the remaining

acres, to buy agricultural inputs andJertilizers. I did not ask STANCOM

for fertilizers or agricultural inpyts: The agricultural inputs would have7(frL '

been given as a matter of course.

, (n[trL+YtIHlls~:'If STANCOM agreed to advancem~,the money they would also give

in',,!!!me agricultural inputs. The m'€me!{I, asked for was also for operational use.

'rr! ' ,It is true that in paragraph 10 of 'the plaint I have stated that the failure to

get tshs.690,000j- from Dimon led to my inability to get fertilizers and

pesticides. I have not lied when I §tated::,that I would have been given'" J; ':J

'\L, .,••:.J'!

fertilizers and other agricultural inputs after the loan of money.,P,l':',:,it,k "

l:; . ~

I did not lie when I said in paragraph 10 of the plaint that I failed to"NY' "'••" I,

get fertilizers and agricultural itz~uts. 'In cooperatives farmers used to get

fertilizers and agricultural inputs. With the companies a farmer got

fertilizers and agricultural inpt#Rdlm#/!q~$~ given money for operationalI ["1fo' 11"r;:', Iii'" J

" . (.,~ '" . ~",(1' I,

cOStS"fl'U; i

tel,"";

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The cross examination gf'ipW by Dr. Nguluma took tow days.'i 1"1

On the second day of the cross exaD,1~ll~tion.PWl stated as follows:-

Iwas interrogated by thli,~pll'¢~ on suspicion that Ihad sold tobacco to

TLTC instead of Dimon. Iwas arf£sfed "by the police. Idid not sell tobacco to

TLTC. I sold tobacco to Dimon and discharged my debts. It is Dimon who

reported the suspicion to the police a,~d L.have this letter to prove it. I sold

tobacco to Dimon in June 1997. the leiter;;pj"complaint from Dimon to Polcie

is dated 23/4/97. It is not true that r:~olcht'obacco to Dimon after I had been

pressurized by the report made by Dimont,() the Police. I sold my tobacco to, ... " .••. ; "

Dimon voluntarily according tott~; t.erms of our agreement. Prior to 1997., ,

there were no companies which coullf.r!1~ave loaned the money. Such) "".t~ i ~,,' j

companies did not exist in the ltN,~~~~i!;~~f1lingwith small farmers. Suchf ... :.,'" .,.-'

companies were present in 1997.:npYcoMpahy other that Dimon has given}. J:;;

'i.;'J',V',d:me loans. I did not approach dtl1~r companies because I had an agreement

,oj·"" . j

J "J"'/'" 1) L-:

with Dimon. It was an agreement underwhich Dimon advanced loans and I

sold to them tobacco. It was an oral agreement under which I prepared a• • "f, I, /./1. .

budget and presented It to DImon, and' thi;.ypazd me. It IS not true that therei lj ;';t\:{'

was no such agreement between me a~d·'Dimon. It is not true that I just, r;;;::/"ii

wrote a letter for assistance and Dimon gave me assistance. Istarted to be aj , ~"). ~,

large scale farmer since 1984 I d~!J0t have a recollection of my income each";W,,

year. It is a long time. I cannot obtdzn a record of such income. I do not have. J

,J.i,{'~ •

a record of the acrage of my farm from 198Jlo 1997. I called myself a large-", i "h ",J, '(

, ;, V "id " , " ,·~,P) :1' L:,I ~<':,scale farmer because Iwas culti'lf4U1t~i;,'ffl!:~'tryacres. Many acres are from 10

'" (rl"" '\"1\"'1')(':~ ,-."t. '."' - 'I,

acres to 20 acres. Before I wa~;~~It.it1;rledmy annual income was between 4Ie:' c

) ~,-!

.' II ;' 'h. I, 't i

million and 5 million shillings. It~~d,thbability to earn such income without).

obtaining loans. Dimon loaned me rYlO1Ji-ffQrjust one year. The agreementi ,,' ··"f -

was for that year. In paragl1appj~:t~F1rij;ut~~Plaint, I have claimed loss of

income because after obtaining 1l}8~~;.~Y'fa~ming was expected to expand. I",:' Fr'

expected to earn Tshs.B million!',evkry ,year from tobacco farming for 14

years. That is how I arrived at Tshs.177,600,OOOj- stated in my plaint. My

farming depended on rain. Earnings, from; farming do fluctuate depending,rl' .

on availability of rain. The Bmillion ."shillings per year are minimum

earnings. I could have earned more; ItiisyflOt true that ally my claims are

fictitious. They are true claims. The letter was defamatory because it claimed

that I was not a person who couid;b~ ~~uJ;ed. It is not true that I was not aJI c, •

11~r'trust worthy person. It is not true that t~re are farmers whom I persuaded

~, ~".•..." Ycto sell their tobacco to companiesother,th(l1,1,'Dimon. After defaming me it is

true that I announced that 13im~k:~~f!,~~ a suitable Company. It is true

that Dimon defamed me and as lfiPj~~sul~ I failed to obtain loans from other:e,' i

tobacco companies. The refusal' to ladvance me money and also the

defamation by Dimon both annoyed me. It is true that I wrote a letter to1. &

Dimon to remind them of the requetltlfor,lbans. Prior to this letter I went to'. ";"\},<I.

them personally to pursue the loan requestiuhich had been made verbally.illS'

The letter by Dimon to the, Pol.iq¢ was sent close to the tobacco buying. 1 I . ,,' ,'. i (.,v·! 'tT,! ,

season. My request for loans was(mnde during the farming season. The letter' .."

prevented me from obtaining loans, ilJ su\bsequent seasons. STANCOM"~ . "}n'rlf'

refused me loans. It is true .t.na~)(fi~~~~Wufletter to STANCOM on 10th

U"1'I('~..n(l~January 1997. The letter to sr:A.~YJpM was for that season only. The letter

''q' ~!rr", 1-" ,,~:;,

l

~ ;' ,'r):j

from Dimon to Police was in April.}?97. the letter would affect loans in, ",:(.. ,:):;>

other seasons. I wrote a letter J&~,{$;TANCOM after failing to obtain a loan"fiU; . ' +

from Dimon. I did so to completemy tobapco farming for that season. I recall, ," lfi

to have written a letter to Dimonremi1fJdtir,zg them of my loan in July 1997., , l'~ .,J, 1 i'''I~i':'Ihi, L

. .. ,\~,frf·~Cf~~:~"':l~..r~:f:f~r!.. . .thIS was after a reconcllzatlOn,ii~rf0r!~:ftfJe DIstrIct CommIsSIOner. The

reconciliation was on the misit:njfl/#~}.anding between me and Dimon. After~J ,

the reconciliation I wrote the lette; in July 1997 but Dimon did not give me

the loan. If they had given me the' loan there would not have been any

problems. I have copies of the lett~tt? t9:show that the letter written by

Dimon to the Police reached same of those to who is was copied. Some of

those companies to whom the letter was copied verbally refused me loans. I;'

did not get any communication in.wr:itingjrom those companies., 'yt, ••i("

,

.1-After the lengthy cross eXaJ;ninatf~n PW1 was re-examined by

I!1I~,1.,,'n.Mr Rweyongeza ""(,',.JIlt, ',',i,:,!'","',},',','• • '.r' .,,:,\ ' .. "; ,.,)'.'.t'.'.~l.~:· ..

r " h;iiv; 'f"ift '~ ,<:l~":J';"'" /

V} ;iJlr;'~t,PW2 was MICHAEL KISMIKl vyho told this court that he was a

, ~ ,;'J'

farmer but previously, he used to work for JAMBO FREIGHT and for

Dimon. He said he worked for Dimon in Tabora between 1996 and:'0 ,()' if,

1997 when he decided to leave his}employment with Dimon. PW2," f)" ,.'

said, he knew PW1 since 1996.,In~i,s.O,~n words he stated:

, ,iti,,1-1"I came to kn~~'PV\&'1~/Whenwe were looking

. r ,~:»"l .

for big tobacco farmrer~i' {1.j;tqtrat time I was a

FIELD OFFICER UlQtkiH~":iJJ,U~Dimon. We went~~;()i~,l::j;I! "\(1it

J 1"1

'l:;"~t,·" ,j,

i .

to Kigwa where therew~r.~ SR1J1eof our big tobaccoI ",: 'j"' {,~

farmers. There we met our 'Bibi Shamba whoseJ {J" .

name I do not reJtlr;Wlo.er;~ipiShamba told us there

was a big tobacco jd::i:zer bur,fo.n that day the big

farmer was in r:a,b,?~tt.:~~;~'tfnt to look for himand when we found:t~isi;'b'igftil;rmer, we asked him

to come to our o!fiaed:'io>$eethe Director to arrangel'

to join our company. He tame and that person

reached an agreement with the Director and the

Director told him to bring 'his estimates. The

farmer brought his estimateS'.:Jh the Director. Thel'f." ,~"~ •

Director was Carmelius'i Mdhlndi. I was presenti

when the estimates were lhrought. The big farmer I

am speaking about:~J;~pvfjt"" ; visited the farm of

PW1. It had 13 ;;;dbeds¥at growing Tobacco

seedlings and 8 bar1).~'ff~~f~11!kgTobacco and he" I',' 'J" ",

'I' ','il,,'I', q,:",'.i,} "I~{",,J":~- "i _'''.'. _~. -', .I,~::'f;if

had prepared 18 acr~$l.'LTHe;·estimates were of the

amount of money"~~ic~i 1?W1 needed for his farm, ' ~. I y~

activities. If I remember correctly the estimates

were about shs.1,300,OOO/=., After the estimates"'r r 'I.I, ,,) r,

were brought the Directpr agr~ed to give PW1 half1- . _ " :"- ~

l'S;', (

of the estimated costs~:an~)the remaining half',;' ,I, dli

would be brought l{lter".

PW2 went on to say that after Py,Y1got half of the loan he was;. 't ",'

In .'not involved in following up on thep~lJzation of the money.

PW2 stated further that P\Nj1 did not get the remaining half.

,., ... ,

He said he remembered to h~V~diet PW1 at the office complaining

and one Director called MZIWANDk.gave PW1 shs.50,OOO/ = of his

own money. PW2 said he leftiP1nl~~'~~)May1997.

Upon cross examinatioI);sBY'~Dr.';:.NgulumaPW2 stated that at

Dimon he was in a department\.vhich dealt with farmers but did not

know the name of the department. He further stated that the job wasI., \',

to look for farmers and to superVis~/·warkets (kusimamia masoko).,\19,1

i, ".t,,:i'( •.. :2:, ..-"He said he had no expertise but 'followed assignments given by his

. /.',,- ,j -to

office. He said he was not la.:;fatp:ler;andwas not an agricultural'\'\'1 .(\i':; f~;("I, ,,~.

officer or the Directors clerk. He furt~1~ stated he was not preparing

~;I ;'-')1, <: ; ',~ 't

agreements or drafting letterslolr::+p1't:!"p~ingdocuments as a Director.f.;.: ~ >"L i,r;'j "h"-/-~,"

J.,.J}\ ~f, . 1,He said he had an office in t~ec6mpany building and his office was

• ; 1 I

that of a field officer and there were many field officers. PW1 said he

had been asked by the Director to atteI\d the discussion with PW1 butI.: " >

\ n·"he said he was not involve'a l~ fi.ti~cial matters. He said the

discussion was verbal. He further stated he had not measured PW1'st"

, 1'., I, ' '. '~I,:,!"~,\,l/;

farm but knew the size by looking at!iltb~

PW3 ERICK MKEMWA told the court that he was a retiredI,k, :)~~':~ \>_~l

Supervisory Magistrate turrie~lifarmer and that he lived in Tabora in, I.,

"

Kigwa Village. He said he kne~ PWlsince 1984. He said he went to, ., ',A ,,\,., I!.'lll,'l.'tl'~,,'.,''',l''" ,t", >'1" " •.., r' ~,.j"'i'

Kigwa in 1983and PW1 came td:Ktgw~rin 1984where he stayed until. (1

1998/99 season. PW3 stated PW1 was a Tobacco farmer and that he

had cultivated 16 acres and that in 199,6,there were companies which~ fjffi \~

came up to give loans to farmers ~and}~eremembered one company

l•..•· i-'which came up was Dimon.::,pW3 stated further that he came to

';ii, ','(lif "

know Dimon from its Area Ma'nage~.;who came to his farm. PW3• ':, r '~\i: ,t, '0,

said he did not remember the,ooI\dJit!ij~i:lsgiven by Dimon in order to

I ~c;·t.\. 1 '-'1.;

be assisted by that company~' PW3 stated further that:

"what I know is that if a farmer needed

fertilizers he prepared' hi~ 'tequirements. Thec: }~J

~, 'fiN' \:company used to give far:rh."inputs and money on

• \rj', }\j

loan basis. The loan wa~,~eing given on condition"\/~v'J~) ;'~,~

~ I \\} i: J" . tfi~!t*~'}~

""1 ,Of selling crops to the com'plmy. Myself I met the

Area Manager and I obtain~d a loan and I sold

crops to Dimon. PW1 alsp~ttf~etDimon who gave

him a loan of money andJerhHzers. PW1 got half,.",., t.

of the money PW3,wa$'\bn:'{0 state that in 1996

PW1 had very good ptospecff$because the previous

year he had been cUltivit~i11l8':;''UPto 7 acres but',-' -,

when he obtained J1t~\lo~n he was able to cultivate

:P t :t.1 "PW3 stated further that wh~:qWl failed to get the other half

of the loan his farm was affect~si~\~'faJd$ehe was able to harvest only

from 11 acres. PW3 said there Wa~;i,qproblem between PWI and

Dimon in that it was saiq .IlMV;t~1:I',soldhis Tobacco to another, . ,I

company and not to DIMON./k-RW6said he went to the office of PWI

Manager KISHIKI gave him the truth of the matter. Pw3 said the

Manager told him that PWl' haatst~dteted away his Tobacco to

·;"".riE~~another farmer who was selling his crops to another company. He

j'

that he had not done what was allegeJ( PW3 further stated that PW1. ',,,:[t:f,'

-:'11 .•

was asked to go to Tabora at th~p0U~e station and that PW3 went\ :' il

there and the Regional Polic~ltC~WI11Glp.dertold him that PW1 was

under arrest being interrogat~R;. P~3i stated further that people inl,;~~ ;

the Village knew that PW1 h,~~~~~~~;lysold his Tobacco. He said

they took him to be a thi.£tp~WW3 was cross examined by Dr.

Nguluma.

The defence also called three' witnesses. DW1 was JOSEPH'If-? ,"C'~

, ",{-{iV.KISHIKI. DW1 told this court that n~worked for Dimon Company

:'),C)11f t

.\ .41for only one year 1996/97 as the AREA-INCHARGE. He said he was

, ',1, ,Li,'" I,'. ~,'"9\"J,~- '), '.,a supervisor and his duty w;as to look for customers to join the

t,' ·t'''-:(,I

company. He said there were two companies competing for Tobacco" ·~n·s:1,.,- 1;' t:<:~~,l(f(i.~~,\}.

farmers and his duty was to p~rs!;1adeTobacco farmers to join"ll'O:'d, ", .,

,.:, ,:';.r.J~;Pt,~.'~/~

Dimon. He said after the farm€lfsjoined the Company, the Company

gave them agricultural inputs on terms that after farming they would

" .. ""lrepay that costs of the inputs to Ithe',:Company. He said the inputs

';h,rf' ,were fertilizers, smoke pi~es ~()rq~~fln§1Tobacco and watering cans.

Kr:t\;! i. "

DWI said he knew PWI whe4i~yYt.came to their office asking to join

the Company. DWI said as he was responsible for farmers who were

joining the Company, he wasinsti;;t~~ted to accompany PWI to;~f "C,

inspect his farming activities and cdr1firmed that PWI had prepared

to cultivate Tobacco. DWI repoftedthe fact to the Company and./.'.:,.;

recommended that PWI be a:ceepted to join the Company and was

accepted. DWI said he remembered PWl's farm was about 9 acresfJ.\? ,

'\. f(\I' dH/invand that such a farmer wasjcortsidere'clti~¥:mediumfarmer. DWI went

:..;,; ,,:~"

I ' '~,f), ...~;~ri\;,'1 , '"

on to say that the Company~ve ,PWI agricultural inputs and also

cash money. At first, DWI stated he did not remember how much

L : Ill'money was given to PWI unless file considered his records but went

I, '

on to say PWI was given shs.700,OOp·il1cash. DWI went on to state:

"I remember while I was with the Company\c\~t i~:

there occurred a problem between the Company) I( '.l~1 V

and Issa Ramatjhai1:i,~'M(J{~'n90 (PW1). The. ll;c{~'Ji',"

Company received,itvC9'/1fl!ationfrom other villagers).lr~" •, -)

that he had intended not to sell Tobacco to Dimon.

The arrangement was that!~e,farmers sold their.•• \ ( f 1:

Tobacco to thet" C?~~~~~~'~~nd the Company

I " . 1(' i

recovered their cb$t~t§f/ agricultural inputs from:)'\j~••

the sale. Mr. Malengo (PW1) had the obligation to

sell Tobacco to the Companyi,: I left the Companyr\\~ '~~.,

before the farmers had sold,their Tobacco. The

Company after receiving the report that Mr.

Malengo (PW1) did,j~et ihtend to sell his Tobacco

to the Company I was se11;t'~tr/1~erify the reports. I

went to the Vill~ge!i~fJ~)~l#t1fJ,~~1to farmers one of! •.•.i·•..,."j

whom was HAMt~f·,!'MUJAHASI. HAMISI

MUHAHASI told me' that Malengo (PW1) had

asked him to sell his 1jqba(t~o through HAMISI'i,I,' ",\

MUJAHASI. HAMLSl ;N1'UIAHASI was not a!, r 'if 'if

I

joined the other 'C~1JtpanyJT.L. T.e. If Malengo

• . .'.i)!' •.(PW1) sold hls Tobacco ,r~hrough HAMISI

I,' .'7,<.i

MUJAHASI the·IT68Pt#~.~,iljtft}J,~not reach Dimon.'.' ,'. ' . !. ~

,',', :";,',J'j,',j',',;'"

If Mr. Malengo (pt¥Jffsold his Tobacco through',"

27iV •

"

I f: ,

..·~ttlJ .;:~j

HAMISI MUJAHASI Dim9,n would lose all the. .;1'!/ ./J..,,,{~ '; "f'

costs of the 9,gr,~i(!1:Jttll'~!:AArzputsand money, ,', '!J /H"¥tll,·")rtf ..f .; \ fJ(;f.' .'!1{~.

advanced to Mr~ }:1~lel}go by Dimon. After thei\T ' "

~"",~, .'J' •

enquiry I returned to the office and reported that

the reports which had been received about Mr.

Malengo's (PW1) int~nti0!1:f,!Vere true. I never

took Mr. Malengo to the police. I never reported

the matter to the pqlice . .J never took the police to, ~nnN

show them the homi/ of Mtc,~,Malengo. I never

quarreled with JyItJI:.,~.,.,.,;t,...,..:l...~~",£e,..,:U,. Our relationshipif '~~ 4t !J{}h e~t

was good". , <l~kfl.'" 'r '~'A,'," (

Upon cross examination/by Mr.,~weyongeza, DWI stated:I f ~ r} (

II'~: .

L

"I visited Mr. Mdleng~r,s farm. The 9 acres

were prepared. His if#1;m,~ds9 acres. Idid not see

another farm which' wa~ not~c.'1f;ltivated. I do not

know the personw}f~\1j#0lft~%Uf¥rr. Malengo to our

office.'J ,..'J~:-{,l4;j;'

There wag:rq1t' agreement between the

,,Company and M~. Malengo but I was not

"I I· ... ; :,Wt . .J[if}" .

responsible for the agreements. I used to visit Mr.,f''J,;'~'

Malengo's farm. The feri'm wds progressing well.,!\',}'.,I' itlt;,(i;!J ,i I

.. i" ,'{j'jtt~!i!fl!~{J,A,Mr. Malengo did not: qrFngl ~11f/other requirements

\ i,·~U,t:,'ti.~q~'{' """;.

to the Company. In'\ih~ enquiry I went to look for

Mr. Malengo at his farm. I did not find him. I

went to look for Mr., Malepgo only once. The

Company wrote a letter to My. Malengo. I saw the

letter. The letter said I if' 'Mt'. Malengo did notI. ", '~~;-fJ., 1

-Jr','" iUbring his Tobacco tPM~tCbmpanywould take action

Malengo. The letterflfated that action would also

be taken against the Company to which Mr.

Malengo sold the Tobacdo.~{Rrom the letter Mr.

Malengo had asked fottmo~e" money. I was not"

aware that he had done i:"EO. i ,11 did not find Mr.i'lt / i' ,

Malengo's Tobacco'((i!H' the house of HAMISI

had refused to take the t:r.Qb~_cco.I am not aware

that Mr. Malengo zqp;ssf'tt tOI,thepolice. I did not'-I! t

~f ' 't.)i"li .

see the agreemen4\'!~etween Dimon and Mr.

Malengo".

, 'q

Upon reexamination b¥,Dr~ Nguluma DW1 stated that during'I

the enquiry he looked for Mr. Malengo only once and he did not get

any information on his whereabouts. He stated further that loan

applications were made to the Manager and that DW1's duties wereI .iJ {},,,t r

I '--,"':', • 1;e,1...

DW2 GREGORY SHIGEWiAtold this court that he was the

Administrative Manager of th~',<:om1P€J;rty(Dimon) from March 1966';',F \[::t J (':.:~:y;;~:;:J"--\

to 1999. As an Administrative' ,Ma::hagerhe received Agriculturalf;lrf'lr

• ~ J.' I

inputs from Dar es Salaam andr"wnen the Tobacco season began, he

had the duty to distribute the agricultural inputs. He said theI

agricultural inputs included fertilizers" pipes, watering canes andIt;f ,-

jacks for pressing Tobacco bales.t),Wj~tstated that it was farmers who

t;' •._{l , ..,,_'.

reached agreements with the'i,piiettors' of the Company and when. f?~1

DW2 got the total figures of the' totalfrequirements of a certain area,

, ;: ,"0', '- >:1I

he hired lorries and distributed the re91uiredquantities of agricultural'C,{)I'tE

inputs. DW2 stated the farmers had to enter into an agreement withr .•.

L Ui~

the Company that they woulq,~~ll their Tobacco to the Company and\".1,'"

,-,that the farmers went through Cooperative Societies. DW2 told this

{ Jril~.}J';~~~'!

court that in the first year ot 0R~tati9n the Company intended toIV":,.' .,)." 1""

r·,~t¥"

motivate farmers so it also 'gaye out cash to farmers. He said the.".,0' f

Company hired Field Assistants to assist farmers and they were

supervised by Agronomists. Acc9rding to DW2, the Field Assistant~, :~J'".).1

~"F.:;had certificates in Agriculture.;.pY\tZ' stated that he did not have

!.• l / ~

1 ,

direct contact with farmers but f(\dlitated their needs by providingL. "i'(',I.

, 1Sl -'1--agricultural inputs and by go~r\gto the bank to bring money which

.. .,- :' \

was given to the farmers by the Ca~F~l'lY accountants. DW2 said in'dhPr5ti6r ,

the course of his duties he catlj1.eHoknow PWl (Plaintiff). He said! \,l ~

'{~V'\. L

PWl talked to the Directors and they agreed he be given agricultural

inputs and they also agreed to give him a loan of Tshs.700,OOO/=.

:0 ;"',DW2 stated he was informed by the Directors that they had entered. '~"

J.{I.V,-into an agreement to authorize thei1l.puts and cash.

1J~qllll.,:"

Ii.L

DW2 further stated that PyXl us,~d to come with his friend byt\

the name of MKEMWA who wa~ ~otan employee of Dimon. He":: :.: ';;\]

said there was no practice or agreement for farmers to be••... ,I ;A:

accompanied by extension off~~~rs!and that, the Company did not';I', ~

have extension officers. He further stated that Field Assistants had,! f~"'t1"',.~~i,!'ir·;

3 Jno role in assisting farmersHtR,;g~tiJ~ans. DW2 stated that Mr.

Malengo (PWl) got a loa11,'i'of, agricultural inputs and cash, ,

shs.700,OOO/=.He said in the season 96/97, there was no other loan, ~ 13<..

given to Mr. Malengo (PWl). ~DWt said the farmer had thel\' •.,.~ " >

"

obligation to use the agriculturalJnp~~~ to cultivate Tobacco, to cure

('

stated that there was a disagreement between the Plaintiff and his

Company in that, before the Plaintiff had repaid the loan of1 ~·~t;,!,.~ ~it ..•.f~}

Tshs.700,OOO/=he asked for anotfikr '~HS.870,OOO/=.DW2 stated that

fJll"L t'Company did not advance the se6ondxloan and that he did not know

. ,1·;' \ ,11if PWI was promised to be giventhe loan later. DW2 stated that the

f:J;h~:·,''''':i·,t

. ~~,

?2. . ,:f\,'[4, ".~,I.. l

Plaintiff was disappointed and decided that there was no need to

continue to associate himself with, the,<=:ompany.DW2 further stated'. ; ',/;","

: I '. gh~that at that time, Tobacco was maturing and that PWl started making

, 1"I~l'. ,,,,i~" < ll,"

.' ;'r',:

arrangements not to sell his Toba~co~o Dimon. DW2 said they gotf:{,~, l dr

.\/12 "b, "reports that PWl was looking/!;)?ranother Company to which to sell

his Tobacco. DW2 said he &ot''Ult~Jr~eportfrom the leadership(, '. ,.\,L"

. '

including the ARE - IN - CH~~GBT~?EPH KISHIKE (DW1). DW2'itht ,I

further stated he was instruct~d by the Company to write a letter to, J

the Plaintiff (PW1). He identified the letter as Exh. P3. DW2 said he

,"' l\informed the Plaintiff that his additioi.l41loan had not been approved

, , " Sl'lt

'.i ' •.',. ,1 ,~

and also informed him that ifh:€~:c\i~ not sell his Tobacco action'" ' ;:11

would be taken against him'v~hr'9g~hJ,\thepolice, and that the said, ffl~ :,~

letter was copied to other companies which were their competitors in

jt ,,<,. \'buying Tobacco. He said Kigw,aMtH<,liiis the office responsible for

administration of the area (l~~~\~~:'t\f{~;laintiff was either living orp.J \..,!)

having his farm. DW2 said the letter was copied to the police for

information only because in the whole area which was being'.j;li '

operated by Dimon, there was the p~fulem of farmers sending their11',",;:,'di ,.' ! .:ill..•

Tobacco to other areas to sell in orderlto avoid deductions to repay

their loans. He further said the letter'was copied to other companies

as the practice of companies informing each other of farmers who{!;,

were avoiding to pay their debts. "DW~"stated,other than Exh P3, the, i,•. ", (1;,," .

. :If; .- '1,1 ijr.

company has never sent a formalt'otrtplaint to the police regarding~~,~-.{ -

the Plaintiff. He said the proq~emr'of'farmers sending their Tobacco(.;., .

to other buyers was prevale~t in the area and it was not only a" ,j ib~:'

problem arising from Mr. Malengo(PW1).'b ", \. "'"

il,'\"--l~J( Jt

strategy to deal with the problem in the Region and that is why they(,

copied Exh P3 to the Regional Commissioner who is incharge of

administration in the Region. lie said the Regional Commissioner~:,'r,lj _~__ 0

;" ','xlJlhhad called several meetings inY,olvl~gleaders, companies and the

1'1': ,,'j,t~'

t, i'~'(I ,

police to address the problem in the Tobacco industry including the.1: ,\ I'

)bl<~~:I,r 'problem of farmers selling th~iXTobacco to other places. DWl said

,," .'j, "

,w,he was not aware of any dir~ctio:t;'lsgiven by the Regional

• _,. ~ ., :l,t" .

Commissioner on how tode~rJ~If~ ~h~problem. He further statedt~

'I) 'Jl'~,,":lthat the Plaintiff did ask for al1iatlditionalloan but the directors did

not authorize the additional loan. He said he was so informed by the

"?.i.,::._'I,:::.\~() . ( j ,:Upon cross examinatiori ...by.y~'wRweyongeza, DW2 told this

{)',:',!..

} I ~

court that there was a comp.etition among the companies to geti"l

farmers and their Company employed people from that area to,~. J. L!

mobilize farmers to join their company and one of those people was. '~}L/:Li

the ARE-IN-CHARGE (DW1).; !I-~~~I said Field Assistants werer

technicians who went to the far'fllerswho had already joined the..... ...l ,1. .., "

(')lj1/ <

Company. He stated that Field Assistants did not have the task of<...t

I:

mobilizing farmers. He further stated~hat agricultural inputs where'; ';,';'. .' ;':'~ i:,'i , ;f. '~. '

t. ,i 'ty~,\ifuh< '!,sent through Cooperatives but, for cash loans the farmers negotiated

,.;\(),t'\'directly with the company. DW2 stated he did not know how much

(money) Mr. Malengo (PW1) asked for but he was given\. 'I...;~

,1~V·'

shs.700,OOOj=.DWl denied to haVes~~n the letter Exh."Pl". He saidIA'(..·

in Exh. "P3" the amount of loan is:shs:f370,OOOj=.He said if a farmer~n:.•,

got a problem he could go to"thei'Directors and upon being refused;:"."., "

,~'1

the additional loan, he could ask ,for assistance elsewhere after,

j L ~ .de;:!paying the loan to the comparty.I?,W2st~ted he did not know if PWl

~. 't. .,~.-' ·'·r:~".h/ln':>::' i.• 1: for ' ..'

sold his Tobacco to Dimon and that it was not his duty to make aI' ~

'I'follow-ups if the Plaintiff had sold his Tobacco to the company. He

said he just wrote Exh. P3 in his capa,(2ityas the Administrator, uponL,

,'\ ',e(~l

, ,If.·ll l..,.< . L.' •••.••...."\t,t ,~j

being instructed. He saiQiil\yth~l~~~~~lparagraphof Exh. /lp3/1 it is';l( \;'': ~';It''I~';'-::'.~'/

A IOl 'stated that the Plaintiff is not ll'trtfstworthy person. He said that was

i·~

the message he wanted to convey. He said, he (PW1)was not faithful

The last defence witness w~s ;g~~ON SIMBA (DW3). He saidi '1 '"

he was a farmer living in NZIGb..i.,LAVILLAGE in Tabora and had" ilL

resident of Nzigala Village"but ,hfY~.;~sipcemoved from the village;"W t t1(l.~~Jtl~';;t$\

i::, 1". --"fi::;-' ",';~

between 1999and 2000. DW3'f~;rihe; stated that before moving from'l n' "'J

Nzigala Village the Plaintiff used!' to cultivate food crops and

Tobacco. DW said he was the Villag~ Chairman from 1995 till 2000, ~,.t~

and that the Plaintiffs farm was in th'e::areaunder his chairmanship.';1" '-4~1\

He said he could not tell the siz~ ot'th~';Plaintiffs farm. He stated that

.: .i;~,~ • ,while he was the Village Chainman there was a dispute between the

'~ " ..

Plaintiff and Dimon Company "on the ~ultivation of Tobacco in that

there was a suspicion that~~~l~;~~~ih~~fintended to sell Tobacco, ,'fl[Ull' '.

secretly (kutorosha) to HAMaSI'iJMJAHASIwho is also known as

HAMISI MASHUGU who is, ROW dead. In his own words, DW3~:~'t'\; l

n'I.I'I '/I HAMISf\M1tBHUGU was a farmer. He

used to cultivate Tobacco. To sell Tobacco secretly

means to use someone else's; ,number. Meaning

that the other person W~i~(covering for him

(anambeba). It means the P'l'llntif! was to sell his

Tobacco using HAJVtTSf'iMASHUGU's number.

HAMISI MASHUGU wasseUing his Tobacco to~~' : !;,~"~:':."'" ,';':

T.L. T.e. It is a diffefef£F>'!:tJmpkny!rom Dimon. If'[ll.\11

knew of the matte;' fljiJf' police officers came from

Tabora Town to investigate if the Plaintiff had

infact sent his Tobacco to HAMISI. The police did\()

not find the Tobacco. HAM1SI informed the police

that he had refrained frhm receiving the Tobacco

(alisitisha kupokea !1i~lyo:,':tu,'mbaku) after hearing'l,',

that he would be arrested ijh#{did. It means thatJ

~,7';·:>, -,tJi'

': ,I; 1,'1'"l,";':' '~i;l:~I:·r".J '~:t: {'the Plaintiff did not s'lftJftlf1Ytl]f6bacco. The coming

;~:';,r';., " .,~ \"1;"11"

of the police confi~d fo me what was being said

by farmers wastrueYi~!r~\ip~lice did not come back.'}

~\ )J

to report to me. I canno~i reMember the name of

any farmer who '\va}!iil1#!diYji:fthiSmatter, Apart: fe" ,! "

,t,'{'/,:from this suspicionl!}n&thing else occurred. I do

not know what took place at the Plaintiffs place., . ·i\;

There was no further"" problem concerning the

Plaintiff until he left the Village. After the

cultivation season In which the problem

concerning the Plaigi~1JoJburred, the Plaintiff didr "

not carry on with cultivqtioh.r. He left after the

problem occurred. ',i'*r!!JlAtiff was of good""I

character. He coope~~tJa.with others in problems.

He was cheerful (mcheshi). The Plaintiff did not, "

hold office of leadership 'iUt; the Village. He

contested Parlimentarycn-'election In Igalula

constituency after the Problem occurred. The. l:;V1 '7,

constituency inclucresl;~he Village. After leaving

the Village Inow remenil~htthlPlaintiff moved toi:)): ..,~:".,~'J,~",;\ji'/~i;9'f,~,;~:~-,'t~

Tabora Town". ' :AtlXfl/Y;)H~r¥~:i "

1:,,;\', '} t

~t"I'(;'a}:,

, ,1

r "!'" i , e;f"

I

'V' i.t CUpon cross examination by Mr. Rweyongeza, DW3 stated that

I t'l J ~

the police told him the Plaint,iJf "VY,pssuspected of intending to sell)1"£.',;;'. "i.

~t:"i'" ,Tobacco secretly to another company., He said the police told him

., J ' i,," ',.. '

'. I .1 k '-":1"'lj ,;~• . ''i-' .. ,'.

(DW3) that they got the inf()rmati~W'iJ)f;romDimon Company. He" "~P',)":'i' , ( ;/,~J(;;lt:l':"

further stated that the polic~~.diQnot tell him if they had met the'''/~T'I;''-

Plaintiff. He stated further that the Village did not have a

Cooperative Society and that the Villag;.ehad both group farmers andjr ,")"

,i)'\ I

Upon re-examined by Dr. Ng~luma, DW3 stated that the practice of!.,i 1 I

" till "il' (' .

selling Tobacco secretly was o~~IJlrrihgin his village. With DW3, Dr.:!' ,

Nguluma closed the defence casE7.', !

l ",'P' Y\ ..:> t"l' O'~' , .if,';: \ . .\.)"' •.(., 17':'~"~i1"-1/'"<f.;" ,P 1:.,' ,,;\ ~",~,) j'<,~}, '

Both counsels filed final wrItterr submissions, starting with thef'·i', '~',~t"'!;.0:' 1

,j'<'4";

defence. As the Defendant has attempted to submit in accordance

with the framed issues. It is necessa~y to set them out as follows:,•. ' I

1. Whether there was a loaY!{agreement between

the Plaintiff and lhe'Defrndant under whichiI' ...., ...

the Defendant ?m.~ul{i.!advance money to the

Plaintiff and thePlain~ff would sell Tobacco

the Defendant."1.,/1." \

, )U{f<, 'I~ ;

Whether there £Vasbreash by the Defendant of\'

. \/,,:i.r.\Whether the,Pltdrltiff suffered any loss of

earnings as the result of the breach of the loan

: "'-l' ,-4. Whether the Defendant'ddfamed the Plaintiff

i,

5. What reliefs the(par#~sare entitled to., ·'{~~~A. 'j ';':j

"J'

I propose to dispose of each i~~ueas framed before tackling the, I Itli 1" ,

In his submissions Dr. Nguluma asked this court to answer the

first framed issue in the negative, "on grounds that no proof a

contract of Tshs.l,390,OOO/=has been adduced". This submission and. (tlfft. •

the first framed issue, relate to paragraphs 6,7 and 8 of the Amended

Plaint, dated 10/4/2001 in whi1{l;lfb,e Plaintiff has avered as follows:'a~t::\ :.

J l~,.Ii : 'I

:: 1,;-~,~i ::~,

40

"6. THAT upon such undertaking by the 1st

:7 'I ad,defendant, the Pl~~1J,~if!.t,apPUedfor a loan of

fr' "': ",l,"f' \<- x'

Tshs.1,390,OOO/= ,from the 1st Defendant"I· f' ,+/;".. ,~

~/l:".r}.L: rL."',t:~,.J)

which would enable the Plaintiff to prepare" "

20 acres expecti~ga yi'eld of 14,000 kgs of

Tobacco valuedTsh~:8,400,OOO/=.

7. THAT the 1st Defendant approved the

Plaintiffs application for loan and made part'it

payment of Tsns.7QQtOOO/= leaving a

In paragraph 8 of the said\~~~rg~«(~laint, the Plaintiff has further

"8. THAT the PlaiJ:tf&1~I~ifPk to the Defendant

to release the balanqe,' of fJ9.9,OOO/=to enable the

Plaintiff plant the rest of the acres cultivated, to.j,~ l 1.(1.

buy agriculture inputs (;t:ln1~~~0meet operational{'

expenses but the defendtfrtt:(~1Jfused to release the• J'

balance. A copy or~he ,l?Jaintiffs letter asking for;'J \'.:'1:. ~',~ll~_ l;'; ."q"lC (,'r'l' '

t IL'ff: ! ~

release of phase two of the loan IS appended

While perusing the recor~,'lf.o:J;y"thepurpose of writing this

judgment, it has become appat~nt (that there have been twoit,:,; --J,c"

L h,'f, ~ , r ,,~~ f

:";;-1

1/ AMENDED PLAINTS", the first having been filed on 30/8/2000~ 1

which contained Annextures RIMl and RIM2. This was succeeded by

another AMENDED PLAINTivVhichl~as dated and presented for

filing on 10/4/2001. This is the Atnmended Plaint which is under

consideration in this judgment and whose paragraphs have been

quoted above. Upon scrutiny, this Arltended Plaint dated 14/4/2001,~, '

does not contain any annextJi~~~)'~$pecifically, Annexture RIMl

~l~d' L"referred to in paragraph 8 of~he J1;l;llendedPlaint was not appended

;'. - ",

IIto the Amended Plaint. A copy of RIM (1) to the first amended Plant

,'i, a:'le l'filed on 30/8/2000, was howeverproduced and admitted as Exhibit

,vv.{', ,P2. Both parties belaboured under the belief that the document had

'.\." '>,r.

been appended to the Amended Plaint dated 10/4/2001, which belief

was mistaken. Be that as it may, the plaintiff has put reliance on this

-<" \ i:1i+

, \~\\'J pro\.lc

document as proof that there ,\Vasthe!alleged agreement between the

,

It is the Defendants submissidh'tthat the Plaintiff "has totally'jl '

ir~',' of> i

failed to produce any credible eviden'ce .. as required under the provisions

of section 110 of the Eviden'ce ~o/t~~67:to substantiate the alleged loan

agreement between himself for the amount ·of Tshs.690,000j=". Referring,

to Exhibits Pl and P2, the'Defel1d~111tsl(:ldvocatesubmitted that they'\ .\~.'

"do not make an AgreementtFlifld'er Tanzanian Law". The learnedN

advocate went on to contend that the plaintiff lied on the size of acres

he cultivated (16 acres) while in Exh.J.?l he stated to have cultivatedt ,"{:,:'~,\ .IM'

only 11 acres. He further stated" t~at Exh. Pl "was written on 3rdf-~,¥" ,,1..,.

I','~

\., " ,

January, 1997 requesting the Defe~~atit for a loan of Tshs.870,OOO/=.,,: .~:

, "r'}r-'I-~ )':~r"j, .;t\;yt " ri~;

In this letter he did not refef',:toaJ1Y previous agreement with the

defendant". He further referred to rIhe evidence that the plaintiff

wrote another letter to anothe;f~gg{~l~Y'known as STAMICO on 10th-,\

January 1997, "only a we~k'fh~~e~Jter" (after Exh. Pl) alleging that he

required a loan of Tshs.l,050,00j= alleging that he had a 20 acres Tobacco

fi "grown arm. . . The learned adVoca~~'complained that the plaintiff

did not allow for time to reteiY:~'iAwritten reply to his letter before he

approached another company, alleging different facts from those he

submitted to the defendant. Ide«poihted out that in the plaint, he" ("I

alleges a balance of Tshs.690,OOqj=;;while in his letter Exh. PI, he

submits an alleged proof of a ·ilqan.of Tshs.870,OOOj = and then\'J\.,i "'}/" ;.

Ir' /. t;approached another company tor a loan of Tshs.I,050,OOOj=. The

learned advocate submitted that this shows that the plaintiff was not

i (f"j'~ ,\'~T~

trustworthy. Referring to the eVide'nce of PW2 and PW3, the~ I 'f .,;1

Defendants advocate sUbmitt~~'\~at it "is largely hearsay as neither the

two witnessed the alleged loan agreement in which the plaintiff wouldit\ ,,}1;11

receive Tshs.l,390,OOOj=". He further .submitted that the evidence of~\ '.

Ii

DWI and DW2 confirmed tha~"the pi~intiff applied for a loan and

only Tshs.700,OOOj=was appr,~ye~,:r:I-ie contended that the testimony'f'{.

y "of DWI and DW2 agrees with Exh. Pl"as there is no other document

produced in court to verify th~t'a it~~g~r'amountwas approved". He. >',c.l: ,·:t .."

, , '0 I. ,,;,} l;',:J: t,;further submitted that the eyiqen,.ce of the Plaintiff (PWI), DWI and

, ;\.(,.11'4"" ,,. ,It d

DW2, has established that the Plaintiff came to the Defendant and

requested to join and register with t~e defendant company on the"~ ",~i.

" . I.'-,.dbasis of obtaining agricultural support in order to grow Tobacco and

;(;{- ~!~I," ..h,

! ,ll~,;'~,~l aI. 1',1r,9. •.·r

in return, the Plaintiff wa~ ~g~~i~l~fJ~~~?sell Tobacco produce to the;,' (). '~~ .. -~).

,} I .:' ~,''-1c~rj.;

Defendant. The learned advoccife contended that the Plaintiff was.t··t~';'"'~t ; j

given farm inputs worth Tshs.l,436,OOOj = and subsequently asked

for a loan of Tshs.700,OOOj=to cor~tr¥ct barns "of which the plaintiff

agreed on the understanding t~flt;ft,is amount together with theL: )!(

value of the inputs, would be recov,eredby the Defendant out of theI

proceeds of the plaintiffs Tob.ac~oonce sold". It was on this basis

that the Defendants advocate praye..dthat the first issue be answeredt,' :i'

. .~. ':(.

The Plaintiffs advocate ~i~rtea his submissions by contending

in the negative.

been condensed in two typed pages. But what is

legally striking is '1Jolj.,t.·zt contains general and

evasive denials . . . '; '.Thi~ in our humble,7 i'i.";." !

submission, shou.ld'fje, :i~;{j(J'izi'(hsadmission of all. C!(;'P~'.

facts that has be~n~/pteaded in the plaint and0, 'i; ; I

generally denied by the defendants. We are guided

45,Ii

here by the provisions of Qttle.~;:VIIRules 3, 4 andj ... :. ,', ,:', ;1~"('i/

5 of the Civil PrC?ced~t~i:fJ~(Jri{;:ap.33 R.E. 2002"

f ...kThe learned advocate proceeded to quote the provisions of the

'.\,-t, .',.'

PROCEDURE, Eigth Edition and al,so'referred to the decision of the.)~' , ~

Court of Appeal of Tanzania in JAMES FUNKE GWAGILO VS.

(unreported), on the proposition that parties are bound by their;''11, ,I, ' ," .'1

, -. \, '"j

pleadings. The Defendants, adv.~~~t~ did reply to this surprise'1,' ,p /.~'t:<'7.",C'T;ft+-l'; \1 ~."""1 4,f.~,

onslaught by the plaintiffs ad"bcCl;te.I do not propose to waste much:: [};

time on this specific issue rais~d w~idl relates to the pleadings. If the

effect of raising this issue, is to ask this court to enter judgment fori.

I '. t. ;(j 1.the plaintiff on grounds that by their Jevasive written statement of

, ~' ,

'I' j/N1defence, the defendant has admitted the plaintiffs claims, the

plaintiffs advocate has coinp)~te~~ ~i~sed the boat. Judgment on'·;1 " ,l~

~ .- r ~..admission can only be entered ip.,cir,cqmstances authorized by the

, ~ . c

,! . a;,." ,ocateprovisions of Order XIIRule 4 W.ht,g,.l.\¥~t(:!!es:

v.OCH,,\U'

1 ,'l",~'I'

I,. i t ~::lIe! I I .Any party may at arty stage of a SUIt, where

,r~'I'admission of fact have::been 'made either on the" ,"" (!<",:lU"

pleading, or ofhenlfi~~>:'},-~P~l~to the court for

such judgment or ohfer' as upon such admissions',i

he may be entitled to, without waiting for

determination of any other' question between thetoil

parties, and the court may upon such application... , ;.

'i>'i

make such order, or give such judgment, as the: ~

1\" ~court may think jusl!'(:t "

I do not think that the, p}~if;)."ti£f~,submissionsin support of his" ' 'I; ,!;,~f;Cl 11:'; ': II,\:';',i,-tt

'il ~ ~J('b:"""'d')i·t'tl1r1 . ,L 'l.~" ,+ "it.

claims in the suit, after both PQIf,tieshave closed their respective cases,

constitute an application for judg'ment on admission, within the

meaning of order XIIRule 4, quoted above. No judgment or order onf'l; 7f.,

admission may be made on the basis ,pfthe written submission in the~n· ,r!1 i< J)

absence of an application to that effec'f: Not only that this court has

not been properly moved o~t;,tri~!patter, but also that there is nor'l Ut:. ,

material upon which this court can eRt~r judgment on any or all the, {. r "

'-' ::l too; t:j':;;. ,'" ,/'" .1;(,-, ,14k ,',y" ' ,::'I \

claims contained in the platnt ~j~~1lt,)i~'9ingthrough the evidence. If\" ' ',I. ,I"

this was a prayer for jUdgmElI~\1f~(~eentered on admission, it fails., t."

In his substantive submissIons Qn the first framed issue, the

plaintiffs advocate sUbmitte!J~'t~at(if) 'what "the defendants wanted

to have is a document reduced in,!/;ftting, supporting the loan ofi\ ,,'li' t~,,;• t;-" :;- 'f~l);\<~\ " ()'t: \. 1(:' ,

Tshs.l,390,OOO/=as claimeld(j~~;f~'lf/1{i:tintiff,. . . there is no legal,~HtFr

requirement, that a loan agreein~iltlnust be reduced in writing in order to

make it valid. It is enough that there is oral evidence which supported the

existence of a loan".

Referring to the Defendants submissions, the Plaintiffs

advocate argued that the defel1,~C\nts,contradicted themselves as canL.,\\ )}

• \;/;'1~ri: !..

be gathered from the advocate's ,~~~ission that there was an1 f'I.;~' ,:,:.':

assistance of Tshs.700,OOOI=:='g}$~~~,~('\~~plaintiff on loan basis. HeI I"" ,:1,l~.~,~if;(," ,,_,.1 t~"J d,,-,.~ ,,",.',lJ.1J~4

,,," . I'

argued further that, "whethe(fhl!ipdditional balance of 690,000/=has3ia f

relationship with the amount given'to the plaintiff on loan basis,

does not rule out that there existed a loan agreement". The Plaintiffs

Advocate submitted that "given the evidence on record, there was aI,ll "loan agreement". He contended tnat, lithe plaintiff managed through

witnesses to show that the~e~:~~tJt1~'lbanarrangements for farmers.

He has demonstrated how he was intro~Je~ to the defendant and how they" " ,t

, '-f ;'~,.'l;.~lAl.'\ l" '1ilil 8

attracted him to join them. He testljikd lhat having received a sum of Tshs

700,000/= still had a balance ofr~.~s.!$9,f}I==c".\' ~ji ,4-

The plaintiffs advocate pOintedf'~ttt that the Defendants admit,!"ti,> ,Y,' 'l'.y" i,,F', \':'\"':':~':'i>~,i~" ,'" ": ':,',',~",:.,~:,·_r

to have given the plaintiffsh.i6o;ooe0~~t:lwhichthey called assistance.l v"t'lt./):,,'.:~'i l' -' r:

He contended non of the (d~reri~ewitnesses) knew the discussion

which led to the grant of Tsh. 700,000/= and they did not produce

any documentary evidence to contradict the oral evidence by the

plaintiff. He argued that the ~~fef~nce. between the amount of. i' ''Ii

shs.870,000/ == requested by fh,eplq,intiffand Tsh.690,000/ == which he,I'.\,'~.' l' (:\,v;:~,t~~ .I ,'Jf"~'!t

of-Y·.,-

claims as a balance in the loa~>'the d~ference should not be used to;':> ..•.L,o'I'f; i

1 I{'~' ~ •. ~ tt':discredit in plaintiff but to sUPI?Ott,t~~i~xistence of a loan agreement.

'>1: ,'~ '.' ':,_, ',. ..)_' _ .. , " '!. '

',' " .. ':';,>~; ":;":;' ,"

, f:'()t;\~bh}~';:;t;<As for the different amount }'Y~~&:hthe plaintiff asked from the other

> ,;~ ,~. -, ~~,

• ," ,4"Jl',;1\" 't ... ;

company, the plaintiffs' advocate submitted that the plaintiff was at

liberty to seek an amount which in his opinion would meet his goal

')1 <~.:' '.and in communicating with another;~pp1pany he was not bound by

. (liC'lt'll'

the agreement between the plaintiff' ang. the defendant. He therefore

. . ,itL' 10prayed that the first issue be ,a~~we*d' in the positive.

On the evidence adduced bywftwesses from both parties, it has(i .~.\·1':~}.{

been established that the plaintiff:~a~i~ tobacco farmer and asked to, ._,l.t 1 i. J.

join the 1st Defendant Compai\~f B~f-6ihingthe Defendant Company,

it is on undisputed evidence that it,:'m,e.ans the plaintiff would get.' ...• , • r

">:?'('. ·( .••H;,(~.;-;,certain benefits on credit froril,,,t~~~f')~.~\mefendanton conditions that,

I }1J,!\:i\ 'after harvesting his tobacco, th~,:Rlaintiffwould sell his tobacco to the

.. '"

1st Defendant and the 1st Defendant will recover from the proceeds of

the sale of the Plaintiffs tobacco, tpe monetary value of the benefits\. ft(~t

advanced to the plaintiff, on cre(jit,., Jt is conceded by both parties': •. ' .. ,! "'.

that the plaintiff having" joined" the 1st Defendant company, he wasd l ,II

hll ~,~.. j~1~.~~{,~~·;;,t,l\' '1'" i' ,; I'.i}"':. t ,'.i

given on credit, unspecified ~gticultural inputs. It is the plaintiffs, ;'1."

claim that, in addition to, or ap,art~tr6w~the agricultural inputs, the 1st; .. :,C.:, '!i~_ :," "~:',~:•..;\~: C"

" '\ ,t!i¢;:r/,st'l,j,Defendant also agreed to advagf:~ tash'~money to the plaintiff. In his

'(i""'\::;j

evidence in chief the plaintiff' (~w:tl)stated:

t •...-'I".l .. J..\

"They asked me to join thei",.~ompany and they\ If'~f'

r· ~ It., , .•.,'f

would give me money. ' I.,'agreed with them,"' . "':«:

because I would b(j\qbf~'Jo ,increase my tobacco;')~ ,~\': " i'":"}I 2~·nr' 1

acreage. Theyaske(t'me to prepare a budget and

submit it to the company. I prepared the budget!"

and sent it to the' 'compimyAoi13/10/96 . . .. In\,.1 !l- ~." .J. ,

,<.;., 'I '.the budget I asked ~1ie ::'company for Tshs.

1,390,000/=. I way\,ash~~,toga to the following;!;)-J~r!, J

day to collect the money. CP~,!/10/96 I went to,;)')' t

the company for tlie;tner!f,Jj;)tltI was given 1;1 of"l".~;T' ./' '(/;.,

the money by way cot a voucher. I signed a' .. .'.' '~' '.

voucher and then I was given the money ... "

According to the plaintiffs own evidence, as shown above, heIi,

':T l

was asked by the Defendant Compatlly'to submit a budget and the>.'J'l.i ", J

plaintiff submitted a budget of l[shs;<:'1,390,000/=. Assuming thei~':'~,_ ":1, ,!.\r~

Plaintiffs claim to be true, Up'\(tol't~t~'point, there had not been an, .:.-1':; r

"f { ~, (~,

agreement reached between the plaitififf and the defendant, for thet;}.\ ;

'I,';. ' '~, "'"

advanced by the Defendant f~r'f~~~e~i~thtiff,of any specific sum of, ".. i.:.' <! -',;"

money. The Plaintiff was ~~Yx'~~~kedto submit a budget which he

says he did submit on 4/10/96. The Plaintiff did not adduce any. ,I..

evidence to show that the whole tbuciget as submitted by him, wasI,! ,

fdffapproved or agreed to by the lst',~ef1ridant. The Plaintiff claims he

; i.: Ie i' ,~'" 'l,~.

I .

was given only 1/z of the amount shpwn in his budget. Simple:::" , --.-*

arithmetic will show that 1/2 of shs.l,390,0001= amounts to

shs.695,0001=· The plaintiff hO'Y!yVE;r:;~dmitsto have been paid by.t ,-\, " .

the Defendant the sum of shs.700,Op'cJZid'.~is is slightly more than 1/21.•~.•. " i 1

of the budget as submitted by 't6.ePl~intiff. The 1st Defendant has, .j, •

f,.'','_, -; .t("~ ,::

through the evidence adducetl'by OW 1, DW 2 and also, as admittedJJ

by the plaintiff, paid the plaintif( t~e:sum of shs.700,0001=. Ther ;,;"/':,:.";(,, l) t" ( ~J t;

Defendants deny that they agreet't6';~avance any other or a bigger

amount to the plaintiff. It i~'a'principle of evidence that he who

alleges must prove. This is the principle which the Defendants

advocate alluded to when in his :~tibtnissions; he referred to sectionI·

110 of the Evidence Act Cap. 6R,£'·2002. Although the plaintiff has

claimed that there was an' ora,l agreement between him and the 1stti',:'~~ \ ,'oJ",,: i

.. ·('···.1<,.... k'~ '·~t, 1,a I,

Defendant for a loan the amount of which he impliedly claims to be

'i i,'}amount to shs.l,390,0001=, by l,1i5' own evidence, he has only

t ,j( i;.~:,;l}~:mal1aged to show that, the DefeI}dant asked him to submit a budget

~'",,;f\ ) \

and that he submitted a budget of shs.l,390,0001=. The Plaintiff has

failed completely to adduce evidence to show that the alleged budget

:\ ·.l·'1,390,0001= was approved by thelst'g>efendant or agreed to by both

"f" .'

i.>4} ft· t j.'~'l'l\)'

parties. A mere submission of a' budget to the defendant does not

gr 'jl

52:~.>'

\

constitute an agreement to j~pply ~ll the money shown in the

budget. Secondly, the plaintift': r~ferred to "preparing" and to

"submitting" a budget to the 1st Defendant. By necessary inference,

the said "budget" must had been "prJ~~ed" and "submitted" in a formI <Ji (;

of a "document". The plaintiff hcl~'pt&tlud~d no document to prove. ~

,g( 1,

that he "prepared" and "subnJit¢~(i"'~\'budget of Tsh.l,390,OOO/= to the

1st Defendant. He has not adduced,evidence to justify the reception

of oral evidence in lieu of thy,~oct,lII;l~nt in which the budget was.:'llt·~rl<.

j,J ,S ~1't),"prepared and submitted". SectiqnlOO (1) of the Evidence Act would

therefore preclude the plaintiff from giving oral evidence of the said• t . :-\..

budget, when it was "prepared" ~n(tYsubmitted" in the form of a[)("

.~ ,',J~N J

['Ire/, "'I!'The Plaintiff has relied:,neavily on Exhibit PI which in the

'\.. ,,"',I'~l

plaint, was referred to as Annextur~ RIM(I) I have already pointed• ,,'" " -10", {'''Ill''', ::>',' .••t ""'\~" '\ .,-' .•.H ••.;;ill.

out that the document wasnpt,\n fad annexed to the copy of theS';"! r'~:.TkjJ,,:

amended plaint, which is the basis of this suit.

unfortunately escaped the notice of the Defence Counsel and of thisA , :.(

" '{~ "'~ ,I .

court. However, the said Exh. PI if}:,liChis a letter dated 3/1/97,'I,m f

\ . 1~"~, li'ln I{l'jl

t' .,,"1

\ i!l P \.<'

,:-I",r:/f - \ h"i! 'I

purported to have been wr\~~~f~~ ~~~'t~laintiffto the Director of the

1st Defendant, bears his title.' "RE'Mkopo Tshs. 870,000/=". The

Plaintiff states in part in the said lett~r, as follows:l

II Baada ya Mr. Mafindi KU'agiza nipeleke bajeti

awamu ya kwanza shs.700,000/= na zilizobakia

nitapewa awamu ya, p/fi ~l1;qc!:fl ya kuona kuwa~, ,l..,: ~q,j~ .,~j ~ !;:~_.!

fit " 1 "t. . ; . .f..r.;J~l) . . .pesa mllzopewa.zrrnefimya kazl. Laklm baada

,',1)t;,'-, . -'I

ya ukaguzi na' kuridhika kuwa pesa hizo

zimetumika lpasavyo, sikumaliziwa pesa za

awamu ya pili .....

Mkopo ambao "nadPhba kuongezewa

kwa kuwa ni[i:kU;~tl'bado kumalizia ujenzi na

kulipa chakula cha waftt~y'akazi ni kama

ifuatavyo:-"

First, if the Defendant had agreed to advance the Plaintiff a

loan of sh.1,390,OOO/=and had! already advanced the sum of

Tshs.700,OOO/=, if the alleged balanceris:shs.870,OOOas shown in Exh.",·,}'t5.tt! I'

Pl, the total amount to be ad~~p;~edby; the 1st Defendant, would add. z)j>' 'f:t

up to shs.l,570,OOO/= which is;fnore than Tsh.l,390,OOO/=, which the

Plaintiff alleges the Defendant had agreed to advance. This goes toJlrt

cast doubt on the plaintiffs claim that:J4e was on agreement in which

the 1st Defendant had undertaket},ito advance shs.l,390,OOO/= to the"; 'h'~

plaintiff. Secondly, the wordAt;lg"of,Exh. Pl, shows that this was a/~.,~~~~ .'

request for an additional loan ('JMkopo. ambao naomba kuongezewaIi 'id~f

• _:j ,-~ (\~ t;kwa kuwa nilikuwa sijama ..li~i,ajMje:t;lz,i,••.. "). Thirdly, if the Plaintiff

·:h i.,:) \; 1..-i, ~,; ~ ~',

i'~ ('-\ .' 1,,;,,:

\{tI)ll': b;,,;had infact submitted a bUdge:~/0ij;~hs.i,390,OOO/=as claimed, he only

.-

needed to refer to the budget whi~h i'had been submitted and claim

the balance which had not beenp':l!p, on the submitted budget..,.J lit

{ .', l ~,tl

There would not have been any need for the Plaintiff to submit a

. ;1,:" Eh.fresh "budget" relating to the unpaidlDalance, as he did in Exh. Pl.

" L. '0, I '>:Fourthly, in Exh. P3, which ',is:a'letter dated 23/4/97 from the 1st

t'/i, It

Defendant to the Plaintiff, the plaitttiff was informed by the 1st

, "1.,~i:'~_,JJelrr;;~).. .Defendant that he had been, gl''t~Il agrIcultural Inputs and

. ' ,~i\J:,\'{ >.

shs.700,OOO/= and that whgl'f::the plaintiff asked for additionali

Tshs.870,OOO/=, he was informed that the additional sum would not

J t... t: ':ill.:

be advanced. This is document"~Hevidence produced by theI

plaintiff himself. On the totcf~~lB~·?'t~~.evidence, since the plaintiff(,~

{\}1.k ,\ ,~,

claims that there was ana~~~ent between himself and the 1st

Tsh.1,390,OOOj=,the plaintiff has}ail~d to establish on a balance of"'.'"v,":

probabilities, that there was such agr~ement. Exh. P1 does not prove

the existence of such a agreement, as,')itrelates to a request for an. .

additional loan, which was t~'fuseHby the 1st Defendant. To this

extent and in the circumstances drYlJihiScase, the first issue is. \ . ,;I<I;',/,il tH·~i.t"l'l'v, . .u,tl-:fi' ',:'110:.'(71,answered in the negative. . c.,

'>1

The second framed issue, is "whether there was a breach by the

Defendants of the loan agreement'!.:·

. ' ,The Defendants advocat~ ha~ submitted that;

j:tif, ; 'r;""the plaintiff having failed to prove the existence of

\;\\,

the loan agreement for "Ysh;1:t390,OOO/= and thelli-V;i":',~ ,;j,},<,:~.f}:Tl.l(_,

"\'(I',~ " C' /JTVC"!Plaintiff having ,t~stified: that he receLVes

1(: .;,'~',';: -"';~r,jl""\~~. ~).'

Tsh.700,OOO/= cash and farm inputs worth

56 ,I,

~" '" }."

Tshs.l,436,000j=, there is no shadow I doubt that((J C:

r",:j

the Defendant hono~red hift'J1art of the contract.~'. ,\ '. --,;~'J

~/#'S~ ! j

The Plaintiffs, remJrstJ,\\fpr an additional

Tshs.870,000j= 1Qaf"(f\i:,new request which was, t

never matured to an agreement .... "

He further submitted that" the request for Tshs.870,000j=, shows

no relationship with the alleged balance ofTshs. 690, OOOj=". For the above

reasons the Defendants advo~~l~pf~fed that the second framed issue,,~ J ~'

r {

be answered in the negative.

The plaintiffs advocat~d5jori.thesame issue, contended that the

(Defendants) "never produced any document to show how the sum of

Tshs.700,000/= which they admit·1to have paid to the plaintiff, was

released to show they never menti~~ltlin their defence the existence';

of a loan agreement. Theyneverl rais~d in their pleadings even the': ...;-.'.1./" 'i,,:- -{,Ia.'H: ,,;,y

issue of supplying agricultiifn-l {inputs. All those facts were~ ~t-{ ,(

introduced by the plaintiff himsel[i:p-tja the defence just supported:f~ir,'3;:~'_~:'-':);"[,'.,. ;,;-}ii:~t'

them except on the balance of '{~h.6,9(),tJO,0/= that was to be paid ... fl.,!.i' .•• '\:_j

JI:,..... i

The Plaintiffs advocate ~ubt:nrtted that, " the unchallenged

evidence of the plaintiff has esta,~[~shett,that what was agreed was a loan of'u,n:, '.•,.,;.~

Tshs.l,390,OOOj= and the defendants released only Tshs.700,OOO=".t· .' P:t

, ~~,,:.. ,:,

As pointed out earlier:'lRtris judgment and in terms of section

110 (1), of the Evidence Act, the burden of proving the existence of a

Loan Agreement in which the Deftrnda,ptagreed to advance a loan of

Tsh.l,930,OOO/ = to the plaintiff" IjesQn' the plaintiff who asserts that" .; , ~

fact. It does not lie on the, Defendant to prove that such a loan

agreement does not exist. wJ~a~~t~l~eady found when disposing of

, ,'as/the first framed issue, that the plail1tl,£Lfailedto prove the existence of

'~',',~,; ,.~, ", .. :;.:'

such a loan agreement. By h;~;J(;rWIV?~iQidence,the plaintiff told this-ii,' 1;'i

court that he was asked to 'prepare' and submit a "budget" and that

the plaintiff did prepare and submit a budget of Tsh.l,390,OOO/=.

iI,,' l\,,'~I;The document containing the budget Was not produced in evidence

T, .,". ~t,' l

and there was no evidence whatsoever that the alleged budget was•

agreed upon or approved. A mere ascertation that a budget of,tik' I'

, 'i!1~}.Tsh.l,390,OOO/=was prepared,and submitted, and even without any

} \,1 " , l'proof that the alleged budgetWasa'greed upon and approved by the

l:',A'j~"'::'1),LiQI~.~'?~ ~. -,~" " ...•

, <-

-J:Defendant, does not constitute ./1 un~r~llenged evidence" proving the

existence of the alleged Loan AgreeII\~nt. Since the loan agreement,,;~,C' (:a

of Tsh.l,390,OOOj=was not,Rw~yed;fohave been made between thej"j,,~I:,l, ,I

plaintiff and the defendants, it fo1l9W's';tllatthe Defendants cannot be'Ii, .1\', ,;\

" ·:;'t,. •.', ,',\ \ v ,'.-l{:1i\._ .....

held to be in breach of a nqn e1i~~t\~S')M'qr.agreement. As for the loan

\:, "'~;,!~

agreement for the supplying ~qf,:a,griculturalinputs, this was not an

issue raised by the plaintiff in the Amended Plaint. The whole

plaintiffs suit as can be ascerta~nedrrom the Amended plaint, is\lc'l:J

based on an alleged breach 9~,,,SQ'!1tractor Agreement, by thet' I:~

Defendant to pay the plaintiff, th~,ampunt of Tshs.690,OOOj=being~.t~, ~~I,": ' ,~,; ~'; ,:jjr;tr;' ('t i (:

the balance on the sum of thf!1''greed ~oan of Tsh.l,390,OOOj=. The

",InDefendants could not have raisep' ~U~,f¢ncerelating to the supply of", .. ,.-t:,,(:'

" dE; bJl fl,j(Ja.! .agricultural inputs, when l:he'plaTrltiff\'had not pleaded the matter .

. 't "JAs the plaintiff failed to prove"itheexistence of the loan Agreement of

Tsh.l,390,OOOj=the Defendant was not proved to have breached the

said agreement by failing to pay tR~pl~intiff the alleged outstanding;C}7

:,' I

1,:1, 'to, "~,'/" ~;

sum of Tshs.690,OOOj=.We have(~lsd'demonstrated that if the sum oft d,

:i t.,~, 'J-

Tsh.700,OOOj=,which is adqlittedby-1 both parties to have been, 'I't'H' ,-1' ..·. I:

¥!La' 'advanced to the plaintiff, is "added to the claimed balance of

"ll'j

,1', e

Tsh.870,OOOI= which is shown i~ ~x:,€.~~1as the outstanding amount,

the total sum would amount to tg~;'r;~O,OOO/= and not 1,390,000/=,),

which goes to prove that th~V~u~~r~q~ested in Exhibit Pl, was not.•..;' .. ,,: " :',

(i:",~li~'

part of the alleged loan of Tsh':I,390,OOq,= but a specific request for a-; ,.

loan of Tsh.870,OOO/= for .whlFqfi(~hEWtl1wasno evidence offered to'\ .• I!"~ ~-l,Af'f7\.':

prove that this sum was agr~e9.:upon. The second framed issue is:, ", ,"

accordingly also answered in the negative.

The third framed issue, is "whethlif the Plaintiff suffered any loss ofJ\~' ,

. h?,tearnings as the result of the breach of the Ibdn agreement".

'.~. ,

/$;; kt~J, -)~ e

,-. ,.~~·t ) .',e ~'s <r\',. ('

The Defendants have iri'effecf submitted that this issue cannot",~t"i,': h, :','.",

but be answered in the negative. The~'I\Urther submitted that even if.I",! \. '~"'-. J

for the sake of argument it isl~~t~~~ifhat there was an agreementr1 Of It

which was breached by the B~fendant, the plaintiff failed to show

why he should be paid damages of 10,000,0001= for breach of

contract while he is claiming spedaI cl,~'i:nagesof Tsh.3,555,OOO/= and,', t,,.,!:"' l'_.'it! f.

1,680,0001= for the same breach9f cQntract. He submitted further;J - .. [',;"\. ,

that the expected income for 14 Y.~.flrs1as claimed in paragraph 21 of.~:!))1, .'

1 Yi:!l :.tthe Amended Plaint, is purely;~speculative and based on conjuncture

as it is not feasible to anticipate income based on agricultural activity~ r;:~i'j

which is dependant on the wea!th~ ah4 availability of loans and also'J,;., ?

I

flactuations of prices and taxes, ih~l\i&~~gproduction costs.

! t':'i:~t

The plaintiffs advocate 6rl'\his i~~pecontended that the plaintiffil),

has testified on how he ~U~!:!~~1:1:lgr~s'because of the breach andI,. ;, >""',, ,~,'" ,c'I,./'

"" ,I'r. ,

argued that the Defendants,"~ho ~re specialized companies dealing with

tobacco, with all the expertise they have never adduced evidence to disprove

the plaintiffs ascertains on the expected production". He submitted that- 'ij' ~<l

this was an admission that' ~K~"t~iaintiff's claim on expected'j}.; \')) !

production was correct. Withouttlhe~~ed to go into the submissions, '~cl' t

which demonstrate the alleged;~os~i,it will suffice to say that, if there. ,:1..' ,.. ··n"i.~'I "

was a breach of the loan agreementbr,j:ontract, damages would be

awarded at the discretion of tfi~'~!~~iR~tqeneraldamages do not have',. ..•.. ' ·... ;··h ...·"

'i

to be proved. As for the al{~g¢dspecific losses, these are specific

damages which the Plaintiff has to prove by evidence and not by

mere ascertation or failure of th~:,befendant to adduce evidence to: \ ,,,~.'t j" f

~ ..n!the contrary. Specific damages haxetb:he specifically proved. In the

~ ': 1" .•.. jii

l~ '(N·t . t'

present case, since it has been!fou~sI t~at the plaintiff has not proved

the existence of the loan agreement tor Tsh.l,390,000j= and since it

has as the consequence been foupd tbflt there was no breach of the"Y,;j ¥~i't..,.

~::'.. .,,;

said agreement as it did not exi~t, itf~nows that both the general and'''''''i '. ~

i ":specific damages claimed by the ~plah\tiff, have no leg to stand on.

4., ,On the evidence adduced by\.H1ePlaintiff, even assuming that there

,i .

was a breach of the agreement, whIch is not the case, the specifict :..',;",':"

, ",' ":,,,.,,' (damages relating to, loss of "eathihgs":'Tsh. 1,680,000j= (para 18),

incurred expenses for labourefs!shs.3,782,000j= (para 19), renovation

of 8 barns shs.470,000j= shortfall on production of tobacco valued at·'t,

sh.3,555,000j= (para 9 and 10), were Merely asserted, but not proved, '•. i j

, "",j1'~Jl"

by evidence. The Defendant dia:.Jlot~:fhavethe burden of disproving,

what was not proved by the plaintiff.':~l1 '['''j''

It follows that the alleged \losses suffered or expenses incurred

by the plaintiff for the alleg~d bre~~,hof the loan agreement, are not, r '<,."iriHp;s

only unfounded for there be~ng no Breach, but they were not also, j;':-;J!"; t,

proved. The third framed issue is consequently also answered in the

negative.

The fourth framed iSS}W:;j&M(~t!ther the Defendant defamed

the plaintiff". This issue, aris~~'frb,xn!raragraphs14-17 of the plaint,

in which the plaintiff has claimed that the Defendant on 23/4/97 did, . ,., ,ll}

publish or caused to be a publis'n¥ed\'Mr0rdsconcerning the plaintiff

which words were" meant and wer~.lunderstood to mean by those~

who heard them that the plaintiff' could not be trusted". The said, i

",l~d.'-~ I

words which the plaintiff has'quoteq in full in paragraph 14 of the

plaint are as follows:-

!~~1'f ~-.! },

"Kufuatana na uamuzi' Wako huo unaambiwa

wazi kuwa mkulima atakayekubeba pamoja nai ,.;1\~~ ; r;

Kampuni itakayonuhuar

" tumbaku yako.

HATUA ZA KISHER1'j{~tTACHUKULIWA

DHIDI YAKO PAMO/AG NA KAMPUNI"",

ITAKAYONUNUPt')YUMBf\KU YAKO. Na

kwa tahadhari ya 'taarij~!hii' tunapeleka Polisi., ." ""., ~F"

:'l"~~,,}" , (,'1iI'~l··rkwa ujulisho ilim'dmbo hayo yatakayotokea

?t f ,

yawe wazi kwa wahusiktl Iwote. Mtu huyu sio

mwaminifu hivyo j~1fl«J,lik4!#lnalipeleka kwenye! . "

Kampuni zote"','111'HlJ

The said words are contained in a letter Exhibit P3, which was

admitted to have been written by DVV2 the Administrative Manager; ,'~·~.:ij'~.:"~'-lI .":

of the 1st Defendant upon instructio~lfrom the said company. The

t", ~;~..'said letter Exh. P3, is addressed f(J'the Plaintiff Mr. Ramadhani Issa

Malengo and copied to STANCOM, TLTC, RUECO, INTABEX,

POLIC (sic) TABORA, KICnV~'l~~~ZI and MKUU WA MKOA." ,j I,

The Plaintiff has claimedinp~iagraph 17 of the plaint that "in" , \

consequence thereof the plaintiffs reputation has been seriously

damaged and he suffered considerable distress and

, -v')As the result of., fhe alleged deformation, the

.' ;.~,l:~, ,;,-,,1;

,j ',' \plaintiff is claiming general damages of Tshs.sOO,OOO,OOOj=.

The defendants advocate has sutmitted that this complaint has'/'j,', 'IJL',/·,". , PI~ '\ ";l"L\ 'ViP'

no merit. He gave a number Qfr£a§oil$~£The first reason is that there

,'t ' nis no evidence on record to est~bI1sh that the copies of the letter were

I

circulated and it is not elaborated as to who the recipients are.

64. ;\/ '{l

Secondly the Defendants advocate a"llguedthat DW 1 Mzee Joseph

Kishiki the Area In charge fd~K~J~~l~Yillage in which the plaintiff\ J; 1 r. ~;(/~'~ti:.',

had his farm, received informati'qp that the Plaintiff was intending to,:Jltt"'l' ,

avoid selling his tobacco produce to the Defendant, with whom he

had an agreement for agriculturalJnpPlts support. He contended that•• " •.1

it is also on record that DW 1 jnvestig'ated the allegation by seeing"

, .. ~- :": , :'

to sell the tobacco to TLTC' and the said HAMISI MJAHASI

confirmed the allegation. In a nutsheI*~the learned advocate argued

" ",Yt\' ~.Jt1i~~A~,that the letter Exh. P3 "was in fln{~;att~mptto prevent the breach of

"l;;\ a! ':/,'1agreement by the plaintiff th'ltttJfl~Defendant wrote a letter to him,

now alleged to have defamed him". He contended that the Plaintiff, It' ,~

never denied the contents of the l~tt~r'~hd that it was a fair comment.\'

"t'~;He further alleged that DW 3 corroborched the evidence of DW 2 that

f l ,. ~

it was common for Kigwa Villagers to receive agricultural inputs\ ~

; (

from one company and yet to sell their tobacco to third parties. The

, , \ \,,',~

Defendants advocate referred to the case of HAMISI V. AKILIMALI.", '.)\{·I~,}~IFJ"\~(r,'\\,

(1971) HCD No. 111 whe~e '~s~ih8YI;,f2{'g.J. defined defamation asI;) . J?i·t;·.i~.

65rH',·,

cause (oj) things substantially to disparage the

reputation of a third persov";."i\

L .'

He further quoted from the case of, ~ASKIN V JOE RODRIQUE

AND ANOTHER [1975] LRTwhere it "",as observed:

1/ In order to decide whether the words:' "!

complained of fr~,~~~W~,the Court must,L,..~,•.(

construe, the wdfdJ{'q:b~ordingto their fair and'),~-/r

natural meaning which will be given to them by

reasonable persons of o{dinarJ} intelligence and(t . . ..

should not consider ~he;fp~sons setting the

inselves to work to dedU"ceunusual meaning".I.i

The learned Defendants advocate furit~r referred to the observation1,'· ,",".. .,,',

f'" j'i(' 'j..,(".,!,I{" j "

of the Court of Appeal of ta~~~i~1~l~THUMANI KHALFANI VS,,/.,U"Ut

P.M. JONATHAN [1983] T.t.'F:'PP 6 to the effect that:

; 1,t:1\ ;

"malice does not exist where the Defendant

honestly and reasonably believed in truth of the

,. ,:

'~~~.I,,{

He submitted that the Defe~daflt had good reason to believe the

information which DW 1 received from the village that the plaintiff

was intending to sell his tobacco produ\;e to a third party, contrary to'i ','

this agreement between them. He quoted from WINFIELD and

. ,3.t "/ l(JOLOWICZ, The Law of Tors (9th Edition) Sweet and Maxwell pp.280.

"No matter that l4ti$(.j~pii1J.i,o;J1was wrong or¢ ::i':,~_"~l~.,::'},,:' Kl; :-/?,;

exaggerated or prejy.di~ed, and no matter that it:x I',

was badly expressed so that other people red all

sorts of innuendos with it, llevertheless he has a

gave defence of I fair ' coM#tent. His must., \ .,' ( ~,

honestly express his view. (~jVVhethercomment~ t-- : j

can be fair if badetno~i~e~"~re inputed to the

plaintiff depends upon circufn~,tances .. ff

i .~

The Defendants advocate su~mit~~Gil~hatthe plaintiff has not provedj ;,\/j'f .1 t~:~/t:, .

malice on the part of the 1sf !E)efend~ntwhile the Defendant even"!f1r'"'It;, 'P .•

The Plaintiffs advocate reverted ~Owhat is avared in paragraph

12 of the defendants Written Statement of Defence, "THAT, the

second defendants admits paragrpph 14 of the Plaint. The contents

of the said letter are true ,:atia:~~t~'lihstified". He submitted thatI ,

having admitted to have published the'4~famatory letter, the plaintiff

need not prove that it was:s~r¥{~(,',:fR¢,jf~rtiesto whom it was copied.:; . {I,:, . r " ~,',,;{' ,

t.

He further contended that,W>ith~'i}izaturalmeaning of the words leave inc',;.\

doubt that they are by their very nature defamatory. They go to the extent

of showing that the plaintiff is not a faithfUl person .... ". He contended

further that the story is alleged to ha~~~'loriginatedfrom one HAMISI

MJAHASI but the defendant ~ev~~c~Jtacted the plaintiff to find out"l ;I;;'~(:~!; _.:,i } ~::'·I«t 1I1!.t,' .

the truth about the allegatibhs~flgalhst him. He further contended

that HAMIS MJAHASI was not can~d:'as a witness and there was,dj;l (j t' \)

119,·:ti~t'?~'i'~~68

..... ..,i

nothing to support that allegatio,fl'ih!He submitted that In the",1./',

circumstances, the defence of privilege"is not open.: ,I ,,:'

It has been conceded by the q~t~ndants that they wrote the, ': .t to. .

letter Exh. P3, which the, P~~iJ&t!1~~~1~imsto contain defamatoryr <('

words. I agree with the Pla~n,ti~fsadvocate, the plaintiff does not

need to prove that it was circulated to those who it is shown to have

been copied to. However, it is in jeyisI~ncethat the letter did at leastI •.

get to the police, who took' ac,tion't6"linvestigate the matter. TheI }J.'i \, (.3)

question of publication caIU1-0ttherefole seriously be contested. The,~~; l

Defendants have however c1aii~~cF'Watthey were justified to publish

it, to protect their interests in th~Jtgreement they had with the:, ;~:l4l'~ltUf';~'~6'

plaintiff, that he should sell his tobEicc:~:tothem, after the Defendants, {'

~t:t tp tiJ"had advanced agricultural inputs and as it was shown by evidence,

also with cash shs.700,OOO/=,all of which were to be recovered by the

, • ,(I,

Defendants from the proceeds of salehf the plaintiffs tobacco to thei.I

Defendants. It was in evidence by DW,I, DW 2 and DW 3 that therei '), f \' ~:'\,1

.( .~J;

was information circulating lin th~,vill~ge that the plaintiff intended':'(,'": "

,i,I)':) ~, "'.:to sell his tobacco to anotnet company, through one HAMISI

MUJAHASI. DW 1 gave evidep.ce,'tpat he tried to look for the, ,"" '" '.'

I,

plaintiff but he could not get h~~~~t he confirmed the allegation1 C··;,:~

from HAMISI MUJAHASI. '.It w4s in/evidence from DW 3, SIMONI:. \ .:,

;

SIMBA KIMBULU the VillagWf~hJifman in which the plaintiff had<

his farm, that the information was' cif&lating in the Village that thec'. ill:,··IN]41t,~~t,'.t'

plaintiff intended to sell his tobla~c~l<s~c¥etlyby using the number of

HAMISI MUJAHAS, who wasralso known as HAMISI MASHUGU

who was selling his tobacco to another company known as TLTe.

"," .tDW 3 also saw the police officers Who came to investigate the matter.

DW 3 further stated that HAMI5I lMUJAHAS was dead. This will

settle the plaintiffs complaint why HAMISI MUJAHAS was not'. J, ,:~./

~ ~t; ";/:~'" , 'i'~1'

called to give evidence. Iti i~~'!~e~idence that DW 1 reported the

.f .~ ,

~ ,0t ••••• , •. 1 "-'0' :,(

matter to his company and D~2irn~s"irstructed to write the letter in'i 'i'" ::'i. ":.'":1:',: \':~ "", ,'!'~~;J );"1 ),I;)~:jI" ~s' . kt/<~

. ,I.. U ...._. ~. C"'-..

question, Exh. P3 to the plaintiff. .

'~~; ')

Defendants honestly believed thclt the plaintiff intended to sell his'ItPr .

'. 'l,:-;!, ~_i1-,l(,

tobacco to another company thropghfIAMISI MUJAHAS based on'" V'J.~~· {~

the report received and invest~g,~teq~byDW 1. If there was any doubt.~~\t. "

;",-, ".'-~ '"Sl~

on this suspected conduct, th~ i~laintiff himself confirmed it by his

own letter which be wrote to the Director of STANCOM (T) Ltd~.

dated 10/1/97 to apply for ~ loai;t~f~Jsh. 1,050,000/=. In this letter

which the Plaintiff produced .as~Xli:;~~' t~e Plaintiff complained of

failing to get sufficient fungs 1~C?II},~~,,st Defendant and sought loansl~::" ,~

from STANCOM. He stated ih that letter, in part as follows:

"With the prevaili~k circumstances I am ready

Pi.to enter into a contract with you so that I

become one of your beneficiaries. At the sameV:": ,.

time I would earnestly Creq~rgJtyou to settle my'\"

commitments with' Difn(}~·:(rf) Ltd as I become

your client".

ii"J".;.",- ,,:

This letter was not copied to Dimo~ (T) Ltd, the 1st Defendant while1\;'

the plaintiff wrote it just se\T~fi<daysafter the letter he purports to, (~ ; ,(

I

have written to DIMON (T) Ltd. on 3/1/97, asking for the loan of

Tshs.870,000/= (Exh. PI). The Defend'.lnts were therefore justified to

take measures to prevent th~ "plaint1£~("fromacting in breach of their

arrangement under which the(Defendants had supplied agricultural

inputs and cash Tsh.700,OOOj=hoping to recover the same from the

plaintiff when he sold his tobacco toJ:he Defendants. I find that the~-c~r.rDefendants were entitled to the ,d~fenc.e of justification in the

prevailing circumstances an~;,th~~e'vVere no circumstances under

which malice can be imputed 'on the part of the Defendants. The

, " I: ~"

Before coming to the last issue of reliefs, the plaintiff did avare

in paragraph 21 of the plaint, as foJlow§:

~(I., \ .:

"THAT, the 1st dejenJantJ2hused the police oj

" -,,(:~"~';~. - ,"~,'J..",I, '.iI, '

Tabora without any, jU$tification, to call the" ,

plaintiff jor questioning ahd the plaintiff was

, '}t!r'l,..lHld;~1fpart under arrest antl'rematned so arrested on',:,' ::,/, --~! : ,J

30th April, 199Tfdr (3) hours. The report was

done maliciously and without any reasonable

and probable cause. The plftintiff now claims a, ,~t~;-)'

sum ojTsh.50,OOO,OOOj=Clsigeneraldamages."

72(' it.'s,'

>,,1:; c\This complaint was nbfJramed as a specific issue, probably

because it is also based on the letter Exh. P3, which was alleged to be

defamatory. The complaint amotiht~;t3 the common law tort of false, t

,>'",,..,'

;':~:Jl-"imprisonment. The plaintiffs c~[llpl~iht is that after the Defendant

!

wrote the letter Exh. P3, which "Y9scopied to the police, the police':r"\'~~" \

called him to Tabora Regional Police Office where he was

interrogated and detained for eight (~) hours. Assuming that the'i;+1/!/;~(

police acted on the copy of th~)etter written by the 1st Defendant, the\.;,\"i'f L~

question is whether the Defendants are liable in tort for false

imprisonment, by the act of the police of calling the plaintiff and foriHJ'l n

questioning and for detaining himfori~ight hours.

'It, ••\,~,,' . \,;...

and Jolowidz ON TORTS (13th Edition)

'nrInternational Students Editions Sweet and Maxwell page 67 it is

. ' L) J i't). 'H

2':' t" 4.,

"A defendant may be liable for false

imprisonment even though h~ did not personally~1 ' ,I. ~:l

,.~ .r.

detain the plaintiff, so l~ng~a$he acted through

on intermediary Lwhoc., exercised no

.'$ I

independent discreati·QY of his own"

(emphasis mine)

In the learned treatise,"hvd cases have been cited to

demonstrate this part. The firsJ isiAuSTIN V DOWLING (1870) LR 5

C.P 534 in which a police inspector REFUSED to take responsibility

,i . Ii! 'l'.' ( .~of arresting B on a charge mad~.py A~but finally did arrest Bwhen A

, / J.! ... l1 ;111,~tr..~ i'J' '

signed the charge sheet. "Itwas'held that A could be liable for false, .r , ~

imprisonment. There can, however' be no false imprisonment if

discreation is interposed between d,ef~ndants act and the plaintiffsl ",',

detention". Another example was ghY'e where A makes a charge\ ' ~

against B before a magistrate ari(1\the magistrate then decides to

order the arrest of B. "A has slt"i~'\li1oli~hnot a ministerial but a judicial

"'J'''~officer exercising a discretion of his owitand A cannot be liable for false

I ,i,.'~,,;, t<'

imprisonment" . The legal pb'~iti!bh1~~~rding false imprisonment isI -;' /:! '!'~}',~

therefore that where the aries~f~i,person or official has exercised his

discreation after rev~iving a report from a complainant like the

:~." f

vt

plaintiff, the complainant is.Jl.ot li~ble. In the present case thet t;"

Defendants wrote the letter itq th;e.:rraintiff and copied it to the,,.\., ",/ \.. ~....

1, .r';ltj()1J .i7ega,

Regional Police at Tabora. ~~f~,~itrribt make a specific charge or ask.~.

the police to investigate theit complaint or to arrest the plaintiff.

There was no evidence from the Plaintiff to that effect. The police

appear to have acted on their 6~n,s,giscreation to investigate theI. )

allegation. In these circumstanc~s' ~t Defendants cannot be held

liable if the police did arrest afl~ (~ft~ih the plaintiff. The complaint!'1' , ,

of false imprisonment against the Defttl1p.ants,cannot therefore stand.

Since the Plaintiff has,f~i1e~it~ '~;ove any of his claims and allf."'., j "." l,).;

the issues being answered in the negative, this suit is dismissed, with

Dated 19/8/2008

"\' $I

Delivered in the pres~h~~31 the Plaintiff and in the absence of

the Defendants with notice to their advocate this 19th day of August,

2008. Right of Appeal is explained:

,Gl~l~"rJ:I.~VJIUDME