IN THE HIGH COURT OF TANZANIA

AT DAR ES SALAAM

CIVIL CASE NO. 146 OF 2010

MIC (T) LTD................................................................. PLAINTIFF

VERSUS

THE EDITOR, MTANZANIA...................................1st DEFENDANT

NEW HABARI (2006) LTD....................................2nd DEFENDANT

MWANANCHI COMMUNICATIONS LTD................... 3rd DEFENDANT

RULING

Mwariia, J.

In its written statement of defence, the 3rd defendant raised a

preliminary objection which consists of four grounds:

" (i) That the plaint does not disclose a cause o f action
against the third defendant in view o f the fact that
(a) the alleged defamatory words are not quoted in
■. verbatim in the plaint and (b) nothing is pleaded in
the plaint against the third defendant

(ii) The plaint does not disclose a cause o f action

against the third defendant in view o f the fact that
the third defendant is sued as the printer.

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 (Hi) The plaint is incurably defective in that it is
incurably verified in contravention o f rule 15 o f
order VI and (sic) o f the Civil Procedure Code,
chapter 33 R.E. 2002.
(iv) That the suit is bad in law as it is instituted without
authority o f the Board o f Directors o f the plaintiff.

On its part, in its reply to the written statement of defence, the plaintiff
also raised a preliminary objection against the 1st and 2nd defendants'
defence to the effect that:

'The written statement filed by the 1st and 2fld

defendants is time barred and contravenes Order
VIII1. (2) o f the Civil Procedure Code, cap. 33 R.E.
2002. "

With leave of the court, the parties argued the preliminary objections
by way of written submissions. They were ordered to file their submissions
for each of the preliminary objections simultaneously. Since the effect of
success in any of the grounds of the preliminary objection raised by the 3rd
defendant is to render the plaint incompetent hence rendering superfluous
the preliminary objection raised by the plaintiff, I will start to consider the
3rd defendant's preliminary objection.

In his written submission, the learned counsel for the 3rd defendant
abandoned grounds (ii), (iii) and (iv) of the preliminary objection and
argued only ground (i) which has two parts, (a) and (b). As to part (a) of
that ground, the learned counsel argued that the plaintiff did not state in
the plaint, the particular words which are alleged to be defamatory of the
defendants. According to the learned counsel, the alleged defamatory
words complained of by the plaintiff constitute the basis of the claim which
ought to be proved hence the requirement that they must have been
specifically stated. He cited to that effect passages from the books Bullen
& Leakes and Jacob's Precedents of Pleading, 12th Ed. at page 626

and Winfield & Jolowics, 11th Ed. Sweet & Maxwell, 1979 at page 283.
He also cited the case of Nkalubo v. Kibirige (1973) E.A. 102 and Fatma
Salmin v. Dr. Maua Daftari, Civ. Case No. 34 of 2008 (HC-DSM)

(unreported). As to part (b), it was the argument by the learned counsel

that the plaint does not disclose a cause of action against the 3rd defendant
because there is no specific allegation made against it in any of the
paragraphs of the plaint.

In response, the learned counsel for the plaintiff started by

expressing his doubt as to whether the point raised by the learned counsel
for the 3rd defendant is a pure point of law or not. He contended that the
nature of the point raised may tend to require ascertainment of facts. He
however proceeded to make his submission in reply to the arguments
made by the counsel for the 3rd defendant. On part (a) of ground (i) of the
preliminary objection, the learned counsel argued that the counsel for the
3rd defendant is wrong in contending that in a case based on defamation,
the alleged defamatory words must be set out verbatim in the plaint. He
argued that the plaint discloses a cause of action without specifying the
defamatory words complained of because it complies with the
requirements stated in O.VII of the Civil ProcedureCode, Cap. 33 [R.E.

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2002] (the CPC) He cite to that effect the case of G. P. Jani Properties
Ltd. (In Voluntary Liquidation) v. Dar es Salaam City Council

(1966) E.A. 281 to substantiate his argument that a plaint is competent,

when it complies with that provision of the CPC.

The learned counsel went on to submit that since cuttings of the

relevant newspapers, have been attached to the plaint, the need for
quoting in the body of the plaint, the entire contents of the words
complained of did not arise. He stressed that to do so would "breach the
guidelines requiring the need to observe brevity and precision in the
presentation of facts in the pleading." He cited Mogha's Law of
Pleadings in India, 15th Ed. 1998 at page 47 where the learned author

reiterates the position that the material facts should be stated in a concise
form, but with precision and certainty. Relying on that requirement, the
learned counsel argued that it was sufficient for the plaintiff to annex the
relevant portions of the newspapers, (MIC 1 and MIC 3) as they constitute
a bundle of essential facts.

As to the authorities cited by the learned counsel for the 3rd

defendant, the learned counsel for the plaintiff attempted to distinguish
them. He argued that the decision in Nkalubo case (supra) related to a
letter written in Luganda and that therefore, it was required to be
transalted in English so that as to be understood by the members of the
court who did not understand language. In this case, the learned counsel
argued, Kiswahili is understood by both members of the bench and the bar.
As to the Byombalirwa case (supra), the learned counsel submitted that
unlike in the present case which is founded on defamation, that case
concerned a disclosure of cause of action in a suit which arose from a
contract under the provisions of the Sale of Goods Ordinance.

On the Dr. Maua Daftari case (supra), he pegged his distinction on

the existing relationship between the parties involved in the case. He
stated that while the relationship between the parties in that case was
private, in the present case, the dispute is between competeting mobile
phone business firms. The learned counsel made another argument that
the 3rd defendant will not, in any case, be prejudiced by the defect of the
pleading because rules of procedure being a hand maidens of justice,
should not be used to hinder dispensation of substantive justice. He cited
the cases of Philip Anania Masasi v. Returning Officer, Njombe
North, Attorney General & Jackson Makweta, Civil Case No. 7 of

1995, (HC) (unreported) and Covell Mathews Partnership Ltd. v.

Gutam J. Chavda Civil Case No. 33 of 2002 (HC-DSM) (unreported) to

bolster his argument.

On whether or not the case discloses a cause of action, the learned

counsel for the 3rc1 defendant relied on the cases of Dr. Salim Ahmed
Salim v. The Editor, the East African & Anr., Civil Case No. 332 of

2002 , Jani Properties Ltd. (In Voluntary Liquidation) v. Dar es

Salaam City Council (1966) E.A. 281 and Jeraj Shariff & Co. v. Chotai
Fancy Store (1960) E.A. 373. The decisions in the two cases restated the

meaning of the phrase cause of action and the position that in considering
the issue whether a plaint discloses a cause of action or not, the court has
to look at the plaint alone and its annextures.

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 Responding the contention that the plaint does not raise any claim
against the 3rd defendant the learned counsel for the plaintiff referred to
paragraph 4 of the plaint and submitted that according to that paragraph,
the 3rd defendant has been joined in the suit because it printed the
newspaper which published the alleged defamatory article and that it was
therefore jointly liable with the other defendants for publishing the
defamatory material.

Regarding Dr. Maua Daftari case, the learned counsel for the
plaintiff urged me not to follow that decision. He submitted as follows:

"With regard to the first and main aspect o f the

objection i.e. on the alleged failure o f cause o f
action, I have attempted to show that, contrary to
the submissions o f the 3 d defendant, the plaint
contains a sufficient collection o f facts - otherwise
called a bundle o f essentia! facts which it is well
prepared to prove during the trial. Now having
referred to the preceding authorities, I find myself
in a most unenviable position to ask you to vacate
the precedent established under Maua's case."

In rejoinder, the counsel for the 3rd defendant argued that although it
is true that in finding whether a plaint discloses a cause of action or not,
the plaint together with its annextures have to be looked at, that does not
exempt the plaintiff from quoting verbatim the words alleged to be
defamatory. He stressed that the court cannot be left to venture into the

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exercise of picking out from the plaint and its annextures, words which are
complained of as being defamatory. On the argument that it is
impracticable to quote the defamatory words because of bulkiness of the
article, the learned counsel for the 3rd defendant submitted that the
plaintiff is not required to quote the whole article but particular words
which are alleged to be offensive. Furthermore, as to the argument that
according to the law, facts of the case must be precise hence the reason
why it was not necessary to state in the plaint, the particular words alleged
to be defamatory of the plaintiff, the learned counsel argued that this legal
position does not exempt a plaintiff from complying with the requirement
of specifying the words which are alleged to be defamatory.

On the position stated in the Nkalubo case (supra) the learned

counsel responded by arguing that the stated position is supportive of his
argument because, contrary to the argument made by the counsel for the
plaintiff that the requirement arose because the alleged defamatory words
were in Luganda language, the court re-iterated the principle that in a suit
based on defamation, the particular words complained of must be
specifically stated so as to enable the defendant prepare his defence.
Responding further to the argument by the counsel for the plaintiff that the
decision in Dr.Maua Daftari case is distinguishable, the counsel for the
3rd defendant contended that the fact relied on by the plaintiff's counsel in
distinguishing the case is not of relevance because it is based on the
personality of the parties. He argued that in that case the distinction was
based on the fact that in Dr. Maua Daftari case, the suit was between
natural persons, while in this case it is between juristic persons is of
insignificant material difference as regards the principle in question.

Having considered the submissions made by the learned counsel for

the respective parties, I wish to answer first, the issue whether or not
ground (i) of the 3rd defendant's preliminary objection raises a pure point
of law. The counsel for the plaintiff expressed that he was doubtful as to
whether that ground would not require evidence thus not a pure point of
law. I need not be detained much in answering this issue. It is a legal
requirement that a plaint must disclose a cause of action. This is in
accordance to O. VII of the Civil Procedure Code, Cap. 33 [R.E. 2002].

In his submission, the learned counsel for the plaintiff stated

correctly that in finding out whether a plaint discloses a cause of action or
not, it is the plaint alone and its annextues which is to be looked at. This
being the position therefore, the issue whether the words alleged to be
offensive of the plaintiff should have been specified in the plaint or not
does not require evidence to be answered. Under the circumstances
therefore, ground (i) of the preliminary objection raises a pure point of law
because, as stated above, it does not require evidence to be ascertained.

I will now consider the issue whether or not the plaint discloses a
cause of action against the 3rd defendant. The description of the said
defendant is given in paragraph 4 of the plaint. Referring to that
paragraph, the counsel for the plaintiff argued that the 3rd defendant has
been joined in the suit by virtue of its role in printing the Mtanzania
Newspaper which published the alleged defamatory article. In paragraph 7
of the plaint the allegation is that the defendants jointly and together
caused the publication of the alleged defamatory articles against the
plaintiff. Considering the contents of the two paragraph it is clear that the
3rcl defendant has been sued on the ground that it did, jointly with the
other defendants, cause publication of the alleged defamatory article. The
contention that nothing has been pleaded against the 3rd defendant is

therefore devoid of merit.

Coming now to the issue whether or not the alleged defamatory

words must be specified in the plaint, I held in Dr. Maua Daftri case that
it is a legal requirement that in a defamation case, the words complained
of mustbe quoted verbatim in the plaint. I cited a passage in Bullen &

Leake &Jacobs precedents of pleadings, 13th Ed. S & M (Lon.) 1990.

The learned authors state as follows at page 623:

" The words must be set out verbatim in the

statement o f claim. It is not enough to set out their
substance or effect (Harris v. Warre (1979) 4 CPD
125 at 127; Collins v. Jones (1955) 1 QB 564).
Where the defamatory words form only part o f
longer article or programme, the plaintiff must set
out in his statement o f claim only the particular
pages o f which he complains as being defamatory
o f him (DDSA Pharmaceuticals Ltd. v. Times
Newspapers Ltd. (1973) 1 QB 21, CA). Question and
answer must be set out if the libel is contained in
 both together Bromage v. Prosser (1825) 4 B &

C. 247)."

The persuasive decisions in the cases of Collins v. Jones and DDSA

Pharmaceutical Ltd. v. Times Newspapers Ltd. (supra) clearly lay

down the position which I adopted. In his submission, the learned counsel
for the plaintiff attempted to distinguish the case of Dr. Maua Daftari
ease with the present case. In my considered view, the reason given that;
whereas this case involves juristic persons, the former case involved
natural or private persons is, as argued by the counsel for the 3rd
defendant, not insignificant. The requirement of setting out verbatim the
words complained of in a defamation case does not have different
standards of application between natural and legal persons. I do not also
find merit in the submission by the learned counsel for the plaintiff that the
case of Nkalubo is distinguishable. In attempting to distinguish that case,
the learned counsel looked only at one aspect of the holding which is to
the effect that when the alleged libel is in a language other than English,
the statement complained of must be translated into English. Had the
learned counsel thoroughly read the judgment, he would have noted that
this aspect was based on the principal that the alleged defamatory words
must be set out in the plaint. In that case, it was clearly stated by the
Court of Appeal of Kenya that when the alleged defamatory material is not
in English, the actual words complained of must be set out in the plaint,
firstly, in the language used and secondly, their literal translation in
English. The court stated as follows at page 103 of the judgment.

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 "In all suits ror uoei me aciudi wuiu* c

must be set out in the plaint. It was said by Lord

Coleridge, C.J., in Harris v. Warre (1979), 4 C.P.D.

125 at P. 128:

'In libel and slander the very words

complained o f are the facts on which the action is

grounded. It is not the fact o f the defendant having

used defamatory expressions, but the fact o f his

having used those defamatory expressions alleged

which is the fact on which the case depends.'

Those words have often since been cited with

approval. Moreover, the letter was written in

Luganda; that being so, the particular words

complained o f should have appeared in the plaint

on that language followed by a literal translation

into English."

Basing on the position as I have stated herein, the contention by the

learned counsel for the plaintiff that the plaintiff could not set out verbatim

in the plaint the words complained of because of the requirement of stating

only the concise facts in compliance with O.VII of the CPC is, with respect,

not correct. 0. VII of the CPC relied on by the learned counsel is a general

provision governing pleadings. The requirement of setting out the words

alleged to be offensive to the plaintiff is a principle which is specific to

pleadings in defamation cases.

ii
 In substantiating his argument, the learned counsel also cited
Mogha's The Law of Pleadings in India, 15th Ed, 1998 at page 47 and

stated that it was not necessary to quote in the body of the plaint, the
alleged defamatory words. As stated above the rule that the material facts
must be concise is a general rule of pleadings. At page 690 of the 18th Ed.
of the same book, the learned author states the points which a plaint in a
suit for libel must contain. He states as follows:

"The following points must be alleged in the plaint:

The exact words which are said to be defamatory or
a description o f the painting or signs claimed to be
defamatory with their latent significance must be
alleged in the plaint. "

At page 29 it is stated as follows as regard a suit based on defamation.

"It is a rule o f pleadings th at... the publication o f

defamatory statement should be alleged and it
should be stated that the words were published or
spoken to some named individuals and actual
words should be set out and the time and place,
when, where and how they were published should
also be specified in the plaint." (Emphasis added).

The same position is stated in Odger's Principles of Pleadings

and Practice in Civil Actions in the High Court of Justice, 20th Ed by

Giles Francis Harwood, 3rd Indian Reprint (2010), Universal Law Publishing
Co. PVT Ltd, New Delhi. The learned author states as follows:

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 " ...In an action for iibe! or slander the precise
words complained o f are material, and they must be
set out verbatim in the statement o f claim. I f the
words taken by themselves are not clearly
actionable, the plaintiff must also insert in his
statement o f claim an averment (with particulars in
support) o f an actionable meaning which he will
contend the words conveyed to those to whom they
were published. Such an averment is called
innuendo (Harris v. Ware (1979) 4 CPD 125, 48
LTCP 310, Collins v. Jones (1955) 1 QB 564,
Rubber Investment Ltd. v. Daily Telegraph
Ltd. (1963) 2 WCR 1063.)"

It was also the argument by the counsel for the plaintiff that non
compliance with the requirement of quoting verbatim in the plaint the
words complained of does not prejudice the defendant. To re-iterate what I
stated in Dr. Maua Daftari case, the purpose of setting out in the plaint
the alleged defamatory words is to make the defendant know the exact
words complained of so as to enable him defended his case properly. This
view finds support in the Nkalubo case. Stating the objective behind the
rule that the alleged defamatory words must be set out verbatim in the
plaint, the court had this to say:

"This is not a mere technicality because justice can

only be done if the defendant knows exactly what

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 words are compiaineu ui, s u m a t u c l an

defence."

Where the words are not specified in the plaint therefore, it is clear that

the defendant will be prejudiced as he cannot understand beforehand the

nature of the statement against which he has to defend himself.

On the basis of the reasons stated herein, I uphold ground (i) (a) of

the 3rd defendant's preliminary objection. Since the plaintiff did not set out

verbatim in its plaint the alleged defamatory words, the omission renders

the plaint incompetent for failure to disclose the cause of action. The same

is therefore hereby struck out with costs.

A. G. Mwarija

JUDGE

5/ 9/2014

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