Malinga v Babirye (Civil Appeal Number 49 of 2010) [2014] UGCA 134 (1 February 2014)

Full Case Text

### THE REPUBTIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

### CIVIL APPEAL NUMBER 49 OF 2O1O

# (Arising from Civil Suit No. 351 of 2005)

MALTNGA RAYMOND APPELLANT

#### VERSI. JS

BAB!RYE RUTH RESPONDENT

# CORAM: HON. JUSTICE RICHARD BUTEERA, JA

# I{ON. JUSTICE GEOFFREY KIRYABWIRE, JA

HON. JT.jSTICE PROF. I." Ei(!RIKUBINZA-TIBATEMWA, JA

### JUDGMENT

### Background

l'he brief facts of this appeal are that the appellant sued the respondent, the sister of his iate rvife at the High Court for defamaticn founded on a letter authored by the respondent concerning tf'e appellant dated 10th of January 2005. The letter (Extribit Pi.) was addressed to the Administretor General/Public Trustee and copied to Akright Property Managers, thc Huriran Resource Manager, Barclays Bank and tire Nationol Social Security Fund. l'he appellarrt contendeci that he was defamed llr, the letter while the respondent denied any defamation whatsoever. ln that iettei', the responcient stated among others that the appellant was a destitute old

?P t, ,)J

i^\

man, physically invalid moving on crutches, an opportunist and totally dependent on his deceased wife's property. This, the appellant averred was defamatory and that the letter was written to discredit him in the management of the estate of his late wife. ln its Judgment the trial Court found that there was no defamation and no damages were awarded. The appellant being dissatisfied with that decision instituted this appeal.

Originally, the appellant had formulated eight grounds of appeal for consideration and determination by this Court. However, at scheduling conference the parties agreed to reduce the grounds to only three namely:

- 1. Whether or not the learned trial Judge erred in law and fact in holding that the letter complained of was not defamatory. - 2, Whcthel or not the learned trial Judge properly evaluated the evidence on record. - 3. Whether or not the learned trial Judge erred in law and fact in not awarding damages for defamation to the appellant.

The appeilant vros represented by Mr. Richard Omongole from Omongole & Co. Advocareg while the respondent was represented by Mr. Fred Kizza of Katende, Senrpebi.ra &. Crr. Advocates. The appellant arnalgamated grounds one and two and argucrj tirer';i logether in their written submissions. VJe shali therefore adopt this ordel in resolving the grounds of appeal.

tw\_

ll. t

# I GROUNDS ONE AND TWO:

Whether or not the learned trial Judge erred in law and fact in holding that the letter complained of was not defamatory [and]

Whether or not the learned trial Judge properly evaluated the evidence on record

# ARGUMEI{]'S FOR TI-iE APPELI. ANT

Counsel for the appellant submitted that the learned trial Judge erred in holding that the appellant had not proved that the publication by way of a letter dated LOth Jarrr.rary 2006, exhibit P1 was defamatory of him. Counsel for.the appellant then subm;tted that the appeltant proved that the letter was defamatory of him because it mentioned the appellant's full names and was addressed to Administrator Generai/Public Trustee and copied to Akright Property Managers, the !-luman Resource Manager, Barclays Bank and the National Social Security I:und, all of lvhom got the said letter. 'fhe letter that was written to all these people was calculated to put the name of the appellant into disrepute. Counsel for the appellant submitted that there was no basis for the letter written by the responrient, other than to defame the appellant.

Counse! also 1:ointed out that the evidence on record showeci that the appeilSnt though a ;etireci police officer was earning a pension of Ushs. 423,000/=, and tfrerefcrr: \\'as not e dependant as stated in the defamatory letter. Counsel further pointed out ti-rat the appellant owned land., on vyhich he cultivates, has a grinding nlill anur has rentaI houses which are other sources of income. Counsel submitted that thil cvidence was not discredited during cross-exa m inatio n and thus remains

EE- 3

ru- rra c^-<co.'"\* h

uncontroverted. He submitted the presence of these other sources of income rendered the contents of the letter malicious and was written with the purpose of portraying the appellant as a destitute, unfit to administer the estate of his deceased wife or take care of his own children.

PA I

Counsel for the appellant referred to the evidence of the respondent (DW1) urhere in cross-examination, she testified that she wrote the letter intentionally as a result of frustration to force the appellant to discuss mattei.s regarding the estate of the deceased. This shcwed that the letter was not written in good faith. ln this regard counsel for the appellant referred Court to the case of MAJOR GODFREY SEGAV,'A vs EDITOR OF THE CRUSADER NEWSPAPER & ANOR (1998) 1 KALR 1 at page S (HC), where it was held that the Courts will look at the motive rnd corrduct of the defendant and rvhere it is established that the article was publishecl maliciousll, and thereafter the plaintiff has complained of the falsity of the matter and injureC feelings, then such behavior is likely to aBgravate the dar"-"ages. Furtherreliance was placed on the Supreme Court authority of SARAH KANASC'vc NGABO I{EWSPAPER [1994] Vl KALR 169, where Court observed that the respondents never vacated the allegations made against the appeliant and never offered an apology but irrsteaci sought to justify them and did so miserably.

Counsel ior the ;:ppellanl subrnitted that the respondent refused to apologize vrhen asked to do so in Couft and instead firmly stated that she meant whatever she hari ',vritten. lt is thereiol'e the case for the appellant that it r,vas,an errcr for the triai juCgc to holil that the respondent vi/as .iustified in publishing the defamatory letter.

### ARGUMENTS FOR THE RESPONDENT

.ordinory,

Counsel for the respondent submitted that the letter written by the respondent was not defamatory and made reference to Sir John Spry in his book titled Civil Law of Defamation in East Africa, at page 2, that:

"A stotement is defomotory if it is likely to lower the person of whom it is mode in the estimotion of iust ond reosonable men"

Further, at page 14, that:

"When the defomotory stotement is contoined in written or printed words or in pictures, the wrong is known as libef'

Counsel then submitted that in construiug the language of an alleged libel, the lvhole publication must be taken into account and words must be given the most rraturaland obvious meaning in which tlrose to whom it is made would be likely to understand them in a libelous sense. Counsel for the respondent further subrnitted that the respondent was justified in writing the said letter because it rvas based on truth. He relied on the case of JOI{N NAGENDA V THE EDITOR OF MONITOR NEWSPAPER & ANOTI'IER, SCCA No. 5 of 1994, [1995] Vl KALR 129 where it was held that:

"The truth of ony olleged deJomatory words Eenerolly offords on absolute defence

Fur'l:her, reliance rvas placed on the coee of E. L HOARE & OT,{ERS V ERIC JESSOP (1-965i E. A 218 at page 32 that:

)r<rt-':"

"...on the evidence, the defence of justification should hove succeeded ond it wos irrelevont whether the defendant wos octuoted by indirect or improper motives"

ln this regard counsel for the respondent outlined the contents of the letter alleged to be true. That:

- i. The appellant was a dependant of the deceased according to his own admission and the deceased kept giving maintenance funds to the appellant even when she was on the hospital bed. - ii. The appellant was staying at the deceased's house with Alice and Mary, the children of his brother's daughter and Simon, a son of his elder sister who were not children of the deceased compounding the fact that other appellantrs dependants would share in the estate of the deceased to the detriment of hei children. - iii. The eppellant did not have money to pay school fees for the deceased's children and was even receiving money for the home upkeep from the Acjministrator General and Barclays Bank where the deceased worked. At Barclays Bank, the appellant and the respondent were on several occasions jointly asked to sign letters of indemnity in order to receive school fees from the Bank for the deceased's children prior to getting letters of admini5tration. - iv. The appellant went to South Africa about five (5) times for treatment because of sickness, - 't. At the :ime of death of the respondent's sister, the appellant was moving on crutches which he attempted to use to beat the respondent's mother at

\ W #,

the Administrator General's office in a meeting organized by a one, Jackie Ma zinga.

The appellant withdrew the deceased's entitlement of Ushs. 25 million from National Social Security Fund (NSSF) without letters of administration and could not properly account for the same until he was forced by the High Court of Uganda.

# RESOLUTION OF THE COURT

### The Principles

### Defamation

r\$:

BlacKs Law Dictionary 8th Ed, at page 1259 defines defamation as "the oct of horming the reputotion of onother by moking o folse stotement to o third person, written or orol thot domoges onother's reputotion".

Where the act of defamation is by means of writing, print or some other permanent form as occurred in this case (by a letter), then that type of defamation is called libel (see: Osborn's Law Dictionary 5th Edition).

According to P. H. Winfield, A Textbook of the Law of Tort, at 242 (5th Ed. 1950), Defamation is the publication of a statement which tends to lower a person in the estimation of right-thinking membe rs of society generally; or which tends to make thern shun or avoid that person. According to SIM V STRETCH [1939] 2 ALL E. R !237,Lordlrtkin put forward the following test:

"The conventionol phrase exposing the plointiff to hotred, ridicule and contempt is probably too norrow. The question is complicoted by having to consider the person

.rrr,\*.\*f, b'

ond closs of persons whose reoction to the publicotion is the test of wrongful chorocter of the words used..."

Defamation according to Neill L. J in the case of Gillick V BBC [199G] E. M. L. R 2G7, would involve the words "likely to offect a person odversely in the estimotion of reosonoble people generolly". Defamation therefore is an injury to one's reirutation and reputation is what other people think about a man and not what he thinks about himself.

According to Clerk & Lindsell on Torts (Sweet & Maxwell), 20th Ed., at page 1416 whether a statement is defamatory or not depends not on the intention of the defendant but on the probabilities of the case and on the natural tendency of the publication havirtg regard to the surrounding circumstances. lf the words published haVe a defamatory tendency, it will suffice even though the imputation is not believed by the person to whorn they are published. Mere intention to vex and annoy. wiil not make the language defamatory which is not so in its own nature.

### Actions in defamation

The general rule is that libel is a tort actionable without proof of special damages (Osborn's Law Dictionary, 6th Edition). ln other words, libel is actionable per se. This is because a person who publishes defamatory matter on paper or in print puts in circulation that which is more permanent and more easil)' transmissible than oral slander (seei Ratcliffe V Evans [1892] qB 525). lt is a defence to an action for libel (1) that there was no publication; (2) that the words used were incapable of a defamatory meaning; (3) that the words used were true in

substance and fact (ju stif icatio n); (4) that the publication was privileged (See: osborn's Law Dictionary, 6th Edition).

A defence of fair comment may also be raised.

ln her written statement of defence at Paragraphs 8 and 10 at the High Court, the respondent/defendant relied on the defenses of fair comment and true representation (justification).

# The defence of Fair eomment

The defence of "tair comment" protects statements of opinion or comment on matters in the public interest. Everybody has a right to comment within the limits of fair comrnent whether he/she is a writer, reporter, newspaper editor or ordinary citizerr in a letter to a friend or by way of spoken comment. The modern authoritative stateinent of the law of fair conrment is to be found in TSE WAI CHUN I,AUL V ALBERT CFiENG [2001] E. M. L. R 31 where, in the Court of Final Appeal of Fiong Kong, Lord Nicholls outlined the history and principles of the defence. Tlre ciefendant must overcome four hurdles in order to establish the defence:

- i) The statement must be comment and not fact. - 2) The cornnrenr must have sufficient factual basis (that is, the comment must be hascri on f'ects which are themselves sufficiently true). - 3i The comrrrent must be objectively "fai/'- i.e. it must be an opinion which an hcnest person could hold. This is an objective test, but should not be cc.nfused witlr r.easona bleness. - 4) iire subject rrratter of the comrnent must be of public interest.

w . - .,\O< -.>a -\'Ri^/\- M,

Where these are surmounted, the defence will succeed unless the claimant proves that the comment was maliciously published. Malice when considered in the context of the defence of fair comment effectively means that the respondent did not honestly believe in the opinion he or she was expressing. (Clerk & Lindsell on Torts (supro) ot poge 7520)

## The defence of Justification

'\*.

The meaning of the defamatory statement is a theme which runs through the whole of defamation law and in particular the defence of justification. This is a complete defence to an action fol defamation, that is, that the statement is true. The general rule is that the defendant must prove the defamatory sting of the publication but he need not prove the literal truth of every fact which he has stated. Where the ailegation against the claimant is general in its nature, he is entitied to particulars of the facts relied upon in support of the plea of justification. !n such a case, the defendant may give particulars of facts occurring within a reasonable time after the publication of the libel which go to show the existence of a tendency or character such as the claimant is alleged in the libel to possess, since the law will not allow a F,erson to recover damages for injury to a character he is not in fact entitled to. (Clerk & Lindsell on Torts (supra) ot pdge 1.453)

It is the appellant's case that the respondent defarned him through her act of arithoring a letter dated 10th January 2006 (Exb P1). This letter was written to The Administrator General and copied to third parties, i.e. Akright Property Managers arrd Human Resource Manager Barclays Bank. !n that letter she wrote to contest the grant of letters of Administration to the appellant.

ln the said letter, the respondent stated that she was the sister of the deceased and wrote to protect the interests of her late sister's children. She stated that the appellant lived with her deceased sister but was not married to her; that he resided in her house and was dependant on her income. She wrote:

"... Mr. Molingo has no personol income of his, old mon (sic) and physically involid moiing on crutches and has been depending on the income of the deceased ond now ofter the death of the latter the burden has shifted to his working children..."

She also wrote that:

"...it is cleor Mr. Molinga's interests are whole (sic) focused on the deceosed's propefi ond not the Children..."

She further wrote that:

"...8y cop1, of this letter rve are appe.aling to the Land office, Borcloys Bank ond N. S. S. F office to regord the representations from Mr, Molinga os o husbond of the deceosed and co owne:r of the property to be folse..."

It is alsc the case for the appellant that the letter was understood to mean that hb was:

- i. Not a proper llerson to administer the estate of his deceased wife, - 2. [o] v.roman-property snatcher and should be treated with contempt, - 3. [a] thiel fraudster and a gambler in life who steals from his own children, - 4. [oJ corrupt and unworthy,

5. Guilty of chilC neglect and abuse ancl should be investigated and/or arrested, ' nd

Dtr-

. Irc;\-{n\*-'-\*' b

' df]-

6. Homeless, an invalid and a total dependant on his young children's share of the deceased's property

The appellant gave evidence that he was a retired senior police officer who retired at the rank of Assistant Superintendant of Police and at the time of the trial, was aged sixty-eight years. He also stated that he was a family man, a father, grandfather and elder in the community. lt was therefore the appellant's case that any member of society who read the letter would think less highly of him and would also avoid contact with him.

We recall that the duty of a first appellate Court is to re-evaluate the evidence, weighing conflicting evidence against each other, and reaching our own conclusion on the evidence, bearing in mind that we did not see or hear the witnesses. (See: Rule 30 (7) oI the Rules of this Court, Pondhyo v R [1957] E. A 336 ond. Bogere Moses v lJgondo, SCCA No. 1 oI 79971

For an action in defamation to result, there must be proof of publication. Here, the respondent admitted to being the author of the alleged defamatory'letter that refers to Mr. Malinga Raymond, the appellant. The said letter was addressed to the Administrator General and copied to Human Resource manager, Barclays Bank, National Social Security Fund (N. S. S. F), Akright Properties Manqgers and to the family of the appellant. lt was however stated by the respondent at trial that she did not send the copies to the NSSF and Akright Properties Ltd as she deemed it unnecessary. To our mind as long as the letter went out to third parties, that amounts to publication and it is not necessary that publication is made to a very wide audience.

/,i

we have given due consideration'to the decision of the learned trial Judge and the reasons for holding that the action of defamation was not proved. We have also considered the defences of justification and fair comment which the respondent relied upon. Regarding the issue of the deceased's National Social Security Fund (N. S. S. F) benefits, we respectfully do not agree with the trialJudge that the act of handing over the NSSF card by the deceased to the respondent justifiably gave her responsibility to take care of the benefits. lt wa5. the respondent's submission that she was the next of kin and entitled to receive those funds. However, we find no documentation on record evidencing that the respondent vras the registered next of kin. There is also uncontroverted evidence that the appellant received the NSSF benefits amounting to 26,000,000/= as a nanred Cependant of the deceased and was compelled by the Registrar, Family Division of the Higlr Court to account foi'the funds. Based on her letter, the respondent in her minci was convinced that by being handed her sister/s NSSF card, she.sornehow by that act became next of kin. Exhibit D5, a printout from I'JSSF hovrever does not show the respondent as a dependent of the deceased. lt shows that the deceased recorded herself as being married to the appellant and that the appellant was registered as her dependant along with the children she had vrith him. \,Ve are'unable to find any justiiication for the respondent to '?qr' purport to copy her letter to NSSF and refute the very details her deceased sister h:id provided to NSSF. The issues of accountir:g foi'the money he received from NSSF ccruld harvs been achieved rryithout the kind of letter that the respondent r.rrote. lndeeC the appellant was subsequently asked by the Registrar Family Division to account for the money.

,I^}D<Jil\*''

On the allegation that the appellant was a dependant of the deceased, we find that it is not in dispute from the evidence on record that there was some degree of interdependence between the deceased and the appellant. However it is the case for the appellant that by reason of the letter he was portrayed as a womanproperty snatcher, fraudulent, a thief and an opportunist, which was damaging to hi.s reputation. That given his highly placed position in society and member of the Itesot community in Uganda, his reputation has been tarnished in the eyes of his contemporaries and right thinking members of society.

The appellant testified that he too had what he called personal income which included a pension of Ugshs 423,OOO/=p.a, a house for rent at Ug shs 150,000/= g month in the village at Kachede district, a grinding mill where he earns Ug shs. 70,AAO/= per week and a commercial house for rent at 50,000/= per month in Naluwerere, Bugiri district. He further stated that he is engaged in farming, has 50 cows and earns Ugshs. 3,000,000/= every season from agriculture.

A review of the evidence shows that though the appellant and the deceased were not formally married, they clearly lived as husband and wife. The trial Judge referred to this situation as "co-ha bitation", This situation was widely known in the public. Mr. Okurut John Peter (PW 3), the former Human Resource Manager with Barclays Bank testified that the deceased was known as Madina Malinga which means that it was known to the bank that the appellant, Mr. Malinga was the husband of the deceased. lt would appear that only the respondent and rnenrbers of her family, who testified in Court, did not recognize the appellant as the husband of her deceased. They also saw all tlre property the deceased had acquirerJ as being exclusively hers and that of her children with the deceased; the

74 D

/,t

appellant having no right to the said property. She further testified that she did not know how her late sister and the deceased became husband and wife. The respondent testified during cross examination that the reason her family challenged the grant of Letters of Administration was that they did not want the appellant to be recognized as the husband of her late sister. Mr. Amis Dhamusanga, the father of the deceased clearly testified that it was the Administrator General who "ruled" that the appellant was the husband of his deceased daughter and clearly he was not happy about that. We find that the respondent (and her family) was simply in denial that her twin sister, who she claims she was close tc, was living as husband and wife with the deceased. To our minds, the deceased was still in active ernployment while the appellant was a retired police officer. Since the two agreed to live as husband and wife (and did so for 23 years) it is reasonable to find that the two willingly agreed to support each cther regardless of their respective financial standing at the time and it was wrong and malicious to state in the letter that the appellant had no personal income and had been dependant on the deceased. There is evidence that the appellant completed the payment of the first piece of land that the deceased had bought in Nsambya and used part of the money from the NSSF to complete the payment ior t:he second.land. How could the appellant have complete{4;he payment for the first piece of land if he had no income of his own?

On the allegation that the appellant was "..{an} old mon ond physicolly invalid moving an crutches;.." the respondent testified that at the time of her siste/s death the appellant was physically invalid, moving on crutches and looked very sick. slre further testified that the appellant received treatment 3 times in south

l\_5

J. ca+-- h

t ^r)'

Africa courtesy of one of his sons. The respondent testified during cross examination that by writing "invalid" in the said letter she meant the following:

"...by involid we meont thot ot thot time plaintiff wos very sick to corry out the responsibilities of odministrotor..." (Poge 205 of the record)

The respondent testified that his sickness was temporary but not terminal. He aiso testified that in his view old age is not a sickness. Ms. Jacqueline Mazinga (PW 2) from the Administrator General's Department who handled the estate file testified that she never saw the appellant as "..,on involid on crufches..." when she dealt with him. The learned trial Judge noted in his judgment that the appellant had admitted at the material time the letter was written that he was "...unwell heolth wise...." the Judge noted that the appellant had travelled to South Africa for treatment and did not deny that he tried to use his crutches against the rteceased's parents. He then found that,

"...this Court thus finds that the defendont's description of the plaintiff os not heolthy but rather sickly was a correct stotement of the heolth condition of the plointiff..."

Black's Law Dictionary,8th Ed at page 2413 defines an invalid as:

".... A person who, because of serious illness or other disobility, locks the. physical or ntentol copobility of manoging his or her doy to day life..."

Again with due respect to the findings of the trial Judge, there is a difference between someone being "unwell or sickly" and being an "involid". ln any event the words used in the letter were "on involid" nol " slckly or unwell" and we find therefore that the words were calculated to send a clear message that the

15 W

appellant could not handle his own affairs so could not be expected to manage the estate of the deceased. These words "on involid' must be taken in their most natural and obvious meaning.

As to the allegation that the appellant's interest was focused on the deceased property and not children, the respondent testified that the appellant had expelled his eldest son with the deceased Allan Okiria from the deceased's house. At the trial the respondent testified that the house in Nsambya where 'the deceased lived with the appellant was in the names of their children. The responCent testified that her late sister had asked her while at the respondent's house in lganga to lool< after her children. She testified during cross examination that the NSSF money was meant for the deceased's children for school fees but instead was paid to the appellant using forged documents which NSSF should present. She testified that at the time of her siste/s death the deceased confided in her that she did not trust the appellant with the property.

On the other hand the appellant testified that his children with the deceased still live with him and he pays school fees for all of them. He used money from Barclays Bank. He testified that he obtained the money from NSSF using the procedure set out by NSSF and used it to complete payment for land at Nsamtya. He testified that his son Allan abandoned home and was at University but the sppellant ccntinued to pay his fees. The appellant also testified that the NSSF money was finished but he continued to support the children using his personal inc6rne. The appellant also testified that he did not apply for letters of ACministration alone but asked that he be granted them together with the riciministrator Genei'al; as he had faith that the Administrator General could

.>. \q'r-- t/,6-" /,/,

manage the estate. Ms. Mazinga (PW2) from the Administrator General's Office confirmed this though she stated that eventually the letters of Administration were granted to the Administrator General and Allan Okiria, the son of the deceased and the appellant. ln his judgment the Trial judge found that the deceased as a lay person was entitled to communicate to the Administrator General and her sister/s former employers and convey the deceased's wish that she "...wonted her children, fothered by the plointiff to solely benefit from her estote ond thot the other children of the plaintiff, of which the deceosed wos not the mother, should not be brought into her estote...". The trial judge then found that "... no evidence was adduced that this is not what was communicoted to the defendant by the deceosed before she died..."

The learned Trial judge faulted the appellant for not notifying the respondent as the twin sister of the deceased and her parents that he was taking out the money from the NSSF and this provided a justification for the respondent to write the letter she wrote as she did and therefore there was no malice.

We have re-evaluated this evidence and we do not agree that the appellant was targeting the property to the detriment of the children. lf this was so the appellant would not have jointly applied for letters of Administration with a third party like the Administrator General. That would not be logical. lt was also procedurally and legally wrong for the Judge to place the burden on the appellant to prove a negative, namely that the deceased told her twin sister the respondent that she only wanted her children to benefit from her property. There is evidence that the other children of the appellant were grown up and on their own. Furthermore the fact that she listed the appellant as a beneficiary to her NSSF

w--

savings is evidence that she wanted the appellant to benefit from those savings too. We agree with the evidence of the representative of the Administrator General that the said letter as written was uncalled for because it "...depicted a very bad imoge of the plointiff os one who wos fraudulent ond trying to steol from the estate. To me the letter hod been written in bod foith..." We agree. This letter rnust have been very strange to the Administrator General given that the appellant had already asked them to administer the estate of the deceased with him right after his wife's death. We find that even in this respect, the letter was malicious and defamatory in content. lt contained malicious statements that were not true and one cannot say that these words amounted to fair comment. We cannot say and indeed there was no evidence that the letter was written in the public interest

Clearly from the evidence on record there were other matters at play in the relationship between the appellant and the deceased. The appellant is an ltesot and a Roman Catholic by faith. The deceased on the other hand was a Musoga and Muslirn by faith. Tlre appellant testified that the deceased's father refused his daughter to marry the appellant because he did not want her to convert from lslam. The appellant testified that in 1986 he sent the deceased to her parents to tell them that they wanted to get married and she returned saying that her parents would not allorv lrer to become a catholic. He then sent one Haji Irla;rradowa to the Ceceased's lrarents to discuss the matter and again they refused. This evidence vr'es not refuted. lndeed the deceased on her own accord r:vcntually converted to the christian faith just before she died probably because she wanted tc pass on as a r:hristian. This we find was at the core of the poor relatiorrship between the appellant ond the deceased's family. lt is clear from the

r-a-r-",\*- /.1

evidence that the deceased's family wanted to have a role to play in the lives of the deceased's children but given this poor relationship which spanned a long period they could not get the access they wanted and this made them bitter. The respondent testified at page 197 of the record that:

"... We too wanted to be involved in bringing up the children..."

She further testified that she was frustrated about the appellant not coming back to them about the deceased's estate and further testified (page 202 of the record)

"...1 wrote the letter os o meons to bring us together..."

This to our mind was indeed an odd way to bring her family together with the appellant after over 20 years of stalemate. The deceased's other sister Saina Dharnusanga (DW2) also testified (Page 215 of the record)

"...1 om bitter with the plointiff, not becouse I want to get the properties of my deceased sister's estote, but [the] plointiff should involve us in the offoirs of [the] estote of our deceosed sister's estote.,."

The deceased's father Amis Dhamusanga (DW3) testified (page222 of the record)

"...there is no.v'tay I con get access to the grondchildren of my daughter. I connot go to their home becouse ! om not ollowed by the plointiff to 9o there..."

Tlre father further testified lpage224l

"...there is no woy for reconciliotion..."

\,Vhat this famiiy needed then and now is counseling.

We therefore respectfully do not agree with findings of the trial Judge that the respondent wrote the letter in the manner she did because she is a lay person. The respondent showed a good command of the English language in her writing. She testified lpage 204 of the record) that she "...still believed in every word of the letter..." and could not apologize because of it. She is a business woman who runs a retail business in lganga town. She is not a lay woman. She knew what she was writing and it was defamatory. Vy'e therefore do not agree with the finding oJ.the learned trial Judge (page 161 of the record) that:

"...in conclusion, the court, having considered the letter, exhibit P7, as o whole, finds thot whot is stoted therein is substontiolly true. The longuoge of the letter may, in some instonces hove been uncouth ond impolite. This is exploinoble, given the foct that {thel defendont wrate as o lay person ond in English, not her longuoge of birth..."

We accordingly uphcld grounds one and two of the appeal.

## GROUND THREE:

Whether or not the learneci trial Judge erred in law and fact in not awarding damages for defamation to the appellant [sr

## Arguments for the appellant

Counsel for the appellant submitteo tliat the appellant successfully adduced evidence to show that he vras defamed by the respondent's letter and as a result of the defarnaton, lerter he suffered injury to his reputation as a senior member

k--.)-o r-or+-P cl\

of the lteso community in Kampala and as such he was entitled to damages as prayed for. Counsel therefore submitted that the trial Judge was wrong in failing to award damages to the appellant. Counsel referred to the case of RATCLIFF V EVANS [1892] 2 Q. B 528 for the preposition that the law presumes that some damage will flow in the ordinary course of things from the mere invasion of the absolute right to reputation.

Counsel also submitted that the contents of the letter were not true and that the appellant was extremely hurt, humiliated and stressed. Counsel also relied on the case of DANIEL OBOTH V THE NEW VISION NEWSPAPERS, SCCA No. 12 of 1990 [1993] Vl KALR 143 at 147 where Manyindo, DO (as he then was) held that:

"...os I understand it, the underlying principle of domoges is restitution, to restore, so fcr as money con do so, the plointiff to the position he or she would hove been in ii the controct with him hod been duly implemented or os in this cose if the tort in question hod not been done to him. Punitive or exemplory domoges moy be aworded not merely to compensote the plaintiff but to punish the defenddnt ond mark the outrogeous nature of his conduct. I think the Court should not be concerned with the conduct of the defendant per se but with the effects with which thot conduct hod on the plointiff's feelings ond pride."

He therefore submitted that as a result of the publication of the said letter, the appeltant has been injured in his credit and reputation and has been brought into scanda! and contempt be.fore the many officers at Administrator General's office, before the staff of Barclays Bank, former work place of the wife and amongst his people and has consequently suffered damage. counsel concluded that the trial

Judge was wrong in failing to award the damages to the appellant and prayed that this appeal be allowed with costs.

## Arguments for the Respondent

Counsel for the respondent submitted that damages are only awarded after the party has proveC that there is defamation in the first place. ln this appeal, coilhsel sr.rbmitted that they have demonstrated the lack of evidence against the respondent to prove the ingredients of defamation and that the only evidence on record frorrr the appellant is tainted witlr falsehoods and cannot be relied upon.

Counsel for the respondent further submitted that the respondent adduced evidence to show and prove that the statemeuts contained in the letter (Exhibit P1) are subitantially true and therefore justified. Counsel pointed out that the respondent justified that she wrote the letter to the Administrator General to sefeguard the interests and welfare of the children after a one, Jackie Mazinga the State Attorney in the Administrato/s General's chambers became rude to them, refused to listen to thern and lrad developed a bias towards the respondent.

On this ground, counsel concluded tlrat, in light of the aforementisned subrnissions, the learned trial Judge was iustifieC in coming to the conclu siorf"that the letter Exhibit P1 was not defamatory of the appellant and therefore in not swarCing damages as claimed. Counsel further prayed that this Court be pleased to dismiss this appeat with costs to the respondent.

w iln,

. - - fivs

## Resolution and decision ofthe Court

The purpose of damages in defamation must be proportionate to the loss suffered by the claimant. tn cARSoN v JoHN FATRFAX & SONS LTD, (1991) 172 C. L. R 211, the High Court ofAustralia described the three purposes to be served by damages for defamation, namely:

- 1) Consolation for the claimant's personal distress and hurt; - 2) Reparation for the harm done to the claimant's reputation (including where relevant business reputation) and - 3) Vindication of the reputation

The compensation payable would therefore range from actual pain and suffering to loss of dignity and humiliation to annoyance and irritation. There is of course no hard and fast rule to prove that the appellant's feelings have been injured. This is inferred as the natural and foreseeable consequence of the content of the statement, its publication and other aspects of the defendant's conduct. The quality of the plaintiff's reputation befcre the defamation and the absence of apology are relevant considerations.

At the trial Court counsel for the appellant prayed that the appellant be given punitive damages and referred Court to 3 cases:

- J. Lugayizi Sempa V Ssezi Cheeye & Anor t2oo1-ioosl 2 HCB 113 where the Court awarded damages of Shs 15,000,000/=.

J. H. Ntabgoba V Nerv Vision & Anor, HCCS No. 113 of 2003 (unreported), where Court ewarded damages of Shs 30,000,000/= 2n6

W 4

Scovia Nabuuso Kagimu V The New Vision Publishing Co Ltd, HCCS No. 552 of 2005 (unreported) where Court awarded damages of 5hs. 25,000,000/=.

ln his judgment the trial Judge declined to grant any damages because defamation had not been proved. lnterestingly, he gave a proviso that had defamation been proved then he would have awarded Shs. 1,500,000/= but this was not the case. reis

We, on the other hand find that there was defamation and so damages will be awarded for invasion of reputation; tlre consequences of being shunned and the effect on the appellant's feelings and pride.

The cases cited where damages were granted for defamation largely involved newsp,aper publications rvhich have wide circulation which is not the case here.

'Ihe appellant prayed for aggravated and punitive darnages. ln the case of DAVIES v SHAH [19571 E. A 352 Briggs J. A held that:

'lPunitive domages os the name suggests are deterrent ond they ore given without reference to any proved actuol loss suffered by the plaintiff. The conduct of the defendant ond his persistence in repeating the libels comploined of were relwant cot'tsiderations."

tn our finding, this defamation was as a result cf a long standing family disagreenrerrt and does not warrant the award of aggravated or punitive ,jcrrages. Nonetheless a family disagreement is not a defence to an action in ciefo rnation.

r-ef'l--

We accordingly find that an award of Shs 3,000,000/= will suffice. We according grant general damages of Shs. 3,000,000/= s7;15 interest at20% p.a. from the date of filing the main suit until payment in full. Having noted that there is a family dispute at the core of this appeal, we grant the appellant 50% of the costs here and in the Court below.

We so Order

Dated this day of Fe\av,.r.^.2 2014 tar"^ l

HON" MR. JUSTICE RICHARD BUTEERA, JA

HON. MR. J ICE GEOFFREY KIRYABWIRE, JA

U- .ro HON. JUSTICE PROF. L. EKIRIKUBINZA. TIBATEMWA, JA