Locked for Liking

Civil Suit 237 of 2016

CLEMENT NICHOLAS TONGI (PLAINTIFF)
AND
CHARLES WAMBUA (DEFENDANT)

Facts of the Case

1. In 2015, plaintiff resigned from employment
2. In 2016, defendant sent him an email using a personal account and copied three others
3. Plaintiff testified that the email sent to he's juniors portrayed him in bad light especially since he was a role model to many employees
4. Plaintiff's case was that the email was defamatory in that in its ordinary meaning the email meant and it was understood to mean that he engaged in fraudulent and unethical conduct during he's tenure at the UN Sacco
5. Plaintiff alleged that the email published was false, malicious and defamatory and as a result has greatly injured his reputation as a leader in the financial sector in the East African Region, a respected senior banker of good standing and a business development strategist. The plaintiff therefore sought relief in the form of general damages, exemplary damages and cost of he suit

Issues of the Case

Issue recorded in the case:

• whether the email by the defendant was false, malicious and defamatory of the plaintiff.
• what damages, if any, are awardable and who should pay costs?

Rules

Analysis of the Case

1. The plaintiff was being called upon to refund or pay some monies that had been paid to him in form of kickbacks. 
2. There was no explanation from the defendant as to why the email was copied to other parties yet the content was personal.
3. The only logical conclusion was that the defendant was out to inform third parties that the plaintiff had been taking kickbacks from the Sacco’s clients.
4. The plaintiff had proved his case on a balance of probabilities.

Conclusions of the Case

1. The plaintiff was awarded Kshs.1,500,000 as general damages, costs and interest.
2. Interest was to be at court rates and was to accrue from the date of judgment.

Statutes Mentioned

1. Constitution of Kenya, 2010 article 28 — (Interpreted)
2. Evidence Act (cap 80)  section 3 — (Interpreted)

Text & Journals

1. Milmo, P et al (Eds) (2007) Gatley, Libel and Slander London: Sweet & Maxwell Ltd 10th Edn p 8
2. O'Callaghan, P., (Ed) (2012) Refining Privacy in Tort Law Springer Publishers  para 25.1
3. Brown, L., (Ed) (2001) Cassell’s English Dictionary London: Orion Publishing Co p 394
4. Lord Hailsham of St Marylebone (Ed) (1997) Halsbury’s Laws of England London: Tolley Publishing 4th Edn Vol 28

Related Cases

1. Farah, Abdi Mohamed  v Nairobi Star Publication Ltd & another Civil Case 15 of 2015; [2015] eKLR
2. CMC Aviation Ltd v Kenya Airways Ltd (Cruisair Ltd ) (No1) [1978] KLR 103; [1976- 80] 1 KLR 835
3. Ward, John  v Standard Limited Civil Case 1062 of 2005; [2006] eKLR
4. Kamunge,  Joseph Njoguv Charles Muriuki Gachari Civil Appeal 22 of 2014; [2016] eKLR
5. Nyagah,  Phinehas v Gitobu Imanyara Civil Suit No 697 of 2009; [2013] eKLR
6. Patani, Selina & another v Dhiranji V Patani Civil Appeal 114 of 2017; [2019] eKLR
7. Swanya,  Wycliffe A v Toyota East Africa Ltd & another Civil Appeal 70 of 2008; [2009] eKLR

Questions worth pondering, and you can add your point of view in the comments sections below:

1. In the matters held, item number 4, it was held that "….words could be defamatory even if they were believed by no one and even if they were true." how is this the case considering in the same holding, ingredient number 4 states that the statement has to be false?. These ingredients also contradicts ingredients found in Swanya and Two Others Civil Appeal 70 of 2008 where below ingredients were present:

   1. That the matter of which the plaintiff complains is defamatory in character.

   2. That defamatory statement or utterance was published by the defendants. Publication in the sense of defamation means that the defamatory statement was communicated to someone other than the person defamed.

   3. That it was published maliciously

   4. In slander, subject to certain exceptions, that the plaintiff has suffered special damage.

2. Since from this case it was held that defamation protected a person's reputation i.e. the estimation in which he was held by others and that it did not protect a person's opinion of himself nor his character, and that words could be defamatory even if they were believed by no one and even if they were true, what are your comments on the below hypothetical question:

   1. Before he's wife and two of he's kids, omore is a drunk and useless father and husband. Three of he's kids together with he's employee at he's workplace hold him in high regard and consider him a role model. Wife goes to he's work place one day and creates a scene accusing him of being an irresponsible drunk and good for nothing husband. Can the husband sue the wife for defamation while knowing very well that he is indeed a drunk?

3. From the holding, it is stated that there had been no explanation as to why the email was copied to other parties yet the content was personal. Does this mean there could be reasons that could justify publication of statement that could be defamatory even if the statements were true?

4. But from the letter, it looks like it was the norm to use personal email accounts to communicate official duties. Therefore, can it be said that the fact that this was the norm, it is therefore correct to aver that this was an official communication and the defense of copying the other three was not intended malice but to add them as correspondents on matters of interests since they were part of the issue?

5. Assuming that the communication is to be considered as official using personal email addresses, and that the evidence on how the money was to be shared is produced, is prosecution witness number 2 (PW2) obligated to confess who leaked the information because essentially this is the person who should be sued for defamation?

Civil Suit 12 of 2009 (Uganda)

ENG. BARNABAS OKENY, WALTER OKIDI LADWAR, JAMES ONYING PENYWII, DAVID OKIDI, BEST SERVICES CO. LIMITED (PLAINTIFF)
AND
PETER ODOK W'OCENG (DEFENDANT)

Facts of the Case

1. The defendant was at the material time Chairman of Pader District Local Government
2. Plaintiff's claim is that on diverse occasions starting on 3rd December, 2007 the defendant wrote a series of letters of and about them, addressed to the IGG calling for investigations into the financial mismanagement in the District.
   1. On 6th October, 2008 he wrote a letter addressed to the Minister of Local government over a similar subject 
   2. On 25th November, 2008 he wrote another letter addressed to IGG over a similar subject
   3. On 19th January, 2009 he wrote another letter addressed to IGG on the same subject
3. The letters were copied to several people including personnel from the print and electronic media.
4. The contents of those letters was defamatory of the plaintiffs and as a result of their publication, the reputation and public image of each of the plaintiffs was damaged.

Defendant's Submission

1. The defendant denied writing or publishing any defamatory letters to the named publishing houses and electronic media. 
2. The defendant  admitted writing letters to government agencies concerned with the subject of his complaint that included the IGG, the Minister of Local Government, the Permanent Secretary to the Ministry of Local Government, the Resident District Commissioner of Pader, the Chief Administrative Officer of Pader, the Attorney General and the Chairman of the Local Government Accounts Committee, all of which offices he was accountable to. 
3. The defendant contended that nothing contained in those letters was defamatory of the plaintiffs.
4. The defendant pleaded qualified privilege stating that the letters were not malicious but were rather written for purposes of initiating investigation into suspected public corruption.
5. The defendant claimed that the plaintiffs did not suffer any injury to their reputation or credit as a result of those letters.
6. The defendant prayed that the suit be dismissed with costs.

Plaintiff's Submission

1. Third Plaintiff's Submissions
   1. The third plaintiff Onying Penyii testified as P.W.1 and stated that at the material time he was Director of Operations at the office of the IGG and director in Best Services Co. Limited (the 5th plaintiff)
   2. The third plaintiff, on receiving the letter dated 3rd December, 2007 the Deputy IGG called him to his office and sought his comment.
   3. Subsequently the IGG showed the third plaintiff the letter dated 6th October, 2008
   4. The third plaintiff avers that he is not involved in the day to day running of the 5th plaintiff but is a co-signatory to its account.
   5. The third plaintiff avers that the defendant, in his communication, threatened to take copies of the letters to the press and also appeared on FM radio stations.
2. First Plaintiff's Submissions
   1. The first plaintiff Engineer Barnabas Okeny testified as P.W.2 and stated that he is the chairman Board of Directors and Managing Director of the 5th plaintiff.
   2. The defendant wrote letters concerning all the plaintiffs whose content was defamatory.
   3. The letters contained a lot of false allegations.
   4. The defendant supplied the information to the New Vision and also was on air on Mega FM radio station.
   5. Since the year 2007, the 5th plaintiff has been unable to secure any contracts from Pader District and the last one it had secured around the time of those publications, worth shs. 100 million for building a Polytechnic in Gulu, was withdrawn.
3. Fourth Plaintiff's Submissions
   1. The fourth plaintiff David Okidi testified as P.W.3 and stated that he was at the material time the Manager of Mega FM and shareholder in the 5th plaintiff.
   2. He was defamed by the defendant through an article published in The New Vision Newspaper. 
   3. The company was accused of diverting funds meant for UPE in Pader District.
   4. He was called by his line Minister to explain his position since his company was involved.
   5. Radio Stations in Northern Uganda gave wide coverage to the story. The company was accused of securing contracts in the district fraudulently and it has since lost business.
4. Second Plaintiff's Submissions
   1. The second plaintiff Walter Okidi Ladwar testified as P.W.4 and stated that he is director and Secretary of the 5th plaintiff.
   2. The 5th plaintiff obtains contracts through an open bidding process.
   3. He was called on phone by a lady journalist of The New Vision in Kampala and when they met she showed him nine letters from the defendant addressed to the IGG and the Minister of local Government and asked for his side of the story.
   4. He told her the allegations were false. 
   5. An article was later published relating to that story. Several concerned people who read the article from within and outside the country called expressing their concern.
   6. The defendant was the source of information given to the press.
5. Fifth Plaintiff's Submissions
   1. P.W.5 Ambrose Ochen is a former Assistant Chief Administrative Officer of Pader District. 
   2. Testified that the 5th plaintiff was contracted to construct a Doctors' house at Pader Health Centre and a primary School.
   3. On completion, the defendant occupied the house and did not raise any complaints about defects. The defendant never raised any complaint concerning the 5th plaintiff in Council.
   4. No funds were diverted to pay the 5th plaintiff.
   5. This information was published in The New Vision Newspaper and on Mega FM.
   6. He too has a pending defamation suit against the defendant arising from those publications.
6. P.W.6 Mwa Christopher testified that the 5th plaintiff executed construction work in Pader District involving the construction of classrooms and supply of school furniture under his supervision on behalf of the District. No queries were raised about their work. Although money would at times be diverted from the UPE fund for other services, but it was not necessarily to the 5th plaintiff. The prices quoted by the 5th plaintiff were not inflated and it never entered into negotiations with the District before the contract award.
7. On behalf of the plaintiffs, Byamugisha Gabriel and Company Advocates submitted that:
   1. all the plaintiffs are private persons and letters to the IGG were misplaced.
   2. In his letter of 25th November, 2008 the defendant indicated that if the IGG did not take action, he would proceed to hold a press conference to expose the rot.
   3. on 12th December, 2009 the allegations were published in The New Vision who quoted the defendant as their source of information. 
   4. The allegations were proved to be false by the plaintiffs and their witnesses. 
   5. The words in their natural and ordinary meaning conveyed meanings that are defamatory of the plaintiffs.
      1. the third plaintiff was portrayed as a person using his office to cover up wrongs committed by his company.
      2. the rest of the plaintiff's were portrayed as unscrupulous and unprofessional in their methods of work in the procuration and execution of construction contracts with Pader District Local Government.
   6. The communications both to the IGG and the Minister of Local Government were made in bad faith because none of the offices communicated to had authority to investigate private persons.
   7. The defendant acted maliciously in that he knew the statements to be false.
   8. He did not involve any of the organs of the District in taking the decision to communicate that information.
   9. The plaintiffs reputation has been lowered as a result of the publications and hence they are entitled to the remedies sought against the defendant.
   10. They proposed shs. 600,000,000/= as general damages for the plaintiffs collectively, shs. 100,000,000/= as punitive damages and interest on both awards from the date of judgment. They also sought permanent injunction to issue against the defendant with an order to meet the plaintiff's costs.

Defendant's Submission

1. Defense witness 1 Submissions
   1. Stated that he is the former L.C.V Chairman of Pader District.
   2. A meeting of the Executive had opted for court action but he chose to involve the IGG first, hence the letter 
   3. Complaints arose regarding the diversion of UPE funds.
   4. He wrote to the Minister of Local Government
   5. Stated that he never convened any press conference or gave copies of the letters to the press and he does not know how the plaintiffs obtained copies.
   6. Copies were only given to stakeholders and he never instructed any of them to publish them in the media.
2. Defense witness 2 Submissions
   1. the three letters complained of were copied to him
   2. It is true that there had been diversion of funds from the School Facilitation Grant but he did not know who the beneficiary was.
   3. The letters were written in good faith following recommendations by the Public Accounts Committee.
   4. He did not recall though the 5th plaintiff having done shoddy work or the issue having come up for discussion by Council.
3. KGN Advocates on behalf of the defendant submitted that:
   1. none of the publications complained of concerned any of the plaintiffs in their office, profession, calling, trade or business.
   2. They were written calling upon the responsible officers to investigate corruption within the district.
   3. The defendant having written multiple times without receiving a response from the IGG, was justified to and correctly surmised that it was the third plaintiff, who was employed in that office, that was blocking access to these complaints by the IGG.
   4. Inviting investigation into the plaintiffs' wealth was justified considering the circumstances in which the plaintiff had been paid with funds diverted from the School Facilitation Grant sent to the District.
   5. The words were not defamatory since they were stated within the context of inviting an investigation to establish their truth
   6. They were not addressed to the whole world but to the persons with a duty to initiate such investigations.
   7. There is no proof that any of the plaintiffs was injured in his reputation.
   8. Both the Minister of Local Government and the office of IGG are mandated to investigate mismanagement of funds within Local Governments.
   9. The persons to whom the letters were copied received them in their official capacities.
   10. In any event, there is no evidence to show that any of the persons to whom the letters were copied received the copies in fact.
   11. There is no evidence that it is the defendant who published the letters to the press.
   12. Ms. Barbara Among of The New Vision to whom the article is attributed was never called as a witness.
   13. Although in one of the letters the defendant issued a threat of convening a press conference, there is no evidence that he ever did so.
   14. Ms. Barbara Among only quoted from the letters and did not disclose who gave her copies.
   15. There is no evidence of a malicious intent. 
   16. None of the plaintiffs was defamed.
   17. None is entitled to any relief and the suit should be dismissed with costs to the defendant

Issues of the Case

Issue recorded in the case:

• Whether the statement (letters claimed of) are defamatory
• Whether the statement (letters claimed of) refer to the plaintiffs
• Whether the statement (letters claimed of) were published
• If so, whether the statements are privileged
• If so, whether the statements complained of were published by the defendant to the press
• Whether the statements were malicious
• Whether the plaintiffs are entitled to the reliefs sought

Rules

1. Section 59 of the Evidence Act - requires that oral evidence must in all cases be direct; if it refers to a fact which could be seen, it must be the evidence of a witness who says he or she saw it; if it refers to a fact which could be heard, it must be the evidence of a witness who says he or she heard it; if it refers to a fact which could be perceived by any other sense, or in any other manner, it must be the evidence of a witness who says he or she perceived it by that sense or in that manner.

Analysis of the Case

1. As a preliminary observation, this being a claim in libel, the plaintiff was under a duty to;
   1. plead that the defendant made a false and defamatory statement concerning the plaintiff, 
   2. the defendant made an unprivileged publication of that statement to a third party
   3. except where the libel is actionable per se, the plaintiff must plead and prove special damages. For a statement complained of as being defamatory, the actual words must be set forth verbatim in the plaint and the persons to whom publication was made have to be mentioned in the plaint (see Rutare S. Leonidas v. Rudakubana Augustine and Kagame Eric William [1978] H.C.B. 243).
   4. A plaint in a defamation suit that does not allege persons to whom publication was made nor that the words uttered were false and were published maliciously, which are matters essential in a plaint, does not disclose any cause of action and is bad in law (see Karaka Sira v. Tiromwe Adonia [1977] H.C.B. 26). the plaint in this suit meets all these basic requirements.
2. Whether the statement (letters complained of) are defamatory : 
   1.  In a suit for libel, a plaintiff has to prove that the relevant statement is defamatory, but he or she does not have to prove that it was a lie. If a statement is defamatory, the court will simply assume that it was untrue. The test of defamatory nature of a statement is its tendency of excite against the plaintiff the adverse opinions or feeling of other persons.
   2. In Ssejjoba Geoffrey v. Rev. Rwabigonji Patrick [1977] H.C.B 37 a defamatory statement was defined as one which has a tendency to injure the reputation of the person to whom it refers by lowering him in the estimation of right-thinking members of society generally and in particular to cause him to be regarded with feelings of hatred, contempt, ridicule, fear, dislike and disesteem.
   3. If words have been proved to be defamatory of the plaintiff, general damages will always be presumed slander imputing criminal conduct is actionable per se. Imputation of commission of a criminal offence is actionable per se without any need of proving damage on the part of the plaintiff (See Blaize Babigumira v. Hanns Besigye HCCS No. 744 of 1992).
   4. Allegations are defamatory of the plaintiff if they impute the commission of a criminal offence for which the plaintiff would be liable to imprisonment under the law. Gately on Slander and Libel (supra) 8th Edition at page 114 paragraph 115 states that; “where words complained of are defamatory in their natural and ordinary meaning, the plaintiff need prove nothing more than their publication. The onus will then lie on the defendant to prove from the circumstances in which the words were used, or from the manner of their publication, that the words would not be understood by reasonable men to convey the imputation suggested by the mere consideration of the words themselves.
3. Whether the statement (letters complained of) refer to the claimant
   1. Then, it must be proved that the statement referred to the plaintiff. In Onama v. Uganda Argus [1969] EA 92, the Court of Appeal of Eastern Africa held in deciding the question of identity, the proper test is whether reasonable people who knew the plaintiff would be led to the conclusion that the report referred to him. The question is not whether anyone did identify the plaintiff but whether persons who were acquainted with the plaintiff could identify him from the words used.
   2. In the instant case, the words were not only used in reference to the defendant but they were uttered directly at her in her presence during a series of incidents. They were capable of being regarded as referring to the plaintiff since there was no evidence that they were directed at any other person. These words would lead reasonable people who know the defendant to the conclusion that they referred to her.
   3. The meanings attributed to the expressions complained of that were used by the defendant in each of the above mentioned letters are that;- the first four plaintiffs pay bribes to Pader District Officials in order that their company, the 5th plaintiff receives preferential treatment; the plaintiffs collude with Pader District Officials to divert funds from the School Facilitation Grant for payments to the 5th plaintiff; the first four plaintiffs have used the 5th plaintiff as a tool to defraud Pader District Local Government of its funds; the plaintiffs have accumulated wealth under suspicious circumstances; the 3rd plaintiff has abused his office, practiced nepotism and perverted the course of investigations. The defendant was unable to rebut the imputation suggested by the words themselves. The words of complained of were capable of being regarded as referring to each of the plaintiffs since there was no evidence that they were directed at any other person.
   4. It was held that the words complained of in their natural and ordinary meaning and by way of innuendo are capable of bearing those meanings attributed to them. To the extent that they constitute an attack upon the moral character of the first four plaintiffs, attributing to each of them disgraceful conduct, criminal conduct, dishonesty, untruthfulness, fraud, and lack of professionalism for the third plaintiff specifically; and with regard to the 5th plaintiff by questioning its financial soundness and managerial integrity, the statements tend to lower the first four plaintiffs in the estimation of right-thinking members of society while they tend to negatively impact on the 5th plaintiff's standing in the business of civil construction in which it operates and harm its business reputation. The words complained of as stated in the plaint are therefore defamatory of each of the plaintiffs to the extents demonstrated above.
4. Whether the statement (letters complained of) were published
   1. There can be no libel unless the defamatory statement is published or communicated to a third party, that is to a party other than the person defamed and that publication must have been done maliciously.
   2. Publication occurs when information is negligently or intentionally communicated in any medium.
   3. In the instant case, in his defense the defendant admitted publishing the letters complained of to the office of the Inspector General of Government, the Minister of Local Government, the Permanent Secretary to the Ministry of Local Government, the Resident District Commissioner of Pader District, the Chief Administrative Officer of Pader District Local Government, the Attorney General of Uganda and the Chairman of the Local Government Accounts Committee of Parliament. 
5. Whether the statement  (letters complained of) were published to the press by the defendant
   1. He refutes the allegation that he published the same letters to The New Vision Newspaper, the Rupiny Newspaper, and FM Radio stations including, MEGA FM in Gulu. As regards proof of publication, the law recognizes no distinction between cases in which express malice in uttering the defamatory words is proved and those in which it is not. The defendant must be taken to have intended the natural and probable consequence of his action. As regards proof of publication, the law recognizes no distinction between cases in which express malice in uttering the defamatory words is proved and those in which it is not. The defendant must be taken to have intended the natural and probable consequence of his action.
   2. The animus injuriandi (desire to offend) necessary for a suit in defamation requires the deliberate making of the defamatory statement and also its deliberate communication to a third party by the defendant.
   3. In the instant case, there is no evidence to show that the defendant deliberately leaked any of these letters to the press. It was the testimony of the second plaintiff P.W.4 Walter Okidi Ladwar that he was called on phone by a lady journalist of The New Vision in Kampala and when they met, she showed him copies of nine letters from the defendant addressed to the IGG and the Minister of local Government, and insinuated that the defendant was the source of information given to the press.
   4. The requirement that evidence of a witness should be given orally in person in court, on oath or affirmation, so that he or she may be cross-examined and his or her demeanour under interrogation evaluated by the court, has always been regarded as the best evidence. The theory of the hearsay rule is that the many possible sources of inaccuracy and untrustworthiness which may lie underneath the bare untested assertion of a witness can best be brought to light and exposed, if they exist, by the test of cross-examination. In this case, Ms. Barbara Among, to whom disclosure of the nexus between the defendant and leakage of the letters to the press is attributed, was not called as a witness. What she told P.W.4 as to the source of her access to the letters is therefore inadmissible as hearsay.
   5. It appears to me that Ms. Barbara Among only quoted from the letters and did not disclose who gave her copies as gathered from exhibit P.E.5. It is suggested by counsel for the plaintiffs that since in the letter of 19th January, 2009 to the IGG (exhibit P.E.4), the defendant did express an intention to hold a press conference in the event that no action was taken in respect of his complaints, he must have been the one that leaked the letters to the press. I am afraid that the suggested conclusion based only on that tenuous premise would constitute conjecture. Conjecture is a theory based on evidence with only a slight degree of credibility. It is an idea of fact, or potential cause or occurrence, as suggested by another fact, which is too feeble to prove the idea. A conjecture is even less substantial than a hypothesis, which is generally based on well-accepted facts. Although consistent with the facts in evidence, it is not deducible from them as a reasonable inference and is accordingly rejected.
   6. That done, there is no evidence to show that publication of the letters to the press was as a result of a failure of the defendant to do something he was required to do or that that resulted in the material being published to a third party, or that he intended or knew that the letters would be communicated to the press, or was reckless or careless as to such communication occurring as a result of his conduct. The defendant never intended nor contemplated that the letters would be read by persons other than the addressees. It was not the natural consequence of his writing and addressing the letters in the way he did that they would end up with the press. The act of whoever delivered the letters to the press was not a completion of what was from the very beginning the intention of the defendant. There was thus a break in the chain of transmission between the writing and final delivery of the letters beyond their intended destination, and eventually to the press. When letters addressed to different persons and without the fault of the author, end up in the hands of third parties in circumstances never contemplated by the author, the author cannot be held responsible. The author will be found negligent only if the resultant publication is reasonably foreseeable taking into account all relevant circumstances or is a natural and probable result of his actions, which it is not in the instant case.
   7. the defendant did not publish the letters containing the defamatory words to the press. He only published them to the office of the Inspector General of Government, the Minister of Local Government, the Permanent Secretary to the Ministry of Local Government, the Resident District Commissioner of Pader District, the Chief Administrative Officer of Pader District Local Government, the Attorney General of Uganda and the Chairman of the Local Government Accounts Committee of Parliament.
6. Whether the statement (letters complained of) were privileged
   1. A privileged occasion is one where the person who makes a communication has an interest, or a duty, legal, social or moral, to make it to the person to whom it is made and the person to whom it is so made has a corresponding interest or duty to receive it (see Adam v. Ward [1971] AC 309). This reciprocity is essential. Both these conditions must exist in order that the occasion may be privileged.
   2. The defence seeks to protect defamatory material of public importance where defendants have published responsibly, irrespective of the material’s truth or falsity. It is not defamation to prefer in good faith an accusation against any person to any of those who have lawful authority over that person with respect to the subject-matter of accusation provided it is done in good faith. The person alleging in good faith must establish the fact that before making any allegations he had made an inquiry and necessary reasons and facts given by him must indicate that he had acted with due care and attention and that he was satisfied about the truth of the allegation. 
   3. In the instant case, the defendant was at the material time Chairman of Pader District Local Government. His communications were about perceived financial mismanagement of public funds and as such he had a duty in communicating to the Inspector General of Government, the Minister of Local Government, the Permanent Secretary to the Ministry of Local Government, the Resident District Commissioner of Pader District, the Chief Administrative Officer of Pader District Local Government, the Attorney General of Uganda and the Chairman of the Local Government Accounts Committee of Parliament such matters as are detrimental to the interest of the District Local Government. The addresses of the correspondences had legitimate interest in receiving information on any matters which might be detrimental to the interest of the District Local Government. In those circumstances, the requisite duty to communicate the information and the reciprocal interest to receive it was adequately established. The letters were therefore published on a privileged occasion.
   4. Once qualified privilege is established, even when it is demonstrated that the publication is based upon facts and statements which are not true, the defendant is not liable unless the plaintiff establishes that the publication was made by the defendant with reckless disregard for truth. The defendant is protected even though his language was violent or excessively strong if, having regard to all the circumstances, he might honesty and on reasonable grounds have believed that what he uttered was true and necessary for his purpose, even though in fact it was not so (see Adam v. Ward 119171 A.C. 309 at 339). In such cases, it is enough for the defendant to prove that he acted after a reasonable verification of the facts; it is not necessary for him to prove that what he has written is true. But where the publication is proved to be false and actuated by malice or personal animosity, the defendant would have no defence and would be liable for damages. The defence of qualified privilege therefore can be assailed if the defendant was actuated by an improper motive that is to say by "express malice" (see Lopes C.J. in Royal Aquarium and Summer and Winter Garden Society Ltd. v. Parkinson [1892] 1 Q.B. 431 at p.454).
7. Whether the statement (letters complained of) was out of malice
   1. Whereas it was for the defendant to prove that the occasion was privileged, once he did that, his bona fides had to be presumed (see Janoure v. Delmege (1891) A. C. 73 at 79. The burden then shifted to the plaintiffs to show express malice (see Clark v. Molyneux (1877) 3 Q.B.D. 237). But until then, the plaintiffs had no such burden. Express malice, unlike legal malice, is never presumed; it must be proved as a fact. Malice in law, which is presumed in every false and defamatory statement, stands rebutted by a privileged occasion. In such a case, in order to make a libel actionable, the burden of proving actual or express malice is always on the plaintiff.
   2. Malice, which is of the essence of libel, is presumed from defamatory words. Privilege destroys that presumption. But the place of the implied malice which is gone by establishment of the qualified privilege may be taken by express malice which may be proved. It may be proved either extrinsically or intrinsically of the document and such words in the document are apt as evidence (see Adam v. Ward [1917] AC 309, [1917] All ER 151). The motive of the defendant becomes material where privilege is established and the burden has shifted to the plaintiff to show actual malice.
   3. Improper motive is the best evidence of malice. Malice in this sense means making use of a privileged occasion for an indirect or improper motive. Such motive can be inferred from evidence regarding the defendant's state of mind. If the defendant did not believe in the truth of what he stated, that fact is conclusive evidence of express malice, for no man can legitimately claim privilege if what he stated was a deliberate and injurious falsehood about another.
   4. In one sense, malice is about the attitude of the defendant toward the plaintiffs. In that sense, malice means personal hostility, animosity, ill will, bad motive, dislike, bias, or bad faith. In that sense it means the intentional commission of a wrongful act, without justification, with the intent to cause harm to another. The defendant would be found to have made the statements with “express malice” if he acted with knowledge that the statement was false or with reckless disregard of whether it was false or not. Evidence of inadequate investigation would show intent to inflict harm through falsehood. Such evidence would suggest that, because of his bias, the defendant knowingly or recklessly avoided the truth by performing an inadequate investigation. Deliberate or reckless falsity is evidence of express malice.
   5. In another sense, malice is about the attitude of the defendant toward the veracity of his statements concerning the plaintiffs. In that sense, the term does not necessarily imply personal hatred, a spiteful or malignant disposition or ill feelings of any nature, but rather, it focuses on the mental state which is in reckless disregard of the law in general and of the legal rights of others. Malice is present if the acts were done in the knowledge that the statement is invalid and with knowledge that it would cause or be likely to cause injury. It also exists if the acts were done with reckless indifference or wilful blindness to that invalidity and that likely injury.
   6. Malice is presumed to exist, in law, when there is intention to bring disrepute or knowledge that the matter in question could bring disrepute to a person. Five important considerations must be kept in mind while establishing good faith and bona fides; -
      1. the circumstances under which the letter was written;
      2. whether there was any malice;
      3. whether the plaintiff made any inquiry before he made the allegations;
      4. whether there are reasons to accept the version that he acted with care and caution; and
      5. whether there is preponderance of probability that the plaintiff acted in good faith
   7. Such malice can be proved in a variety of ways, inter alia;
      1. by showing that the author did not honestly believe in the truth of these allegations, or that he believed the same to be false;
      2. or that the author was moved by hatred or dislike, or a desire to injure the subject of the libel and is merely using the privileged occasion to defame (See Watt v. Longsdon, [1930] 1 KB 130 and the observations of Greer, L. J. at p. 154) and
      3. by showing that out of anger, prejudice or wrong motive, the author casts aspersions on other people, reckless whether they are true or false (See observations of Lord Esher, M. R. in Royal Aquarium and Summer and Winter Gardens Society v. Parkinson, (1892) 1 QBD 431 at p. 444).
      4. Reckless publication of untrue defamatory matter without caring whether what is said was true or not would be treated as a deliberate lie and would thus be evidence of malice.
   8. In Adam v. Ward [1917] AC 309, [1917] All ER 151 Lord Dunedin closely considered the question of a communication published on a privileged occasion. At pp. 326, 327, he observed as follows: What now is the situation? You have a communication issued on a privileged occasion and in that communication are used words which are in themselves defamatory. What test is to be applied? On the one hand it is said that, the occasion being privileged, the whole document is privileged, but that if in the document you find parts which are not really necessary to the fulfillment of the particular duty or right which is the foundation of the privilege on the occasion, then these parts may be used as evidence of express malice. In other words, it stands thus: Malice, which is of the essence of libel, is presumed from defamatory words. Privilege destroys that presumption. But the place of the implied malice which is gone may be taken by express malice which may be proved. It may be proved

Conclusions of the Case

Statutes Mentioned

Text & Journals

Related Cases

Questions worth pondering, and you can add your point of view in the comments sections below: