Judegment Day At The High Court London

Judegment Day At The High Court London
Mengi v Hermitage: Libel Claim Successfully Defended

Wednesday, 4 November 2009



Businessman accused of harassing foreign investor

MOSHI businessman Benjamin Mengi has been accused of using the police and judiciary to terrorise British investors who bought a farm from him in Hai District two years ago. David Stewart Middleton and his wife Sarah have told the 'Daily News' that their dream to settle in what they were made to believe was 'investor-friendly Tanzania', had turned into a nightmare because of routine harassment by police and abuse of judicial process in cases allegedly manipulated by the businessman. The Minister for Planning, Economy and Empowerment, Dr Juma Ngasongwa, confirmed that the investors had appealed to him as well as the ministers for justice and public safety, with whom they were addressing the complaints. Dr Ngasongwa said the investors were bona fide and had been registered by the Tanzania Investment Centre. They have the full support of his ministry, he said. "They are using local organs to harass legal investors. This is open corruption, which I strongly condemn. It shames us as a nation, which has set out to attract foreign investors," said the minister.

Mengi sued the investors for Libel. Under Tanzanian law there was no provision to sue the investors for libel. They were not the printers, writers or editors of the publication, the Daily News were and the cause of action lay against the Managing Editor.

Mengi did not sue Ngasongwa.

The fact that there was no right to sue was pointed out to Chief Justice Augustino S.L. Ramadhani Tanazania's most senior law officer together with the PCCCB who confirnmed there was no right to sue.

The Chief Justice agreed to Review the plaint and removed it from the public domian (for one year) giving his assurance to the British government that the law would be upheld.

In February 2009 he placed the file back into court stating he was now not going to review it, giving the British government no reason for changing his mind.

The defendant's were legally represented by Moshi advocate Westgate Lumambo who, on the eve before the hearing told the investors that everything was under control and a defence had been filed.

He had not filed a defence.

Under Tanzanian law, if a defendant does not file a defence, the plaintiff may apply to the court to have the case heard ex-parte. The plaintiff must still prove his case. This would not be possible here as Mengi had no basis upon which to sue. It is also an extremely draconian legal measure and would not be taken unless all other means of contacting the defendants had been made.

On the day the case was heard, Lumambo did not attend. Mengi was stated to be represented by unemployed Moshi resident Anold Kimaro as a power of attorney. A power of attorney is not permitted to plead under Tanzanian law.

Despite this, Kimaro applied to the court to hear the plaint ex-parte on the basis that a defence had not been filed. Without any attempt to contact the investors by adjournment proceedings, the case proceded ex-parte and judgment given to Mengi for TSH 90,000,00o/- ($90,000,000). In a bonafide Libel action, losses/damages must be proven with certified documentary evidnece .

No such evidence was produced at this hearing.The magistrate hearing the case was magistrate Mkisi a magistrate that is presiding over many of the other 14 cases that Mengi has brought against the investors.

No supportive documentary evidence was produced to the court.

The British government once again voiced concern to the Chief Justice and the couple changed their lawyer and lodged an appeal.

They left Tanznaia for a holiday and in that time, an ex-parte judgment was again given to Mengi, this time for the confiscation of all of their property in Tanzania, most of which was not permitted to be confiscated under the Civil Procedure Code of Tanzania. The court stated that the investors had not paid TSH 90,000,000 into court vis-a-vis the ex parte judgment.

The original court record shows that no order was made to make this payment pending the appeal.

Once again, the magistrate was magistrate Mkisi.

The High Court in Moshi delayed the hearing of the appeal and once again, the British government (Philip Parham, former British High Commissioner to Tanzania) voiced concern to the Chiegf justice. The chief justice stated that he had issued an instruction to the court that the appeal should proceed.

Philip Parham, finished his tour of dury in Tanzania in February 2009, three weeks after he left, the couples new lawyer was summoned to the Moshi High Court for a mention of the case. When he arrived, he was told that the case had been struck out two weeks earlier for want of prosecution. The court stated that the lawyer had not attended any hearings of the appeal and as such the court had struck it out. The court files show this to be inaccurate.

The lawyer immediately filed an application to set aside the order and the court has stated it cannot proceed, as it had lost the court file.

My Ally, Managing Editor of the Daily News stated he would expose this case but has failed to do so.






CIVIL CASE NO. 18/2006

MR. BENJAMIN A MENGI                                                         PLAINTIFF


MRS SARAH DAVID MIDDLETON                                          DEFENDANTS



This is the Exparte Judgment of the Civil Case No 18 of 2006. The parties are Mr. Benjamin A Mengi (Plaintiff) versus Mr David Stewart Middleton and Mrs Sarah David Middleton (Defendants).

The plaintiff represented by Mr. Kimaro who has power of attorney whereby the defendants together were represented by Mr. Lumambo Advocate.

The plaintiff filed his plaint prayed for the judgment and decree against defendants jointly and together that;

a) Declaration that defendants jointly and together have made defamatory publications against plaintiff and causing severe damages on his part.

b) That defendants be ordered to pay jointly and together a sum of monies shillings ninety million being damages for their defamatory statements they made against plaintiff.

c) Costs of this suit and of orders, relief’s honourable court may deem fit and just to grant.

That in his plaint the plaintiff disclosed also that he is in the business and Managing Director of Fiona (T) Ltd, a registered Company and the address for the purposes of this suit is P.O. Box 7611 Moshi.

That the defendants are in wife and husband who are British citizens carrying and conducting business in Tanzania. 1st Defendant is also a director of Silverdale (T) Ltd, a registered company and their address for service is Box 53 Moshi and/or Box Silverdale and Mbono Farms, Hai District, Kilimanjaro. That Fiona (T) Ltd entered into a lease agreement which co-operative societies, Kyeeri, Shari and Uswa/Mamba to lease Silverdale & Mbono Farms situated at Hai District, Kilimanjaro.

That FIONA (T) Ltd entered into an agreement with Silverdale (T) Ltd in which plaintiff is also the Co-director, to sublease or assign lease over Silverdale and Mbono Farms.

The Agreement became null and void when 1st defendant failure to meet terms and condition of the lease agreement whereby that assignment did not obtain consent of the proprietors, the cooperative societies, the plaintiff’s plaint attached with that copies of lease agreement as annexure P.1. That in course of the conflict between Fiona (T) Ltd and Silverdale (T0 ltd under directorship of 1st defendant both defendants made several defamatory words against the plaintiff.

That on Friday 2nd June 2006 that defendants vide Daily newspaper of the same date reported that the plaintiff is using police and judiciary to terrorise them and claimed that to have bought farms of Silverdale and Mbono.

That defamatory statements have badly tarnished plaintiff’s reputation not only in the business world but also in society at large.

That supported by the copy of said defamatory publication attached as annexure P2.

That the plaintiff as church leader, that defamatory statements deteriorated and wounded his image which caused severe damages on his part.

That on 4th August 2006 plaintiff wrote a demand notice to the defendants to make a written apology in the same newspaper to denounce their defamatory publications as the plaintiff never manipulated the police and judiciary to terrorise defendants, however despite that notice the defendants arrogantly never made such apology and that is why the plaintiff resorted to this claim whereby he attested that demand notice as annexure P3 to form part of this plaint.

That the cause of action arose within the jurisdiction of this court and the plaintiff claim form the defendants the sum of ninety million (90,000,000/-) for their defamatory publications which is within the pecuniary jurisdiction of this court.

That the copy of plaint from the plaintiff after been filed in court on 30.8.2006 and the defendants with their counsel Mr. Lumambo Advocate notified and received and signed that copy of the plaint of 31.8.2006 before honourable court where the suit appeared for the first mentioned.

That from that date neither the defendants themselves nor their counsel wanted to file reply from that plaint until 28.2.2007 when the plaintiff who represented with Mr. Kimaro (power of attorney) for to prove their case ex parte whereby the court with clean hands and case proceed ex parte.

In exparte trial the plaintiff side brought six (6) witness to testify as follows;

W.1 Benjamin Abraham Mengi Lives Shanti Town Moshi as business man and Industries such as Intachem (other companies that are indecipherable in the plaint) Fiona (T) Ltd Silver Dale (T) Ltd (30%)………and Mbono Estates.

That in year 2004 PW1’s lovely wife became sick whereby they went to UK for treatment.

On 20.5.2004 PW1 entered into contract with defendant David Stewart Middleton who was one of his employees working one of his companys which was called ALPHATOBACCO. That company is not on process now. That on April 2005 PW1 came back from UK it’s when quarrale began between PW1 and defendant stated concern Silverdale (T) Ltd Company.

That on that company PW1 had 30% shares while the defendant had 70% of it. That company entered into agreement with Fiona which belong to PW1 with his wife in 50% to 50% shares.

From that time many cases opened between them and that PW1 never sold the farm to defendant hence it belongs to the villagers.

That PW1 wondered that on 2.6.2006 in the Daily news paper written that the plaintiff used to bribe the police men and judiciary to manipulate the cases which filed in court and not yet decided.

That was not good to PW1 even to Judiciary and police.

That the PW1 as famous business man in Moshi and all over the Country who deals with other companies outside the country as well as the church leader for about 20 years; that article defamed him a lot.

Also it affect his business which caused his fellow businessman to get doubt to him that he can use judiciary and police to get/grabbed their rights when entered into any business contracts with them. Hence now a days many businessmen made deals in terms of loan or credit.

That one of his big hotels her in Moshi called Salalmoro viler hotel previous used to be visited by chief justice, judges, police officers and other civil servants that due to that article from gazette many of them stopped to arrived at that hotel.

Even daily customers from Moshi also stopped to go and get services from that Hotel. All these caused running of that hotel to drop down and occasionally get loss.

That in Intachem industry which belongs to PW1 the outside country customers become doubted to this which brought to reduced the credit facilities he used to get.

That article against PW1 affected his psychology and a failed to run his business properly. Also PW1 afraid to communicated legally with police and judiciary as that to avoid the statement of bribe to him which defendants announce in article.

After all those PW1 decided to write to defendant so that to clean what they publish on gazette without any cost or consideration in failure to do that the PW1 will open the suit against them. From 4.8.2006 up to 30.8.2006 no respondent came from defendant due to that PW1 opened suit against them No 18/2006.

The defendants did not want to appear even to file a reply from plaint and that bought PW1 to pray exparte hearing before court.

That the PW1 pray the court his all prayers with costs hence the defend not without reply on that month to agreed with them.

PW2 Dyncen Njemnje (46) live Cooperative college Moshi area as Hotel Manager of Salalmoro Villa hotel in Shanti Town area Moshi PW1 is her employer.

That what she knows is about an article in Daily News paper that PW1 used to bribe Judiciary and Police institution in running him seen as that to got favour.
That article affected the Hotel … whereby many of customers stopped to get service from that hotel.

Other customers bothered to send that article to them and said that they are not believe them at all hence PW1 as director of that hotel is the bribe person. Before that, the Hotel used to received visitors from outside the country like whitmen, civil servants for purpose of meeting but once that article written…from gazette all of them stopped to arrive on that hotel and that caused income to drop down totally.

Also the hotel management used to get goods on credit from other businessmen as usual running of many business now a day.

But to that hotel which belongs to PW1who defamed in gazette by defendants become difficulty to get god credit now a days due to doubtness and believe e from other business to be caused down because of that article.

PW3 Raymond William Moshi (39) lives shanty town …accountant at Intachem Ltd.

That what he knows is about Article written in Daily News paper dated 2/6/07 commented that the investors here in Moshi by bribing the judiciary and police institutions which was not every any truth.

That PW3 as accountant of the Intachem industries which PW1 is a director, that article caused big loss of credibility to the …inside and outside of the country which resulted in stopping running the business with that company.

That the industry failed to run the business as previous hence it used it credit and paying later due to the credit used to enter with other businessmen.

PW4 Anold Jonathon Kimaro (60) . That hi is the …blank….of the Silverdale farm at the Hai district. That farm is under (4) village cooperative societies.

PW4 is among the villagers who provide that farm to PW1 as the tenant since 1999. That farm used in planting ……………………

That in 2.8.2005 PW4 saw one article in daily news paper that PW1 as their investor do bribe judiciary and police institution so that to ……the one investor called David Stewart Middleton PW4 doubted on that article that by doing that PW1 infringed the rights of others in village which rented the farm as well a board member of that village cooperative society.

PW5 …..Ndome (name is not clear on the plaint). Lives Moshi regional CCM committee member in Moshi Kilimanjaro region. PW5 know PW1 since along tome for about 50 years age. The PW1 is also the business man own Intachem industry, Salnero Villa Hotel.

PW5 is main supplier of PW1 of credit. PW1 also is the elder of church in Machame Kisereni Lutheran church. That since June 2006 PW5 became loosing
His interest on doing business with PW1 after being read in the newspaper that PW1 became accused of harassing investors. PW5 contacted PW1 and asked why he doing that, But PW1 stated that it not true.

It was already published inside and outside the country that the businessman who knows duties an policy of the business of the country to investors PW5 do not believe that PW1 harassed defendants he but Intachem industry which investors run with PW1 that business.

That by PW1 announced that can bought him down psychologically economically and financially.

That was all from the plaintiff’s case.

After being read the evidence and exhibits in general I have find that that plaintiffs claims in this case about defamation it will be proper to be granted by this honourable court expartely after being satisfied that the defendant with their advocate (Mr. Lumambo ) were not intended to file the reply to appear to court. And I therefore order that the defendants do pay jointly and together a sum of  TSH.90,000,000/- ninety million for their defamatory statements they made against the plaintiff with costs.

10th April 2007.

No evidence was deduced at the hearing. TSH 90,000,000 was 90,000USD

Presiding magistrate, magistrate Mkisi. Judgement unsigned.
Certified by Magistrate Temu on 11/4/2007.

Magistrate Temu sentenced Mr Middleton to prison (on another case brought by Mengi ) unlawfully in July 2006. High court ruled she had erred in law, the imprisonment was unlawful and she was not free from bias.
In November 2005, Reginald Mengi gave his promise to the British Government that IPP Media would stop it's defamatory practice against the British investors in the 'Silverdale Case'. Clearly he did not keep his promise.

On 11th April 2007, the Guardian and Nipashe newspapers reported that Mr. Middleton and his wife had been ordered to pay 90m/-for defaming Reginald Meng's brother Benjamin Mengi, based on comments accredited to them in the Daily News on June 2006.

One would think, that being fully apprised of the laws of Libel that IPP Media would know, that in cases of Libel, only the writer, printer and publisher of the material could be sued. As such, the case and the judgment was unlawful.

IPP Media did not print this or the fact

Instead of demonstrating a commitment to investigative journalism with a commitment to fighting corruption and good governance, as Reginald Mengi states he does, the above media practice amounts to a cowardly, deliberate, inaccurate and abusive attack on the British investors, amounting to criiminal Libel and nothing short of journalistic terrorism.

The article is couched in a language of suspicion and unqualified accusations of guilt against Mr. Middleton. No right of reply was ever given. The article was published world wide.


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