Tanzanian Tycoon’s Claim Falls Flat: Mengi v Hermitage [2012] EWHC 3445

 

Tanzanian Tycoon’s Claim Falls Flat: Mengi v Hermitage [2012] EWHC 3445

January 21st, 2013 by Justin Castelan

In 2004, Sarah Hermitage, an English solicitor, and her husband, Stewart Middleton, an agronomist, bought a lease to Silverdale Farm in Tanzania for $112,000. They wanted to live there peacefully and build up an agricultural business, exporting vegetables to Europe. The African investment all sounded very idealistic, but the ideal for the couple did not last long.

The Claimant

Unfortunately, the person they bought the lease from was Benjamin Mengi, who happened to be the younger brother of Reginald Mengi, a man who built himself up into being a Tanzanian version of Rupert Murdoch and the Claimant in this case. Apart from owning various Tanzanian media, from 2003, he was the chairman of the Media Owners Association of Tanzania.

His younger brother, meanwhile, commenced a campaign of harassment against Mr Middleton from late 2004, including refusing to register the lease, threatening to kill him, issuing a number of vexatious court actions against him involving the local police and eventually chasing the couple out of Tanzania in 2008.

Middleton’s uncontradicted evidence about what happened at Silverdale Farm was of a torrid time over several years. In that time, Benjamin:

• Subjected Middleton to a barrage of threats, litigation and intimidation;
• Obtained the assistance of the local police to assist in this campaign, including attending at the property with Benjamin;
• Refused to register the lease and insisted that it was illegal;
• Demanded that Middleton pay an extra $7,000 to him, and when Middleton refused, brought charges against him for conspiracy to commit forgery;
• Induced disease to the cattle on the property then sued Middleton for “psychological torture”;
• Brought a whole array of other frivolous claims against Middleton;
• Abused him openly in front of the police and screamed that he should go back to South Africa; and
• Apparently contracted someone to kill him.

Along the way, Middleton spent 3 nights in jail on one of the charges, before being granted bail by the High Court of Tanzania on the grounds that the magistrate was biased. Two weeks later, that particular contempt of court case was dropped for lack of evidence.

Meanwhile, articles appeared in the Claimant’s IPP Media that further damaged the couple’s reputation, sensationalizing the trumped up charges which were laid against Middleton, and then reporting nothing about how those charges were dropped after Middleton’s first appearance in court.

Also along the way, Ms Hermitage wrote to the British High Commissioner

Stewart Middleton and Sarah Hermitage

seeking help. The Commissioner arranged a meeting for Middleton with the Claimant. This meeting happened on 13 December 2005 and was relevant to the trial. This was because Middleton claimed that the Claimant said he wanted to see justice done, he would support Middleton’s wish to get the lease registered, he would try and see that legal cases against him would be withdrawn, get his brother to stop the harassment, stop the defamatory articles in the papers, get his brother to stop bringing frivolous cases, he would sort it out and he would cover their legal costs.

While the Claimant agreed the meeting was amicable and he would speak with his brother, he did not agree that he said he said that he could stop articles appearing in his newspapers, as he stated he had no say in editorial policy and he did not say that he would pay Middleton’s legal costs.

After the meeting though, things did not improve for Middleton and Hermitage. They continued to face intimidation, defamatory articles continued to appear and they ultimately faced threats of death. Eventually, without any protection from the local police, who often attended the property with Benjamin, the couple were hounded from Tanzania, chased to the Kenyan border without their possessions and had to return to England, devastated by the experience.

Devastated, disempowered and exasperated, Ms Hermitage started a website in 2009. It set out their experiences on Silverdale Farm and traversed a range of issues, including the media’s attacks on the couple and what she said was hypocrisy by the Claimant.

The Claimant was not pleased. As His Honour Justice Bean ultimately remarked, he probably was not used to criticism. Anyway, he sued Ms Hermitage for a number of publications for libel. He was so serious about the case that he lodged 1.8 million pounds in security to run the case and the trial eventually ran for 10 days. He claimed basically that 3 imputations arose from the publications, namely:

1. Mengi encouraged IPP’s media outlets to conduct a campaign of deliberately inaccurate, abusive and defamatory attacks on the British investors in Silverdale Farm, which under Tanzanian law is also a crime;
2. This campaign of `journalistic terrorism’ facilitated Benjamin Mengi’s corruption of local officials and intimidation of the Middletons and thus helped Benjamin to destroy their investment and grab their property; Mr Mengi was in that sense complicit in Benjamin’s corruption and intimidation;
3. Mr Mengi lied to the British High Commissioner by making promises which he had no intention of keeping, namely:

• To have the defamatory media campaign stopped;
• To speak to Benjamin and `address his behaviour’;
• To pay the Middleton’s costs of defending the claim brought against them by Benjamin.

The sting of the meaning was that the Claimant enabled his younger brother to do these things and was thereby complicit in corruption and intimidation.

At trial, no evidence was given by Benjamin, and the Claimant stated that he had very little to do with his younger brother. However, at no stage did he condemn his younger brother or express regret to the couple about what happened. This was damning [72].

The judge concluded that the Claimant was much closer to his brother than what he led the court to believe [64]. The fact that the Claimant stated that he did not know that his Tanzanian in-house lawyer and trusted counselor for 32 years, whose office was only one or two rooms away from the Claimant’s office, also happened to be Benjamin’s lawyer in one of the vexatious suits brought against the couple, did not help either. On this basis, the judge concluded that the Claimant either encouraged, knew or approved of the lawyer’s decision to act for Benjamin in litigation against Middleton [71].

No-one disputed that the media coverage was slanted and biased. The only issue was the Claimant’s role in it. Like Murdoch, he claimed he knew nothing. The actual journalist was not called to give evidence, and he might have been asked why articles were written about Middleton being charged, but nothing when the charges were dropped.

The judge concluded that the Claimant appointed a team of loyal editors who lay down the party line and would publish nothing that criticized the Claimant or his family [84]. In conclusion: “I am left in no doubt that Mr Mengi encouraged the campaign in his newspapers to praise his brother and denigrate the Middletons; and did so by making senior editorial staff aware, through Mr Nguma [the inhouse lawyer] or otherwise, of what line the journalists on the ground were expected to take.” [86]

In terms of dealing with the justification defence, there was no great treatise on the law, no short novel about the state of the law, and the judgment was short and sweet. Reginald Mengi: you lose.

The judge concluded that the Claimant did encourage the defamatory campaign, and that would have been sufficient to found personal liability under Tanzanian law “in the event – which was surely theoretical – that the authorities decided to prosecute him” [91]. The Claimant was also complicit then in Benjamin’s corruption and intimidation.

As for the third imputation, while it was not entirely true, it did not matter because this imputation was less serious than the other two, and so, under s.5 of the Defamation Act 1952, the defence of justification could not fail as a result.

The judge also found that the defence of reply to attack was made out, and concluded “Indeed, the reply was in my view measured, even restrained, when compared with the attack.” [103]. The claim was dismissed, and the judge ended with this at [106]:

“Mr Mengi is evidently highly sensitive to criticism, perhaps because he is not used to it. But this case recalls to mind the old French nursery rhyme:

Cet animal esttres merchant;

Quand on l’attaque, il se defend.”

Not entirely sure who His Honour thought was the wicked animal who would defend itself, but in any event, in the spirit of ending in another language: Ke sera sera.

 

The author is a Barrister and  has advised and appeared for a wide range of individuals and companies in defamation and media law matters around Australia. His clients have included politicians, businesspeople and other identities who have found themselves being the defamed or the defamer. He has appeared before the Australian Broadcasting Authority and represented parties in IP disputes over domain name registrations, trade marks and businesses copying their competitor’s names and products.

http://defamationwatch.com.au/tanzanian-tycoons-claim-falls-flat-mengi-v-hermitage-2012-ewhc-3445/