REV. CHRISTOPHER MTIKILA v THE EDITOR, BUSINESS TIMES & AUGUSTINE LYATONGA MREMA 1993 TLR 60

Facts

The plaintiff sued the defendants in defamation for words uttered by the second defendant, a Government Minister, and published by the first defendant. For the second defendant, a preliminary point was raised and argued to the effect that because the alleged defamatory words, if they were at all uttered, must have been uttered by the second defendant in the course of discharging his Cministerial duties, he cannot be sued in his personal capacity; rather, the suit should be a suit against the Government in accordance with the Government Proceedings Act 1967. 

Held: (i) By vicarious liability the master is liable for tortious acts or omissions of the servant and the two are joint tort feasors; either or both of them can be sued.

 (ii) Vicarious liability does not transfer the principal liability of the servant to the master

 (iii) By vicarious liability an employer is vicariously liable for torts committed by his servant but that does not absolve the liability of the servant for the tort he has committed. 

 (iv) Suing the Government under vicarious liability does not confer immunity on the servant of the Government who actually committed the tort; the right to sue the servant is not affected by the right to sue the master; 

 (v) No provision of the Government Proceedings Act 1967 or any other legislation takes away the common law right to sue a Government servant who commits a tort in the course of his official duties; 

 (vi) There is no law conferring immunity upon Ministers or public officials from being sued personally for torts they commit in the course of their official duties; when they are so sued in their personal capacity, it is not a suit against the Government.

 (vii) The vicarious liability of the master and the initial liability of the servant are two different branches of liability.