Viljoen v Masambo and Anor (Appeal 89 of 2020) [2022] ZMCA 41 (13 June 2022)

IN THE COURT OF APPEAL OF ZAMBIA APPEAL No. 89/2020 HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: ABRAHAM LODEWIKUS VILJOEN PELLANT AND MWAMBA MUSAMBO 1st RESPONDENT STANBIC BANK ZAMBIA LIMITED ^nd RESPONDENT CORAM: CHASHI, NGULUBE AND MUZENGA, JJA. On 16th November, 2021 and 13th June, 2022. For the Appellant: Mr R. Musumali, Messrs S. L. M. Legal Practitioners For the Respondents: Mrs N. Simachela, Messrs Nchito and Nchito JUDGMENT NGULUBE, JA, delivered the Judgment of the Court. Cases re ferred to: 1. 2. 3. Fungamwango and Another vs Nalishebo, SCZ Judgment No. 1 of2000 Mwanza vs Zambia Publishing Company Limited (1981) Z. R. 234 Chief Bright Nalubamba and Zambia Cooperative Federation Limited vs Muliyunda Wakunguma Mukumbuta (1987) Z. R. 75 4. James Kasamanda vs Karen Michelle Van Boxtel, SCZ Appeal Number 173/2015 -J2- 5. Emmanuel Mponda vs Mwansa Christopher Mutienga and 2 others, SCZ Selected Judgment Number 42 of 2017 6. Prudence Chaikatisha vs Stanbic Bank Zambia Limited, SCZ Appeal Number 95 of 2015 Horrocks vs Lowe (1975) A. C.135 Toogood vs Spyring (1834) 1. C. M & R 181 Robert vs Bass (200) HCA 57 212 C. L. R. 1 7. 8. 9. Legislation and other works referred to: 1. Halsbury’s Laws of England, 1979, 4th Edition, Re-issued, Vol. 28, 2. Odger’s Principles of Pleadings and Practice 3. Gatley on Libel and Slander, 10th Edition INTRODUCTION 1. This appeal is against the Judgment of the Honourable Mrs. Justice S. M. Wenjelani, delivered on 6th March, 2020 in which the court found that the appellant, who was the plaintiff in the lower court, had failed to prove his claims on a balance of probabilities and accordingly dismissed the same, with costs. 2. By the said Judgment, the court found that the email that was sent by the first respondent to communicate the concerns that the second respondent expressed about the appellant was sent in circumstances that were under qualified privilege as the first -J3- respondent had an interest to communicate the concerns to Mr Billis, the appellant’s business partner. BACKGROUND 3. The genesis of the matter is in the joint venture for farming that the appellant entered into with the Billis brothers, whereby the appellant and his son would provide expertise, while Mr Billis would be in charge of all the operations of the joint venture. At the request of Mr Billis, the appellant approached the second respondent for financial assistance and made a formal application on behalf of Billis Farms. 4. The appellant was later informed by Mr Billis, his business partner, that the first respondent had informed him that the appellant could not be trusted with money and that if financial assistance was granted to Billis Farm, the appellant would use the funds to service his personal company’s debt. The appellant was informed that the first respondent communicated this information to Mr Billis by way of email. He stated that he was of the view that the email which was sent to Mr Billis referred to him because of the situation regarding the debt servicing of -J4- the facility that his company obtained from the second respondent, in which there was a default, which problem arose as a result of the recession. 5. The appellant stated that the email that was sent to Mr Billis damaged his reputation with the Billis family as no shares were issued to him in the joint venture because the trust the Billis family had in him was eroded. 6. The appellant stated that the facility that was given to his company by the 2nd respondent had not been settled in full because there was a dispute regarding how much was owed. The first respondent’s testimony was that after the appellant and Mr Billis sought financial assistance from the second respondent for their business venture, the credit department made an assessment and concluded that the financing could not proceed as the appellant had issues with the second respondent, having obtained a facility which was not settled. 7. The first respondent sent an email to Mr Billis, the appellant’s business partner to inform him that the financing would not proceed. Mr Billis demanded to know why the bank had decided not to give his farm the loan facility. The first respondent then -J5- explained to Mr Billis by way of email that the bank had issues with his business partner, the appellant. The first respondent maintained that she communicated with Mr Billis only and that this was by way of email. She stated that the information she shared with Mr Billis was from the bank’s credit department. The first respondent stated that she was obliged to give Mr Billis reasons why the application for a loan facility was unsuccessful. 8. The first respondent testified that the appellant’s company Consolidated Earthmoving Equipment Limited obtained a lease facility from the second respondent sometime in 2006/2007 but defaulted on its lease obligations and entered into negotiations with the bank after some of its assets were repossessed. However, before the bank could repossess more equipment, the appellant’s company commenced an action in the High Court obtained a stay of execution and as such the matter remains unresolved. 9. The lower court considered the evidence and was of the view that the words in the email had the capacity to lower the appellant’s reputation in the estimation of right-thinking members of society as they gave the impression that the -J 6- appellant could not be trusted. The lower court found that the words complained of were defamatory. 10. The court found that the appellant proved all the elements of the tort of defamation and that he was defamed. It further found that the email was sent to the appellant’s partner under qualified privilege as the second respondent communicated its concerns to Mr Billis to inform him why the loan facility would not be extended to his company. 11. The court concluded that the appellant had failed to prove his claims on a balance of probabilities and the matter was accordingly dismissed. THE GROUNDS OF APPEAL TO THIS COURT 12. The appellant was dissatisfied with the decision of the lower court and has now appealed to this court on the following grounds- 1. The court below erred in law and fact when it held that the respondents9 words were defamatory to the appellant but sustained the defence of qualified privilege in spite of evidence of malice and bad faith in sending the email by the respondents. -J7- 2. The learned court below erred in law and fact when she struck out the appellant’s entire claim for damages and held that the court is precluded from granting a claim arising from a tortious act that has been specifically pleaded, 3, The trial court erred in law and fact when it did not consider and grant an order for injunction against the respondents for further publication of defamatory words against the appellant, THE APPELLANT’S CONTENTIONS 13. In arguing ground one, the learned Counsel for the appellant Mr Musumali submitted that the lower court erred in law and fact when it held that the respondents’ words were defamatory to the appellant but sustained the defence of qualified privilege in spite of evidence of malice and bad faith by the respondents. He argued that the court erred because the appellant proved that the defamatory remarks in the email were malicious and issued in bad faith. 14. According to Counsel, the defence of privilege at law is negated by malice and bad faith which can be inferred from the conduct of the defamer. The case of Fungamwango and another vs -J8- Nalishebo1 was called in aid where the Supreme Court stated that- 'S . . Malice in general is inferred from publication of false words unless such publications are made falsely by a person in discharging some public or private duty, whether legal or moral. In such cases, the occasion prevents such inference of malice. There are three elements for the defence of qualified privilege to be available: a) The occasion must be fit for qualified privilege. b) The matter must have reference to the occasion; and c) It must be published passing it from right and honest motives. 15. Counsel submitted that malice can be inferred from the facts and circumstances of the case and words published. He maintained that the grossness and falsity of the assertions and the cavalier way in which the defamatory words were expressed by the defamer can lead to the inference of malice and bad faith. 16. Counsel contended that the lower court erred when it adopted the approach of actual proof of the malice instead of making an -J 9- inference from the words complained of. The court was referred to the learned authors of Halsbury’s Laws of England where it was stated that- “Excessive language in relation to a matter within a privileged occasion may be evidence of malice. To submit the language used on occasions of qualified privilege to a strict scrutiny and to hold any language which goes beyond the actual exigency of the occasion to be evidence of express malice would greatly limit if not altogether defeat the protection afforded by the privilege. There must be something so extreme in the words used as to afford evidence the publication was actuated by improper motive../9 17. It was Counsel’s submission that the court is invited to scrutinize the words published by the defendant and the circumstances in which they were used and determine whether they are sufficient for an inference of malice to be made. 18. It was counsel’s contention that the respondents’ remarks to the effect that the appellant would use the funds obtained in the facility to bail out the earthmoving business in his personal -J 10- capacity shows that the respondents were malicious and therefore defeats the defence of qualified privilege. 19. On the email that was sent to Mr Billis by the first respondent, Counsel submitted that the respondents went beyond mere privileged advice to Mr Billis as they gave the impression that the appellant was dishonest and untrustworthy in his dealings as a businessman. The court’s attention was drawn to the case of Mwanza vs Zambia Publishing Company Limited2 where it was held that any imputation which may tend to injure a man’s reputation in business, in employment, trade profession, calling or office held by him is defamatory. 20. Counsel contended that the defamatory statement that the appellant would misappropriate company funds to pay off his personal debt was made as a result of the fact that there was a dispute between the appellant and the second respondent in the matter relating to the loan facility that was given to the appellant’s earth moving company which is unresolved to date. 21. The court was urged to uphold ground one as the appellant adduced evidence that proved that the defamatory words -ju- published by the second respondent were malicious, thus negating the defence of qualified privilege. 22. Turning to ground two, it was submitted that having found that the appellant was defamed, the court should have ordered that damages be assessed by the court and that the appellant’s claims and reliefs should have been granted. The courts attention was drawn to the learned author of Odger’s Principles of Pleadings and Practice where it is stated that- . every kind of equitable relief can be claimed and given in an action in the King’s Bench division. And even where it is not claimed, yet if the right to appear incidentally in the course of proceedings, the appropriate relief will be granted.” 23. Counsel argued that the tort of defamation and specifically the allegation of libel is founded on common law and that the court may consider an appropriate remedy as opposed to striking out the claim for damages. The court was urged to uphold ground two for the aforestated reasons. 24. In arguing ground three it was submitted that the lower court erred in law and fact when it did not consider and grant an order -J 12- for injunction against the respondents restraining them from further publishing defamatory words against the appellant. It was Counsel’s contention that the court has the discretion to grant a final injunction to prevent future or further publication of defamatory words by the respondents. It was contended that the lower court should have granted an injunction as there is a risk that the respondents could have issued further defamatory words which would have injured the appellant’s business reputation. 25. According to Counsel, the court erred when it did not make a pronouncement on the claim for an injunction as it had a duty to adjudicate upon every aspect of the suit so that every matter is determined in finality. We were urged to uphold ground three in favour of the appellant as the lower court failed to make a determination on the claim for an injunction by the appellant. We were urged to uphold the appeal, with costs to the appellant. THE RESPONDENTS’ CONTENTIONS 26. The respondents filed heads of argument in response on 3rd July, 2020. Responding to ground one, it was submitted that -J 13- there was no evidence of malice that was led in the court below. It was argued that when a defendant sets forth a defence of qualified privilege, the plaintiff must file a reply that gives the particulars of the express malice as it is only “express malice” that defeats the plea of qualified privilege. The court’s attention was drawn to the case of Chief Bright Nalubamba and Zambia Cooperative Federation Limited vs Muliyunda Wakunguma Mukumbuta3 where the court cited Order 82 of the Rules of the Supreme Court with approval as follows 82/3/4. “But if there is a lawful excuse for the publication (as for example where it is an occasion of qualified privilege) by which the inference of law is prima facie rebutted, the onus is thrown upon the plaintiff of proving their existence as a fact of the malice necessary to maintain the action. The latter is sometimes called “malice in fact” or “express malice” and the plaintiff must serve a reply pleading malice and giving the particulars referred to in paragraph 3 of this rule. It will be seen from this comment that the original allegation of malice, which is presumed if there is lawful excuse for -J14- the publication is quite different from the express malice which defeats the Defence of qualified privilege.99 27. It was contended that the reply to the respondent’s Defence fell short of the standard required where there is a defence of qualified privilege. Counsel referred to the learned authors of Gatley on Libel and Slander, 10th Edition page 870 at paragraph 28.5 where it was stated that- “In particular, there is a specific rule of pleading that wherever it is intended to allege in answer to a plea of fair comment or qualified privilege that the defendant was actuated by express malice, the claimant must serve a reply giving particulars of the facts and matters from which the malice is to be inferred.99 28. It was argued that in casu, the appellant did not comply with the rule of pleading as pleadings serve the useful purpose of defining the issues between the parties. According to Counsel, the appellant did not give advance notice of the particulars that they intended to rely on to prove express malice through their reply. It was contended that the lower court was on firm ground -J 15- when it found that malice was vitiated and the defence of qualified privilege was successful. 29. On the issue of the appellant submitting that there was express malice on record, it was argued that the arguments relating to malice were not traversed in the court below. The court was referred to the case of James Kasamanda vs Karen Michelle Van Boxtel4 where the Supreme Court held that- “We have held in cases such as Mususu Kalenga Building Limited and Winnie Kalenga vs Richman Money Lenders Enterprises that where an issue was not raised in the court below, it is not competent for any party to raise it in this court.” 30. On the issues relating to the court action between the parties being extrinsic evidence of malice which is capable of defeating the defence of qualified privilege, it was submitted that this was not pleaded nor was it traversed in the court below. We were urged to dismiss the first ground of appeal. 31. Turning to ground two, it was contended that the lower court was on firm ground when it found that it was precluded from -J 16- considering the appellant’s claim for a liquidated amount of Thirteen Million Kwacha (KI3,000,000.00) in a claim in tort. 32. The court’s attention was drawn to the case of Emmanuel Mponda vs Mwansa Christopher Mulenga and 2 others5, where the court stated that- “It is a matter of elementary knowledge indeed that the type of damages which are awarded to account of any proven tortious wrong or wrongs are of the second type, that is unqualified damages. Needless to say that unliquidated are unspecified and are therefore subject to assessment or fixing by the court. Arising from the foregoing, it was patently wrong and irregular for the appellant to have specified or pre-estimated or fixed the amount of damages he was seeking to recover in his action founded in tort." 33. It was contended that the appellant sought a fixed amount of damages which offended the rules of pleadings in tort claims. According to Counsel, the Supreme Court in the Mponda case referred to above determined that such a claim is irregular. It was argued that, the lower court was on firm ground when it -J 17- found that it could not deal with the appellant’s claim for liquidated damages. 34. The court’s attention was also drawn to the case of Prudence Chaikatisha vs Stanbic Bank Zambia Limited6, where the Supreme Court guided as follows- “Before we conclude, there is one issue in this appeal which stuck us in a negative way, namely the appellant’s search for liquidated or specific sums of money purportedly in the name of damages. Only recently, that is in our Judgment in Emmanuel Mponda vs Mwansa Mulenga and two others, we deprecated Counsel’s continuing propensity to pre-estimate the amount of damages which were endorsed in originating process even in the circumstances where the damages being sought are sound in tort or breach of contract and would be the subject of assessment or fixing by the court.” 35. It was submitted that a claim for a liquidated amount in an action founded on tort is irregular. Counsel argued that the appellant’s claim for damages for defamation was not successful so the court was under no obligation to deal with the question -J 18- of quantum of damages and that it was an express finding of the court which the appellant has not appealed against. 36. It was submitted that section 13 of the High Court Act does not apply because the appellant was not entitled to any of the reliefs he sought. The court could therefore not adjudicate on the question of damages. We were urged to dismiss the second ground of appeal. 37. Turning to ground three the respondent’s counsel submitted that the lower court was on firm ground when it did not grant an order for an injunction to restrain the respondents from further publication of defamatory words. The court was referred to the learned authors of Gatley on Libel at page 258 where it is stated that- “At the trial of an action for libel or slander actionable per se, after the Jury have found the verdict for the claimant, the court has Jurisdiction to grant an injunction restraining any further publication of the words complained of or any similar defamatory matter,” 38. It was argued that the court only has jurisdiction to grant an injunction where it has found in favour of the claimant. It was -jig- further argued that in casu, the appellant’s claim in the lower court was unsuccessful so the court had no jurisdiction to grant an injunction to the appellant. 39. It was contended that the appellant led no evidence to suggest or show that there was reason to be concerned that there would be a further publication of the words complained of. 40. According to Counsel, since the lower court considered the appellant’s claim and did not claim for defamation there was no basis for the court to grant an injunction. The court was urged to dismiss ground three for lack of merit. We were urged to dismiss the appeal in its totality for lack of merit, with costs to the second respondent. THIS COURT’S ANALYSIS AND DECISION 41. We have considered the record of appeal, the Judgment appealed against and the submissions by Counsel. Defamation is the communication of a false statement about another that injures their reputation and constitutes a tort. The tort of defamation includes both libel and slander. The said publication is one that is made without justification or excuse -J20- and is calculated to injure the reputation of another by exposing him to hatred, contempt and ridicule. 42. To successfully prosecute a claim founded on defamation, one must prove that injury has been occasioned to a claimant’s reputation as a result of the publication complained of. 43. Ground one attacks the lower court that it erred in law and fact when it held that the respondent’s words were defamatory to the appellant but went on to sustain the defence of qualified privilege inspite of evidence of malice and bad faith in the email by the respondent. 44. The gravamen of the appellant’s arguments in ground one is that the defence of qualified privilege at law is negated by malice and bad faith which can be inferred from the conduct of the defamer. According to Counsel for the appellant, the cavalier way in which the defamatory words were expressed by the defamer can lead to the inference of malice and bad faith. 45. In reply, the respondent’s counsel submitted that there was no evidence of malice that was led in the lower court and that no particulars of “express malice” were provided by the appellant’s -J21- counsel in reply to the respondent’s defence of qualified privilege. 46. The lower court found that the email that the respondents sent to the appellant’s partner fell under qualified privilege as the second respondent communicated its concerns to Mr Billis, the appellant’s partner to inform him why the loan facility was not extended to his company. 47. In the case of Horrocks vs Lowe7 Lord Diplock stated that- "To destroy qualified privilege, the desire to injure must be the dominant motive for the defamatory publication." 48. In the case of Toogood vs Spyring8, whose facts are that a tenant (farmer) complained to the landlord that the worker he sent to carry out repairs had got drunk and broke into his cellar. The workman sued for the tenant’s defamatory statement to the landlord. The court held that the tenant could rely on qualified privilege because it was clearly important information to say and had made the statement believing it to be true. -J22- 49. In the case of Robert vs Bass9, the appellant had pleaded qualified privilege and the court on Appeal, in discussing qualified privilege stated that: "An occasion, of qualified privilege must not be used for a purpose or motive foreign to the duty or interest that protects the making of the statement. A purpose or motive that is foreign to the occasion and activates the making of the statement is called express malice. The term “express malice” is used in contrast to presumed or implied malice that at common law arises on a false and defamatory statement. Proof of express malice destroys qualified privilege. Accordingly, for the purpose of that privilege, express malice (“malice”) is any improper motive or purpose that induces the defendant to use the occasion of qualified privilege to defame the plaintiff In Browne v Bunn (1893) 6 R 67 at 72,) Lord Herschel LC said that “malice means making use of the occasion for some indirect purpose.” Early in the history of the law of qualified privilege - which did not come into the common law until the end of the 18th Century - Lord Campbell CJ said that malice was “any indirect motive, other than a sense of duty” (Dickson vs Earl) similarly, in an -J23- action for slander of title, Parke B (Brook vs Rawl (1849) 19 LJ Ex at 115 said that “acting maliciously means acting from bad motive/9 ‘If the occasion is privileged9, said Brett LJ (Clark vs Molyneux 1877) 3 QBD 237 at 247, ‘it is so for some reason, and the defendant is only entitled to the protection of the privilege if he uses the occasion for that reason,9 In Horrocks vs Lowel2 the leading case on malice Lord Diplock said: "So the motive with which the defendant on a privileged occasion made a statement defamatory of the plaintiff becomes crucial. The protection might, however, be illusory if the onus lay on him to prove that he was actuated solely by a sense of the relevant duty or a desire to protect the relevant interest. So he is entitled to be protected by the privilege unless some other dominant and improper motive on his part is proved. ‘Express malice9 is the term of art descriptive of such a motive.99 50. A communication is said to be so privileged if it is made by a person in discharge of some duty, whether public or private, of a legal, moral or social character or having an interest to be protected to a person who has some interest in receiving it, or k -J24- to a person honestly believed to have a duty to protect that interest. 51. In casu, we have referred to the background of the matter in detail, which led to the email that the first respondent made to Mr Billis, the appellant’s business partner. We are of the view that the email was sent to Mr Billis in the circumstances in which the plea of qualified privilege applies. We are of the view that the communication was warranted in the circumstances and the question that arises is whether the appellant has proved that the first respondent sent the email with malice in fact. 52. We are further of the view that the contents of the email do not in any way impute that the first respondent acted with malice when she sent the email. We accordingly hold the view that the appellant has not succeeded in proving malice merely because the respondents stated that he would use the funds that would be loaned to Mr Billis company to service his personal company’s debt. 53. Having perused the record, we are of the view that there is no evidence of malice in this case and are fortified in our view that the appellant did not prove malice. The respondents were under -J25- a legal duty to make the communication. Accordingly, we do not find merit in ground one and it fails. 54. The second ground of appeal attacks the lower court for striking out the appellant’s entire claim for damages arising from a tortious act that had been specifically pleaded. According to the appellant’s counsel, the court should have ordered that damages be assessed by the court. 55. It was argued by the respondent’s counsel that the appellant sought fixed amount of damages, which offended the rules of pleadings in tort claims. We are of the view that the email by the respondents was made to protect the interests of a potential client. We further opine that the appellant failed to prove malice in the manner the respondents sent the email to the appellant’s business partner. As such, the view that we take is that the appellant was not entitled to an award of damages and accordingly, the second ground of appeal fails for lack of merit. 56. The third ground of appeal attacks the lower court for failing to consider and grant an order of injunction against the respondents for further publication of defamatory words against the appellant. According to Counsel, the lower court should -J26- have granted an injunction as there is a risk that the respondents would issue further defamatory words which would injure the appellant’s business reputation. 57. The respondents on the other hand argue that a court has jurisdiction to grant an injunction where it has found in favour of the claimant. According to Counsel, since the appellant’s action was unsuccessful in the lower court, it had no jurisdiction to grant an injunction in the manner sought as the appellant’s claim failed. The court was urged to dismiss the appeal in its entirety, with costs to the respondent. 58. We have considered the third ground of appeal and the submissions by both counsel. Having taken the view that the respondent’s email fell under the Defence of qualified privilege, and was sent without malice and bad faith, we are of the view that the third ground of appeal has been rendered otiose. We accordingly dismiss the third ground of appeal. CONCLUSION 59. For these reasons, the net result is that this appeal has no merit as all the three grounds have failed. It is accordingly dismissed -J27- with costs to the respondent, to be taxed in default of agreement. P. C. M. NGULUBE COURT OF APPEAL JUDGE kTTOzenga COURT OF APPEAL JUDGE