Chihana v Mhoni (Civil Cause 398 of 1987) [2021] MWHC 359 (29 July 2021)

IN THE HIGH COURT OF MALAWI PRINCIPAL REGISTRY CIVIL CAUSE NO. 398 OF 1987 BETWEEN: BONNY STEVEN CHIHANA ••··••·•••··-··- ~IF:e" - AND ROWLAND A MHONI .•.••..•••••.••••.••••• DEFE. NDA.bit UNYOLO, J. Chikopa of counsel for the Plaintiff Chiume of Counsel for the Defendant Liyao (Mrs), Court Clerk Gausi (Mrs), Court Reporter ---------------------------~--- J U D G M E N T )' In this action the plaintiff claimed aQa,in.+: In his defence the the defendant general damages for per,S,Qn,al inj.ur:i..e.s paift and suffering. He further claimed the sum of K42.0a a$ s special damages for damage to property. It was pJ~deil that the defendant so severely assaulted the plaintiff wixh beer bottles, inflicting upon him two deep cuts in the head. It was averred that the plaintiff bled profusely as a result and that he had to be rushed to hospital where he received ten stitches to close the cuts. It was ~ also pleaded that he suffered excruciating pain for several days and that because of the injuries his shirt was so soaked in blood he could not used it again. defendant denied assaulting the plaintiff. He averred that if the plaintiff got injured at all then it was just tough luck, in that the plaintiff must have been injured as a result of his own aggressive behaviour. The defendant pleaded that whatever action he took was in self-defence and that overall the plaintiff cannot he heard to complain. Finally, the defendant denied that the plaintiff suffered any damages, general or special, or at all. Lastly, the defendant counter-claimed against the pl~intiff for damages for defamation and for personal injuries• pain and suffer ing. He pleaded that the plaintiff malit:iously and force-ly called him a »cheap lawyer who did not know what he was doing 11 presence of several people in a bottle store and that they meant, and were understood to mean, that he w~s incompet-e.nt in his duties as a legal practitioner• T~e defendant pleaaed further that the said words were c:alc1Jlated to, and did disparage him in his career as a )egal pructitioner He averred that these words wer~ uttored in the • 2 / •••••• - 2 - and that he was greatly injured in his credit, character and r€p,J--tation as such legal practitioner and brought into hatred, ridicule and contempt whereof he had suffered damage. He gave particulars of the damages suffered in this context as well as particulars of the personal inju ries sustained. And in his reply to defence and defence to counter-claim, the plaintiff joined issue with the defend ant upon his defence and denied the allegations made in the counter-claim. So much for the pleadings. Taking first things first, I will deal with the plaintiff's claim first. The plaintiff did not appear at the hearing. His lawyers were sure that he was aware the matter was coming up for hearing, having written to him about it. On his part, Counsel for the defendant informed the Court that he met with the plaintiff in town only a few days before the date of the hearing and there could, therefore, be no doubt that he was around. The Court was further informed that the plaintiff had been very unc-0-o,g,e rative with his lawyers, and after considering the matter fully and carefully, I proceeded to hear the case. Up tQ In the second day, the plaintiff was nowhere to be seen. the circumstances, I dismiss his action with eosts, fo ~- want of prosecution. I now turn to the counter-claim. I w l consider the claim for defamation first. The defend9 n the Court that he is a lawyer by profession. He has a Bachelor of Laws Degree from the University of Malawi. said that after qualifying he worked for the Malawi Govern ment, first as Registrar General and later as Chief State Advocate in the Ministry of Justice. Then he retired a.nd set-up his own practice under the name of Mhoni and Company in downtown Blantyre. He has since folded up the practice and is now back in the Ministry of Justice working as a Member Judge of the National Traditional Court of Appeal. The defendant told the Court fur·ther that the plaintiff was one of his clients the time he was in private practice. He was instru~ted to incorporate a company for the plaintiff, which he did. That WqS a year or so before the incident in the present case. Referring to the said incident, the defendant's evidence was briefly that he was on the material day maktng merry and imbibing with others in a bottle store at Ka,ba in the City of Blantyre when the plaintiff came. Accordtng to the defendant, the plaintiff was already drunk at t~o time and was ~ggressive, shouting at everybody. then picked on the defenclant, referriQg to hi~ in jest as "my lawyer". The defendant told the C:otirt that he took exception to be referred to by his pr~fession in a pub and remonstrated with the pl a intiff. Unfortunately, this back- fired. The plaintiff then started sayi~g tha~ the defend- ant was a "cheap lawyer". He repeated ~his s•veral times loudly and clearly. evidence in regard to the claim for defamation. pertinent to observe at t~is juncture tflat the ~efendant called a witness who c~rro.borated hi;i o~ all th,e material ·As if that was not enough, tha plaintiff such broadly was t~e defendant's It is HIGl-f~. ·,------ ~, t.old t I' <. - • ,_ 3 I • • t • • • • . . . -- .:) - points on this aspect. This witness was one of the persons in the bottle store on the relevant day. All in all, I am satisfied that the plaintiff did utter the words "cheap la wyer" with reference to the defendant. Perhaps I should mention that it was conceded by learned Counsel for the defendant during submission that neither the defendant nor his witness in their evidence substantiated the additional words "who does not know what he is doing" set out in the counter-claim. But as already pointed out, I am satisfied the plaintiff did utter the words "cheap lawyer" concerning the defendant and I so find. Now, the question is whether these words are capable of a defamatory meaning. The defend ant's assertion is that they are and that in their natural and ordinary sense the words meant, and were understood to mean, that he was incompetent in his duties as a lawyer. Pausing there, it is trite that statements may be defamatory of a person with reference to his calling or profession on the grounds that they disparage him in it. See Turner - Sim - v - Stretch (1936) 2 All ER 1237 Lord Atkin applied THE TEST: v - MGM Pictures Ltd (1950) 1 All ER 449. In "Would the words tend to lower the plaintiff in the estimation of right thinki members of society generally, or which woul cause him to be shunned or avoided?" ; - v - Hall (1928) 72 SJ.87, it was held to be Cases bearing on this point are numerous. See Libel and Slander, 8th Edition, paragraph 60. For example, in Lawrence DEFAMATORY TO SAY OR IMPUTE THAT A PERSON WAS UNFIT FOR His profession or calling owing to want of ability, inefficiency er incompetence. And in Slack - v - Barr (1918) 82 JP.91 an engineer/fitter ~as held to have a good cause of actipn for the statement th~t he was grossly unskilful workman. The Oxford Advanced Learner's Dictionary of Current English defines the word "cheap", among other things, quality''. And referring to the present case, there is no doubt in my mind thpt what the plaintiff meant by the words complained of was that the defendant was a lawyer of poor quality - an incompetent lawyer, in simple English. I am satisfied the words were uttered in the presence of several other persons in the bottle store. No defence of any kind In the result, I find that the de£end has been proffered. ?nt has proved the claim for defamation. as "of poor I now turn to the claim for assault. The defendant told the Court that he tried hi~ best to remon strate with the plaintiff, but to no avail. The plaintiff kept coming and telling him to his face that he was a cheap lawyer. The defendani: said that he then pushed the plaintiff on the spur of the moment and warned him to mi nd his own business. Again, this back-fired. It was the defendant's evidence that then and there the plaintiff went into a rage. He began beati~~g the defendant using 4/ .. . .. • . .___. ccJRT OF ; 1,.;• ~ .. ,, ~, ~ ,GP -- EP 199 .-)1 / ~ - - then went behind the bottle store and hid him hands and obj - ::ts such as beer bottles he was able to lay his hands on. The deferJant said that he tried to fight back in self-( efence, but he was no match for the plaintiff. He went down c couple of times before showing a clean pair of heels. He self there. ~ hat was how the "war" ended. It was the defendant•s e ridence that in the attack he svstained a laceration over the right eye and a sprain of the fourth finger. He sRid that he suffered great pain that night and for days thereafter. Finally, the defendant told the Court that he attended hospital and produced in evidence the medical chit he got from there. Here again, the defendant was corroborated on all material points by the witness he ca:led. Clearly, the plaintiff was the aggressor. The defendant cannot, in my judgment, be I ca'nt find any defence or justifica faulted in any way. tion for the attack. In the upshot, I am satisfied that the claim for assault has been made out and I find accor dingly. entirety. In sum, the counter-claim succeeds in its I now turn to the vexed question of a dozen or so lost business to a tiny bottle store, damages. Again, I will deal first with the claim on I have already given the defendant's profes defamation. sional background. He contended that as a result of the incjdent, clitnts shunned him and that he the extent th the had to close down his practice. The facts are, ho -ever, cle;=ir. What emerges is a picture of a solitary and )solated incident in and we are talking of very few people - present - all on the booze, it would appear. There was no evidence tr.3t apart from the plaintiff any of these other people ~ere the defendant's clients. I have already said that the plaintiff was himself drunk and I doubt very much those in the pub at the time would have taken him The def0ndant was seriously in all the circumstances unatle to call any witness or witn~sses to s~bstantiate the allegatio ;_ that he had to closr! down his practice solely because of the incident herlin, or give names of any clients w~o ceased to deal wit1 him as a result. Corroborative evidence was, in my view, necessary in the light of the gravity of the allega·.ion. Frankly, I find it difficult to attribute the closing down of the defend ant's practice to the incident in the bottle store. All the same, the defendant is entitled :o compensatory damtJes, as t ~ kind of slander invo~ved in ~his case is actionable even without proof of fpecial damages. cannot undere,timate the humiliat ~on and distress caused to the defend--nt. It is also noted that the plaintiff has made no apolo;y in the matter. It is to be observed, on the other hanct, that the extent of daH.lage which a defamatory ma~ter may cause must depend, to a large degree, upon ·~he extent of the publici t:y given to it. See Morgan vs Oldham PrPs~ Ltd (1971) 1 WLR 1239. See also Glas ton "alino r.,s Abel Kalakanjoka, Civil Cause No. 56 of 1981 (u. ,reported). Further, the state of mind of the s I 5 / •••••• - s - slanderer is mcterial. See Bridgemont vs Associated News pa~ers Ltd and Others (1951) 2KB 578. I have, therefore, ta en into accc~nt in the present case the fact that the case here is ore of slander as opposed to libel. Further, I have taken ir to account that the words complained of were uttered ir. a private place to a very small group of people. plaintiff was in a drunken state of mind at the material time. All theEe are, in my view, con iderable mitigating factors. I have also taken account of the fact that the In the Kalakanjoka's case above cited, the plaintiff sued the defendant for slander and assault. The defendant called the plaintiff a thief. SkinnP.r, CJ as he was in the sum of Kl,000.00. The learned Chief Justice observed: then, awarded the plaintiff damages fo r t e slander "l now turn to the assessment of damages in respect of the slander. This is a case of s ,_ander actionable per se. The plaintiff wcts a respectable man. He did nothing to bring the slander upon himself. He was in no way impudent. To call a man a thief is a s~rious matter, but I bear in mind that the e~tent of the publication was limited. Howe ver, I must take account of the fact that there W:1. S no apology and the defe ~dant manufactured an allegation of adultery. d" famation in the sum of Kl,000.00 11 I assess damages for • I have considered the facts of the present case with religious care. and aggravating features in the case. the Kalakanjoka case was decided some ten years ago. Clearly, with inflation, Kl,000.00 then was much more than Kl000.00 today and doing the best ant damages for the slander in the sum of K2,500.00 I have noted both the mitigating I have borne in mind I can, I award the defend Finally, I turn to the assess•ent of damages in respect of t~e assault. The Kalakanjok~•s case is again useful on this ~spect. There the learned Chief Justice awarded the platntiff KS00.00. He said that: ",.,he attack on the plaintiff was a sE1vere one. H~ was struck a number of times on the f~ce ard stomach. Again, the attack Wi\S ~ upon h; m in frpnt of a number o f people an4 consti t~ted a grave affront to his dignity. a• ard him K500. 00 by \o,ay of damages." I To my mind, the injuries sustained by the defendant in the instant case ~ ere a little more serious than those desc~ibed in the Kalakanjoka's case . Taking all the facts into ~ccount and again doing all the best I can, I award the defendant Kl,000.00 damages for the assault and the resulting injuries, pain and suffering. 6 I •• •••• - 6 - th e counter-claim in the sum of k3,500.00 with costs. In sum, I enter judgment for the defendant on 1991, at Blantyre. DELIVERED in open Court this 29th day of July, I \ JL-. ___ _j L . E( Unyolo JUDGE