Christiaan Jacobus Van Der Merwe v Eric Clayton (Appeal No. 9 of 1991) [1991] ZMSC 79 (26 July 1991)

. . ' IN THE SUPREME COURT OF ZAMBIA Appeal No. 9 of 1991 HOLDEN AT NDOLA (Civil jurisdiction) CHRISTIAAN JACOBus· VAN. DER MERWE Appellant -v- ERIC·CLAYTON Respondent ..... . ·, CORAM: Ngulube. D. C. J •• Sakala and Lawrence., JJ.s. On 12th June, and 26th July, 1991 For the appellant, J. H. Adams. of J. H. Adams and ~ompa~y. For the Respondent, E. G. Tembo, of Lloyd Siame and Co. ,,.... JUDGMENT ' I J Ngulube. D. C. J. delivered the judgment of the Court Cases referred to I , ·. ' . • I : ,·: _-·, ·~ .~~-- . 1) Mumba •V- Zambia Publishing Company Limited (1982) ZR 53 2) Chikuta 4 v- Chipata Rural Council (1983) ZR 26 I . I and the respondent the defendant which.is what. they were in the· action. The plaintiff sued the defendant for .damageijor libel: : . ·. .! . -I i . I . f' ,. l • . , contained in a letter written by .the latter to the_ pl a inti ff I s bank ·.. .. . . ·. '•. manager at Zambia National Cormiercial Bank. Kapiri Mposhi •. The bank stopped financing the plaintiff 1s farm activities and.there were .two ' : al legations made in the letter of which the plaint~_ff complained, :1'· , that 1s to say:• . , - • • . . · . "{<·· .. :· . • ;,_l ~ • •,"'l: .•{-1~ i. • _ , .'--.~-~·f ·1 )} .,. a) "The fann is at. pres.~,P\--1~:,!~~H.ri~~upi~ 1;:~~?1 by a c. J. Van der -Merw.e • in · ·coritraventi on . ·: · ·. , . \_ · . ' .. • • ''1-. ·:.;~~-. };":, ·: · 1-' • • / ·• • \. ,- ~;,f'; H~U. J, ~--:.. ::. ·:~;· ~ ... ·.:~ >". . . .: _- ~~"' ,:• . ·, • ~ - ' of the Agrlcultur~l -.. L~ps' Act~:'and . . .-·~ ·. . . ; . >.·~ . ~~: _ ... ,;-:--. .. . . .. ' ...... "• .. : . . . ·,: . .. · ... ·. :· . b} 11In view of the above. ·1 would request · I ,· • ; ' ' . , that you exe~cise caution with regard· to any loan application from ••••••• II .. ,, 2/ •••••• C. J. Van C~J. Van Der Merwe or ••••••••• against - the .title deeds of the above farm. Van Der Merwe was involved in a similar case for four years over his ~on .. payment for the adjoining ·fam·number:3171~- which resulted in a _1fierl-facias•'•'order being· served on him in 1979~~ Tile learned trial judge found both allegations to ·be-,-defamatory:· In relation to the second allegation. the defences pleaded _were rejected and the plaintiff was awarded K15,000.,_ He has appealed against the quantum of this award and has asked us to award much more. With:_ regard to the f~rst allegation, the learned trial judge upheld the defence of justification apd there is an appeal against such finding • . ..-1··;_,,.> The defence pleaded was to · the effect t~at it was true that t_he .. , ' .. I • .. • I j • / I t. I • plaintiff was illegally occupying fann No. 2388 Mkushi, which belonged .· to someone else without any ·consent under the Land (Conversion .. of ', ' • Titles} Act and tile Agricultural Lands Act. . . . - . - . . In dealing with this · _ . ... -~ . . ; . . part of the case, the learned .trial judge reviewed the history of the ownership of this farm and found that_, because of various highly · suspicious aspects· concerning the assignments from· one person to :the '; . ' ' ' ' ' ' . . . \ : .. :: yJ':~ .. ; next, right down to the plaintiff, . title may have been handed down in such a fraudulent and irregular manner that any reasonable pe~son . ; t, would be justified to c(mclude that the plaintiff was illegally in . ·occupation in breach of the Statute. The suspicions included the .. use of an expired power of attorney by some advocates i contrary · to specific instructions; the way the documents were bac~d-ated at the Deeds Registry; and the way the plaintiff utilised a power of attorney to himself which did not authqrise him ta dispose of-)and. We - . ·. ·_, . - -. .,. .: ,: .. _. .. .. . . . . . ,. ; . . , . . . . . . . . . . ' ·, ' ; .. ~· .; . ~ .. .. should make it clear that. although there was mu.ch ·discussion concerning • ' > • - • · the ownership of this land, we sp~cifically decline_'to p~onou~ce upon the ·Question of owne'rship ·Which we understand i:s the subject of . ,· ' other litigation. · Our sole interest in the history of the fann is . ' to see whether it supported the finding by the learned trial judge .· . . -' . . - . . . . . . . - . . , ' ' that the defendant had justifie~ ~he libel in the first allegation • On behalf of the plaintiff. _Mr~ Adams argued that it was : . 3/ •••• · ••• wrong _. .. i' • , , • # wrong to uphold the defence of justification.· He submitted that, because the pleadings only all~ged contravention of the two statutes, the documents produced at the trial showing that State consent ~ad been given under both_ statutes effectively defeated the justif~cation as pleaded. He. further submitted that the plaintiff could not be · affected by any antecedent fraud al le_gedly committed by those who · . . . ' _, transferred the property from an earlier owner to the plaintiff's immediate vendor. Mr. Tembo countered these arguments by asserting that there was abundant evidence to support the finding of fraud and that the plaintiff could not ·~ave .acquired any valid title to the farm. We have already said we do not propose to pronounce upon the issue of ownership~ -.,,~ne true 'issue in the ground of appeal as formulated by Mr. Adams was whether, going by. the pleadings. : .. . , .,· . . . . . . . . . ' the defence should have been upheld. : We accept the role to. be accorded to pleadings but at .. the same time recognise that 1 t ·is ' permissible to dec!de a case · on a variation. development. ~r modification of a pleading, provided that this does not result in the court d~termini_ng the· case on a distinct and .completely ·new cause of ac:ti.on or· def~nce, · that is, on a case which is a complete or radical departure·from . . the pleadings. ~le have discussed ihls point before:Jn such case~ as Mumba -v- Zambia Publishing Co. Ltd. (1) and Chlkuta ·-v- Chipata Rural Council (2). The· point about ~he specific pleading . ... ..... . ·- . . .~ --_ ... " . ~- . ; :... . . - . . ' • • , : ~ -· . ,: . . - . , . - . . which Mr. Adams took was certainly .:well taken; but then, as we indicated in Chikuta there may_be cases where facts emerge from the evidence which have a substanUal bearing on the issues being tried and which no trial judge .can properly be expected:to ignore~ It ts true that, from the documents on the. record there 1s· every : reason to believe that the plaif'!tiff and/9l hisi irilnedl~te; vendor __ .- .· went through the procedures required by th~ two stat~tes specifically - . . -~ l. i , l j I ·1 ,,. pleaded by the defendant as having been contravened.\ However, it is also quite plain that the defendant's basic alleg~tion was ' ' •· ' . . : ' that the plaintiff was 1 llegally_ in occupation since he: was not ,. 4/~ •••••• the owner . I 't the owner of the farm. To this end. evidence was adduced which left a serious doubt in the mind of the learned trial judge concerning the legality and validity of th.e various documents and transactions which culminated in the pla1nti f_f obtaining a certificate oe title. These facts went to the root of the claim on the first allegation and it seems to us that on~•s going through the correct motions under the b10 statutes when ·one may not have been the correct person .. ' to do .so. having regard to the irregularities noted by the learned trial judge and stressed by Mr. -Tembo in his response; may not have disproved the basic allegation. In any event. and despite Mr. Adams .\ spirited submission that other people 1s fraud should not concern the plaintiff, it would-9e unre~listic to pluck the allegation complained of out of its full context·which was· in the · letter to the ·. ::·; ~· ~- . . l . . . .. -· :. . . . / ) Bank and which· read i_n the .firs~-'paragraph;- "Dear Sir, . ' FARM NO. 2388 ~ MJCUSHI - GD VAN TONDER , , • I , . I r I, i' cl ' ~ ' ' • . l -,. Title to the above ·fann is the .subject of a :. High Court action. We c~aim that· the registration of the Assignment of the fann to NA Blackler was obtained by fraud and the c;ourt; h~~-~e,i asked to re~c~nd_ th«! . registration. Blackler absconded from Zambia·two years ago because of lies in~ deposition to the court and the fann is at prese,:it illeg~lly cx.;cupied bY_.,·a . CJ van . -·. . . . . . - . {- . . . . •. - \ ,., d~ Merwe. in contravention of the Agriculturai" Lands Act." ' . :,. :, . . ~~ ~ •:. ' . . .; Having regard to the context of the first allegation ·and the evidence which was adduced •. we do not see that :the learned trial judge misdirected himself in any way when, in effect, he allowed a. variation. modification or development of the allegation ~f the illegal o~c~pation based on J a challenge of the plaintiff 1s o~n title and the way he had obtained • • it, including the way his own v#tctor got his. For,the reasons \i' .' .. ' • -~j .~-~· •••. given •· ~,. . . ; jilt ""· r .l :•' . given, we find that there was no radical departure from the defendant's : position in the case and we must decline to ups~t the finding that the plea of justification was available. . ' ;:·~ We now turn to the ground of appeal against.the quantum awarded on the second allegation. The imputation found was that of fraud in that the plaintiff was accused of having had a writ of . execution issued against him because he had co11JJ1itted_ ·fraud on a previous fann. Mr. Adams urged us to increase the award because. among other things, the defenda~t had by this libel caused Zambia . ' . National Commercial Bank to stop funding .the plaintiff 1s farming · activities. This submission was in the teeth .of a sp~cific finding _.;.., . . . . by the learned trial judge. against which there has_been no appeal, to the effect that the withdrawal of the loan facilities was not prompted by this libel but by a caveat which had been lodged against . . . : . . • . this prop·erty. It is also pertinent to recall that there was very . . limited publication of this libel and it cannoi be c1ccepted as we ... were urged to do, that the whole of the small farming communi~y,:in the area and other financial institutions must have become aware of i, ' the libel. The learned trhl judge took into acc~unt this limited publication and the bank's own different explanation for terminating . the facilities into account when fixing the quantum which could only have related to compensatory damages without regard to any of the . alleged actual damage. Some of the alleged actual.damage which the· . ' plaintiff contended to have flowed from the defama~~Of1 was the··. failure to grow crops and the involuntary sale-·of ,cattle and other . things to meet commitments to staff and related. living_ expenses. .. --:, :·, ::: . . , 1- .-· 1 •• .- . . . , . t The learned trial judge did not find any connection between the· - libel and ~hese losses which were therefore too_ remote· to it. in.·. law ,.. and as a matter of causation. We do not interfere with .assessments of these awards unless they are inordinately high or too low in any given circumstances or unless the. trial court could have erred in '. . . • . --~ ':f!t(',•, ... .' . • .. some way in making. the particular- award •. We have :no-t t found any. j grounds for interfering in this case and certainly those adva~ced by . ~ . .. ' Mr. Adams, which all ran againstifindings ~·ot ~ppealed agains't, 6/ ••• ;·. cannot · I I \ ' · cannot be entertained. It follows from t~e foregoing that this appeal is dismissedt with costs to be taxed ln default of agreement. M. M. S. W. Ngulube DEPUTY CHIEF JUSTICE E. L. Sakala SUPREME ,COURT JUDGE ' •~ e A. R~ Lawrence . ,-.... ,.,.:-""SUPREME tcoURT 'JUDGE . l I .. . . . . ' ~. ,,~;l. ):; ·,\t;'{;t.~1-' ! :~t1:J:-. J?.:, .. • ' ~-~'.:1····:·::)? C- .·~:J:~"•f;, .,,~.•! •' . .. ~ ":-?; !_ ~;~~-~ .. • .:;;\~_ .... ·,: ... 1i., ~-. .; •' . -. ; .... '!"j ~•1\ , ... ":,~ .-'~:; .. ~ ... I" I I I r ' '