Emmanuel Mponda v Mwansa Christopher Mulenga and 2 Ors (Appeal No. 12/2015) [2017] ZMSC 309 (1 September 2017)

IN THE S U REME COURT OF ZAMBIA HOLDEN AT KABWE (Civil Jurisd iction) APPEAL NO.12/2015 SCZ/8/004/2014 P . 1467 BETWEEN: EMMANUEL MPONDA APPELLANT AND MWANSA CHRISTOPHER MULENGA 1 5T RESPONDENT CHRISTOPHER MUNGOYA 2 ND RESPONDENT THE ATTORNEY GENERAL 3RD RESPONDENT Coram: Wood, Kajimanga and Musonda1 JJS on 1°t . August, 2017 and 1st September~ 2017 For th e Appella n t : N / A For the p t Respondent: In Person For th e 2 n d a nd 3 rd Respon d ents: Mr. F. Im asiku, Principal State Advoc a t e JUDGMENT MUSONDA, JS, delivered the Judgment of the Court Cases referred to: 1. Gaynor v. Cowtey (1971} Z. R. 50 2. A . G . v . Achiume ( 1983) Z. R. 1 3. Mazoka & 2 Others v. Mwanawasa & 2 Others (2005) Z. R. 138 4. Stapley v. Annets & Another (1969t 3 ALL E . 12 . 15·4 J2 P.1468 5 . Gins ki v . Mclver (1962) ALL E. R. 66 NO. 18 o:F 2001) 6 . Victor Namakando Zaza v. ZESCO Ltd. {SCZ JUDGMENT 7. Standard Chartered Bank Zambia PLC v. Kasot e Singo gov (Appeal No. 212/2016) / \ 8 . Lambert v. Lewis: (198 1) 1 ALL ER 1185 9 . Jones v. University of Warwick - Zukerman (2 003) 3 ALL ER 760 Wolf, CJ 10. Arbuthnot Lathan Bank Li mited v. Trafalgar Holdings Limited (1998) 2 ALL ER 181 11. William Harrington v . Dora Siliya & A-G (201 1 ) 2 Z . R. 253 12. Mute1nba v . Zambia Newspapers Limited and Another: (1972) Z. R. 145 13. Mohamed v . A-G: (1982) Z . R . 49 at page 51 14. Grieve Z . Sibale v. A-G: (2012) 3 Z . R. aos 1 5. Bweupe v . A-G & 2 Others: (1984} Z . R . 21 16. Zambia Telecomn1unications Co, Limited v. Mulwanda &, Ng' andwc: {2012) 1 Z . R . 404 at page 414 Legislation referred to: 1. The Road Traffic Act No. 11 of 2002 2 . Rules 49(8) and 58(2) and (3 ) of the Supreme Court Rules Other Works referred to: 1. Winfield and Jolowicz on Tort, 17th Edition 2. The Longman Dictionary of Law, 7th Edition 3 . Black's Law Dictionar.tJ 4 . The Oxford Dictionary of Law~ 'Jt1i Edition 5 . Gatley on Libel and Sla nder, gui Edition This iR an appeal against a judgment of a H.igh Court Judge sitting at Kitwe whereby that learned Judge dismissed, with P.1469 costs, an action by the appellant, then plaintiff, in terrns of which he had sought to recover a rr1edley or different varieties of damages which the plaintiff deerned to have been entitled to on the basis of some alleged libel and malicious prosecution which had allegedly been committed by the 1st and 2 nd respondents respectively in relation to him. The back61Tound facts surrounding this appeal could not have been any simpler. On 8th June, 2013 at about 19.00 hours, the 1st respondent (the 1s t Defendant in the court below) was driving his motor vehicle being a Mitsubishi Shogun registration number ACP 7421 on a road which lies between Buchi and Kamitondo compounds, Kitwe, heading in the direction of Chimwemwe compound. As the 1st. respondent was approaching the United Church of Zambia (UCZ) building within the proximity of the location earlier described, a white twin cabin motor vehicle overtook the 1st respondent's motor vehicle but before the driver of this white twin cabin motor vehicle could cotnplete his (this pronoun has J4 P.1470 been used for convenience since the evidence below suggested that the identity or sex of the driver was unknown at the time) overtaking 1nanouvre, the fender of his 1notor vehicle hit into the 1st respondent's vehicle's fender . The driver of the white twin cabin motor vehicle immediately sped off and the 1st respondenfs attempt to pursue the white twin cabin vehicle in question proved futile as its driver drove too fast. In spite of the 1s t respondent's failure to pursue the overspeeding white twin cabin vehicle, he took note of the vehicle's registration number as ABT 8407. At the tirne of the incident in question, the 1st respondent believed that the white twin cabin vehicle was a Nissan Hard Body. Following the accident, the 1st respondent immediately proceeded to report the same at Mindolo Police Station in Kitwe. At the time of making his report to the Police, the 1st respondent still believed that the white motor vehicle in question was a Nissan Hard Body bearing registration number ABT 8407. The 1s t respondent indicated to the police officer who had attended to hirn at Mindolo Police Station that he required a J S P.1471 police report in order for hin1 to lodge a claitn on his insurance policy with his insurer in respect of his vehicle. Subsequently, the 1st respondent learned frorn Inspector Christopher Mungoya of Zan1bia Police Service, Traffic Section, Riverside Police Station, Kitwe (the 2 nd respondent herein) that the vehicle which had been involved in the road traffic accident earlier described with him was, in fact, a Toyota Hilux and that the vehicle's registered owner was a cornpany called Chevron (Z) Limited (later renamed Engen Zambia Lim.ited). It is worthy of mention that after the 1st respondent had established preliminary details around the white rnotor vehicle in question, he took steps to locate its owner and their whereabouts. After achieving the foregoing, the 1st respondent wrote to the Managing Director of Chevron (Z) Limited demanding to have his company or its insurer settle the repair costs for the damage which had been occasioned to his vehicle by the driver of the white vehicle earlier mentioned. The 1st respondent also forwarded copies of the quotations which he had been furnished with by a potential repairer who had assessed J6 P . 1472 the darriage to his vehicle. The letter in ques tion was couched in the following terrr1s :- "25th June 2013 C / O School of Business Copperbelt University P. O. Box 21692 KITWE The Managing Director Chevron (Z) Limited P . O. Box 30542 LUSAKA Dear Sir /Madam Re: HIT-&-RUN ACCIDENT CAUSED BY YOU~ COMPANY CAR NISSAN ABT 8407 On 8 th June 2013 at approximately 19:00 hours, my Mitsubishi Shogun registration ACP 7421 was struck by your company vehicle, a Nissan Hardbody, registration number ABT 8407 being driven by an unknown driver as he/she did not stop at the accident scene nor did he report to the nearest police station. This was on the road leading from Buchi Township to Chimwemwe Township. The driver of your vehicle on trying to overtake my vehicle suddenly swerved and his/her car's front end into my driver's side (right) fender and bumper causing property damage requiring repairs. I was fortunate not be injured and I had a passenger in the front who I prompted to write down the vehicle registration number, as my attempt to chase the ddver proved dangerous as he/she sped off at high speed on a congested and narrow road. Immediately after the accident, I reported to Riverside Police P . 1473 who traced the vehicle to your institution as detailed in the attached copy of the police report. The repair costs on my vehicle as a result of the accident caused by your vehicle and on which I demand settlement by company has been valued at between Kr4~ 176 and Kr7, 134 as per attached copies of quotations. Your vehicle may be insured and as such you may alternatively ask yom: insurance company to settle the bill. 1 would prefer that this issue is resolved urgently and amicably, and ask that you respond to this demand with an offer to settle within 14 days. Yours faithfully Mwansa C. Mule.nga LL. M Commercial Law, LL. B (Det·by), CJ.o. B. (London) Mobile 0962085279 / 09737935 l 5" For its part> Chevron Zan1bia Lirnited (now Engen Petroleum Zambia Limited) responded to the 1st respondent's letter of demand in the following terms:- "15th July, 2013 Mr. Mwansa C. Mulenga Copperbelt University P. O. Box 2169'.?. KITWE Dear Sir RE: HIT AND RUN ACCIDENT CAUSED BY NISSAN ABT 8407 We make reference to your letter dated 25th June, 2013 and our various telephone conversations regarding this matter< J8 P.1474 We have taken time to thoroughly request a wdtten repo:rt from Mr. Emmanuel Mponda the current holder of ABT 8407 {Toyota Hilux and not Nissan Hard Body as per your letter). The current: position from ou:r Mr, Emmanuel Mponda is that he has refuted the clain"l of a hit and run into Mitsubishi Shogun ACP 7421 as per your correspondence. Suffice to say; we are however cognisant of the gravity of this claim and have since asked for an independent verification and investigation in thi_s matter. We have thus requested fo:r an .independent verification from the Zambia Police Services Central Police Station in Kitwe. We could also like to inform you that Mr, Mponda voluntarily took his vehicle for inspection at the Central Police Station in Kitwe. We have been asked to submit our i.nsu.rance cover letter and a copy of the white book to furthel" help with the verification. We will accordingly inform you of the official outcome of this investigation once completed by the police. Yours faithfully, FOR ENGEN PETROLEUM ZAMBIA LTD Chanda Mhango Commercial Manager Cc: Managing DirectorwEPZL Cc: Human Resources-EPZL Cc: Emmanuel Mponda~EPZL Cc: Zambia Police Services-Kitwe Central Police" Following the exchange of the above correspondence between the 1st respondent and Engen Zambia Limited, the latter started to cornmunica.t.e with the 1st and 2 nd respondents by J9 P.1475 phone. At some point, the 2 nd respondent took the appellant and the 1 s 1 respondent to the accident scene. While at the scene; the appellant took some photographs which he shared with the 1st respondent who) subsequently, forwarded the sarr1e to the appellant's ernployer. The appellant was subsequently prosec1..1ted on two counts of road traffic offences namely, dangerous driving and failing to report an accident. The appellant was, however, subsequently acquitted. It appears from. the record that none of the representations which the 1st respondent had been making to the plaintiffs employer for the purpose of having the.m meet the repair costs of his vehicle yielded a positive outcorne. This position appears to be fortified by the fact that the 1st respondent proceeded to meet the costs in question hin1self. Following his acquittal for the traffic offences earlier n1entioned, the appellant proceeded to institute an action in the Kitwe High Court seeking the following: "(i) Aggravated and general damages as a result of a defamatory letter authored by the 1 st Defendant ,J 10 P. 1476 amounting to Zambian Kwacha One Million (Kl,000,000.00,. (iil Exemplary and Punitive damages as a result of defamatory documents authored by the Defendants amounting to Zambian Kwacha Eight Hundred Thousand (KS00,000.00). (iii) Aggravated and General damages for loss of public image and malicious prosecution engineered by the 2 nd Defendant amounting to Zambian Kwacha One Million and Five Hundred Thousand (Rl , 500,000,00). (iv) Further or other relief that the court may deem fit. (v) Interest on the amounts found to be due and owing. (vi) Costs." The gist of the appellant's claim agajnst the 1st respondent as we have distilled the same frorn the statement of claim was that he had been injured in the way of his personal and professional reputation as a result of the letter which the 1st respondent had written to the appellant's employer. The letter in question has been replicated above. As for the 2 nd respondent, the appellant's complaint against him was that the former's actions had exposed the appellant to a criminal inquiry and a criminal prosecution which had similarly injured the appellant in the way of his credit, character and reputation. P. 1477 The appellant consequently sought damages against each one of the respondents. For their part, the respondents denied that they had caused injury to the appellant in the manner he had clairned or that he was entitled to any of the reliefs which the appellant had sought. It is worthy of note that in his defence, the 1st respondent averred that the letter which had formed the basis of the appellant's grievance against him (the 1st respondent) made no mention of the appellant's narne. We propose to return to this aspect of our judgment later. The rnatter was subsequently tried by the learned trial judge in the court below who heard oral evidence and received written submissions which the learned judge considered. In his judgment, the learned judge reviewed the evidence which had been deployed before him by the parties to this matter in the context of the legal arguments which had been canvassed before hirn before arriving at his conclusion dismissing the plaintiff (now appellant) 's clairns in their entirety. ,Jl2 P.1478 As earlier noted, the gist of the appellant's case as found by the learned trial judge was that the contents of t he letter which the l st respondent had written to the appellant's employer were defamatory in relation to hirn, that is, the appellant, allegedly because the letter had suggested that he had been driving carelessly. The appellant's case also revolved around the photographs which the l st respondent had transmitted to the appellant's employer. In relation to the 2 nd respondent, the appellant alleged that the decision by the 2 nd respondent to arrest and prosecute hirn (the appellant) had no proper basis and was> therefore, malicious. In his defence, the 1st respondent told the court below that he had written to the appellant's employer because they were an interested party given that the rnotor vehicle which had been involved in the accident in question belonged to them . The 1st respondent also confirmed that at the time of writing the letter in question he did not know who the driver of the white vehicle was and that his interest was merely to have his vehicle repaired, either by the owner of the vehicle which had hit into his or their J13 P . 1479 1nsurer. Under those circumstanc es, the 1~t respondent pleaded that he had not d efan1ed the ap pellant in the manner the latter had suggested or at all. For t h eir part, the 2nd and 3 rd res pondents denied that there was n o reasontlble c aus e for the crirninal prosecution which had been mounted against the appellant or that the 2 nd respondent h a d acted maliciously. In his ow n r efle ctions around the issues which had been ca nva ssed before him as adumbrated above, the learned trial judge reasoned that there was nothing d efan1atory about the contents of the letter which the 1st respondent h a d written to the appellant's emp loyer who were the owners of t h e vehicle that h a d been involved in the road traffic acciden t in question with the 1st r esp ond ent 's vehicle . The lear ned judge further observed tha t, in his letter, the 1st respondent made no referen ce to the appellant. The judge also noted that no reference was made to Engen Zambia Limited 's reputation or im age in the letter in question . The learned trial judge a ls o accepted and found, as fact, that what had prompted the 1st r espondent to w rite the letter in question was his desire to h ave his vehicle repaired or Jl4 P , 1480 the cost thereof met by the owner of the vehicle which had hit in to his vehicle. The learned judge accordingly dismissed the appellant's claims so far as the same had related to the 1st respondent. As for the appellant's claim relating to his crirninal prosecution, the trial court noted that the prosecution was not unreasonable given the accuracy and correctness of the facts which had prompte d the same namely, the description of the vehicle and its owner coupled with the nature of the dan1age which h.a.d been occasioned to the vehicles which had been involved in the accident in question. The learned judge also reasoned that the 2 nd respondent had acted within the confines of the law and that even the Notice which the police had issued to the appellant seeking to have him attend at a named police station for an interview in connection with the accident in question had not been published to any person other than the appellant himself. Under these circumstances, the trial judge concluded that nothing was done .115 P .148 1 by the 2 nd respondent which had or could have been defamatory in r elation to t h e appellant. In sum, a nd, as earlier n oted , the lear ned judge conclu ded t h at the appellant \,\,as n ot e n titled to any relief and proceeded to dismiss the case in its entirety. The co1.1.rt below also condernned the appellant in costs. The a p pellant was not satisfied with the ou tc ome of his exertions in th e c ourt below a n d mounted this appeal to this court on the basis of 12/ 13 grounds wh ich were set out in the memorandum of appeal and which were couched in the following ter ms : "1. Th e le arned trial Judge misdirected and c ontradicted himself both in law and fact by holding that the appellant dwelled on proceedings which were not be fore his honourable Court but at the Subordina te/Tria l Court in Criminal proceedings, when in fact, a ll malicious prosec ution proceedings or suits are a resultant of, inter alia, the lac k of probable c ause ele m e nt as firmly decided by the lower trial Court, and as affirmativ ely stated and clarified in the Judgment of the le arned tria l Judge in thi s matter before the honourable Court. 2 . The learned t rial Judge misdirected and con tradic ted himself by holding that the Ruling of the Subordinate Court which was ,J 16 P . 1482 subsequently re-affirmed by the High Court, confirming, inter alia, the absence of the probable cause element for the Appellant to sustain a suit for malicious prosecution against the Respondent was wrong, when in fact, the matter before the honourable Court was a Civil matter and not an appeal by the Respondents against the Subordinate Court's Ruling. 3. The learned trial Judge misdirected and contradicted himself both in law and fact by holding that even though the documents complained of by the Appellant which were authored by the Respondents were false and recklessly published to a third party, the learned trial Judge subsequently based his decision on his subjective perception anchored on the balance of probabilities in the viva voce and misconceived evidence built at trial by the Respondents, when in fact, the Respondent' s viva voce evidence was not specifically pleaded for on record before the honourable Court hence the aforementioned viva voce evidence was in fact a serious violation and breach of the Orders for Directions and relevant Rules of the Court. 4. The learned trial Judge misdirected and contradicted himself both in law and fact by holding that the Ruling from the Subordinate Court over the novel criminal road traffic accident case and the subsequent Orde1· of dismissal by the High Court of the erroneous and frivolous appeal by a case stated by the Respondents against the aforementioned Subordinate Court,s Ruling, were all irrelevant p1·ima facie evidence and facts adduced in support of the Appellant's Civil suit against the Respondents before the honorable Court, when in fact, the honourable Court needed such tangible and strong evidence during trial to objectively weigh the litigants' testimonles, evidence and argu1nents to assist the honourable Court to arrive J l 7 P.1483 at. an objective and fa:it conclusion of the matter, especially considering the fact that the matter was a Civil matter n.ot an appeal against the Subordinate Court's Ruling over the novel road traffic accident criminal case. 5. The learned trial Judge misdirected and contradicted himself both in law and fact by holding that even though the 2 nd Respondent 1 who is also a Pubic Officer performed his duties ultra vires and ignored provisions of the relevant statutes at least prevailing then, the learned trial Judge subjectively asserted and held in his erroneous and misdirected Judgment, that he found nothing wrong with the aforementioned Public Officer unlawfully incarcerating the Appellant and further proceeding to prosecute the Appellant without any reasonable cause as competently determined by the lower trial Court in its competent Ruling which was in fact subsequently re-affirmed by the High Court in its order of dismissal expunging the appeal by a case stated which was frivolously applied by the Respondents. 6. The learned trial Judge misdirected and contradicted himself both in law and fact by holding that all the prima facie evidence and facts adduced by the appellant before the honourable Court which were extracted from the findings and Ruling of the subordinate Court were irrelevant in hearing the Civil matter before the honourable Court, when in fact, the aforementioned prima facie evidence and facts from the Subordinate Court were by law, principal and cardinal elements and requirements at trial in the Appellant's Civil suit for defamation and malicious prosecution before the honourable Court. 7. The learned trial Judge misdirected and contradicted himself both in law and fact by holding that the appellant built his case J l 8 P.1484 at trial whe n in fact the Appellant. s pecificaUy filed into Court h is plea dings and further at trial the Appellant accordingly argued his case in conformity with his specifically pleaded evidence and facts, whilst on the o t her hand, the learned t:rial Judge overlooked the fact that the 1st Responde nt did not specifically file into Court his pleadings as require d by the Orders for Directions and r elevant r ules of the Court, but only relied on his viva voce evidence built at trial which was not supported by any tangible evidence or facts adduced on r ecord before the honourable Court. 8 . The learned tt·ial Judge misdirected and contradicted himself both in law and fact by holding that the Respondents' defence of fair comment and truth was available for the Respondents before the honourable Court when in fact, the learned trial Judge clearly observed and held in his erroneous Judgment, tha t the aforementioned words complained of by the Appellant contained in the documents authored by the Respondents were indeed false, however, the learned trial Judge proceeded to enforce his decision on the strength of his subjective assertion viva voce and misconceived evidence adduced by the Respondents and built during trial, save for the viva voce evidence which was in fact not specifically pleaded for by the Respondents on record before the honorable court. 9. The learned trial Judge misdirected and contradicted himself both in. law and fact by holding that the pictures of the motor vehicles adduced before his honourable court and which were also extracted from the proceedings from the lower trial court, showed that the appellant's vehicle truly hit the pt Respondent's vehicle causing the purported damage on the aforementioned 1 st Respondent's vehicle, when in fact the J1 9 learned trial Judge only made his decision based on the Respondents' layman's observations and conclusion hence overlooking the need for an objective and professional assessment of the aforementioned pictures which was necessary at the lower Court during trial, but indeed, no evidence to that effect was adduced on record before the honourable Court to accordingly convince the honourable cou:rt to believe the Respondentsf viva voce evidence only built during trial. Save fo1· the learned. trial Judge proceeding with his misdirected decision anchored on the aforementioned viva voce misleading evidence adduced by the Respondents which was not specifically pleaded for on record before the honourable Court, hence a serious violation and breach of the Orders for Directions and relevant Rules of the Court. 10. The learned trial Judge misdirected and contradicted himself by holditJ.g that the evidence, facts and findings adduced before the honourable Court which were extracted from the lower trial Court by the Appellant were all irrelevant in hearing the Appellant's case in the honourable Court, when in fact, the learned trial Judge himself continuously referred to the aforementioned Ruling, facts and findings from the lower trial Court in his Judgment. 11. The learned trial Judge misdirected and contradicted himself both in law and fact by overlooking the fact that the defence of an appeal by a case stated by the Respondents failed completely when the High Court un-ceremoniously dismissed and expunged the aforementioned frivolous appeal and subsequently re-affirmed the Subordinate Court' s Ruling. Save for the learned trial Judge proceeding to misdirect himself both in law and fact by overlooking and ignoring the decision of the lower trial Court, ,J20 P . 1486 whose decision by law, was the primary an.d principal :reason the Appellant sought cornpensation fo:r damages for malicious p'l:"osecution and defamation from the Respondents in a Civil matter brought before the honourable Court. 12. The leairned trial Judge misdirected and contradicted hi:mselfboth in law and fact by overlooking and ignoring the various objections made by the Appellant du:ring trial seeking and praying that the honourable Cou1·t restrains and dismisses the repeated viva voce testimonies and evidence adduced by the Respondents not specifically pleaded for on record before the honourable Court, when in fact, the aforementioned viva voce testimonies and evidence adduced by the Respondents were only built at trial hence, wexe a serious violation and breach of the Orders for Directions and relevant Rules of the Court, 13. Such other grounds [asJ will be raised during the hearing of the appeal." Both the appellant and the 1s t respondent filed their respective Heads of Argu1nent to support the positions which they had respectively taken in the appeaJ. while the Attorney General filed Heads of Argument on behalf of himself and the 2 nd respondent. In arguing his Heads of Argu1nent, the appellant combined grounds 1, 2, 4, 6 and 10 together as he respectively did with J21 P. 1487 grounds 3 and 8 as well as grounds 7, 9 and 12. Only ground 1 J was argued alone. At the hearing of the appeal, the appellant did not attend as he had filed a Notice of non--attendance. The 1st respondent did attend the hearing in person as did counsel for the 2 nd and 3 rd respondents . Each of the parties indicated to us that they were relying solely upon the Heads of Argument which they had respectively filed. The gist of the appellant's contention around grounds 1, 2 , 4, 6 and 10 was that the trial judge erred and misdirected himself by overlooking and ignoring the decision of the subordinate court which had allegedly revealed the absence of a probable cause for the criminal inquiry or the criminal prosecution which had been set in train against the appellant. According to the appellant, the subordinate court decision had constituted a viable basis for launching his action for malicious prosecution. To support this contention, the appellant cited one Canadia n, one United States of American and the Zambian High J22 P.1488 Court decision in Gaynor v. Cowtey1 • In relation to the Zambian decision> the appellant placed reliance -upon the following words by Baron, ~J (as he then was): "The essentials of an action for malicious prosecution are set out by the various text writers and need no repetition, save as to the question. whether there was a prosecution. These essentials are clearly satisfied in the present case; the defendant did not have reasonable and probable cause in that he did not have genuine belief based on reasonable grounds that a criminal offence had been con1mitted and he was actuated by malice in that he had an improper motive, namely, a desire to obtain, through the machinery of the police, so1ne redress which should have been sought by civil process." According to the appellant, the court below erred in having acknowledged the lawfulness and legitimacy of the appellant's prosecution because, in his view, there was no reasonable cause for mounting the prosecution in question. As to the 3rd and 8 th grounds of appeal, the appellant attacked the judgment of the court below on the basis that the same allegedly failed to address what the tort of defarnation entails. According to the appellant 1 the 1st and 2 nd respondents did author false and reckless statements which carried J23 P . 1489 indefensible imputations which were defarnatory in relation to him . Under ground 5, the appellant contended that his arrest and subsequent prosecution for the traffic offences in question was both unlawful and unconstitutional. The appellant contended in this regard that, in particular, his prosecution offended Section l 62 of the Road Traffic Act No. 11 of 2002 in that the same took place after 40 days from the date when the accident in question occurred. We pause here to observe that the appellant's a:rgurnents around the alleged violation of certain constitutional provisions in relation to him were wholly 1nisapprehended and do not n1erit further discussion in this judgment. The gist of the appellant's short co1nplaint around grounds 7, 9 and 12 was that the court below failed to observe the Rules of Civil Procedure and the Order for Directions which the court had pronounced in relation to the proceedings which were before him. The appellant also complained that the court below erred .. ,J?,4 P.1490 when it entertained issues or matters from the respondents ·v.rhich had not been pleaded. The final ground which t he appellant argued was ground nurnber 11. Regrettably, the appellant's hotchpotch presentation of his argurnents around this ground made it irnpossible for us to cornprehend the san1e, suffice it to say that we have been unable to detect anything new or different in that ground in relation to the arguments which we have already canvassed above . As earlier noted, the 1st respondent filed Heads of Argument opposing the appeal. The 1st respondent opened or prefaced his arguments with the observation that both his letter and the photographs which the 1st respondent had forwarded to the appellant's employer and which had formed the basis of the appellant's libel action had b een published or conveyed to one officer of the appellant's ernployer which was the registered owner of the motor vehicle which had been involved in the accident in question with the 1st respondent's vehicle. The 1st respondent then proceeded to note that, in its finding, the court P.1491 below observed that nothing which was contained in the letter which had been authored by the 1st appellant suggested or bore tr1e in1putation that the appellant was a careless driver w h o was dishonest or unfit to work for the appellant's employer as the appellant had alleged. In response to grounds 1) 2, l O and 11 of t he appellant's Heads of Argurnent, the 1st respondent contended that the court below was on firm ground when it declined to deal with the issues which constitute the subject matter of these grounds. This contention was informed by the 1st respondent's conclusion that the appellant had sought to found or formulate the action from which this appeal is arising on the basis of his acquittal by the subordinate court for the crirn.inal offences which we earlier referred to. The 1st respondent further contended that the court below was entitled to reject the issues which formed the basis of grounds 3, 4 and 6 of the 1st appellant's appeal on the sarne basis that he had declined to entertain the issues which had informed grounds 1, 2, 10 and 11 of the appeal. As to grounds 7 and 12, the 1st respondent argued in response that the court below was entitled to consider the viva J2fl P.1492 voce evidence which he, the 1st .respondent, had led before that court. In the 1st respondent's view, the court below was entitled to proceed in the aforementioned fashion because it was a cour t of substantial justice which had the mandate to do substantial justice. With regard to ground 9 of the appeal, the 1st respondent contended that the court below was on firm ground when .it took the view that the appellant could not have been defarned on account of the pictures ·which he hirnself had taken and 'INhich pictures the appellant had not intended to be private . As to ground 8, the 1st respondent contended that this ground was challenging findings of fact adding that the same could not succeed in the absence of a clear dernonstration by the appellant that the findings had either been perverse or made in the absence of any relevant evidence or upon a misapprehension of the facts or that they were findings which, on a proper view of the evidence, no trial court, acting correctly1 could reasonably make. The 1st respondent was undoubtedly reciting the well known holding in A. Gov. Achium e 2 . J2'7 P.1493 The 1st respondent accordingly urged us to disn1iss the appeal with costs for want of n1erit For their part) the 2 nd and 3 rd respondents also filed their comn1on Heads of Argument opposing the appeal. The 2 nd and 3 rd respondents opened t h eir arguments by launching an immediate assa1,1lt against the appellant's 13t h ground of appeal which, as earlier noted, was couched in the following terms: 6'13. Such other grounds fas] will be raised during the hearing of the appeal. n It was the 2 nd and 3 rd respondents' content ion that this '13th ground' had been misconceived and that its inclusion in the appellant's memorandum of appeal offended the rules which govern the forn1ulation and function of pleadings. The two respondents cited the case of Mazoka & 2 Others V o Mwanawasa & 2 Others 3 to support their contention as set out above. The 2 nd and 3 rd respondents accordingly invited us t o disrr1iss the 13th ground outrightly. J28 P.1494 Having made the invitation whjch we have momentarily referred to, the 2 nd and 3 rd respondents then wen t on to observe that they considered the appeal as having r aised only two rn~jor points of c ontention which they had elected to address as one ground of a ppeal while addressing all th e issues which the app ellant had canvassed . The 2 nd and 3 rd respondents) substantive argum ents opened with an identification of the vital elements which, according to their counsel, ought to be proved by a plaintiff who founds h is action on malicious prosecution. These elernents were drawn fron1 Winfield and JolouJicz on Tort, 17th Edition, w here they a r e set out in the following terms: "(a) That the defendant prosecuted him; (b) That the prosecution ended in the plaintiff's favour; (c) That the prosecution lacked reasonable and probable cause; and (d) That the defendant had acted maliciously." The 2nd and 3 rd respondent's Counsel then proceeded to draw our attention to passages from two English cases, narnely, Stapley v . Annets & Another4 and Ginski v . Mclver5 • In the former, Lord D enning M. R. rnade the following observations: ,_129 P.1495 "In an ac:tion for malicious prosecution, the bu1'den is on the Plaintiff to prove malice and absence of reasonable and probable cause. If the defendant denies it, it is not the practice to x-equirc the defendant to give particulars of his denial. It is only if he puts forward a positive allegation that he should he required to give particulars of it. t, In the latter case, the House of Lords held that, ((In order for the plaintiff to succeed on the issue of reasonable and probable caus e, he rnust prove one or other of the follou. Jing: "Fh-st, that the defendant did not believe that the Plaintiff was probably guilty of the offence, In this regard evidence should be given of some facts or facts which eithel' inherently or coupled with other matters proved in evidence, would permit the inference that the Defendant did not believe the Plaintiff's guilt. Second, that a person of ordinary person and caution would not conclude, in the light of the facts in which he honestly believed that the Plaintiff was probably guilty." It was contended on behalf of th e 2 nd and 3rd respondents that in the present case, the trial judge did identify the four clements which would constitute rnalicious prosecution. He then went on to point out that the plainti.tf (now appellant) had shown that he was prosecuted a nd that the outcorne of that prosecution was in his favour. The court then went on to say the following: P . 1496 "The 2 nd and 3 rd defendants have submitted th.at what is in issue is whether there was reasonabXe cause and whether the prosecution was done wffh malice. The Plaintiff in his submissions contends that DW2 1 Christophe-r Mungoya, did not investigate what he terms a novel :road traffic accident case~ but merely relied on false information by DWL However, DW2 's testimony was that he had received information fr<')m DW 1 which formed the basis of his initial report. The.reaftet he investigated the inforn1atio:n. He called the Road Transport and Safety Agency (R'fSA) and established that the motor vehicle registration number ABT 8407 belonged to Engen Petroleur.n Zambia and that the make of the vehicle was in fact a Toyota Hilux which in fact it turned out to be.'' According to the 2 nd and 3 rd respondents, the lower court's finding on the n1otor vehicle was that it had darnage which was consistent with the r eport that the 1st respondent herein had made. The 2 nd a.nd 3 rd respondents' Counsel then went on to quote the following passage frorn the judgrr1ent of the learned trial judge: "In my assertion, given that the description of the motor vehicle by the complainant was accm:ate in all but the make and that the Plaintiff's vehicle had damage consistent with the report that the complainant, the 1 st defendant, had given to the Police, there was reasonable cause to believe that the Plaintiff had committed. the offence fo.r which he was charged, and that the plaintiff's prosecution 1 in all probability, cannot be said to have been done with malice. It is my finding thus that the Plaintiff J 31 P.1497 has not proved malicious prosecution." (At pages 2 9 to 3 0 of the rec ord). According to counsel for the 2 nd and :3 rd respondents, the above cited para graph showed that the court's reasoning and its conclusion that the appellant bad not proved the malicious prosecution was spot on. The 2 nd and 3 rd respondent's counsel accordingly concluded that the finding of the lower court could not be faulted and thus it should not be interfered with. To support this contention , counsel referred u s to the case of Victor Namakando ,Zaza vs. ZESCO Ltd6 in which we observed that findings made by a trial court should not be lightly interfered with by an appellate court. With regard to the alleged libel, it was contended on behalf of the 2 nd and 3 rd respondents that the latter had acted within the law as the Notice of intended prosecution which was issued in relation to the a ppellant was issued in accordance with the provisions contained in the Road Transport Act No. 11 of 2002 and that the same was not published to anyone while the a ppellant himself failed to call a ny witness to confirm the key issue of publication to a person other than the appellant himself. ,J32 P . 1498 Under these circurnstances, couns el for the 2 nd a nd 3 rd r espond ents concluded that the appellant had failed to prove, by evid ence, that h e h ad been exposed to hatred, contempt or ridicule a s a r esult of the Notice of intended prosecution in question. In sum, counsel for the 2 nd and 3 rd respondents argued that there was nothing d efarn atory or malicious a bout eve rything tha t the 2 nd respondent had done in the circurn sta nces w h ich we have canvassed above that could have exposed the appellant to the two torts around wh ich h e, the appellant, h a d fashioned h is action in the court below. Finally, cou nsel for the 2 nd and 3 rd respondents drew our attention to the fact that the appeal which th e appellant h ad mounted revolved around findings of fact and that as no basis had been established by the appellant to warrant this supe rior court's interference, the appeal must fail, with costs to the respondents. We confinn that we are indebted to both the appellant and the 1st respondent, who were a p pearing in person, and to J33 P.1499 counsel for the 2 nd and 3 rd respondents for their invaluable exertions . As we begin our reflections around the grounds of appeal and the relative arguments which were advanced by or on b ehalf of the parties herein, we propose to start by dealing with the purported ground numbered '13' of the appeal by way of responding to the '2 nd and 3 rd .respondents' invitation to have us outrightly discount this 'ground'. We wish to observe, frorn the outset, that in spite of our repeated remonstrations over 'grounds' sucb as the purported 'ground' n umbered '13' above, or some similarly worded 'ground' or 'grounds'; countless appellants' counsel or, when appearing in person, appellants' appetite for this clearly fictitious 'ground' seerns to be far frorn waning. We h ave repeatedly said that a statement such as 'further grounds to follow upon perusal of the record of appeal) or ' ... such other grounds as may be fu.m.ished upon further perusal of the record) which mindlessly find their way in 1nemoranda of appeal do not constitute a valid ground of appeal. Not long ago, we were J34 P.1500 constrained to rnake the following observations in our judgrnent in Stan.dard Charte:red Bank Zambia PLC v. Kasote Singogo7 in the context of a purported 'fourth ground' of appec.il which was expressed as 'such other grounds that may be furnished upon. further perus al of the record): ''We shall, at the out.set, dismiss the purported ground of appeal which was numbered 'fourth' in the memo:randum of appeal. This purported 'fourth' ground of appeal is not a ground known to the rules of this court. Our rules [relating to] filing of memoranda of appeal do not make provision for ' . .. such other grounds . .. • as a ground of appeal. Grounds of appeal must be specific and succinct and in the event that an amendment ls desired, an application to that effect should be lnade. We hope that practitioners and litigants will now refrain fro1n the practice of promising future grounds of appeal as this practice serves no useful purpose'' (at page ~I7). Perhaps we should point out that, although we did not specifically cite the rules which we were referring to when we made the observations which we have just quoted above in the context of our r emonstrations in Standard Charted Bank Zambia PLC v. Kasote Singogo7 , we have no doubt that any conscientious advocate who practices in this court would know that we were r eferring to n .de 49 sub-ruJe (8) (as amended) and n1le 58 sub-rules (2) and {3) of the Suprerne Court Rules which respectively provide as follows : P.1501 "49(8). A memorandum of appeal shall be in Form crv / 3 set out in the 'fhird Schedule," 58(2). The memorandum of appeal shall be substantially in FORM CIV / 3 of the Third Schedule and shall set forth concisely and under distinct heads: without argument or na:rrativej the grounds of objection to the judgm.ent appealed against, and shall specify the points of law o:r fact which are alleged to have been wrongly decided, such grounds to be numbered consecutively. 58(3). The appellant shall not thereafter without the leave of the cou,·t put forward a.ny grounds o.f objectiott other than those set out in the memorandum of appeal, but the court in deciding the appeal shall not be confined to the grounds put forward by the appellant ... " (Emphasis ours ). For the avoidance of any doubt, a_nd even at the risk of pushing an open door, the manner in which FORM CIV / 3 which is referred to in both rules 49(8) and 58(2) of the Rules of this court is strnctured does not envisage, let alone, suggest that an appellant would defer the task of setting out their grounds of appeal in the memorandun1 of appeal at the tirne of its preparation and filing into court to a future date or even ' ... upon perusal or further pernsal of the record of appeal' as a good P.1502 number of practitioners who appear before us clearly rnisapprehend . Needless to say, as structured in the Third Schedule to the Supreme Court Act., the me1norandum of appeal should, at the time of its preparation, specify or set out a ll the grounds on which the appellant would have founded their appeal. Indeed, and as we pointed ou t in Standard Chartered Bank Zam bia PLC v. Kasote Singogo7 1 an appe llant who desires to add fresh grounds of appeal beyond those whi.ch they will h ave highlighted in the rnemorandurn of appeal a.s filed or even to amend the existing grounds n1ust seek the leave of the court in order for them to proceed either way. In the context of this a ppeal, it can scarcely be doubted that the mann er in which the n1emorandum of appeal which w as filed into court in pursuance of the same on 7 th January, 20 15 was crafted off ended the rules of this court as cited above. Putting aside the observations wh ich we have just made, we wish to observe, as we did n ot too long ago in the context of another appeal, that the enduring prope nsity, by counsel (or, in J37 P.1503 the context of the present appeal in which the appellant has been appearing in person, appellants)i of coming up and presenting an avalanche or excessive 'grounds' of appeal in memoranda of appeal and heads of argurr1ent respectively, quite aside frorn being suggestive of a fishing expedition, is never necessarily an indicator or pointer in the direction of a solid or meritorious appeal. Indeed, in many cases, the excessive 'grounds' of appeal only serve to obfuscate the real issues to be determined by the court. Indeed, as Lord Diplock deprecated in relation to another negative propensity by counsel which entails quoting excessively and needlessly from a plethora of cases or authorities, even in appeal cases, such a tendency, "apart from being time and cost consuming, presents the danger of so blinding the court [with such grounds and arguments] that fthe court] has difficulty in [segregating] the wood of legal principle from the trees of [legal verbiage)" (in Lambert v Lewis8 ). To underscore the point we are making in the context of this appeal, several 'grounds' had to be con1bined and argued together by the appellant for the purpose of achieving the same purpose which the appellant had set out to achieve, albeit, using excessive and repetitious arguments and grounds. Perhaps we J38 P. 1504 can also ta_ke the liberty, as the ultilnate court of the land) to rnake the final general point by way of reminding counse.l as stakeholders in the adrninistration of justice that judicial tirn.e is, as Lord Woolf consistently noted (in his Lordship's separate roles as Mas ter of tbe Rolls and as Chief Justice of England a nd Wales), a very vital resource and that in these days of exacting demands upon the courts, ''•oo judges are required to ensure that a case only uses its appropriate share of the resources of the court ... " (Jones v . University of Warwick- Zukerman9 ) , Needless to say, dedication of a disproportionately higher level of court resources to one or few cases, quite apart from prejudicing " .. . other litigants wishing to have their cases heard [also prejudices] the general administration of justice' (Arbuthnot Lathan Bank Limited v. Trafalgar Holdings Limited 10 ). As we shortly turn to the main business at hand, it is our sincere hope, once again, that appellants or their legal representatives will not only take note of our renewed remonstrations but remain con sistently alive to the limited nature of court resources and their duty to ensure that these ,J39 P. 1505 resources are equitably shared a mong a ll that s eek t o a ccess the same. Although we did not say so in William Harrington v. Dora Siliya & A -G 11 , our decision to 'qualify' the time-honoured principle that a court "should adjudicate upon all issues placed before it so as to achieve finality " had 1 in son1e ways, been prompted by growing pressure on judicial resources. For the removal of doubt, the qualification we 1nade was that " ... a trial or appellate court is at liberty not to rule on (every] issue raised before it if it is of the view that :ruling on such an issue is unnecessary or would go beyond what needs to be adjudicated upon. [In order to be adjudicated upon] such an issue must be necessary or relevant and properly brought or raised before the court" (at p. 266). We have anxiously and intensely exan1ined the arguments which the parties a nd, in the case of the 2 nd and 3 r d respondents, counsel, deployed before us in the context of the grounds upon which this appeal is founded a nd cannot help but a gree with the 2 nd and 3 rd respondents that, in spite of the appellant having raised 12 grounds of appeal, the real is sue which the appeal raises and which fa lls for our detennination is whe ther or not the a ppellant was defamed and maliciously prosecuted a s h e had alleged in the court below. J40 P.1506 Having regard to the observations which we shall be making shortly, we propose to quote the manner in which the appellant, then plaintiff, had fashioned his clain1 both in his writ of sumrnons and s tatement of clairn. According to his writ of summons, the appellant had sought, as against the respondents~ then defendants, the reliefs which we earlier a lluded to in this judgment It is evident from both the writ of summons which the appellant had taken out and its accompanying sta t err1ent of claim that the reliefs, in the nature of damages, which the appellant was s e eking in the court below were founded on the alleged tortious wrongs or acts of th e 1s t and 2 nd r espondents. Although the appellant has been appearing in p erson and can be excused for any shortcomings that might have characterised the manner in which he has prosecute d this rnatter, this c ourt is well aware of numerous matters s imila r to the pres ent one and in whicb counsel has been involved and in r espect of which liquidated damages h ave been sought for alleged tortious a cts. We propose to take a moment or so to J41 P. 1507 comrnent on another all-pervading propensity among litigants or their advocates of instituting court acbons in circurnstances suggestive of tortious wrongs for liquidated or specified damages. In simple terms, the word 'liquidated' in the context of the expression <liquidated damages' means 'specifi.ed 1 (The Longman Dictionary of Law, 7 th Edition), Black's Law Dictionary of Law defines the express.ion 'liquidated damages' a s: "an amount contractually stipulated as a reasonable estim.ation of actual damages to be recovered by the party if the other party breaches." For its part, the Oxford Dictionary of Law d efines the expression fliquidated da,nages' as: " ... a sum fixed in advance by the parties to a contract as the amount to be paid in the event of a breach. 'fhey are recoverable provided that the sum fixed was a fair pre••estimate of the likely consequences of a breach ... " The opposite or converse of liquidated darnages are what are known as unliquidated or, to borrow an expression from the J42 P, 1508 Longman Dictionary of Law> "unspec~fi.ed '. According to Blackjs Law Dictionary 'unliquidated darn.ages' are : " ... damages that cannot be determined by a fixed formula and must be established by a judge or jury." The Oxford Dictionary ofLauJ, 7 th Edition, on the other hand defines the term 'unliquidated damages' as: " ... damages the amount of which is :fixed by the court." It is a matter of elementary knowledge indeed that the type ( _ _pf damages -w h ich are awardab1e-on_ a-ccour:i-t- ef a.ny proven tortious wrong or wrongs are of the second type, that is, unliquidated d arnages . Needless to say, unli.quidated damages are unspecified and, are, therefore, subject to assess1nent or 'establishment' 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 which he was seeking to recover in his action founded in tort. Having n1ade the foregoing observations, we now propose to return to our main task or inquiry) namely, whether or not P.1509 the appellant was defam.ed or n1aliciously prosecuted as he had unsuccessfully contended in the court below . As earlier noted, the trial court d1Jly considered the appellant's clairn in the context of his and the respondent's evidence and legal arguments and came to the conclusion that both the appellant>s action for libel and malicioL1s prosecution were without merit and disrnissed thern with costs. In relation to the alleged .libelous contents of the letter which the l st respondent had authored and conveyed to the appellant's ernployer, the trial court not only reviewed the letter in question but also highlighted the following findings of facts around the same: (a) That, there was no dispute that the 1 st respondent's motor vehicle being a Mitsubishi Shogun was hit into on its right fender and bumper by a white twin cab motor vehicle registration number ABT 8407; (b) That, there was no dispute that the 1 st respondent did report the accident referred to in (a) above to the Police while the driver of the white twin cab motor vehicle did not; (c) That, there was no dispute that the 1 st respondent had engaged the plaintiff's employer (as owner of the white vehicle in question) regarding the damage which had been occasioned to his (the 1 st :respondent's) vehicle; and J44 (d) That there was no dispute that the appellant was prosecuted for an offence relating to the accident in question and acquitted, The trial judge then went on to consider the viability or otherwise of the appellant's clain1s that the letter which had been authored by the 1st respondent and which had been conveyed to the 2 nd respondent's employer carried the irnputation that he, the appellant, was a careless and dishonest driver who was unfit to continue working for a reputable company such as the appellant's employer whose repute and good narne had been destroyed by the letter in question. The trial judge also considered the 1st respondent's testimony which, essentially, was to the effect that when he wrote the letter in question he did so in good faith and with a view to having the appellant's employer, as the owner of the vehicle which had been involved in the accident in question with his, repair his vehicle. According to the 1st respondent, at the time of the accident, he did not even know who the driver of the vehicle that had been involved in the accident in question with his was and that the identity of that driver was only disclosed to J45 P.1511 hirr1 by the appellant's employer when they responded to his letter of demand. This fact was also confirmed by the appe11ant himself. On the basis of the foregoing, the trial court concluded that there was nothing defamatory about the contents of the letter in question and the pictures which the 1st res·pondent had forwarded to the appellant's employer given that the author of the same (the 1st respondent) did not even know the appellant while his objective in writing and conveying the same to the appellant's employer was to engage them as the owner of the vehicle in question so that they could repair or rneet the costs of repairing his vehicle as earlier noted. The learned judge concluded his reflections in relation to the 1st respondent by stating that he found no merit in the claims which the appellant had directed against the 1st respondent and dismissed the same. With regard to the appellant's complaint and claims relating to his criminal prosecution, the lower court reasoned that, contrary to the appellant's clairns, there was a reasonable ,J46 P. 1512 basjs for the prosecution which had been set in train against him. The court below also discounted the appellant's claim that the Notice r elating to his intended prosecution was defarnatory given that the same was not published to any person other than the appellant hin1self. With regard to the a lleged failure on the part of the 2 nd r espondent to follow the provisions of the Road Traffic Act as earlier noted, the trial court noted that Section 162 (1) contain ed a proviso which a llows for prosecutions to proceed notwithstanding any non-adherence to the 14-day period 1n circumstances where a suspect was not i1nmediately known. In the instant case, the Notice of intended prosecution was only iss ued outside the 14-day period because the appellant (as the suspect) was n ot immediately known to the 1st res pondent (as con1plainant) but was only known when his employer disclosed his identity following the letter of demand which the 1st respondent had written to the appellant's employer. The learned judge accordingly dismissed th e appellant's claims in total and awarded costs to the respondents. J47 P.1513 As we earlier noted 1 we keenly and intensely exarnined the judgrnent of the court below in relation to th.ts appeal and the arguments which the parties canvassed before us to buttress their respective positions . Having regard to tbe foregoing, we are satisfied that the court below correctly directed itself as to the issues which had fallen to b e determined by it, We are also satisfied that the lower court properly guided itself as to the correct legal principles which the factual matrix which had unfolded before that court involved and their subsequent application by the learned judge in the manner he had done. There was, in truth, nothing defamatory about the letter which the 1st respondent had authored to the Managing Director of the cornpany which 1 as things turned out, happened to have been the legal owner of the vehicle which had been involved in the road traffic accident in question as well as the employer of the appellant who, at the tirne of the accident in issue was driving the vehicle 1n question. We also reject, as remote figments of the appellant's irnagination, his suggestion that the contents of the 1s t respondent's letter in question carried nor was it capable of carrying the irnputation which the appellant had J48 P.1514 ascribed to them in his staternent of clairn or, at any rate, any defamatory imputation, The learned author of Gatley on Libel and S'l.a.nder, 8 th Edition, has written (at para. 31) that: "The gist of the torts of libel and slande:r is the publication of matter (usually words) conveying a defamatory imputation. A defamatory imputation is one to a man 1s discredit, or which tends to lower him in the estimation of others or to expose him to hatred, contempt or ridicule or to injure his reputation in his office, trade or profession ... " Quite aside from the words which the 1st: respondent had used in his letter in question not having been defan1atory in their natural and ordinary meaning, the appellant did not, as Scott, J observed in Mutemba v. Zambia Newspapers Limited and Another12 , demonstrate in the court below that there were extrinsic facts, which were known to the . Managing Director of the appellant's employer being the person that the 1st respondent had written to which had rendered the words in that letter defamatory by reason of the imputation which they had carried . J49 P.1515 Although the l st respondent did not plead any of the technical defences which might have bef'.n available to him in the light of the manner in which he had crafted and presented his defence (such as privilege), we are in no doubt that the appellant did not prove his case in the court below. As we said in Mohamed v. A-G13 : '~An unqualified proposition that a plaintiff should succeed automatically whenever a defence has failed is unacceptable to me. A plaintiff must prove his case and if he fails to do so the 1ne:re failure of the opponent's defence docs not entitle him to judgment. I would not accept a proposition that even if a plaintiff's case has collapsed of its inanition or for some reason or other, judgment should nevertheless be given to him on the ground that a defence set up by the opponent has also collapsed. Quite clearly, a defendant in such circumstances would not even need a defence. ' 1 In relation to the 2 nd and 3 rd respondents 1 we, yet again> agree with the analysis which the learned judge below had undertaken and the conclusion which he had reached on the facts and the law clearly discounting the appellant'-S claims against the duo. JSO P. 1516 It ca n s carcely b e d oubted that the c riminal inquiry which had been launched a gainst the appellant in the circurnstances which we earlier highlighted in this judgment had a reasonable basis. It was incontrovertible that the appellant had b een involved in a 'hit and run' road traffic accident involving th e 1st respondent's motor vehicle which was damaged in the process . The appellant failed to demonstrate in the court below that his prosecution had been undertaken maliciously and without a reasonable and probable cause. In Grieve Z. Sibale v. A-014 , the High Court (Ma tibini, J) had n o difficult in reac hing the conclusion tha t a plaintiff who institutes legal proceedings founded on the tort of malicious pros ecution cannot succeed u nless he can prove or establish each one of the four ingredients that give rise to that tort. These ingredients (drawn from Clerk & Lindsell on Torts) a re: "(a) that criminal proceedings must have been instituted against that plaintiff; (b) the p roceedings must have terminated in the plaintiff's favour; J51 P.1517 (c) the institution of the proceedings must have had no reasonable and probable basis; and {d) the defendant must have acted maliciously." In the context of the matter which was escalated to this court, the lower court determined, as facts > that:- (a) criminal proceedings had been launched against the appellant; and (b) that they had terminated in the appellant's favour. However, the appellant failed to den1onstrate that the criminal proceedings had no reasonable basis nor had the same been actuated by malice . Consequently, the trial court concluded that the appellant had failed to discharge the burden which had been thrust upon him by reason of the action whi9h he had instituted. Before we conclude, there is one feature of the judgment which we have just upheld which has attracted a comment or so from us. J52 P.1518 In his judgment, the learned judge used t he expression "it 1.s rny assertion ... '' on no less than five occasions and in circumstances which left our rninds wondering in all manner of directions. We could not appreciate why the learned judge had chosen to ernploy the expression in question in the rnanner he had done . Perhaps we should use this occasion to make the point that the use of correct language and correct grammatical expressions in court judgments and rulings is an imperative for judges and adjudicators in general. This fact was appropriately acknowledged by Silungwe, CJ, sitting as High Court Judge in Bweupe v. A-G & 2 Others 15 • The learned editors of a .manual entitled 'Opinion Writing and Case Preparation.' have also stated that: "Everything that appears in the final version of what you are writing should be there because you intend it to be there. Nothing should have crept in by accident, or thoughtlessness; nothing should be left out by oversight. What you end up with should be exactly what you want. Every word [or expression] you have used should be there because you have chosen to use that word [or expression] as opposed to any othel".,. J53 P.1519 Although we rernain alive to the fact that pressure of work can and does {at times) militate against an adjucator's desire to perfect their judgment, vie really have n o choice as judges of superior courts but to remain careful and scrupulous in how we present judgments. As we said in Zam bia Telecommunications Co. Limited v . Mulwanda & Ng'andwe 16 : "We only get one opportunity to explain our decisions. We must make the best use of that opportunity. Judgments are not accompanied by a telephone number and note {saying] 'if you want further information [o,· a clarification] phone me.' Our judgment is our final word.'' As we earlier intimated, this appeal cannot possibly succeed. We dismiss it with costs to be taxed in default of agreement. SUPREME COURT JUDGE ············~········· C. KAJIMANGA . I ....................... -~--.... . M . MUSONDA, SC SUPREME COURT JUDGE SUPREME COURT JUDGE