Emmanuel Mumba Chishimikwa v Times Newspaper Limited and Anor (SCZ Appeal No. 102/203) [2004] ZMSC 135 (16 July 2004)

IN THE SUPREME COURT FOR ZAMBIA SCZ APPEAL NO. 102/203 HOLDEN AT LUSAKA (Civil Jurisdiction) EMMANUEL MUMBA CHISHIMIKWA APPELLANT AND TIMES NEWSPAPER LIMITED 1 sy RESPONDENT AND PRINTPAK ZAMBIA LIMITED 2ND RESPONDENT Coram: Sakala, CJ., Chibesakunda and Chitengi JJS 16th March, 2004 and 16TH July, 2004 For the Appellant: Mr. J. M. Chimembe of JMC & Associates. For the Respondent: N / A JUDGMENT Saka la, Cl., delivered the Judgment of the Court Cases Referred to:.- 1. 2. 3. 4. Attorney-General V Marcus Achiume (1983) ZR., 1 at page 6. Samson Mbavu and Others V The People (1963)-1964) Zand NRLR 164. Scott V Simpson {1882} 8 QBD 503 Lewis V Daily Telegraph (1964} A. C. 234 When this matter came up for hearing, counsel for the Appellant informed the court that he was only relying on his written heads of argument. He did not make oral submissions. Hence, although there was no appearance on behalf of the Respondents; the court granted leave to the advocates for the Respondents to also file written heads of argument within 14 days from the 16th of March, 2004. The court then reserved judgment to a date after written heads of argument had been filed on behalf of the Respondents. At the time of writing this judgment, which was three months after hearing the appeal, no written heads of argument had been flied on behalf of the Respondents. This judgment, therefore, is based on the record of appeal and the heads of argument filed on behalf of the Appellant only. This is an appeal against a judgment of the High Court dismissing the Appellant's claim for damages for libel contained in an article headed 'LASF CHIEF FIRED,' published by the first Respondent and printed by the 2nd Respondent on the first page of the Issue of the Times of Zambia dated Monday, April 8, 1996. The facts of the case, which were not in dispute, were that the Appellant, whose substantive post was that of Chief Internal Auditor, had been appointed Acting General Manager of the Local Authorities Superannuation Fund (LASF) from October 1995; having taken over from a Mr. Stephen Mushinge. It was common cause that after Mr. Mushinge retired, he continued enjoying some of LASF conditions of service, namely a car, a Driver, Fuel and School Fees with full knowledge and approval of the Appellant. On 1st February, 1996, the Appellant was suspended from duty with effect . from 31st January, 1996, for negligence of duty and gross misconduct in the performance of his duties. On 18th March, 1996, after he had exculpated himself,· he received a letter re-instating him in his former position as Chief Internal Auditor with effect from 31st January 1996. At the same time, he was served with a notice of retirement. On the 8th of April, 1996, the first Respondent published an article complained of in its newspaper. The article read as follows:- "LASF CHIEF FIRED Local Authorities Superanuatlon Fund (LASFJ General Manager Emmanuel Chishlmikwa has been fired barely five months after taking office. Times Investigations showed that Mr. Chishlmikwa, who was Chief Internal Auditor prior to his appointment last year in October, was dismissed last month. Mr. Chishimikwa had replaced Stephen Mushinge whose contract expired last September 30, but had also been booted out three days before that date. Mr. Chishimikwa was removed for allegedly spending millions of Kwacha supporting Mr. Mushinge. Despite being removed by the Board of Directors, Mr. Mushinge continued to receive lucrative conditions of service befitting a Chief Executive, sanctioned by Mr. Chishimlkwa. LASF continued to provide among other things a guard to Mr. Mushinge's residence, company vehicle and fuel and school fees for about five months. Sources at the Ministry of Local Government and Housing confirmed the dismissal saying the Deputy Permanent Secretary in the Ministry was overseeing operations at LASF. A Ministry official said: 'yes the Board has removed the General Manager at LASF because of spending millions of Kwacha on someone who is no longer an employee of the organization, n On the 7th of May 1996, the Appellant issued a Writ of Summons claiming damages for libel based on the article complained of. After hearing the evidence, the trial court examined the law on libel and the definition of defamation. He then considered the facts of the case. The court found that the Appellant's case was that he was not dismissed and therefore that it was defamatory of him to publish that he was fired; that the former General Manager was entitled to the enjoyment of LASF conditions of service; that the Appellant did not deny the fact that he was subjected to disciplinary proceedings; and that he lost the post of Acting General Manager when he was re-instated. The court also considered the case for the Respondents which was that the article complained of was true in substance and fact; that had the Appellant's exculpatory letter been wholly accepted, LASF would have re-instated him as acting General Manager, and that the sudden retirement of the Appellant confirmed that there existed events of public interest which were the subject of the article complained of. The court noted that emphasis had been placed on the fact that the ·article complained of appeared some twenty or so days after the dispute between the Appellant and LASF had been resolved. The court pointed out that, although the time factor may have had some bearings and relevance, it ought not to be over stressed as there was a genuine concern by the Board Members over the benefits extended to Mr. Mushinge, who had been retired and paid in lieu of notice. The court found, as admitted, that the Appellant was not "Fired" but suspended by the Board. The court concluded, with "a lot of hesitation", that the article complained of was not defamatory; pointing out that the question was whether the article complained of was true in substance or in fact. The court expressed the view that the Board felt strongly over the facilities extended to the former General Manager and that the Board's concern was commendable as it acted in what it believed was a decision in the public interest, LASF being a public Board; and therefore a report on the events at LASF, although perhaps not extremely accurate, was in the public Interest. The court observed that it was wrong for an employee to enjoy the benefits the former General Manager enjoyed after separation. The Appellant's action failed. The court ordered each party to bear its own costs. The Appellant filed a memorandum of appeal containing three grounds, namely:- 1. that the learned Judge erred both in fact and in law by holding and concluding, "after a lot of hesitation," that the article headed "LASF CHIEF FIRED", as printed, published and circulated at large by the Respondents was not defamatory when the said article and its accompanying contents were actually libelous of the Appellant and the Respondents have admitted this fact in their evidence on record; 2. that the learned Judge erred both in fact and in law by only accepting and recognizing the Respondent's Counsel's position of not having cited any authorities and leaving the Court to draw its own conclusion on one hand but failing to recognize, consider and distinguish the Appellant's Counsel's cited authorities which were substituted by the said learned Judge's own authorities and references without giving reasons and distinguishing them accordingly thereby prejudicing the Appellant; and 3. that the learned Judge erred both in fact and law and contradicted himself when on one hand he recognized the balance of probabilities heavily In favour of the Appellant but held and hesitantly concluded in favour of the Respondents on the other hand after entertaining relevant doubts especially when the Respondents evidence on record is admittedly based on hearsay and is uncorroborated thereby drawing opinions and conclusions on matters contrary to the evidence on record and prejudicial to the Appellant. Mr. Chimembe, on behalf of the Appellant, filed very detailed written heads of argument based on the three grounds citing numerous · decided cases. The summary of the arguments on ground one Is that in view of the definition of libel and the evidence on record, the Lower Court erred both in fact and law by holding and concluding that "after a lot of hesitation" the article headed "LASF CHIEF FIRED'1 was not defamatory, when in actual fact it was defamatory. It was submitted that the events which took place on 18th March, 1996, when the Appellant was reinstated, were not truthfully reported on 8th April, 1996, the truth being that the Appellant was not fired as reported by the 1st Respondent and printed and published by the 2nd Respondent. It was contended that the Appellant's contract of service came to an end upon being given full benefits for the remaining three months. It was contended that the conclusion that \\had the Plaintiff's exculpatory letter been wholly accepted, LASF would have re-instated him without more," was not backed by any evidence. It was submitted that had the Appellant been found guilty of the allegations preferred against him, he would have been prosecuted and if found guilty, fired without any benefits. According to the arguments, the very fact that the Appellant was reinstated and paid all his benefits proved that none of the allegations he was charged with was proved. It was submitted that the defence of fair comment was not applicable because the publication was actuated with malice and that the defence is only applicable when a defendant admits publishing a defamatory statement about a Plaintiff. The summary of the arguments on ground two is that in holding that the article complained of was not defamatory, the trial court only accepted, evaluated and recognised only the Respondent's case. The submission was that this was an unbalanced evaluation of the evidence and a misdirection entitling this court to interfere with the judgment of the trial court. The case of the Attorney-General Vs Marcus Achiume(1) was cited in support of this submission. The gist of the arguments on ground three is that the reasons of extending certain facilities to the former General Manager were explained in the Appellant's exculpatory letter and accepted by LASF Board and hence the Appellant's reinstatement. It was contended that the suspension and reinstatement took place between 1st February and 18th March, 1996. The Respondent printed the article about the dismissal of the Appellant on 8th April, 1996. It was pointed out that despite the Appellant's favourable evidence, the trial court still concluded in favour of the Respondent. It was submitted that the approach taken by the trial court was wrong. We were urged that, on the authority of Samson Mbavu and Others Vs The People(2}, we should reverse the trial court's judgment. We have considered the detailed written arguments on behalf of the Appellant. At the outset we must indicate that we totally agree with the arguments on the definition of libel and what amounts to the tort of defamation as defined by Gatley on Libel and Slander, 8th Edition, by Phillip Lewis at page 10 when the author states:- "A man commits the tort of defamation when he publishes to a third person words {or matter containing an untrue imputation against the reputation of another" We also agree with Cavey, Jin Scott V Simpson(3) when, at page 503, he said:- "Speaking generally the law recognizes in every man a right to have the estimation in which he stands in the opinion of others unaffected by false statements to his discredit, and if such false statements ·are made without lawful excuse and damage· results to the person of · ·' whom they are made, he has the right of action. The damage, however, which he has sustained must depend almost entirely on estimation in which he was previously held." We also agree with the holding of the House of Lords in Lewis V Daily Telegraph (4) that a statement of suspicion is defamatory, moreso when it amounts to an imputation of guilty. We must however, obseive that in the definition of libel and slander the essential element is that words published must be "untrue". In the Scoth case, emphasis was on "false statements made without lawful excuse and damage results" The principles governing circumstances when an appellate court may interfer with the lower court's findings are also not in dispute. The question for determination in the instant appeal is whether the article complained of was defamatory of the Appellant? The fact that the article was published about the Appellant was common cause. Paragraphs six and seven of the Statement of Claim read as follows:- 6. By the said words as publicized in their natural and ordinary meaning the 1st and 2nd Defendants implied and suggested that the Plaintiff was dishonest and that he carried out clandestine activities to pay non-employees of the Local Authorities Superannuation Fund and the said Plaintiff personally benefited from such schemes and that he was dismissed from employment because of this when this was not so. 7. Further by reason of the publication of the said words, the Plaintiff has been lowered in the estimation of the right thinking persons generally. Paragraph five of the Defence reads as follows:- 9 5. 11The Defendants deny that such publication was injurious to the Plaintiff as the matters published are matters which did take place. 0 We are satisfied that the Respondent pleaded justification but in dumsy manner. However, the learned trial judge, after discussing the law and examining the facts of the case stated as follows:- ''After a lot of hesitation I have come to the conclusion that this article is not defamatory. The question is, you may ask, whether one can say the artide was true in substance or in fact. I may be wrong but my view is that the LASF board felt strongly over the facilities extended to the former General Manager and the board's concern, in my view, was commendable. The lASF board acted in what it believed was a decision in the public interest lJ\SF being a public body and, a report on the events at LASF although perhaps not extremely accurate was in the public interest." Mr. Chlmembe submitted in the heads of argument that this was a serious misdirection in view of the definition of libel and the evidence on record. We are mindful that the article was published many days after the Appellant was reinstated. Indeed, the events published had by the time of publication been overtaken by the reinstatement of the Appellant. In our view, reinstatement did not alter the fact that the Appellant had been suspended. As we understand the arguments, the complaint against the article is the use of the word "FIRED" . While it is true that the Appellant was not 'FIRED" but suspended, the contents of the article are true in substance and in fact. Indeed, the Appellant was reinstated but not as acting General Manager. In the circumstances of this case, we agree with the trial judge that the article complained of was not defamatory. And we are satisfied that the same was published in the public interest, LASF being a public body. This conclusion makes it unnecessary for us to address the arguments in the other two grounds of appeal. The appeal has therefore no chance of success. It is dismissed. The Respondents having not appeared, we make no order as to costs. E. L. Sakala CHIEF JUSTICE ···••t••···········································•· L. P. Chibesakunda SUPREME COURT JUDGE Q~ .................. . SUPREME COURT JUDGE q