Friday Mpundu and Ors v Mike Manda (2023/HN/CA.13) [2024] ZMHC 48 (3 April 2024)

t IN THE HIGH COURT FOR ZAMBIA AT THE NDOLA DISTRICT REGISTRY HOLDEN AT NDOLA (Appellate Jurisdiction) 2023/HN/CA.13 BETWEEN: FRIDAY MPUNDU MICHAEL KABASO JASON MWANZA TIDALENJI BANDA AND MIKE MANDA REPUBLIC OF ZAMBIA HIGH COURT OF ZAMBIA 3 APR 2'.24 Cl ViLL Gu,..:,!H. Y NOOLA HI GH COURT 1 ST APPELLANT , ~ 2ND APPELLANT 3RD APPELLANT 4TH APPELLANT RESPONDENT Before: Hon Lady Justice Dr. Winnie Sithole Mwenda at Ndola this 3 rd day of April, 2 024. For the Appellants: Mrs. C. Tafeni of Messrs. Suba Tafeni a For the Respondent: In Person JUDGMENT Cases referred to: 1. Bevin Ndovi v. Post Newspapers Limited, SCZ Appeal No. 48 of 2007. 2. Chinkulu and Masheke v. Times Printpak Zambia Limited and Kazembe 1996/ HP/ 4833. 3 . Muvi TV Limited v. Charity Katanga, CAZ Appeal No. 77 of 2018. 4 . Given Lubinda v. Edmond Lifwekelo and Daily Nation Newspaper Limited, SCZ Appeal No. 2 of 2018. 5. Michael Chilufya Sata v. Chanda Chimba III and Others (2011) Z. R. 519. 6. Mwinga v. Times Newspaper Limited (1988-1989) Z. R. 177. 7. Warard Harold Phiri v The Programme Manager Radio Maria-Zambia Chipata 2002/ HJ/ 31. 8. Jonathan W. M Kalonga and Another v. Titus Chisamanga and Another, SCZ Judgment No. 10 of 1988. 9. Legal Resources Foundation of Zambia and Delphine Hampande v. Father John Affum (201 OJ Z. R. (2) 444. 10. Moving Unit Video Television (ti a Muvi Tv Limited) v. Francis Mwiinga Maingaila, SCZ Selected Judgment No . 18 of 2019 11 . Wilson Masauso Zulu v. Avondale Housing Project Limited (1982) Z. R. 172 (S. C.). I.. J2 12. Kausa Mwachindala and Felix Kandolo u. Mathews Musona and Others, SCZ Appeal No . 1/2 02 1. Legislation referred to: 1. The Constitution of Zambia, Chapter 1 of the Laws of Zambia. 2. The Defamation Act, Chapter 68 of the Laws of Zambia. Authoritative texts referred to: 1. Bryan A. Gamer (Ed) Black's Law Dictionary, 10th Edition (2014) Thomson Reuters) 2. Patrick Muunga & Sangwani Patrick Ng 'ambi (2011) UNZA Press. 3. WVH Rogers (Ed) Winfield and Jolowicz on Tort, 18th Edition, Sweet & Maxwell. 4. Chungu, Chanda (2022) "Moving Unit Video Television (ti a Muvi Tu Limited) u. Francis Mwiinga Maingaila, SCZ Selected Judgment No . 18 of 2019," SAIPAR Case Review: Vol. 5: Iss. 1, Article 18. Available at: https:// scholarship. la w. comell. edu/ scr/ volS/iss 1/ 18. 1. Introduction/Background 1.1 This is an appeal by the four Appellants herein against the Judgment by the Subordinate Court of the First Class for the Mufulira District delivered on 2 nd December, 2022 , wherein the learned Magistrate found that the Respondent had proved his case of defamation against the Appellants to the required standard and ordered that the 1st to the 3 rd Appellants compensate the Respondent in the sum of Kl0 ,000.00 and costs. 1.2 The background to this matter is that the Respondent herein (Plaintiff 1n the Court below) filed a Writ of Summons against the Appellants (Defendants in the Court below) on 6 th May, 2022 for the following reliefs: (i) An order of interim injunction restraining the Defendants from interfering with the works that are I- J3 being carried out at Plot number MPF /01 Mupambe , Mufulira that the Plaintiff rightly purchased from Mufulira Municipal Council in 2019. (ii) Damages for defamation of character when the Defendants falsely alleged that the Plaintiff grabbed the Defendants' land and called ZNBC news crew who covered the story on Northern News on 1st May, 2022 , hence, denting the Plaintiff's political image. (iii) Any other relief the Court may deem fit and incidental costs of this suit. 1.3 As indicated above, 1n his judgment, the learned Magistrate in the Court below, found that the Plaintiff had proved his case against the 1st to the 3 rd Defendants on a balance of probabilities. 1.4 With regard to the 4 th Defendant, a minor, the Magistrate found that since she was a minor with no capacity to sue or be sued in her own right except through a next of friend, she was wrongly joined to the proceedings. 2. Grounds of Appeal 2.1 The Appellants filed a Notice of Appeal and Memorandum of Appeal on 3 rd January, 2023. The grounds of appeal as per the Memorandum of Appeal were as follows: .. J4 Ground 1 The Honourable Magistrate erred in fact and at law when he disregarded and/ or neglected the evidence of PW2 , one Evans Musumali, a Land Surveyor of the Mufulira Municipal Council. Ground 2 The Honourable Magistrate erred in fact and at law when he found that it was not true that there was encroachment by the Plaintiff as where the Faith Ministries Church is and where the Plaintiff is was quite a distance. Ground 3 The Honourable Magistrate erred in fact and at law when he found that the statement of the 1st Defendant that the Plaintiff had encroached or grabbed the land of Faith Ministries was not true or justifiable and that the statement can be said to be defamatory in nature. Ground 4 The Honourable Magistrate erred in fact and at law when he found that the 2 nd Defendant used to cultivate on the piece of land because the land in question had not been allocated to anyone and the fact that he had been on the land for a long time did not still give the 2 nd Defendant any right to the land. JS Ground 5 The Honourable Magistrate erred in fact and at law when he found that the statements to ZNBC and later broadcast to the public of the Plaintiff encroaching and grabbing land from the 2 nd and 3 rd Defendants could not be substantiated and that there was no truth or justification in the statements and that it was therefore, the Magistrate's considered view that the Plaintiff was defamed. Ground 6 That the Honourable Magistrate erred in fact and at law when he found that as for the 4 th Defendant there was no encroachment or land grabbed from the Pentecostal Assemblies and that if anything, they had more land than what they had actually applied for and allocated by the Council. Ground 7 The Honourable Magistrate erred in fact and at law when he found that the Defendants were bent on defaming the Plaintiff and that their statements did in fact bring hatred and ridicule on the Plaintiff and that the Plaintiff was of right standing in the community and was lowered in the eyes of right-thinking people. J6 Ground 8 The Honourable Magistrate erred in fact and at law when the 1st, 2nd and 3rd Def end an ts he ordered that compensate the Plaintiff Kl0,000.00 each. 3. Hearing of the Appeal 3.1. The appeal came up for hearing on 12th December, 2023. Mr. Tafeni, learned Counsel for the Appellants, submitted that the Appellants would rely on the filed Heads of Arguments and augmented by submitting that if the Judgment of the lower Court is allowed to stand, it will amount to gagging of citizens from expressing themselves when they have complaints. 3.2 Counsel submitted that in this matter there were grievances regarding land between the Appellants and the Respondent and it did not matter whether the grievances of the Appellants were legally justified or not, but what mattered was that they had a bona fide belief that their land was being encroached and they expressed that concern. 3.3 Counsel submitted lastly, that defamation is there to safeguard character and in this case no evidence whatsoever, was called by the Respondent to show that his character was demeaned before any right-thinking member of the society. Counsel prayed that the Appellants' appeal be upheld with costs. J7 3.4 In response the Respondent submitted that he filed his arguments on 7 th December, 2023 and he too would rely on them. However, he would supplement the same by stating that the land in question belonging to two churches , namely, Faith Ministries and Mupambe Assemblies , is intact and the purported encroachment is not into their land but his land. 3.5 The Respondent submitted further, that Mr. Jason Mwanza, the 3 rd Appellant, is a resident of Mupambe, a community opposite where he bought the same land. That, Mr. Mwanza was not residing on the land but was just cultivating on a small portion of the land where the Council had given out plots of land. 3.6 With regard to the 4 th Appellant, the Respondent submitted that he was not disputing the guidance of the lower Court to the effect that the 4 th Appellant was wrongly joined to the proceedings as a minor. It was his prayer that the appeal be dismissed with costs. 4. Appellants' Heads of Argument 4.1 The Appellants filed Heads of Arguments on 30 th November, 2023 which expanded on the eight heads of arguments advanced by the Appellants . 4.2 With regard to Ground 1, it was submitted that the lower Court erred in law as it did not consider the testimony of PW2 who testified in his professional capacity as a JS Surveyor for the Mufulira Municipal Council and whose evidence was critical 1n understanding the land demarcations as he had been tasked to survey the land that was in dispute. That, he shared his findings with the lower Court which proved that there was land encroachment, but the lower Court disregarded PW2's testimony. The Appellants prayed that the Court allows Ground 1 of the appeal. 4.3 For Ground 2, it was submitted that the Court below erred in fact and law when it found that there was no encroachment by the Plaintiff (Respondent herein) as where the Faith Ministries Church is and where the Plaintiff is, there is quite a distance. The Appellants contended that Faith Ministries and the Respondent's land are near to each other and therefore, it is possible for encroachment to occur. That, from the Respondent's testimony, it is clear that there was close proximity between him and the Church, hence his requesting the Council to call Church leadership to be engaged so that the issue could be resolved. 4.4 That, from the above testimony it is clear that the lower Court erred because the two pieces of land are in close proximity. Thus, the Appellants prayed that Ground 2 of the appeal be allowed. 4.5 For Ground 3, it was submitted that the trial Magistrate in the Court below erred in fact and at law when he held J9 that the statement by the 1st Defendant (1st Appellant) that the Respondent had encroached or grabbed the land of Faith Ministries Church was not true or justifiable and that the said statement can be said to be defamatory in nature. 4.6 The Appellants cited the case of Bevin Ndovi v. Post Newspapers Limited1, where defamation was defined as: "Any imputation which may tend to injure a man's reputation in a business, employment, trade, profession, calling or office carried out or held by him." 4. 7 It was contended that from the definition of defamation the utterance by the 1st Appellant that the above, Respondent had encroached on some land must be false and must be shown to affect the public's view about him. That, the onus is on the Respondent to prove that right thinking members of the public stopped viewing him the same and that his reputation was affected when he was accused of encroaching on land. It was submitted that the Ndovi case (supra) went further and discussed the defence of fair comment. The Court stated that: "There is no doubt that the public acts of a public man may lawfully be made the subject of fair comment or criticism, not only by the press, but all members of the public. But distinction cannot be too clearly distinguished in mind between comment or criticism and allegations of fact, such that disgraceful acts have been committed or discreditable language used. It is one thing to criticise, even with severity, the acknowledged or proved acts of a JlO public man, and quite another to assert that he has been guilty of particular acts of misconduct. " 4.8 It was argued that what must be examined are the intentions and the real reasons as to why the statements about land encroachment were made about the Respondent and the intentions of those making them. That, it was clear that such statements were made because of disputes about land boundaries. It was submitted, further, that the Respondent stated in the lower Court that he was defamed because he was a public figure, having been a District Commissioner in Mufulira from the year 2020 to 2021 and also because he was a politician who regularly helps the public during funerals and is a well-known person in the community. 4. 9 However, it was the Appellants' contention that what was stated by the Appellants that the Respondent had encroached on their land was a fair comment based on the investigations which were carried out by the Surveyor from Mufulira Municipal Council. That, the comments were true and justifiable as they were not meant to discredit the Respondent but merely to give their opinion to the media house based on what had transpired in their area with regards the land allocation. 4.10 The Appellants further contended that the lower Court should have questioned if the Defendants had made the statements or accusations about their land being encroached with the intention of defaming the Plaintiff Jll and lower his reputation. That, the statements that were made about the Plaintiff were clearly fair comments as they were made to ZNBC at a time when the Mufulira Municipal Council had not resolved the land issues and it was at the time the parties involved were told to expect the Mayor but were instead greeted by microphones , cameras and journalists from the national broadcaster. The Appellants prayed that the Court allows this ground. 4. 11 Grounds 4 and 5 were argued together. It was argued that the Respondent found the Appellants on the pieces of land they occupied according to the testimonies by the defence witnesses in the Court below as well as the testimony of the Respondent. 4.12 Further, that in saying that the 2 nd and 3 rd Appellants did not substantiate what they had stated when they were interviewed by ZNBC and that there was no truth or justification hence they defamed the Respondent, that was an error of fact and law by the lower Court. That, in trying to understand if the Respondent was really defamed by the 2 nd and 3 rd Appellants , it is very important to consider the statements which they had made when they were interviewed which were a representation of what the 2 nd and 3 rd Appellants knew and understood at that point. Jl2 4.13 The Appellants cited Section 7 of the Defamation Act, Chapter 68 of the Laws of Zambia which provides as follows: "In an action for libel or slander in respect of words consisting partly of allegations of fact and partly of expressions of opinion, a defence off air comment shall not fail by reason only that the truth of every allegation off act is not proved if the expression of opinion is fair comment having regard to such of the facts alleged or ref erred to in the words complained of as are proved." 4.14 That, from the above, the Appellants submit that the words complained of by the Respondent in the lower Court were those that the Appellants used when they were interviewed by ZNBC stating that their pieces of land had been encroached by the Respondent. That, it is also important to consider whether the expressions used were partly allegations of fact and partly expressions of opinion. In establishing this, the Court should ask if the Appellants at that time who were expectant and waiting for the Mayor to resolve the land issues did give opinions to the media with the view of defaming the Respondent. That, it is the Appellants' view that they did not defame the Respondent when they were interviewed by ZNBC because what they stated was true and justified as they were not intent on defaming the Respondent but just gave their side of the story about the land encroachment disputes happening in their area. That, for the above reasons, it was the Appellants' prayer that the Court allows these grounds of appeal. J13 4.15 In relation to Ground 6, it was submitted that the lower Court erred in fact and law when it found no encroachment or land grabbing for the 4 th Appellant as the Respondent found all the Appellants occupying the land when he moved to the area. Further, that DW2 in the lower Court had stated that the Council had stopped attending to the Appellants when the local authority discovered that the Respondent was then the District Commissioner for Mufulira. It was submitted further, that the evidence showed that the churches had the proper papers for the pieces of land which they occupied. Further, that during the scene visit, the 4 th Appellant stated that the land measured 100 x 55 while in re examination he said the land measured 100 x 53. That, however, it must be noted that when the ZNBC crew visited the area they were in the company of planners from the Mufulira Municipal Council and they did not resolve the land issues conclusively or measure the land or point out where the beacons separating the land were supposed to be. It was therefore, erroneous for the Court below to hold that the Pentecostal Assemblies had occupied land that was more than what they had been allocated. The Appellants urged the Court to allow this ground of appeal. 4.16 For Ground 7, it was submitted that the claim by the Appellants that the Respondent had encroached their land was not a defamatory statement but one that was Jl4 honest at the time it was made as it was truthful and could be justified. It was further submitted that what all the Appellants said was what they believed to be true at the time the statements were made. They did not say anything to lower the estimation of the Respondent in the eyes of right-thinking members of the public. Further, when the statements were made about the Respondent, he was no longer a District Commissioner for Mufulira District even though he is still a politician. 4.17 The Appellants contended further, that the Respondent did not call any witnesses in the lower Court to prove his case and show the Court that he was indeed defamed. That, by not calling any witnesses it was surprising that the lower Court reached the decision that the Respondent's reputation was lowered in the eyes of right thinking members of society when none of the members of society came forward to testify as to the nature of the Respondent, how society viewed him and finally how the statement by the Appellants led to his reputation being injured. It was argued that the lower Court erred in fact and law when it arrived at the decision that the Respondent was defamed when there was no evidence whatsoever to show and prove that his estimation had been lowered in society because of the statements that had been made about him by the Appellants. JlS 4.18 With regard to Ground 8 , it was submitted that the Magistrate in the lower Court should not have ordered that the 1st , 2 n d and 3 rd Appellants should pay the Respondent Kl0 ,000.00 each as they made what should be regarded as a fair comment. Further, that the Appellants made the statement because they were interviewed at a point when they had a dispute with the Respondent regarding the boundaries as the Appellants felt that their land was being encroached by the Respondent. That, in the statement issued to ZNBC , the main issue that was raised was the fear by the Appellants that the Respondent had occupied their land and this was stated at the time when the land issues were supposed to be resolved by the local authority. Further, that the comments made were a fair comment because the Appellants stated what they did within reasonable bounds and were not exaggerated as they were perfectly honest comments. 4.19 It was submitted lastly, that the Respondent is a public figure and at one time held office as a District Commissioner and was therefore , open to the most searching criticism. That, 1n the same vein, the Respondent is a politician who should be open to public opinion and scrutiny. However, in this regard , the Respondent was not talked about in the capacity of politician or former District Commissioner but as a neighbour who was suspected of having encroached on Jl6 the Appellants' land. The Appellants prayed that this ground as well as the appeal as a whole be allowed. 5. Respondent's Heads of Arguments 5.1 The Respondent argued Grounds 1, 2 and 3 collectively. The Respondent submitted that the lower Court did not err in disregarding the findings of the Surveyor which were marred with errors resulting in much bigger land for the Faith Ministries from the initial 1 00m x 50m to 1 00m x 53. 7m in the opposite direction of their plot. 5.2 The Respondent further submitted that the fact that that the parties share boundaries confirms proximity but not an encroachment by the Respondent and neither does it confirm an encroachment by the Appellants even though the errors suggest so because the land belonging to Faith Ministries is quite intact as found by the lower Court. 5.3 On the issue of defamation, the Respondent submitted that the lower Court did not err in finding that the Respondent had been defamed as the lower Court witnessed verbal attacks when some members of the two churches chanted that the structure put up by the Respondent would be demolished upon seeing the lower Court's presence on the scene because word had gone out in the nearby compound that the Respondent had encroached and grabbed land from the Appellants. J17 5.4 That, the above and the evidence in the flash disk given to the lower Court were defamatory in nature. That, the two times the Appellants requested the Council to resolve the dispute over the purported encroachments, it was found that there was no encroachment by the Respondent and the third time was in the presence of the lower Court. 5.5 With respect to Grounds 4 and 5, the Respondent submitted that the lower Court did not err in fact and law because the 3 rd Appellant did not provide evidence of ownership of land, but simply showed the Court where he used to cultivate. Further, that the words in the flash disk submitted in evidence in the lower Court uttered by the 2 nd Appellant were purely defamatory as concluded by the lower Court. It was the Respondent's prayer that this Court sustains the finding of the lower Court. It was submitted in relation to the 3 rd Appellant, that he had no documents to prove ownership of the land in question. 5.6 Submitting with regard to Ground 6, the Respondent argued that the lower Court was on firm ground to find that there was no encroachment or grabbing of land from Pentecostal Assemblies and if anything, the measurement of their land was more than what the Council had given them. 5.7 For Ground 7, the Respondent submitted that the statement by the Appellants that the Respondent JlS encroached or grabbed land was false at the time it was made and remains untrue because nothing has changed until the present time. That, the false statement made by the Appellants remain injurious to the Respondent's reputation built over time. Further, that the journey to repair the damage is not clear especially that he intends to participate 1n future politics. The Respondent submitted further, that he did not see the need to waste the lower Court's precious time by calling witnesses when he provided evidence as received by the lower Court in the videos showing defamatory statements by the Appellants on ZNBC television. It was his prayer that the Court sustains the findings of the lower Court. 5.8 In relation to Ground 8, the Respondent submitted that the lower Court ordered that the 1st , 2 nd and 3 rd Appellants compensate him with Kl0,000.00 each after proving that this was a pure case of defamation going by the findings of the Court. Therefore, it was his prayer that this Court sustains the order of the lower Court or considers upgrading the compensation as the Appellants showed no remorse in any way whatsoever. 6. Determination of Appeal 6. 1 I have considered the grounds of appeal file by the Appellants herein and their Heads of Arguments. I have also considered the Respondent's Heads of Arguments. J19 6.2 Article 20 of the Constitution guarantees the right and protection of freedom of expression. However, sub-article (b) of Article 20 (3) limits the right, inter alia, to protect the reputation, rights and freedoms of others. This is where the law on defamation steps in. 6.3 Black's Law Dictionary defines "Defamation" as a false written or oral statement that damages another's character, fame or reputation. 6.4 According to the learned Author WVH Rogers of Winfield and Jolowicz on Tort at page 405: "Defamation is the publication of a statement which reflects on a person's reputation and tends to lower him in the estimation of right- thinking members of society generally or tends to make them shun or avoid him." 6.5 The learned authors Mvunga and Ng'ambi in their book Tort Law in Zambia go further when they state that defamation: " ... therefore, deals with injury to one's reputation - a priceless commodity which ought to be protected by the law whilst balancing that interest with the defendants' constitutional right to freedom of expression. In order to succeed in a claim for defamation there must be a publication of defamatory words which refer to the claimant." 6.6 Hence, the elements of defamation that a party must prove are: J20 6.6.1 the statement complained of must be untrue and defamatory; 6.6.2the statement must make reference to the claimant; 6.6.3the statement must have been published. 6. 7 Under the first requirement, for a statement to be considered defamatory, it must be untrue and calculated to injure the reputation of another, by exposing them to hatred, contempt or ridicule. As it relates to the truth, it was held in Chinkulu and Masheke v. Times Printipak Zambia Limited and Kazembe, 2 that: "The last question to resolve is whether the publication was malicious. Here again, I have no doubt in resolving this question in favour of the ioint Plaintiffs because the allegation contained in the publication was not based on the truth and evidence was given on record to show that the defendants did not attempt to verify the truth of their allegations with the Ministry of Defence or at all and further, there is evidence that when the Defendants were requested, in writing, to retract the publication, they refused or neglected to do so and instead pref erred this litigation by referring the matter to their lawyers. " (Emphasis, the Court's) 6.8 From the above it is clear that defamation arises where a statement is not only false but also the defendant does not make any attempt to verify the truth. 6. 9 According to the Court of Appeal in Muvi TV Limited v. Charity Katanga, 3 a statement is defamatory where: J21 "the publication was without justification or lawful excuse, which was calculated to injure the reputation of another by exposing him to hatred, contempt or ridicule." 6.10 Under the first criteria, the statement is defamatory if it lowers the standing of the claimant in the eyes of right thinking members of society. The Supreme Court in Given Lubinda v. Edmond Lifwekelo and Daily Nation Newspaper Limited4 held that: " ... an article or publication will be def amatory if its effect is to expose a claimant; to hatred, contempt or ridicule; or lower the claimant's reputation in the estimation of right-thinking members of society; or to be shunned or avoided." 6.11 In Michael Chilufya Sata v. Chanda Chimba III and Others5 , it was held that: "The true test according to the authorities is whether in the circumstances in which the statement was published, reasonable persons to whom the publication was made, would understand it of the plaintiff and in a defamatory sense. In ascertaining whether or not the words complained of are defamatory, I am required to consider the statement as a whole, and interpret the words complained of in their natural and ordinary meaning. In this regard, I must ask myself the question whether a reasonable man could reasonably come to the conclusion that the words complained of were def amatory of the plaintiff " 6.12 Speaking to the third requirement that the statement must make reference to the claimant, the Supreme Court in Mwinga v. Times Newspaper Limited6 held that: J22 "it is for the trial judge as trier of both fact and law to determine whether, as a matter of law, the words complained of were capable of being understood to ref er to the plaintiff and if so whether, as a matter of fact, the words were reasonably understood to refer to the plaintiff It is, of course, for the plaintiff to prove the reference to him and this is so whether his identity has been put in issue by the pleading or not, for unless he can prove that the def amatory imputation was published of and concerning him, he has no cause of action: see Sadrove v Hole. Mr Tembo argued that the learned trial judge was right to find that the plaintiff had failed to establish the reference to himself because of the possibility that a different person was meant. Mr Bwalya argued as we have already summarised and added, citing Hulton and Co v Jones and other cases, that it would not have mattered even had the defendants' intention been to refer to someone else if in fact those who knew the plaintiff understood the publication to refer to him, such as his wife and his relatives who had brought the articles to his attention. " 6.13 The Supreme Court above emphasised that only identifiable individuals in a publication can bring an action to defamation. 6.14 For the fourth requirement of publication, no action can be brought where the statement, no matter how untrue or offensive, is made only to the person about whom the allegation is being made. At least one other person must hear or read the statement and understand it. 6.15 Publication according to the Supreme Court in Warard Harold Phiri v The Programme Manager Radio Maria- J23 Zambia Chipata7 means "communication to at least one person other than the plaintiff'. 6.16 It should be pointed out that there are a number of defences to a claim for defamation, namely an apology, the truth, honest opinion and fair comment on a matter of public interest. For an apology, the Supreme Court in Jonathan W. M. Kalonga and Another v Titus Chisamanga and Another, 8 the Supreme Court held that: "An adequate apology, no matter that it was tendered late, has the effect of extenuating the seriousness of the defamation." 6. 1 7 Acceptance of the offer of amends brings the matter to an end save that the aggrieved party can apply to the Court for an order that the terms of the accepted off er are fulfilled. 6.18 For the truth, section 6 of the Defamation Act, provides that: "In an action for libel or slander in respect of words contained in two or more distinct charges against the plaintiff a defence of justification shall not fail by reason only that the truth of every charge is not proved if the words not proved to be true do not materially injure the plaintiff's reputation having regard to the truth of the remaining charges." 6.19 According to the Michael Sata decision, {supra): J24 "Justification means truth. It is an absolute defence in a civil defamation claim that the statement in question is true, or substantially true. It is irrelevant for the purpose of defamation that its publication constitutes a gross breach of privacy or confidences or that it is contrary to public interest. The purpose of civil law is to compensate a claimant not to punish a defendant. " 6.20 As has been stated above , defamation does not arise if what is published is the truth. It is for the defendant, in this case the Appellants , to prove the truth of the statement. 6.21 In relation to honest opinion, for this defence to succeed, the statement complained of must be a statement of op1n1on; that the statement complained of indicated whether in general or specific terms, the basis of the opinion and that an honest person could have held the opinion on the basis of any fact which existed at the time that the statement complained of was published and anything asserted to be a fact in a privileged statement published before the statement complained of. 6.22 Another defence is that of fair comment on matter of public interest. Section 7 of the Defamation Act provides that in an action for libel or slander in respect of words consisting partly of allegations of fact and partly of expressions of opinion, a defence of fair comment shall not fail by reason only that the truth of every allegation of fact is not proved if the expression of opinion is fair J25 comment having regard to such of the facts alleged or referred to in the words complained of as are proved. 6.23 In Legal Resources Foundation of Zambia and Delphine Hampande v. Father John Affum, 9 the Supreme Court held that where a statement is made, it will have to amount to an opinion or comment before it is held to be fair. 6.24 Thereafter, the person publishing the statement must have honestly believed both that it was a matter of public interest to publish it and there was some factual basis for the opinion. 6.25 Having laid down the above, I shall now turn to consider each ground of appeal. The first ground of appeal attacks the lower court for failing to consider the evidence of Evans Musumali, a Land Surveyor from the Mufulira Municipal Council. 6.26 It is trite that before a lease on land is registered in relation to a piece of property and Certificate of Title is granted, a survey diagram with respect to the said land must be approved. Section 12 (2) of the Lands and Deeds Registry Act states that: "(2) Subject to this section, any document relating to land which is lodged for registration shall describe the land by reference to a diagram, plan or description of the land, quoting the year J26 and Surveyor-General's number of the plan, diagram or description." 6.27 Further, section 32 of the Land Survey Act reads as follows: "No diagram of any parcel of land shall be accepted in the Registry in connection with any registration therein of such land, unless such diagram has been approved: Provided that, in the event of such approval being contingent upon any act being subsequently performed in the Registry, the Surveyor-General may approve such diagram provisionally, and, upon the performance of that act in the Registry, the Surveyor General shall finally approve such diagram when submitted to him.'' 6.28 From the above , it 1s clear that title to land 1s accompanied by an approved diagram. On this note, the Magistrate could only have accepted the Land Surveyor's evidence if it was corroborated by documentation of approved survey diagrams that clearly showed the purported encroachment. In the a b sence of any such evidence , the evidence of the Land Surveyor held little weight and the Magistrate did not err when he did not rely on the said evidence. In my view, the unsupported oral evidence of the Land Surveyor did not prove that the Appellants were telling the truth as they failed to establish the encroachment on the facts and evidence before the Court below. J27 6.29 For the avoidance of all doubt, the truth is a full and total defence to a claim for defamation. However, where the truth is pleaded, it must be supported with the full particulars of the facts. The learned authors of Halsbury Laws of England, opine that: «A defendant who pleads justification to a general charge must give full particulars of the facts he relies on as showing that the defamatory statement is true, to prevent the plaintiff from being taken by surprise." 6.30 In the Michael Chilufya Sata v. Chanda Chimba III and Others case (supra), it was held that: «Accordingly, a def end ant who pleads justification to a general charge must give full particulars of the facts he relies on as showing that the defamatory statement is true. The particulars must be relevant, and must be capable of justifying the meaning, or meanings that the defendants seek to justify." 6.31 The above underscores that where the truth is pleaded, the party alleged to have made the defamatory statement must ensure that all the relevant details are given. In addition, the said particulars must be relevant and capable of justifying the statement made. 6.32 In the circumstances, I am not satisfied that the relevant particulars of the truth have been given. The evidence of the Surveyor General is not supported by any diagrams nor is there any evidence of Certificates of Title that prove J28 any encroachment. For these reasons , I find that Ground One has no merit and dismiss it accordingly. 6.33 Grounds 2 and 3 relate to the alleged encroachment onto the land of Faith Ministries Church. Once again, there was no evidence before the Court below that regardless of the distance between the Respondent's land and that of Faith Ministries Church, the Respondent encroached on their land. 6.34 The Appellants in their arguments submitted that the intentions and the real reasons for the statement relating to the land encroachment must be examined. The Appellants seemed to argue that disputes about land boundaries justified the statement made. For the record and avoidance of any doubt, it is only rarely that a person's motive for their actions is relevant in the law of tort in Zambia. Motive is usually relevant in the law relating to private nuisance and the fair comment defence. 6.35 The defence of honest opinion or fair comment relates to a matter of public interest. This principle means that the common law defence of fair comment may apply where the defamatory words are an expression of opinion. 6.36 In Moving Unit Video Television (t/a Muvi TV Limited) v. Francis Mwiinga Maingaila, 10 the Supreme Court explained that: J29 "This public interest defence has been developed in order to protect news media from def amatory actions arising out of the reporting of information of importance to the public. In Reynolds v. Times Newspaper(3) the House of Lords, while recognizing the public interest defence, stressed that two essential elements ought to be established for the defence to be successfully raised (the Reynold's qualified privilege' defence), namely (i) that the article as a whole must be in public interest; and (ii) there must be responsible journalism. " 6 .37 The issue of land encroachment, including by some politicians , 1s definitely a matter of public interest. However, for the defence of public interest to succeed, the publisher must take reasonable steps to verify the information. 6.38 In Francis Mwiinga Maingaila (supra) it was further held that: "As quoted by the lower court, these factors, in paraphrase, are; the gravity of the allegation; the essence of the information and the degree to which it concerns the public; the source of the information; the steps taken to verify the information; the urgency of the matter, bearing in mind that news is often a short lived commodity; whether a comment was sought from the person allegedly defamed; whether the article contained the gist of the plaintiff's side of the story; the tone of the article and the circumstances of the publication, including the timing ... Any publication justified on the basis of public interest ought, however, to take into account the factors that were set out in Reynolds v. Times Newspaper (3) as we have set them out above and other exigencies peculiar to each case. Weighed against those J30 requirements, the circumstances surrounding the broadcast of the respondent's defilement story cannot, in clear conscious and justice, measure up to the standard necessary to satisfy responsible journalism. The source of the information in this case was one-sided; no steps were taken to independently verify the information and the respondent's side of the story was above all not sought. Furthermore, a material part of the story to do with the medical ex amination was either negligently omitted or deliberately concealed. We do not, therefore, think that public interest, taken in isolation, can justify the appellant's broadcast. " 6.39 In the absence of any evidence and any efforts by the Defendant to properly verify the purported encroachment by the Respondent , or bring concrete documentation that disputes the Respondent's title , I cannot hold that the defence of public interest can stand. 6.40 Further, for the defence of fair comment to succeed, it must be shown that there is a sufficiently factual basis underpinning the comment. 6.41 In Michael Sata (supra), it was held that: The essence of this defence lies in the law's recognition of the need in the public interest for a particular recipient to receive frank, and uninhibited communication of particular information from a particular source .. . It is said that a comment cannot exist in "thin air." The defendant must prove that the factual building blocks on which the comment is based are true or sufficiently true ... The facts must either be stated or summarised in the publication or indicated with sufficient clarity to enable the publishers to ascertain the facts on which comment is based . " J31 Where some of the facts stated are true and some are false, the defence will succeed if the defendant would have been entitled to make the same comment solely on the basis of the true facts . 6. 4 2 The above underscores the notion that the defence of fair comment only succeeds where there is some reasonable belief in the truthfulness of facts. The learned Author Chanda Chungu in his article on the Francis Mwiinga Maingaila case argues that: " ... the defence of public interest, taken in isolation cannot justify the broadcast of the video and information of defamation where the information is one sided and no steps were taken to verify the information or hear the other side. " 6.43 Put differently, where a comment is made, the success of the fair comment defence will depend on the facts that the publisher is relying on as stated and efforts taken to verify the statement. 6.44 Therefore , the defence of fair comment will not succeed where it is not fair and not based upon tangible facts which can be pointed to and identified as being the basis for the said opinion. Further, it was imperative for the Appellants to prove that they honestly held the opinion and were not motivated by any bad faith and/ or malice. I do not find that the Appellants discharged this burden adequately. 6.45 In the circumstances, I do not find any factual basis that supports a holding that the defence of fair comment can J32 succeed given that the factual basis that 1s relied upon was not disclosed. 6.46 The Appellants are correct that a person holding public office must be amenable and tolerant of public comment. However, such comment must be reasonable and fair , and based on objective facts . In the Given Lubinda case (supra) , the Court laid emphasis on: " ... the need for promotion of healthy public debate in pursuance of the advancement of democratic values. If such debate involves a person holding a political position, he or she must be tolerant of acceptable criticism. That is, criticism which is not personal and cast aspersions on a person's reputation, as he or she has offered himself to such criticism or attack. " 6.4 7 The Supreme Court's lucid holding demonstrates that even politicians have a right to not be subjected to personal attacks on their reputation. I find that there was no fair comment in the circumstances but rather the utterances harmed the Respondent's reputation and were thus , defamatory. 6.48 I wish to point out that there is a mechanism for the resolution of land disputes and a party cannot issue untrue statements as basis for trying to resolve their issues. The law provides a mechanism where a Lands Tribunal may hear and determine matters affecting lands rights and the determination of appeals from the Commissioner of Lands or Minister. The Appellants were • J33 not justified in making blatantly untrue statements relating to the land merely because they believed or claimed land encroachment. Rather, they should have sought recourse to the law or made their statements based on some objective facts. For the above reasons, I dismiss Grounds 2 and 3. 6.49 Ground 4 attacks the learned Magistrate for holding that the 2 nd Defendant used to cultivate on the piece of land and Ground 5 challenges the finding that the statements published via ZBNC were defamatory. 6.50 As it relates to Ground 4 relating to the cultivation of the piece of land, this is a finding of fact that was established by the trial Magistrate. An appellate court should be slow to reverse findings of fact as it is the trial Court that has the benefit of evaluating evidence first hand for the purpose of making suitable determinations. In Wilson Masauso Zulu v. Avondale Housing Project Limited, 11 it was held that: "An Appellate Court will only reverse findings of fact made by a trial court if it is satisfied that the findings in question were perverse or made in the absence of any relevant evidence or upon misapprehension of the facts. " (Emphasis, the Court's) 6.51 Further, the Supreme Court in Kausa Mwachindala and Felix Kandolo v. Mathews Musona and Others 12 held that: .. J34 " ... It is trite that an appeal from a decision of a trial Court operates as a re-hearing on the record. Thus, an appellate court, be it the Supreme Court, the Court of Appeal or the High Court, in the exercise of its appellate jurisdiction, considers the whole evidence on the record, both oral and documentary, given in the trial Court as well as the Judgment appealed against. There is caution however, and this is that an appellate court which has had no benefit of seeing and hearing the witnesses at first hand should not lightly interfere with findings of facts by a trial Judge, unless it can be demonstrated that one or more of the conditions laid down in NKHATA, MARCUS KAMPUMBA ACHIUME and a host of other authorities exist. " 6.52 On the strength of the authorities above, I am not convinced that the Appellants have shown any evidence that would justify an intrusion into the findings of fact by the Court below and thus decline to do so. Ground 4 is therefore , dismissed. 6. 53 In relation to Ground 5, I have already outlined above that there is no truth or objective facts that support the statements published relating to the purported encroachment. In the absence of any truthfulness, it is crucial to examine if the statement had the effect of exposing the Respondent to hatred, contempt or ridicule and/ or or lowering his standing in the eyes of right thinking members of society. 6.54 The Respondent being a politician, has a general duty to act in the public interest, that is, in the best interests of citizens. Being a politician, his mandate is derived from ' " J35 the people by way of election or appointment by an elected official. 6.55 To that end , I have no doubt that the publication of an untrue statement relating to perceived corruption or exploitation of his position in the manner published would lower his standing in the eyes of right-thinking members of society. Ground 5 is dismissed. 6. 56 Ground 6 relates to a finding of fact for which the Appellants have not laid a sufficient basis for reversal and as such, I will not interfere with the decision of the Court below. On this basis , Ground 6 is dismissed. 6 . 5 7 Ground 7 is similar to Ground 5 above where I made a determination that the untrue statements had the effect of lowering the Respondent's standing given his position in the community. I find that Ground 7 is devoid of any merit and consequently, dismiss it. 6 .58 Having found that the 1st to 3 rd Appellants defamed the Respondent, Ground 8 cannot stand and is accordingly dismissed. 7. Conclusion and Orders 7.1 In conclusion, I find that the Appellant s ' appeal has failed on all grounds and I dismiss it. 7 .2 I therefore, make the following orders: J36 7.2.1 I confirm the award of K30,000 as damages to be paid in equal instalments of Kl0,000 each by the 1st, 2 nd and 3 rd Appellants. 7 .2.2The amount due shall attract interest at the short-term deposit rate from the date of filing of the claim in the lower Court until judgment and thereafter, at the lending rate as determined by the Bank of Zambia, until full payment. 7 .3 Costs are awarded to the Respondent, to be taxed 1n default of agreement. 7.4 Leave to appeal is granted. Dated at Ndola this 3 rd day of April, 2024. Winnie Si thole Mwenda (Dr.)