Mwakayoka & Anor. v Blantyre Newspapers Limited (Civil Cause 41 of 2012) [2017] MWHC 93 (23 June 2017)

OF MALAWI REPUBLIC IN THE HIGH COURT OF PRINCIPAL REGISTRY MALAWI BETWEEN: CIVIL CAUSE NUMBER 41 OF 2012 JEREMIA MWAKAYOKA ....... ....................................................................................... 1 ST PLAINTIFF EMMANUEL MZANGA ..................... .......................................... ............................ 2ND PLAINTIFF ............... AND BLANTYRE NEWSPAPERS LIMITED ...... ............ DEFENDANT ............................................. ................... ....... CORAM: Ms. CM MANDALA: ASSISTANT Mr C Masanje: Mr Chisale: Mr PW Chitsulo: Counsel Counsel Court Clerk REGISTRAR for Plaintiffs for the Defendants (absent on delivery) ORDER ON ASSESSMENT OF DAMAGES CM MANDALA, AR AND BACKGROUND INTRODUCTION This is an order for assessment the Honorable defamation Justice to be assessed of damages pursuant to a Judgment delivered on 16th May 2017 by MA Tembo. In this Judgment, the Plaintiffs and costs to be borne by the Defendant. were awarded damages for by the Registrar commenced The Plaintiff pursuant November the Plaintiffs the present action that was published on 5th April 2012 claiming newspaper to an article by the Defendant's 12-18 2011 headed 'ACB prompt on cases involving that they are the 'most complained police against'. stating called officers' the Malawi News of and bore the faces of damages for defamation and submitted both oral and documentary evidence. Each Plaintiff's were present EVIDENCE The Plaintiffs evidence The first will be set out in turn. Plaintiff 1. I am JEREMIAH adopted his witness statement as evidence in chief. It states: my knowledge in one of their weekend MWAKAYOKA, the 1st Plaintiff within the information published Defendants November 2011. On page 6 of that paper there was an article involving police alone, officers police officers, arrested Malawi News can reveal.' written by the Anti-Corruption by Wezzie Nkhoma-Somba. The headed ACB prompt on cases with words 'Six article started this year Bureau {ACB), have been convicted in this matter and I make this statement from to an article which the and the information relates of 12th to 18th papers particularly the weekend Page 11 ··-­---dlGH COUR�-� I I IBR/J.. R'Y ; ----. J- .... . # � charges and that there was no complaint the previous to. When I asked her what based at the Central Region Police is a in the doing my against. She was shocked. their cases." the country. mwatukulatu She asked me with a I was resting (translated I was surprised at home because to corruption. Region of Malawi. are circulated my face in a newspaper I was the Church Council as "what have you started Station. Parish. police and the most complained At the time of publication, visible and recognizable. police Catholic I got another call from my workmate. I was not answering any corruption as and had no idea what she was referring seeing she told me that she was disappointed But despite that, it was clear the paper had circulated Superintendent was being published I was a sub inspector based at for St Chairman is one of the biggest two newspaper publishers in the country whose and in the middle of the article face and mine were clearly is a big picture depicting my face and that of Below the picture 2. Below the title the 2nd Plaintiff's caption "MOST COMPLAINED AGAINST - Easy to investigate 3. The Defendant throughout publications 4.'On the other hand, I am a police Headquarters but at the time the article Blantyre lgnatio 5. On 12th day of November 2011 in the morning night I had been on duty. Around 8 o'clock I got a call from my sister Chimwemwe Mwakayoka in Mzuzu, in the Northern who was then staying concerned voice "mwayamba chani achimwene" brother?). had happened depicting us as the most corrupt persons narrated how the family 6. I told my sister against me relating the way to Mzuzu. 7. As if that was not enough, who said "amwene, appeared in a newspaper but for very bad reasons.' answering these charges when he knew me as a man of good standing and character society just concluded by saying, 'we will see how it ends.' 8. Then so many other people called me to make inquiries after being surprised that the article depicted have been made against me that relate to people, especially corruption pretence when 9. I was troubled that I was not answering any corruption expressed surprise at the putting of our faces along with such an article. I exhibit the newspaper cutting 10. Thus, the article created Blantyre imputation 11. At church the matter was also table after some rumour mongering corruption 12. As a result damages for defamation judgment was then passed in our favour. the article was not defamatory when they, as seasoned involvement imputing they were not even repentant. in town I was also mocked by way of whistling by who knew me and the association was pleasing to them as they thought I had been a man of and The Defendant was however adamant and insisted at large. Being a policeman I am supposed of crime when I am one of the persons to be an icon of crime-free to curb crime was so damaging. presented I was tough in the execution of. damage to our reputation corruption. When walking those at Nando's, ridicule against me from workmates, workmates and the city of to a person when it is not true amounts to defamation. mu news koma ndi trash tu" translated and costs of the actin. The Defendant to him that I was not involved person or that a complaint did not even apologise of the defamatory article Sub inspector Shadrick Topola as 'btother Y'?U have to have to explain about my involvement in of the said article or complaints which the article publishers, we have suffered I also explained ought to know that complained me as a corrupt by the article as presented in the police. and therefore claim between of my duties. criminal charges and marked. It shows me and all reputation and the He was surprised that he could be in in any corrupt activities. He Page I 2 They should have known this. 13. The court even found that there was no reason whatsoever the article. justification for the Defendant's action. 14. We �here/ore pray that we be compensated appropriately costs of the proceedings. It is clear therefore that there was not even a slight why our faces were placed against for the humiliation and we suffered Dated this 1st day of June 2017 (signed) JEREMIAH MWAKA YOKA officer In cross examination, police Service, the publication. he was not holding after the article the pt Plaintiff confirmed that he is a police The 1st Plaintiff prior to the publication. was published. this position and that he remained in the Malawi Police was promoted The 1st Plaintiff is a senior officer officer after a The second Plaintiff also adopted statement his witness as evidence in chief and it states: 1. I am EMMANUEL MZANGA information within herein 2. The information my knowledge relates and the information. weekend papers particularly to an article the weekend of published which the Defendants 12th to 13th November 2011. in one of their the 2nd Plaintiff in this matter and I make this statement from the 3. I have been sergeant a police from the year 2000 in October. to any wrongdoing however for some time, having worked with the Malawi Police in any issues During this period, corruption. an article I was never involved that juxtaposed 4. The Defendant Service relating particularly published against thpt I was my face with a caption This was our cases. among the most complained not true and it gave the whole nation is one of the two biggest and that it was easy to investigate a wrong impression of me. newspaper Daniel Mbebuwa me to inquire in Bangwe to ask about the same issue. publishers who was then about the article. in Mulanje got I also got staying Subsequently how widely This demonstrates and their papers are read and circulated. Right here in Blantyre officers Nobody really kept asking believed the issue was also the me why I had kept it to myself was not about me that the article that I That was how my friend and called 5. The Defendant nationwide. to know of the publication a call from my sister the paper had been published same. At the office, a lot of fellow was answering and that I had nothing corruption charges. to do with it. 6. By this time of the year, I was running heard linking be openly viewed with ridicule a minibus transportation business. Fellow officers could my business success to corruption. It was a time of no peace as I was 7. Many people all the time. also knew me as a person for the Light of Life International who was very active Church. Administrator the word of God as found in the Bible. The bible story that it was hypocritical person. functions these duties thought condemns of me to hold such a position I was using such duties for The issue was a hot one at our church. were the organization to be doing the same at work. procurement, It actually of events, thinking at church. One of our teachings corruption. In fact I was the Church is the respect It was the people's for yet behind their back am a corrupt got so serious recruitment one of my considering and trust was lost in considering that I was my own gratification 8. I was troubled expressed on the Defendant's us either. to have to explain at the putting part. There was no assertion the Defendant were adamant surprise Instead that I was not answering and any corruption charges of our faces along with such an article. There was no apology about of truth of the defamatory statement that the words were not defamatory when it Page I 3 should have been clear to the defendant imputation defamatory. ough,t 9. As a result of a criminal This was so unreasonable of the said article I have suffered appropriately 'be compensated offence to have known or at least knew that the story had nothing on the part of the defendants to do with us. as a seasoned publisher on a person, which an a/legation damage to my reputation and therefore claim to and also pray for costs of the action. of newspapers of corruption that is, is that they considering for the defamation Dated this 23rd day of May 2017 (signed) EMMANUEL MZANGA In cross examination, of the church as he was removed the 2nd Plaintiff was receiving lost. the 2nd Plaintiff told the court that he did not continue as a result ofthe publication. as administrator of the church There were no physical but there were spiritual his work as administrator benefits that that he benefits SUBMISSIONS BY COUNSEL FOR THE PLAINTIFF for the Plaintiff filed written submissions where he argued that damages the court, before Counsel cited Cassell & Co v Broome {1972) AC 1027 where are said to be at large. explained to the feelings, the anxiety the phrase in these words: 'Quite and uncertainty or the reaffirmation of the truth of the matters obviously the award must include of the absence undergone complained in the litigation, of, or the malice factors of the defendant. computation is thus a figure process which cannot be arrived of assessing at by any purely damages where they are ... In a· matter at large is essentially objective Counsel for defamation Lord Halisham for injury apology What is awarded other words, of impression the whole and not addition.' -George Luhanga Damages are compensatory Cause Number 1144 of 2003. The aim is to vindicate distress, which the defamation Cause Number 1336 of 1998. hurt and humiliation in lilature v Nation Publication Limited & MBC Civil the Plaintiffs' has caused -Sheila the name and take into account Lozi v Millie B Jumbe Civil where it appears will be used to decide the extent the Defendant In Simpson v Robinson Several factors justification the injury. aggravate justification be malicious can be evidence an unreasonable of damages. well knew that For instance, he could not support {1848) 12 QB 511 where the Defendant was said to adequately of the plea at trial, Similarly, the Defendant's such a plea, does pleaded conduct to apologize 1910 at page 1235. unreasonable 16th Edition, failure Paragraph plea of but gave no evidence and aggravation in support of the injury. of malice -McGregor on Damages, may also operate of the defamatory statement 15 M&W 319 it was held that in order to show the extent as an aggravating factor. v Mia/I (1846) of the publication The extent In Gathercole that may have been done to the Plaintiff of any place where any copy of the libel circulation. There newspaper Company (1896) 2 QB 148. is no need to give detailed evidence that is well known to the court or the jury; Whittaker by a libel has appeared in a newspaper, you for the purpose of any mischief have a right to give evidence of showing the extent of the of a of the numbers of the circulation Post Newspaper v Scarborough conduct generally may be of essence The Plaintiff's con:,plaining worth of that reputation. of an injured a proper assessment reputation, The damage which the plaintiff to the issue of damages. of damages has suffered Since the Plaintiffs are of the a knowledge requires must depend almost entirely Page I 4 on the estimation plaintiff did not have any good reputation; ibid at page 1239. in which he was previously held. The court must therefore be made aware if the Counsel submitted to cases to support his prayer, namely: Cause Number 418 of 2007 where the court awarded •;� Rashid Nembo v Attorney Kl,000,000.00 involved General for defamation was about criminal • Shepherd Mumbo v imputation to a Plaintiff who was a public which was very damaging. of the Anti-Corruption Civil figure The Director the sum of K4,500,000.00 Plaintiff involved was awarded wide circulation of the publication. Bureau where in May 2016 the as damages for defamation in a case that and the defamation concluded with a prayer for each Plaintiff to be awarded and costs the sum of K6,500,000.00 Counsel of the action and assessment proceedings. SUBMISSIONS BY COUNSEL FOR THE DEFENDANT Counsel The submissions reached for the Defendant undertook to file his submissions on 19th June 2017 but failed to do so. the Court on 2l5t June 2017 and therefore could not be considered. THE LAW ON ASSESSMENT OF DAMAGES The High Court in Ngosi t/a Mzumbamzumba 370 (HC) set the basis for assessment of damages: Enterprises v H Amosi Transport Co Ltd [1992] 15 MLR 'Assessment that remains of damages is the amount or value of the damages.' presupposes ...... that damages have been proved. The only matter The rule is that prior to assessment, Yanu-Yanu the Plaintiff Co Ltd v Mbewe (SCA) 11 MLR 405. Even in the face of difficulties is not disentitled -Mkumuka v Mphande (HC) 7 MLR 425. proof of damage sustained damages, in assessing to compensation party has provided the injured - principle The cardinal in awarding can do it, the law will endeavour the injury was sustained damages to place the injured -Halsbury's Laws of England person in the same situation 3rd Ed. Vol. II p.233 para 400. is 'restitutio in integrum' which means, in so far as money as he was before This principle was further where Lord Blackburn said: enunciated in Livingstone v Raywards Coal Co (1880) 5 App Cas 25 at 39, ' ... where any injury reparation who has been injured he not sustained you should is to be compensated as possible as nearly or who has suffered, by damages, get at the sum of money which will put the party in the same position as he would have been in had in settling the sum to be given for the wrong for which he is now getting his compensation or reparation.' to be the direct general damages and special natural The law distinguishes as the law will presume of. Special course -Stros Bucks Aktie Bolag v Hutchinson consequences, the court considers -McGregor suffer on Damages p23 para 1-036. damages, on the other hand, are such as the law will not infer from the nature of the if the loss is one which any other claimant (1905) AC 515. In determining the natural in a like situation will damages or probable as follows consequence -general damages are such of the action complained Page I 5 (Mal) Limited adduce evidence and must also be strictly pleaded damages must be specifically Special Freight 16(2) MLR 521 (HC). A Plaintiff Services must therefore alleges spe�al damages 14 MLR 516. or facts which give satisfactory filed by the Plaintiff to h_ave incurred. Where documents are not awarded [1993] proof of the actual fail to meet this proof then Ltd [1991] Ltd v Malawi Railways loss he or she strict proved -Govati v Monica damages special who claims -Wood Industries Corporation compensation Commission what the plaintiff is impossible, (1956) to awarding AC 185. Since it is difficult figures conventional v Gourley loss, courts should get is fair and adequate to assess damages perfect -British Although compensation involving monetary similar cases and also taking {1964) West v Shepherd has been battered regarded as giving resort into account the money value. AC 326 at 346 where he states: All judges and courts compensation.' and shattered. reasonable Lord Morris guided by awards made in in buttresses this contention frame that 'money cannot renew a physical can do is to award a sum which must be The court bears in mind the sentiments Personal Injury Cause Number 322 of 2014 (unreported): laid out in Steve Kasambwe v SRK Consulting (BT) Limited where the comparative cases have been rendered of the devaluation on the same level of award as was obtaining of currency because 'At times the court is faced with situations obsolete the court insisted situation, cost of living therefore previous and the rate of inflation follow not necessarily when deciding the new cases, cases.' the previous the court must take into account and inflation. It would not achieve cases. In such in the previous the life index, The COL.f rt must value of the currency. awards but award a higher sum than the and the drop-in i.e. justice if COMPENSATION was published An article 2011 headed 'ACB prompt on cases involving stating newspaper police against'. that they are the 'most complained in the Defendant's called officers' the Malawi News of November and bore the faces of the Plaintiffs 12-18 of the article, In the matter of Mwaungulu assessing content of the defamatory the defamation, time of the publication and comparable Kapanda & Hon Justice 2007. matter, the probable damages for defamation v Malawi News and another the court should take into account [1994] the nature and extent of the publication the plaintiff's standing, his reputation, consequence of the defamation, MLR 227 the High Court stated: factors: the following the aspect 'In the of republication of from the the defendant character the conduct of including and status, the nature of the defamation up to the time of judgment, suits and the declining awards in other defamation value of money.' See Hon Justice recklessness of the publication Chikopa v Malawi Broadcasting Corporation Civil Case Number 2837 of The guiding Mumbo v Director states: station 'When assessing in life of the plaintiff considerations in determining damages for damages was summarized in Shepherd Bureau Civil of the Anti-Corruption Cause Number 182 of 2015 where the court damages under this head we consider the coverage of the publicity, the and the effect on his daily life.' In light of this guidance, read. This is evidenced this court notes that the newspaper received by the call that theist Plaintiff is as widely from his sister circulated as it is widely all the way from Mzuzu. Page I 6 therefore newspaper The newspaper Defendant's borders. Further, rectifying the situation t had wide coverage. Further, coverage that ensures newspaper has online the Defendant's hrough an apology in the same newspaper. having noted the mistake made no attempt at there is very serious that the likelihood that its publications are read beyond rity of the damage is further compounded by the fact that the Plain tiffs hich at the core a ims to serve the Malawian po were persons under pulation. Malawi Police Service w The seve the employ of the Those who knew the Plain their trust in the Plaintiff information that the team should have been aware the ACB was prosecuting or i y churn out as well tiffs theref from them and lost ore could no longer expect so und service s. It is high time our publishing compan as use of pictures as in ies were cautious about the this case. The Defendant's ed itorial that displaying the faces of officers without veri in a suit such as the current one. nvestigating them would result fication as to whether In the Hon Justice January 2011 while in the Mumbo Case the Plaintiff was awarded the sum of K4,500,000.00 2016. These have given adequate MK3,000,000.00 each will adequately com Kapanda Case the 2nd Plaintiff was awarded the sum of MK3,500,000.00 in in May the sum of guidance to the court and this court believes s herein. pensate the Plaintiff DISPOSAL The Plaintiffs are therefore and costs of the action to be taxed if not agreed. awarded MK3,000,000.00 each, totalling MKG,000,000.00 for defamation Each party is at liberty to appeal Ordered in Chambers to the Supreme Court of Appeal within the requisite time frames. ,4t June 2017 at Chichiri, on the 23rd day . l/ Blantyre C�da la ASSISTANT REGISTRAR Page I 7