Kaliya v Times Television Limited (Civil Cause 153 of 2015) [2024] MWHC 26 (19 April 2024)

REPUBLIC OF MALAWI IN THE HIGH COURT OF MALAWI PRINCIPAL REGISTRY CIVIL DIVISION CIVIL CAUSE NO. 153 OF 2015 (Before Honourable Justice Mambulasa) BETWEEN: CHRIS BKALTYA............ ccc ce cce eee se esc eceeeeeeceeensseee cesses ce sees CLAIMANT -AND- TIMES TELEVISION LIMITED. ..................ccceseceeeseeseeees DEFENDANT CORAM: HON. JUSTICE MANDALA MAMBULASA Mr. Joseph Kamkwasi, Advocate for the Claimant Mr. Macmillan Chakhala, Advocate for the Defendant Mr. Obet Chitatu, Court Clerk ORDER ON ASSESSMENT OF DAMAGES MAMBULASA, J [1] [2] [3] [4] [5] [6] Introduction By way of a Writ of Summons issued on 14" April, 2015 the Claimant commenced an action against the Defendant claiming damages for defamation on the footing of exemplary damages and costs of the action. The basis of the claim is that a taxi driver named, Christopher Rajab, alleged that on 6 March, 2015 he was robbed around midnight by a person he identified as the Claimant. At that time, the Claimant was a police officer based at Chileka Police Station. The Defendant aired a video clip containing what Christopher Rajab had alleged. The matter went all the way up to scheduling conference. Trial was scheduled to take place on 20" December, 2022. The parties hinted to the Court that meanwhile, they would still be discussing to explore an out of court settlement. True to their undertaking, their negotiations were eventually fruitful. On 20" December, 2022 this Court entered judgment on liability for the Claimant against the Defendant with costs. The parties agreed that they were going to address the Court on the issue of “exemplary damages”. Costs of action were already assessed by this Court on 10" May, 2023. They were duly paid by the Defendant to the Claimant. [7] [8] [9] [10] [11] The task before this Court now is to assess damages that are payable to the Claimant by the Defendant following the entry of the judgment on liability by this Court as explained in paragraph 4 above. Evidence of the Claimant The Claimant testified that he was an attested member of the Malawi Police Service (MPS) and at the time, he was based at Chileka Police Station. On Wednesday, 4" March, 2015 he was on operation duties at Lunzu Trading Centre with his colleagues, Detective Inspector Nakhanje, Detective Sergent Chirwa, Detective Constable Rashid, Detective Constable Kadumba and Constable Captain. On that particular day, the former State President of the Republic of Malawi, Professor Arthur Peter Mutharika was coming to Blantyre from Lilongwe. Soon after the operation duties, the five mentioned in paragraph 9 above, excluding Detective Inspector Nakhanje went for booze. They boozed until 04:00 hours. They were at White Village Lodge from 19:00 to 21:00 hours. Then, they went to Mango Bar at Kameza for few minutes. They then proceeded to Grand Grill and Bar at around 21:45 hours. Then at 22:00 hours they went to Chez Ntemba where they spent at least an hour and later returned to Grand and Grill Bar at about 23:00 hours. They never left Grand and Grill Bar until 04:00 hours when they returned to Chileka. [12] [13] [14] [15] [16] [17] All that time, the Claimant was with his fellow police officers and he was the one driving them using his personal car, a Toyota Crown, registration number NU 3891. To his surprise, the same morning, he received a telephone call from a certain Mr. Snogga informing him that a taxi-driver by the name, Christopher Rajab, of Lunzu Trading Centre had been robbed at Nazombe Village in Lunzu. The victim alleged that 1t was the Claimant who robbed him and that the rumour of that allegation was spreading all over at Lunzu. By the time he got to the office, the allegation had already been reported to his office by the victim’s uncle, Mr. Tambula who was also a ward councillor for the Democratic Progressive Party (DPP) at Lunzu. The Claimant was then called by his officer-in-charge, the late Madam Walusa to explain the allegations of robbery levelled against him that had been reported to the office. The officer-in-charge also asked his colleagues whether indeed they were together the previous night and they all confirmed that fact. The Claimant and his four colleagues were requested by the officer-in charge to write reports which they did. Copies of the said reports were exhibited and marked as, “CK1”, “CK2”, “CK3”, “CK4” and “CK5” respectively. [18] [19] [20] [21] [22] [23] Having heard their side of the story, the officer-in-charge and her team went to Mlambe Mission Hospital at Lunzu where the victim had been admitted to, to interview him. By the time they got to the said hospital, the victim’s uncle, a Mr. Tambula used powers of his office to invite Malawi Broadcasting Corporation (MBC) Television and Times Television Limited (TTV) to arrange an interview and later on publish the unfounded allegations. The spokesperson for MPS, Mr. Peter Kalaya was amongst those that went with the officer-in-charge to interview the victim at Mlambe Mission Hospital. Mr. Kalaya pleaded with both MBC TV and TTV not to publish the story pertaining to the allegations as investigations were still underway. MBC TV took heed of Mr. Kalaya’s advice. However, TT V went ahead to air the story. It did so for almost 3 or 4 times from 6" March, 2015. TTV did not interview the Claimant for his side of the story. Mr. Tambula further reported the unfounded allegations to the Deputy Inspector General of MPS. In response, an investigation team known as Professonal Standard Unit (PSU) headed by Madam Wandale was sent to interview the Claimant and his four colleagues and carry out their investigations on the alleged robbery. [24] [25] [26] [27] [28] [29] [30] PSU concluded their investigations and found that the allegation made against the Claimant was untrue. It was a mere sabotage to his reputation which was meant to destroy his career in the MPS. The Claimant was surprised as to why Mr. Tambula was very much involved in the unfounded allegations when in fact, he never saw him in the act of committing the alleged offence. The Claimant’s reputation had been extremely damaged and all his workmates and the people in his society were regarding him as a dangerous criminal and they lost trust in him. People were regarding him as a murderer and were not willing to transact any business with the Claimant. His relations were also running away from him in fear and they stopped respecting him as they used to do. After hearing the false allegations, villagers grew angry to the extent that they planned to set his house on fire and damage all his property. His children were traumatized when they heard on TTV that their dad is a murderer and a criminal. It was a thing that they never expected from a loving father. The Claimant’s life and family had been in danger and his children were also greatly affected in terms of their performance at school since their friends were calling them sons of a murderer or young thugs. Most of the times, his children came home weeping. [31] [32] [33] [34] [35] [36] The allegations also affected his work performance since all the nght-thinking people lost trust in him and that news was all over the country as it was published on television. The Claimant was studying at Pact Accountancy Tuition College. All his colleagues at the college stopped associating with him from the time they heard about the unfounded allegations and many of them called him names such as “wachifwamba, wokuba, wothyola nyumba” and that led to his poor performance in class hence, he failed all his final three subjects. He has been shunned and treated with ridicule and contempt by right thinking members of the community since they heard the news that he was a criminal. The Claimant stated that he had been put through economic hardship by hiring a lawyer to represent him in these proceedings. He intended to open a security company called, Crizkal Security Services (CSS). On 4" February, 2015 he wrote Mr. Ceasar Fatch of Fatch Logistics securing a loan amounting to MK55,000,000.00 (Fifty-Five Million Malawi Kwacha) meant for capital. He attached and exhibited a copy of the loan application letter and activities and budget which were marked as, “CK6”. On 26" February, 2015 the loan was approved by the Managing Director of Fatch Logistics. He attached and exhibited a copy of the letter of loan approval which was marked as, “CK7”’. [37] [38] [39] [40] [41] [42] Upon hearing the false allegations that the Claimant robbed Christopher Rajab, Mr. Ceasar Fatch rescinded the loan agreement and never gave him the funds. He attached and exhibited a copy of a letter of loan agreement cancellation which was marked as, “CK8”’. The Claimant had lost many business opportunities as a result of the unfounded allegations against him. He lost promotion opportunities at his work place since his reputation had been damaged. He submitted that he be compensated damages for defamation on the footing of exemplary damages. Cross Examination of the Claimant In cross examination, the Claimant testified that he was the only witness for the assessment of damages proceedings. On the allegation that he lost promotion opportunities at his work place since his reputation had been damaged, the Claimant confirmed to the Court that he was promoted to the rank of Detective Sub-Inspector in the year 2019, well after the allegations that formed the basis of his case. However, he explained that some of his friends were promoted to higher ranks while he had been stuck due to the allegations that were levelled against him in the year 2015. This was the case because there were promotions every year in the MPS. [43] [44] [45] [46] [47] [48] [49] Asked whether the Claimant had any documentary evidence that showed that he was not promoted because of his case, he had none. Quizzed whether the Claimant had any documentary evidence that showed that he was suspended from his work because of the allegations that were made against him, he had none. Asked further whether the Claimant had any documentary evidence that showed that he was fired from his job because of the allegations that were levelled against him, he had none. The witness testified that through the PSU, his bosses verified that the allegations that were levelled against him were unfounded. He proceeded to work normally. On the allegation that the Claimant was ridiculed by his friends, he brought none in Court to testify to that effect. On the allegation that the performance of his children in school went down because of the allegations, the Claimant did not bring the children in Court to substantiate the allegation. Neither were the children available in Court to substantiate the weeping alluded to in his testimony. Asked whether the Claimant had any school report from Pact Accountancy Tuition College to substantiate the allegation that he failed the final three subjects and examinations because of the allegations that were made against him, the Claimant had none. He also did not bring any witnesses from the said 9 [50] [51] [52] [53] [54] [55] college to substantiate claims that he was called names such as, “wachifwamba, wokuba, wothyola nyumba”’. Quizzed whether Crizkal Security Services existed legally, the Claimant testified that it was not yet registered with the relevant authorities. The witness told the Court that he lost an opportunity of MK55,000,000.00 and according to what he wanted to do with that money, it was not a lot. Asked what his remuneration was in the year 2015, the Claimant testified that he could not remember. However, he admitted that the sum of MKS55,000,000.00 would have been able to pay him for 5 years or more at the time. The witness admitted that the loan required authenticity and proper documentation one of which was a certificate of registration of Crizkal Security Services, which he did not have. Asked whether anybody would advance such a huge sum of money to a legally non-existent entity, the witness testified that in his case, there was already an agreement to that effect. The witness told the Court that it was not Mr. Ceasar Fatch as a person but Fatch Logistics that would have advanced the loan to him. Asked whether Fatch Logistics was a bank or a micro-finance institution, the witness told the Court that it was neither of the two. It followed therefore, that it was not recognized as a money-lending institution by the Reserve Bank of 10 [56] [57] [58] Malawi and was not regulated. The Claimant stated that the regulation status did not matter to him because Mr. Ceasar Fatch had promised to lend him the money. Re-Examination of the Claimant In re-examination, the Claimant told the Court that he was promoted once, 8 years ago, and it was a promotion where every officer in the MPS was promoted to the next rank. If it was not for that promotion, the Claimant would have been on his previous rank. The promotion that he got is not something that he would be proud of. The Claimant explained that although he was not fired or suspended, he was told to wait at home for 2 weeks pending internal investigations and he was fearful of his fate and it affected him. It was a depressing experience to him and his entire family. The Claimant stated that he was the witness to his children’s weeping. He completed his testimony by stating that as far as his dealings with Fatch Logistics were concerned he did not fabricate anything. There was an exchange of communication between the two sides. The Law 11 [59] [60] [61] [62] The law is settled that damages are always in contention and are at large. They must always be assessed and determined based on evidence.! This case predates the Courts (High Court) (Civil Procedure) Rules, 2017. The Courts (High Court) (Civil Procedure) Rules, 2017 came into effect on 3" October, 2017. The Court would like to use this opportunity to interrogate the import of Order 7, rule 21 of the Courts (High Court) (Civil Procedure) Rules, 2017. It requires that where damages are claimed in a claim or counterclaim, the claim or counterclaim shall also state the nature and amount of the damages sought; including special, aggravated and exemplary damages, and the basis on which the amount claimed has been worked out or estimated. Even where proceedings are not defended and there is an application by a claimant for judgment in default or any other such application for ending a proceeding early, the Court should never be tempted to enter judgment based on an amount of damages sought and pleaded in a statement of case by a party as required by Order 7, rule 21 of the Courts (High Court) (Civil Procedure) Rules, 2017. A Court may, if satisfied on all the requirements for the entry of a judgment in default or any other such application for ending a proceeding early, enter it, but must, as a matter of principle and law, order damages to be assessed and determined based on evidence. The requirement under Order 7, rule 21 of the Courts (High Court) (Civil Procedure) Rules, 2017 1s meant to assist the defendant or defendants to have ' Standard Bank Limited -vs- Tourism Investment Limited & Euro Industries Limited, MSCA Civil Appeal No. 17 of 2018 (Unreported). 12 a full appreciation of the claimant’s case and whether it is one that they may consider settling or not based on the estimated amount in the statement of case. It is meant to promote early settlement of matters in line with the overriding objective of the Courts (High Court) (Civil Procedure) Rules, 2017. The rule was never meant to take the place of assessment of damages proceedings by the Court. [63] The purpose of award of damages is to as much as money can do it, place the claimant in a position as if they had not suffered the damage.” Stated differently, damages for any tort, defamation being one of them, are or ought to be fixed at a sum of money which will compensate the claimant so far as money can do it, for all the injury which he or she or they have suffered.? [64] In assessing damages for defamation, the Court takes into account a number of factors. In Mwaungulu -vs- Malawi News and others‘ the Court laid down some factors to be taken into account. They include; (1) the content of the article (defamatory material), (11) the nature and extent of the publication including the aspect of re-publication of the defamatory matter, (111) the claimant’s standing, his reputation, character and status, (1v) the nature of the defamation-either libel or slander, (v) the probable consequence of the defamation, (v1) the conduct of the defendant from the time of the publication of the defamation up to the time of the judgment, (vil) recklessness of the ? George Kankhuni -vs- Shire Bus Lines Limited, Civil Cause No. 1905 of 2002 (High Court of Malawi) (Principal Registry) per Katsala, J (as he then was). > Livingstone -vs- Rawyard Coal Company [1850] A. C. 25. 4 [1994] MLR 228 (HC). 13 [65] [66] [67] [68] [69] publication, (viii) comparable awards in other defamation suits and (ix) the declining value of money. In defamation, the wrongful act is the damage to a person’s reputation and the injuries he sustains may be classified under two heads. First, the consequences of the attitude adopted towards him by other persons as aresult of diminution of the esteem in which they hold him because of the defamatory statement. Second, the grief or distress or humiliation or annoyance caused by the defamatory statement to the claimant. With regard to the first head above, it is possible to prove pecuniary loss such as loss of practice or employment or inability to obtain fresh appointments. In relation to the second head above, damages may be aggravated by the manner in which the statement was made or persisted in and also by the conduct of the defendant. Where the defamatory statement was deliberately published in the expectation of increasing circulation and profits by an amount which would exceed damages awarded by way of compensation alone, exemplary damages may be awarded.° > Rookes -vs- Barnard [1964] A. C. 1129. See also Rev. L. Chikhwaza et al -vs- Now Publications Ltd ta The Independent, Civil Cause Number 1975 of 1998 (High Court of Malawi) (Principal Registry) (Unreported). 14 [70] [71] [72] [73] [74] The learned authors of Gatley on Libel and Slander® state that general compensatory damages for defamation serve three functions: to act as a consolation to the claimant for the distress he suffered from publication of the statement; to repair the harm to his reputation; and as a vindication to his reputation. These being aspects to which no monetary value can easily be attached, the damages recoverable are generally within the discretion of the court.’ In Shepherd Mumba -vs- The Director of the Anti-Corruption Bureau® the Court awarded the Claimant the sum of MK4,500,000.00 as damages for defamation. The award was made on 25" May, 2016. In Makonyola and another -vs- Blantyre Newspapers Limited’, the Claimants were awarded MK3,000,000.00 each. The award was made in the year 2017. In Makondi and another -vs- Blantyre Newspapers Limited" the 1“ Claimant was awarded MK11,500,000.00 and the 2™ Claimant was awarded MK8,000,000.00. The award was made on 12" October, 2020. Analysis and Application of the Law to the Facts ° (10 Edition) (2007). 7 Sam Mpasu -vs- The Democrat and others [1997] 1 MLR 323 (HC). 8 Civil Cause No. 182 of 2015 (High Court of Malawi) (Principal Registry) (Unreported). ? Civil Cause No. 41 of 2012 (High Court of Malawi) (Principal Registry) (Unreported). 10 Civil Cause No. 434 of 2016 (High Court of Malawi) (Principal Registry) (Unreported). 15 [75] [76] [77] [78] [79] [80] The Claimant contended that the Defendant has a national wide coverage. The Defendant aired and published a defamatory statement against the Claimant. The statement was aired for five consecutive times. The Claimant further contended that the public relations officer of MPS pleaded with the employees and or agents of the Defendant not to publish or cause to publish any story pertaining to the allegations until investigations which were underway, had been completed. However, the Defendant went ahead and published the allegations ignoring the request by MPS. The publication of the defamatory statement by the Defendant injured the reputation of the Claimant as a police officer. The Claimant was subjected to intense scrutiny by his bosses. That happened both at Chileka Police Station and later by PSU from the National Police Headquarters in Lilongwe. The Claimant submitted that publication of the defamatory statement by the Defendant also resulted in some members of the community shunning him. The Claimant lost a business opportunity in the sum of MK55,000,000.00 (Fifty-Five Million Malawi Kwacha) as a result of the publication. The Defendant has tried to impeach the Claimant’s position that he lost MKS55,000,000.00 on the basis that the Claimant’s security entity was unregistered and that Fatch Logistics is not a registered financial institution. However, what the Defendant has failed to acknowledge is the fact that whether or not an entity is registered, is not a barrier to one being granted a loan. In any case, the loan was to be advanced in three months’ time from the 16 [81] [82] [83] date it was approved giving time to the lender to conduct due diligence as regards registration status. The Claimant argued that it was open to the Defendant to subpoena Fatch Logistics in order to ascertain whether their loan approval was bona fide. This, they did not do and yet they raise it in submissions. In any event, if the loan offer was not bona fide why did they cancel it upon hearing the accusation against the Claimant which were published by the Defendant? All this points to the Defendant’s failure to acknowledge that its defamatory conduct caused the Claimant to lose business for which he ought to be compensated accordingly. The Claimant submitted that this was one of the rarest cases where exemplary damages ought to be awarded. He contended that the evidence is clear that the Police pleaded with the Defendant to hold on with the publication of the story as it was still under investigations. The request was made both to the Defendant and to Malawi Broadcasting Corporation (MBC) Television. Whereas MBC Television took heed of the pleading, the Defendant did not, with the hope to cash in on the rating and make more sales in adverts and circulation. There is no classic case, where a Defendant needs to be made aware of the consequences of not waiting for the conclusion of investigations before publishing a potentially career and life wrecking story than this one, so pleaded the Claimant. The Claimant finally submitted that considering that the Malawi Kwacha has lost value in recent years, he was of the considered view that a total sum of 17 [83] [84] [85] [86] MK62,000,000.00 would reasonably compensate him under all the heads prayed for. The Defendant urged this Court to adopt the United Kingdom approach in assessing damages for defamation by using the personal injury comparator. It lamented that Courts in Malawi have completely disregarded the trend in personal injury matters resulting in a scenario where awards for defamation in Malawi are excessively higher than awards for personal injury claims. The Defendant exhorted this Court to change course and set a precedent by introducing into Malawian jurisprudence a system where courts should at least make some comparisons to personal injury awards when assessing damages for defamation. On the Makondi decision cited by the Claimant in support of its position, the Defendant submitted that it is unjustifiably the highest award for defamation in Malawi up to now according to its research. It noted that the case was undefended both during trial and assessment of damages proceedings. As a result, the Court agreed with a submission for a significant figure, which it understood to mean exemplary damages. In summary, the Defendant urged the Court that the Makondi decision was a bad precedent as far as assessment of damages for defamation was concerned because there were facts that should have been challenged but were not due to failure by the advocate for the Defendant to do what was needful in those proceedings. In relation to the Mumba decision, the Defendant submitted that it involved an arrest, that is, restriction of liberty. It does not compare with the present 18 case where a false allegation was quickly investigated and the Claimant was cleared and returned to work within 2 weeks. [87] The Defendant then, invited this Court to take into account the following cases when determining an appropriate award for damages in this matter. In Rudolf Kachapila and 13 others -vs- Grace Chiumia & Attorney General (Ministry of Home Affairs and Internal Security)" the claimants commenced the action claiming damages for false imprisonment, defamation, assault and inconvenience, among other heads of claim. They were National Registration Bureau (NRB) employees who wanted to greet their line minister when they met at Mzuzu Shoprite. Instead, the Ist Defendant ordered their arrest whereupon they were paraded in handcuffs and humiliated before the whole city. The Court awarded each one of them the sum of MK1,500,000.00 for defamation. In the present case, the Claimant was neither arrested nor was his liberty interfered with in any way. [88] In Robert Tsenga -vs- Attorney General’? the Claimant was arrested on allegations of theft in full view of fellow employees and employees of other companies. He was awarded MK2,000,000.00 as damages for defamation. The award was made on 4"" November, 2020. "' Civil Cause No. 5 of 2018 (High Court of Malawi) (Mzuzu District Registry) (Civil Division) (Unreported). 2 Civil Cause No. 132 of 2017 (High Court of Malawi) (Principal Registry) (Unreported). 19 [89] [90] [91] In Maxwell Rex Mkusah -vs- Easy Loans Limited'* his motor vehicle was seized in public on the allegations that he defaulted on payment of a loan. He was awarded the sum of MK3,000,000.00 as damages for defamation. The award was made on 7" January, 2019. /'4 the Claimants were In David Majeweta and § others -vs- Attorney Genera rounded up by the Police in the early hours of 10" February, 2018 between 12:00 midnight and 2:00 a.m. The claimants were visited by the police in their respective homes and were arrested. They were taken to Mulanje Police Station where they were charged with the offences of proposing violence at an assembly and rioting contrary to sections 87 (1) (c) and 73 of the Penal Code. They suffered humiliation and their character was assassinated. The Court awarded the 1" claimant the sum of MK3,000,000.00 as damages for mediation. On exemplary damages the Defendant contended that they are intended to punish a defendant for a willful commission of a tort or to teach him or her that tort does not pay. They are not concerned with compensation of the claimant. A person is liable to pay damages on a punitive basis if he or she or they willfully and knowingly, or recklessly, peddles untruths for profits.!° In this case, the Defendant did not publish the defamatory statement for profit. '3 Civil Cause No. 126 of 2017 (High Court of Malawi) (Principal Registry) (Unreported). 4 Civil Cause No. 142 of 2020 (High Court of Malawi) (Principal Registry) (Unreported). '5 n7 above. 20 [92] [93] [94] [95] [96] The Defendant submitted that until Rookes -vs- Barnard exemplary damages were not clearly differentiated from aggravated damages but this case restricted them to three situations. First, where they are recognized by statute. Whether or not there are any examples of this, none applies to defamation. Second, where the wrong involves oppressive, arbitrary or unconstitutional action by servants of the government. In practice, the cases have tended to concern matters such as false imprisonment and malicious prosecution. As a matter of principle there seems to be no reason why this head should not apply to defamation provided there is some abuse of official power, as perhaps where a government official libels a person through official channels to bring pressure on him in a dispute with his department. Third, where the defendant’s tortious act has been done “with guilty knowledge, for the motive that the chances of economic advantage outweigh the chances of economic, or perhaps physical penalty”. The Defendant argued that mere negligence does not suffice for exemplary damages to be awarded. It cited Maxwell -vs- Pressdram Ltd'® in support of that proposition. Most importantly, to attract damages under the third category in Rookes -vs- Barnard the publisher must have acted in the hope or expectation of material gain, so contended the Defendant, citing John -vs- 16 [1987] 1 WLR 298 (CA). 21 MGN Lta"’ in its aid. It is not enough that the publisher is motivated by a desire to injure or ruin the claimant.'® The fact that the defendant is engaged in an activity aimed at profit (e.g. publishing a newspaper or a television show) does not of itself justify an award of exemplary damages. There must be something more specific than that; but it 1s not necessary that there should have been a detailed calculation.!? [97] Tosum up on the point, the Defendant argued that exemplary damages are not awarded willy-nilly or as a matter of course. They are awarded in the gravest and extremist of circumstances meant to punish a defendant. [98] Furthermore, a claimant cannot claim every loss on a defendant unless such loss is directly connected to the defendant’s action. The defendant must have foreseen that his actions would lead to such kind of damage.”° [99] The Defendant finally submitted that the Court should make an award that compares favourably to or with the other defamation decisions that it cited in support of its position. It prayed to the Court to award the Claimant compensatory damages only of around MK4,000,000.00 [100] There 1s no doubt in the mind of the Court that indeed the Defendant has a national wide coverage. It is also not in contention that the Defendant aired 1711997] QB. 586 at 618, (CA). '8 Hill -vs- Church of Scientology of Toronto [1995] 2 S. C. R. 1130. 19 Kiam -vs- MGN Lid [2002] EWCA Civ. 43; [2003] Q. B. 281. 2° The Wagon Mound [1961] A. C. 388. 22 and published a defamatory statement (libel) against the Claimant to the effect that the Claimant had been implicated in a robbery. Before the publication of the defamatory statement, the national police public relations officer pleaded with the Defendant not to air or report or publish the story as it was still under investigation. Contrary to that request, the Defendant published the story a number of times but certainly not five times as was submitted. The Claimant in his testimony told the Court that the story was aired about 3 or 4 times.”! The Defendant was required by good journalistic standards to at least balance its story by affording the Claimant the right to be heard on the allegation levelled against him. That, the Defendant did not do. [101] While the Court appreciates that ‘news is a perishable commodity’ there was no urgency to publish the story quickly without making basic checks or attempts to get the other side of the story. As it turned out, the victim had wrongly identified the Claimant as his attacker. That explains why the Claimant was eventually cleared by PSU. This Court agrees with the Claimant that this was a potentially career and life wrecking allegation. The Defendant had clearly thrown all caution to the wind in order to break a story that a police officer had been implicated in a robbery. The Claimant was thereby injured in his reputation for which he must be compensated. The Court will take into account the distress, hurt, annoyance and humiliation that the Claimant underwent. [102] Coming to the alleged loss of business opportunity to the tune of MKS55,000,000.00 this Court does not believe the Claimant’s story. No 21 See Paragraph 21 above. 23 representative from Fatch Logistics appeared in court to give evidence that the loan that had apparently been approved had been cancelled because of the defamatory statement published by the Defendant against the Claimant. The rule is that he who asserts must prove. It is the Claimant who alleged that the loan was cancelled because of the defamatory statement against him. He exhibited a letter from Fatch Logistics to that effect marked as “CK8”. The letter was allegedly authored by Mr. Ceaser Fatch. This letter should have been tendered in evidence by the author, if the Court was to believe its contents as being the truth. It is the same Claimant who should have made arrangements to call Mr. Ceaser Fatch to come to court and testify on his behalf about the alleged cancellation of the loan. The Defendant was under no legal obligation to subpoena Mr. Ceaser Fatch to testify on the Claimant’s behalf or prove the cancellation of the loan as it were. [103] Assuming that the contents of the letter were true, the funds would not have been immediately available for disbursement to the Claimant. Disbursement of the loan to the Claimant was dependent on some trucks being sold by Fatch Logistics. The letter was clear that the Claimant had to wait for 2 or 3 months. It is also possible that the trucks would not have been sold as arranged. Surely, a business venture cannot be mooted based only on one lender. Hence, the need to have a plan B or plan C to cater for any eventualities. None of this was demonstrated by the Claimant hence the difficulty that the Court had to believe this story. [104] In any event, the Claimant was cleared by PSU after the investigations were concluded in the matter. He returned to work within 2 weeks. The question 1s, if this business opportunity was real, why did the Claimant not bring the 24 information that he had been cleared by PSU to the attention of Fatch Logistics? [105] This Court also entertains serious doubts whether a serving member of MPS would be allowed to set up or register a private security company and run it without putting himself or herself in a position of conflict of interest with his or her duties under the Police Act.?? In short, the Claimant has not succeeded in proving pecuniary loss. [106] Turning to exemplary damages, this Court agrees with the observations made by the Defendant that this case does not deserve an award of exemplary damages. Exemplary damages are reserved for cases where a publisher’s t?? and from which behaviour is seen as so bad as to be deserving punishmen the publisher profits from. In his submission, the Claimant stated that the Defendant published the defamatory statement hoping to cash in on the rating and make more sales in adverts and circulation.” There is no doubt that while the Defendant exists to fulfill an important constitutional obligation, it also exists for profits. The Court however is not satisfied that the defamatory statement was published by the Defendant to cash in on the rating and make more sales in adverts and circulation and make profits. The linkage between the publication and the rating that would result in more sales in adverts and circulation leading to profits is too remote if truth 1s to be told. Consequently, the Court declines to award damages on the footing of exemplary damages. 2 Cap. 13:01 of the Laws of Malawi. 3 See, Law for Journalists by Frances Quinn (2" Edition) (2009) at 238. 24 See Paragraph 82 above. 25 [107] [108] [109] The Court will only award the Claimant compensatory damages for defamation. In doing so, this Court is not prepared to take the course suggested by the Defendant of using a personal injury comparator as is the case in the United Kingdom. Indeed, as conceded by the Defendant, in England, defamation is regulated by the Defamation Act 1996, which is not the case in Malawi. While it may be true that the Defamation Act 1996 mostly codifies common law, it is not a statute of general application that may be applied in Malawi. The Claimant did not parade his children, schoolmates or neighbours in court to prove what he alleged in his testimony. More specifically, that his children’s school mates or teachers bullied them at school because of the defamatory statement carried by the Defendant. He did not bring any witnesses to prove that his house was about to be torched or that he failed three subjects or that his performance at school went down following the publication of the defamatory statement by the Defendant. The Claimant did not bring to court any of his workmates who regarded him as a dangerous criminal or who had lost trust in him. The reason is obvious. His workmates would be expected to know that he was cleared of any charges by PSU. To push the pendulum further in this direction, it is also not clear in the mind of this Court which other people were not willing to transact any business with the Claimant as a result of the defamatory statement published by the Defendant. None of the Claimant’s relations who were running away from him in fear and who had stopped respecting him as they used to do were called as witnesses to prove this allegation. The Claimant did not produce any 26 documentary evidence that he had been put through economic hardship by engaging a legal practitioner to represent him in these proceedings. [110] Similarly, there was no proof that he had not been promoted in the MPS because of the defamatory statement. Actually, the Claimant admitted in cross examination that in the year 2019, he was promoted to the post of Detective Sub-Inspector, a fact that he had initially hid. Of course, the Claimant testified in re-examination that it was not a promotion that he was proud of as every officer in the MPS was promoted to the next rank. The Court notes that the Claimant did not qualify his testimony that he was promoted once. It would appear he wanted to paint a gloomy picture about his situation. [111] The fact of the matter 1s that the Claimant was cleared by PSU and his not being promoted as fast as he wished could not be attributed to the defamatory statement. It would be unfair and unjust to attribute every misfortune that befell the Claimant on the defamatory statement published about him by the Defendant. This Court would be the last one to encourage the Claimant or potential claimants to regard a successful libel action, as a road to untaxed riches.”° [112] It is common knowledge that the Malawi Kwacha has been eroded over the years from the time that the awards in the decisions that were cited by the parties were made. That will be borne in mind when coming up with an appropriate award in this matter. 25 John -vs- MGN Ltd [1997] Q. B. 586 at 611. 27 [113] This Court’s understanding is that the factors that were laid down in the Mwaungulu decision were never meant to be exclusive. Other relevant factors not stated in that case may also be taken into account by a Court when assessing damages. One such factor 1s the requirement to balance between the need to compensate a claimant for defamation and the Court’s duty to respect and uphold the human rights and freedoms enshrined in Chapter IV of the Constitution.2° Media freedom is guaranteed under sections 35 and 36 of the Constitution. Media plays a very critical role in a functioning democratic state. They are not called a fourth estate for nothing. It is extremely important that the awards that this Court makes should not result in media houses being totally financially crippled to the extent of closing down as it happened in the past. In these types of proceedings, Prof. Danwood M. Chirwa_ has passionately argued that this Court should not pay scant attention to freedom of the press.?’ [114] Prof. Danwood M. Chirwa is not alone in that crusade. Associate Prof. Fidelis Edge Kanyongolo is another. In Zhe Law of Defamation, Freedom of Expression and Freedom of the Press in Malawi*® Kanyongolo states the following in relation to amount of compensation: If courts award prohibitively huge sums as compensation for defamation, freedom of expression and freedom of the press are endangered. Firstly, the immediate consequence will be that the person or media organization against whom such 26 See section 15 (1) of the Constitution. 2” Human Rights under the Malawian Constitution (1* Edition) (2011) at page 359. 28 Students Law Journal Vol. 8, No. 1 (2008). 28 compensation orders are made will divert resources from the facilitation of expression to the payment of compensation to an individual. In extreme cases, newspapers or radio stations may be bankrupted out of operation by court orders for the payment of huge amounts in compensation. Secondly, huge compensation awards for defamation are likely to have a chilling effect on the readiness of people and media organisations to publish controversial materials.’ [115] Kanyongolo concludes with a plea in the following terms: Judges must give due recognition to the supremacy of the Constitution by giving due weight to something which is arguably more critical to the consolidation of democracy than the reputation of one individual, the right to freedom of expression and the right to freedom of the press. [116] Taking all relevant factors into account, this Court awards the Claimant the sum of MK6,000,000.00 as compensatory damages for defamation. The Court also awards him costs of these assessment proceedings. [117] Enforcement of this Order is suspended/stayed until after the expiration of 14 days from the date hereof.*° [118] Made in Chambers this 19" day of April, 2024 at Blantyre in Malawi. , La 72, M. D. MAMBULASA JUDGE 2° n28 above, page 26. 3° See generally Order 23, rule 9 of the Courts (High Court) (Civil Procedure) Rules, 2017. 29