Banda v Dangwe (Civil Cause 279 of 1993) [1993] MWHC 25 (26 May 1993)

A lll ol = Oe TS - IN THE HIGH COURT OF MALAWI PRINCIPAL REGISTRY CIVIL CAUSE NO.279 OF 1993 LEKE BANDA 2.0... cee ee eee ee ee eee eens PLAINTIFF - and - ROBERT DANGWE 2.1... eee ee eee eee ees LST DEFENDANT - and - MALAWL CONGRESS PARTY . 0.0.00. 0c0e0e eee. 2ND_ DEFENDANT MWAUNGULU, REGISTRAR Chizumila, Counsel for the Plaintiff OR DER This action arises out of a calumny on the 23rd of the ary, 1993 at Luchenza Township in Thyolo District during a » attended by the Life President. Every year around this *this has been going on for a number of years, the Life ident takes off some time to see produce in his own estates bifarms and those of his citizens. The Life President having wlared a referendum on political pluralism in Malawi, these Yo annual visits have been used by party stalwarts and rachiks to countenance support for continuation of the one ‘party system. In the course of this rally, the first endant, Mr. Dangwe, District Party Chairman in Thyolo, made “untoward remarks about the plaintiff. As 1s usual, with Llissuch visits, the ‘whvule ceremony, including these remarks, as. broadcast live on the local radio station, Malawi ‘oadcasting Corporation. lt was repeated in the evening and zed by the local daily and weekly papers. The power of » particularly in a country like ours, where there 185 no 1Sion, means that quite a sector of the national gation, and I would think, a sizable of the international unity, had the broadcast message. ae The calumnious statement is in Chichewa: "Aleke Banda ana hotsedwa Ntchito ku Press chifukwa anabako ndalama'"'. The tH ation is: "Aleke Banda was dismissed from Press Holdings Limited because he stole money there". The statement alleges a cr al offence punishable with imprisonment of up to 5 years, aS Simole theft, or 14 years, if theft by a servant. When this statement was made the plaintiff was outside the ntry with others trying to explain the political situation “in, the country. Since he came back, there has been no attempt to retract the allegation. The first and second defendants have - ‘offered no apology. In fact, according to the plaintiff, virulent and vitriolic statements have continued to be made ‘against him by members of the second defendant. on the Llth of March, 1993 the plaintiff took out this HG: gainst the first and second defendants claiming aggravate d or exemolary damages for defemation. The defendants were. “served by post on the Llth of March, 1993. There was no notice? Of intention to defend. So on the 13th of April, 1993 the plaintiff obtained Judgement ain default of notice of ‘intention to defend. The judgment was interlocutory with damages to be assessed by the Master. Notice of appointment of assessment of damages was taken out on L5th April, 1993 setting the case down for 30th Anril, 1993. Notice of hearing was sent by post on the 15th of Avril, 1993. On 30th April, 1993 the Olaintiff avpeared. The defendants did not. I heard the evidence. The plaintiff's legal practitioner made written submissions. The words uttered by the first defendant at this particular political rally import or purport that the plaintiff ‘ woney at Press holdings Limited. If truce, as we have seen, the plaintiff committed a crime. If untrue, the first and second defendants are puilty of slander. The plaintiff has tried. to show het kis statement is antithesis or a backdrop from. -an'excelle », selfless and impeccable political career, used roniefly faa ‘the good of others, and incompetent and rable trail in business. The plaintiff wanted to show confidence and trust that the nation had in him is in : Dlaintiff told the Court that his political career sat an age where most of us would not, the age of 14. he was the Secretary of an organisation in Kwekwe of the Nyasaland African Congress. In Secondary School he was elgokes Secretary of the Southern African Students Association. QW ™ his was a political activist group among students. In March, e was detained by the Southern Rhodesia Government. He déported to Malawi. He joined a Trade Union Movement. He ‘WassEditor of the Union's Magazine "Mtendere pa Ntchito". He ‘became a member of Trade Union Congress which later introduced im. ‘to the political activities of Nyasaland. On 13th ‘September, 1959, when the Malawi Congress Party was formed, he was elected Secretary General. Orton Chirwa was elected President. In 1959 the plaintiff founded Malawi News) and became its first Mditor, SUMO RS oS Jd ‘When His Excellency the Life President was released from SGueiMori son, he and the Life President started Press Holdings The plaintiff was the first Managing Director because Secretary General of the Malawi Congress Party. & iz ie he plaintiff was a member of the first constitutional ‘alks that were held at Lancaster House in London and all subsequent constitutional discussions that led to independence in i954 and a Republic in 1966. fin the young nation that was being formed the plaintiff had.slots in tov Government and political positions. He was the first Commander of Malawi Young Pioners. In 1966 he was ~ appointed Minister of Economic Affairs which included the portifolios of Natural Resources, Trade and Industry and Works. In°1969 he was appointed Minister of Finance and Minister of nformation and Tourism. In 1972 he was Minister of Trade and In 1973 he lost the Cabinet and Party posts. According to him, he had visited Zambia. Because he was Secretary General of the Party, Zambian Newspapers speculated that he was successor to His Excellency the Life President. The article, according to him, had nothing to do with him. He nevertheless lostjhis government and political posts. Bln 1974 he was reinstated in the Party. He did not assume overnment or political post. He was appointed the first Deputy Chairman and Managing Director of Press Holdings Lin ‘ted. According to the plaintiff, Press Holdings limited was yn complete shambic. Tt could not produce accounts and had nowbudect. The company was re-organised after a consultancy that: was brought at his acpis. Press Group became a very important conglomerate with more than 30 subsidiaries investing in. 0 nking, insurance, oil, transportation and many others. But». oinm During this period the plaintiff was Chairman of several utions, National Bank of Malawi, the National Insurance , the Oil Company of Malawi, Air Malawi. He was also = Chairman of Commercial Bank of Malawi. he plaintiff had also some influence outside the Party, ment and business. He was, for example, the first or General of Malawi Broadcasting Corporation, was a of University Council, was Chairman of the Footbal] ation of Malawi, Malawi Finance Company, Finance ation of Malawi and many others. he plaintiff fell out of grace again in 1979. This led CO exit from Press Holdings. According to the plaintiff the onomy of the country was in bad shape because of soaring oilzp dices and drought. Liquidity of the banks was at 17 and cent for National Bank and Commercial Bank respectively, elow the prescribed 30%. This caused consternation among connected with financial and economic management. The Life President, who was Chairman of the Press Group of Companies, withdrew large sums of money from the account of Press Holdings in the banks for various purposes. These drawings adversely affected the financial stability of Press Holdings, the two commercial banks, Admarc and the whole economy . here was a discussion with all interested including the dinister of Finance, Mr. Edward Bwanali, and the then or of Reserve Bank, Mr. John Tembo. On the basis of discussions the plaintiff in his capacity as Chairman of Holdings sent a memo to the Life President advising the resident against these large drawings which were lly destroying financial management of these tutions. This did not go well with the plaintiff. He was ssed and detained two weeks later. He was also expelled the Party. he Chief Commissioner of Police then, Mr. Kamwana went to to tell the plaintiff that he had orders to detain the tiff although the Commissioner did not know the reason. s followed by two members of Special Branch who ‘gated him for two days to determine if he had committed Ohitical or criminal offence. They told him they had noth ng against him. The plaintiff nevertheless remained in detention as ordered. Subsequently, the Head of the Criminal Investigations and en came again and intensified the enquiries. They also bt find anything. He continued in detention until he was sed on 10th July, 1992. £ The plaintiff told the Court that he is back now to settle erevamp his businesses and mend his family. This is not y ely true though because he has come back into political because he is for change of the current one Party system. : s joined the United Democratic Front, another pressure group advocating for political pluralism. He is in the Executive Committee and he is the Chairman of the Campaign ‘tee. In fact, in February this year he was among the delégation of the Public Affairs Committee, an umbrella \isation of the Church, the United Democratic Front and piance for Democracy, another pressure group, to the United 1gdom as guests of Christian Council of Churches in Britain “Ireland. The delegation talked to various organisations including the British Government to drum up support for political pluralism. He and his colleagues gave interviews on : He is the only one who appeared on television. In i thatstelevision interview he informed viewers that the support >. forgone party system was plummeting as judged from the number 2 OL people attending rallies of the two protagonists. He said ~ thatthe Life President's rallies are not well attended. sdiately after these statements, the next political rally ded by the Life President of the Malawi Congress Party was Thyolo rally where the statements made by the first fendant in the presence of many Party stalwarts were uttered. L 1e 7) laintiff has referred to other derogatory statements made thereaftcr. He has not stated whether they were to the same effect that the plaintiff had stolen money from Press Holdings. oTHESevidence on subsequent statements is a bit imprecise, in my view. The plaintiff has, however, stated that he had no OLORY from the defendants. BP sectors I consider the submissions by Counsel on quantum of lamage s , I should mention that the sort of slander pleaded here ‘$#actionable per se. At common law a false accusation that had committed an offence punishable with imprisonment entitled the victim to damages, sometimes huge damages, without proat of any financial loss. Such an allegation threatened the vigtim, if acted upon, with imprisonment. Damages were, therefore, awarded without any consideration of financial Loss. Hellwig v. Mitchell (1910) 1 K. B. 609, 613. In this particular case the plaintiff is said to be a thief and would be entitled to damages without proof of any financial loss, harm having OF ax one to his reputation and fame. Counsel for the itiff, however, raised a number of factors in this ‘cular case, apart from the claim for exemplary damages, . IT must take into account as aggravating the damages. ‘The first point taken by the plaintiff's Counsel is that “plaintiff's standing in Malawi and abroad is beyond eae oach. The allegations levelled against the plaintiff put kance the perception of the people who know the plaintiff. ibmits that the estimation of the plaintiff has been ssly affected. The damages awarded should be able to nsate the plaintiff. I spent sometime trying to lay down achievements and the estimation in which the country, the apPres sident, the financial institutions and, I would add, Party held the plaintift. My assessment is that Lhe stiff was held in very high veneration. He 18 a man of reputation. This should be reflected in the damages 1| (Scott v. Sampson 1882 8 K. B. 491, 503). In this case quoted a a statement from Starkie on evidence which utifully illustrates the approach of the Cigar bs Loam forced eproduce it because 1 best expresses Lhe view point of Lhe "To deny this would",as 1s observed in Starkie on evidence, "to decide that a man of the worst character 18 entitled to the same measurc of damages with one of unsullied and unblemished reputation. A reputed thief would be placed on the same footing with the most honourable merchant, a virtuous woman with the most abandoned prostitute. To enable the jury to estimate the probable quantum of injury sustained a knowledge of the party's previous character 158 not only material but seems to be absolutely essential." To reduce a man of such impeccable record as the plaintiff bee 2>n shown or known to be to a thief would require an award would leave the plaintiff with such amount of damages as make him happy or satisfied with the sum of money awarded time he is reminded of me slander against him. If, as plaintiff has shown, he left Press Holdings because of a mict between the ee amnal interest and the President, 1t 18 Sservice to his reputation to be called a thief. Secondly, Counsel for the plaintiff has submitted that I take into account injury to the plaintiff's feelings. He wreferred to the remarks of Lord Justice Pearson in Mackerry Associate d Newspapers (1965) 2 K. B. 86, 104, 105: OO «@ "Compensatory damages 1n a case which are at large / may include several different kinds of compensations 7/.. the injured plaintiff. They may include not ply ual pecuniary loss or anticipated pecuniary los or any social disadvantages which result or thoug Ht selikely to result, from the wrong which has been done. they may also ineludé natural injuries to his feelings » natural grief and distress which he may have felt as having been spoken of in defamatory terms and if there has been anything of high handed, oppressive, insulting, or contumelious behaviour by the defendant which increases the mental being and suffering caused by the defendant may constitute injury to the plaintiff's pride and his confidence, those are proper elements to be taken adnto account in a case where damages are at large." 1 submitted that arrogance and callousness displayed by rst defendant in this case when he published the de amatory words, the total disregard and failure to apologize byethe: defendants, the obvious pain suffered by the plaintiff when he gave evidence before the Court, loudly proclaim the ication for this Court to seriously consider the injury plaintiff's feelings. He stated that it would nok be to ignore the obvious blow to the plaintiff's pride in ‘light of the long illustrious career at Press Holdings Limited. ‘It islegitimate to say that when a false allegation like the “oneiperpertrated is made it does spur a feeling of resentment and repulsion simply because it is untrue. There 1S more from the fact that it remains in the minds of people f retracted. More importantly, the statement was made Thirdly, Counsel has submitted that the extent of ication of the defamatory matter is a factor to be taken coount. In this varticular case the defamatory words were uttered on the radio, the only local radio. Radio covers _ and. reports to the whole nation. The publication, therefore, _ was) not only made in the presence of the thousands who usually attend’ the President's rallies, but to the whole radio Padatenee . It was repeated to the radio audience in the evi It was also published in the Daily Times, a daily | paper with a sizable circulation in the country. Counsel on Cole v. Mule (1846) 15 M & W 319. That was a case everal copies of the publication were multiplied and Wlated. I think the point in this case is that this ication came to a very wide audience as we shall see later Be ause this was a political rally on which the divide between party advocates and multi-party advocates is it was nded to get to a wide audience. Fourthly, Counsel submitted that in assessing damages the defendants’ conduct must be looked at. Counsel relied on hf « « v. Graham (1890) 24 QBD 53, 55. Counsel submitted that court is entitled when assessing damages to consider the of the defendants! conduct from the time the defamation published to the time when the verdict is given. The Court consider the conduct before the action and during the The statement of Lord Esher is correct. The only m in this case is that the plaintiff has not led evidence e conduct of the defendant before this action. He has not d evidence on how the defendant behaved after this ent. Admittedly, no apology was proferred, but this is a ent consideration. We will look at it later. On this same point the plaintiff's legal practitioner s that we must look at the intention of the party shing the defamatory words. He submitted that damages be enhanced where the defendant defames for personal spite or ill-will, and damages would be reduced if the ment was made just out of mere lack of care and deration. This was decided in Pearson v. Lamitre (1843) 5 700, 720. In giving evidence the plaintiff testified poll beegb ne statement was made simply because he, who was a member of, “Malawi Congress Party, has joined the fight for political : “pluralism. Sometimes the best way to shoot down an idea 1s to shoot, its champion. To that extent if the plaintiff is hampioning political pluralism anything that undermines him should be brought to the attention of the public to weaken the expoused. This, however, does not justify stating latory Matters. If the defamation was clearly motivated by SACY of the one party State and not carelessly made, Lib ae vates the damages in this case and the Court should take eocount. he plaintiff, however, further submitted that the dant made further publication of the defamatory remarks. submitted that the subsequent publication was evidence of se and this should aggravate damages. He prayed in aid the f Durby v. Cusley (185 6) 1H &N 1, 13 where Polock C. B. 'In one sense that may be so, but then the subsequent publication was evidence of malice and would, therefore, aggravate damages." lave a bit of problems with this submission. First, it has been shown that there were subsequent publications. If the subsequent publications are the re-broadcast by Malawi Br dcasting Corporation there must be evidence that this was meat the instance of the first and second defendants. Furthermore, the plaintiff's legal practitioner submits lack of apology increases damages to be awarded. He FF scsi eT ho Re =e 4 a d on the case of Simpson v. Robinson (1948) 12 K. B. SIL. l made a whole submission on this issue to explain the € and extent of apology. I don't think this 1S necessary aving been shown that the defendant did not offer any gy at all. —PEIaAs 0: Similar problems affect the fifth submission on guantum of damages. On this’ point the Legal Practitioner for the plaintiff says that the defendant has not mitigated damages. I istesee any reason for this submission in so far as the They have not shown up at the assessment of Consequently, the damages would be awarded in full taking into account all the circumstances of the case. Before I consider the question of exemplary damages, | should deal with another aspect of Counsel's submission. Counsel cited before me several cases to assist me in assessing damages. I have always understood it to be the law that damages for defamation are at large. Courts never have relied on aWards in previous cases. This was decided in Broome v. Cassell & Co. Ltd. (1972) AC 1027. In this case Lord Justice Hailsham, L. C., approved the words of Windeyer in Uren v. Fairfax & Sons Pty. Ltd. (1966) 117 C. L. R. 118, 150: "The variety of the matters which, it has been held, may be considered in assessing damages for defamation must, in many cases mean that the amount of a verdict is the product of a mixture of inextricable considerations." In other words the whole process of assessing damages where there are "at large" is essentially a matter of impression and not addition". s for defamation are not worked according to a certain a, neither is there reliance on conventional awards like done in personal injury cases. At page 1071 the Lord 6€llor said: This is why it is not necessarily fair to compare awards of damages in this field with damages for personal injuries. Quite obviously, the award must include factors for injury to the feelings, the anxiety, and uncertainty undergone in the litigation, the absence of apology, or the reaffirmation of the truth of the matters complained of, or the malice of the defendant. The bad conduct of the plaintiff himself may also enter into the matter, where he has provoked the libel, or BOY tes SNM 5rFOMRPY KE Cr QO fn be Pes where perhaps he has libelled the defendant in reply. What is awarded is thus a figure which cannot be arrived at by any purely objective computation. This 1s what is meant when the damages in defamation are described as -being “at large". syawards from Malawi and the United Kingdom referred to by Counsel for the plaintiff are, therefore, of no assistance. Finally, the legal practitioner for the plaintiff submits IT must award exemnlary damages in this matter. He relied Rookes v. Barnard (1964) A. C. 1129. He submitted that in Rookes v. Barnard there are three instances where ex emplary amages would be awarded, in particular he emphasized the nconstitutional conduct by Government servants. I have real oubt: where this category would apply in this case. It is bvious from Rookes v. Barnard and the subsequent case of ‘Broome v. Cassell & Co. that this category is very restricted. ‘refers in strict sense to servants performing government unctions. Lord Hailsham said: "The only category exhaustively discussed before us was the second, since the first could obviously have no application to the instant case. But I desire to say of the first that I would be surprised if it included only servants of the Government in the strict sense of _the word. It would, in my view, obviously apply to the POLUCE «a es bam 08 i alti almost as certainly to local and other officials exercising improperly rights of search or arrest without warrant, and it may be that in the future it will be held to include other abuses of power without warrant by persons purporting to exercise legal BULLOFILEYs «<eiaeus Io am not prepared to make an -exhuastive list of emanations of Government which might or might not be included." ite the recent amendment to the Constitution and Civil Procedure (Suits by and against Government and public officers) Act#the distinction between Government and Party still remains. A. Party groups people of Like minds with the sole purpose of electing people into Government. The Party is not Government. Government encompasses Central Government and local Government. Only:;those performing Government and public functions and exercise legal authority were envisaged by Lord Devlin and Lord Hailsham in Rookes v. Barnard and Broome v. Cassell. Lord Reid sayS.at page L087: BO "The first category is oppressive, arbitrary or unconstitutional action by servants of the Government. T should not extend this category - LAS «ne I say this with particular reference to the facts of this case - to the oppressive action by private corporations or individuals." "This distinction has been attacked on two grounds: first that 1t only includes Crown servants and excludes others like the Police who exercise governmental functions but are not Crown servants and, secondly, that it is illogical since both the harm to the plaintiff and the blameworthiness of the defendant may be at least equally great where the offender 1S a powerful private individual. With regard to the first I think that the context shows that the category was never intended to be limited to Crown servants. The contrast 1s between "the government" and private individuals. Local government 15s as much government as national government, and the Police and many other persons are exercising governmental functions. It was unnecessary in Rookes v. Barnard to define the exact limits of the category. I should certainly read 1t as extending to all those who by common law or statute are exercising functions of a governmental character." polated to Party enthusiasts and apparachiks who, though real influence on Government, are not performing functions governmental character. Counsel for the plaintiff submitted that the principle stated was applied to defamation in Broome v. Cassell & Thus Ls net correct. All their Lordships, Lord Hailsham, ord Chancellor, Lord Justices Reid, Morris, Diplock and Kibrandon, who gave the majority opinion and Dilhorne and ilberforce, who were in the minority proceeded on the second category of Lord Devlin's speech in Rookes v. Barnard. Counsel submitted that the first category applicd because the second defendant 1s the sole political party enshrined in the Republican Constitution. As I have said earlier, 1t is very “clear from the Constitution of the Republic that there is a distinction between the organs of the Government and the Party. sTheyfunctions of the two should not be mixed. There is, » however, validity in Counsel's argument that exemplary damages ~ -should be awarded in this case following the principles laid + Sadwnittin Rookes v. Barnard. ns ‘The case of Rookes v. Barnard, a decision of the House of » Lords, particularly the principles as laid down by Lord Devlin (witth’ which Lord Justices Pearce, Hodson, Evershed and Reid agreed, was made with good intentions. It was recognised before this decision that exemplary damages were awarded l2/.... What their lordships, particularly Lord Devlin, tried ‘in this case was, from the different cases which he eviéwed, to categorise and limit instances where exemplary ges should be awarded. The problem that followed that Sion, particularly in the common law jurisdiction, Jater in Court of Appeal, probably emanates from the fact that one fwas the mouthpiece of all the Judges present. At least ingihe United Kingdom itself the matter has been settled by Broome v. Cassel ‘& Co. confirming Rookes v. Barnard. tt at Othe r common law jurisdictions, however, have not welcomed ecision in Rookes v. Barnard and Broome v. Cassell & Co. ignificance of these two decisions of the House of Lords rmecedent and prescription for other common law dictions has been undermined by the decision of the Privy i] in Australian Consolidated Press v. Uren (1969) 1 A. C There, Lord Morris, delivering the judgment of the Board, sSed Rookes v. Bagriard on the development of common law in Australia. ~ Newzealand and Canada have also bypassed Rookes v. Barger’. This immediately raises the question whether Rookes Barnard should be followed in Malawi. --In Rookes v. Barnard the House of Lords deci ded that exemplary damages would be awarded in three circumstances: where there iS oppressive or arbitrary or unconstitutional actions by servants of the Government, where the defendant is out.to have profit over his wrong and where there is express V ‘sion by statute. The case before me is for slander with a pol tical motivation or advantage. The situation is not covered in the categories in Rookes v. Barnard. The second ti gory would have been the nearest in view of what I have said’ before in the first category. There is nothing, however, evidence to suggest that there was any material gain. “to Rookes v. Barnard, however, the situation was quite fferent. Exemplary damages were widely awarded. This was recognised even by lord Devlin in Rookes v. Barnard for at page 410 he said: “T am well aware that what I am about to say, if accepted, sy impose the limits not hitherto expressed on such awards iE and that there is powerful, though not compelling, pp selene ey for allowing them for a wider range." In: Mayne and MacGregor on Damages 12th ed. (1961) the following passage appears at paragraph 207: “Such damages are variously called punitive damages {| vindictive damages, exemplary damages, and even retributory damages. They can apply only where the conduct of the defendant merits punishment, which is only considered to be so when his conduct is wanton, as where it discloses fraud, malice, violence, cruelty, L3/...- > AC el WE OMT insolence, or the like, or, as it 1s sometimes pul, where he acts in contumelious disregard of the plaintiff's PUENTS ..seas néequestion before me 1s whether Malawi should adopt the situation before, Rookes v. Barnard and award exemplary damages “widely than was advocated by the House of Lords. It might be “important to look, therefore, closely at the case of Broome Vv. “3Cassell & Co. which was a case of libel. There was not much ado with the first and third categories. There were, however, indications from other members of the House who gave the majority opinion to have second thoughts on the scope of the second category. Lord Reid said: asnpzeny ow Sey "We are particularly concerned in the present case with the second category. With the benefit of hindsight I think I can say without disrespect to Lord Devlin that it is not happily phrased. But I think the meaning is clear enough. An ill disposed person could not infrequently deliberately commit a tort in contumelious disregard of another's rights in order to obtain an advantage which would outweigh any compensatory damages likely to be obtained by his victim. Such a case is within this category. But then it is said, suppose he commits the tort not for gain but simply out of malice, why should he not also be punished? Again I fully admit there is no logical reason. The reason for excluding such a case from the category is simply that firmly established authority required us to accept this category however little we might like it, but did not require us to go farther. If logic is to be preferred to the desirability of cutting down the scope for punitive damages to the greatest extent that will not conflict with the established authority then this category must be widened. But as I have said I would, logic or no logic, refuse to extend the right to inflict exemplary damages to any class of case which is not already clearly covered by authority. On that basis I support this category." eres § a econeeded that there was authority bo award damages where there was spite. He also had no logical reason for excluding spite. He was, however, prepared to award cxeplary damages where authority had covered it before. T think in the same breath he would be prepared to create authority if cifé@umstance arose. The Lord Chancellor and Lord Morris, who was part of the L4fiaan a Limkeed v. Uren, conceded that the second category which limited “punitive damages where there was a material or moneLlary adyan tare could be exvanded. They, however, felt that. the could regard spite, malice, contumely as aspects of aggravation and award accordingly without resorting to punit _ damages. Lord Diplock was loathsome to award punitive damages swhat he called the third category: "T see no reason for restoring to English law the anomaly of awarding exemplary damages in the third category of cases. If malice with which a wrongful act is done or insolence or arrogance with which it is accompanied renders it more distressing to the plaintiff his injured feelings can stiil be soothed by aggravated damages which are compensatory." A pT Rion: sn meatier or LW Same me mbers of the House justified the limitations created by Lord Devlin on the basis that what was awarded as cxemplary * damages was punitive, an aspect which could be heft tbo the : criminal law. This point is unnecessarily over-emphasizcd. Damages, even of compensatory nature, are in So many ways * punitive. This is so in matters of defamation where no real tangible injury exists. The common law even before Rookes v. Barnard recognised punitiveness in civil cases which were diametrically different from punishment in criminal cases. far exceed fines prescribed for certain offences. The harm not adequately covered by punishment in the criminal law: thought the sort of limitations Lord Devlin was trying to ‘he’said: "But the substantial criticism that can be made 1s recognised power to award exemplary damages 1s ~ Admittedly, in monetary terms punitive damages in civil cases in certain cases in civil actions might be very far reaching and introduce could only be made by the Legislature. At page 1109 that by his categorisation, the previously existing and ole restricted. Lord Devlin indeed appreciated the novelty LB] wees ‘damagés through a civil suit narrows the chasm, re-enforces res 5 ~integrum by pubting the parties status quo ante. Here lies the : difference bebween the purposes of criminal law and damages in [\ascivil law The balance is that a Court would invariably » consider the hemvetaaei ability to pay before awarding punitive damage Broome v. Cassell & Co., however, was not a unanimous » decision. Lord Justices Dilhorne and Wilberforce dissented. ‘Lord:Justice Dilhorne was critical of the categorisation. He of what he was doing when he said that acceptance of his views would "impose limits not hithertc expressed on such Ree” syns og 8 IT do not think that this should have or fould properly be done. Tt should have been left to the segislature." n coming to decide what approach should be taken in Malawivit might be important to consider the advice of Lord Justice Diplock in Broome v. Cassell & Co. and close up with a remark’ from Lord Justice Wilberforce which may have a Significant bearing on this case. Lord Justice Diplock recognised that it was the duty of that House to prescribe laws after ‘taking into account the norms in England. These norms reflect socio-economic develonments. He also, however, recognised that other common law jurisdictions were developing, and:at=that, differently from England. They also retain equal powefhato prescribe . The strong force of the common law, however, is its capacity to adapt to the changing needs of the society: pAb "The common law would not have Survived in any of those countries which have adopted it, if it did not reflect the changing norms of the particular society of which it is the basic legal system. It has survived because the common law subsumes a power in Judges to adapt its rules to the changing needs of the contemporary society - to discard those which have outlived their usefulness, to develop new rules to meet new situations. As the Supreme appellate tribunal of England, your Lordships have a duty, when occasion offers to supervise the xercise of this power by English Courts. Other supreme Fappellate tribunals exercise similar functions in other countries which have inherited the English law at various atimes in the past. Despite the unifying effect of that inheritance upon the concepts of man's legal duty to his ‘neighbour, it does not follow that the development of “social norms in each of the inheritor countries has been identical or will become so. I do not think that ‘your Lordships should be deflected from your functions of developing the common law of England and discarding ““judge-made rules which have outlived their purpose and Rare contrary to contemporary concepts of penal justice “ain England, by the consideration that other courts in other countries do not yet regard an identical development as appropriate to the particular society in which they perform a corresponding function. The fact that the Courts of Australia, of New Zealand, and of L6/. several of the common law of Canada have failed to adopt the same political decision for exemplary damages as this Jouse did for England in Rookes v. Barnard affords a re-examining, but not for rejecting it, af, as I think it be the case, re-examination confirms that the decision was a step in the right direction - fLhoug sh it nay not have gone as far as could be : and functional nature of the common law entails “recognition of developments in the legal system to which the ‘deve lopment of the law must regard. One of those developments is: -thep press and Lord Wilberforce recognised the potential and potentate influence of the media. In trying to justify why Rookes - v. Barnard should not have excluded libel he said: nt is difficult to believe that Lord Devlin was ~adntending to limit the scope of punitive damages in defamation actions so as to exclude highly malicious “or irresponsible libels. At least if he intended to do so at a time when the media of communication are more ~powerful than they have ever been and certainly not motivated only by a desire not to make money, and since ‘elsewhere the judgment shows him conscious of the need to anction the irresponsible, malicious or oppressive use f power, TF would have expected some reasons to be @eeegiven." us Earlier he said: ‘Defamation is normally thought of as par excellence the tort when punitive damages may be claimed. It was SO presented in argument by Counsel for the respondent (arguing against punitive damages) and he as an acknowledged expert in the subject. Every ractitioner and every Judge would take this view." The mention of the power of the media of communication is not salutary. The media today is a very powerful institution not only in disseminating information but also in influencing policy decisions and change. I think that those who own the media ‘and those who use the media must recognise that it has immense power for good and for evil. They must, therefore, be discreet about how they use it and what information it Lf gage ow ~ 17 - disseminates. They bear the consequences. The media, » there fc re, in a developing country has a special significance H political mee els a can be manipulated by the powerful] to it por much good and harm. It is panied on of this “that our Zambian counterparts just tthe border, were reared "BS break ranks with Rookes v. Barnard and Broome v. Cassell & Co. The justification of such (departure was the ‘peculiar situation of Zambia as a developing country. It was recognised that in the context of modern commercial and industrial societies large corporations, powerful individuals and institutions wield so much power and » influence which can be used against the vulnerable and gullible. In eS ee Zambia Ltd. v. Kapwepwe (1973) ZLR 292, 301 Baron, D. C. J. said: ifs a "Be that as it may, Since I see nothing illogical in “the principle of exemplary damages in a civil action, it follows that I see no reason to limit the kind of case in which such damages may be awarded Furthermore, in “the context of modern commercial a industrial “societies, and in particular in the context of a young developing society such as ours, I see very positive ‘reasons for declining to lay down any such limitations. ‘The actions of large corporations may be every bit as hoowo oppressive as those of governmental or quasi-governmental ‘bodies; ..... Persons wielding power, whether or not they be persons in authority, must, particularly ina society such as ours, use that power with the utmost responsibility; it is therefore not merely proper but necessary that in cases where power is abused, either deliberately or recklessly, it should be open to the Court to award adiastneetl ary damages against the defendant in order to punish and deter him and to mark its disapproval of his conduct." said in Cobbett-Tribe v. Zambia Publishing Co. Ltd. “Zambia society is in a state of development, of much ess sophistication than that of England. Its two daily @newspapers are in a very powerful position. Daily news- papers, and no doubt other organisations and persons, are in a position to do great good and great harm. I see powerful reasons why the Court, in awarding damages, *=should have the power, where a person wantonly, ;maliciously or contumeliously does great harm, to give such damages as will] bring home to him that tort does not pay and will restrain him in the future from indulging in ‘Similar conduct.". hb LGf suns daily newspapers in Zambia is very true of n Malawi we give the utmost venerance to dee lei ons of thesHouse of Lords in England. In that sense Rookes v. Barnard t and: ‘Broome v. Cassell & Co. are very persuassive indeed > Their significance as precedents; however, is muleted, There are preblems with Rookes v. Barnard because the decision of that Court: was made by one Judge. Given that the decision was changing the law as previously understood, one would have thought all the Judges should have expressed their opnions. : Rookes: v. Barnard was, however, applied in the Court of Appeal - without question. Some of their Lordships who sat in Broome v. Cassell & Co. followed it without ado in the Court of Appeal. The.. Court of Appeal, however, doubted it in Broome v. Cassell & oo OO Co. “In the House of Lords the decision was not unanimous. The Lord Chancellor and Lord Justices Morris, Reid, Diplock and Kilbrandon upheld Rookes v. Barnard. Justices Wilberforce and Diplock dissented For the majority of their Lordships in Broome v. Cassell “& Co. the decision was a matter of policy. Rookes v. Barnard has not been warmly received in other common law. jurisdictions. It has just been rejected across here in Zambia. The question is how much is left of it that the Malawian Courts should have? I think in Malawi the proper course is to break ranks with Rookes v. Barnard. It is _ suggested that there was uncertainty before Rookes v. Barnard. There’was not. Tt was certain that exemplary damages could be - awarded widely. The sitution in Malawi is markedly different § from. England. The level of socio-economic development places some speople in realms of influence socially, economically and politically. The tendency to use these influences to excess are well known. I think that the Courts should retain that power: ‘to award exemplary damages in all cases where it 1s Pt ae The limitations envisaged in Rookes v. Barnard § Coming down to this case the words that were said by the District Party Chairman at Thyolo imputed that the plaintiff tai thief. It may be argued that the damage was not consequential at least for those people who know the plaintiff' Ss lire in politics, commerce and finance. It 1s to these’ people, however, where the plaintiff could be shunned following the revelation by the Districkh Party Chairman that thes 'plaint iff is a thief. The allegation here is of a crime punishable with imprisonment. Damages, and in most cases very exorbitant ones, would be awarded even without proof of damage. For:to impute an offence of the nature under consideration to a mansthreatens him with criminal investigations and prosecution LO/ses and imprisonment. As we have seen the plaintiff has an impecca record. The allegation, therefore, really undermgy sand demeans and diminishes his reputation. Worse still ‘was broadcast on radio. Tt must have been intended uld spread farther. Up to that time the radio was ya Government belonzing to the defendants Party. that i contro The Pang ipports a one partly State. The defendants said Lhese we well knowing, that they were said on the radio. Thre words be Pasa Sauwe et later. The media would report them. fe intended for a wide audience. lf the allegat eng were true, no doubt, it was in the interest of the current’, fitical process to come up with such a scintilating { The state omen b was false. The defendants were to advantage by cncleiPi Ala the iS regow, There was no effort to check the of the information. These words were being said litical opponent in order to weaken his political n Times Newspapers Zambia Ltd. v. Kapwepwe, Baron, “prepared to award exemplary damages against a newspapée yhich EEO a particular political party for publ taht. tbe! against an opponent. At page 301: “thug *Lord Reid would - and | agree that it should be so —- award exemplary damages eae a newspaper which supports a particular political party for a libel on a‘political opponent committed deliberately in order to Weaken his political position." BL Ge nat be obvious that I am prepared in this case to consider awarding exemplary damages. I am, however, guided by the d Fon in Rookes v. Barnard. In Rookes v. Barnard it © that the Court must first of all decide on the sompens ry damages after taking into account all the circumstance's of the case. If, and only if, the compensatory damages». .do“not punish the defendant should punitive damages be awarded,and‘ithe Court must award a larger sum. Taking into account. all’ ‘the circumstances that I have mentioned, I think the correct: ‘award is K300,000.00. I think this adequately compensates/'the plaintiff and punishes the defendants without recourse. to! an award of punilt.ive damages Chambers this 26th day of May, 1993, at Blantyre — - J ( STRAR