Minjex Enterprises Limited and Susaria Sastry v Mopani Copper Mines Plc (APPEAL No. 150/2020) [2023] ZMCA 366 (13 December 2023)

IN THE COURT OF APPEAL OF ZAMBIA APPEAL N o.150 / 2020 HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: -- MINJEX ENTERPRISES LIMITJ,!:D ~/ '-.. ::c~ ,, SUSARIA SASTRY . " ' , I I '\ "'-..,. / v"_,.,. c;,-, • • ·.' ~"'-.... > ... f' l ST APPELLANT 2ND APPELLANT / \ AND \ '. ,, ") ) MOPANI COPPER MINES PLC RESPONDENT CORAM: Siavwapa, JP, Chashi and Banda-Bobo, JJA. On: 21st April, 2022 and on 13t• December, 2023. For the Appellants: N / A For the Respondent: N/A JUDGMENT Banda-Bobo, JA, delivered the Judgment of the Court. Cases referr~d to: l . :\1ichael Chilufya Sata v The Posr New~paper Limited {1994) SJ 104 (SC) 2. ,Joyce v Sengptya (1993) 1 WLR 337 3. Zambia Publishing Company v Mwanza (No citation provided) 4. MTN Zambia Limited v Olympic Milling Company Limited (2011) Z. R. Vol. 5. ,Jack Needham Belmonte v Lubambe Copper Mines Limited and Others (C1\Z Appeal No. 111 /2018) 6. Subramanian v Public Prosecutor (1965) I WLR 965 t 7. Ethiopian Airlines Limited v Sunbird Safaris Limited & Sharn:£J's Investment Holding Limited & Another (2007) ZR 235 Legislation referred to: 1. Section 6 and 7 of the Defamation Act, Cap 68 of the Laws of Z£Jmbia 2. Halsburys Laws of England, 3rd Edition, Volume 24 3. Article 20(i) of the Constitution of Zambia 4. Rule 32(1) of the Legal Practitioners Prc>.ctice Rules, 2002, Statutory Instrument No. 51 of 2002. 5. Black's Law Dictionary, 10th Edition edited by Bryan i\. Garner 1.0. INTRODUCTION 1.1. This is an appeal against the J"oJcigrnent of ,Judge M . K. \-fakubalo delivered on 16th May, 2020 in the High Court for Zambia at Kitwe. 2.0. BRIEF BACKGROUND 2.1. The brief background to this matter is that the Appellants instituted process by writ or Summons, with a statement of claim, on 25· 11 Novcrnber, 2014, da:.rning the following reliers: l. Darnages for libel; II. Daniages for loss of business; ff!. Darnages for consequential loss; W. Further and other relief; V. Interest on awards above; and VL Legal costs. 2.3 The appellants, according to the ::.;tate1ner:t of clai1n. had on or about the 1st day of Novernber, 2002, entered ir:to a written .2 Memora:1clum of Agreement with a company kno,vn as Drager South i\frica (PTY) Lin1itecl to last for twelve months. They, under the Agreement, were to be the sole marketeers and sellers of products produced by Drager SoLLth Africa (PTY) Limited. 2. 4 The 2 11d Appellant alleged that as a co:1seque:1ce of the two letters sent by the Respondent to a third p,~rty, the ,\ppellants lost the contract. That Drager of South Africa tenninated the co::itract with the Appellants, a:1d as a consequence, the Appellants suffered loss of business. Further, that the words in the two letters were defa111atory, meant to disparage and i:1j,.lre the reputation of the Appellants. 2.5 ln their defe:1ce. the Respondent raised two statutory defences, vis. justification a:1d fair com1ne::1t, on the basis that what was contained in tl1e letters was true in fact and substance. That this was according to the results of the investigations of unethical busi::iess conduct by the Appe]ants, a:1d one of tl1e Respondent's senior officer in the Mine a:1d Safety Department. 2.6 The Respondent asserted that as a resu'.t of the investigations carried out, it was established that the i\ppel!ants vio:ated the Responde:1t's Code of Co:1duct an(~ Ethics for employees and SLlppliers, which according to them, necessitated the tt:rmination of the business relationship. 3.0 DECISION OF THE LOWER COURT 3.1 Afler (:uc consicieration of the evic:ence ac:ducec: by each party, the karned trial Court founci that the Appellants were not defamed by the ciefendant for writing to Drager South Africa [PTY) Limited. That the defendant was justified in wriring to Drager South Africa (PTY) Limited the truth of its investigations anc: finc:ings. The learned Judge thus found no spite or ill will in the Respondent discussing to Drager South Africa (PTY) Li1nitcd that it had cause to cease dealing with the Appellant for unethical conduct. On the totality of the evidence, the learned trial Judge was satisfied that the two defences raised coulc: stand. The Court founci for the defendant and dismissed all the Appellants' clairns. 4.0 THE APPEAL '+. ~ The Appellants, dissatisfied with the Judgn1ent of Honourab:e Judge l\-1ukabalo, have now appealed to this Court on the following six grounds: (1). The Honourable trial judge misdirected herself in both law and fact in finding that the two defences raised i.e justification and fair comment stand in the absence of any iota of evidence; (2). The Honourable trial judge misdirected herself in both law and fact on relying on evidence whose veracity was not tested before court; (3). The Honourable trial judge misdirected herself in fact by glossing over facts which clearly show that the libelous letters were maliciously authored by the Respondent before investigations were complete; (4). The Honourable trial judge misdirected herself in both law and fact on relying on untrue and unproven imputations; (5). The Honourable trial judge misdirected herself in both law and fact in misconstruing section 7 of the Defamation Act, Cap 68 of the Laws of Zambia when facts before her did not support the conclusion of the trial court; (6). The Honourable trial Judge misdirected herself in both law and fact in glossing over the fact that the Appellants , . . , J contract were terminated on account of the Respondent libelous statement and ergo was entitled to an award of damages. 5.0 ARGUMENTS IN SUPPORT 5 .1 Counsel for the Appellants filed heads of argument on 171h August, 2020 and argued grounds one, two, five, and six together. 5.2 Counsel submitted that the statutory defence of justification and fair comment as provided by Section 6 and 7 of the Defamation Act, Cap 68 of the Laws of Zambia is anchored on two tests: proving that the words in the statement are true, or where the words are not proved to be true, such words nonetheless do not injure the Plaintiffs reputation. 5.3 Counsel submitted that the Respondent did not lead any evidence before the trial court to prove that the authored statement inferred an allegation of corruption as being true. He contended that what the Respondent led in evidence was merely that investigations were conducted prior to the authored statement and thus it was justified. He argued that the Respondent did not prove that what was authored was in fact true. J6 5.4 Counsel contended that the authored statement required that the Respondent lay evidence to show that their allegations of corruption were not 111erely investigated b11t acted upon by way of furnishing the relevant authority with information they allegedly gathered. That those authorities equally acted upon the statement by commencing criminal proceedings, and that the Court found the Appellants wanting. That in the absence of the afore said, the statement contained only beliefs that wo11ld be detrimental to the appellants if not carefully conveyed. I le submitted that the first test failed and that the Respondent failed to prove the truth in the statement. 5.5 Counsel subtnitted that the second test considers whether the statement in fact inj11red the ,..\~pellants reputation or nol. Counse! sLtbmilled that the main objective of the tort of defamation was that it is meant to protect one's reputation based on the assun1ption that every individual is entitled to a good reputation and that a party is liable where what they author causes and or leads lo injury to ones' reputation. He referred us lo the learned authors of Clerk and Lindesell on Torts, 11th Edition on what amounts to injury to one's reputation. J7 5.6 Counsel submitted that the words in the Respondent's letter to Mr. Chriso Massyn, the export manager of Drager South Africa (PTY) Limited did cause that company to shun and avoid the Appellant, and that this was proved by the termination of the Agreement with the Appellants, citing the reason that it had been assured by the Respondent that the Respondent had proof of the Appellants' involvement in the alleged unethical business conduct. 5. 7 That as a consequence of the words complained of, the Appellants have suffered ridicule, shunning and resentment from a business partner of many years. This, he submitted, was extremely injurious to the Appellants and that this caused actual damage. In support of the foregoing, reference was made to the case of Michael Chilufya Sata v The Post Newspaper Limitedl and the authors of Halsburys Laws of England, 3rd Edition, Volume 24. 5.8 Counsel submitted that the trial Judge erred in law and fact by relying on documents that purported to be warn and caution statements whose veracity was not tested before Court or any other authority or tribunal. It remained a belief, and the court erred when it held that such evidence was true. JS 5.9 Therefore, Counsel argued, in the absence of testing the veracity of the said evidence, there was no justification of the letter to Drager South Africa (PTY) Limited and thi.s led to the injury to reputation of the Appellants and the subsequent termination of the contract with Drager South Africa (PTY) Limited. That the same letter was libelous and led to the termination of the contract. He prayed that grounds, one, two, five, and six of the appeal succeed. 5.10 Grounds three and four were argued together. It was submitted that it was clear from the evidence on record that the Respondent had not concluded its investigations before it authored the libelous letter to Drager South Africa (PTY) Limited. He contended that the Respondent had no mandate or authority to notify or inform Drager South Africa (PTY) Limited of its alleged findings and make a very libelous statement as to why it terminated the contract with the Respondent because that statement had the potential to sour the relationship between the Appellants and Drager South Africa (PTY) Limited. 5.11 Further that the Respondent had no right to write to its suppliers and remotely suggest that its supplier was corrupt in the absence J9 of having such allegations proved in court. He said that as a result of this, the Appellant lost a contract worth K12,000,000.00. He contended that the Respondent's act of writing to Drager South Africa (PTY) Limited was reckless, malicious and libelous. 5.12 Counsel reiterated that in the absence of a criminal report and or in fact an indictment or an actual conviction, the letter to Drager South Africa (PTY) Limited and the contents thereof were unwarranted and malicious and invariably led to the termination of the Appellants contract. In support of the foregoing, Counsel referred to the case of Joyce v Sengptya2. 5.13 Counsel submitted that addressing the letter to Drager South Africa (PTY) Limited in the absence of any evidence or proof of the corruption, meant that the letter was grossly malicious, whose effect was not only to render termination of the contract with the Respondent, but in fact affected all other contracts that were executed, by virtue of the business relation of the Appellant and Drager South Africa (PTY) Limited. 5.14 In support of the foregoing, counsel cited the case of Joyce v Sengptya2. Based on the above, counsel contended that the learned trial court erred by glossing over facts. That the said letter JlO was libelous and maliciously authored before the conclusion of investigations. That the Appellants were thus entitled to damages as was held in the case of Zambia Publishing Company v Mwanza3 and the case of MTN Zambia Limited v Olympic Milling Company Limited4, 5.15 Counsel contended that in the absence of proving the imputation in court, the learned trial Judge erred when she relied on the imputations, which according to the Respondent, were the reasons for ceasing its dealings with the Appellant. Counsel further contended that the learned trial Judge erred in reaching the said finding based on its reliance on untrue and unproved imputations. 5.16 He submitted that grounds three and four should succeed and the lower Court's decision should be overturned, and the Appellants be awarded all their claims in the statement of claim. 6.0 ARGUMENTS IN OPPOSITION 6.1 Counsel for the Respondent filed heads of argument on 22nd September, 2020. In addressing grounds one, three, five and six of the appeal, Counsel referred us to the contents of the letter Jll dated 18th December, 2013 appearing on page 126 of the record of appeal. . 6.2 Counsel submitted that the officials of the Respondent company held the belief that the documentary evidence on pages 81-116 of the Record of Appeal was sufficient to initiate a criminal prosecution in the Zambian courts of law. Further, that the Respondent believed that they had a right to hold opinions in line with Article 20(i) of the Constitution of Zambia. 6.3 Additionally, that the belief by the Respondents official was not unreasonable, because anyone who read the statement on page 81-116 is more likely to hold the same belief. 6.4 It was Counsel's submission that the evidence on page 193 to 205 of the record of appeal shows clearly that the letter dated 18th December 2018 appearing on page 126 of the record of appeal, which the Appellants have alleged to be defamatory, is true in fact and in substance. He referred to the case of Jack Needham Belmonte v Lubambe Copper Mines Limited and Otherss to show that on a defence of justification, it is not necessary to prove that the statement is literally true, but that it is sufficient if it is J12 true in substance and if the erroneous details in no way aggravate the defamatory character of the statement or alter its nature. 6.5 In addressing grounds two and four of the appeal Counsel referred to pages 195 -208 of the record of appeal and to the case of Subramanian v Public Prosecuto~ to illustrate what and when evidence is admissible. Counsel submitted that there was no objection to the evidence that was filed into court, nor was it challenged nor controverted by the Appellants. He cited the case of Ethiopian Airlines Limited v Sunbird Safaris Limited & Sharma's Investment Holding Limited & Another7 1n demonstrating that evidence which 1s not challenged or controverted is deemed as accepted. 6.6 Counsel submitted that the trial Court was on firm footing in considering the contents of the documentary evidence and oral testimony of the Respondent's witness in arriving at its decision because the evidence was not challenged or controverted. 6.7 Counsel submitted that this court ought to note that even the serious allegation against Katongo Nsofu, a legal practitioner of Katongo and Company appearing in paragraph 7(h) of the Respondent's defence on page 28-38 of the Record of Appeal was J13 not challenged or controverted. He submitted that the i\ppeliants did not file a Reply to the Respondent's defence. Counsel contended that these were serious allegations which could not J-1ave been ignored in light of the provisions of Rule 32(1) of the Legal Practitioners Practice Rules, 2002, Statutory Instrument No. 51 of 2002. 6.8 Counsel sub.:::itted that in ground four of tJ-1e Appellants arguments, they faiied ~o cite any evidence to support the ailegation that they lost a contract worth Kl 2,000.000.00. He contended t~lal the trut~l in this n1atter was that the Appellants never lost a contract worth the alleged amount. He contended t}iat the contract was fully performed by both partiei; as evidenced in the record of appeal frorn page 94 lines 21-24, page 181 lines 20- 22 and page 182 line 1-12. Counsel subcitted that the entire appeal lacked merit and ought to be dismii;sed with costs to the Respondent. 7.0 HEARING 7.1 At the hearing both parties and their counsel did not appear, and we reserved ,Judgment to be based on the filed doc· . .1ments. Jl<1 ' . 8.0 DECISION OF THIS COURT 8.1 We have considered the appeal, the evidence in the lo,l\ler court, the authorities cited and the heads of argument filed by learned Counsel for both parties. 8.2 We are of the view that all grounds of appeal can be considered together as they are interlinked. The major grievance by the Appellants is that the letters written by the Respondent imputed that the Appellants were corrupt and unethical in their business conduct. That this has injured their reputation and was therefore defamatory. The contention is that the two letters written contained defamatory \l\lords and the same were maliciously published to injure the reputation of the Appellants. 8.3 The Defamation Act Chapter 68 of the Laws of Zambia 1n section 7 provides that: "In an action for libel or slander in respect of words consisting partly of allegations of fact and partly of expressions of opinion, a defence of fair comment shall not fail by reason only that the truth of every allegation off act is not proved if the expression of opinion is fair J15 . ' comment having regard to such of the facts alleged or referred to in the words complained of as are proved," 8.4 The learned authors of Black's Law Dictionary, 10th Edition edited by Bryan A. Garner, define the tort of defamation as follows: - "1. Malicious or groundless harm to the reputation or good name of another by the making of a false statement to a third person .... 2. A false written or oral statement that damages another's reputation.'' 8.5 The learned authors of Halsbury's Laws of England, 4th Edition (Reissue), Volume 28, at paragraph 10 define what amounts to a defamatory statement as follows: "one which tends to lower a person in the estimation of right-thinking members of society generally or to cause him to be shunned or avoj~ed or to expose him to hatred, contempt, or ridicule, or to convey an imputation on him disparaging or injurious to him in his office, profession, calling or trade or business" (Underlining ours for emphasis). J16 8.6 In applying the above principles to the current case, we must say that we have combed through the evidence on which the learned trial Judge relied to support her findings that the Respondent was justified in writing to Drager South Africa (PTY) Limited the truth of its investigations and findings. She found no spite or ill will in disclosing to Drager South Africa (PTY) Limited that the Respondent had ceased dealing v.rith the Appellants for unethical conduct. She found that this was fair comment. She found that the two defences raised by the Respondent stood. 8.7 The Judgment of the lower court at page 161-162 sho,vs how the learned trial Judge clearly analyzed the provisions of section 7 of the Defamation Act as well as the authorities. It is clear that in section 7 of the Defamation Act there are two tests that are applicable, these being: (1). (2). Proving that the words in the statement are true; and If not, true they do not injure the Appellant's reputation. 8.8 We are of the view based on the evidence on record that the learned . Judge in the lower court was justified in holding as she did. The letter dated 18;h December, 2013 was true in fact and J17 substance. Pages 182 to 193 is clear evidence that was led, and this infers that the allegation of corruption was true. \Ve agree with the respondent that anyone reading the statements at pages 81 - 116 is more likely to hold the belief of corruption. 8. 9 Further, paragraph 8 of the defence at page 29 of the record of appeal shows that the matter was handled and concluded administratively, which in our view, the Respondent had an option to do. We are of the considered view that it is not every matter that is investigated that has to be reported and taken to court for it to be proved that indeed there was corruption. In our view, the Respondent was entitled to resolve this issue administratively. Therefore, the lower court was on firm ground in holding as she did. 8.10 As regards the issue of defamation, that the Appellants' reputation was lowered, we find that the court below was on firm footing in holding as she did, namely that there were no words imputed against the reputation of the Appellants containing untrue statements. \Ve are of the view that the veracity of the evidence was tested administratively and the Respondent found, through testimonies from Mr. Imasiku and others that the issue of the J18 I " motor vehicle as well as cash exchanging hands was true. In our vie,I\.', they did not need proof to be adduced in court. Further, all the statements obtained from the parties involved \l\.'ere nor challenged or disputed. 8.11 ln the letter appearing at page 159 of the record of appeal authored on behalf of rhe Respondent, addressed to the Appellants, it appears that the parties had a discussion. The letter clearly states that: "This office has conducted investigations into allegations of unethical business conduct ... we are in possession of evidence that we believe is sufficient to initiate a criminal prosecution in the Zambian courts of law. Thts course of action is presently being considered while our employee has resigned." 8.12 We find thar rhe reasoning by the learned trial Judge at page 162 of the record of appeal was on point. It cannot be expected that the Respondent could have kept that information to itself after having established, administratively that one of its employees had engaged in corrupt practices with the supplier of irs equipment which it obtained from a known source, as Drager J19 ' ... South Africa (PTY) Limited was the only known distributor at that point. We are of the view that the trial Judge cannot be faulted in her analysis of the issues before her. All grounds lack merit. 8.13 In conclusion, we find that this appeal has no merit and is dismissed with costs to the Respondent to be taxed in default. ········································· M. J. SIAVWAPA GE PRESIDENT . COURTO HI ····-~ ·-·········· A. M. BANDA-BOBO EAL JUDGE COURT OF APPEAL JUDGE J20