Mopani Copper Mines Plc v Bernard Mulembwe (APPEAL NUMBER 180/2018) [2019] ZMCA 305 (18 November 2019)

• J1 IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT LUSAKA (Civil Jurisdiction) - BETWEEN: AND APPEAL NUMBER 180/2018 APPELLANT BERNARD MULEMBWE RESPONDENT CORAM: CHISHIMBA, NGULUBE, SIAVWAPA JJA On: 25th September and 18t h November, 2019 For the Appellant: A. Gondwe, Legal Counsel, Mopani Copper Mines Plc For the Respondent: J. K. Kumwenda, Messrs I ven Mulenga & Company JUDGMENT NGULUBE, JA, delivered the Judgment of the Court Cases referred to: - 1. Inutu Etambuyu Suba v Inda-Zambia Bank Ltd Supreme Court Selected Judgment No 52 of2017 2. Attorney General v Marcus Kampumba A chiume (1993) Z. R.1 3. Wilson Masauso Zulu v Avondale Housing Project Limited (1982) Z . R. 172 4. Christopher Lubasi Mundia v Sentor Motors Limited (1982) Z. R. 66 5. Zambia Consolidated Copper Mines Limited v Ennedie Zulu, Supreme Court Judgment No 23 of2014 6. Mushemi Mushemi v The People (1982) Z. R. 71 7. The Attorney-General v Kakoma (1975) Z. R. 212 8. Nkhata and 4 others v The Attorney-General (1966) Z. R. 124 , J2 9. Lister and another v Hesley Hall Ltd (2002) 1 AC 215 or [2001] 2 All ER 769, 10. Rose v Plenty (1979) 1 WLR 14 11. Chief Bright Nalubamba and Zambia Co-operative Federation Limited v Muliyunda Wakun 'guma Mukumbuta (1978) ZR 75 Legislation referred to: l. The Criminal Procedure Code Chapter 88 of the Laws of Zambia 2. The Zambia Police Act, Chapter 1 07 of the Laws of Zambia Other works referred to: 1. Black's Law Dictionary, 8th edition, 2004, at page 1404 2. Hals bury 's Laws of England {2nd Edition). 1.0. Introduction 1.1. This is an app eal against the Judgment of the High Court d elivered on 29th August, 2018 in which the Honoura ble Justice Makubalo found in favour of the respondent. The court found that the r espondent was the owner of the 166 steel pipes that were wrongly seized by the a ppella nt and the State Police and ordered the restitution and delivery of the said pipes. 1.2. The court awarded the respondent damages for loss of use of the pipes for the period 7th April, 20 15 t o date of r estitution a nd delivery as well as damages for intrusion to the respondent's person and r eputation. The court went on to order that the a ppellant a nd the State render an adequate public apology for embarrassing and dehumanizing the r espond ent in the eyes of the public. J3 2 .0. The background to t he dispute in this Appeal 2.1. The brief background of this appeal is that on 8 th April, 2015, State Police attached to the Anti-Copper Theft unit at Mopani Copper Mines Plc, in the company of security officers from the appellant, entered the respondent's premises in Eastlea, Mufulira, with a search warrant which indicated that the respondent was in possession of 12 meters by 2 inch pipes belonging to the appellant. 2.2. A search was conducted at the said premises and 166 by 6 meter by 2-inch pipes were found, seized and transported in the appellant's truck to the place where State Police were operating from within the appellant's premises, for further investigations. 2 .3. While the steel pipes were at the appellant's premises, the Zambia Police Anti-Copper Theft team conducted investigations and concluded that there were no proper identification marks to prove that the steel pipes in issue belonged to the appellant. The appellant's security officers then asked the respondent to go to the plant to collect the steel pipes. 2.4. The respondent declined to collect the said pipes and the State Police proceeded to Mufulira Subordinate Court where they obtained a Disposal Order in which the Court ordered the return of the steel pipes to the owner. They were then left at Mufulira J4 Subordinate Court and the Court contacted the respondent to go and collect the steel pipes, but he refused to do so. 2.5. The respondent pleaded that as a result of the seizure, he suffered immeasurable loss and damages not only from deprivation of his property but also from intrusion of his personal reputation and sought- a. A declaration that he was the rightful owner of the 166 pipes seized by the appellants; b. A declaration that the appellant's acquisition of the 166 pipes without his consent was unlawful, illegal and inconsistent with the plaintiffs proprietary rights to the said pipes; c. Restitution and delivery of the private personal pipes wrongly and unlawfully seized by the appellants; d . Damages for loss of use of the pipes for the period 7 th April 2015 to the date of restitution a nd delivery; e. Damages for trespass to property; f . Damages for intrusion to the plaintiffs person and reputation; and JS g. An order for declaration of an adequate public apology for embarrassing and dehumanizing the respondent in the eyes of the public for acts done by the appellants, with costs. 2.6. In its defence, the appellant stated that the search warrant was valid, and obtained legally and that the search was conducted by State Police officers on duty. It was submitted that the officers seized 162 by 6-inch steel pipes from the respondent's premises and further that the appellant denied defaming the respondent in any way. It was contended that the seized pipes were taken to Mopani Copper Mines Plc's premises for further investigations by the State Police. 2.7. The Learned trial Judge analysed the evidence before her and found that both the State and Mopani Copper Mines Plc were liable in the way they conducted the search and seizure of the pipes and deprived the respondent of them. The Court a lso found the appellants liable for slander. 3.0. Evidence before the Lower Court 3 .1 . The respondent's testimony was that during the search and seizure at his premises, he was referred to as a thief and that when he followed up on the issue at Mufulira Central Police, he discovered I J6 that the State Police were not involved and that Mopani Copper Mines Plc security officers were in possession of the seized steel pipes. He contended that the pipes that were seized at his premises were 166 and not 162. 3.2. DW2, an investigator in the employ of the appellant testified that on 7 th April, 2015, he received information from the security manager that there were some steel pipes which were suspected to have been stolen from the appellant's premises and that they were in two locations. He informed the Anti-copper theft team and the following day, a search warrant was obtained from the Magistrate at Mufulira Subordinate Court and duly executed. He informed the Court that he, in the company of Mopani Copper Mines security officers accompanied State Police to search the respondent's premises. 4 .0. Decision of the lower Court 4.1. After the learned Judge considered the evidence and arguments by the parties, she found that the search warrant was obtained lawfully and that the seizure was lawful. The Court however found that there was no legality about where the seized items were kept and that the disposal order was disobeyed. J7 4. 2. In her reasoning, the learned Judge stated th at the provisions of section 118 of the Criminal Procedure Code 1 arid section 23(1) of the Zambia Police Act2 are explicit in th e way the State Police ought to conduct a search arid how items seized are preserved. In finding the appellarit liable, the learned Judge stated that after lodging a complaint properly to the State Police, the appellarit continued meddling in the investigations which should have been left to the State Police to haridle. 4.3. The Court accordingly found the State and Moparii Copper Mines Plc liable in the way they conducted the investigations after the seizure, thereby depriving the respondent of th e use of his steel pipes. Moparii Copper Mines Plc was found liable for damages for intrusion to the appellarit's person arid reputation arid for detaining the pipes from 8th April, 2015 to 16th June 2015 while the State was found liable up to the date of restitution and delivery. The Court dismissed the claim that the defendarit's acquisition of the 166 pipes without the consent of the plaintiff was unlawful, illegal arid inconsistent with the plaintiffs propriety rights arid the claim for damages for trespass to property. 5.0. Grounds of appeal to this Court. J8 4.1 Dissatisfied with the Judgment of the lower court, the appellant appealed to this Court advancing six grounds of appeal couched as follows - ( 1) That the learned trial Judge erred in law and in fact, when she held that a search was conducted by the State and Mopani Copper Mines Pie at the respondent's garage and about 160 plus steel pipes were seized. (2) That the learned trial Judge erred in law and in fact when she held contrary to the overwhelming evidence on record that the appellant, after lodging a complaint properly to the State Police, continued meddling into the investigations which must have been left to the State Police to conduct. (3)That the learned trial Judge misdirected herself and therefore, erred in law and in fact when she accepted the evidence from the respondent's witnesses that the appellant was making slanderous remarks about the respondent as a thief and as a consequence of which she held the appellant liable without revealing her mind or giving reasons for her position. Jg (4)That the learned trial Judge erred in law and in fact and contradicted herself when she held that the appellant, by keeping the pipes after verifying with their stores about any missing pipes was wrong and made the appellant liable to detain the pipes from 8th April, 2015 to 16th June, 2015. (S) The learned trial Judge erred in law and in fact when she totally failed to apply her mind to the fact that it was not up to the appellant to hand over the property seized by the State Police to the respondent when she held the appellant was liable for allegedly detaining the pipes from 8 th April, 2015 to 16th June, 2015. (6) The learned trial Judge erred in law and in fact when in her global discourse in this matter, made numerous findings of fact which were perverse, made in the absence of any relevant evidence and or upon misapprehension of the facts, which findings no trial court acting correctly could reasonably make. 6.0. The arguments presented by the parties 6.1. Th e parties filed heads of argum en t which th ey relied u p on at the hearin g of the a p peal. JlO 6.2. The appellant argued ground one and two together and contended that the findings of fact made by the Court below were perverse, made in the absence of any relevant evidence and upon a misapprehension of the facts. It was contended that the court made findings of fact which, on a proper review of the evidence on record, no trial court acting correctly could reasonably make. 6.3. Counsel argued that the search was conducted by the State Police and not the appellant who was merely a complainant and provided logistics to the State Police in the execution of their duties. According to Counsel, the Court below was wrong to find the appellant liable when all the appellant did was to provide transport for the State Police which had no transport. It was contended that the appellant did not meddle in the investigations, and neither did it take part in the search and seizure. 6.4. It was further argued that the trial Judge relied on the evidence of the respondent without evaluating the evidence of the appellant to ascertain the truth. According to Counsel, the trial court glossed over and unfairly disregarded vital evidence which was placed before it on behalf of the appellant while according undue weight and attention to the evidence of the respondent. Jll 6.5. Further, that the trial court did not attach due weigh t to the unchallenged evidence of DWl and DW2 who categorically stated that the a ppellant did n ot in anyway conduct a search at th e respondent's premises nor did it take control of the execution of the search warrant or order that the seized steel pipes be taken to its premises as found by the learn ed trial Judge. 6.6. It was further cont ended that the learned trial Judge fell into grave error when she chose to believe the evidence of the respondent at the exp ense of the evidence which had been proffered on behalf of the appellant without assigning reasons for its preference. 6.7. Counsel stated that where evidence is contentious like 1n this matter, it is the duty of the court to resolve the matter on the basis of the credibility of the witnesses. In s upport of this argument the case of Inutu Etambuyu Suba V Indo-Zambia Bank Ltd1 was cited. In this case the Supreme h eld as follows: "In our recent judgment in Teddy Puta v Ambindwire Friday, we made the observation that where evidence is contentious, it is the duty of the trial court to resolve the matter on the basis of the credibility of the witnesses. We are, indeed, alive to the fact that a J12 trial court should undertake a balanced evaluation of the evidence which is deployed before it on behalf of the cont esting parties. We would also reaffirm that whenever a trial court is confronted with conflicting evidence on contested facts it should reveal its mind or give reasons as to why it prefers a particular version of t he evidence as against the other." 6.8. Counsel argued that the trial court failed to resolve the matter on the basis of the credibility of the witnesses in light of the contentious evidence before it and that the court did not evaluate the evidence nor did it assess the credibility of the witnesses but only chose to believe the evidence proffered on behalf of the respondent. 6.9. It was further contended that the trial Court did not undertake a balanced evaluation of the evidence which was deployed before it and d id not give reasons why it preferred a particular version of the evidence as against the other when it was confronted with conflicting evidence. According to Counsel, the trial court made a grave misdirection and that this Court must interfere with the findings of fact that were erroneously made. J13 6.10. To support this argument the case of Attorney General v Marcus Kampumba Achiume2 was cited. In this case the Supreme Court held inter a lia that- "an unbalanced evaluation of the evidence, where only the flaws of one side but not of the other are considered, is a misdirection which no trial Court should reasonably make, and entitles the appeal court to interfere." 6. 11. We wer e also ref erred to the case of Wilson Masauso Zulu v Avondale Housing Project Limited3 in support of the argument that perverse findings of fact made by the trial court ought to be reversed. 6 . 12. In arguing ground two, the appellant contended that none of its officers called the respondent a thief and that the learned trial Judge came to the conclusion that there was evidence from PW5 that the appellant's officers made s landerous remarks against the respondent without any evidence to that effect. It was contended that the approach by the learn ed trial Judge to find the appellant liable for slander without revealing h er reasons, was erroneous and highly flawed. J14 6.13. It was further argued that the tort of slander was not pleaded by the respondent and that it was therefore incompetent and against the law for the learned trial Judge to hold the appellant liable as such . Counsel argued that parties are bound by their pleadings and that the court should have adhered to that. In support of this argument, we were referred to the case of Christopher Lubasi Mundia v Sentor Motors Limited4 in which it was held that- "The function of pleadings is to give fair notice of the case which has to be met and to define the issues on which the court will have to adjudicate in order to determine the matters in dispute between the parties. Once the pleadings have been closed, the parties thereto are bound by their pleadings and the Court has to take them as such." 6 .14. Turning to ground four, it was argued that the State Police had in their custody the seized steel pipes and that the appellant cannot be held liable for the decision by the State Police to keep the seized pipes at the appellant's premises where they were operating from. Further, it was submitted that after the State Police concluded JlS their investigations, they obtained a Disposal Order from the magistrate who had signed the search warrant and handed over the pipes to the court. 6.15. It was Counsel's contention that whether this procedure was correct or not, it is for the State to answer and not the appellant and that there is no evidence on record to indicate that the appellant kept the steel pipes from 8 th April, 2015 to 16th June, 2015 as found by the trial cou rt. 6.16. In relation to ground 5, it was contended that the trial court having found that the search warrant was legally granted, erred when it found that the appellant was liable for a llegedly over detaining the pipes. It was argued that it was not up to the appellant to hand over the property seized by the State Police to the respondent. To support this argument, the appellant cited the case of Zambia Consolidated Copper Mines Limited v Ennedie Zulu5 in which it was held that- "The learned trial Commissioner made findings of fact on the evidence which was before him. None of the grounds of appeal demonstrate that he was wrong to accept that the plaintiff was wrongfully J16 dismissed when he had done nothing wrong or that he was wrong to find that the appellants had caused the plaintiff's wrongful arrest and imprisonment. However, there is one aspect which we cannot possibly support the learned trial Commissioner. This was that because the appellants made an unwarranted complaint to the Zambia Police, they must be answerable for the beatings which the Zambia Police meted out on the plaintiff. Mr. Ndhlovu urged us to uphold a proposition that a complainant who reports someone to the Zambia Police should be answerable for any assaults committed by the Police. We cannot accede to such a proposition. In the first place, members of the public who happen to be complainants cannot be vicariously liable for any wrong doing by the Police in investigating or in purporting to investigate the complaint." 6.17. It was submitted that the law is settled regarding the liability of m embers of the public who make complaints to the Zambia Police. • J17 It was argued that the appellant, as a member of the public, made a complaint to the Zambia Police who in turn obtained a valid search warrant which was executed. That as such, the appellant cannot be held liable for making a complaint and merely providing logistics for the State Police to carry out their functions. 6.18. In arguing ground six, it was submitted that it is horrifying that the learned trial Judge made a finding of fact which does not exist anywhere in the appellant's defence filed in the court below. It was argued that nowhere in its defence did the appellant state that the seized steel pipes had to be taken to the respondent's plant for identification by experts and to check their records before taking them to the State Police's premises. 6.19. In conclusion, it was submitted that the learned trial Judge erred in law and in fact when, in her global discourse in this matter, she made numerous findings of fact which were perverse, made in the absence of supporting evidence and / or upon misapprehension of the facts. 6 .20. The respondents filed heads of argument 1n reply and in responding to the first and second grounds of appeal, it was contended that the learne d trial Judge was on firm ground when ,. J18 she held that the State and the appellant were liable for the roles that they played in this matter. It was submitted that an appellate court will not easily reverse findings of fact made by a trial Judge because of t h e advantage the trial court has of observing the demeanour and conduct of the witnesses before it. In support of this proposition, we were referred to the case of Wilson Masauso Zulu v Avondale Housing Project Limited (su pra). 6.21. It was submitted on behalf of the respondent that the learned trial Judge was on firm ground when she held that the search and seizure were conducted by the State and that the appellant cannot now avoid liability for its actions by placing the blame solely on the State. It was submitted that the evidence on record was that the appellant's security officers identified themselves as part of the group that had gone to the respondent's premises with a search warrant to conduct the said search and were actively involved. 6.22. According to Counsel, the evidence on record is that the appellant's security officers conducted the s earch and seizure as well as the investigation of the matter. In summing up the arguments on ground one and two, it was submitted that the J19 findings of fact made by the learned trial Judge were correct and accurate. 6.23. With respect to ground three, the respondent observed that the said ground of appeal was twofold, firstly, that there were no slanderous remarks made by the appellant's security officers against the respondent and secondly, that the trial court erred in law and in fact when it held that the appellant was liable for the tort of slander when the respondent did not plead for the same 1n their pleadings. 6.24. It was submitted that a careful p erusal of the record of appeal reveals that there is evidence which shows that the appellant's security officers did slander the respondent by calling him a thief. This evidence was proffered by PW2 and was never challenged during cross examination. Further, that there was no misdirection or error on the part of the trial court in coming to the conclusion as she did that the evidence of all the respondent's witnesses was not challenged in cross examination. 6.25. It was contended that the respondent did plead injury to his reputation under paragraph (f,) (g) and (h) of the statement of claim and that the submission m a de by the appellant is J20 contradictory in itself as the appellant argues in one breath that its officers did not utter any slanderous remarks and in another that the respondent did not plead injury to his reputation. It was submitted that the respondent in his statement of claim did plead slander and that the appellant in its defence did deny that any of its actions defamed the respondent. 6.26. With respect to ground four, it was submitted that as already established that the appellant was part of the entire process of search, seizure and investigation, in the same vein it provided logistics to the State Police to seize the pipes, it should have also provided logistics for the return of the pipes to the rightful owner. 6.27. It was argued that the evidence on record shows that the appellant's officers called the respondent to go and collect the steel pipes from its premises, but he declined to do so. Thereafter, the appellant and the State Police took the steel pipes to the Subordinate Court. That the mere fact that the search warrant was valid does not exculpate the appellant from liability as it inserted itself in the investigations which should have been left to the State Police. J21 6.28. On ground five, the respondent submitted that the appellant was merely repeating issues that had already been raised in the other grounds of appeal and that wh at the appellant is alleging as findings of fact by the trial court is a summary of undisputed facts. The respondent stated that the appellant had failed to meet the standards set out in the Wilson Masauso Zulu case, which are that- "The appellate court will only reverse findings of fact made by a trial court if it is satisfied that the findings in question were either perverse or made in the absence of any relevant evidence or upon misapprehension of the facts." 6.29. In summation it was contended that the entire appeal is a critique of the judgment of the trial court and not necessarily an appeal and that a mere critique of how the judge delivered her judgment does not amount to an appeal. The respondent prayed that the appeal be dismissed and that he be awarded costs. 6.30. At the hearing of the matter, both Counsel submitted that they would rely on the grounds of appeal, and the heads of argument. 7 .0. Decision of this Court J22 7 .1. We have considered the a rgumen ts and submissions by Counsel including the judgment of the High Court. The cardinal issues that this appeal raises are whether- ( 1) The search for and seizure of th e pipes from the respondent's premises was conducted by the appellant or by the State Police; (2)The appellant and the State are liable for the restitution and delivery of pipes and whether the respondent is entitled to damages for loss of use of the pipes for the period running from 7 t h April, 20 15 to date of restitution and delivery; (3)The respondent is entitled to damages for intrus ion to the respondent's person and wh ether the respondent suffered slander at the hands of the appellant's officers and the State Police who went to his premises on the material day; (4)The respondent is entitled to a public apology for the embarrassment that he suffered subsequent to the search and seizure that was conducted at his premises. 7.2. In the case of Zambia Consolidated Copper Mines v Eneddie Zulu (supra), the Supreme Court held, inter alia that- • J23 "In the first place, members of the public who happen to be complainants cannot be vicariously liable for any wrong doing by the police in investigating or purporting to investigate the complainant." 7.3. The issue in grounds one and two is whether the appellant conducted the search at the respondent's premises alongside the State Police and whether its officers meddled in the investigations. A perusal of the lower Court's judgment at page J 14 indicates that the court made a finding of fact that there was a search warrant issued and dated 8 th April, 2015. Further, the court, in its judgment, at page J16 r eferred to section 118 of the Criminal Procedure Code 1 , which provides that- " Where it is proved on oath to a magistrate that, in fact or according to reasonable suspicion, anything upon, by or in respect of which an offence has been committed or anything which is necessary to the conduct of an investigation into any offence is in any building, vessel, carriage, box, receptacle or place, the magistrate may, by warrant (called a J24 search warrant), authorise a police officer or other person therein named to s earch the building, vessel, carriage , box, receptable or place (which shall be named or described in the warrant) for any such thing, and, if anything searched for be found, to seize it and carry it before the court of the magistrate issuing the warrant or some other court, to be dealt with according to law." 7.4. On page 63 of the record of appeal, the search warrant that was issued to Detective Inspector Muyambango, Detective S ergeant Mumba and Detective Constable Phiri is exhibited. The Police officers were part of the Mopani Anti-Theft team and they were tasked to follow up the steel pipes that were stolen from the appellant. The said pipes were suspected to h ave been concealed at the r espondent's premises , Mbwe garage, in Eastlea, Mufulira. 7 .5. The evidence of DWl is that the a ppellant complained to the State Police that it suspected that steel pipes were stolen from its premises. It was DWl 's evidence that after he obtained a search warrant, the Police went to the respondent's premis es a nd conducted the search and seizure. DWl empha sized in his • .. J25 testimony that the search warrant was executed by Zambia Police Officers and not Mopani security officers. The evidence on record is that the police officers who seized the pipes from the respondent's premises then took them to the appellant's premises where the Police Anti Copper Theft team operated from. 7 .6 . From the evidence highlighted above, we are of the view that the search and seizure at the respondent's premises was conducted by th e State Police whose names were clearly written on the search warrant. 7.7. We therefore form the view that the learned trial Judge misdirected herself when she found that the search and seizure was conducted by the State Police as well as officers of the appellant. The court further misdirected itself by finding that the appellant's officers meddled in the investigations and that the appellant's officers were in control and commanded that the seized items be taken to their premises. The case of Attorney General v Marcus Kapumba Achiume(supra), r efers. 7.8. We are of the view that the learned trial Judge's findings relating to ground one and two were perverse and made in the absence of relevant evidence and upon a misapprehension of facts. We • .. J26 accordingly reverse the said findings of fact. We further reverse the finding that the appellant meddled in the investigations and ordered that the pipes be taken to its premises. 7. 9. The third ground of appeal is whether the appellant's officers made slanderous remarks against the respondent that he was a thief and whether the appellant was liable for slander. Black's Law Dictionary,2nd edition defines slander as- "The speaking of false and malicious words concerning another, whereby injury results in his reputation." 7.10. Volume 28 of Halsbury Laws of England (4th Edition), pages 97 & 98, provides that "A plaintiff must give full particulars in the statement of claim in any action for libel or slander of the facts and matters he relied upon to support his claim for damages, including details of any conduct by the defendant which it is alleged has increased the loss suffered and of any loss which is peculiar to the plaintiff's own circumstances. In actions for slander for words not actionable per se, actual damages must be alleged in the statement of claim and proved. As much certainty and particularity will be insisted J27 on, both in pleading and proof of damages, as is reasonable having regard to the circumstances and to the nature of the acts themselves by which the damage is done." 7 .11. In the case of Chief Bright Nalubamba and Zambia Co-operat ive Federation Limited v Muliyunda Wakun'guma Mukumbuta11 the Supreme Cour t held that, "a party must plead all the material facts on which he means to rely at the trial". 7.12. The lower court's findings of fact on page 30 of the record of appeal is that the evidence of PWl, PW2, PW3, PW4 and PWS was to the effect that the appellant's officers made slanderous remarks against the respondent that he was a thief. A perusal of the record of appeal indicates that PWl, PW2, PW3 and PW4's testimonies were to the effect that the appellant's officers called the respondent a thief. However, the court's finding that the evidence of PWS was that the appellant's officers called the respondent a thief was not supported by the evidence. A perusal of the record of appeal, at page 134 shows that PWS was not even at the respondent's premises when the search and seizure occurred. 7 .13. From the evidence highlighted above, notwithstanding the fact that the lower court had the opportunity to observe the witnesses, J28 the evaluation of the evidence was unbalanced as the court even erroneously found that PWS stated that the appellant's officers called the respondent a thief when this was not the case. The evidence of DW2 was that no one called the respondent a thief at the time the State Police executed the search warrant. Regardless of this, we are also of the view that the respondent did not specifically plead the tort of slander in the pleadings before the lower court. As such, we opine that the learned trial Judge misdirected herself when she held the appellant liable for the tort of slander which was not pleaded by the respondent. 7.14. In the case of Mushemi Mushemi vs the People6 the court held that- "The credibility of a witness cannot be assessed in isolation from the rest of the witnesses whose evidence is in substantial conflict with that of the witness. The judgment of the trial court faced with such conflicting evidence should show on the face of it why a witness who has been seriously contradicted by others is believed in preference to those others." • .. J29 7.15. As was stated in the case of Attorney General v Kakoma7 that a court is entitled to make findings of fact where the parties advance directly conflicting stories, and the court must make those findings on the evidence before it and having seen and heard the witnesses giving that evidence. The court cannot base a finding on credibility on a general assertion that police officers will always deny allegations of assaults. We opine that the lower court's evaluation of the evidence on ground three which was unbalanced entitles us to interfere with the lower court's finding of fact that the respondent was slandered by the appellant's officers. We reverse the said finding of fact. 7. 16. Ground four and five are to the effect that the Judge of the lower court misdirected herself when she found that the appellant kept the respondent's pipes from 8th April, 2015 to 16th June, 2015. The evidence on record, particularly that of DW 1 is that the State Police conducted the search and seizure of the pipes and took them to the appellant's premises where the Anti-Copper Theft team of the Police operated from. As such, we are of the view that the lower court's finding to the effect that the appellant was liable for detaining the pipes was not supported by the evidence on • J30 record. The pipes were kept by the State Police at the premises of the appellant. On the authority of the case of Wilson Masauso Zulu vs Avondale Housing Project (supra) , we reverse the lower court's findings of fact accordingly. 7 .1 7. Further, as was held by the Supreme Court in the case of Zambia Consolidated Copper Mines Limited vs Ennedie Zulu (supra), members of the pubic who are complainants cannot be vicariously liable for any wrong done by the police in investigating a complaint. 7 .18. Ground six is that the lower court erred in law and fact when in her global discourse, she made numerous findings of fact which were perverse and not supported by the evidence. We agree with the learned Counsel for the appellant that the court did make finding of fact which were not supported by the evidence or were made as a result of the court's misapprehension of the facts. 7 . 19 . In the case of Nkhata and 4 others vs The Attorney-General8 , the Supreme Court held that an appellate court will only reverse the findings of fact made by the trial court if the t rial court misdirected itself and wrongly evaluated the evidence In this matter to find the appellant liable for the search and seizure of the • J31 steel pipes, slander against the respondent as well as depriving the respondent of the use of the pipes. 7. 20. In the case of Lister and another v Hesley Hall Ltd 9 , the court held that- "a wrongful act is deemed to be done by a servant in the course of his employment if it is either- (a) a wrongful act authorised by the master; (b) a wrongful and unauthorised mode of doing some act authorised by the mast er. 7 .21. Further in the case of Rose v Plenty10 it was held "that an employer will be held liable for a wrongful act they have authorised or a wrongful and unauthorised mode of an act that was authorised. We are of the view that the State Police officers who went to the respondent's premises and seized the steel pipes acted in the course of duty. We find that the State Police are liable for keeping the respondent's pipes from the 7 th April, 2015 to the date of restitu tion and delivery of the said pipes. We accordingly order the restitution and delivery of the said pipes to the respondent. • J32 7 .0. Conclusion 7.1. Having found that the respondent did not suffer any slander, we are of the view that the respondent does not deserve a public apology from the appellant or the State Police who went to his premises to investigate a matter as they had reason to believe that stolen pipes were kept at the respondent's premises. We accordingly award damages to the respondent for loss of use of his pipes from the 7 t h of April, 2015 to the date of restitution and delivery of the pipes to be borne by the State and to be assessed by the Registrar. In the net result, the appeal is successful, cost to the appellant to be taxed in default of agreement. F . M. CHISHIMBA COURT OF APPEAL JUDGE ·····~ ·-· ······ ····· P. C. M. NGULUBE COURT OF APPEAL JUDGE M. J. SI APA COURT OF APPEAL JUDGE