Ng'oma v People's Trading Centre Ltd (Civil Cause 956 of 1994) [1996] MWHCCiv 20 (27 August 1996)

_, , .. ,.,· IN THE HIGH COURT OF MALAWI PRINCIPAL REGISTRY CIVIL CAUSE NO. 956 OF 1994 BETWEEN: Mrs J. Ng'oma - and - Plaintiff People's Trading Centre Limited . . . . . . . . . . . . . . . . . Defe ndant TEMBO, J Mhone, Counsel for the Plaintiff Hanjah ., _ja, Counsel for the Defendant Mtchera, Official Interpreter Katunga (Mrs), Recording Officer J U D G M E N T in in is this case , In this judgment, liabili,, -' :. company engaged the plaintiff standing with Mrs J. Ng'oma, long of in the City of Blantyre. The d efendan t a Radio Announcer the Malawi Broadcasting Corporation. She had at all material times been so employed by e Malawi Broadcasting Corporation at its head offices which are J situated at Chit. ',ri is a limited the retail and wholesale I sha l l hereinafter trade throughout · Malawi. refer to the defendant as "PTC"; and to the Malawi Broad cast ing is claiming exemplary damages Corporation as "MBC". Mrs Ng'oma its part, PTC from PTC for libel and costs for this action. the that has denied any publication of the alleged libellous letter was innocen tly and honestly effected on an occasion of qualified privilege without any malice whatsoever. therefore, prays to the Court that Mrs Ng'oma's claim for exemplary damages for libel be dismissed with costs. During the plaintiff, including Mrs Ng'oma, herself. The others were Mrs Edith Kaliati, Personal Secretary to the General Manager of MBC, I refer a s p·w 2 and Mr . Henry Ch i r w a , Geer a 1 Man ager of to whom The two witne sses for PTC were Mr. MBC, is referred to as DW1 and M. P. Mussa, PTC' s Debt Collector, who Mr. A. Bhana PTC's Financial Controller, who to as DW2. I heard three witnesses for On the gro u nds to whom I refer as PW3. the trial, is refered liability therefor PTC, on through DW1, had prepared and The following facts are not disputed by both Mrs Ng'oma and issued the alleged that PTC, PTC: The subject of the letter was indicated libellous letter to PW3. to be "Mrs Joyce Ng'oma's Indebtedness to PTC K3926.27 ". Then, the rest of the letter contained the following: "We advise that Mrs Joyce Ng'oma, an employee of your organisation, wh o is also the proprietor of Kapalikize Estates Limited, owes this Company respect of dishonoured cheques as detailed the above below:- sum in - 2 - Cheque No. Date 448761 448781 12.03.93 19.03.93 05.04.93 14 .04.93 Sub Total less Cash paid on 30.05.93 Amount 1545.00 1063.86 1157.08 1055.23 4826.27 900.00 3926.27 It times tendered in evidence and marked Exhibit P1. to recover the debt from Mrs Ng'oma We hav e contacted Mrs Ng'oma several to no avail. Letters were addressed to her on 17.04.93 and 20.01.94. is our belief this debtor is simply avoiding us. We therefore ask, if you could assist us in in vain." view of the fact that our recovery efforts have been The letter was marked private and confidential signed by DW1. It was It is further not disputed that the letter marked Exhibit P1 was prepared by typed letters for other employees of DW1 1 s secretary who also PTC. Upon receipt of that letter, PW3 personally opened it and then read it. He later ga ve it to PW2, his personal secretary, PW3 then inquired from PW2 if she was aware that Mrs for filing. PW 2 informed PW3 Ng'oma owned an estate or any bu s iness at all. then dictated a that she did not know anything about that. to above letter to PW2, in marked Exhib it P1. and informed PTC that he had checked with Mrs ,marked Exhibit P2, PW3 that Mrs Ng'oma of MBC about her alleged Joyce Ng'oma of MBC did not remember to have owed PTC the alleged debt an d further t hat Mrs Ng'oma of MBC did not kno\v the firm Kapalikuze Estates Limited and that she did not receiv e the two the lett er marked Exhibit letters referred to and mention ed P1. the n suggested that the matter be discussed amicably between Mr s Ng'oma and PTC for whi c h PW3 had copied that letter to Mrs Ng'oma. PW3 letter referred tendered to PTC's letter, in evidence ind ebte nes s response to PTC, In his PW3 in that she was if DW1 e ver knew Mrs Ng'oma personally. Conseque nt thereupon, Mrs Ng I oma phoned DW1, t o enquire f ram DW1 DW1 had replied that he did no t k now Mrs Ng'oma personally. Then Mrs Ng'oma informed the person who was accused of having been DW1 that as a matter of fact indebted to PTC she was not so indebted to PTC, and that she had not owned the Besides that, Mrs Ng'oma told DW1 Kapalikize Estates Limited. in that she did not have a bank account with the Commercial Bank Lilongw e and Bala ka. in the sum of K3926.27; It and upon is further not dispu , Exhibit P2 Ng'oma, DW1 was marked private and co nfidential. The letter was tendered evidence followi ng e ffect: action, that s he had no knowledge of any debt wi t h us. letter telephone conversation with Mrs from PW3 issued a letter to PW3 dated 8th April, 1994, which in the I appreciate your e ffort and prompt to advise that Mrs Ng'oma phoned me and stated Following that and marked Exhibit P4 whose contents were receipt of at upon I wish "While to - 3 - in question the Mrs J. Ng'oma conversation, I made further investigations and that corporation. letter could be apologised once I embarrassment caused thereof . please not reflect unfavourably upon her and any incovenience this might have caused." I have confirmed in your I would be very grateful therefore if my previous I personally to Mrs Ng'oma on 7th April, 1994 for my actions and the My actions on tl1is matte r should I sincerely regret -sincerely apologise to Mrs Ng'oma and void. as null the one treated is not again, for tendered Immediate ly after her telephone conversation with DW1, Mrs Ng'oma referred the matter to her legal practitioners who issued a letter of demand for exemplary damages for I ibel. That letter was dated 11th April, 1994, in evidence and marked DW-2-- is sued a rep 1 y thereto in the form of a 1 etter Exhibit P3. "We dated 14th April, 1994, which was to the following effect: hereby advise that our communication with your client's employers was made with to seek assistance in recovering a debt. Unfortunately, the culprit in 'Joyce Ng'oma' which led question and your client are both named confusion. A letter from her superiors clarifies the to some situation, and in this regard, a letter of apology was forwarded to your client's superiors together with a personal apology to your client. to cause any The letter was tendered in evidence defamation to your cl ient. 11 and marked Exhibit P5. the purpose of an enquiry and attempt At no stage was intention it our By DW1 during to her by However, on her part, Mrs Ng'oma disputes the fact that an their apology was personally offered telephone conversation . Mrs Ng'oma further contended that DW1 merely stated that the matter was a tricky one. Besides that, she also disputed the fact that a written apology was issued to her, as it appears to be suggested by the letter issued by DW2, the evidence of PW2 and PW3, Mrs Ng' oma thus, Exhibit P5. demonstrated that she had suffered damage to her reputation, in that PW2 and PW3 had clearly stated in their respective testimony in Court that , consequent upon their perusal of Exhibit P1, they no longer held Mrs Ng'oma in high estimation, in particular, with regard to her management of financial matters. Both PW2 and PW3 told the Court that inquiries of the type made by PTC were only in respect of made the business transactions guaranteed by MBC or entered into by members of staff with approval of MBC. the in instant case was an exception to those ordinary cases in that MBC in the arrangement of the business transactions was not involved alleged to have been entered into by Mrs Ng'oma and PTC. Hence PW2 and PW3 told the court that upon perusal of Exhibit P1, they no in regard to her management of financial matters. to PW3 relative to members of staff of MBC in high estimation, especially longer held Mrs Ng'oma inquiry The To the greatest extent, the evidence by I have to determine the claim of Mrs Ng'oma for exemplary it becomes I will make further and specific 1ich was adduced before me from judgment, a nd against PTC. some other evide libel in this the foregoing Where for to is which damages expedie nt, reference during the trial. - 4 - To begin with let me start by disposing of legal questions in regard to which the evidence of both Mrs Ng'oma and PTC is not It has been admitted that the letter, marke d Exhibit in dispute. P1, being the alleged libellous material, was puhlished to PW3 who subsequently further published it to PW2. It is not disputed typed by a secretary for DW1 who also typed that Exhibit P1 was a correspo ndence libellous through facie evidence of publication to the person to whom it was addressed: Warren -V- Todhunter 1836 7 C & P 860. Moreover publication of a libel to one person is suffic ien t: Per Lord Penzane in Capital and Counties Bank -V Henty (1882) 7 A. C. 765; and Malawi Railways Limited -V- Malange and Bhadurkhan Civil Cause NO. 196 of 1985 (unreported). employees of PTC. the post (1834) 1c.m. & R.250; Shipley Proof is prim a letter was for other -V- Warren that sent the course of his employment. Next, I have to note that DW1 was an employee of PTC at the issued the letter mark ed Exhibit P1 time in question and that he too has not been in liable for disputed . defamato ry words published by his agent with his authority or consent: Per Skinner CJ. -V- Press Furniture and in Madumise Joiner y Limited Civil Cause No. 502 of 1981 {unreported). that a principal This fact is trite law It is in If I decide I hav e now that question to determine, a question of law for me as a is capable of bearing judge, whether the letter marked Exhibit P1 a d~famatory meaning. the affirmat ive , then the question whether the letter marked Exhibit is defamatory of Mrs Ng'oma or not is a question of fact which P1 I have to determine as a judge of fat, as distinct from a judge of law: Madumise -V- Press Furniture and Joinery Limited (supra). I must ask myself, in relation to the letter m3rked Exhibit P1, t o p u b 1 i sj, o f a p e r s o n t n a t s h e owe s a c om p a n y K 3 , 9 2 6 • 2 7 w h et h e r in respect of dishonoured cheques; that suc h a person has for that purpose been contacted for several times to no avai 1; that the creditor, therefore, believes that such a person is simply some the debt; avoiding payment of other person to whom those words are addressed is being asked to assist in the recovery of the debt from the debtor in view of the fact that the creditor's efforts in trying to recover the debt a is capable of have been the statement of defamato ry meaning. are claim that defamator y; the plaintiff fai led to pay he r de bt s ; that the plaintiff could not pay her debts except under compulsion; is unreliab le and did not honour her debts; the plaintiff failed to pay the sum of K3,926.27; that the sum of K3,926 .27 was It rightly and properly due from the plaintiff to the defendant. is those words conveyed an extended meaning to those who read them, that is to say that, the plaintiff was dishonest and crooked. their ordinary meanin g, that that It has been pleaded further pleaded that, by way of an such publication, in those words , they in the circumstances the plaintiff among other things mean innuendo, in vain, that that that that in in thereof simply denied that it falsely accused the plaintiff of failing to pay i ts defence, PTC has in paragraph 1(a) In - 5 - states And as to the innuendo, PTC the allegation her debts. In paragraph 6 of its defence that the plaintiff was dishonest and crooked was fully denied. It is my considered view in letter marked Exhibit P1, I am satisfied that the words, and in their ordinary meaning are capable of a defamatory meaning pleaded in the statement of claim. Besides that, in the absence of a defence of justification, I am further satisfied that those in paragrapt1 words had conveyed 5(iii) of the statement of claim, namely that the plaintiff was dishonest and crooked. the extended meaning pleaded that that it was Having determined that the letter marked Exhibit P1 conveyed fact I further hold in a defamatory meaning, do This the plaintiff, Mrs Ng'oma? is a question defamatory of I must answer as a I am satisfied that judge of fact. which t h e 1 et t e r-·· m a r k e d E x h i b i t P 1 w a s a c t u a 1 1 y d e f a ma t o r y o f i n de e d Mrs Ng'oma. The letter was read by PW3, Mrs Ng'oma's superior at MBC and PW2, the Personal Secretary to Mrs Ng'oma's superior at MBC. Both PW2 and PW3 consistently stated before the Court that, in consequent upon perusal in high estimation question, especially in regard to her management of financia l matters. I do not think that the statement by PW2 and PW3 in that regard was merely rehearsed for purposes of securing damages for Mrs Ng'oma to be credible in witnesses that regard. PW2 Both, in fact believed longer held Mrs Ng'oma this case. they said libellous appeared them of they no in what letter the and and PW3 in by I -V- to Lorgsdon is made has succeed: Watt a corresponding interest or duty in Hunt -V- Northern Ry interest or a duty, This does not mark the end of the case. PTC has pleaded the I must now defence of qualified privilege and apology, which An occasion is privileged where the person who makes .determine. the communication has an legal, social or moral to make it to the person to whom it is made and the person to whom to it This reciprocity is essential for the defence of receive it. qualified privilege (1930) In the words of Lord Usher M. R. at page 191 ( 1891) 1K. B.130. "A privileged occasion arises if 2Q. B. is of such a nature that it would be fairly the communication said that those who made it had an in making such a interest communication, and those to whom it was made had a corresponding interest things Also see Malawi co-exist Railways Limited -V- Malange and Bhadurkhan (Supra). It has been contended by Counsel for PTC that DW1 had a duty to communicate that PW3 had a corresponding the and interest the communication of the letter marked Exhibit P1 was on an occasion In arguing that PW3 had a corresponding of qualified privilege. interest in the receipt of the communication, it was pointed out that both PW2 and PW3 had testified in Court on behalf of PTC that members of the public do contact PW3, in his capacity as to assist them in collecting debts owed General Manager of MBC, by MBC members of staff, where they did not honour their debts. a conce Whereas When is a privileged one". to receive it as he did, in having the occasion libellous letter to PW3 in such a case, it made might those them. that that had two DW1 it ed be to - 6 - As in PW3 ha~ had that this interest rece1v1ng to be and facilita ted transactions, to assist them a corresponding in cases where MBC in the recovery of a debt In either case, PW3 would in any way a debtor as alleged by PTC in default of payment thereof. indeed ought an occasion of qualified privilege. not duty to make the communication in question, it does not appear to me it. Indeed, both PW2 and PW3 had testified that members of the public in collecting debts owed by MBC do contact PW3 members of staff where they do not honour their debts. However, it was also the clear evidence of both PW2 and PW3 that such was the position only the In those cases, arrangement for business transactions concerned. MBC either merely approved the transactions or guaranteed payment in relation thereto. indeed have a corresponding int~rest in receiving a communication seeking PW3's in the case of any staff member help In relation to actually being such in fact so is because MBC has had a prior opportunity of being a party to the debt arrangement by way of its approval or quaranty thereof. As in regard to Exhibit I have noted above, such was not the case P1. in any a matter of fact, Mrs Ng'oma did not enter business dealings with PTC for which approval had been received from MBC nor was ther2 any guaranty offered by MBC. Mrs Ng'oma was not letter its in marked Exhibit P1. In that situation, I find and hold that PW3 had no corresponding interest in receiving the communication of PTC's libellous letter in question. That being the case, I find and hold that the communication of the libellous letter was not The defence of upon qualified privilege, the succeed circumstances, and it is so decided. Strictly that is the end of the case of PTC in so far as its defence was based on qualified privilege. But I have resolved to deal with issues of malice in relation to the defence of qualified privilege, in the event of an appeal against this decision and if, then, it might be held that the occasion was privileged. It seems to me that even if I the communication was upon an occasion of were that qualified privilege, instant case was the nonetheless bound in that the conduct of DW1 displayed malice. Upon making inquiries as to what the initial "J" stood for in regard to the words inscribed on the dishonoured cheques, DW1 was convinced that the debtor in question must have been the well known Radio Announcer, Mrs Ng'oma of MBC. It is quite clear on the evidence before me that DW1 was aware of the location of the offices of MBC within the City of Blantyre, that indeed the offices of PTC from where DW1 operates from were close to those of MBC. That according to his work procedural rules, DW1 could in fact have first phoned Mrs Ng'oma before resorting to the_ publication of the libellous letter; that in fact DW1 did not do that at all upon realising that the alleged debtor was Mrs Ng'oma Besides that, the purported mode of inquiry by way of of MBC. It Exhibit P1 was no was an affirmative assertion of facts against Mrs Ng'oma. This, surely, in the circumstances must . ed have evidenced malice on the part of DW1 against the Radio · nnouncer whom he wel 1 knew radio broadcasts and whom he could have easily through MBC That being the case, a defence of qualified reached by phone. the privilege would nonetheless not have been inquiry at all, if I may put it that way. that defence therefore, sustained to hold to fail does in in in · - 7 - so circumstances of this case. decided. This would indeed have been my decision in that regard even in the face of the further d e ._ce of apology, which I will now consider and determine. in that respect have I would The position with regard to the effect of apology appears Slander in paragraph 1441 of the Eigth Edition as follows - summarized by Gatley on to be well the plea of libel and "An apology is no defence to an action for libel or slander. But by section 1 of lord Campbell's Libel Act 1843 it is 'in any action for defamation it shal 1 be enacted that lawful for the defendant (after notice in writing of his intention so to do, duly given to the plaintiff at the time of filing or delivering the plea in such action) to give in in mitigation of damages that he made or offered evidence an apology to the plaintiff for such defamat i on before the commencement of the action, or as soon afterwards as he had an opportunity of doing so in case the action shall have been commenced before there was an opportunity of making or Moreover, quite apart from this offering such apology.' provision, a defendant may in mitigation of damages that he has published or made a retraction of, or apology though he did not for the defamation complained of even publish, make or offer to make such retraction or apology until after the commencement of the action." show is is to to Per the that he in Bevan this effect: lord Goddard C. J. that DW1 maintains the publication of statement I made further investigations and However, if an apology is to be used to mitigate damages it must be promptly offered: -V The evidence on Spactator Ltd, The Times, November, 23, 1957. this point had the effect offered personal apology for libellous telephone conversation with Mrs letter in question during his On her part, Mrs Ng'oma vehemently denies that she was Ng'oma. offered any apology as asserted by DW1. I have had the occasion of observing both DW1 and Mrs Ng'oma make their testimony before In it me. Besides that I have carefully examined Exhibit P4. there that a I have finally conversation, confirmed that the Mrs J. Ng'oma in It is my considered view that it is unlikely your corporation". telephone that conversation, letter Exhibit P4, further him investigations inorder for him to be satisfied that Mrs Ng'oma, the alleged J. Ng'oma, plaintiff actua 1 debtor the submission that DW1 had made the alleged apology to Mrs Ng'oma that as it during may, soon thereafter DW1 and DW2 had clearly established that Mrs the person Ng'oma, plaintiff indebted to PTC indeed It is that, thereupon, PTC abundantly evidenced by Exhibit P4 and PS to Mrs Ng'oma, had offered its apology to PW3, and through PW3 Of course, for the publication of the libellous letter to PW3. in the alleged sum of K3926.27. it being clearly expressed in question is not the one the tele..p-hone conversation instant case, was not instant case, was not the undertaking of that account, apology was in question. "Following by DW1, to PTC. I wou 1 d offered in the reject during that took such the the any it in in Be On - 8 - in both Exhibit P4 and P5 there was statement that personal apology had been made to Mrs Ng'oma. During the evidence adduced in court, this aspect was not clearly proved, and therefore reject that assertion, as being untrue. Although such was, and ought to be, the position in regard to the question of a personal apology to Mrs Ng'oma, it is nonetheless quite important that an apology was otherwise made to PW3, and through PW3 to Mrs Ng'oma, as evidenced by Exhibit P4 and P5. This ought to be accepted and I do accept it as evidence of a mitigating factor in respect of in this case. the damages which This must be in Bevan so -V indeed promptly offered by PTC Spectator (Supra), the apology was through PW3. I have to award to Mrs Ng'oma that, as Per Goddard, CJ in I Quite frankly, in the case of Robert Dangwe and Malawi Congress Part In the circumstances, I find PTC liable for libel. However, that the circumstances of this case indeed call for the award of exemplary damages as claimed compensatory damages would In forming that view, I have in fact taken into account in its recent it does not appear to me would by Mrs Ng'oma. suffice. the views expressed by the Supreme Court of Appeal decision -V- Aleke Banda M. S. C. A. learned Registrar as he and also those expressed by Mwaungulu, then was, in the case of Aleke Banda -V- Robert Dangwe and Malawi Congress Party Civil Cause No. 279 of 1993 (unreported). Since the award of damages I will make is compensatory in nature, there I will was no need to have such damages specifically pleaded. a to rest my reference in the Case of Mackerry -V- Associated Newspapers, 8C, at P104 which statement of law was cited with approval by the Supreme Court of Appeal in the M. S. C. A. case of Robert Dangwe and Malawi Congress Party (Supra): law made by Pearson, L J this aspect with consideration of (1965) 2 QBD unreporte ppea o. 1v1 o , statement of - "Compensatory damages, handed, They may oppressive, injury to his feeling in a case in which they are at large, inlcude several different kinds of compensation to the may include not only actual injured plaintiff. pecuniary loss and anticipated pecuniary loss or any social disadvantages which result, or may be thought 1 ikely to result, from the wrong which has been done. They may also include the natural the natural grief and distress which he may have felt at having been in defamatory terms, and if there has been any spoken of high contumelious insulting behaviour by the defendant which increases mental pain and and may constitute the defamation suffering caused by injury to the plaintiff's pride and self confidence, those are proper elements in a case to be To put it in another way, where damages are at large. the into account al 1 when you have computed and to elements ·of compensatory damages which may be awarded the plaintiff and arrive at a total figure of fx, then it is quite wrong to add a sum of fy by way of punishment of the defendant for his wrong doing. The object of the award the wrong of damages doer, but to compensate the person to whom the \Hong has been done." in tort nowadays into account to punish is not taken taken or ;:.. - 9 - In the case of Praed -V- Graham (1889) Q. B. D.5 Lord Usher MR said that "I desire also to say t hat in actions of libel there is is this:- the jury in assessing damages are another rule , which entitled to look at the whole conduct of the defendant from the time the libel was published down they gave their They may consider what this conduct has been before verdict. Having action, af te r action, and of foregoing principles the compensa tory damages, in mind , and taking into accoun t all the circumst ances of this case , including . the apology offere d by PTC, an inflatio n and the va lue of the Malawi Kwacha, I award of K45,000 could adequat e ly c ompensate Mrs Ng'om a and also award her the c o sts for this action. in court, during the trial. " t o the time think tha't respe c t award law of of in I Delivered in open Court this 27th day of Augus t, 1996, at Blantyre . ~N~ A. K. Tembo JUDGE APPLICATION FOR STAY OF EXECUTION Mr. Chirwa, who appe a red on behalf of Mr. Hanjahanja Counsel the duration of for PTC, has applied for stay of exe c ution fo r ~he time it woild take Mr. Chirwa to communicate the fact of this judgment to Mr. Hanjahanja . COURT: Stay of execution for that purpose is granted until 30th August, 1996. ~~ A. K. Tembo JUDGE