Niels Jespersen v Sinkala (SCZ Appeal 64 of 2000) [2001] ZMSC 85 (28 December 2001)

IN THE SUPREME COURT OF ZAMBIA HOLDEN AT LUSAKA. (Civil Jurisdiction) SCZ APPEAL NQ.54/2000 NIELS JESPERSEN AND JOHN SINKALA APPELLANT RESPONDENT Coram: Ngulube, C. J., Sakala and Chirwa JJS 1 October and 28t,] December, 2001, For the Appellant: For the Respondent: Mr. E. C. Lungu of Andrea Masiye & Company. Mr. J. M. Pikiti and Company. _________________________ JUDGMENT Sakala, J. S., delivered the Judgment of the Court. This is an appeal against a Judgment of the High Court entered in favour of the Respondent awarding him costs for panel beating of his car, costs of travel from Kasama to Lusaka and back and also awarding him a sum of K3 mi 11 ion for embarrassment, humiliation and character assassination suffered by him as a result of the verbal abuse by the Appellant in branding him as corrupt. The court further ordered that interest at 20% per annum be paid from the date of the writ to date of payment For convenience, we shall refer to the Respondent as the Plaintiff and the Appellant as the Defendant, which designations they were at the trial. : J2 : The brief facts of the case are that around 15 hours on 29u’ March, 1996, a vehicle, registration No. AAH 9249, driven by the Plaintiff along Cairo Road in Lusaka, was involved in an accident with a Nissan Patrol vehicle registration No. AAN 5761 driven by the Defendant. The case for the Plaintiff was that he was driving in the middle lane going northwards when his vehicle was hit by a vehicle driven by the Defendant. According to the Plaintiff, he himself suggested, after the accident, that they should wait for a Police Officer at the scene. But the Defendant, who was using a public address system mounted on his car, ordered him to go to the Police Station. On the way to the Police Station, the Defendant shouted directives to him using the same public address system. The Plaintiff testified that at the Police Station, they were attended to by Constable V. Chulu, PW3. In company of PW3, they both went back to the scene of the accident using the Defendant’s vehicle. At the scene, they noticed some sand which had dropped from his vehicle on the spot of impact. On return to the Police Station, PW3 concluded that the accident was caused by the Defendant after examining the damage to the Plaintiff’s vehicle. According to the Plaintiff, the Defendant accused him of having corrupted the Police and also accused the Police of corruption. The Defendant shouted at him and pointed at him as having corrupted the Police. PW2, who was a passenger in the Plaintiff s vehicle, confirmed the accident. He testified that the Defendant’s vehicle hit into the Plaintiffs vehicle. He also testified that there were arguments at the scene between the Plaintiff and the Defendant. A Constable, PW3, testified that when the Defendant and the Plaintiff came to the Police Station to report the accident, they were accusing each other of having been in the wrong. They immediately went back together to the scene of the accident. He testified that after returning to the station he recorded : J3 : statements from both of them. He then charged the Defendant with careless driving. According to PW3, the Defendant became annoyed. He shouted at him that he was not a good officer; he had been corrupted by the Plaintiff. He had all along been together with the Plaintiff and the Defendant that there was no time that he could have been corrupted by the Plaintiff The officer explained that the allegation of corruption pained him particularly that the Defendant later reported him and other Police Officers to the Anti-corruption Commission. The evidence of PW5, a Woman Sergeant, was that she was on duty within the Police Station when a report of the road traffic accident between the Plaintiff and the Defendant was being processed by PW3. She heard some noise come front the inquiries. When she checked, she found the Defendant and the Plaintiff in a heated exchange of words. The Defendant was accusing the Plaintiff of having corrupted the Police Officer. She intervened. The Defendant demanded to see the Officer-In-charge but she advised him to see the Divisional Traffic Officer instead. The Division Traffic Officer, PW4 at the trial, confirmed receiving a complaint from the Defendant that PW3, who was dealing with a Road Traffic Accident between the Defendant and the Plaintiff had corruptly received money from the Plaintiff. PW4 explained that he knew the Defendant as a Police Reservist. He called tor the Road Traffic Booklet, checked the statements and also checked the damage to the motor vehicles. He also visited the scene of the accident together with the Defendant but in the absence of the Plaintiff. He concluded : J4 : that the Defendant was at fault. He advised him to pay an admission of guilty fine. But the Defendant accused him of incompetence and being corrupt. He also accused him of having connived with PW3 to twist the case. PW4 testified that he was reported by the Defendant to a higher officer. Later, he received a letter from the Anti-Corruption Commission that the Defendant had complained that he, PW4 had corruptly received money from the Plaintiff to charge him, the Defendant, with careless driving. The evidence of the Defendant at trial was that, on the date in question, he was driving northwards along Cairo Road before the accident. He was then following a government vehicle and warned the driver of that vehicle, through the public address system, about his manner of driving. As he was driving, a Toyota Hilux vehicle got in front of him. It had no break lights and did not indicate that it was joining the middle lane. He managed to stop before hitting into the vehicle. The driver of the vehicle got his head out through the window and uttered some vernacular words which he did not understand. According to the Defendant, he drove again but his rear bumper got hooked into his tyre. As he tried to move, his fender hooked into the front. The Plaintiffs vehicle was stuck on the Defendant’s vehicle. The Defendant testified that the Plaintiff admitted being in the wrong at the scene. They then both went to the Police Station. The Defendant confirmed being attended to by PW3 and together visiting the scene of the accident. The Defendant denied accusing the Plaintiff of corrupting the Police or accusing the Police of being corrupt. He called two witnesses in his defence. One of the witnesses explained the :J5: position of the vehicle they were travelling. But he did not see the accident happen. The other witness explained that, while he was a passenger in a vehicle belonging to the Ministry of Health, he heard people shout about the accident. When he looked behind, he saw a vehicle trying to join the middle lane and hit into the Defendant’s vehicle which was in the middle lane. The learned trial judge considered the evidence on record. She found as a fact that there was a road traffic accident involving the vehicles driven by the Plaintiff and the Defendant The learned trial judge accepted that the issue for determination was, who was to blame or who caused the accident? The other issue accepted by the learned trial judge was whether the Defendant alleged corruption on the part of the Plaintiff As to the cause of the accident, the court found that the two parties gave two different versions. The court observed that the Plaintiff’s story was that his vehicle was hit by the Defendant’s vehicle as he was driving in the middle lane going Northwards along Cairo Road. On the other hand, the Defendant’s story was that the Plaintiff s vehicle hit his vehicle as he, the Plaintiff, was trying to join Cairo Road from Katondo Street. The court found that on the two versions, the issue was one of credibility, The court observed that both parties made sketches showing the movements of the two vehicles at the time. The Plaintiff’s sketch showed the Defendant’s vehicle hitting the Plaintiffs vehicle in the middle lane, On the other hand, the Defendant’s sketch showed the Plaintiff’s vehicle cutting into the middle lane from the left lane. From the Defendant’s sketch, the court accepted that the Plaintiffs vehicle was on the left lane and that the impact happened after the Katondo Road junction. The court noted that the Defendant’s evidence : J6 : was that there was at first a near miss. He managed to stop before hitting in the vehicle which was coming from Katondo Street. The court also noted that the Defendant’s evidence was also to the effect that the Plaintiffs vehicle had no break lights and had no indicators, that this vehicle got in front of him without indicating. The court found that this evidence of the Defendant did not tie with his sketch. Furthermore, the court found that the Defendant would not have been in a position to see that the Plaintiff s vehicle had no break lights. The court did not accept the story that the Plaintiff s vehicle hooked the fender of the Defendant’s vehicle otherwise the Plaintiffs vehicle would not have been damaged in the manner it was. The court doubted the Defendant’s assertion that the Plaintiff accepted being in the wrong. According to the learned trial Judge, if that were the case he would not have insisted that they go to the Police Station. The court found that the Plaintiff s version of the events of that day was more credible than that of the Defendant. Thus, the court found that on balance of probability, it was the Defendant who hit into the Plaintiffs vehicle and that he was to blame for the accident. On the question of the Defendant accusing the Plaintiff of being corrupt, the court accepted the evidence of the Plaintiff and that of PWs 3,4, and 5 that the Defendant accused them of being corrupt. The court also accepted the evidence that the Defendant reported the Police Officer to the Anti-Corruption Commission. The court concluded that the Defendant did allege that the Plaintiff was corrupt The court then pointed out that corruption is a crime and that it goes without saying that any allegation of corruption can embarrass and humiliate a law abiding citizen. She found no basis on which the Defendant alleged that the Plaintiff was corrupt. : J7 : The court held that the Plaintiff had proved that the Defendant had called him corrupt. Judgment was entered in favour of the Plaintiff. The Defendant has appealed against all the findings and orders made by the learned trial Judge. On behalf of the Defendant, Mr. Lungu filed written heads of argument based on five grounds of appeal. But in the course of arguments one ground was abandoned. The four grounds argued are that the trial court misdirected itself when it found as a fact that the Defendant’s vehicle hit into the Plaintiff s vehicle; that the trial court erred in ordering the Defendant to pay the costs of panel beating the Plaintiff s car and costs for travel to and from Kasama as claimed in the Writ of Summons without specific proof; that the trial court misdirected itself when it found as a fact that the Defendant had called the Plaintiff corrupt; and that the trial court erred in awarding a sum of K.3million as damages without justifying the quantum. The gist of both the oral and written arguments and submissions by Mr. Lungu on behalf of the Defendant on the first ground was that no evidence supported the trial judge’s finding that the Defendant’s vehicle hit into the Plaintiff s vehicle; that the finding on the damages to the Plaintiff s vehicle was not specified; and that the court did not explain how it arrived at a finding on the balance of probability in favour of the Plaintiff It was contended on behalf of the Defendant that it was imperative on the part of the trial court to have given a basis for finding for the Plaintiff on how the accident happened. Counsel for the Plaintiff submitted that mere belief was not sufficient to award a claim but that the court should have given reasons. : ,18 : Counsel further submitted that the court did not make its position known on the conflicting evidence of PW2 as against DWs 2 and 3 about the accident. It was the contention of counsel on behalf of the Defendant that the trial court found the Defendant in the wrong because according to the court, the Plaintiff insisted to go to the Police Station and yet according to the evidence it was the Defendant who insisted to go to the Police Station to report the accident. On the ground relating to the court’s order that the Defendant pays costs for panel beating and travel to and from Kasama, counsel submitted that these were special damages which ought to have been specifically proved and that as for the costs for panel beating there was no evidence adduced while the costs for answering to Police call out were not probable and forseable consequences of the accident. On the ground relating to the Defendant having called the Plaintiff corrupt, the argument was that PW2, who was in the company of the Plaintiff, did not hear the Defendant call the Plaintiff corrupt and that PW3 could not have been correct that the Defendant called the Plaintiff corrupt. Counsel submitted that the award for slander was based on a wrong premise. Counsel contended that in terms of the law of defamation, no action lies for general abuse, submitting that the words complained of were made in the heat of passion and were merely vulgar abuse which cannot be actionable perse. : J9 : The last ground argued related to the award of K3million for embarrassment, humiliation and character assassination suffered as a result of branding the Plaintiff corrupt as being excessive and on the higher side. The gist of the submission on this ground was that if the Plaintiff was defamed, which was denied, the publication was to a very small number of people. In responding to the first ground, Mr. Pikiti, who also filed written heads of argument, submitted that while it was the Defendant who insisted to go to the Police Station, the Plaintiff too, wanted the Police to come to the scene of the accident and was also keen to go to the Police Station. Counsel submitted that in accepting the Plaintiff’ version, the court took into account the evidence of the Police Officers who also visited the scene of the accident. On the question of costs for pane! beating of the vehicle and travel to and from Kasama, Mr. Pikiti submitted that the Plaintiff produced three quotations at trial relating to panel beating of the vehicle. On costs for travel, counsel submitted that the Plaintiff lived in Kasama and that the fact that he attended court in Lusaka established that the travelled from Kasama. The reply on the argument that the trial judge misdirected herself by finding that the Defendant called the Plaintiff corrupt because he was not supported by his passenger PW2, was that the evidence on record showed that PW2 remained in the Inquiry Office and was not at all times with the Plaintiff and could not therefore confirm whether the Defendant called the Plaintiff corrupt. Counsel also submitted that the calling of the Plaintiff as corrupt could not be said to be vulgar language in the heat of emotion because the matter was even reported to the Ant- : J10: Corruption Commission. Counsel argued that you do not report vulgar to the Anti-Corruption Commission, On the award of K3 million, Mr. Pikiti submitted that the award was too low particularly that the matter was even reported to the Anti-Corruption Commission. We have anxiously examined the judgment of the trial court and the evidence on record. We have also considered the spirited submissions by both learned counsel. We are satisfied that all the findings relating to the accident were centred on the issue of credibility. A critical examination of the judgment and the reasoning of the trial judge clearly reveals that, the court accepted the Plaintiffs version of the events based on his evidence as a whole and not only because he insisted to go to the Police While we agree with counsel for the Defendant that it is the Defendant and not the Plaintiff who insisted to go to the Police, this aspect did not affect the findings that the Defendant hit into the Plaintiffs vehicle. The question of who insisted to go to the Police was discussed by the trial court in the context of the allegations by the Defendant that the Plaintiff was apologetic and admitted that he was in the wrong. Thus, the court was trying to explain, which explanation was wrong, that if the Plaintiff accepted that he was in the wrong, he could not have been the one to insist that they go to the Police. This explanation had nothing to do with the analysis of the two versions of the events leading the court in accepting the version of the Plaintiff. We are satisfied that on the totality of the evidence on record which established that the Defendant’s vehicle was following the Plaintiffs vehicle before cutting into it, the trial court was perfectly entitled to accept the : JI I: version of the Plaintiff that the Defendant hit into his vehicle. This ground of appeal therefore fails. We have also considered the ground of appeal challenging the order of costs for panel beating the Plaintiff’s vehicle. The argument against the award was that no evidence was adduced to support this claim. According to the record, the evidence relating to panel beating was introduced through cross-examination when the Plaintiff testified under cross-examination that he obtained three quotations from the garage and submitted to the Defendant the middle quotation of K360.000. In the statement of claim, the Plaintiff specifically claimed this amount. It was specifically denied in the amended defence. We find no merit in the ground against costs for panel beating. This part of the ground is dismissed. The second part of ground two related to costs of travel to and from Kasama to Lusaka answering to Zambia Police call outs. We agree with Mr. Lungu that these were not probable and foreseeable consequence of the accident. This part of the ground succeeds, We have also considered the third ground of appeal argued before us that the court misdirected itself when it held that the defendant had called the Plaintiff corrupt. All we can say on this ground is that Mr. Lungu did his best for his client. But the evidence on record was overwhelmingly against his client. It would appear that the Defendant simply went wild that anybody who talked to him in connection with the accident was labelled corrupt. The learned Judge was on firm ground in holding that the Defendant called the Plaintiff corrupt. This ground cannot also succeed. : J 12: The award of K3 million as damages for embarrassment, humiliation and character assassination was criticised as being on the higher side. The evidence on record is that allegations of corruption against the Plaintiff and the Police were reported to the anti- Corruption Commission. Mr. Lungu submitted that no action lies for general abuse and that the words complained of were made in the heat of passion and were merely vulgar abuse. According to Mr. Lungu, when a citizen reports to the Anti-Corruption Commission, it cannot amount to slander. While counsel may be correct to a certain extent, the reports of corruption must be based on cogent grounds. The vulgar language here went beyond general abuse. As observed by the learned judge, corruption is a crime. It humiliates. A sum of K3 million for unjustified attack on the Plaintiff, though to a limited audience, is not on the higher side. This ground too fails. The outcome of this appeal is that the Defendant has failed on all the main grounds apart from that relating to costs for travel to and from Kasama to Lusaka. The whole appeal is therefore dismissed with costs to be taxed in default of agreement. M. M. S. W. Ngulube, CHIEF JUSTICE. E. L. Sakala, SUPREME COURT JUDGE. D. K. Chirwa, SUPREME COURT JUDGE.