Rodger Chitengi Sakuhuka v Nungu and Ors (SCZ Judgement 11 of 2005) [2005] ZMSC 7 (24 July 2005)

(132) IN THE SUPREME COURT OF ZAMBIA HOLDEN AT LUSAKA (Civil jurisdiction) SCZ JUDGMENT NO. 11 OF 2005 APPEAL NO. 172 OF 2002 BETWEEN: RODGER CHITENGI SAKUHUKA APPELLANT AND SASSASSALI NUNGU ATTORNEY GENERAL TIMES OF ZAMBIA LIMITED TIMES PRINTPAK ZAMBIA LIMITED NEWSPAPER DISTRIBUTORS LIMITED 1st respondent 2nd RESPONDENT 3rd RESPONDENT 4th RESPONDENT 5th RESPONDENT CORAM: CHIRWA, CHIBESAKUNDA AND SILOMBA, J. J. S. On the 19th June, 2003 and the 24th August, 2005 For the Appellant: Mr. Mwansa, EBM Chambers For the 1st and 2nd Respondents: Mrs. Mwasambiri, State Advocate For 3rd 4th and 5th Respondents: Not present JUDGMENT SILOMBA, J. S. delivered the judgment of the Court. Cases referred to: 1. Fungamwango and Zambia Daily Mail Vs. Mundia Nalishebo, Appeal No. 133/1999 J 2 (133) 2. Zambia Daily Mail Vs. Charles Banda, SCZ Appeal No. 35/1999 3. Times Newspapers Limited Vs. Lee Chisulo (1984), ZR 83 4. Fredrick K. Mwanza Vs. Zambia Publishing Company Limited (1981) ZR 234 This is an appeal against the decision of the High Court, contained in the judgment of that court of the 15th October, 2002, in which the appellant’s claim for damages for libel was dismissed. The libel complained of was contained in a portion of an article published by the Times of Zambia (3rd Respondent) of the 24th October, 1995 entitled “Six Escapees Surrender.” The article was attributed to the 1st respondent, as the author, who was then the officer Commanding of the Zambia Police Service in the North-western Province. The portion of the article that the appellant complained of read like this: - And Zambia’s High Commission to Zimbabwe, Rodger Sakuhuka, hit and killed a pedestrian on the Zambezi / Chitokoloki Road at the weekend. North Western Province police chief, Sassassali Nungu, said in Solwezi yesterday that police had instituted investigations. Mr. Nungu said that Mr. Sakuhuka, who is in Zambia on a visit, would be summoned by Police after they finish their investigations. The evidence was that the appellant read the article the same day of publication. On the day he read the article, the appellant was in Harare, Zimbabwe, where he worked as Zambia’s High Commissioner to that country. He was, therefore, not on a visit to Zambia at the time the 1st respondent issued the statement that was reported by the 3 rd respondent. On reading the article, the appellant felt very disturbed, humiliated and damaged as he considered the allegation to be serious. J3 (134) Upon reading the article he contacted the Ministry of Foreign Affairs in Lusaka who subsequently issued a press release in which it was clarified that the appellant was not in the country at the time the article was published and that, therefore, he could not have been involved in the accident. In his evidence, the appellant confirmed that he knew of another Sakuhuka, a businessman, in Zambezi. On whether there was any apology, his testimony was that there was none rendered to him personally, neither was there any retraction from the paper. The appellant was, at the time he took out a writ, an ordinary farmer in Zambezi. His evidence was that before he was recalled from the diplomatic service he had worked in Government for many years as a cabinet Minister, MP for Zambezi West for 17 years, Deputy Speaker of the National Assembly and Diplomat. The evidence in rebuttal was given by the 1st respondent on his own behalf and on behalf of the 2nd respondent. There was no evidence from the 3rd, 4th and 5th respondents. His evidence was that as Commanding Officer of North-Western Province, he received a report from Zambezi police station that a pedestrian had been hit on the Chitokoloki road by a driver by the name of Sakuhuka. The 1st respondent, who was then based at Solwezi, directed his officers to open up a docket. A day later he received a phone call from the Times of Zambia asking him to confirm or deny the incident. He confirmed and it was put in the press. Subsequently, he sent a message to his superior, the Inspector General of Police, in Lusaka. The learned trial judge duly considered the evidence and the law governing cases of defamation. On the claim of defamation, the learned judge found as a fact that there J 4 (135) was publication of the article but that what was published was false; that a false publication does not necessarily injure or defame a plaintiff. The learned judge opined that the article, which stated that the appellant had hit and killed a pedestrian, might have embarrassed the appellant but he was not defamed, that this was a mere report of fact, which was reported to the 1st respondent who passed it to the Times of Zambia but unfortunately it turned out to be false. Accordingly, the learned trial judge thought that the 2nd respondent was not liable in that the Government, through the Ministry of Foreign Affairs, issued a press statement a day after the publication of the article, which was carried by the Times of Zambia, to clarify the false publication and to exonerate the appellant of any involvement in the accident as he was not in the country at the time of the reported accident. To that extent, the learned judge was satisfied that the appellant was exonerated. Equally, the learned judge found the 3rd, 4th and 5th respondents not blame-worthy because the publication was based on a report confirmed by the 1st respondent whose employers, the Government, later issued a statement to put the position in its correct perspective. In dismissing the claim, the learned judge was satisfied that the appellant had not, on a balance of probabilities, proved his case. There are three grounds of appeal and these are: - 1. The lower court misdirected itself in law and fact to have held that considering the authorities cited by Mr. Mwansa the plaintiff (now appellant) was not defamed by the article. 2. The lower court misdirected itself in law and fact to have held that one cannot say that the article or information contained therein, although J 5 (136) false, was defamatory in itself or that it was the intention of the 1st respondent to defame the plaintiff. 3. The lower court misdirected itself in law and fact to have held that to hold the 3rd, 4lh and 5th defendants (now respondents) liable for the publication would be unfair because the publication was based on the report confirmed by the 1st respondent whose employers (the government) later issued a statement to put the position in its correct perspective. At the hearing of the appeal, there was no representation from the 3rd, 4th and 5th respondents, which was the case in the court below. In arguing the three grounds of appeal, Mr. Mwansa relied on the heads of arguments, which he had filed with the court. Generally, Mr. Mwansa submitted that at the time the accident in issue happened the appellant was not in Zambia; that the respondents did not make any effort to talk to the appellant to clarify the story but proceeded to recklessly publish it. Coming to ground one, Mr. Mwansa submitted in his heads of argument that the cases of Fungamwango and Zambia Daily Mail Vs. Mundia Nalishebo (1) and Zambia Daily Mail Vs. Charles Banda (2) clearly showed that the appellant was defamed by the article. He said that in the first case, the appellants published a story that the respondent, Mundia Nalishebo was a betrayer of the nation, a story that turned out to be false. According to counsel, the second case related to a false story also that was carried out by the appellant, Zambia Daily Mail. In both cases this court upheld the findings of the lower court that the respondents were defamed. On ground two, Mr. Mwansa argued in his heads of argument that the article or information in issue, that was published by the 3rd respondent, was defamatory because it imputed, on the part of the appellant, the commission of a serious criminal offence of J 6 (137) causing death by dangerous driving punishable with imprisonment. In the view of counsel, what made the defamation even more serious was the reference to the appellant by his title and the fact that he was in the country when he purportedly made the accident. Counsel submitted that the information on the accident from Zambezi, received by the 1st respondent, to the effect that the appellant, as Zambia’s High Commissioner to Zimbabwe, had killed a person, was untrue and only intended to injure the appellant; that this was so because the officer at Zambezi police station had every opportunity to know whether or not it was the appellant who killed the person. To back up his assertion, we were referred to the evidence of the 1st respondent, in cross-examination, found at page 105, lines 20 to 35, in which he (1st respondent) stated that his officer at Zambezi confirmed that it was the appellant who had killed a person; that there was no verification on the correct identity of the appellant whom he had known since 1974 because of the long distance between Zambezi and Solwezi. In conclusion on this ground, counsel submitted that by referring to the appellant as Zambia’s High Commissioner to Zimbabwe the respondents did injure the appellant’s reputation in his employment, diminished the respect and confidence the appellant had and / or excited adverse or unpleasant feelings or opinions against him. On ground three, counsel submitted in his written heads that the 3rd, 4th and 5th respondents did not verify the report they got from the 1st respondent with the appellant himself; that the three respondents in fact added their own words in the article, such as, “Zambian High Commissioner to Zimbabwe Rodger Sakuhuka who is in Zambia on a visit”, when they did not talk to the appellant before publishing the article. To support his J7 (138) stand, counsel referred us to the evidence of the 1st respondent (DW1) at page 107, lines 15 and 19, where he said that the message he received indicated that it was Sakuhuka of Zambezi who killed a pedestrian. As far as counsel was concerned, there was no apology from the government on behalf of the 1st and the 2nd respondents, as well as, the 3 rd, 4th and 5th respondents, which would have mitigated damages. In response, Mrs. Mwasambiri, counsel for the 1st and 2nd respondents, submitted that there was no dispute that the article that was published referred to the appellant. She contended, however, that the article was not defamatory of the appellant and rallied behind the holding of the lower court when it said that the appellant “may have been embarrassed by the article but he was not defamed.” She contended further that a false statement, no matter how damaging or offensive it may be, is not defamatory unless it impugns the reputation of the person whom it concerns. She said that it was a requirement that one must prove that he was injured in his reputation, business or employment, profession or calling, etc. As far as she was concerned, the appellant did not prove the fact that he had been ridiculed or shunned. Counsel argued that it was not correct that the 1st respondent added the word “High Commissioner or Ambassador” in the article with the intention of injuring the appellant. She relied on the passage at page 105, lines 21 to 29, of the record of appeal, which constituted the evidence of the 1st respondent in cross-examination; that the 1st respondent never added anything but merely confirmed having received the report to the 3rd respondent. As far as she was concerned, there was no malice on the part of the 1st respondent when he confirmed the report. J 8 (139) In conclusion, Mrs. Mwasambiri submitted that should the court find that the appellant was defamed the statement by the Ministry of Foreign Affairs should be taken into account as an apology on behalf of the 1st and the 2nd respondents. As far as she was concerned, the statement was a very serious attempt to exonerate the appellant, a fact acknowledged by the appellant in his letter at page 46 of the record of appeal. She cited the case of Times Newspapers Zambia Limited Vs. Lee Chisulo (3) in aid and to reinforce her stand that the apology by the Ministry of Foreign Affairs expunged all liability to the appellant. We have carefully considered the evidence on record, the heads of arguments and the oral submissions from counsel representing the parties. We agree with the learned trial judge that there was publication of the article by the 3rd, 4th and 5th respondents about the fatal accident in Zambezi, which turned out to be false as against the appellant. The source of the article was the 1st respondent who was, at the time of the reported accident, the officer commanding of the Zambia Police Service based at Solwezi, the provincial center of the North-Western Province. The issue, as we see it in this appeal, is whether a false publication can be defamatory of someone. Counsel for the appellant has cited two cases decided by this court, which appear to be relevant to this appeal. First, there is the case of Fungamwango and Zambia Daily Mail Vs. Mundia Nalishebo (1), in which the appellants falsely published a story that the respondent was a betrayer of the nation. We observed in that case that the conduct of the appellants was such that one could infer their own malice in that they published the articles recklessly, without J 9 (140) bothering to check the facts with the respondent and besides they added their own words to the ones used by their sources. In the present appeal, the evidence of the 1st respondent shows that when the 3rd respondent contacted him to confirm the accident he told the newspaper that it was the appellant who knocked down and killed a pedestrian along Chitokoloki road in Zambezi district. In his confirmation of the accident, the evidence of the 1st respondent, particularly in cross-examination, shows that he did not give the newspaper the middle name (Chitengi) of the appellant. Here, we shall pose and say that we have looked at the record and we want to dispel any suggestion that the article, at page 43 of the record of appeal, included the name Chitengi as a middle name. The names used in the article complained of are Rodger Sakuhuka. At first, the 1st respondent admitted before the lower court that his officer at Zambezi police station told him that the person who killed a pedestrian was Rodger Sakuhuka, the ambassador. When he was pressed further he changed his statement and said that he could not recall whether his officer told him that it was Rodger Sakuhuka, the ambassador, due to the passage of time. We wish to observe, that in the absence of the testimony of the 3rd, 4th and 5th respondents it can be successfully asserted that the respondents, in publishing the article, included words that were not from the mouth of the 1st respondent. Looking at the article in issue, which appears at the beginning of this judgment, we have no doubt phrases, such as, “And Zambia's High Commissioner to Zimbabwe ”, ‘‘... Mr. Sakuhuka who is in J 10 (141) Zambia on a visit” were not from the 1st respondent but were added without verification with the appellant. The other case cited to us was Zambia Daily Mail Limited Vs. Charles Banda (2) in which the appellant alleged that the respondent was a betrayer of the nation and was paid to discredit the polls when the story was untrue. The case was decided in the same year as the Nalishebo case, though earlier. We said in the Banda case that the allegations reflected on the journalist’s reputation and tended to lower him in the estimation of right- thinking members of society generally. We now wish to address our minds to the article that is the subject of this appeal. The issue, if we may repeat, is whether a publication that turns out to be false can be said to be defamatory of a plaintiff. The law that this court has adopted in several of our decisions was candidly espoused in the case of Fredrick Mwanza Vs. Zambia Publishing Company Limited (4), by Cullinan, J. when he held that any imputation, which may tend to injure a man’s reputation in business, in employment, calling or office carried on or held by him, is defamatory. In the present case, we note that the appellant was, at the time of the article, this country’s High Commissioner to the Republic of Zimbabwe. We also note that besides being a diplomat, the appellant is a politician, having been a Member of Parliament (MP) for Zambezi for along time and during the time he was MP he held very important posts in government, including that of Cabinet Minister. We, however, note that the latter part of this paragraph was not pleaded even though the appellant was allowed to give evidence in support of his illustrious political career. Ill (142) It is trite law that libel is the publication of a matter, usually words, conveying a defamatory imputation as to a person’s character, office or vocation (see Charles Banda case above). The view we take of this case is that the article complained of was defamatory of the appellant and had injured his reputation as a diplomat. By publishing the article that the appellant was in the country and had killed a pedestrian in a road traffic accident, the 3rd, 4th and 5th respondents had portrayed him as someone who had committed a criminal offence of causing death by dangerous driving. Consequently, he was to be investigated and prosecuted for a criminal offence. To suggest that the appellant had sneaked into the country and caused the accident was demeaning the appellant in the eyes of his employers and portraying him as a truant who had absconded from work without leave. To demonstrate their malicious intentions the 3rd, 4th and 5th respondents refused to render an apology; they did not appear at trial, as well as, on appeal. We do not accept the conclusion of the learned trial judge that the 3rd, 4th and 5th respondents were not liable for the libel because all that was reported was sourced from and confirmed by the 1st respondent. We find the conclusion to be at variance with the evidence on record. Since the 3rd, 4th and 5th respondents did not bother to attend court to cross-examine the appellant and the 1st respondent, as well as, to testify in their defence the trial court could only be guided by the evidence of the appellant and that of the Is1 respondent. There is no doubt in our minds that the 3rd respondent asked the 1st respondent to confirm the road traffic accident that took place in Zambezi district. In our view, the 3rd J 12 (143) respondent should have gone further to find out from the appellant if he was in the country at the time of the accident before publishing the story. From the evidence on record, the 1st respondent was not a very reliable source to know the presence of the appellant in the country. Although the learned trial judge did not comment on the demeanour of the 1st respondent, we take the view that he did not handle the whole affair in a prudent and mature way. We say so because when giving the report to the 3rd respondent he did not refer the newspaper to the Inspector General of Police. He dealt with the matter there and then and when things began to fall apart he chose to hide behind the Inspector General of Police. If he knew the appellant very well, as he claimed to have been, his casual attitude in simply confirming the accident without verifying if it were true that the appellant was involved was unfortunate. From our knowledge of the province, there is no way the appellant would have gone to Zambezi without passing through Solwezi, the operational base of the 1st respondent. A simple inquiry by the 1st respondent, through the use of the State apparatus, which he was very familiar with while in active service, would have confirmed whether or not the appellant had passed through Solwezi. Fortunately, for the 1st respondent, the State, through the Ministry of Foreign Affairs, rendered a clarification, which the appellant accepted. From our reasoning, we uphold all the three grounds of appeal. Coming to the quantum of damages, we note that the clarification by the State cannot be extended to mitigate the damages to be met by the 3rd, 4th and 5th respondents (144) collectively as publishers of the, libel. This is so because, on their part, they refused to render an apology even when they ought to have known that under our laws they were liable for the libel. However, as was pointed out in the case of Mundia Nalishebo above, we shall not award excessive damages that have the effect of stifling the freedom of the press. In that case, we awarded a sum of KI 5, 000, 000 as general damages and another KI5, 000,000 as exemplary damages because the words complained of amounted to accusing Nalishebo of having committed the felony of treason, which is punishable by hanging if found guilty. In the present case, the criminal case the appellant was accused of having committed was to attract a fine or a sentence or both. There will be no exemplary damages because these were not pleaded. In the circumstances of this case we feel that a figure of K5, 000, 000 would suffice. The amount is levied against the 3rd, 4th and 5th respondents collectively and will attract interest at the average short-term deposit rate from the date of the writ to the date of judgment and thereafter at a rate to be fixed by the Bank of Zambia. The 3rd, 4th and 5th respondents are collectively condemned in costs both in this court and in the court below, to be taxed in default of agreement. D. K. Chirwa, SUPREME COURT JUDGE. L. P^hibesakunda, S. S. Silomba, SUPREME COURT JUDGE. SUPREME COURT JUDGE.