Sky FM Radio Limited v Wilfred Mweene (Appeal No 79/2011; SCZ/8/82/2010) [2013] ZMSC 67 (18 December 2013)

.. ' " IN THE S UP R EME COURT FOR ZAMBIA J1 HOLDEN- AT LUSAKA - (eivi-I"1rrisd iction) - BETWEEN: SCZ/8/82/201 0 Appeal No 79/20 11 SKY FM RADIO LIMITED APPELLANT AND WILFRED MWEENE RESPONDENT • CORAM: Chibe s a kund a, Ag CJ, Mwan a m wambwa a nd Chibomba, J J S On 14 th August, 2 01 2, a nd 18 th December , 2 01 3 FOR THE APPELLANT Mr. E. B. Mwa nsa of Messr s E BM FOR THE RESPONDENT Cha m bers N/ A Chibesakunda, Ag. C. J, delivered the Judgment of the Court. JUDGMENT ~- Cases referred to: 1. 2. 3. 4. 5. 6. 7. Rodgers Chitengi Sakuhuka v Sassassali Nungu and others (2005) ZR48 Zambia Daily Mail Limited v Charles Banda (1999) ZR 203 Anderson Kambela Mazoka and others v Levy Patrick Mwanawasa and others (2005) ZR 138 Mwanza v Zambia Publishing Company Limited (1981) ZR 234 Zambia Publishing Company Limited v Pius Kakungu (1982) ZR 167 Times Newspapers Zambia Limited v Andrew Kashita (1982) ZR 162 Michael Sata v Post Newspapers and Another Unreported Works referred to: 1 . Rules of the Supreme Court (Whitebook) 1999 Edition Order 18/8/6(3) 2. Halsbury's Laws of England Vol. 28 4 th Edition J2 This is an appeal against the High Court dec1s1on , dated I st April, 2010, awarding the -Respondent (Plaintiff in tne court below) damages in sum of K25 , 000 ,000.00 ( which in today's currency is - K25 ,000.00) in an action for libel. - The fi1s ory of the case is tfiat the Respondent, a police- officer - at the time, commenced action against the Appellant (Defendant in the court below) on 30 th September, 2005 claiming damages , further or any other relief and costs for publishing defamatory e words against him , on three consecutive dates , namely 3 rd , 4 th and 5 th September, 2005 , when he was promoted from the rank of - - - Inspector to Chief Inspector. The words complained of, as contained in the Amended Statement of Claim at page 44 of the record of appeal, read as follows: in "Some Livingstone Police Officers who were omitted from the recent promotions the Police Service have the criteria used. The promotions were questioned effected by both the Police and Prisons Commission. Police sources revealed the development to the Zambia Information Services (ZIS) in Livingstone, when a Police Officer and rude, quarrelsome, was promoted to the rank of Chief Inspector at the Livingstone Central Police. uncompromising regard they ' investigate "They further asked the Commission whether Mr Mweene, who is reported to be having a number of cases within the Police Service, deserves the promotion. They explained that the man has a habit of harassing his colleagues and lacks respect for his seniors, while he is also known to have close links with to ' ' ' ' J3 the current Poltce Commanding Of11cer ]or Southern Province---.- The Officers mentioned that deserving men and women- were left out of the three hundred promoted. They are _ ______ a_s_k_i_ng the Regiona Police Chief to "!_atch . out for -the named officer, before he brings embarrassment to the entire PoUce SenJice." - - During trial , PW 1 Wilfred Mweene , testified that he joined the Zambia Police Force in 1990 as a direct entry Sub-Inspector. He graduated from Lilayi (Police training school) and was posted as CIO to Kasama Central Police. In 1994 , he was transferred to ~ mmasaale Police in the same capacity. In 1997, - he was transferred to Chilanga Police Station as Officer-in-Charge and promoted to the rank of Inspector. In 2001, he was moved to Livingstone as Divisional operations for southern province. In 2004, he moved and was elevated to position of Officer-in-Charge for Livingstone Airport. In 2005, he was promoted to the rank of Chief Inspector at Police Headquarters but in 2006, he was retired, at the - age of 34, by the President in national interest. No reasons were given but the Respondent suspected that the broadcast aired by the Appellant prompted the retirement (at page 137 of the Record). This was coupled with the fact that a letter, written by the Respondent's lawyers (dated 14th September, 2005 at page 50) demanding, from the Appellant, an apology and settlement of damages in sum of K600,000,000.00, (K600,000.00) had gone unanswered. J4 I~ rebuttal , DW 1, Geoffrey Hambulo, Chief Executive Officer of the A:ppellant radio station--; denied defam:i:tigfne Resp~ondent. Be -~ - testified that what was aired was the truth because the Respondent was subse uentl retired from the Police Service. He said what the radio station aired, was as it- was - given to tnem by one Kinny t e time, Provincial (now deceased who was a t - Ntarii a e Information Officer of the news agency, Zambia News and Information Service (ZANIS). DW 1 said the radio station trusted the source of information and that since the information was paid for, - based on a yearly subscription for the supply of news, they saw no reason for the news agency to give them false information. During cross examination at page 152, DW 1 told the court that the radio station did not comment on the news given to it. He said the Respondent's claim was frivolous and had no basis as there was no malice . After consideration of the evidence, the learned trial Judge held that the words complained of were defamatory of the - Respondent. She found that in their natural and ordinary meaning, the words were understood to mean that the Respondent was unfit to be a Police Officer and that he was not worthy of any promotion at all . She said that clearly, the words tended to lower the Respondent in the estimation of others and affected his reputation as a Police Officer. JS In her Judgment, the learned trial Judge dismissed the ____ A_p-pellant's first defence, in which 1 t was disputing th~name of the - - -~party- sued. She said that that- was=eured-by an ex parte order fo leave to amend. The Appellant's second defence, that (questioning) - - -~th~e~ c_r_it ___ eria use-d- to promote the RespondenL was a fafr and bon=a~ - ------- fide comment nd criticism on a.. matter of public ·nterest and concern, was also dismissed. The learned trial Judge found that, although the conduct of the Respondent as a Police Officer and the proceedings of the Police and Prison Service Commission were matters of public interest, there was evidence that the Appellant only alleged specific acts of misconduct against the Respondent and made no cenrrment on the alleged assertions of fact:------Furthermore, she declined to accept the Appellant's proposition that publication without malice meant justification and ruled that there was no plea of justification by the Appellant. She subsequently found that the Respondent had, on a balance of probabilities, proved his claim and awarded him damages of K25,000,000.00 (K25,000.00). This is the Judgment that the Appellant has appealed against. The Appellant had raised the following three grounds of appeal: (i) The court below misdirected itself in law and fact by holding that the Plaintiff (Respondent) proved his libel on a balance of claim probabilities and as such entered Judgment for the Plaintiff. for damages for (ii) The court below misdirected itself in law and fact to have not accepted the defence of justification. ' ', J6 (iii) The court_ below misdirected itself in law and fact by awarding- ~h-e- Plaintiff (Respondent) the- su-m- of K-25, 000,00~0-(-K-2-5, 000. 00 )-. - - --At the hearing of this appeal, Counsel for the Appellant, M . Mw ansa, indicated that he would rely entirely on the written Heads of- Argument filed into Court on 31 s t July, 2012. Counsel for the Re spondent was not in attendance but later fil ed into Court written Heads of Argument on 8 t h August, 2012. In his submissions , Mr. Mwansa argu ed Ground one namely that the Respondent had failed to :grove his claim , firstly, because the words complained of were not defamatory in their natural and ordinary meaning and because they were not capable of 1nJunng the Respondent's reputation, considering that the Respondent was a public officer who was subject to public scrutiny . Secondly because the Appellant did not say that the Respondent had criminal cases but that he had a number of cases within the police. That, the words com plained of, did not mean that the Respondent had connections with the then Police Commanding officer of southern province, but that he had close links with him. Thirdly, because the Respondent confirmed (at page 137 line 11 to 13) that he was retired by the President as a consequence of what the Appellant aired on its radio station. Mr. Mwansa argued that the balance of probabilities was in favour of the Appellant especially because the Respondent never challenged his retirement. J7 On ~ und two , Nlr . Mwansa argu ed that_ the statement th e Appel an airea. was true and that that was t e reason wh y the-- - - - -- - - - - - Respondent was retired in national interest. He submitted that if what the A ellant had air rue or incorrect th.._e _ _ _ _ - -Respond ent would not n ave een retired . On ground three , Mr. Mwansa argu ed that 1n view of submissions in grounds one and two , the court misdirected itself in law and in fact to award the Respondent sum of K25 ,000 ,000 .00 (K25 ,000.00). Mr. Mwansa submitted that the Respondent's case ought to have been dismissed by th e lower Court . He a sked this Court to dismiss the case. In the alternative, he argued that th e award was excessive considering that the Appellant did not call the Respondent a criminal or car thief, and b ecause there was no malice in the words complained of. Mr. Mwansa submitted that the court below ought to have considered nominal damages of less than KS ,000,000.00 (KS,000.00). He invited us to follow our decision in Rodgers Chitengi Sakuhuka v Sassassali Nungu and others1 . In response, Counsel for the Respondent argued Grounds one and two together. Counsel contended that the learned trial Judge was on firm ground when she found that the Respondent had proved his case on a balance of probabilities and awarded him damages. Counsel, submitted that the words complained of were defamatory. He also referred us to the case of Rodgers Chitengi Sakuhuka v Sassassali Nungu and others1 . Counsel argued that JS _ - ~he words complained of were del_~_?.tory as they related to the Responaent's character in his employment as a Police- Officer. He submitted that the words in their ordinary and natural meaning - - - - __ d~ i~t~<! the Respondent as a p ~ sgn not w.ortby _gf_ being,---<...._____ _ _ _ Policeman or deserving any promotion. The woras were therefore injurious t o- the Respondent's reputation. Counsel -further referred us to the case of Zambia Daily Mail Limited v Charles Banda2 to support the proposition that the fact that the Respondent was a public officer who was subject to public scrutiny did not remove the ti, defamatory nature of the words com plained of. Counsel further submitted that the Appellant was seeking to introduce, directly or indirectly, the defence of justification, which was never pleaded. Counsel submitted that the Respondent objected when the Appellant's witness attempted to give evidence during trial that tended to bring the defence of justification. He submitted that the learned trial Judge correctly directed the Appellant not to go outside the defence pleaded in conformity with the rules of pleadings which, restricted parties to testify on what was pleaded. In aid of this proposition, he referred us to the case of Anderson Kambela Mazoka and others v Levy Patrick Mwanawasa and others3. Counsel further contended that the Appellant's defence of fair comment failed because the Appellant did not make any comment but presented facts as presented to them by their source of information. J9 On ground three, ~~nsel for the Respondent subm1ttec:!_gi_at on the-b-asis of the arguments in grounds one- and two , this ground - - - should fail and that the whole appeal ought to be dismissed. In the - alternative accordin to Counsel an award of K25 000 000 . (K2 s-;-Qotr.-CJ0)-Was very mo era e cons idenng the n a ture o t e defama ory worcts use against the Respondent and tn e Appellant's refusal to render an apology to the Respondent. We have carefully considered the evidence on record , and the ti submissions and the authorities from both learned Counsel. From the evidence , it is undisputed that the Respondent was employed as a Police Officer and that he was promoted from the rank of Inspector to Chief Inspector. It is undisputed that the Appellant radio station published the article , with the words complained of, on three consecutive days namely 3 r d , 4 th and 5 th September, 2005. It is also undisputed that the news broadcast, containing the words complained of, was supplied to the Appellant by the news agency, ZANIS. During trial in the court below there was an interlocutory - application for third party proceedings against the Attorney General, to indemnify or contribute to the damages, in the event they were awarded to the Respondent, but this is not a concern for this Court. Like Counsel for the Respondent, we will also deal with Grounds one and two together as the issues are related. Mr Mwansa argued that the words complained of were not defamatory ....u- - - ::.::..c.:::: JlO in their natu___r_al and ordinary meaning because the Respondent was a Public Officer and- was subsequently retired from the Police Service. We disagree with him. This court pronounced in Zambia - - - -~aily. Jdail 11 Charles Banda2 as apprcuz.e.cLin_Rodgers Chiteng ____ . __ _ -Sakuhuka v Sassassali Nungu1, that libel is the publication of a matter, usually words, conveying a d efamatory imputation as to a person's character, office or vocation. In the same case, we also approved the principle set out in Mwanza v Zambia Publishing Company Limited4 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 was def amatory." Here , as in the authorities cited above , the words complained of, spoke about the Respondent using words which tended to injure his reputation in his office as a Police Officer. The words tended to discredit his reputation and lower him in the estimation of right thinking members of society as a Police man. There was evidence to this effect. A number of people, some from as far as Lusaka, contacted the Respondent when they heard the news item in the three days of the broadcast (at page 135). The testimony of Constable Carlos Lube, PW2 , a junior officer, confirmed this view when he testified that he first heard about the news story from a friend in Choma before he heard it for himself on the radio (at pages Jll UB -13 2). PW2 testified that he was su_rprised at the content of the news broadcast as he - had known the Respondent for 15 years. broadcast by the Appellant,- was, no doubt , defamatory of the Respondent. On Mr. Mwansa's assertion that the publication was tru e or that it was a statement of fact because the Respondent was retired shortly after, and that h e did not challenge the retirem e nt during trial, we agree with the learned trial Judge that first , this defence was not pleade d. Secondly, we note that the Respondent's testimony at page 137 was that, PWl: published retired by (Appellant) before I was the Defendant "The the def amatory news President. Between the two events nothing happened. There was no charge against me and I was never summoned by my superiors. So I strongly suspected that the publication prompted the President to retire me." - And we also note that elsewhere, there was evidence that Police officers who faced charges in the Police Service had their names published in a bulletin, this was not the case for the Respondent (at page 139). Furthermore , there was uncha llenge d evidence that the Respondent was b eing promoted to positions of responsibility from the time he joined the police service in 1990 (at pages 134-135) and even up to the moment b efor e h e was retired at the age of 34 years . The Respondent explained to the Court that he was promoted a J12 month before retirement and posted to Luapula (at page 148). PWl_ - re-stated -this evidence during c ross examination. In the light of this evidence, we hold that there was a direct connection in the chain of ____ c=a=u=s=a=ti=o=n"---=b'--"'e'-"'tw...:....:....:,ec...:,e=n~-=th=e____,,r=e'"""'t1=· r=e=m=en~~~~a tion a 1 i nte.r_e_st of the Respon en a nd thepu 1ca 10n complainecfof. -Ou-r view is , althoug the Re-spondent- merely "suspected" that the words published prompted his retirement, there was enough evidence on record to confirm that the Respondent was retired as a result of the defamatory publication. In the same breath, although, Mr Mwansa argued that the Respondent did not challenge the retirement, we hold that his retirement was not in contention and neither was it in doubt. What was in issue was the cause of the retirement. Having concluded that the Respondent's retirement was a direct consequence of the article published by the Appellant, we re-affirm our holding in Zambia Publishing Company Limited v Pius Kakungu 5 , that "A defendant can only be liable for his own publication and the results of it". This brings us to the issue of the plea of justification. It is a well-settled principle that a Defendant must plead justification specifically {See Order 18/8/6(3) Rules of the Supreme Court {Whitebook) 1999 Edition). This the Appellant did not do. Further, as regards the Appellant's defence of fair comment, as correctly observed by the learned trial Judge, this defence applies only to .. l J13 corrunent being a mere expression of opinion, and n ot to assert10ns of fact. It i-s-cte-a-rfTOm tne Appellant's evidence on- recoro- fhat what it published was as it was given to it by ZANIS and that it did not make an comment as it was not their com}2_@y policy to do so - - page 1-4~)--:-The principle ar law is as stated by ffie learned autliors of Halsbury's Laws of England, tlia , "A matter, which does not indicate, with reasonable clarity, that it purports to be a comment and not a statement of fact, cannot be protected by a plea of fair comment." - - - For tliis reason-:- we agree with tlie Te arned- trial Judge's finding and Counsel for the Respondent's submission that the defence of fair comment had failed. On the basis of what we have stated earlier, we find no reason to disturb the findings of the learned trial Judge. Grounds one and two must fail. What remains to be decided is the quantum of damages. This court, in dealing with appeals against assessment of damages, has frequently been guided by the principle that, it should not interfere with the finding of the trial court as to the amount of damages unless it is shown that the trial court has applied a wrong principle or has misapprehended the facts or that the award was so high or so low as to be utterly unreasonable or was an entirely erroneous estimate of the damages (See Times Newspapers Zambia Limited v Andrew Kashita7). Further, we are mindful that the primary . ' .. • J1 4 object of an award for defamation has be~n to offer v1nd1cat1on and --sotatiurn -rather than monetary compensafion (Michael Sata v Post Newspapers and Another8). In light of our findings in Grounds one and two that the words com of were defama ory, we halo.that the Respon en 1s entitlea to amages. However, 1n following our decision - in Rodgers Chitengi Sakuhuka v Sassassali Nungu and Others1 , we find the award of K25,000,000.00 (K25,000.00) as excessive. We order that the quantum of damages be reduced to K15,000,000.00 (KlS,000.00). Ground three partially succeeds. Accordingly, this_appeal partially succeeds to the extent that- - the quantum of damages has been reduced. We order costs 1n favour of the Respondent to be taxed in default of agreement. L. P. CHIBESAKUNDA ACTING CHIEF JUSTICE H. CHIBOMBA SUPREME COURT JUDGE IN THE SUPREME COURT FOR ZAMBIA Rl HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: SCZ/8/233/2000 Appeal No 86/2007 MANHARLAL HIRJI PATEL APPLICANT AND SURMA STATIONERS LIMITED 1 ST RESPONDENT SHASHIKANI DEVRAJ VAGHELA 2ND RESPONDENT EMMANUEL MWANSA 3RD RESPONDENT _CORAM: Chibesakunda , Ag C. J, Chibomba~a nd Muyovwe, JJS On 26 th J a nua ry, 2011 , a nd 18th December , 2 0 13 FOR THE APPLICANT Mr. C. K. Bwa lya of Messrs D. H . Kemp FOR THE 1 8 T AND 2ND RESPONDENTS N/ A & Company FOR THE 3RD RESPONDENT Mr. E. B. Mwansa In Person Chibesakunda, Ag. C. J, delivered the Ruling. RULING This is a Notice of Motion to re-submit a preliminary objection before the full bench of this Court, pursuant to a Ruling of a Single Judge in Chambers delivered on 8 th April , 2010. The Applicant (Appellant) had prayed this Court to dismiss the 3 rd Respondent's Notice of Intention to raise a Preliminary Issue pursuant to Order 14A of the Rules of the Supreme Court (White book) 1999 Edition R2 and Summons to dismiss the Applicant 's B111 of Costs , on grounds that the apptications were untenable and lacked merit. Durin hearin before ChibesakuQda, J. S as she was then 1n Chambers~~r0- Respondent raised a preliminary po1n pursuan to Order 62 r ule 8(1). Order- 62 rule 8(1) state s the new principle- that:- "Costs are not to be taxed until the conclusion of the proceedings irrespective of the stage of proceedings at which the order is made, unless the Court expressly orders an earlier taxation. In such cases, it will order "taxation forthwith". Chibesakunda JS (as she was then) , then directed that in view of the provisions in Order 62 rule 8( 1) , raised in the preliminary point, the matter should be re-submitted before the full Court. Although, the matter came up for hearing on 26 t h January, 2011 , we have taken note that the 3 rd Respondent made an application. - His Application was to the effect that the issue in contention between the 3 rd Respondent and the Applicant had been settled amicably on 8 th October, 2010 and that as such, the 3 rd Respondent was no longer a party to the proceedings before this Court. This Court has also taken note of the correspondence from the 3 rd Respondent to the Applicant's Advocates, dated 25 th November, ' '. -' . ' R3 20 IO, and copied to this Court and the Advocates of the I st and 2 nd Respondents, indicating that the costs- mquestion had been paid to the Applicant after signing and sealing a Consent Order. In the light of this develo ment we hold that_the Motion before this Court has been overta. Ken 5y events and that any urtner proceedings on this matter would be rendered an academic -exercise. Accordingly, the Notice of Motion stands dismissed. We order each party to bear their own costs . 17 . ......... M. ..................... . L. P. CHIBESAKUNDA ACTING CHIEF JUSTICE H. CHIBOMBA SUPREME COURT JUDGE E. C. MUYOVWE SUPREME COURT JUDGE