Times Newspapers Ltd v Chaile and Anor (Appeal 173 of 2000) [2007] ZMSC 175 (6 March 2007)

IN THE SUPREME COURT OF ZAMBIA HOLDEN AT LUSAKA APPEAL NO. 173A/2000 B E T W E E N: TIMES NEWSPAPERS (Z) LIMITED APPELLANT AND I FANNY B. CHAILE AMOS CHAILE 1st RESPONDENT . 2nd RESPONDENT i CORAM: NGULUBE, CJ,. CHAILA, LEWANIKA, JJS On 6th March, 2001 and 6th March, 2007 For the Appellant: For the Respondent: P. CHISI of Chifumu Banda & Associates No Appearance ' JUDGMENT. LEWANIKA, DCJ delivered the judgment of the Court. AUTHORITIES REFERREELTQ:- 1. 2. 3. 4. THE ATTORNEY GENERAL VS D. G. MPUNDU, 1984 ZR 6 THE ATTORNEY-GENERAL VS KATWISHI RAPANDULA, SCZ APPEAL NO. 36 OF ’ EASTERN COOPERATIVE UNION VS YAMENE TRANSPORT LIMITED, 1988-89 ZR ' PAUL ROLAND HARRISON VS THE ATTORNEY-GENERAL, APPEAL NO. 36 OF | ...... i- The delay in the rendering of this judgment is very much regretted but it was occasioned by circumstances beyond our control. When we heard this appeal the panel included our late brother the Hon. Mr, Justice CHAILA and following his unfortunate demise this judgment is to be regarded as by the majority. This appeal is against the quantum of damages awarded to the ’ Respondents for libel. The action arose out of an article that appeared in the TIMES OF ZAMBIA of 1st December 1998, which alleged that the Respondents were stealing the bodies of still bom babies from mortuaries and placing them in fridges in their butcheries to attract business. After setting out the general details of the claim the statement of claim was couched in tlie following terms I . " The Plaintiffs therefore claim (a) Damages for libel and slander, exemplary and punitive damages, special damages, interest thereon and costs; (b) Damages for loss of expectation of life of their daughter. At the trial in the court below liability was not disputed and the Appellant did,;not adduce any evidence. In his judgment the learned trial Judge disallowed the claim for loss of expectation of life but awarded the Respondents tlie sum of K6 million for mental anguish. He also awarded the Respondents K12 million as general damages for libel. For loss of business and profits the learned trial Judge awarded the Respondents damages of K6 million per month for twelve months following the principle set out in the case of EASTEN COOPERATIVE UNIONS VS YAMENE TRANSPORT (3) making a total of K72 million although on review the amount was reduced to K4.5 million for twelve months making a total of K54 million. He also awarded the Respondents K3 million as exemplary or punitive damages. It is against these awards that the Appellant has appealed. Counsel for the Appellant has filed two grounds of appeal namely:- 1. That the learned trial Judge erred in law by awarding special damages for loss of business as the same were generally pleaded in the statement of claim and not proved; 2. That the learned trial Judge erred in awarding damages for mental anguish as the same were not pleaded. Arguing tlie first ground of appeal Counsel for the Appellant submitted that tlie general principle of law is that unusual or special damages must be specifically /pleaded in tlie statement of claim and must be proved, thereby showing tlie Defendant the case he has to meet at the trial. He referred us to the case of THE ATTORNEY-GENERAL VS D. G. MPUNDU (1) on this point. He also referred us to the case of THE ATTORNEY GENERAL VS KATWISHI KAPANDULA (2) where he i said that it was held-that in claims of special damages either documentary or independent evidence should be adduced in support. Counsel said that in this case special damages were generally pleaded without providing independent documentary evidence. He said that a bank statement showing earnings per day or per month would have been more credible than the hand written statements from the Plaintiffs. He said that in the circumstances a nominal award of KI million per month as suggested in the judgment on review would suffice. He further _ submitted that the period of loss of twelve months is excessive and said that tlie period should be limited to six months as was held in tlie case of EASTERN COOPERATIVE UNION VS YAMENE TRANSPORT (3) and he urged us to set aside the award. As to the second ground of appeal, Counsel said that as provided under Order 18 of the Rules of the Supreme Court together with tlie case of PAUL ROLAND HARRISON VS THE ATTORNEY-GENERAL (4), a claim for damages for mental anguish must be specifically pleaded in the statement of claim with the facts relied on. That if not specifically pleaded the claim forms part of the general damages. He submitted that in this case, there was no basis upon which the learned trial Judge awarded this claim when it was not pleaded. He said that the general damages awarded in the sum of K12 million were sufficient and urged us to set aside the award. We are grateful to counsel for the Appellant for the submissions made ! in this appeal. We shall start with the award of K6 million to the Respondents for mental anguish. This claim was not pleaded in the statement of claim and no damages should have been awarded by the learned trial Judge under this head and we would set aside this award. As for the award of K54 million as special damages for loss of business and profit, it is trite law in an action for libel or slander that a Plaintiff may prfevb'special or consequential damage, provided he claims it in his pleading, but not otherwise. As we have already pointed out, the Respondents in their statement of claim, claimed: “damages for libel and slander, exemplary and punitive damages, special damages, interest thereon and costs.” There were no particulars set out in the statement of claim as to what constituted the “special damages. ” The learned trial Judge should not have awarded special damages as the same were not specifically pleaded in the statement of claim. We would likewise set aside this award. As for the award of K3 million as exemplary or punitive damages by the learned trial Judge, we would quote from the thirteenth edition of CLERK AND LINDSELL on torts where the learned authors stated as follows on paragraph 1827:- “Exemplary or punitive damages are no longer recoverable in defamation except where there has been an abuse of power, i.e. oppressive, arbitrary or unconstitutional action by servants of the Government dr where the Defendant’s conduct has been deliberately calculated by him to make a profit for himself which may well exceed the compensation payable to the Plaintiff, e.g. by a newspaper deliberately publishing a defamatory statement with a view to increasing its circulation. This latter condition will not be fulfilled simply because it is published in a newspaper which is itself published for profit but it will be fulfilled where a newspaper deliberately publishes a statement knowing it to be false or recklessly careless whether it be true or false, and on the calculated basis that, the compensatory damages would be less than the profit from the publication. ” We have examined the evidence on record and there is no suggestion that the Appellant intended to profit from the publication of the offending article. If anything, the evidence on record is that the Appellant on 4th December 19’98 published an apology on its front page retracting the offending article. In the circumstances the learned trial Judge should not have awarded the. Respondents exemplary or punitive damages and we would also set aside this award. The sum total of our holding is that the Respondents would receive K12 million as general damages for the libel. We make no order as to costs. M. M. S. W. Ngulube CHIEF JUSTICE D. MTUewanika DEPUTY CHIEF JUSTICE 6