Zambia Daily Mail Limited v Mwamba & Others (Appeal 62 of 2013) [2015] ZMSC 59 (9 September 2015)

., IN THE SUPREME COURT OF ZAMBIA APPEAL NO. 62/2013 HOLDEN AT KABWE (CIVILJURIDICTION) BETWEEN: ZAMBIA DAILY MAIL LIMITED APPELLANT AND GEOFFREY BWALYA MWAMBA 1ST RESPONDENT GERMINS MOTORWAYS LIMITED 2ND RESPONDENT GBM MILLING LIMITED 3RD RESPONDENT CORAM: Phiri, Wood and Malila, JJS. On lIth August, and 9th September, 2015. For the Appellant: Mr. J. C Kalokoni- Messrs Kalokoni and Company. For the Respondent: N/A. JUDGMENT Wood, JS, delivered the Judgment of the Court. CASES REFERRED TO: 1. Chief Bright Nalubamba and Zambia Co-operative Federation Limited v Muliyunda Wakunguma Mukumbuta (l987) Z. R. 75. 2. Nyirenda v Kapiri Glass Products Limited (l985) Z. R. 167. '.' J2 3. Joseph Banda v Zambia Publishing Company Limited (l982) Z. R. 4. 4. Peter Siwo v Times Newspapers Zambia Ltd (l987) Z. R. 46. 5. Lazarns Mumba v Zambia Publishing Company (l982) Z. R. 53. 6. Zambia Publishing Co. Ltd v Kapwepwe (l974) Z. R. 294. LEGISLATION REFERRED TO: Section 8 of the Defamation Act, Chapter 68 of the Laws of Zambia. OTHER WORKS REFRRED TO: Halsbury's Laws of England, 4th Edition, Volume 28. This is an appeal against a decision of the High Court to award damages to the respondents for libel in respect of an article published in the appellant's newspaper, whose implication was found to be that the respondents were insolvent and incapable of paying off their debts. The facts of this appeal are that on or about 3rd October, 2009, the appellant in its Zambia Daily Mail publication, a newspaper which enjoys wide circulation in Zambia and abroad published an article entitled "Court asked to dismiss GBM's firms' application." The details of the article were that a Lusaka based law firm had asked the court to dismiss an application by the 1st respondent's companies (being the 2nd and 3rd respondents) to set aside a default judgment in favour of the law firm in respect of unsettled legal fees. The article further alleged that the 1st respondent's companies had, despite several reminders, neglected or refused to settle legal fees amounting to K31, 862, 150.00 (un-rebased). The respondents commenced an action for libel against the • appellant claiming that, in their natural and ordinary meaning, the words in the article meant, or were understood to mean that the respondents were bankrupt, dishonest, insolvent, deceitful and not creditworthy. The words were also taken to mean that the respondents had failed to settle their legal fees and the 1st respondent, who was contesting the Parliamentary seat for Kasama Central Constituency, was not suitable for election as Member of Parliament. The respondents claimed that as a result of the article, they had been lowered in the estimation of right thinking members of society and had suffered ridicule, odium and scandal. They claimed that the business reputations for the 2nd and 3rd respondents had been injured as a result of the article. The respondents further averred that the article was false and J4 malicious, more so that the 1st respondent was not a party to the action commenced by the law firm against the 2nd and 3rd respondents and further that the action which was the subject matter of the law suit had been settled by consent order on 11th September, 2009. In its defence, the appellant claimed that the article was neither false nor malicious since the 2nd and 3rd respondents were indeed sued by Messrs Lewis Nathan Advocates for unpaid legal fees. It also claimed that the suit mentioned the I st respondent as one of the persons to whom legal services had been rendered. The appellant claimed that the contents of the article published were from a court record, being Cause No. 2009/HP/462 and were, therefore, privileged. It was contended that the article was accurate because the matter was still active in court and had not been resolved by consent as at the date of the article. It was further claimed that the article in issue was justified, fair and a bona fide matter of public interest. The appellant contended that none of the respondents suffered damage to their reputations on account of the J5 article complained of, especially the 1st respondent who went on to win the Kasama Central Parliamentary seat by a landslide victory. In her judgment, the learned trial Judge found in favour of the respondents. She held that the implication of the article was that the respondents were insolvent and incapable of paying their debts. She also found that the 1st respondent was not a party to Cause No. 2009/HP/462 in which Messrs Lewis Nathan sued the 2nd and 3rd respondents. She further found that at the time the story was published Cause No. 2009/HP/462 had already been settled by way of consent judgment dated 11th September, 2009. The appellant's defence of justification and fair comment failed because even though the contents of the story were taken from a court record, the article was published with malice as the matter had already been settled by consent at the time the article was published. According to the learned trial Judge, the article was intended to lower the respondents' reputation in the estimation of right thinking members of society including corporate bodies and as a result, the respondents had suffered ridicule, odium and scandal. She concluded that the 1st respondent, in particular, was traumatised J6 as the article was published whilst on his campaIgn trail in Kasama. She accordingly awarded the respondents general and punitive damages. The appellant was not satisfied with the judgment and filed in five grounds of appeal. The respondent did not file in any heads of argument in response and neither did they appear at the hearing of the appeal. Ground one of the appeal was that the learned trial Judge misdirected herself at law when she found that the publication of the matter of unpaid legal fees though truly existing on the record of the court, was malicious and meant to lower the reputation of the respondents. In this ground, Mr. Kalokoni contended that the appellant's defence identified the source of the story as being a High Court record which, he argued, was a reliable source. He pointed out that the appellant did not alter the contents of the story in any way so as to impute malice. He argued that the respondents should not have succeeded in their claim as the defence of privilege that the appellant raised was not rebutted. In support of this argument, Mr. J7 Kalokoni cited the case of Chief Bright Nalubamba and Zambia Co- operative Federation Limited v Muliyunda Wakunguma Mukumbuta1 in which we held that without a plea of express malice, the defence of qualified privilege must succeed. Ground two of the appeal was that the learned trial Judge misdirected herself in law and fact when she held that the 2nd and 3rd respondent's business suffered injury as a result of the publication when no evidence was led in proof of such injury. In ground two, Mr. Kalokoni argued that there was no evidence adduced by the 2nd and 3rd respondents to show that they had suffered injury to their businesses as alleged. There was, therefore, no evidence on which the learned trial Judge anchored her finding of injury to the 2nd and 3rd respondents' business. He cited the case of Nyirenda v Kapiri Glass Products Limited2 in which we looked at the circumstances of the case and the seriousness of the libel when considering the quantum of damages to award in a case of libel. In ground three, it was contended that the learned trial Judge misdirected herself in law and fact when she impeached the quality J8 of the search conducted on the court file as unprofessional, merely because it did not refer to a consent having been executed, though the subject matter of the search, that is, the matter of the unpaid legal fees, was correctly articulated. In this ground, Mr. Kalokoni argued that the article published by the appellant was not libelous as the case of Lewis Nathan Advocates v Germins Motonuays Limited & GBM Milling, 2009/ HPC/ 462 involving legal fees, which case was eventually settled by consent judgment existed. Ground four of the appeal was that the learned trial Judge misdirected herself in law and fact when she found that the words published were libelous and meant that the respondents were insolvent, without regard to the fact that the 2nd and 3rd respondent were sued for failure to pay legal fees. Under this ground, Mr. Kalokoni contended that merely publishing that the respondents owed or had not paid their legal fees without anything more cannot be taken to mean that the respondents were insolvent or give rise to any adverse imputation or inference of malice. In support of this submission, Mr. Kalokoni .' J9 cited the case of Joseph Banda v Zambia Publishing Company Limited3 in which we held that: "In deciding whether the words complained of are defamatory it is necessary to consider them in conjunction with the circumstances of the publication, which in this case is the nature of the plaintiffs work which required direct dealings with the public." Ground five of the appeal was that the learned trial Judge misdirected herself in law and fact when she accepted wholesale, the respondents claim though none of the respondent's witnesses adduced any credible evidence in proof of any injury suffered. In this ground, Mr. Kalokoni submitted that the finding of liability against the appellant was not supported by evidence. In particular, he contended that none of the respondents' adduced evidence to prove any nominal or substantial prejudice suffered as a result of the article published in the appellant's newspaper. In particular, he pointed out that the article did not prejudice the 151 respondent in any way as he went on to win the Kasama by-election with a landslide victory. He further contended that there was no evidence of injury suffered by the 2nd and 3rd corporate entities, on account of the article complained of. This he contended, was " because the words published were not shown, even casually to impute any scandal, odium, ridicule or indeed to have caused any adverse impact on the respondents reputation. Mr. Kalokoni contended that the derogatory imputations sought to be drawn from the article did not arise in the ordinary meaning of the story. In support of his submissions, he cited the case of Peter Siwo v Times Newspapers Zambia Ltd4 in which we held that: "Where privileged words could lead to a reasonable inference that a defendant was guilty of certain activities, it is not actionable to make reasonable comments thereon." We have considered the judgment appealed against and the heads of argument filed in respect of this appeal. The two Issues that arose in this appeal were whether the appellant had successfully raised the defence of qualified privilege and whether the respondents had suffered any injury on account of the article published, so as to entitle them an award in damages. We agree with the finding of the learned trial Judge that the article published of the respondents was defamatory as it implied that they were incapable of settling their legal fees. Even though the article was derived from a court record, it did not give a fair account ,.' J11 of the matter as it existed and that is why the learned trial Judge impeached the quality of the search conducted by the appellant. The article complained of appeared in the Daily Mail on 3rd October, 2009. As at that date, the 2nd and 3rd respondents had already executed a consent order dated lIth September, 2009, in respect of the outstanding legal fees. The appellant did not report the contents of the consent order, thereby rendering the contents of the publication inaccurate and creating an impression in the minds of the public that the 2nd and 3rd respondents were, as at the date of the publication, appearing in court for failure to settle their legal fees, Section 8 of the Defamation Act, Chapter 68 of the Laws of Zambia states that: • "A fair and accurate report in any newspaper of proceedings publicly heard before any court exercising judicial authority within Zambia shall, if published contemporaneously with such proceedings, be absolutely privileged." In the case of Lazarus Mumba v Zambia Publishing CompanyS, we considered Section 8 of the then Defamation Act, Chapter 70 of the Laws of Zambia, which is identical to the Section 8 under the current Defamation Act. In that case, we held that: " J12 "For a defence under s. 8 of the Defamation Act to succeed, the account must be contemporaneous, fair and accurate; failure of anyone of the three conditions destroys the absolute privilege. " The article published by the appellant did not fall within Section 8 of the Defamation Act as it was not published contemporaneously with and did not give an accurate account of the proceedings. The judgment in default of appearance that the article referred to was entered on 24th July, 2009 and the story was published more than two months later. While it is true that Cause No. 2009/HP/462 had existed, the article was not a fair account of the proceedings because it neglected to indicate that the matter had been settled by consent of the parties on 11th September, 2009. Further, the 1st respondent, to whom the story referred to extensively, was not even a party to the proceedings. A proper search on the court record would have revealed to the appellant that the matter it was reporting on had already been settled. Mr. Kalokoni also argued that the learned trial Judge erred when she held that the article was published with malice, without regard to the fact that the article was derived from a High Court record and that the appellant did not alter the contents of the story J13 in any way so as to impute malice. We have already stated that the article was defamatory as it was not a fair and accurate report of the proceedings in court. Paragraph 16 of Halsbury's Laws of England, 4th Edition, Volume 28, states that if words are found to be defamatory, falsity and malice will be presumed. The complainant need not prove that the words used were false or malicious. The appellant's defence of qualified privilege clearly failed. The learned trial Judge was also on firm ground when she awarded the respondents general damages despite the absence of proof of any injury suffered. In Paragraph 18 of Halsbury's Laws of England, 4th Edition Volume 28, the following is stated on damages in libel: "If a person has been libeled without any lawful justification or excuse, the law presumes that some damage will flow in the ordinary course of events from the mere invasion of his rights to his reputation but having proved a statement defamatory of him and not excused by any available defence, he is always entitled at least, to nominal damages. " The appellant's claim that the 1sl respondent did not suffer any damage because he went on to win the Kasama Central Parliamentary seat with a landslide victory also lacked merit. In the case of Zambia Publishing Co. Ltd v Kapwepwe6, we held that: J14 "It is not necessary for a politician, of whom a statement has been published which is likely to damage him politically, to prove that he has in fact been damaged or that he is likely to be so damaged in the future; the law presumes these consequences. " For the reasons given above, the 2nd and 3rd respondents equally did not have to show proof of the injury suffered as a result of the defamatory article. The finding of liability in itself entitled them to some award for damages. We, however, observed that the learned trial Judge awarded the respondents general and punitive damages as prayed for. We do not think this was a proper case m which to award punitive damages. The learned authors of Halsbury's Laws of England have stated m Paragraph 18 of the above referred to volume that exemplary damages: "may be awarded where a defendant with a cynical disregard for the plaintiffs rights, has calculated that the money to be made out of his wrongdoing will probably exceed the damages at risk and serve to teach a wrongdoer that tort does not pay. Thus, exemplary damages may be awarded where the defendant has published in a newspaper a defamatory statement knowing it to be untrue or reckless whether it be true or false with the object of making a profit or gaining some other benefit from publishing it. " In the case of Nyirenda v Kapiri Glass Products Limited2 we stated that for the court to award punitive damages there must be proof of the fact that ~ ; there w<.:.scontumelious disregard of the ~ plaintiffs rights or other circumstances to ..justifY the award of ,~4 ,'4 exemplary damages. The circumstances of this case do not justify an award of punitwe ,damages. An award of general damages will suffice. The appeal in respect of the award of punitive damages is allowed. We accordingly award general damages in the sum of K20, 000.00 to the 1st respondent and the sum of K15, 000.00 each to the 2nd and 3rd respondents. This appeal succeeds to the extent indicated, with costs to the respondents to be taxed in default of agreement . ............... I.e. MAMBILIMA CHIEF JUSTICE . ~, 'I'" 1bE~J~/ ( ,'-/ - ./ " .~.:.k:': L' ,. ' . ................. E. M. HAMAUNDU SUPREME COURT JUDGE ....... A~~D .....".... SUPREME COURT JUDGE