Zambia National Broadcasting Corporation v Hamududu (SCZ Appeal 104 of 1997) [1998] ZMSC 102 (30 October 1998)

t IN THE SUPREME COURT FOR ZAMBIA SCZ APPEAL NO. 104/1997 HOLDEN AT LUSAK. (Civil Jurisdiction) ZAMBIA NATIONAL BROADCASTING APPELLANT CORPORATION AND CHARLES DENNY HAMUDUDU RESPONDENT Coram: Sakala ADCJ, Chaila and Chirwa JJS 1st October and .30th October, 1998. For the Appellant: Mr. E. B. Mwansa, EBM Chambers. For the Respondent: Mr. L. Mukande. ________________________ JUDGMENT Sakala JS delivered the Judgment of the Court. This is an appeal against an assessment of damages in the sum of K20 million awarded by the High Court (Mutale J.) to the respondent for slander contained in a Radio Tonga Programme entitled “Habuzya Takolwi Bowa” published and broadcast by the appellant on 13th January, 1990 at about or between 2100 hours to 2200 hours. The facts of the case are that on 13th September 1994, the court entered judgment in favour of the respondent. The court then ordered that assessment of damages be made by the Deputy Registrar. However counsel for the respondent applied that the assessment be done by the same court on the ground that it would have been costly and inconvenient for the respondent and his witnesses to be recalled to give same evidence already before court. The court reviewed its earlier order that assessment be done by the Deputy Registrar and ordered that the same court would do the assessment which was done based on the evidence already on record and the submissions made by counsel. In his judgment on assessment the learned trial judge briefly reviewed the facts. These were that the appellant published an anonymous letter on Radio Zambia alleging that the respondent, who was a Ward Chairman in Mazabuka District Ward 15 and working in Lubambo Ward, was working hand in hand with thieves and were stealing cattle and slaughtering them at Mwanamainda and that the respondent was boasting that he would buy a lorry. The appellant’s announcer, Jeniffer Chikompa is alleged to have told the listerners that the Ward Chairman was not fit to be a leader and urged the District Governor to remove him as Ward Chairman. The court then reviewed the submissions and considered the guidelines given by this court in various decisions in defamation and detention cases on quantum of damages. On the basis of the guidelines the learned trial judge awarded K20 million. In arguing the appeal Mr. Mwansa submitted that the appellant had a monopoly of programmes at the material time and therefore the element of making profit in publishing the material complained of did not arise. Counsel contended that the substance of the Programme was educational to the Zambian people other than making profit. In response Mr. MMkande submitted that the respondent being a monopoly at that time, they should have been extra conscious before airing the contents of the document which referred to one’s character. He submitted that although the communication was limited by language and that it was only a single broadcast made late in the night, it was reckless in that no effort was made to verify the contents of the document. We have considered the learned trial judge’s Judgment and the submissions by both counsel. We note that while the learned trial judge reviewed the decisions of this court in great detail, he did not make specific findings of fact in his assessment. The crucial facts in this case relevant to quantum of damages are that the nature of the broadcast, in a vernacular language, must have been limited to a community that understood that language. It was a single short broadcast, late in the evening. In addition the actual letter itself was not produced. These matters, which in our view must have weighed heavily in the assessment of damages, were not referred to in the judgment of the learned trial judge. We are satisfied that in awarding the sum of K20 million, as damages, the court misapprehended the facts of the case. The damages were unreasonably too high that we must interfere. The award of K20 million is set aside; in its place we award K2 million. The appeal is allowed but we make no order as to costs. E. L. Sakala, ACTING DEPUTY CHIEF JUSTICE. M. S. Chaila, SUPREME COURT JUDGE. D. K. Chirwa, SUPREME COURT JUDGE.