COBBETT-TRIBE v THE ZAMBIA PUBLISHING COMPANY LIMITED (1973) Z.R. 9 (H.C.)
HIGH COURT DOYLE, C.J.
22ND JANUARY, 1973.
(CAUSE NO. HP 1232 OF 1971)
Flynote
Tort - Defamation - Defamatory words directed at a class of persons of limited number - Plaintiff member of the class - Whether entitled to sue.
Tort - Defences - Defence of fair comment - Expression of honest opinion - Imputation of improper motives.
Tort - Damages - Compensatory - Punitive or exemplary - When awarded.
Headnote
Plaintiff was the Vice - President of the Law Society of Zambia. The Council of the Society, consisting of the President, Vice - President, Secretary and four members, issued a statement urging the Government to bring to trial or before a tribunal persons detained under the Public Security Regulations. Defendants published in their daily paper, the Zambia Daily Mail, statements imputing professional dishonesty, ignorance and immorality to the members of the Council. In an action brought by the plaintiff to recover from the defendants damages compensatory and exemplary for the libellous statements made concerning him -
Held:
(i) Where defamatory words refer to a limited class of persons of which plaintiff is one, each and every member of the class has a right of action for defamation.
(ii) The defence of fair comment cannot avail the defendant where the allegations made cannot fairly and reasonably be inferred from the facts and where the defendant does not honestly believe in the truth of the allegations.
(iii) While awarding compensatory damages a court can award aggravated damages where the court feels that the defendant's conduct merits it, and where awarded the essence of aggravated damages is that they are
compensatory on the highest scale.
(iv) In addition to aggravated damages, the court can award exemplary damages in cases where the defendant wantonly, maliciously or contumeliously does great harm to the plaintiff and where giving such damages will bring home to him that tort does not pay and will restrain him in the future from indulging in similar conduct. In case of a newspaper, aggravated damages may be awarded to bring home to it its duty, where it is possible, to verify facts before publishing them which can damage other persons and where, it fails to make amends by suitable apology or otherwise for publishing statements shown to be untrue.
Cases cited:
(1) Rookes v Barnard [1964] A.C. 1129;
(2) Cassell and Company Limited v Broome [1972] 1 All E.R. 801;
(3) Uren v John Fairfax and Sons Ply Ltd 117 C.L.R. 118;
(4) Australia Consolidated Press Ltd v Uren [1969] A.C. 590;
(5) Ley v Hamilton [1935] 153 L.T. 384;
(6) Greenlands v Wilmhurst [1913] 3 K.B. 507.
Legislation referred to:
The Law Society of Zambia (Private) Act, Cap. 47 of the Laws of Zambia.
For the plaintiff: R.G. Care and A.P. Annfield, Peter Cobbett - Tribe and Co.
For the defendant: W.Mung'omba, Jaques and Partners.
Judgment
DOYLE, C.J.: This is an action for libel. The writ was issued on the 10th December, 1971, and the statement of claim on the 9th May, 1972. The latter reads as follows:
'1. The plaintiff is and was at all material times admitted to practise as an advocate in the Republic of Zambia and is and was at all material times the Vice - President and one of the seven members of the Council of the Law Society of Zambia which is established by the Law Society of Zambia (Private) Ordinance, Chapter 145 of the Laws of Zambia, which facts are public knowledge.
'2. The defendant is the proprietor and publisher of the Zambia Daily Mail, a newspaper having a wide daily circulation throughout the Republic of Zambia.
'3. The Council of the Law Society of Zambia held a meeting on the 24th day of September, 1971, following which it caused to be handed to the defendant a "Press Release" in the following terms:
"The Council of the Law Society of Zambia at a meeting in Lusaka on Friday, 24th September, 1971, reiterated its belief in the rule of law, the very essence of which is that a person should not be deprived of his liberty without first being brought before a
court of competent jurisdiction, faced by his accusers and given the opportunity to present such defence as he might have.
"In view of the serious concern which has been expressed by many members of the community, the Council urges that the persons recently detained be brought to trial (or) before a tribunal as provided by the law as soon as possible.
"By so doing the nation would be further acquainted with the circumstances surrounding the very serious matters referred to by His Excellency in his statement, matters which prejudice the peace, order and good government of this land."
'4. (i) In the edition of the Zambia Daily Mail published by the defendant on the 27th day of September, 1971, there appeared on page one thereof an article making reference to the Press Release set out in paragraph 3 hereof and which article contained (inter alia) the following passages:
"The Law Society of Zambia is in the dock today - accused of ignorance.
"The lawyers are reported to have said in a statement that the essence of the rule of law was that people should not be deprived of their liberty without first being brought to court.
"Mr Chuulu yesterday questioned the legal basis upon which the Council of the Law Society issued the statement . . .
"If it is correct that the Council said that the arrest and detention (of the UPP supporters) were an erosion of the rule of law, then such a statement can only be made by an ignorant lawyer.-"
'(ii) In the same edition of the Zambia Daily Mail referred to in sub-paragraph
(i)of this paragraph, there appeared on page 6 the following passages (inter alia):
"It is therefore very disturbing to hear that a group of anonymous lawyers are now calling upon the Government to bring the detainees to court. This, we are told, follows a secrete meeting of the Law Society of Zambia which was not attended by the Press.
"He [the Attorney-General] has described the bunch as ignorant lawyers who hardly understand the Law they claim to know."
'5. In the same edition of the Zambia Daily Mail referred to in paragraph 4 hereof, the defendant falsely and maliciously an wrote and published of the plaintiff and of him in the way of his profession and position as Vice - President of the Law Society of Zambia and in relation to his conduct therein the following words (hereinafter referred to as "the said words"):
"These are a bunch of fortune-seekers who see in the large numbers of detained UPP men a very good source of their income.
"The only reason these lawyers want to see the men brought before the courts, and the reason they are now putting pressure on the Government to bring these men to court, is to ensure they get their custom.
"Is this not a very wicked and immoral way of making a living? Is it not as wicked as the actions of an undertaker who hangs around a dying man and tells the relatives of the dying person that he makes the most beautiful coffins before the sick man dies)"
'6. By their natural and ordinary meaning the said words meant that the plaintiff was immoral in the practice of his profession and was expressing the views set out in the Press Release in paragraph 3 hereof for dishonest or ulterior motives.
'7. Further or in the alternative by the said words, the defendant meant and was understood to mean that the plaintiff was guilty of practices rendering him unfit to practise his profession and/or liable to disciplinary action.
Particulars Pursuant to RSC Order 82, Rule 3.
"For an advocate to act or behave in the manner or for the reasons set forth in the said words in paragraph hereof is to be guilty of professional misconduct or unprofessional conduct in his profession."
'8. The facts and matters relied upon to show that the said words referred to the plaintiff are paragraphs 1, 3, and 4 hereof
'9. The plaintiff has, in consequence of the said words, been seriously injured in his character and in the way of his office as Vice- President of the Law Society of Zambia and of his profession and has been brought into public scandal and odium and contempt.
AND THE PLAINTIFF claims damages.'
The defence was filed after some prodding by plaintiff's solicitors on the 24th July, 1972.
It reads as follows :
'1. The averments in paragraph 1 of the Statement of Claim are admitted save that it is denied that the plaintiff's office and membership of the said Council were matters of public knowledge.
'2. The averments in paragraph 2 of the Statement of Claim are admitted.
'3. The averments in paragraph 3 of the Statement of Claim are admitted.
'4. The defendant admits it published the words set out in paragraphs 4 and 5 of the Statement of Claim.
'5. As regards paragraph 5 of the Statement of Claim, the defendant denies it wrote or published the said words of the plaintiff or of him in the way of his said occupation, profession or employment or in relation to his conduct therein.
'6. The defendant denies that the words set out in paragraph 5 of the Statement of Claim bore or were understood to bear any of the meanings alleged in paragraphs 6 and 7 of the Statement of Claim or any other meaning defamatory of the plaintiff.
'7. The said words set out in paragraph 5 of the Statement of Claim are fair comment upon a matter of public interest; namely, the issue by the Council of the Law Society of a press statement commenting on the detention of certain persons by the order of His Excellency the President.
'8. The defendant denies each and every allegation contained in paragraphs 6 and 7 of the Statement of Claim.'
The case came for trial on the 23rd November, 1972. On that day counsel for the defendant applied for an adjournment on the grounds that he had no instructions as the Board of the defendant company had not met to give them, that a witness was not present, and that the pleadings were his client's pleadings and not those of counsel. I had difficulty in apprehending the last ground as the defence was signed by a member of the firm of which counsel was a member and it clearly sets out a denial that the words applied to the plaintiff or that they were defamatory, with, in addition, a plea of fair comment.
I declined to grant an adjournment on these grounds but intimated that the application could be renewed in respect of the absent witness at the end of the plaintiff's case. At
the close of the plaintiff's case I asked defence counsel if he wished an adjournment for his witness and if so would he indicate the nature of the evidence the witness would give. Counsel's reply on the latter query was that he had not any idea. I there for finally refused an adjournment and completed the hearing.
In the result, defendant's counsel took no part in the hearing other than to agree some documents and did not address me on the facts or law applicable. I was therefore deprived of any assistance from the defendants.
The plaintiff gave evidence. He was, at the material time, the Vice President of the Law Society of Zambia and a member of the Council of that Society.
Following the detention of a number of persons the Council had issued a statement, No.
2 in the agreed bundle of documents, and set out in paragraph 3 of the Statement of Claim. A copy was given to the defendant. The defendant had then published in its newspaper, the Zambia Daily Mail, an editorial on the 27th September, 1971, No. 3b in the agreed bundle, which reads as follows:
' When President Kaunda announced the detention of several officials, and members of the United Progressive Party last week, he took the trouble to explain that the men would be questioned in connection with a number of crimes with which they had been associated.
'The President stressed to the nation that immediately be questioning was through, those to face charges would be charged and those who will be cleared will naturally be set free.
'At no time did he suggest that these men would be detained for ever. Nor did he ever suggest that these men were being held without cause.
'The crimes about which the men are being questioned involve oath-taking, gun- running and the training of Zambians outside the country as soldiers.
'All these are serious crimes against the State and if the police have to get to the bottom of these matters they should be given enough time to investigate and interrogate all those who are said to be connected with them.
'Furthermore, the men were detained in accordance with the law of this country.
In other words, these were lawful detentions.
It is therefore very disturbing to hear that a group of anonymous lawyers are now calling upon the Government to bring the detainees to court. This, we are told, follows a secret meeting of the Law Society of Zambia which was not attended by the Press.
'In the first place, the public is entitled to know who these lawyers are. Secondly, why should they choose to refuse to invite the Press when they know they are going to discuss such a serious matter?
'The country is also entitled to know where the hell they were when Welensky and Arthur Benson were rounding up all the members of the then Zambia National Congress and putting them in detention and restriction without getting them to appear in court?
'If they are so worried about the rule of law, why should it suddenly interest them now when they appeared to approve all the harsh measures that Arthur Benson and Welensky took against the masses of this country?
'If these lawyers are of British origin, surely the place to preach such platitudes is in Britain, where Heath is interning the Irish without getting them to appear in court and without even promising them that they would ever appear in court.
'And if they are from the United States of America, they should go to that country and help Miss Davis and the Soledad remaining brother to get a fair hearing. There are many causes they can fight for in that country.
'And if these lawyers are black, why do they not quit the country and settle in one of our many black countries where the soldiers are ruling. It is in places like these where the soldiers are in control where their services are badly needed. Or are they so lily- livered that their big mouths would be shut on arrivals
'The Attorney-General, Mr. Fitzpatrick Chuula, who is also a lawyer, and perhaps one of the very few honest ones, has bluntly told the Law Society of Zambia to go to hell and get roasted.
'He has described the bunch as ignorant lawyers who hardly understand the law they claim they know. Mr. Chuula is right. These are a bunch of fortune-seekers who see in the large numbers of the detained UPP men a very good source of their income.
'The only reason these lawyers want to see the men brought before the courts, and the reason they are now putting pressure on the Government to bring these men to court is to ensure that they get their custom. Is this not a very wicked and immoral way of making a living? Is it not as wicked as the actions of an undertaker who hangs around a dying man and tells the relatives of the dying person that he makes the most beautiful coffins before the sick man dies?
'It is time some of these people, who seem to enjoy telling us how to run our affairs when they dare not do so in their countries, were given a good telling off. If they do not like it here., let get out. Nobody is going to bother asking them to return to this country. They should understand that it is their own living they are earning in this country that keeps them here.
'And if they are Zambians, there is no law in this country that bars them from joining the United Progressive Party. Let them come out in the open instead of hiding behind the formless Law Society of Zambia.
'It is time that some, people in this country were told a few home-truths and these are that nobody is really important outside the organisation to which he belongs. The student is only important when he is a student acting as a student body and a Cabinet Minister when he is Minister and a lawyer when he is a member of the Law Society.
Outside these organisations, they are nothing as individuals. Some people are learning this the hard way. We hope lawyers do take note of this fact.'
It had also published a comment, No. 3a in the agreed bundle, which reads as follows:
'The Law Society of Zambia is in the dock today - accused of ignorance. This was Attorney-General, Fitzpatrick Chuula's sharp reaction to demands by the Society that the detained supporters of the United Progressive Party should be brought to court.
'The lawyers are reported GO have said in a statement that the essence of the rule of law was that people should not be deprived of their liberty without first being brought to court.
'Mr. Chuula yesterday questioned the legal basis upon which the Council of the Law Society issued the statement since the lawyers were supposed to know that the State' is obliged to observe the procedures which govern detentions.
'The Attorney-General accused the society of having acted prematurely. In a statement issued in Lusaka he said: "The responsibility of a lawyer is to ascertain what the law is and what procedure is provided in that law. It is not for him to mislead the community." ' "If it is correct that the council said the arrest and detentions (of the UPP supporters) were an erosion of a rule of law, then such a statement can only be made by art ignorant lawyer," said Mr. Chuula.'
After the publication, numerous persons had discussed with him the articles. They had associated the plaintiff with them and had expressed surprise and disgust. The latter part of his evidence was hearsay but I mention it for reasons which will become
apparent subsequently. Plaintiff wrote to the defendant asking for an apology but received no reply from the defendant. Subsequently he received a letter, No. 7 in the agreed bundle, from the defendant's solicitors.
At the time of the publication of the Council's statement, the plaintiff was acting for members of the African National Congress Party. Mr Nalumino Mundia also gave evidence. He was Vice - President of the African National Congress and had known the plaintiff for a number of years as the plaintiff had acted as lawyer for him on a number of occasions. He had seen the articles in the Zambia Daily Mail and considered that they referred to the officials of the Law Society of which the plaintiff was one. He thought that the articles referred to the plaintiff.
I accept the evidence given for the plaintiff, a large part of which is in fact not denied by the defendant.
The questions which now arise are:
(a) Are the words complained of in the Statement of Claim defamatory?
(b) If so, are they defamatory of the plaintiff?
(c) And, if so, what are the damages?
The statement put out by the Council of the Law Society is not an unusual one. It is the sort of statement which has been put forward by persons in many countries where detention without trial forms part of the-law. There is nothing mischievous in it. It merely expresses a view that detained persons should be tried or brought before a tribunal as soon as possible.
The statement, I think, could have been fairly criticised on the ground that it did not give fully the other side of the picture. The rule of law inter alia requires that no person shall be detained without trial. This is clearly enshrined in section 15 of the Constitution of Zambia. As detained persons are detained without trial this can, in a temporary sense, be described as an erosion of the rule of law. But section 26 of the Constitution also provides for derogation from the enshrined rights when a state of emergency exists.
Detention under emergency powers is precautionary. It is used for the protection of the State and in many cases the information which leads to detention, though sufficient to raise the suspicion which warrants the detention, is quite insufficient to enable the launching of a criminal prosecution. Frequently, also, the information which causes the detaining authority to act cannot for security reasons be published for the information of the nation.
The statement of the Council of the Law Society did not bring out such qualifying factors. I am not suggesting that it should have done so, but it would not be unfair criticism so to suggest. No doubt other avenues of fair criticism or comment are also available.
I do not consider that the statement by the Council is in any way a criticism of the actions of the detaining authority but is merely an appeal for the amelioration, so far as possible, of the laws designed for emergency. That law will fall away when the emergency passes, an event which all right-minded citizens of Zambia no doubt earnestly hope for.
The editorial however did not restrict itself to such comments. As a whole I think it can be described as extravagant, uninformed and unmannerly. Are, however, those parts of it which are complained of also defamatory? The gist of the words complained of is that the object of the statement is not a high-minded desire to see that the fullest possible measure of justice is done to detained persons but is a money-grabbing desire to benefit as defending lawyers when detained persons are brought to trial. I have no doubt that a lawyer who was moved by such motives would be looked on, not only by his fellow lawyers but by the general public? as a discreditable person and that he would be lowered in their esteem. I find that the words complained of in paragraph 5 of the statement of claim are defamatory.
Are they defamatory of the plaintiff? The Law Society of Zambia is created by section 3 of the Law Society of Zambia (Private) Act, now Chapter 47 of the Laws. Section 11 constitutes the Council which consists of the President of the Society, the Vice - President of the Society and four other members of the Society. The publications in the defendant's news- paper do not always make a clear distinction between the Law Society and the Council. Probably the writer of the article did not appreciate the distinction and it seems clear that he took no pains to find out.
There are, however, a number of matters which point to the fact that the commons was directed at, or could reasonably have been taken to be directed at, the members of the Council. first of all the defendant had been supplied with a copy of the statement which clearly stated that it was issued by the Council of the Law Society. The editorial states:
'A group of anonymous lawyers are now calling upon the Government to bring the detainees to court. This, we are told, follows a secret meeting of the Law Society of Zambia . . .' Here there is a distinction between the group who are acting and the general body of the Law Society members. Again the editorial states: 'The Attorney- General, Mr Fitzpatrick Chuula' who is also a lawyer and perhaps one of the very few honest ones, has bluntly told the Law Society to go to hell and get roasted. He has described the bunch as ignorant lawyers who hardly understand the law they claim to know. Mr Chuula is right. These are a bunch of fortune-seekers . . .' The first part of this paragraph is directed at the Law Society. The latter part is clearly directed at only a limited number of the Society's members. The other publication, No. 3 in the agreed bundle, refers to the Law Society of Zambia but it also refers to the Council of the Law Society having issued the statement.
I should interpolate here that it has not been proved that the Attorney-General in fact used the words attributed to him.
I am satisfied that the comment was directed at the Council of the Law Society and that a reasonable person would consider that it was so directed. I find as a fact that the statement was defamatory of the Council of the Law Society of Zambia. I do not consider that there is anything in the facts which show that the defamatory article was directed at the plaintiff in any more particularity than at any other member of the Council. Mr Mundia's identification of the statement with the plaintiff was only because he knew the plaintiff was a member of the Council. I am, however, satisfied that this is a case where the words used would be taken by a reasonable person to refer to each member of the limited class of seven persons who comprise the Council of the Law
Society of Zambia. I am, therefore, satisfied that the words complained of were defamatory of the plaintiff.
The next question is whether they were fair comment. The writer of the article quite clearly took no pains to discover what the Law Society of Zambia was or who were the members of its Council. It seems obvious that, indignant at what he considered to be a statement critical of the President, which it was in fact not, the writer rushed into print to belabour the authors. He was entitled to do so provided that his comments were honest.
He was entitled to impute motives provided that such motives could be reasonably inferred from the facts by a fair-minded person. I do not consider that a fair-minded person could reasonably infer from the facts the corrupt motives attributed in the editorial to the plaintiff. I am fully satisfied that the author of the editorial gave no thought to the possible truth or otherwise of this allegation but, trying to find something discreditable, dragged this up from his own mind. I am satisfied that this interpretation went beyond the bounds of fair comment. I am satisfied that the author and, therefore, the defendant, did not honestly believe that it was true. That defence therefore fails.
I now turn to the question of damages. This question has been recently considered at length in England in the case of Rookes v Barnard [1], as explained in Cassell and Company Limited v Broome [2]. Compensatory damages are, of course, awardable.
Prior to Rookes v Barnard it was generally accepted that Mayne and McGregor on Damages (12th Edition [1961], paragraph 207) correctly stated the position in respect of punitive or, as they are now generally called, exemplary damages, where it was stated that such damages can only be given 'Where the conduct of the defendant merits punishment, which is only considered to be so where his conduct is wanton, as where it discloses fraud, malice, violence cruelty, insolence, or the like, or, as it is sometimes put, where he acts in contumelious disregard of the plaintiff's rights.'
The effect of Rookes v Barnard has been to restrict the cases where exemplary damages may be given to, apart from statute, two classes: (1) cases of offensive, arbitrary or unconstitutional action by the servants of the government (the latter not being necessarily restricted to government (the latter not being necessarily restricted to government servants in the strictest sense); and (2) cases in which defendant's conduct has been calculated by him to make a profit for himself which may well exceed the compensation payable to the plaintiff (here it may be noted that it is not entirely clear whether this profit may necessarily be a pecuniary one).
It is useful to consider the reasons underlying this change in the law.Cassell and Company limited v Broome explains these. I will deal with these briefly and very broadly, as I am aware that there is a case at present pending before the Court of Appeal in which the problem I deal with may be more exhaustively considered. The decision was a majority decision. Of the judges in favour it seems to me that Hailsham, L.C., while accepting that the generally accepted view of the law pre Rooked v Barnard was as stated in Mayne and McGregor, considered that the view was erroneous and that Lord Devlin in Rookes v Barnard had explained and clarified the law as it truly was contained in the previous decisions in case law. It is true that Lord Hailsham does say that Lord Devlin's speech went beyond the existing law. I take this to mean that he went beyond what had hitherto been accepted as the existing law.
Lord Reid agreed and his opinion was quite clearly influenced by his view that punishment, as distinct from compensation, was an undesirable anomaly which should not form part of the civil law and which should be permitted to remain only so far as an adherence to the rule of judicial precedent clearly compelled it.
Lord Morris also agreed. He considered that the decision in Rookes v Barnard was a deliberate pruning exercise by the House of Lords which could have been either more restrictive or less restrictive.
Lord Diplock came firmly out with the view that the common law was a living law, that the law relating to exemplary damages was judge made law and that the judges could - as a policy decision - adapt and restrict it to suit the changing needs of contemporary society. For his part he would also have gob rid of the first category admitted by Rookes v Barnard had he been a member of the court sitting on that case.
Lord Kilbrandon considered that exemplary damages were anomalous but agreed that they formed part of the law of England and their abolition was not within the judicial functions of the House of Lords. It was, however, proper to limit the cases to which exemplary damages applied.
The decision in Rookes v Barnard has not been adopted in Australia, New Zealand and in several of the common law provinces of Canada.In Uren v John Fairfax and Sons Ply Limited [3], the High Court of Australia considered that there was a large body of Australian case law which showed that exemplary damages had been granted a cases which were not within the restrictive classes set out in Rookes v Barnard, that there was no good reason why these narrow limits should be imposed in Australia and they refused to follow that decision.
The Judicial Committee in Australia Consolidated Press Ltd v Uren [4], though dealing with another case, held that the decision in Fairfax's case was correct. The following is a passage from that judgment:
' The issue that faced the High Court in the present case was whether the law as it had been settled in Australia should be changed. Had the law developed by processes of faulty reasoning, or had it been founded upon misconception, it would have been necessary to change it. Such was not the case. In the result, in a sphere of the law where its policy calls for decision and where its policy in a particular country is fashioned so largely by judicial opinion, it became a question for the High Court to decide whether the decision in Rookes v Barnard compelled a change in what was a well-settled judicial approach on the law of libel in Australia. Their Lordships are not prepared to say that the High Court was wrong in being unconvinced that a changed approach in Australia was desirable.' -
Lord Devlin himself in his speech in Rookes v Barnard said:
' I am well aware that what I am about to say will, if accepted, impose limits not hitherto expressed on such awards and that there is powerful, though not compelling, authority for allowing them a wider range.
In this country libel cases in the past have not been frequent. It is not possible to say that there has been a long-established body of case law where exemplary damages have been given outside the limits of Rookes v Barnard. I am, however, of opinion that if, prior to Rookes v Barnard, a court in Zambia had had to decide the question of exemplary damages, it would have decided it as set out in Mayne and McGregor.
Since Independence the courts in Zambia are no longer bound by decisions of the House of Lords or Privy Council, though they are plainly of very high persuasive authority. In my opinion the courts in Zambia can, as a matter of policy, determine whether exemplary damages should be subject to the restrictions now existing in the law of England or adhere to the wider view which prevailed before Rookes v Barnard.
Logically there is no reason why these particular limits should exist Some of the law lords admit that the decision to fix the limit was not a logical one but was a pragmatic restriction of what they considered to be an undesirable feature. I do not consider that it is necessarily an undesirable feature in Zambia. I agree with Taylor, J, where in Fairfax's case he says:
' I am quite unable to see why the law should look with less favour on wrongs committed with a profit-making motive than upon wrongs committed with the utmost degree of malice or vindictively, arrogantly, or high-handedly with a contumelious disregard for the plaintiff's rights.'
Zambian society is in a state of development, of much less sophistication than that of England. Its two daily newspapers are in a very powerful position by reason of the fact that many persons are ignorant of their rights and many others are afraid to assert them. Daily newspapers, and no doubt other organisations and persons, are in a position to do great good and great harm. I see powerful reasons why the court, in awarding damages, should have the power, where a person wantonly, maliciously or contumeliously does great harm, to give such damages as will bring home to him that tort does not pay and will restrain him in the future from indulging in similar conduct.
I consider that the law in Zambia on exemplary damages should continue to be as laid down prior to Rookes v Barnard.
Rookes v Barnard has also, inter alia, made clear the distinction between aggravated damages and exemplary damages. They had been confused in the past and damages described as aggravated had frequently included an element of exemplary damages.
They are now shown to be, in fact, solely compensatory.
Rookes v Barnard also laid down in Lord Devlin's ' if, and only if ' paragraph, that exemplary damages should only be given where the compensatory damages were insufficient to serve the purpose of punishment or deterrence. I do not think that the various courts which have considered this finding have disagreed with it.
The nature of damages in libel actions has been discussed in a much quoted passage of Lord Atkin's speech in Ley v Hamilton [5]:
'It is precisely because the real damage cannot be ascertained and established that the damages are at large. It is impossible to track the scandal, to know what quarters the poison may reach; it is impossible to weigh at all closely the compensation which will recompense a man or woman for the insult offered or the pain of a false accusation.'
Windeyer, J., in Uren v John Fairfax and Sons Pty Ltd. had this to say:
'When it is said that in an action for defamation, damages are given for an injury to the plaintiff's reputation, what is meant? A man's reputation, his good name, the estimation in which he is held in the opinion of others, is not a possession of his as a chattel is. Damage to it cannot; be measured as harm to a tangible thing is measured.
Apart from special damages strictly so called and damages for a loss of clients or customers, money and reputation are not commensurables. It seems to me that, properly speaking, a man defamed does not get compensation for his damaged reputation. He gets damages because he was injured in his reputation, that is, simply because he was publicly defamed. For this reason, compensation by damages operates in two ways - as a vindication of the plaintiff to the public and as consolation to him for a wrong done. Compensation is here a solatium rather than a monetary recompense for harm measurable in money. The variety of the matters which, it has been held, may be considered in assessing damages for defamation must in many cases mean that the amount of verdict is the product of a mixture of inextricable considerations. One of these is the conduct of and the intentions of the defendant, in particular whether he was actuated by express malice. Yet in the abstract the harm that a plaintiff suffers cannot be measured by, nor does it necessarily depend at all upon, the motive from which the
defendant acted or upon his knowledge of intentions. These, however, have always been regarded as important in estimating damages.'
I do not take this passage as meaning that injury which causes provable monetary loss is disregarded but merely as showing that it is the fact of public defamation which resounds in damages. If it were not so a thief with a string of precarious connections could with impunity be accused of thefts which he had not committed.
It seems to me that the essence of aggravated damages is that it is compensatory damages on the highest scale. The assessment of damages is not an exact science.
There is usually an amount which one can say is the minimum possible and an amount which one can say is the maximum possible. A court has to assess somewhere in between these points giving full consideration to all the factors on both sides. Where, however, a defendant's behaviour is such as to merit aggravated damages, it seems to me that a court is entitled to award a sum which in its opinion makes absolutely certain that the damage done to the plaintiff is beyond any doubt being fully compensated for. It does so by awarding damages at or close to the maximum possible.
In this case the defendant maliciously attributed to the plaintiff a non-existent and discreditable motive. When asked for an apology he did not reply himself but through his solicitors sent a letter which delivered a pompous legal lecture, contained not one word of apology and stated a firm determination to defend the action with the utmost vigour. (The latter sentiment rings somewhat hollow in the circumstances of this case.) That was clearly, calculated to exacerbate the plaintiff's feelings. Having come to trial it is true that in effect no defence was made. It is, however, not at all clear that this was the defendant's intention and that this failure to defend was not merely the result of a stubborn refusal to face facts - a hiding of the defendant's head in the sand in the hope that the storm would pass - until the opportunity to defend was lost. The defendant did ask for an adjournment and had it been granted the action might have been defended.
The failure to defend cannot be taken as a positive point in favour of the defendant but merely as a neutral point.
I am satisfied that this conduct merits aggravated damages. No actual damage was proved. The plaintiff himself said that anyone he met who referred to the matter expressed disgust and surprise at the accusation. Clearly Mr Mundia did not think any
the less of the plaintiff because of it. However, as Lord Atkin said, it is impossible to say to what quarters the poison may reach. It may be that some unperceptive persons may believe it and possibly bring it up in the future to damage the plaintiff at time when the true facts are not easily ascertainable.
However, I cannot close my eyes to the fact that the damage is probably small and I bear in mind the pleasantry of Hamilton, L. J (later Lord Sumner), in Greenlands v Wilmhurst [6]. Making the best estimate I can, and doing so on the highest scale, I assess damages at K2,000.
I now have to consider whether exemplary damages should be awarded. I do not think that the libel was published with the intention of making a profit. It does not fall within Lord Devlin's second class. If it did it may be that no further factors would have to be considered in that the profit motive itself and the fact that a profit is made, where that has happened, is sufficient immediately to proceed to an award of exemplary damages if the compensatory damages are insufficient. I think, however, that even in this case it is proper to consider all the factors of conduct in order to arrive at the proper measure of exemplary damages which should be awarded. I may say here, in passing, that logically an award on these grounds should be such as to remove the whole additional profit made. I must express a doubt, however, whether in fact, had the unlawful extra profit made by Cassell and Company Ltd been shown to be, say £100,000, their Lordships would have considered that the damages actually awarded should have been as high.
In this case, in considering whether exemplary damages should be awarded, I have to give consideration to all the facts which I have already considered in awarding aggravated damages. I have also to consider whether a newspaper which behaves as this one did should have an award made which will bring home to it that it is its duty, where it is possible, to verify facts which damage other persons before publishing them and to make amends by suitable apology or otherwise, where subsequently it is shown that they have published such facts which are untrue. I consider that such an award should in this case be made to deter the defendant from similar action in the future. I do not consider that the K2,000 I have awarded as compensatory damages is sufficient for this purpose. I have, however, to bear in mind that there are six other persons who have been libelled by the actual publication in exactly the same way. It does not, of course, follow that each of these persons would necessarily get the same compensatory damages as in this case, or would receive an award of exemplary damages. If they have not brought an action, and this seems likely as one would expect such an action to
have been consolidated with the present one, that might be a factor which could show that their feelings were not greatly exacerbated. Again, if they have not asked for an apology and so have not been refused one, that would weigh both in the consideration of aggravated and exemplary damages. I do not know what would be the total sum awarded to all these persons if they brought actions. That sum might serve as a deterrent but whether it would be a sufficient deterrent would depend upon the amounts awarded. These are largely imponderables.
Again, doing any best, I award a sum of K750 as exemplary damages, making a total of K2,750.
I would add that the speeches in Cassell and Company Ltd v Broome do, in the main, refer to a single compensatory sum being awarded. That, however, was in relation to awards by a jury and I agree with Lord Diplock when he says that no doubt a judge sitting alone should make separate awards of the compensatory and exemplary damages.
There will be judgment for the plaintiff in the sum of K2,750 with costs.
Jugdment for the plaintiff
MUTALE v THE PEOPLE (1973) Z.R. 25 (C.A.)
COURT OF APPEAL
DOYLE, C.J., BARON, J.P., AND GARDNER, J.A.
9TH AND 23RD JANUARY, 1973.
(APPEAL NO. 91 OF 1972)
Flynote
Criminal Law - Conviction on uncorroborated statement of accused.
Criminal - Final law - Charge - Words omitted amounting to defective information - Effect of.
Headnote
The appellant was charged with four counts of espionage, contrary to section 3 (c) of the State Security Act, and one count of office-breaking, contrary to section 273 (1) of the Penal Code. The particulars of the four counts of espionage omitted the words 'for any purpose prejudicial to the safety or interests of the Republic'.
Held:
(i) Where in an information the statement of offence is correct but the particulars omit necessary words, this does not render the information bad, but simply defective.
(ii) Where no embarrassment or prejudice to the accused has been occasioned by a defective information it is proper to apply the proviso to section 14 of the Court of Appeal for Zambia Act.
Cases cited:
(1) R. v McVitie [1960] 44 Cr. App. R. 201;
(2) R. v Thompson [1914] 2 K.B. 99.
Legislation referred to:
Court of Appeal for Zambia Act, s. 14.
Penal Code, Cap. 6, as. 273 (1), 274, 390.
State Security Act, 1969, Cap. 110, s. 3 (c).
For the appellant: In person.
For the respondent: R. E. M. Mwape, State Advocate.
Judgment
DOYLE, C.J.: delivered the judgment of the Court
The appellant was charged with four counts of espionage, contrary to section 3 (c) of the State Security Act, and one count of office-breaking, contrary to section 273 (1) of the Penal Code. The evidence for the State was that on the night of the 3rd December, 1971, at about 9.30 p.m., there was an absence of lights in the general office at the Zambia Air Force base, Lusaka. At that time they would ordinarily be burning.
Investigation showed that there were windows broken in the general office and in the accounts office, and that an attempt had been made to open the safe in the accounts office. In the warrant officer's office adjoining there was a window broken and files lying around, some of which were open. A search disclosed the appellant hiding on some beams in the roof.
The appellant made a statement to the officer commanding the air base after having been interrogated by a number of officers. Although no caution was administered, the statement was found by the magistrate to be voluntary. The next morning the appellant was arrested by Sub Inspector Mweetwa and after caution made a long statement. That statement contained the facts upon which the first three counts were based. It also admitted that the appellant and a companion had broken into the base at night for the purpose of collecting information about the security matters related to the Zambian Air Force and Zambia as a whole. The statement was not objected to although defence counsel reserved the right to challenge it or any part of it.
When the appellant gave evidence he said that on that night he had been drinking with a friend, Peter Klaus. The latter then suggested that they go to the International Airport.
They did so but instead of going inside they turned back and climbed over the fence in the air base nearby. Klaus then broke into the general office and they both went in. The appellant saw Klaus searching cabinets. Klaus then left and almost immediately afterwards air force soldiers came along. The appellant explained to them that he was just visiting with a friend.
He agreed that he made a statement after arrest but said that he did not know its contents but had just signed it. He denied that he had ever done the things alleged to be admitted in his statement or that he was trying to obtain information that night. He explained his presence at the base as a mere visit with a friend. At no time did he allege that any violence was used on him or any promises made to induce him to make the statement. His defence on this was that it was a fabrication.
The learned magistrate found that counts one, two and three were solely based on the statement made by the appellant but in the whole circumstances he was satisfied that the statement had been made and that it was true. He was satisfied that the appellant was in the air base that night for the purpose of obtaining information and that he had obtained information from the files. He also found that the appellant had broken into the base but had not stolen anything.
He convicted the appellant on the four counts of espionage but found that he had not stolen anything in the base, so on count five he convicted him of the alternative offence of office-breaking with intent to commit a felony, contrary to section 274 of the Penal Code.
As to the first three counts the learned magistrate carefully directed himself on the question of a conviction on an uncorroborated statement and came to the conclusion that the circumstances were such that he could rely on it. It may well be that the fact that the appellant was found in the air base on an espionage expedition that night is corroborative evidence of the earlier spying matters alleged in his statement, but in any event the magistrate correctly directed himself and he was entitled to convict on the evidence before him.
On count four the only evidence of actually obtaining information was based on the statement made by a warrant officer at the air base. The files from which the information was allegedly obtained were not produced nor was there any evidence of their contents except this hearsay statement by a warrant officer. In our opinion, therefore, there is no evidence that the appellant actually obtained information, or of what information he obtained, although there is ample evidence that he was attempting to do so. We therefore set aside the conviction on the fourth count and substitute a conviction of attempting to commit espionage, contrary to section 3 (c) of the State Security Act, 1969, and section 390 of the Penal Code.
Section 3 of the State Security Act begins with the words 'Any person who, for any purpose prejudicial to the safety or interests of the Republic' and then sets out a number of paragraphs, including paragraph (c) under which the espionage charges in this case were based. The particulars set out in the first four counts omitted the words 'for any purpose prejudicial to the safety or interests of the Republic' and it is clear that each count was defective in this respect. The question of what is the effect of a defective information, as distinguished from a completely bad information, has been dealt with in a number of cases. We need only refer to the case of R v McVitie [1]. In that case the appellant was charged with the possession of explosives contrary to section 4 ( l ) of the Explosive Substances Act, 1883. The statutory reference was quite correct but the particulars of the offence omitted the word 'knowingly' and the summing up did not deal fully with that aspect of knowledge. The Court of Criminal Appeal had this to say:
' In our opinion, this did not make the indictment a bad indictment, but simply a defective or imperfect one. A bad indictment would be one disclosing no offence known to the law, for example, where it was laid under a statute which had been repealed and not re-enacted. In the present case the indictment described the offence with complete accuracy in the "Statement of Offence". Only the particulars, which merely elaborate the
"Statement of Offence", were incomplete. The question of applying the proviso is to be considered, therefore, not upon the basis that the indictment disclosed no known offence, but that it described a known offence with incomplete particulars.'
The judgment of the court dealt with the question of applying the proviso to section 4 (l ) of the Criminal Appeal Act, 1907, which corresponds to the proviso to section 14 of the Court of Appeal for Zambia Act, and quoted from R. v Thompson [2]:
' One of the objects of section 4 was to prevent the quashing of a conviction upon a mere technicality which had caused no embarrassment or prejudice. Whilst giving the right of appeal upon any wrong decision of any question of law, the object of the legislature was that justice should be done in spite of a wrong decision, and that the court should not interfere if it came to the conclusion that, notwithstanding the wrong decision, there had been no substantial miscarriage of justice. The court must always proceed with caution when it is of opinion that a wrong view of the law has been taken by the judge presiding at the trial, and when it is apparent, and, indeed, undisputed, as it is and must be in this case, that no embarrassment or prejudice had in fact been suffered in consequence of the pleader having made the manifest error above mentioned, the court must act upon the proviso in this section of the Act.'
It is quite clear that in this case it was always in the forefront, and apparent both to the State and to the appellant, that the actions of the appellant were allegedly prejudicial to the safety and interests of the Republic. Quite clearly there has been no embarrassment or prejudice by the omission of the words referred to and we are, therefore, fully satisfied that this is a case for the application of the proviso to section 14 of the Court of Appeal for Zambia Act. The fact that the proviso has been applied In this case should not encourage counsel to omit proper particulars of an offence. Where such omission has caused prejudice or embarrassment, such omission may be fatal.
The appeal is dismissed except in relation to count four, where a conviction for an attempt is substituted for the conviction for the substantive offence.
The sentences imposed in this case, namely twenty years' imprisonment with hard labour on the first four counts and three years' imprisonment with hard labour on the fifth count, all concurrent, are severe. It must be borne in mind, however, that the appellant has embarked on a deliberate course of conduct relating to espionage. Whether or not the actual information he transmitted was of vital importance is not clear. It is, however, plain that he was doing his best to assist enemies of Zambia and that he was doing so deliberately and for gain. While we might not In the first instance have imposed as much as twenty years' imprisonment, we are unable to say that, in the circumstances prevailing at present. In Southern Africa, the sentence comes to us with a sense of shock. We see no reason to alter the sentence imposed in respect of count four. We dismiss the appeal against sentence.
Appeal dismissed
MWAMBONA v THE PEOPLE (1973) Z.R. 28 (C.A.)
COURT OF APPEAL
BARON, J.P., GARDNER AND HUGHES, JJ.A.
23RD JANUARY, 1973 (APPEAL NO. 73 OF 1972)
Flynote
Criminal Procedure - Evidence - Prosecution witness possibly having a purpose of his own to serve - Need for specific finding by the court whether the testimony of the witness be regarded with the same caution as that of an accomplice.
Evidence - Witness with a possible bias - Effect of.
Criminal procedure - One witness with possibly a purpose of his own and another with possible bias - Not so regarded by the court - Effect of.
Headnote
The appellant was convicted in the High Court of stock theft. One of the prosecution witnesses could possibly have had a purpose of his own to serve all deposing against the appellant and another a possible bias. The trial judge disregarded this.
Held:
(i) A witness with a bias is not to be regarded as a witness with a purpose of his own to serve, but his evidence should be treated with caution and suspicion.
(ii) Where a witness might have a purpose of his own to serve the court must make a specific finding as to whether he is so regarded.
(iii) The failure to regard as such a witness with possibly a purpose of his own to serve and another with a possible bias, is a misdirection which will result in the conviction being quashed unless the appellate court can apply the proviso.
Cases cited:
(1) Machobani v The People 1972 Z.R. 101;*
(2) Hamfuti v The People 1972 Z.R. 204 **
For the appellant: C.U.Osakwe, Director of Legal Aid.
For the respondent: R.E.M. Mwape, State Advocate.
Judgment
BARON, J.P.: delivered the judgment of the Court.
The appellant was convicted in the High Court of stock theft, the subject of the offence being three oxen. The identification of the beasts was not in issue. The prosecution case is that the appellant sold the oxen to P.W.2 ,a businessman, who, among other things, runs a butchery. The appellant says that this witness and P.W.3, his herdsman, are lying and that he knows nothing whatever about the oxen.
Clearly, P.W.2 was, in the circumstances of this case, a witness who might have had a purpose of his own to serve, the learned trial judge should therefore have considered the whole of the evidence and made a specific finding as to whether the testimony of this witness was to be regarded with the same caution as that of an accomplice. See Make Machobani v The People [1] and George Hamfuti v The People [2]. It might be suggested also that P.W.3, because he is employed by P.W.2, should be similarly regarded, but this would be taking the matter too far. An employee may, in appropriate cases, be regarded as a witness with a possible bias, just as one might so regard a close relative, and in such cases one would approach his evidence with caution and suspicion, but this is not to say that one would not normally convict on such evidence unless it were corroborated:
There is nothing on the record to suggest that the learned trial judge regarded P.W.2 as a witness with possibly a purpose of his own to serve, or P.W.3 as a witness with a possible bias, and the failure so to regard these witnesses is a misdirection. The question, therefore, is whether, if the learned trial judge had approached the evidence of these witnesses correctly, he must inevitably have convicted in any event.
In evaluating the evidence of the appellant the learned trial judge referred to certain contradictions, two of which are particularly important. The appellant at first denied that he was in Kabwe on the relevant day but later said that he met P.W.2 on that day; he denied that they had discussed the sale of any cattle and said that P.W.2 had asked him, the appellant, to help slaughter some cattle. Again, he at first denied meeting P.W.3 on that day and said that he did not know him; a few minutes later he said that P.W.3 was present during the appellant's conversation with P.W.2. For these and other reasons the learned trial judge held that the appellant's story could not reasonably be true, and we agree; the appellant was patently lying on material points going to the root of his story, and the learned trial judge had no alternative but to reject his evidence.
Had the appellant been even in moderately satisfactory witness the position would have been otherwise, but in these circumstances there was n credible evidence to cast doubt on that of P.W.2 and P.W.3.
We are satisfied that the learned trial judge should have regarded the evidence of P.W.2 with the same caution as that of an accomplice, particularly in view of a conflict between his testimony and that of P.W.3 as to the slaughtering of the cattle. There is nothing, however, to cast doubt on the testimony of P.W.3, whom the learned trial judge found to be a particularly impressive witness and whom he believed without hesitation.
The appellant raised the question of the piece of paper which he was alleged to have signed and which he said he could not have signed because he cannot write. He argues that the prosecution should have produced evidence that the handwriting was his. It is to be observed that P.W.2 gave the best possible evidence in this regard; namely that he personally saw the appellant sign the piece of paper. In any event, however, the learned trial judge commented on the failure of the prosecution to adduce any other evidence, and although he regarded it as highly probable that the appellant signed the document, he clearly did not rely on it.
We are satisfied that on a proper approach to the evidence of P.W.2 and P.W.3 and on a proper evaluation of the whole of the evidence the learned trial judge must inevitably have convicted. The appeal must be dismissed.
Appeal dismissed
