Civil procedure – Whether competent to raise issue of non disclosure of cause of action after pleadings already exchanged and both parties submitted to a trial
Civil procedure – Circumstances in which appellate court will reverse findings of fact
Tort – Defamation – Imputations that someone else said that a person is guilty of a crime or that there is a rumour that the said person is a criminal only to be justified by proof that person in question is a criminal rather than by proof that rumour exists or someone else said it
Civil procedure – Trial court not precluded from considering matter not pleaded but let into evidence without objection
Civil procedure – Damages – Factors to be taken into account in awarding damages for a defamation claim
The Respondents were traffic police officers stationed in Livingstone. They alleged that the Appellant aired a television programme showing images of them accompanied by a reporter’s commentary in the following words:
“That the two Plaintiffs (now Respondents) are corrupt and that they have been soliciting money from public vehicles using a motor vehicle Registration Number AJC 6381 and fleet number LNK 4169 to carry out the alleged private monitory (sic) transactions. That the two plaintiffs [were] spotted making an alleged transaction at Dambwa Central Market”
The Respondents claimed from the Appellant damages for libel. Their contention was that the words uttered by the reporter, an employee of the Appellant, were defamatory and injured their reputations. That although their names were not mentioned in the commentary, images of them were shown, and they were identified by people who knew them.
The Appellant denied having defamed the Respondents. It contended that the report complained of was a general statement of what was being investigated. That there was no reference to the Respondents by name, but to a class of people, namely police officers. The Court found that the Respondents had proved, on a balance of probabilities that the Appellant had defamed the Respondents in their employment. Thus the trial Judge awarded them ZMW 30 000 each as damages for libel. The Appellant appealed.
Held
1. In an action for defamation, the law requires that the actual words complained of be set out in the statement of claim. It is clear that the statement of claim filed by the Respondents did not quote the words complained of exactly as published by the Appellant. Therefore, it did not disclose a cause of action. Where a pleading discloses no reasonable cause of action, Order 18 rule 19 of the Rules of the Supreme Court (White Book) 1999 Edition allows the Court, at any stage of the proceedings, to order the striking out or amendment of the pleading. The Appellant did object to DW1 introducing, in his testimony, words which were not pleaded. However, no application was made to strike out the Writ and Statement of Claim for non-disclosure of a cause of action. It was only at the submission stage that the Appellant raised the issue of non-disclosure of a cause of action. This was too late in the day. Once both parties to an action submit to a trial, after the exchange of pleadings, the inference to be drawn is that the pleadings have disclosed a cause of action fit for trial. Munali Insurance Brokers Limited and Another v The Attorney General and Others (2010) 2 ZR 60 followed.
2. The Supreme Court will not reverse findings of fact unless it is satisfied that the findings in question were either perverse or made in the absence of any relevant evidence or upon misapprehension of the facts. There is nothing in the Appellant’s submissions to satisfy the Supreme Court that the finding of fact being challenged by the Appellant is perverse or was made in the absence of relevant evidence. Wilson Masauso Zulu v Avondale Housing Project Limited (1982) ZR 172 (S.C.) followed.
3. Many cases of defamation arise from statements which connect the claimant in some way with criminality and provide illustrations of what imputations will, in the eyes of the law be conveyed to the ordinary reader. A statement by D that X says that C is guilty of a crime conveys the imputation that C is guilty and the same is generally true if D says that there is a rumour that C is guilty. In other words, such imputations must be justified by proof of guilt, not by proof that the statement was made by X or that the rumour exists. Clearly, the law will not allow the Appellant, while hiding in the derivatives of words such as “allege”, to make unjustified imputations of criminal conduct against other persons.
The statement that “these unidentified traffic officers [were] spotted making an alleged illegal transaction at Dambwa Central Market” clearly referred to the Respondents.
4. A perusal of the pleadings confirms the submission that the Respondents did not plead that the Appellant defamed them in their employment. However, the record also confirms that at trial, PW1 gave testimony to the effect that the Respondents were defamed in their employment. The Appellant raised no objection. Where a matter not pleaded is let in evidence, and no objection is raised by the other side, the court is not precluded from considering it. Anderson Mazoka v Levy Patrick Mwanawasa and Others (2005) ZR 138 followed
5. In assessing damages in a defamation claim, a court must consider a number of factors namely; the conduct of the plaintiff; the plaintiff’s status or his standing in society; the nature of the libel; the mode and extent of publication of the libel; the absence of a retraction or apology; and whether there was evidence led in aggravation or mitigation of damages. Taking into account the first five factors, the ZMW 30 000 awarded to each of the Respondents was excessive. Taking into account the devaluation of the Kwacha, ZMW 5 000 for each of the Respondents is awarded as damages instead.
Appeal partially allowed.
