Christian Jacobus Van Der Merwe v Clayton (Appeal No. 9 of 1991) [1991] ZMSC 77 (26 July 1991)

IN THE SUPREME COURT OF ZAMBIA Appeal No. 9 of 1991 HOLDEN AT NDOLA (Civil jurisdiction) CHRISTIAAN JACOBUS VAN DER MERWE Appellant -v- , ERIC CLAYTON * j > ’•'Ti Respondent CORAM: Ngulube, D. C. J., Sakaia and Lawrence, JJ. S. On 12th June, and 26th July, 1991 / For the appellant, J. H, Adams, of J. H. Adams and Company. For the Respondent, E. G. Tembo, of Lloyd Siame and Co. JUDGMENT Ngulube, D. C. J. delivered the judgment of the Court Cases referred to 1) Mumba -v- Zambia Publishing Company Limited (1982) ZR 53 2) Chikuta -v- Chipata Rural Council (1983) ZR 26 For convenience, we will call the appellant the plaintiff — and the respondent the defendant which is what they were in the action. The plaintiff sued the defendant for damages for libel contained in a letter written by the latter to the plaintiff's bank manager at Zambia National Commercial Bank, Kapiri Mposhi. The bank stopped financing the plaintiff's farm activities and there were two allegations made in the letter of which the plaintiff complained, that is to say:- - / a) "The farm is at present illegally occupied by a C. J. Van der Merwe in contravention of the Agricultural Lands Act" and b) "In view of the above, I would request that you exercise caution with regard to any loan application from....." 2/........... C. J. Van C. J. Van Der Merwe or .................against the title deeds of the above farm. Van Der Merwe was involved in a similar case for four years over hisnon-payment for the adjoining farm number 3171, which resulted in a 'fieri-facias1 order being served on him in 1979." ’ - The learned trial judge found both allegations to be defamatory. In relation to the second allegation, the defences pleaded were rejected ; i and the plaintiff was awarded K15,000.. He has appealed against the quantum of this award and has asked us to award much more. With, regard to the first allegation, the learned trial judge upheld the defence of justification apd there is an appeal against such finding. The defence pleaded was to the effect that it was true that the plaintiff was illegally occupying farm No. 2388 Mkushi, which belonged to someone else without any consent under the Land (Conversion of Titles) Act and the Agricultural Lands Act. In dealing with this part of the case, the learned trial judge reviewed the history of the ownership of this farm and found that, because of various highly suspicious aspects concerning the assignments from one person to the ■ next, right down to the plaintiff, title may have been handed down in such a fraudulent and irregular manner that any reasonable person would be justified to cpnclude that the plaintiff was illegally in occupation in breach of the Statute. The suspicions included the use of an expired power of attorney by some advocates, contrary to specific instructions; the way the documents were backdated at the Deeds Registry; and the way the plaintiff utilised a power of attorney to himself which did not authorise him to dispose of land. We should make it clear that, although there was much discussion concerning the ownership of this land, we specifically decline to pronounce upon the question of ownership which we understand is the subject of other litigation. Our. sole interest in the history of the farm is to see whether it supported the finding by the learned trial judge that the defendant had justified the libel in the first allegation ■■* •• • • • On behalf of the plaintiff, Mr. Adams argued that it was 3/........ ..wrong wrong to uphold the defence of justification. He submitted that, because the pleadings only alleged contravention of the two statutes, the documents produced at the trial showing that State consent had been given under both statutes effectively defeated the justification as pleaded. He further submitted that the plaintiff could not be affected by any antecedent fraud allegedly committed by those who transferred the property from an earlier owner to the plaintiff's immediate vendor. Mr. Tembo countered these arguments by asserting that there was abundant evidence to support the finding of fraud and that the plaintiff could not have acquired any valid title to the farm. We have already said we do not propose to pronounce upon ( the issue of ownership. TtFe true issue in the ground of appeal as formulated by Mr. Adams was whether, going by the pleadings, the defence should have been upheld. We accept the role to be accorded to pleadings but at the same time recognise that it is permissible to decide a case on a variation, development, or modification of a pleading, provided that this does not result in the court determining the case on a distinct and completely new cause of action or defence, that is, on a case which is a complete or radical departure from the pleadings. We have discussed this point before in such cases as Mumba -v- Zambia Publishing Co. Ltd. (1) and Chikuta -v- Chipata Rural Council (2). The point about the specific pleading which Mr. Adams took was certainly well taken; but then,.as we indicated in Chikuta there may. be cases where facts emerge from the evidence which have a substantial bearing on the issues being tried and which no trial judge can properly be expected to ignore. It is true that, from the documents on the record there is every reason to believe that the plaintiff and/or his immediate vendor’ went through the procedures required by the two statutes specifically pleaded by the defendant as having been contravened.' However, it is also quite plain that the defendant's basic allegation was that the plaintiff was illegally in occupation since he was not 4/............ the owner the owner of the farm. To this end, evidence was adduced which left - a serious doubt in the mind of the learned trial judge concerning the legality and validity of the various documents and transactions which culminated in the plaintiff obtaining a certificate of title. These facts went to the root of the claim on the first allegation and it seems to us that one's going through the correct motions under the two statutes when one may not have been the correct person to do so, having regard to the irregularities noted by the learned trial judge and stressed by Mr. Tembo in his response, may not have disproved the basic allegation. In any event, and despite Mr. Adams spirited submission that other people's fraud should not concern the plaintiff, it would ,£e unrealistic to pluck the allegation complained of out of its full context which was in the letter to the Bank and which read in the first paragraph "Dear Sir, f f. ■ FARM NO. 2388 - MKUSHI - GO VAN TONDER Title to the above farm is the subject of a High Court action. We claim that the registration of the Assignment of the farm to NA Blackler was obtained by fraud and the court has been asked to rescind the registration. Blackler absconded from Zambia two years ago because of lies in a deposition to the court and the farm is at present Illegally occupied by a CJ van de Merwe, in contravention of the Agricultural Lands Act." Having regard to the context of the first allegation and the evidence which was adduced, we do not see that the learned trial judge misdirected himself in any way when, in effect, he allowed a variation, modification or development of the allegation of the illegal occupation based on a challenge of the plaintiff's own title and the way he had obtained it, including the way his own vendor got his. For the reasons ' 5/.......... given I . • ■ -1 £ given, we find that there was no radical departure from the defendant's position in the case and we must decline to upset the finding that the plea of justification was available. We now turn to the ground of appeal against the quantum awarded on the second allegation. The imputation found was that of fraud in that the plaintiff was accused of having had a writ of . execution issued against him because he had committed fraud on a previous farm. Mr. Adams urged us to increase the award because, among other things, the defendant had by this libel caused Zambia National Commercial Bank to stop funding the plaintiff's farming activities. This submission was in the teeth of a specific finding Y by the learned trial judge, against which there has been no appeal, to the effect that the withdrawal of the loan facilities was not ■ prompted by this libel but by a caveat which had been lodged against this property. It is also pertinent to recall that there was very limited publication of this libel and it cannot be accepted as we were urged to do, that the whole of the small farming community in the area and other financial institutions must have become aware of the libel. The learned trial judge took into account this limited publication and the bank's own different explanation for terminating the facilities into account when fixing the quantum which could only have related to compensatory damages without regard to any of the alleged actual damage. Some of the alleged actual damage which the plaintiff contended to have flowed from the defamation was the failure to grow crops and the involuntary sale of cattle and other things to meet commitments to staff and related living expenses. The learned trial judge did not find any connection between the libel and these losses which were therefore too remote to it, in law and as a matter of causation. We do not interfere with assessments of these awards unless they are inordinately high or too low in any given circumstances or unless the trial court could have erred in Some way in making the particular award. We have not found any grounds for interfering in this case and certainly those advanced by . Mr. Adams, which all ran against findings not appealed against, 6/........ cannot cannot be entertained. It follows from the foregoing that this appeal is dismissed, with costs to be taxed in default of agreement. M. M. S. W. Ngulube DEPUTY CHIEF JUSTICE E. L. Sakala SUPREME COURT JUDGE A. R. Lawrence ^SUPREME COURT JUDGE