Derrick Sikazwe v Joseph Sikazwe and Anor (2023/SID/54) [2023] ZMSUB 22 (30 November 2023)

IN THE SUBORDINATE COURT OF THE THIRD CLASS 2023/SID/54 FOR THE MBALA DISTRICT HOLDEN AT MBALA (Civil Jurisdiction) BETWEEN REPUBLIC OF ZAMBIA THE JUDICIA~Y iii ~n NOV 2UJ ~ MAGISTRATE CLASS P. O. BOX 420101, MBA(A " DERRICK SIKZAWE PLAINTIFF AND JOSEPH SIKAZWE 1ST DEFENDANT POSA SIKAZWE 2ND DEFENDANT Before: Hon’ble Deeleslie Mondoka For the Plaintiff For the 1st Defendant For the 2nd Defendant : : : In person In person In person JUDGMENT Cases referred to: i. ii. iii. iv. SATA V CHIMBA AND OTHERS (2010/HP/1282) (2011) ZMHC 71; BEVIN NDOVI V POST NEWSPAPER LIMITED AND TIMES PRINTPAK ZAMBIA (SCZ JUDGMENT NO. 8 OF 2011); MWANZA V ZAMBIA PUBLISHING COMPANY LIMITED (1981) ZR 2341; UNITED STATES SUPREME COURT: ABRAMS V UNITED STATES 250 US 616, 639 (1919); J1 v. TRUSTCO GROUP INTERNATIONAL LTD AND OTHERS V SHIKONGO vi. vii. viii. ix. x. xi. [2010] NASC 6; LINGENS V AUSTRIA APPLICATION NO 9815/82 (1986); JERSILD V DENMARK, APPLICATION NO 15890/89 (1994); THOMA V LUXEMBOURG APPLICATION NO 38432/97 (2001); ATTORNEY GENERAL V CLARKE (2008) VII Z. R. 38; LITTLEDALE SAID IN M’PHERSON V DANIELS (1829) 10 B AND C 263; REYNOLDS V TIMES NEWSPAPERS LIMITED, AND OTHERS [2001] 2 A. C. 127. PER LORD NICHOLLS OF BIRK; xii. POST NEWSPAPER LIMITED V. SONNY PAUL MULENGA SCZ APPEAL NO. 22 OF 2014; xiii. FUNGAMWANGO AND ANOTHER V NALISHEBO (APPEAL NO. 133/99) (2000) (UNREPORTED) 17; xiv. GERTZ VS. ROBERT WELCH, INC., 418 U. S. 323, 94 S. CT. 2997, 41 L. ED. 2D 789 [1974]; xv. SATA VS POST NEWSPAPER LIMITED & ANOTHER (1995) ZR 113; xvi. MUVI TV LIMITED V PHIRI ANOTHER (APPEAL 13 OF 2015) 2018 ZMSC, AND xvii. THE QUEEN’S CASE (1820) 2 BROD & BING 284; 129 ER 976. OTHER MATERIALS REFERRED TO: i. ii. iii. iv. v. vi. PHIPSON ON EVIDENCE, 17TH EDITION, (THOMSON REUTERS LEGAL LIMITED 2010); PHIPSON ON EVIDENCE, 17TH EDITION; PHIPSON ON EVIDENCE 20TH ED (2022); HALSBURY'S LAWS OF ENGLAND, 4TH EDITION, VOL. 28; UN GENERAL ASSEMBLY, ‘UNIVERSAL DECLARATION OF HUMAN RIGHTS, RESOLUTION 217 A (III)’ (1948), AND GATLEY ON LIBEL AND SLANDER, SWEET & MAXWELL, LONDON (1967) 6TH EDITION. J2 INTRODUCTION [1] This Judgement proceeds from an unliquidated claim wherein the plaintiff claims for: (i) damages for defamation of character, arising from false allegations that the plaintiff is a “murderer” when in fact not and that the 1st and 2nd defendant have gone further defaming his name that he is not a ‘Sikazwe’ but wrongly using this surname when the plaintiff’s father was not a ‘Sikazwe’;(ii) any other relief the court may deem fit to award, and (iii) an order for all incidental costs. [2] The matter was inaugurated on 25th July, 2023, by way of writ of summons (hereinafter referred to as the writ), which writ succinctly outlined the claim and was expediently read out in open court in the hearing of the both parties by this honourable court in intelligible fashion. BACKGROUND FACTS [3] I will preface the background facts with a thought from a storied jurist, Anthony Scalia, who said: … “Don’t underestimate the importance of facts. To be sure, you will be arguing to the court about the law, but what law applies—what cases are in point, and what cases can be distinguished—depends ultimately on the facts of your case”. (Emphasis mine) [4] Hereafter is a brief resumé of the facts in support of the plaintiff’s claim, related as hereunder. [5] On 7th September, 2023, when the matter came up for trial, PW1, the plaintiff herein took the stand and related as hereunder. [6] It was PW1’s testimony that the 1st defendant moved into Chisunga village, in the Mbala district, in 2017 from Senga Hill. And that not long after the defendant had settled into the village did PW1 tell the 1st J3 defendant to vacate the village and the premises he was residing in. PW1 evinced minutes to the herein decision to send the 1st defendant packing dated 23rd October, 2017 aptly dubbed herein as “DS1”. The 1st defendant in protest indicated to PW1 that he was not a ‘SIKAZWE’, which sentiment displeased PW1. [7] It was PW1’s testimony that the 1st defendant on the 13th of May, 2022, the 1st defendant blew the gaff on the fact that he had received the information concerning PW1’s illegitimacy from his grandmother, who tipped the wink to the 1st defendant about PW1 not being a ‘SIKAZWE’. Minutes to the same are marked herein as “DS2”. [8] Further, PW1 testified that the elders called the 1st defendant on the carpet for the injudicious thoughts expressed. And that the 1st defendant did much to his credit tender an apology for speaking out of turn, but PW1 indicated that the 1st defendant at a breakneck pace repeated the odious sentiment on PW1 with wanton disregard. This time around, the 1st defendant was reprimanded by Sub-chief CHINAKILA for his crass remark. [9] I will comment en passant that, PW1 went on to discuss the issue of the 1st defendant and Zombe challenging his legitimacy to being a chief. I shall revert to this point anon. [10] PW1 further testified that, on 21st July, 2023, the 2nd defendant went on a whispering campaign against PW1, with the sentiment that PW1 was a “murderer”, which views he uttered before a slew of people in Mpulungu area. PW1 then challenged the 2nd defendant on the veracity of the damning signature, and the 2nd defendant went on to indicate that EVANS SIKAZWE’s cohort was a ‘defiler’. [11] Disconsolate with the news received that day that the plaintiff, PW1 was a murderer, the people attending the meeting received the message J4 with much loathing of PW1, and as a consequence PW1 has hitherto been ostracized. [12] During cross-examination the 2nd defendant simply papered over the cracks and made a theatrical deviation into semantics––suggesting rather that he called PW1 a ‘killer’ instead of a ‘murderer’, which position PW1 stoutly impugned. Nothing was deployed in re- examination. [13] The PW1’s testimony was bolstered by that of PW2, a sexagenarian of Chisunga village, who gave a regaling exposition of the facts very much in the manner of PW1, except to supplement as hereunder. [14] On 21st July, 2023, when they had gathered concerning issues of chieftainship, the 2nd defendant stood and asserted plainly that PW2 was a veritable defiler and that PW1 was not a fit and proper candidate for chieftainship seeing as the same had killed a person! According to PW2, the 2nd defendant went as far as gesticulating as to where PW1 had killed a person. [15] PW2 intimated that the 2nd defendant’s sentiments engendered an uproarious reaction. And it was PW2’s testimony that some among the populace present during the meeting voiced words like, “these men should be killed”. This PW2 made in reference to himself and PW1. [16] Nothing of note was advanced in cross-examination, and there was nothing advanced in re-examination and that marked the close of the plaintiff’s case. THE DEFENDANTS’ CASE [17] The defendants’ relied on the testimony of three (3) witnesses––DW1, DW2 and DW3. J5 [18] The defendants’ first witness, DW1, the 1st defendant herein, made a turn-up for the books and argued that–– “he did not know why he was brought to court”. [19] Notwithstanding, DW1, consolidated his testimony with the fact that, DW1 married the elder sister to PW1, and as a consequence PW1 became a village headman. And it was his testimony that he had never questioned the legitimacy of PW1 or referred to him as being illegitimate. The only time the 1st defendant impugned the legitimacy of PW1, was when PW1 made the assertion that the 2nd defendant was not a ‘Sikazwe’. [20] It was argued in cross-examination that PW1 was referred to as killer because he had killed a goat and that PW1 has many crimes in the village, which fact DW1 heard through the grapevine. Nothing was advanced in re-examination. [21] To brace the testimony of DW1, the defendants called DW2, the 2nd defendant herein, who testified as hereunder. [22] DW2 proceeded to testify from the outset that he never called PW1 a murderer at any point, but that he styled him a killer instead, seeing as the same had killed a goat, which goat belonged to a Mr. PETER MPUNDU. [23] It was DW2’s testimony that he had been shortlisted by the elders to be sub-chief after CHINAKILA had died. DW2 argued that owing to the fact that PW1 had killed MPUNDU’s goat, along with other reasons, PW1 did not qualify to be a sub-chief. [24] DW2 conceded to the fact that he had challenged PW1’s legitimacy only in reprisal, as PW1 had said in months past that DW2 was not himself a ‘Sikazwe’. J6 [25] In cross-examination the DW2 made a dogged denial of the claim that he had styled PW1 a murderer. In re-examination DW2 reiterated that he alleged that PW1 was a killer as he had killed MPUNDU’s goat. [26] Finally, the testimonies of DW1 and DW2 was allied to that of DW3, a middle-aged man of CHISUNGA village, whose testimony was much in the manner of DW2, except to augment as hereunder. [27] DW3 testified that DW2 indicated on 21st July, 2023, that he could not allow someone who had been suspected of killing a person and who was known to have killed a goat to be a leader. It was DW3’s testimony that PW1 was suspected in 2005 to have killed a person when in fact he did not. And that marked the end of DW3’s testimony. [28] During cross-examination PW1 was aggrieved as to why DW3 was being economical with the truth. Nothing was advanced in re- examination. And that marked the close of the prosecutions case. UNDISPUTED FACTS [29] Having considered the evidence herein, I find the following to be common cause: (i) that the plaintiff and 2nd defendant attended a meeting on the 21st day of July, 2023; (ii) that PW1 killed a goat belonging to one MPUNDU in 2005, and (iii) that the 1st and 2nd defendant did call to question the legitimacy of the plaintiff, as a SIKAZWE to question. DISPUTED FACTS [30] Having combed through the totality of the testimony and evidence by the parties herein I find the following to be in dispute: that DW1 and DW2 defamed PW1, as the same called him a ‘murderer’ during a meeting held on the 21st day of July, 2023. J7 ISSUES FOR DETERMINATION [31] The legal issues that are so fundamental and ought to be resolved are as follows: (i) whether or not the 1st and 2nd defendant did indeed defame the plaintiff on the 21st day of July, 2023 or whether or not the utterance that PW1 is a ‘murderer’ amounts to defamation; (ii) whether or not PW1 is entitled to damages for defamation, owing to injury on his reputation; and (iii) whether or not the plaintiff is entitled to the other reliefs sought herein. THE LAW AND FACTS [32] In many (but not all) legal systems, the burden of proof lies not with the claimant––the person who says that they were defamed––but with the defendant. If the claimant can demonstrate that the defendant made the statement––usually fairly straightforward––it then becomes a matter for the defendant to show that the statement was true, and therefore not defamatory. [33] In Zambia however, the burden of proof in matters of defamation is on the claimant or the plaintiff––PW1 (the plaintiff herein) should ensure that he proves all that he has alleged. [34] The learned authors of PHIPSON ON EVIDENCE, 17TH EDITION in paragraph 6-06 at page 15, where it is stated that: “So far, as that persuasive burden is concerned, the burden of proof lies upon the party who substantially asserts that affirmative of the issues. If, when all the evidence is adduced by all parties, the party who has this burden has not discharged it, the decision must be against him. It is an ancient rule founded on considerations of good sense should not be departed from without strong reasons.” J8 [35] Additionally, in re SATA V CHIMBA AND OTHERS (2010/HP/1282) (2011) ZMHC 71, where the learned Judge, Matibini J, stated the following: “... it is for the plaintiff to show that the utterances, and images are defamatory, false, and published with actual malice, proof of actual malice will always be required before the words can be held to be defamatory.” (emphasis added) WHAT IS DEFAMATION? [36] Well, the plain definition of the term ‘defamation’ is that: defamation is a false statement of fact that is harmful to someone’s reputation, and published “with fault,” meaning as a result of negligence or malice1. [37] Further, HALSBURY'S LAWS OF ENGLAND, 4TH EDITION, Vol. 28 at paragraph 10 (cited above), defines defamation as: “… A statement which tends to lower a person in the estimation of right-thinking members of society generally or cause him to be shunned or avoided or to expose him to hatred, contempt or ridicule, or to disparage him in his office, profession, calling, trade or business”, which position the Supreme court of Zambia sympathized with in re BEVIN NDOVI V POST NEWSPAPER LIMITED AND TIMES PRINTPAK ZAMBIA (SCZ JUDGMENT NO. 8 OF 2011)11. (emphasis supplied) [38] To boot––the authors of the Halsbury's Laws go on to describe what would amount to a defamatory statement, among other things, in paragraph 50 as follows: Electronic Frontier Foundation, ‘Online Defamation Law’ (accessible at https://www.eff.org/issues/bloggers/legal/liability/defamation#:~:text=Generally%2C%20defamatio n% 20is%20a%20false, slander%20is%20a%20spoken%20defamation). Under some legal systems, most commonly English law jurisdictions such as Tanzania or Zambia, libel is the term used for a written defamation, while slander refers to spoken defamation. J9 “It is defamatory to charge another with fraudulent, dishonest, or dishonourable conduct or motives, or to call a person a villain, swindler, rogue or rascal, or to state that he is not conversant with business ethics. It is also defamatory, though considerably less serious, to suggest that a person is being investigated by the authorities, or is under suspicion of dishonesty or crime, even if the reasonable reader would not infer outright guilt.” (emphasis added) [39] In re MWANZA V ZAMBIA PUBLISHING COMPANY LIMITED (1981) ZR 2341, where the word defamation was defined as: “Any imputation which may tend to injure a man's reputation in a business, employment, trade, profession, calling or office carried or held by him.” (emphasis mine) JUSTIFIABLE LIMITATIONS TO THE NOTION OF DEFAMATION AND OR DEFENCES AVAILABLE TO THE DEFENDANTS. [40] Hereinafter are some possible defences that may be available for the 1st and 2nd defendant when it comes to the herein notion of defamation: i. TRUTH2: Most courts have held that there is no defamation if the statement is true, and so proving the truth of an allegation should always be an absolute defence to a defamation suit. 2 In a 1919 case, the United States Supreme Court remarked in re UNITED STATES SUPREME COURT: ABRAMS V UNITED STATES 250 US 616, 639 (1919) that freedom of expression services “the search for truth”. This is the position taken by the African Commission in the Declaration of Principles on Freedom of Expression in Africa: “no one shall be found liable for true statements, opinions or statements regarding public figures which it was reasonable to make in the circumstances”. African Commission: “Declaration of Principles of Freedom of Expression in Africa” 32nd Ordinary Session (2002). J10 ii. REASONABLE PUBLICATION3: thus, if a statement is untrue, and it is damaging to a person’s reputation, the jurisprudence indicates that this does not automatically mean that it is defamatory. The past half century has seen a developing trend in which reasonable publication is not penalised, even if it is not completely accurate. The term “reasonable publication” encompasses the idea that the author took reasonable steps to ensure the accuracy of the content of the publication – and also that the publication was on a matter of public interest. iii. OPINION4: In some situations, a statement may not be a statement of fact (which can be determined to be true), but rather an expression of opinion. iv. STATEMENTS OF OTHERS5: generally, a person cannot be responsible for the statements of others, provided that they have not themselves endorsed them. 3 In re TRUSTCO GROUP INTERNATIONAL LTD AND OTHERS V SHIKONGO [2010] NASC 6, the Namibian Supreme Court looked at the defence of reasonable publication: “The defence of reasonable publication holds those publishing defamatory statements accountable while not preventing them from publishing statements that are in the public interest. It will result in responsible journalistic practices that avoid reckless and careless damage to the reputations of individuals. In so doing, the defence creates a balance between the important constitutional rights of freedom of speech and the media and the constitutional precept of dignity.” 4 The ECtHR has a long-established doctrine that distinguishes between facts and value judgments, conveniently in re LINGENS V AUSTRIA APPLICATION NO 9815/82 (1986), it was held inter alia that: “[A] careful distinction needs to be made between facts and value-judgements. The existence of facts can be demonstrated, whereas the truth of value-judgements is not susceptible of proof. ... As regards value judgements this requirement [to prove their truth] is impossible of fulfilment and it infringes freedom of opinion itself”. 5 JERSILD V DENMARK, APPLICATION NO 15890/89 (1994) at para 35; ECtHR: THOMA V LUXEMBOURG APPLICATION NO 38432/97 (2001) at para 62. J11 v. JUSTIFICATION AND FAIR COMMENT: with relation to the herein defences It is stated by the HALSBURY'S LAWS OF ENGLAND, PARAGRAPHS 82 AND 135 that: “The defence of justification is that the words complained of were true in substance and in fact. Since the law presumes that every person is of good repute until the contrary is proved, it is for the defendant to plead and prove affirmatively that the defamatory words are true or substantially true. If a defendant pleads justification, where the words complained of consist of statements of fact and comment, he must prove that the defamatory statements of fact are true or substantially true and that the defamatory inferences borne by the comment are true. Truth may be pleaded as a defence to the whole of defamatory statements or in the alternatives as a defence to the severable part of them. The defence of fair comment is in the nature of a general right, and enables any member of the public to express defamatory opinions on matters of public interest. Such opinions must be based on true facts stated on a privileged occasion and the defence only applies to statements which are recognizable by the reader or listener as expressions of opinion rather than statements of fact. The defence is defeated on proof by the Plaintiff that the defendant made the defamatory comment maliciously." Furthermore, in re BEVI NDOVI V POST NEWSPAPER LIMITED AND TIMES PRINTPAK ZAMBIA (SCZ JUDGMENT NO. 8 OF 2011)11, it was stated that: J12 “...there are three requisites of the defence of fair comment. First, the comment must be an observation, or inference from facts; not an assertion of fact. Second, is that the matter commented on must of public interest. Third, the comment must be fair, or objective; it should not be actuated by malice.” THE RIGHT TO PROTECTION AGAINST ATTACKS ON REPUTATION AND THE RIGHT TO FREEDOM OF EXPRESSION [41] In casu, PW1 sued the 1st and 2nd defendant for defamation on what he perceived to be an utterance which cast a blight on his reputation. And the lingering thought then is thus––what protection is available for PW1’s reputation vis-à-vis the 1st and 2nd defendant’s freedom of expression? [42] Before that can be resolved, it is fundamental to note that this case primarily concerns the interaction between two fundamental human rights: on the one hand, the 1st and 2nd defendant’s (DW1 and DW2) freedom of expression, and on the other hand, the protection of the plaintiff’s (PW1) reputation. [43] It is crucial to note that, concerning PW1––a claimant is not entitled to be compensated for a reputation that he does not deserve. As LITTLEDALE SAID IN M’PHERSON V DANIELS (1829) 10 B AND C 263: “The law will not permit a man to recover damages in respect of injury to a character which he either does not, or ought not to possess.” (emphasis supplied) [44] That said, the right to protection against attacks on reputation is firmly established in international law. Article 12 of the Universal Declaration of Human Rights provides that: J13 “No one shall be subjected to arbitrary interference with his privacy, family, home, or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks6.” (emphasis supplied) [45] This is echoed in identical words in article 17 of the ICCPR. However, as indicated, a balance often needs to be found against offending statements which constitute an attack on a person’s reputation and the justifiable limitations on the right to freedom of expression and any associated rights. [46] In view of the foregoing, it is safe to settle that, reputation is an integral part of the dignity of the individual. It also forms the basis of many decisions in a democratic society which are fundamental to its well- being: whom to employ or work for; whom to promote; whom to do business with; or to vote for7. Once besmirched by an unfounded allegation, a reputation can be damaged forever, especially if there is no opportunity to vindicate one’s reputation8. (emphasis supplied) [47] When this happens society as well as the individual is the loser9. For it should not be supposed that the protection of reputation is a matter of importance only to the affected individual, and family. Protection of reputation is conducive to the public. [48] In the same vein, it is of fundamental importance to a free society that this liberty we so conveniently style “freedom of expression” is recognised, and protected by the law. The liberty to communicate (and 6 UN GENERAL ASSEMBLY, ‘UNIVERSAL DECLARATION OF HUMAN RIGHTS, RESOLUTION 217 A (III)’ (1948) 7 REYNOLDS V TIMES NEWSPAPERS LIMITED, AND OTHERS [2001] 2 A. C. 127. Per Lord Nicholls of Birkenhead 8 IBID 9 IBID J14 receive) information occupies a central position in a free society. At a pragmatic level freedom to disseminate, and receive information on political matters is essential to the proper functioning of any democracy. This freedom enables those who elect political representatives at various levels to make informed choices. This freedom also enables those elected to make informed decisions. Similarly, there is no need to elaborate the important role played by the media in the expression and comment on political matters. It is through mass media that most people today obtain their information on political matters10. WHAT SHOULD BE PROVED FOR A DEFAMATION CASE TO STAND? [49] The Supreme Court of Zambia commenting on defamation, in POST NEWSPAPER LIMITED V. SONNY PAUL MULENGA SCZ APPEAL NO. 22 OF 2014 made reference to the learned author Carter-Ruck on Libel and Slander, at page 35 averred that: … “in any action for defamation, whether it be libel or slander, the Plaintiff must prove that the matter complained of: a) Is defamatory; b) Refers to the Plaintiff, and c) Has been published to a third party. (emphasis supplied) [50] Additionally, in determining whether a matter is defamatory, the learned author of HALSBURY’S LAWS OF ENGLAND, 4TH EDITION, Volume 28 at paragraph 43, where the test is set out as follows: “In deciding whether or not a statement is defamatory, the court must consider what the meaning the words would convey to the ordinary man. Having determined the meaning, the test is whether, under the circumstances in which the words were 10 REYNOLDS V TIMES NEWSPAPERS LIMITED, AND OTHERS [2001] 2 A. C. 127. Per Lord Nicholls of Birkenhead J15 published, a reasonable man to whom the publication was made would be likely to understand it in a defamatory sense.” (Underlined for emphasis) DETERMINATION [51] I will preface my determination with the fact that, this decision is not concerning legitimacy, but defamation––thusly, I will not delve into unpacking whether or not PW1 is a SIKAZWE, as that will be veering into extraneous issues, but will merely deal with the issue of PW1 and DW2’s legitimacy as far as it relates to defamation. [52] I have assiduously considered the matter before me; all the evidence in light of the authorities quoted above––“always remembering that I am taking part in what surely constitutes one of the single greatest undertakings of humanity: the attempt to bring justice to ordinary people11”, which ideal is not lost on me. [53] I am persuaded that the plaintiff’s (PW1) claim rests on the footing that the 1st and 2nd defendant besmirched PW1 when the two billed PW1 as a “murderer”, which signature PW1 believed to be malicious and an unjustifiable attack on his reputation. [54] Further, it is PW1’s view that the word complained of and particularly set out in the writ meant and is understood to mean that the Plaintiff is a marauder; an unscrupulous criminal baying for blood, with nary an ounce of consideration for human life and cannot be trusted and that the same is a danger to his community. And as a consequence, unfit for consideration as a sub-chief. 11 Thomas Finley ‘The Role of the judge’ (2005) Judicial Studies Institute Journal 1 at 14 https://www.ijsj.ie/assets/uphlod/documents/pdfs/2005-Edition-01/viewpoint/the-role-of-the- judge.pdf J16 [55] According to the plaintiff, he has been seriously injured in his: character, credit, and reputation and in the way of his occupation he had been brought into public scandal; odium and contempt and has suffered damage. [56] With the said backdrop provided, I will quickly interrogate the facts herein and give my reasons for the herein determination. [57] It is worth noting that––DW1 when under the mill of cross-examination, DW1 was attrit by PW1’s questions––thus, DW1 tacitly adverted to the fact that––the tidings that PW1 killed and that PW1 had many crimes had made a splash in the village––DW1 doughtily intimated thus that, if there is widespread support of, to coin a phrase, the “urban myth” concerning PW1’s criminal act, then the same must be drenched in veracity, or to put it in words of one syllable, ‘then it must be true’. I will go out on a limb here and assert that DW1’s herein argument is surplus to requirement. In re FUNGAMWANGO AND ANOTHER V NALISHEBO (APPEAL NO. 133/99) (2000) (UNREPORTED) 17 it was held in the vicinity of: “The appellants did not try to check on the truthfulness or otherwise of the stories before publication. Such conduct could infer their own malice because the same was published the recklessly without bothering to check the facts.” (emphasis supplied) [58] Furthermore, from the reading of the facts herein it can be gleaned that––DW2 meretriciously alleged that he never referred to PW1 as a ‘murderer’, but shoehorned himself instead by saying that he had referred to PW1 as ‘a killer’ ––a clever albeit glib play on words, which play DW2 was hoping to fob off this court with ease. Alas, I do not chime with the assertion deployed by DW1. J17 [59] Well, part of the reason why I do not find much chop to the argument advanced by DW2 is that, the testimony is not a mere “allegation” per se, rather than a statement of fact, to be less than persuasive. The learned authors of GATLEY ON LIBEL AND SLANDER, SWEET & MAXWELL, LONDON (1967) 6TH EDITION, reads in part, as follows: “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...” (emphasis mine) [60] Clearly, the law will not allow and/or countenance the behaviour by DW1 and DW2, notwithstanding them essaying to hide in derivatives of words such as “allege”, to make unjustified imputations of criminal conduct against other persons and to be specific here–– against PW1. [61] The authors of the HALSBURY'S LAWS OF ENGLAND, 4TH EDITION, Vol. 28 paragraph 50 describe what would amount to a defamatory statement, among other things, as follows: “It is defamatory to charge another with fraudulent, dishonest, or dishonourable conduct or motives, or to call a person a villain, swindler, rogue or rascal, or to state that he is not conversant with business ethics. It is also defamatory, though considerably less serious, to suggest that a person is being investigated by the authorities, or is under suspicion of dishonesty or crime, even if the reasonable reader would not infer outright guilt.” (emphasis mine) J18 [62] From the foregoing excerpt and facts herein, it is crisp that, the utterances by DW1 and DW2 were not mere vitriol or a hatchet job on PW1, as DW1 and DW2 did indeed defame PW1, notwithstanding the obstruse and curious manner in which DW2 deployed his testimony, which testimony one cannot but construe was given with the hope of militating against what now appears to be malice hurled at PW1 very much in evidence, when DW2 dug himself in and contended that he never called PW1 a “murderer”, but that he referred to him as a “killer”, who had killed Mpundu’s goat in 2005. [63] Following from the above––the chink in DW2’s armour when viewed in the round was partly DW1’s testimony when DW1 while riding the highway of trial hit a snag during cross-examination when in his testimony, he attested to the fact that it was on everyone’s mouth in the village that PW1 had killed and that PW1 is known for all his felonious escapades––coupled with the fact that DW3 in his testimony confirmed that PW1 was suspected of killing someone when in fact not. Consequently, the herein position excites in this court concerns of DW1’s credibility or lack thereof. [64] The general rule in civil cases, as stated in PHIPSON ON EVIDENCE 20TH ED (2022), para 12-12, is that a party is required to challenge by cross-examination the evidence of any witness of the opposing party on a material point which he or she wishes to submit to the court should not be accepted. That rule extends to both witnesses as to fact and expert witnesses. (emphasis mine) [65] Further, the learned authors of CROSS ON EVIDENCE 6TH EDITION (1985) state that: J19 “the object of cross-examination12 is two-fold, first, to elicit information concerning facts in issue or relevant to the issue that is favourable to the party on whose behalf the cross- examination is conducted, and secondly to cast doubt upon the accuracy of the evidence-in-chief given against such party”. (Emphasis supplied) [66] Further, according to PHIPSON ON EVIDENCE, 17TH EDITION, (THOMSON REUTERS LEGAL LIMITED 2010) paragraph 12 – 36 at P. 365: “The credibility of a witness depends on his knowledge of the facts, his intelligence, his interestedness, his integrity, his veracity. Proportionate to these is the degree of credit his testimony deserves from the court or jury. Amongst the obvious matters 12 In re THE QUEEN’S CASE (1820) 2 BROD & BING 284; 129 ER 976, wherein Abbott CJ (the Lord Chief Justice of the King’s Bench) gave the unanimous opinion of the consulted judges that the proposed evidence could not be adduced without the prior cross-examination of the witness about the matter. He stated (pp 313-314; ER p 988): “The legitimate object of the proposed proof is to discredit the witness. Now the usual practice of the courts below, and a practice, to which we are not aware of any exception, is this; if it be intended to bring the credit of a witness into question by proof of anything that he may have said or declared, touching the cause, the witness is first asked, upon cross-examination, whether or no he has said or declared, that which is intended to be proved. …[I]f evidence of this sort could be adduced on the sudden and by surprise, without any previous intimation to the witness or to the party producing him, great injustice might be done; and, in our opinion, not unfrequently would be done both to the witness and to the party; …and one of the great objects of the course of proceeding established in our Courts is the prevention of surprise, as far as practicable, upon any person who may appear therein.” J20 affecting the weight of a witnesses’ evidence may be classed his means of knowledge, opportunities of observation, reasons for recollection or belief, experience, powers of memory and perception, and any special circumstances affecting his competency to speak to the particular case inquired into either in direct examination to enhance or in cross–examination to impeach the volume of his testimony. So, all questions may be asked in cross examination which tend to expose the errors, omissions, inconsistencies, exaggerations, or improbabilities of the witnesses’ testimony”. (emphasis mine) [67] In view of the above, let me briefly comment here that––while it is common cause that PW1 killed a goat and that this fact may cover DW1 and DW2 under the defence of ‘truth and/or justification’––DW1 and DW2 cannot with convincing clarity oppugn the fact that the sentiment in question was made with malice and on purpose with the hope of besmirching PW1’s reputation. More to the point, I am persuaded that DW1 and DW2 employed the fact that PW1 had killed PETER MPUNDU’s goat to merely explain away what now is a blatant portrayal of malice, whose malice has engendered sheer casuistry, seeing as DW2 made a public announcement impugning the character PW1 before all and sundry on the 21st day of July, 2023. [68] The behaviour evinced by DW2 in making a public spectacle as he did on the 21st of July, 2023, was not in itself a prelapsarian move but was measured at eliminating competition and opposition on the part of PW1, thus, the besmirching sentiments to style PW1 as being a criminal, consequently weaken his standing in the community. [69] Further, in an attempt to be thoroughgoing, I will argue transiently albeit making no odds to the issue that, DW1 and DW2 in view of what happened on the 21st day of July, 2023, cannot find solace in the fact J21 that owing to the politics that inform chieftainship and legitimacy–– PW1 could be deemed as being a public figure who has relinquished some of his private rights should be thick skinned as he had voluntarily place themselves in a position which invites close scrutiny, because of the issue of ascension to the throne of being a sub-chief. A Plaintiff who is a private citizen on the other hand has not entered public life and therefore does not relinquish his/her interest in protecting their reputation–which is in verity the case for PW1. [70] The case of GERTZ VS. ROBERT WELCH, INC., 418 U. S. 323, 94 S. CT. 2997, 41 L. ED. 2D 789 [1974] is authority for the definition of a public figure who by placing themselves in the public eye consequently relinquish some of their privacy rights. [71] Ngulube CJ in re SATA VS POST NEWSPAPER LIMITED & ANOTHER (1995) ZR 113 echoed similar sentiments when he expressed himself thus: ‘…. authorities......show that the limits of comment on a matter of public interest are very wide indeed, especially in the case of public persons. When under attack, those who fill public positions must not be too thin-skinned. They are also taken to have offered themselves to public attack and criticism and public interest requires that public conduct shall be open to the most searching criticism’. [72] This being the position, it is safe to settle that the damages for defamation be awarded to PW1. However, when it comes to damages for defamation, I am guided by Ngulube CJ, as he then was, in the case of SATA V. POST NEWSPAPERS LIMITED AND ANOTHER. Sitting as High Court Judge, His Lordship held, inter alia that: “Where there was little actual loss suffered by a plaintiff exemplary or punitive damages were not appropriate, since the J22 primary object of an award for defamation was to offer vindication and solatium rather than monetary compensation.” [73] Nevertheless, I must state here that in assessing damages in a defamation claim, a court must consider a number of factors as provided in re MUVI TV LIMITED V PHIRI ANOTHER (APPEAL 13 OF 2015) 2018 ZMSC. Hereinafter are the factors to consider. [74] Firstly, the conduct of the Plaintiff. Gatley has the following to say at page 385, paragraph 881: “Much will depend on the character and conduct of the Plaintiff. If he has attacked or in any way provoked the Defendant, or if his own imprudent conduct has given rise to the publication of which he complains, he is hardly likely to receive much sympathy at the hands of the jury. If he is not altogether blameless in the matter, he may be well advised not to bring an action. A man who brings an action in defence of his reputation must be ready and willing to go into the witness-box and deny the charge against him. If he fails to do so, the jury may express their opinion by awarding him nominal or even contemptuous damages only.” [75] Secondly, the Plaintiff's status. That is to say, his standing in society. The higher a person's social status or reputation, the more loss or injury he suffers when defamed. Accordingly, the more damages are awardable to him. (emphasis supplied) [76] Thirdly, the nature of the slander. A slander relating to a person's office, occupation, profession, calling or trade, for example, is considered serious. Ordinarily, a slander of that nature will attract colossal damages. And so will a libel that imputes commission of serious crime such as murder or aggravated robbery. J23 [77] Fourthly, the mode and extent of publication of the defamatory statement. Defamation which is in more permanent form is considered more damaging. For that reason, defamation in writing attracts more damages than defamation in verbal form. In addition, the wider the publication, the more damage it causes to a person's reputation; and the bigger the compensation. [78] Fifthly, the absence of a retraction or apology, or the refusal by the Defendant to retract or apologise. This may be regarded as arrogance. [79] And lastly, whether there was evidence led in aggravation or mitigation of damages. [80] With the foregoing in mind, I want to make it clear that PW1, the plaintiff herein is not without fault––seeing as it is patently clear from the facts herein that PW1 impugned the legitimacy of DW2 when he alleged that DW1 was not a SIKAZWE, whose allegation had the potential to ruffle DW1’s feathers. Thus, PW1’s himself though being the claimant in this matter, the same is not a paragon of virtue. And when we look at the nature; mode and extent of the publication of the defamatory statement, we can lucidly glean that the same was not enduring as it was verbal and not written, and as a consequence whittles down its grandeur and limits it audience to predominantly the autochthon of the village. Alas and alack, DW1 and DW2 faulter on all the remaining factors. [81] For the avoidance of doubt, I find that the herein remark is inherently defamatory, and that the same was made in respect of the plaintiff, and that the 1st and 2nd defendant have failed to impeach the claim herein with convincing clarity. [82] Therefore, I grant the plaintiff’s cri de coeur and the inevitable corollary of my decision being that––I award the plaintiff general J24 damages of K1, 500.00 plus costs incidental to the suit. The said damages shall be borne by the 1st and 2nd defendant as follows: i. 1st defendant : K500.00, and ii. 2nd defendant : K1, 000.00 [83] In view of the above––it is ordered that DW1 shall remit the K500.00 on or before the 28th day of December, 2023. And it is further ordered, that the K1, 000.00 with respect to DW2 shall be payable in monthly instalment of not less than K500.00 and that the first instalment shall be made on or before the 28th day of December, 2023. This quantum for defamation is awarded to the plaintiff merely to offer vindication and solatium rather than as a monetary compensation. [84] In default of payment the plaintiff shall be at liberty to move the court for an appropriate order. [85] Either party has the right to appeal to the High Court for Zambia within 30 days from the date hereof. JUDGEMENT DELIVERED AT MBALA ON 30TH NOVEMBER, 2023 _____________________________________________ DEELESLIE MONDOKA HON. MAGISTRATE J25