Neddy Nzowa v Able Construction Limited (APPEAL NO. 1/2004) [2004] ZMSC 152 (1 June 2004)

IN THE SUPREME COURT OF ZAMBIA - APPEAL NO. 1/2004 HOLDEN AT NDOLA/LUSAKA SCZ Judgment No. 17 /2004 [242] BETWEEN: NEDDYNZOWA AND APPELLANT 0 ABLE CONSTRUCTION LIMITED RESPONDENT Coram: Lewanika, DO, Mambilima and Silomba, JJS. On 3rd March, 2004 and 1st June, 2004. For the Appellant - Mr. C. Magubbwi of Magubbwi and Associates. For the Respondent- Mr. I. C. T. Chali of Chali, Chama and Company. JUDGMENT Mambilima JS, delivered the Judgment of the Court. Authorities referred to: 1. 2. 3. 4. 5. Edith Shabalala vs Attorney-General SCZ No 17 of 1999 E. B. Jones Chemits vs Attorney-General SCZ No. 26 of 2000 Krige & Others vs Christian Council of Zambia. Halsbury's Laws of England, 4th Edition Vpl. 28 paragraph 104. Stockdale vs Hansard (1840) 11 Ad & EL 297 [243] Legislation referred to: 1. 2. The Defamation Act, Chapter 68 of the Laws of Zambia. The National Assembly {Powers and Privileges) Act Chapter 12 of the Laws of Zambia. 0 This is an appeal against the decision of the Court below, rejecting an application by the Appellant to dispose of the case which the Respondent commenced in the Court below, on points of law under Sections 16 and 17 of the Defamation Act1 and under Sections 31 and 32 of the National Assembly (Powers and Privileges) Act2; that a claim for libel does not accrue out of reports of authenticated reports and/or publications made under the authority of the National Assembly. The Respondent took out a Writ of Summons in the Court below, claiming exemplary and punitive damages for libel in respect of an article which appeared in the Zambia Daily Mail edition of 1th August 2002 entitled: "Heritage Party MP querries PHI over payment to Contractor". In the said article, the Appellant is quoted as having questioned why the PHI had paid K70 million to the Respondent even after the Company had abandoned building houses at Ndola's Twapia site. The Appellant is said to have made the remarks after ' . [244] visiting the site. He is alleged to have said that investigations had revealed that Dathan Construction finished constructing the houses which the Respondent had abandoned. The article alluded to the fact that the Appellant was a member of the Public Accounts Committee of the National Assembly. In the article the Appellant is said to have referred to an audit report submitted to the National Assembly. Q The Appellant contended in the Court below that he made the alleged defamatory remarks attributed to him, as a member of the Public Accounts Committee and under the Authority of the National Assembly by virtue of which he was immune to proceedings for defamation on the alleged libel both under the Defamation Act1 and the National Assembly (Powers and Privileges) Act2. He produced a Certificate of Indemnity under the hand of the Speaker of the National Assembly under Section 31 of the National Assembly (Powers and Privileges) Act in which the Speaker confirmed that " ... the matters alleged Q against the Defendant Mr. Nedson Nzowa, MP, were made in pursuance and execution of Parliamentary business through instruction issued by the National Assembly, Public Accounts Committee". The Speaker also filed an Affidavit verifying the contents of the Certificate of Indemnity. .. [245] The learned trial Judge, after considering submissions by Counsel and the relevant provisions of the law invoked in support of the application, observed that the fact that the Appellant was a Member of Parliament and a Member of the Public Accounts Committee did not give him the protection under Section 31 of the National Assembly (Powers and Privilege) Act2. He was of the view that for the Appellant to be protected under this law, he should have made the publication under the authority of the Assembly and further, that if the Appellant O had been acting under the authority of the Assembly, he would not have taken so long to produce the Speaker's Certificate. The learned trial Judge also examined the Appellant's Defence and found that the Appellant did not file an unconditional appearance and neither did he plead that he had made the publication complained of under the Order or authority of the National Assembly. He opined that had the Appellant made the publication under the authority of the National Assembly, he was expected to say so in his Q Defence. The trial Judge also stated, after perusal of the .article complained of, that it did not state anywhere that the Appellant was acting under the authority of the Assembly. The Appellant was only referred to as a member of Public Accounts Committee in the National Assembly. The Judge was of the view that it was in the interests of justice that each matter has to be determined on the merits alter hearing the evidence and went on to find that the application before him had no basis. [246] The Appellant has filed three grounds of appeal namely that: (1) The Learned Judge in the Court below erred both at Law and fact when he held on page R6 that "in his Defence the Defendant did not say that he made the publication complained of by Order or under the authority of the Assembly and if the Defendant made the publication by Order or under the authority of the Assembly one would have expected him to say so in his Defence" when this fact was pleaded in the Defence and when the law does not postulate so. (2) The Judge in the Court below erred at Law when he ruled that "if the Defendant had been acting under the Order or authority of the Assembly he would not have taken so long to produce the Speaker's Certificate "as there is no time limit for production of the Certificates under CAPS 12 and 68 of the Laws of Zambia.' (3) The Judge erred at law when he ruled on page R7 that "the interest of Justice demands that each matter has to be determined on the merits 0 [247] after hearing evidence" and dismissed the application contrary to his own observation on page R6 that "in my view for one to be protected one should have made the Publication under the authority of the Assembly" and indeed contrary to the Provisions of statutory law as the authority of the Speaker was existent". In his heads of argument which he augmented with oral submissions, Mr. Magubbwi, in support of the first ground of appeal, referred us to paragraph 3 of the Appellant's Defence in which he stated inter alia that: "The Defendant shall further aver that when he inspected the PHI Twapia Project, as a Member of the Parliamentary Public Accounts Committee, he did not specifically point at the Plaintiff Company but merely referred to the contractor .... " Q According to Mr. Magubbwi, the Appellant did, in this paragraph, plead by necessary implication or otherwise, that he made the averments complained of in his capacity as a Member of the Parliamentary Public Accounts Committee. Mr. Magubbwi also referred us to paragraphs 8 and 9 of the Defence in which the Appellant pleaded; 0 O [248] "8. The Defendant shall further aver that when he fairly commented on the Auditor General's report as a Member of the Parliamentary Public Accounts Committee he did so in discharge of a Public duty which was generally for bonum Commune i.e. the general interest of society. (9) The Defendant further transverses that it is justifiable that the K70,000,000.00 that was paid to the Plaintiff is represented in the audit report as having been paid after the Plaintiff's contract had determined. Further the Defendant avers that his comments on the audit report on Twapia Project in his capacity as a Member of the Parliamentary Public Accounts Committee were fair comment on a matter of public interest." He submitted that these paragraphs show that the Appellant uttered the alleged defamatory words as a Member of the National Assembly and by necessary implication, it is clear that the fact that the publications were under the authority of the National Assembly was pleaded. He stated that consequently, the Judge in the Court below erred in fact to have found and observed that the Appellant did not disclose in his Defence that the publication was under the hand or authority of the National Assembly. Mr. Magubbwi argued further that the [249] Judge's findings were ultra vires de lege lata. Referring to Section 31 of the National Assembly (Powers and Privileges) Act and Section 16 of the Defamation Act, he submitted that there is no demand in these statutory provisions that the order or authority of the National Assembly should be pleaded in a Defence. He went on to state that the Judge therefore fell into error when he said that "if the Defendant made the publication by order or under the authority of the Assembly one would have expected him to say so in his Defence". In support of the second ground of appeal, Mr. Magubbwi stated that the provisions of the law in the Defamation Act1 and the National Assembly (Powers and Privileges) Act2, do not stipulate or provide time limits within which the Order or authority of the National Assembly should be produced before Court. He submitted that the Judge in the Court below glaringly flawed when he held that for one to be protected, he should have made the publication under the authority of the Assembly and that if the Appellant had been acting under the authority of the Assembly, he would not have taken so long to produce the Speaker's Certificate. According to Mr. Magubbwi, this finding by the Judge was misleading in that the Judge presumed that the Appellant should have had the Speaker's Certificate before hand. He argued that this is a grave misinterpretation of legislation because the intention of both statutes was that U the Certificate should be obtained after a libel or defamation suit against a Member of the National Assembly had been instituted. [250] Mr Magubbwi argued further that the findings by the Judge in the Court below offended the basic principles of interpretation of statutes. He referred us to the case of Edith Shabalala vs The Attorney-General1 in which we stated that "the fundamental rule of interpretation of a Statute is that it should be construed according to the intent expressed by Parliament. This means that the literal and grammatical meaning will prevail where there is nothing to indicate or suggest that the language should be understood in any other special sense." Relying on the cases of E. B. Jones Chemits vs Christian Council of Zambia 2 , Mr. Magubbwi submitted that the attempt by the Judge in the Court below to demand that a Certificate should be produced quickly, preceding the (J publication is illegal and adjectively wrong because it was tantamount to imposing an injunction on a statutory benefit or right. In support of the last ground of appeal, Mr. Magubbwi submitted that the Judge invited wrong considerations when he stated that " ... the interests of justice demands that each matter has to be determined on merits after [251] hearing evidence". He argued that the spirit of the two provisions of the law relied on by the Appellant was very clear and needed no extraneous invitations or additions. Upon production of the Certificate and the verifying Affidavit, at any stage of the proceedings, the case should have been stayed and/or closed. He argued further that this stance by the Judge conflicted with his earlier observation that " ... for one to be protected, one should have made the publication under the authority of the National Assembly". He stated that in this case, there was on record, authority from the Speaker and the Judge ought to have closed the case as dictated to by the law. He urged us to reverse the lower Court and uphold the appeal. In his oral response, Mr. Chali argued the three grounds of appeal together. He submitted that the Court below was considering whether the Appellant could be availed a defence that he published the material complained of under the authority of the National Assembly and the trial Judge said that, that could only be determined after the trial because it involved matters of fact. The Court had to determine whether the Appellant had prior authority of the National Assembly when he published the material and whether the Appellant exercised that authority in accordance with the conditions of the enabling statute. O 0 [252] Mr. Chali went on to state that the Appellant's defence before the lower Court was "justifiable fair comment". This was another matter which was to be determined by the Court after assessment of the evidence. It was Mr. Chali's submission that the Judge's Ruling to proceed to trial was therefore correct. He urged us to dismiss the appeal. In reply, Mr. Magubbwi submitted that the Defence referred to by Mr. Chali actually brings it out that the comments made by the Appellant were made in his capacity as Member of the Public Accounts Committee. According to Mr. Magubbwi, this justified the position that the Appellant was acting under the authority of the Assembly as evidenced by the Certificate from the Speaker. He argued that by looking for prior authority, the Court added to the statute thereby offending the enabling statute under which a Certificate can be produced at any stage of the proceedings. He urged us to uphold the appeal. We have considered the submissions by Counsel and the issues raised. Looking at the three grounds of appeal, we are of the view that they raise one cardinal issue; which is whether the Appellant, in circumstances of this case, can avail himself of the protection of the law as envisaged in Sections 16 and 17 of the Defamation Act and Sections 31 and 32 of the National Assembly (Powers and Privileges) Act. - - - - - - - - - - - - - 0 Quoting only what is relevant to this case, Sections 16 and 17 of the Defamation Act provide as follows: 16. (1) It shall be lawful for the Defendant in an action for libel in [253] respect of the publication by him ... of any authenticated report to bring before the Court in which such action is commenced a certificate under the hand of the Speaker of the National Assembly ... stating that the authenticated report was published by the Defendant or his servant by the Order or under the authority of the National Assembly together with an affidavit verifying such certificate, and the Court shall thereupon stay such action, and the action and every writ and process issued therein shall be and shall be deemed and taken to be finally put an end to, determined and superseded by virtue of this section. (underlining ours). 17. In any action for libel in respect of the printing or wireless broadcasting of any extract from or abstract of an authenticated report, it shall be a good defence to show that the matter in question was in fact an extract from or an abstract of an authenticated report and that the publication thereof was bonafide and without malice. [254] The Appellant also invoked Sections 31 and 32 of the National Assembly (Powers and Privileges) Act which are in the following terms: 32. Any person being a Defendant in any civil or criminal proceedings, instituted for or on account or in respect of the publication by such person ... by order or under the authority of the Assembly of any reports, papers, minutes, votes or proceedings, may, on giving to the Plaintiff or Prosecutor, as the case may be, twenty-four hours' written notice of his intention, bring before the court in which such civil or criminal proceedings are being held a certificate under hand of the Speaker stating that the reports, papers, minutes, votes or proceedings in respect whereof such civil or criminal proceedings have been instituted were published by such person ... by order or under the authority of the Assembly together with an affidavit verifying such certificate, and such court shall thereupon immediately stay such civil or criminal proceedings and the same and 0 every process issued therein shall be deemed to be finally determined. (underlining ours) [255] 33. In any civil or criminal proceedings instituted for publishing any extract from or abstract of any report, paper, votes and proceedings, referred to in section twenty-five, if the court be satisfied that such extract or abstract was published bona fide and without malice, it shall enter Judgment or verdict, as the case may be, for the Defendant or accused. These provisions of the law provide for the same thing except that the National Assembly (Powers and Privileges) Act2 goes further to cover criminal proceedings. One arrives at this conclusion alter construing the said provisions. The primary rule of interpretation of Statutes is that the meaning of any enactment is to be found in the natural and ordinary meaning of the words used. As we stated in the case of Edith Shabalala vs The Attorney-General(!) " ... the literal and grammatical meaning will prevail where there is nothing to indicate or suggest that the language should be understood in any O - ----------- ------ - - other special sense". From the clear language of Section 15<1J of the Defamation Act1. (a) The person invoking this section must be a Defendant in an action for [256] libel. (b) the libel complained of must be in relation to an authenticated report. (c) the Defendant must produce a Certificate under the hand of the Speaker of the National Assembly before the Court hearing the case. (d) The Certificate must state that the authenticated report was published by the Defendant by the Order or under the authority of National Assembly. (e) The Certificate must be lodged together with an Affidavit verifying its contents. Section 17 is with regard to extracts from authenticated reports. It is a Defence to an action for libel to show that the publication complained was in fact an extract from an authenticated report and its publication was bonafide. 0 [257] Section 31 of the National Assembly (Powers and Privileges) Act, like Section 16 of the Defamation Act also protects persons who are responsible for publications which are authorized by the National Assembly. A person invoking this law should also produce a Certificate under the hand of the Speaker which must be accompanied by a verifying affidavit. Section 32, like Section 17 of the Defamation Act also protects publications of extracts of authenticated reports if such publication is bonafide. Once these conditions are satisfied, the Court is obliged under both statutes to stay the proceedings. The effect of the stay is that the matter will be deemed to be finally determined. The Provisions in those two pieces of legislation are not peculiar to Zambia. They are a legacy of the Commonwealth tradition. Similar provisions are found in the legislation of most, if not all countries belonging to the Commonwealth of O Nations. The learned authors of Halsbury's Laws of England4 state: "Without prejudice to any of the privileges of Parliament, persons who publish under the direct authority of either house of Parliament have the Statutory protection of a Summary Stay of ,, . rocee mgs ... d P 0 0 [258] They quote an old case of Stockdale vs Hansard5 decided in 1840 in which it was held that the Court will stay proceedings in an action upon a verified certificate by the Speaker that the publication complained of was published by Order and under the authority of the House of Commons. The rationale for such a legal position is clear to discern. While there is a need to protect an individual's good image and reputation, there is a wider public interest that authenticated reports presented to the National Assembly must be freely debated and disseminated to the public both within and outside the National Assembly. In this respect therefore, the wider public interest carries the day. From the record of appeal, the Appellant was sued for libel. He produced before the Court, a Certificate of indemnity issued under the hand of the Speaker of the National Assembly which stated that the matters alleged against the Appellant "were made in pursuance and execution of Parliamentary business through instruction issued by the National Assembly Public Accounts Committee". The Certificate of indemnity was accompanied by a verifying affidavit which was also sworn by the Speaker _of the National Assembly. , n [259] Looking at the article complained of, it clearly comes out that the Appellant was not only speaking as a Member of Parliament but as a member of the Public Accounts Committee. In the article, the Appellant is quoted as having referred to an audit report submitted to the National Assembly on the activities of PHI between November 1991 and August 2001. The Appellant was clearly within the purview of both Section 16(1) of the Defamation Act and Section 32 of the National Assembly (Powers and Privileges) Act. Once a certificate, accompanied by a verifying affidavit under the hand of the Speaker of the National Assembly, is produced before a Court under these provisions, the Court is obliged to stay the proceedings. The effect of such a stay is that every process "issued therein shall be deemed to be finally determined" The Court has no authority to look behind the certificate and opine as to its propriety. Q The Court below therefore clearly misinterpreted and misapprehended the law when it refused the Appellant's application. The lower Court's views, that the Appellant ought to have pleaded in his Defence that he made the publication complained of by order or under the authority of the Assembly; and that if the Appellant was acting under the authority of the National Assembly, he would not have taken so long to produce the Certificate, are extraneous considerations [260] which find no support in the language of the statute. From the foregoing, this appeal succeeds. The decision of the lower Court is set aside. The proceedings in the lower Court are accordingly stayed. In terms of Section 31 of the National Assembly (Powers and Privileges) Act, all the processes issued therein are hereby deemed to be finally determined. The Appellant shall have his costs in this Court and in the Court below, to be taxed in default of agreement. D. M. Lewanika DEPUTY CHIEF JUSTICE ' ~ -------=--=_, I. C. Mambilima SUPREME COURT JUDGE ~·------- s. S. Silomba SUPREME COURT JUDGE 19