Kashikoto Conservancy Limited v Andrew Baldry (2019/HP/1116) (14 March 2024) – ZambiaLII

IN THE HIGH COURT FOR ZAMBIA 2019/HP/1116 AT THE PRINCIPAL REGSTRY HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: KASHIKOTO CONSERVANCY LIMITED PLAINTIFF AND ANDREW BALDRY DEFENDANT BEFORE THE HONOURABLE JUSTICE E.P. MWIKISA THIS. ....... DAY OF FEBRUARY,2024 APPEARANCES: v For the Plaintiff: Mr. Y. Yosa of Musa Dudhia and Company For the Defendant: Mr. H.B. Hantumbu of Muleza Mwimbu and Company JUDGMENT Cases Referred to: 1. Muvi TV Limited v Charity Katanga Appeal No. 77 of 2018 at page 28 2. Mwinga v Times Newspaper Limited (1988-89) ZR. 177 3. E. Hulton & Co. v Jones (1910) AC 20 4. Mwanza V Zambia Publishing Company Limited (1981) ZR. 234 5. Bevin Ndovi v Post Newspaper and Another (2011) 1 ZR. 472, at page 480 6. James Kasamanda v Van Boxtel Appeal. No. 173/2015 T Page Jl0 7. Harry Mwanga Nkumbula & Simon Mwansa Kapwepwe v United National Independence Party (1978) ZR 388 8. Mwitumwa v Airtel Networks Zambia Plc and Another Appeal No. 52 of 9. Zulu v Times Newspapers (Zambia) Limited (11985) Z.R 30 10. Mulenga Kasepa v Christopher Mulenga Appeal No. 235/ 2013 Jl 11. Transparency International Zambia v Chanda Chimba III and Another (2011) 3 Z.R. 11 12. Hitech Logistics Limited v Ugondo Italian Style Limited Appeal No. 80/2020 13. Sithole v State Lotteries Board (1975) ZR 106 14. Wilson Masauso Zulu v Avondale Housing Project Limited (1982) ZR 172 Legislation referred to: 1. Law Reform (Miscellaneous Provisions) Act, Chapter 74 of the Laws of Zambia 2. Judgement Act, Chapter 81 of the Laws of Zambia 3. High Court Rules 4. Defamation Act, Chapter 68 of the Laws of Zambia 5. Companies Act Other works 1. Black's Law Dictionary fifth edition at page 375 2. Leaned Authors of Carter-Rock on Label and Slander, at page 35 3. Halsbury's Laws of England, 4th Edition Volume 28 at paragraph 43 4. Learned authors of Gatley on Libel and Slander, 10th Edition, paragraph 32. 47, at page 938 5. Learned author of Zambian Civil Procedure Commentary and Cases Volume 1 by Patrick Matibini at page 62 1. INTRODUCTION a. By an amended Writ of Summons filed into Court on the 28th of August, 2019, and accompanying Statement of Claim filed into Court on the 19th of July, 2019, the Plaintiff herein sought the following reliefs: Damages for Libel together with interest pursuant to 1. Section 4 of the Law Reform (Miscellaneous Provisions) Act, Chapter 74 of the Laws of Zambia 1 and Section 2 of J2 the Judgement Act, Chapter 81 of the Laws of Zambia2 on the amount found to be due to the Plaintiff at such rate and for such period as the Court may deem fit; 11. Damages for slander together with interest pursuant to Section 4 of the Law Reform (Miscellaneous Provisions) Act, Chapter 7 4 of the Laws of Zambia and Section 2of the Judgement Act, Chapter 81 of the Laws of Zambia on the amount found to be due to the Plaintiff at such rate and for such period as the Court may deem fit; 111. An order of injunction restraining the Defendant by himself, his agents or servants or otherwise from publishing further libel or any similar slanders about the Plaintiff; 1v. Further or other relief; and v. Costs of and incidental to this action. 2. THE PLAINTIFF'S CASE a. In its Statement of Claim, the Plaintiff a private company limited by shares, avers that it focuses on conservation, tourism and community development, trading as M ushingashi Conservancy. It owns Kashikoto Conservation area, located in Mumbwa District, which it J3 purchased for the purpose of establishing a globally recognised conservancy and attracting international investor interest in Zambia's wildlife. Prior to purchasing the said area, part of it comprised of Mushingashi Conservancy which was operated by Mushingashi Company Limited. b. The Plaintiff Company claims that its business model seeks to marry conservation, tourism and local communities in a way that allows conservation activities to deliver resources for commercial tourism initiatives as well as the uplifting of the surrounding communities. As such the said business model requires harmonious and cordial relationships with the relevant Government Departments and individuals 1n the community surrounding the Kashikoto Conservation area. The Plaintiff also claims that in addition to its wildlife conservation project the plaintiff is working with locals to create jobs and develop community-based income generating activities such as agriculture and fish farming. J4 c. The Plaintiff alleges that by several text messages posted to the Professional Hunters Association of Zambia (PHAZ) members WhatsApp group chat and the Safari Hunters and Operators Association of Zambia (SHOAZ), on or around 5th June, 2019 to 14th June, 2019, the Defendant, who operates as a professional hunting operator under Royal Kafue Limited in Mumbwa District, falsely and maliciously wrote and published of the Plaintiff the following defamatory words: "I might add here that my client has made a formal complaint to the US Government about a life threatening incident initiated by Mushingashi and me I have had enough now. Andre want to take away my livelihood and distress my family well he picked on the wrong man and I will return the two years of hell. My hunt was severely disrupted by Mushingashi and my client endured a life-threatening incident. There was nothing enjoyable about that I assure you Tell me gentlemen if one PH tries to disrupt another and I have evidence does that mean we remove him from our family And now I have an admittance to the disruption of my Lion hunt and have a name. The alleged complaint was simply a smoke screen to create a diversion. Let me know when you start your investigation against Andre Van Eerden." JS d. According to the Plaintiff, the said words in their natural and ordinary meaning and by innuendo meant and were understood to mean that the Plaintiff: and its employees engage in unlawful and subversive activities that are intended to undermine the business of other •Safari operators; unlawfully disrupted a hunt being conducted by the Defendant and by so doing endangered the lives of the Defendant and his clients; is unethical in the manner it conducts its business and will go as far as sabotaging the business activities of neighbouring game ranches; is dishonest and deceptive in the manner it conducts its business activities; and lodged a false complaint against the Defendant in a bid to deceive the safari Hunters and Operators Association of Zambia leadership team. e. The Plaintiff claims that the Defendant knew very well at the time that the said words were published on the PHAZ members WhatsApp group chat, that the same would be read by the 70 members belonging to that group. f. The Plaintiff avers further that on or around 6 or 7 of June, 2019, the Defendant falsely and maliciously spoke to and J6 /or in the presence of Jackson Kamwendo and Darious Chimisa of and concerning the Plaintiff in the manner it conducts its business the following defamatory words: "you are not on patrol, you are disrupting my hunt. Huh? Walking past my baits and stuff like that, vehicle just driving anyhow. stop your fencing, you stop your fucking (sic) vehicles, you stop your walking Jackson, why are you working for these stupid people Before these mabunos (sic) came here. .. So what you are telling your bwana Brent, you can call him on the radio. Now! And say that bwana Andrew has said that you 're disturbing his lion hunt. me I'm (sic) community project, headman Mutambashi. Ndrama (sic) goes to the community. These Zimbabweans they put it in their pocket. They have never even met the chief. Everything I see here is to disrupt." g. According to the Plaintiff, the said words in their natural and ordinary meaning and by way of innuendo meant and were understood to mean that the Plaintiff: Is unethical in the manner it conducts its business and will go as far as sabotaging and disrupting the business activities of neighbouring game ranches; has no interest in uplifting J7 the wellbeing of the Kaindu community and does not invest in the development of the areas; is exploiting the community and the wildlife in the area; employs foreigners who have no regard for the community and are intent on exploiting the natural resources in the area for profit to the exclusion of the wellbeing of the inhabitants of the area; has no respect for local culture, traditions and traditional authority; and is comprised of foreigners who are held in contempt by the local community. h. The Plaintiff alleges that by reason of the publican and utterances of the said words, the Plaintiff has been greatly injured in its credit, business and reputation and has been brought into public scandal, odium and contempt among members of the PHAZ WhatsApp group chat, other safari outfitters, professional hunters, its employees and the public at large. 3. THE DEFENDANT'S CASE a. The Defendant entered appearance and settled his defence on 12th August, 2019. In his defence, the defendant denied the Plaintiffs averments. He averred that he never wrote, J8 uttered or published the alleged defamatory words contained in paragraphs 8 and 13 of the statement of claim and denied that such words were understood or carried the meaning attached to them by the Plaintiff. He denied ever publishing any defamatory words against the Plaintiff or at all. He also averred that the Plaintiff is not entitled to any of the claims being made herein. 4. EVIDENCE AT TRIAL a. At the trial of this matter on 19th of July, 2022 the Plaintiff called 3 witnesses. The Defendant on the other hand, testified on his own behalf, but did not call any witnesses. The first witness for the Plaintiff (PWl) was 35-year-old Darius Chimisa, a Game Scout of Kaindu game ranch. He testified that on the 6th of June, 2019, while patrolling in the company of his friend, Jackson, they met the Defendant at the boundary between Community Game Ranch and Mushingashi Conservancy who asked them to give him the documents and the gun they had. When they refused, the Defendant advised them to stop patrolling in that area as it was his. J9 b. He averred that the Defendant told him to go and inform his employers that they should look for their own bush and their own road and stop patrolling as thats his area. Here, reference was made to the audio recording on a flash disk on page 12 of the Plaintiff's Bundle of Documents, which was not objected to by the Defendant. c. In cross examination, he denied that patrols could scare animals because the road is used by everyone else. He averred that the name of Kashikoto Conservative Limited was mentioned in the stated audio. However, he changed and conceded that the said audio did not mention the name Kashikoto Conservancy Limited but only mentioned Mushingashi, which he said is a company. d. PW2 was 52 year old Jackson Kamwendo a game scout at Mushingashi. His testimony was more or less a repetition of PWl 's testimony, save for the following: that the Defendant did not want them to patrol in that area because it was a boundary and that he had set animal bait there; that he heard the word stupid being used in the JlO audio; and confirmed that the audio recording represents the conversation he (they) had with the Defendant. e. In cross examination, he maintained that he works for Mushingashi who was paying his salary. He denied saying that the Zimbabweans were pocketing money rather than giving it to the community. He also denied that their radio while patrolling, cannot disturb animals. He however, admitted that the presence of anyone near the hunting circle birds which are used to lure animals, would scare animals intending to go there. f. PW3 was 52 year old Andrew Martin Van Ven-eeden, the Chairperson of the Plaintiff Company, which is in conservation tourism and Community development in the Kafue area of Mumbwa District. He recited the averments in the statement of claim regarding the business model and the need for good relationships with government departments and the Kaindu local community. He averred that the company has conducted extensive farming programs, cash crop schemes, bee keeping initiatives, sustainable development opportunities, particularly Jll funding, oil pressers and have a large community conservation education program with the local schools. g. He averred that the Defendant company trades as Mushingashi Conservation. That he 1s a licenced professional hunter and a member of PHAZ. He also said that he is a member of PHAZ WhatsApp group where he became aware of the allegations against himself and Mushingashi. That he then took screenshots of the same as contained on page 1-11 of the Plaintiff's Bundle of Documents. He also averred that he was aggrieved by the messages appearing on pages 1, 7 and 9 of the said Bundle of Documents. He alleged that since the said alleged defamatory words were published by the Defendant, the Plaintiff company has not had any inquiries for business from other members of PHAZ. h. In cross examination he averred that he had a good relationship with the Defendant until the Defendant published the alleged defamatory words. He alleged that the words that were injurious to the Defendant Company is being accused of 1nJunng someone's business and J12 claims that they threatened people's lives. In relation to page 9 of the Plaintiff's Bundle of Documents, he averred that the Defendant had no right to complain any incidence because he affirmed that Mushingashi affected his hunt, which was not true. However, he admitted that he was not present when the alleged incident took place. Quizzed further, he averred that farms No. 8589, 8590 and 1. 8591 compnse of Mushingashi Conservancy trading as Mushingashi. He admitted that there is nowhere where the Plaintiff Company is being mentioned. According to PW3, he was seeking damages for slander based on the audio recording of what the Plaintiff uttered. Questioned regarding the said audio, he admitted that there is no mention of the Plaintiff Company or himself in the audio but averred that the audio makes reference to Zimbabweans and he is Zimbabwean. That he was referred to as a Zimbabwean but admitted that he was not the only Zimbabwean. J. He informed the Court that in the audio the Defendant is heard talking about disruption of his hunting baits and he J13 was saying that it was Mushingashi. That he had written a letter to Nortorn complaining about the Defendant's activities. k. In re-examination, he averred that in the WhatsApp screenshots on pages 1-11 of the Plaintiff's Bundle of Documents, the Plaintiff Company and himself as Mushingashi is referring to the management of the Plaintiff company. 1. This was the totality of the evidence of the Plaintiff. m. Turning to the Defendant, he stated that he is a manager of Community Project Royal Kafue and a licenced professional hunter. He recalled that there was an incident on the Kaindu game management ranch where a vehicle coming from Mushingashi crushed into his camp at the hour of 2 o'clock in the morning on 6th June, 2019. He alleged that the driver narrowly missed control of the said car and narrowly missed the tent where his hunting client was sleeping as he was conducting hunting safaris on behalf of Kaindu Foundation international clients, two of whom where Americans. He managed to take part of the J14 number plates of the car which appeared to be South African. n. He claimed that initially he thought it was a robbery due to the violent nature of the intrusion. That the said motor vehicle entered the Community Game Ranch and drove around, disrupting all his bait sites for hunting lions. Around 07: 00 hours when he left camp, only to discover that the baiting sites had been tempered with. At that time two game scouts who included PW2 came to see what the disturbance was about. The two recorded him without his knowledge while he was upset. o. He went on to narrate that around 3 O'clock in the morning, he heard the said motor vehicle leaving M ushingashi and he concluded that the two unknown individuals driving the said foreign car could have been either South African or Zimbabwean contractors who were building a lodge. He alleged that his client made a formal report and complaint to the American Embassy in Lusaka about the incident leading to a near death experience. That his client told him that the person who was driving the JlS said motor vehicle was his former client. The he concluded that it was a contractor working for Mushingashi which was later confirmed. That the driver of that motor vehicle resides in South Africa, whose father is Aaron Watt, a Caucasian from Zimbabwe. p. According to the Defendant, his outbursts where therefore directed at the contractors working at Mushingashi. He averred that he was annoyed because this was tantamount to sabotaging his safari and his international clients were subjected to such behaviour. He claimed that the safari was a failure and he had to compensate his clients. That the Zimbabwean Contractor, Aaron Watt, was contacted and he told him that his son was responsible for the action and that he was drunk. q. He went on to aver that his words had nothing to do with the Plaintiff company as he was directing the said words at the South African or Zimbabwean contractors. He alleged that the South African vehicle even left the country the same day. He averred that he has been in Kafue region for 25 years and that Mushngashi was named after a river. J16 That it was a property purchased and developed by Lebanese developers and it has always been known by that name. r. He averred further that as both him and PW3 are licenced hunters, he made a complaint to the PHAZ on the WhatsApp pertaining to the stated incident. He felt that PW3 as a manager and professional hunter, needed to be more responsible with his employees. That he was very angry and later on even apologised on the WhatsApp group. That Kashikoto is a brand of Zambia businessmen but he is not familiar with the Kashikoto representatives. s. In cross examination, he maintained that he has been in the Kafue area for 25 years and in Kaindu area for 13 years. He also maintained that the incident happened around 2 AM while his entourage and him were sleeping. That he could hear the engine raving as the vehicle drove in their camp. That as he was not probably in deep sleep as he is not a good sleeper, he reiterated that he suspected the motor vehicle was South African as it appeared foreign. J17 t. He averred that at the time, he did not recognise the vehicle as belonging to Mushingashi. He stated that Aaron Watt, called him at a meeting where he explained that his son had gotten drunk and apologised for his son's actions. He said that Allan Watt, was a contractor working in Mushingashi and that he had seen him. However, he was not sure if his son was working with him. He sated that he had no evidence that Aaron Watt's son was sent to disrupt his hunt. He however, admitted that the voice in the audio recording is his. He informed the Court that he presumed that the scouts he spoke to work for Mushingashi as they were clad in Mushingashi uniforms. He admitted having told the said scouts that they were disrupting his hunt. u. He admitted having used the word "mabunos". That the same is a derogatory term for South Africans. That he mentioned Brently because he is the Manager at Mushingashi. He told the Court that he raised a complaint with the PHAZ after two weeks. He admitted that he called for an investigation against PW3, Andre Van Earden. He also admitted that the words at page 9 of the Bundle of J18 Documents and that the said documents say that the life threatening incident was initiated by Mushingashi. He also admitted that the said document shows that PW3 wanted to take away his livelihood and distress his family. He further admitted that the said document shows that his hunting was severely disrupted by Mushingashi and his client endured a life-threatening incident. v. He maintained that he apologised in the PHAZ group but that he did not produce the apology in Court. He denied that Mushingashi is the name operated by the Plaintiff Company but admitted that he does not know the companies operating under it. He averred that they are operated by Paul Tudal Johns. He further averred that the Lebanese were the ones who were known as Mushingashi Conservancy. He expressed ignorance that Mushingashi is the trading name of the Plaintiff Company. He admitted publishing the statements in the PHAZ WhatsApp group and that the voice in the audio on the record is his. w. This sums up the evidence at trial. 5. PLAINTIFF'S FINAL SUBMISSIONS J19 a. The Plaintiff filed its written submission into Court on 27th April, 2023. It was firstly submitted that reference to Mushingashi in the messages published in the PHAZ WhatsApp group was reference to the Plaintiff. To buttress the above, the Plaintiff cited the case of Muvi TV Limited v Charity Katanga Appeal No. 77 of 2018 at page 281, where the Supreme Court set out 3 elements required to succeed in a claim for defamation: the statement must be defamatory; the statement must refer to the claimant, viz identify him/her; and the statement must be published, that is, communicated to at least one person other than the claimant. b. According to the Plaintiff, words do not have to expressly mention the Plaintiff's name but that it is enough that the said words are capable of being understood as referring to the Plaintiff, and were as a matter of fact reasonably understood to refer to the Plaintiff. For this, Counsel relied on the case of Mwinga v Times Newspaper Limited ( 1988-89) ZR. 1 772 where the Supreme Court guided as , follows: J20 "in this country, it is for the trial judge as trier of both fact and law to determine whether, as a matter of law, the words complained of were capable of being understood to refer to the Plaintiff and if so whether, as a matter of fact, the words were reasonably understood to refer to the Plaintiff." c. In view of the above, it was submitted that in the present case the alleged defamatory words in issue were capable of being understood to refer to the Plaintiff company and as a matter of fact, were understood to refer to the plaintiff. This is notwithstanding the Defendant's claims that he was refe rring to M ushingashi as a place and not the Plaintiff. In support of this assertion, Counsel highlighted the following: Mushingashi Conservancy is the trading name of the Plaintiff as indicated by PW3 and the same is exclusively used by it; Mushingashi is also the name collectively given to the properties on which the Plaintiff operates; PW3 mentioned in messages by the Defendant is an employee of the Plaintiff; and that the Defendant referred to "these Zimbabweans" when PW3 1s a Zimbabwean national. J21 d. It was also the Plaintiff's submission that the Defendant was ware that the name Mushingashi was linked to the Plaintiff. That in cross examination, the Defendant averred that Mushingashi trading name is Kashikoto Conservacy. Additionally, that the Defendant having lived in Kaindu area for over 13 years, it is highly improbable that he did not know that Mushingashi was being operated by the Plaintiff. Counsel averred that it was not a coincidence that following the publication of the alleged defamatory words in the WhatsApp group, the Plaintiff had no further business inquiries from members of PHAZ. That this meant that the members understood the words to refer to the Plantiff. e. It was submitted that the Plaintiff Company could not use it trading name to commence this action, in view of the legal requirement set out in Section 22 (a) of the Companies Act no. 10 of 2017, that a company should sue in its registered name. f. The Plaintiff then submitted that in any event it is irrelevant whether or not the Defendant knew that J22 Mushingashi Conservancy is the Plaintiff's trading name. Counsel cited the English case of E. Hulton & Co. v Jones (1910) AC 203 where the authors of a defamatory article , claimed that they did not know of the existence of the Claimant at the time they published the defamatory article. The House if Lords on pages 23 and 24 held as follows: "A person charged with libel cannot defend himself by shewing that he intended in his own breast not to defame, or that he intended not to defame the plaintiff, if in fact he did both. He has none the less imputed something disgraceful and has none the less injured the plaintiff. .. Just as the defendant could not excuse himself from malice by proving that he wrote it in the most benevolent spirit, so he cannot shew that the libel was not of and concerning the Plaintiff by proving that he never heard the Plaintiff." g. On the strength of the above authority, it was submitted that the common law position is that once something disgraceful has been said, it is no defence to a libel claim that the defendant has never heard of or did not know the Plaintiff. In the present case, that is immaterial that the Defendant did not know that Mushingashi Conservancy J23 was the trading name of the Plaintiff, having published something disgraceful imputed on the Plaintiff. h. Moving on, the Plaintiff submitted that the statement in issue, which was attributed to the Plaintiff, was defamatory. For the definition of a defamatory statement, the Plaintiff referred to the case of Mwanza V Zambia Publishing Company Limited (1981) ZR. 2344, where the Court at page 237 endorsed the following quotation at paragraph 57 of Gatley on Libel and Slander 7th Edition: "any imputation which may tend to injure a man's reputation in a business, employment, trade, profession, calling or office carried on or held by him is defamatory. To be actionable, words must impute tot eh Plaintiff some quality which would be detrimental, or the absence of some quality which is essential to the successful carrying on of his office, profession or trade." Counsel also had recourse to the Supreme Court case of 1. Bevin Ndovi v Post Newspaper and Another (2011) 1 ZR. 472, at page 4805 where it was stated as follows: "defamation is the publication of a statement which reflects on a persons reputation and tends to lower him in the estimation or right-thinking members of society generally or tends to make them shun or avoid him: see Winfield page 515. Whether given the words J24 are defamatory is a question of law. It is not for the Plaintiff or witness to say so." J. In view of the above authorities, it was submitted that the words published by the Defendant, captured earlier in this Judgement, are defamatory. That the Plaintiff blames Mushingashi as being the cause of the ~leged life threatening incident. That the said words in their ordinary meaning impute on the Plaintiff in the manner captured in the statement of claim. According to the Plaintiff, in line with the Bevi Ndovi case, the alleged defamatory words have led to the Plaintiff being avoided or shunned in business dealings by the members of PHAZ. Also, that the Plaintiff's reputation has been lowered. k. Regarding the third element of a claim for defamation, the Plaintiff submitted that the alleged defamatory words were communicated to at least one person other than the Plaintiff, namely the PHAZ members WhatsApp group which has over 70 members. According, to the Plaintiff all the elements needed to prove a claim of libel have been J25 established and this Court should therefore find in favour of the Plaintiff. 1. In relation to a claim for slander, it was submitted that the words spoken by the Defendant to and/ or in the presence of Jackson Kamwendo (PW2) and Darious Chimisa (PWl) constitute slander. Counsel took refuge in the case of James Kasamanda v Van Boxtel Appeal. No. 173/2015 T Page Jl06 where it was noted as follows: "it is said that defamatory matter which is communicated in spoken words is only slander and not libel." m.Relying on the above case and the Bevin Ndovi case, it was submitted that the words "stupid" and "mabunos" as contained in the audio recording, are defamatory. Additionally, that the said words were likely to injure the Plaintiff's relationship with the local people, on which the Plaintiff's business model depended. Further, that the said words referred to the Plaintiff and were published to at least more than one person other than the Plaintiff, namely to PWl and PW2. J26 n. The Plaintiff therefore urged me to award it the reliefs it is seeking in its pleadings. 6. DEFENANT'S FINAL SUBMISSIONS a. Coming to the Defendant, he filed his final submissions into Court on 16th May, 2023. The Defendant began by defining defamation according to the Learned authors of Black's Law Dictionary fifth edition at page 3751 as , follows: "Holding up of a person to ridicule, scorn, or contempt in a respectable and considerable part of the community. ... Defamation is that which tends to injure reputation; diminish the esteem, respect, goodwill or confidence in which the Plaintiff is held, or to excite adverse, derogatory or unpleasant feelings or opinions against him." b. The defendant posited the following as the elements that must be proved in a case of defamation, in accordance with the Leaned Authors of Carter-Rock on Label and Slander, at page 352 : "In any action for defamation, whether it be libel or slander, the respondent must prove that the matter complained of: i. is defamatory (defamation) ii. refers to the Respondent (identification); and J27 iii. has been published to a third person (publication)." c. In determining whether a statement is defamatory, the Defendant referred this Court to the Learned authors of Halsbury's Laws of England, 4th Edition Volume 28 at paragraph 433 where it is stated as follows: , "in deciding whether or not a statement is defamatory, the court must consider what 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 published, a reasonable man to whom the publican was made would be likely to understand it in a defamatory sense." d. On the strength of the above authorities, it was submitted that the alleged defamatory words are not defamatory at all. That the Plaintiff has not demonstrated how the alleged defamatory words have lowered the standing of the Plaintiff to the right-thinking members of the society. According to the Defendant, the Plaintiff should have called witnesses to demonstrate how the said words have tarnished its name. Here, Counsel for the Defendant took refuge in the Learned authors of Gatley on Libel and J28 Slander, 10th Edition, paragraph 32. 47, at page 9384 , to posit that the claimant can call evidence of the effect of the defamation on his reputation. e. It was further submitted that the Plaintiff is not mentioned either in passing, by way of innuendos or otherwise by the Defendant's words, both written and oral. Additionally, that the Plaintiff does not deny that its activities disrupted the Defendant's hunts for Lions and that he had set baits. f. Regarding the second requirement, namely that the defamatory words should refer to the claimant, it was submitted that the Plaintiff has not proved that the alleged defamatory words refer to it. It was submitted that, the Plaintiff company did not provide any form of evidence at trial to back up its claim that Mushingashi is its trading name. That were this Court to accept that Mushingashi is the Plaintiff's trading name, the Plaintiff should have sued in its representative capacity by indicating the Plaintiffs name and trading as "M ushingashi" and that the failure to do so strips the Plaintiff Company of locus standing. It was added that PW2 admitted in cross examination that J29 Mushingashi is an area in Kaindu Chiefdom of Mumbwa District. To buttress above, Counsel relied on the Learned author of Zambian Civil Procedure Commentary and Cases Volume 1 by Patrick Matibini at page 625 which provides as follows: "if the person suing is the sole proprietor, his name should be followed by the words, 'trading as' and name". g. Counsel also referred to Order 14 Rule 1 of the High Court Rules3 which requires that where a party is suing , or being sued in a representative capacity, the same should be indicated on the writ. Counsel further relied on the case of Harry Mwanga Nkumbula & Simon Mwansa Kapwepwe v United National Independence Party (1978) ZR 3887 to posit that an unincorporated body , cannot sue in its name but in a representative capacity. h. The Defendant raised the defence of fair comment, pursuant to Section 7 of the Defamation Act, Chapter 68 of the Laws of Zambia4 It was submitted that the . alleged defamatory words are based on facts and fair comments of what happened to the Defendant's baits and J30 his lion hunt. Additionally, that the words in the audio were spoken by the Defendant without malice against the Plaintiff or anyone as he was expressing anger against the actions of PW 1, PW2 and the motor vehicle which sped off in the direction of the Plaintiff. The Defendant accordingly urged the court to dismiss the 1. matter with costs for being devoid of merit. 7. PLAINTIFF'S SUBMISSIONS IN REPLY a. The Plaintiff company filed into Court its submissions in reply on 26th of May, 2023. In the said submissions, the Plaintiff company recited most of its submissions already covered in this Judgement and for avoidance of repetition I will not recite the same. According to the Plaintiff, it adduced sufficient evidence as to how its reputation has been tarnished and that Members of PHAZ have since shunned or avoided business dealings with the Plaintiff. b. The Plaintiff denied that it was its activities which disrupted the Defendant's hunting activities, but that of an independent contractor working on its property. Here, the case of Mwitumwa v Airtel Networks Zambia Pie and J31 Another Appeal No. 52 of 20218 was cited to demonstrate that an employer of an independent contractor is not generally liable for the torts on that contractor. That the actions of the independent contractor in issue cannot be attributed to the Plaintiff and that the Defendant was aware of the falsity of his statements. c. Regarding the issue that the Plaintiff should have sued in a representative capacity, it was submitted that Mushingashi is merely its trading name and not an unincorporated body. Thus, it was submitted that the Nkumbula case which requires unincorporated bodies to sue in a representative capacity was not applicable to the present case. The Plaintiff contended that in view of Section 22 of the Companies Act5 which clothes a , company with capacity to sue in its name, the Plaintiff properly commenced this action by suing using its registered corporate name. d. Regarding reference to the Plaintiff, it was submitted that although the Plaintiff was not expressly mentioned, that the said words were reasonably understood to refer to the J32 Plaintiff by those who knew the Plaintiff. Counsel found solace in the case of Zulu v Times Newspapers (Zambia) Limited ( 11985) Z.R 309 where the supreme Court , observed as follows: "the issue, as we see it is whether or not, in the context in which it appears, the statement about "hungers-on" was capable of being understood to refer to the Plaintiff. lfit can be so understood, it would be wholly unnecessary for us to discuss whether or not the reads must have known that the Plaintiffs was no longer a leader; ... indeed, it has long been immaterial that the Defendant did not intend to refer to a particu Zar Plaintiff so long as the words in question could be understood by reasonable people who know the Plaintiff to refer to him." e. In relation to the defence of fair comment that was raised by the Defendant, it was submitted that the said defence being a statutory defence, the same must be specifically pleaded. Reliance was placed on the case of Mulenga Kasepa v Christopher Mulenga Appeal No. 235/201310 for this above position. Counsel also cited the case of Transparency International Zambia v Chanda Chimba III and Another (2011) 3 Z.R. 1111 where it was held as , follows: J33 "whenever the statutory defence of fair comment is relied on, it must be pleaded." f. In view of the above authorities, it was submitted that in the present case the Defendant did not plead the defence of fair comment in its pleadings and cannot therefore rely on the same. g. All in all, it was the Plaintiff's submission that its reputation was injured by the Defendant and that the Defendant ought to render an apology. I was accordingly urged to award the Plaintiff the relief it is seeking. 8. CONSIDERATION AND DECISION a. I have taken due consideration of the pleadings and the evidence on the record. I have also considered the spirited Submissions from Counsel on both sides, for which I am highly grateful. From the outset I am quick to state that the burden of proof in civil matters, such as the present one, is on the Plaintiff to prove its case against the Defendant on a balance of probabilities. I am fortified by the cases of Hitech Logistics Limited v Ugondo Italian J34 Style Limited Appeal No. 80/202012 and Sithole v State Lotteries Board (1975) ZR 10613 • b. In the case in casu, the Plaintiff Company claims that the words that where published by the Defendant in PHAZ WhatsApp group constitute Libel as they are defamatory to it. The Plaintiff Company also alleges that the words contained in an audio recording on the record constitute Slander as they are also defamatory to it. The Defendant on the other hand does not dispute authoring or publishing the said words but denies that the said words are defamatory or refer to the Plaint iff or at all. c. I hasten to point out that the Plaintiff company's claim for Libel and Slander against the Defendant is on the basis that the alleged defamatory words refer to "Mushingashi" which is the Plaintiff's trading name. As such, the said words refer to the Plaintiff. The Defendant on the other hand, highly contested this issue. According to the Defendant, there is no evidence that Mushingashi is the Plaintiff's trading name and that Mushingashi is in fact a place in Chief Kaindu area in Mumbwa District. Having J35 analysed this issue, this Court's view is that this issue is of critical importance as it goes to the Plaintiff's standing in this matter and subsequently the jurisdiction of this Court. In other words, the issue is whether the Plaintiff has adduced sufficient evidence to prove that Mushingashi Conservancy, which is alleged to have been defamed, is the Plaintiff's trading name. In view of the foregoing, I propose to first resolve it. d. I have thoroughly combed through the evidence on the record. It is apparent that neither PWl nor PW2's testimonies showed any link between Mushingashi Conservancy and the Plaintiff Company. In fact, according to PW2, he was working for Mushingashi who were also paying his salary. Additionally, neither the WhatsApp text messages nor the audio recording mention the Plaintiff Company's name, save for the WhatsApp text messages which mention Mushingashi. e. The only testimony creating a link between Mushingashi Conservancy and the Plaintiff Company is that of PW3 who averred that Mushingashi Conservancy was the Plaintiff's J36 trading name. No single piece of evidence, such as an advertisement bearing the name Mushingashi Conservancy, a letter or anything was adduced into Court by the Plaintiff. This would have assisted this Court to ascertain that indeed Mushingashi Conservancy is the Plaintiff Company's trading name. Thus, other than PW3's testimony, there is nothing else to prove that the Mushingashi Conservancy 1s the Plaintiff Company's trading name. f. The Plaintiff Company alleges that the place where its properties are located is known as Mushingashi. However, not only has the Plaintiff failed to show the existence of such properties, but has also failed to adduce any evidence to support this assertion. I therefore find that the Plaintiff has failed to demonstrate that Mushingashi Conservancy, a name or brand alleged to have been injured, is its trading name. g. The Plaintiff Company which claimed that Mushingashi is its trading name bore the burden to adduce evidence to prove the same. I am fortified by the case of Wilson J37 Masauso Zulu v Avondale Housing Project Limited (1982) ZR 17214 where the Supreme Court held that the , party who alleges must prove the same. That has not been done here. For a case of this nature, which highly depended on the link between the Defendant Company and Mushingashi Conservancy, it was expected that the Plaintiff would go flat out to adduce evidence to show the relationship between the two entities. Surprisingly, that was not done in this case. h. Therefore, the Plaintiff having failed to prove that Mushingashi Conservancy is its trading name, and upon which the plaintiff's claims in this matter are based, this Court finds that the Plaintiff Company has not demonstrated that it has any locus standii in this matter. The Plaintiff Company has therefore failed to discharge it obligation to prove its case against the Defendant on a balance of probability. This Court reasons that in view of the above findings, it 1. becomes academic to consider whether the alleged words are defamatory or not. J38 J. In view of the foregoing, I find no merit in the matter and I accordingly dismiss it with costs to the Defendant to be taxed in default of agreement. k. Leave to Appeal is granted. vVlcvtct 4-' 1 {Yl Dated at Lusaka this ............. day of. ................. :,,-.. 2024 rlaJUL ~ .•................ .....•.•••••............................... ELITA PHIRI MWIKISA HONOURABLE HIGH COURT JUDGE J39