Nelson Sikasote v Lewis Chisha Sukazwe (2024/SID/004) (16 May 2024) – ZambiaLII

IN THE SUBORDINATE COURT OF THE THIRD CLASS 2024/SID/004 FOR THE MBALA DISTRICT REPUBLIC OF ZAMBIA THE JUDICIARY HOLDEN AT MBALA • 16 MAY 212~ ~- (Civil Jurisdiction) -------·- MAGISfRATE CL.ASS Ill BETWEEN P.O. BOX 420101, MOALA NELSON SIKASOTE PLAINTIFF AND NELSON CHISHA SIKZAWE DEFENDANT Before: Hon’ble Deeleslie Mondoka For the Plaintiff : In person For the Defendant : Ms. J Chapinda, Messrs Legal Aid Board JUDGMENT Cases referred to: i. FULLAM VS NEW CASTLE CHRONICLE (1977) 1 WLR; ii. SATA V CHIMBA AND OTHERS (2010/HP/1282) (2011) ZMHC 71; iii. BEVIN NDOVI V POST NEWSPAPER LIMITED AND TIMES PRINTPAK ZAMBIA (SCZ JUDGMENT NO. 8 OF 2011); iv. MWANZA V ZAMBIA PUBLISHING COMPANY LIMITED (1981) ZR 2341; v. ABRAMS V UNITED STATES 250 US 616, 639 (1919); J1 vi. TRUSTCO GROUP INTERNATIONAL LTD AND OTHERS V SHIKONGO [2010] NASC 6; vii. LINGENS V AUSTRIA APPLICATION NO 9815/82 (1986); viii. JERSILD V DENMARK, APPLICATION NO 15890/89 (1994); ix. THOMA V LUXEMBOURG APPLICATION NO 38432/97 (2001); x. ATTORNEY GENERAL V CLARKE (2008) VII Z.R. 38; xi. M’PHERSON V DANIELS (1829) 10 B AND C 263; xii. POST NEWSPAPER LIMITED V. SONNY PAUL MULENGA SCZ APPEAL NO. 22 OF 2014; xiii. BROOME V CASSELL & CO LTD [1972] AC 1027, 1071; xiv. SIM V STRETCH [1936] 2 ALL ER 1237, 1240; xv. JAMEEL (YOUSEF) V DOW JONES & CO INC [2005] QB 946; xvi. THORNTON V TELEGRAPH MEDIA GROUP LTD [2011] 1 WLR 1985; xvii. SHAHA V. DARDIRYAN, P.D. 39 (4) 734 (1985); xviii. COLLINS V. BLANTERN (1767) 2 WILSON 341, 350; xix. BYRNE V. DEANE, (1937) 1 K.B. 818; xx. PRINSLOO V. SOUTH AFRICAN ASSOCIATED NEWSPAPER, LTD., [1959] 2 S.A. 693; xxi. CONNELLEY V. MCKAY, 176 MISC. 685, 28 N.Y.S.2D 327 (SUP. CT. 1941); xxii. INDENI PETROLEUM REFINERY CO. LTD V. KAFCO OIL LIMITED; ANDREW BUNGONI; SILAS MUMBA AND EMMANUEL SHIKAPUTO SCZ SELECTED JUDGMENT NO. 29 OF 2017; xxiii. SATA VS POST NEWSPAPER LIMITED & ANOTHER (1995) ZR 113; AND xxiv. THE QUEEN’S CASE (1820) 2 BROD & BING 284; 129 ER 976. OTHER MATERIALS REFERRED TO: i. MCGREGOR ON DAMAGES, 20TH ED (2017); ii. GATLEY ON LIBEL AND SLANDER, 12TH ED (2013; iii. RESTATEMENT OF TORTS, § 559, COMMENT E (1938); J2 iv. GRODECKI, IN PARI DELICTIO POTIOR EST CONDITIO DEFENDENTS, 71 LAW Q. REV. 254, 265-66 (1955); v. SHAND, UNBLINKERING THE UNRULY HORSE: PUBLIC POLICY IN THE LAW OF CONTRACT, 30 CAMBRIDGE L. J. 144, 152 (1972; vi. EUROPEAN JOURNAL OF INTERNATIONAL LAW (2014); vii. WINFIELD, PUBLIC POLICY IN THE ENGLISH COMMON LAW, 42 HARV. L. REV. 76, 92 (1928); viii. PHIPSON ON EVIDENCE 20TH EDITION (2022); ix. CROSS ON EVIDENCE 6TH EDITION (1985), AND x. HALSBURY'S LAWS OF ENGLAND, 4TH EDITION, VOL. 28. 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 stole 6 x 50kg bags of Urea and D-compound fertilizer belonging to Zombe corporative when in fact not; (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 5th January, 2023, by way of writ of summons (hereinafter referred to as the writ), which writ succinctly outlined the claim. BACKGROUND FACTS [3] Hereafter is a brief resumé of the facts in support of the plaintiff’s claim, related as hereunder. [4] On 25th January, 2024, when the matter came up for trial, PW1, the plaintiff herein, a quinquagenarian of Zombe took the stand and related that––he received a ‘call out’ on the 22nd day of December, 2023, and the same read in part that PW1 was required at the police station on 26th December, 2023. The call out is herein marked as “LCS1”. [5] At the police station the defendant named PW1 a thief and in tandem shoved and pushed PW1 in the direction of the police cell. PW1 further testified that J3 they were advised to go to Criminal Investigations Officer’s (hereinafter referred to as CIO) office. [6] At the CIO’s office PW1 indicated that the defendant cast further aspersions on PW1 that: he had stolen the defendant’s fertilizer; that PW1 was a bad person who intended to have the defendant killed. [7] PW1 indicated that the CIO advised him with the defendant in tow to come back to the police station on the 28th day of December, 2023, and on the said date it was PW1’s testimony that the CIO intimated that PW1 was not a thief. [8] As if that’s not enough, PW1 received a writ from DW1 that he was required to be at court on the 11th day of January, 2024. [9] PW1 decried the fact that the defendant has hitherto not allayed him with any apology for the besmirching and odious sentiment hurled at him on the date in question. [10] During cross-examination it was established that PW1 did indeed receive a call out from the police dated the 22nd day of December, 2023. Counsel for the defendant contended that the defendant had a right to report to the police and in rejoinder PW1 contended that the police did not and are not the ones that defamed PW1. [11] PW1’s testimony was propped up by the testimony of PW1, the chairperson of the Zombe corporative of Chisunga village, who gave a regaling exposition of the facts very much in the manner of PW1, except to supplement as hereunder. [12] PW1 and the defendant failed to resolve their issue at the front office of the police station; they went to the CIO’s office. It was PW2’s testimony that the defendant said PW1 had intentions of killing the defendant, and the defendant further indicated that the defendant would come at PW1’s house with his family for a fight so that they could ascertain “who was who”. J4 [13] PW2 testified that after waiting until 11:35hrs the CIO then communicated that the matter had since been withdrawn by the defendant. And that is when the plaintiff intimated that he would commence an action against the defendant. [14] During cross-examination it was further established that the defendant had the right to report the matter to the police, and that the issue was before the police to have the matter resolved. It was argued that the defendant was not a member of the corporative, but PW2 intimated unswervingly that the defendant was entitled to fertilizer. Nothing was advanced in re-examination and that marked the close of the plaintiff’s case. THE DEFENDANTS’ CASE [15] The defendant relied on the testimony of two (2) witnesses––himself (DW1) and DW2. [16] It was DW1’s testimony that he had been a member of the Zombe Corporative in excess of 15 years and that he had reigned as chief for 24 years and has been receiving fertilizer for the most part. [17] Alas, DW1 intimated that the order of things had unfortunately been frustrated in 2023, when DW1 was told to make a down payment of K400.00, which payment was made. The secretary of the corporative called DW1 to inform him that they had received fertilizer and DW1 said he would remit a K120.00 for transport to ferry the fertilizer to his uncle’s place as the same did not desire for the fertilizer to go to the palace. [18] DW1’s son was informed that PW1 got the fertilizer belonging to DW1. DW1 engaged the secretary to the group who confirmed that PW1 had taken the fertilizer in question. DW1 took a complaint to the police who issued a call out, herein marked “LCS1”. [19] During cross-examination PW1 disputed that DW1 was a member of the corporative. Alas, not much chop came through from cross-examination as J5 much of the issues raise made no odds to the suit at hand. Nothing was advanced in re-examination. [20] DW1 further stated that PW1 was the bane of his life and that of the chieftainship in general. DW1 cited that, PW1 wanted to burn him, but conveniently his children warned him of PW1’s devices. Finally, DW1 argued that he never at any point defamed PW1, seeing as he took the requisite steps, being having the matter reported at the police. [21] To brace the testimony of DW1, the defendants called DW2, the secretary to the Zombe corporative, who testified as hereunder. [22] The corporative receives fertilizer as part of the Farmer input Supply Program (FISP), and that the chief is part of the beneficiaries. In November, 2023, the corporative received 11 bags of fertilizer, and as members they shared 10 bags and 1 bag was earmarked for the chief’s use. To that effect the chief sent the son with a K120.00 as transport for the fertilizer in question. [23] Alas and alack––it was discovered that there were some dubious happenings preventing the chief from getting his fertilizer. A meeting was called whereat PW1 was present and the same indicated that he was the one that took the fertilizer to MUSIZE. [24] In cross-examination the DW2 gave an indication that DW1 had been a beneficiary of the commodity in question from 2021 and that PW1 changed DW1’s name to RHODA CHANSA, and that DW1 did not know how it happened but it happened. Further, PW1 did not contend the fact that he had confirmed that he was the one who took the fertilizer. Nothing was advanced in re-examination. And that marked the close of the defendant’s case. UNDISPUTED FACTS [25] Having considered the evidence herein, I find the following to be common cause: (i) that a call out dated 22nd December, 2023 was served on PW1; (ii) J6 that PW1 had taken the fertilizer, which fertilizer was reserved for DW1 as had been the practice. DISPUTED FACTS [26] Having combed through the totality of the testimony and evidence by the parties herein I find the following to be in dispute: (i) that DW1 was a member of the Zombe corporative; (ii) that DW1 defamed PW1 when he unjustifiably called the same a thief. ISSUES FOR DETERMINATION [27] To get down to brass tacks––the pertinent issue which arises from the facts for the determination of this Court is: whether the Defendant (DW1) did indeed defame the Plaintiff (PW1); (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. In determining whether the words complained of have besmirched the plaintiff’s reputation, the question to be asked is: what overall impression have the words complained of made on the trier of facts? [28] I bring to aid the case of FULLAM VS NEW CASTLE CHRONICLE (1977) 1 WLR 651 at 654, wherein Lord Denning MR as he then was said the following on the point: “In considering a question of this kind, we have to ascertain not exactly the sense in which the words were understood by the hearers, but in what sense they would be reasonably understood.” (Underlined for emphasis) THE LAW ON DEFAMATION [29] 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 J7 malice will always be required before the words can be held to be defamatory.” (emphasis added) [30] 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) [31] 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) WHAT SHOULD BE PROVED FOR A DEFAMATION CASE TO STAND? [32] 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) THE COMMON LAW BACKGROUND [33] The law distinguishes between defamation actionable per se and defamation actionable only on proof of special damage. But although sharing a common label, these are very different torts with distinct historical origins. Libel, which J8 is always actionable per se, originated in the disciplinary jurisdiction of the ecclesiastical courts and the criminal jurisdiction of the Court of Star Chamber. The gist of the tort is injury to the claimant’s reputation and the associated injury to his or her feelings. [34] Defamation actionable per se comprised, in addition to all libels, four categories of slander which were assimilated to libel on account of their particular propensity to injure the reputation of the claimant. These categories were (i) words imputing criminal offences, (ii) words imputing certain contagious or infectious diseases, and (iii) words tending to injure a person in his or her office, calling, trade or profession. The Slander of Women Act 1891 added (iv) words imputing unchastity to a woman. In these cases, the law presumes injury to the claimant’s reputation and awards general damages in respect of it. These are not merely compensatory, but serve to vindicate the claimant’s reputation. In a frequently quoted passage of his speech in BROOME V CASSELL & CO LTD [1972] AC 1027, 1071, Lord Hailsham LC acknowledged that this “… may put the plaintiff in a purely financial sense in a much stronger position than he was before the wrong. Not merely can he recover the estimated sum of his past and future losses, but, in case the libel, driven underground, emerges from its lurking place at some future date, he must be able to point to a sum awarded by a jury sufficient to convince a bystander of the baselessness of the charge ...” [35] Special damage, i.e., pecuniary loss caused by the publication, may be recovered in addition, but must be proved. [36] By comparison, slander which is not actionable per se originated as a common law action on the case, and is governed by principles much closer to those of the law of tort generally. The law does not presume injury to reputation by mere oral statements and treats injury to feelings as insufficient to found a cause of action. Special damage, representing pecuniary loss rather than injury to reputation, must be proved: see MCGREGOR ON DAMAGES, 20TH ED (2017); GATLEY ON LIBEL AND SLANDER, 12TH ED (2013), para 5.2. The J9 interest which the law protects in cases where a defamatory statement is actionable per se differs from that which it protects in other cases. The gist of the tort where the statement is not actionable per se is not injury to reputation but, as Bowen LJ observed in Ratcliffe v Evans [1892] 2 QB 524, 532, wrongfully inflicted pecuniary loss: cf Jones v Jones [1916] 2 AC 481, 490 (Viscount Haldane). Indeed, it is an open question, which has given rise to conflicting dicta, whether general damage is recoverable at all in such cases. [37] For present purposes a working definition of what makes a statement defamatory, derived from the speech of Lord Atkin in SIM V STRETCH [1936] 2 ALL ER 1237, 1240, is that “the words tend to lower the plaintiff in the estimation of right-thinking members of society generally.” Like other formulations in the authorities, this turns on the supposed impact of the statement on those to whom it is communicated. But that impact falls to be ascertained in accordance with a number of more or less artificial rules. [38] Firstly, the meaning is not that which other people may actually have attached to it, but that which is derived from an objective assessment of the defamatory meaning that the notional ordinary reasonable reader would attach to it. [39] Secondly, in an action for defamation actionable per se, damage to the claimant’s reputation is presumed rather than proved. It depends on the inherently injurious character (or “tendency”, in the time-honoured phrase) of a statement bearing that meaning. Thirdly, the presumption is one of law, and irrebuttable. JUSTIFIABLE LIMITATIONS TO THE NOTION OF DEFAMATION AND OR DEFENCES AVAILABLE TO THE DEFENDANT. [40] Possible defences that may be available for the defendant (DW1) when it comes to the herein tort of defamation include: a. TRUTH: 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. In a 1919 case, the United States Supreme Court remarked in re UNITED STATES SUPREME J10 COURT: ABRAMS V UNITED STATES 250 US 616, 639 (1919) that freedom of expression services “the search for truth”. The foregoing was 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). (emphasis supplied) b. REASONABLE PUBLICATION: 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. 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.” (emphasis supplied) c. OPINION: In some situations, a statement may not be a statement of fact (which can be determined to be true), but rather an expression of J11 opinion. 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”. d. STATEMENTS OF OTHERS: generally, a person cannot be responsible for the statements of others, provided that they have not themselves endorsed them. JERSILD V DENMARK, APPLICATION NO 15890/89 (1994) at para 35; ECtHR: THOMA V LUXEMBOURG APPLICATION NO 38432/97 (2001) at para 62. e. JUSTIFICATION AND FAIR COMMENT: with relation to the herein defences It is stated by the HALSBURY'S LAWS OF ENGLAND, PARAGRAPHS 82 AND 135: “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 J12 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." (emphasis supplied) [41] and in re BEVIN NDOVI V POST NEWSPAPER LIMITED AND TIMES PRINTPAK ZAMBIA (SCZ JUDGMENT NO. 8 OF 2011): “... 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.” (emphasis mine) INTRODUCTION OF THE THRESHOLD OF “SERIOUSNESS” TO THE TORT OF DEFAMATION. [42] For context, we shall consider firstly, in re JAMEEL (YOUSEF) V DOW JONES & CO INC [2005] QB 946. The Saudi claimant had sued the publishers of the Wall Street Journal for a statement published online in Brussels to the effect that he had been funding terrorism. The statement was shown to have reached just five people in England and Wales. The Court of Appeal rejected a submission that the conclusive presumption of general damage was incompatible with article 10 of the Human Rights Convention. Lord Phillips of Worth Matravers MR, delivering the leading judgment, observed that: “English law has been well served by a principle under which liability turns on the objective question of whether the publication is one which tends to injure the claimant’s reputation.” But he held that the presumption could not be applied consistently with the Convention in those cases, said to be rare, where damage was shown to be so trivial that the interference with freedom of expression could not be said to J13 be necessary for the protection of the claimant’s reputation. (emphasis mine) [43] The appropriate course in such a case was to strike out the claim, not on the ground that it failed to disclose a cause of action, but as an abuse of process. The Court of Appeal held that it was an abuse of process for the action before them to proceed “where so little is now seen to be at stake”, and duly struck it out. The effect of this decision was to introduce a procedural threshold of seriousness to be applied to the damage to the claimant’s reputation. [44] Two things are clear from the language of Lord Phillips’ judgment. One is that the threshold was low. The damage must be more than minimal. That is all. Secondly, the Court of Appeal must have thought that the operation of the threshold might depend, as it did in the case before them, on the evidence of actual damage and not just on the inherently injurious character of the statement in question. [45] The second case is THORNTON V TELEGRAPH MEDIA GROUP LTD [2011] 1 WLR 1985, a decision of Tugendhat J. It arose out of an application by the Defendant newspaper to strike out part of the Particulars of Claim in a libel action on the ground that the statement complained of was incapable of being defamatory. Allowing the application, Tugendhat J held that in addition to the procedural threshold recognised in Jameel, there was a substantive threshold of seriousness to be surmounted before a statement could be regarded as meeting the legal definition of “defamatory”. (emphasis supplied) [46] The judge’s definition was that a statement “may be defamatory of him because it substantially affects in an adverse manner the attitude of other people towards him, or has a tendency so to do” (the emphasis is the judge’s). He derived this formula from dicta of Lord Atkin in SIM V STRETCH [1936] 2 ALL ER 1237. At para 94, he dealt with the relationship between the definition thus arrived at and the presumption of general damage, in terms which suggested that (unlike the Jameel test) the application of the threshold J14 depended on the inherent propensity of the words to injure the claimant’s reputation: “If the likelihood of adverse consequences for a claimant is part of the definition of what is defamatory, then the presumption of damage is the logical corollary of what is already included in the definition. And conversely, the fact that in law damage is presumed is itself an argument why an imputation should not be held to be defamatory unless it has a tendency to have adverse effects upon the claimant. It is difficult to justify why there should be a presumption of damage if words can be defamatory while having no likely adverse consequence for the claimant. The Court of Appeal in JAMEEL (YOUSEF)’S CASE [2005] QB 946 declined to find that the presumption of damage was itself in conflict with article 10, but recognised that if in fact there was no or minimal actual damage an action for defamation could constitute an interference with freedom of expression which was not necessary for the protection of the claimant’s reputation”. (emphasis supplied) DETERMINATION [47] The fact that this suit is sensitive and important is not lost on me. I regret that I have failed to contain this judgment within fewer than necessary folios, as it is not my wish to make such a production of this here suit, except to aptly elucidate the matter before this Court, which matter offers our jurisdiction an opportunity to evaluate the role of public interest in judicial decision-making in general, and in adjudicating defamation cases in particular. Part of the orison I make as I unpack and deliberate on this case is this that––the uniqueness of the facts in this case and the crying need for the courts to adjudicate the same should not be missed. [48] Permit me to make crisp the idea of public interest vis-à-vis defamation, which endeavour I must confess may be in pidgin and a real faff at that. And to make my case the following inquiries are of great moment: J15 i. Firstly, what is the right standard for determining the existence or nonexistence of defamatory content in a statement? Is it the standard of the “right-thinking members of society generally” or may there be another standard? and ii. lastly, what is the role of public policy in defamation cases? Should the courts allow defamation actions for statements that contain allegations which, although commendable by most people, are regarded by certain community segments as defamatory for illegal or anti-social reasons? [49] I am persuaded that; Courts wrestle with the issue of whether readiness on the part of the judiciary to adjudicate such claims might be tantamount to officially recognizing the legitimacy of anti-social views or whether it might be perceived as such by the public. In addition, the Courts are confronted with the question of whether the social interest in avoiding such an interpretation outweighs the public interest in protecting each member in the community from defamation. [50] In re SHAHA V. DARDIRYAN, P.D. 39 (4) 734 (1985), the decision to find for the defendant in Shaha was justified by public policy considerations. Levin, J., took a firm stand on this matter, stating in part that: … “As a matter of judicial policy, it is impossible and inconceivable that the court will determine that a collaboration with the government and its policy is an activity that should be regarded, under certain circumstances, as defaming the collaborator. The policy and activities of the government aims at maintaining law and order, attaining respect for the law, and achieving as far as possible a secure and normal life there. A person who collaborates with the government for the realization of these goals or enjoys its protection for that reason will not be regarded as doing something wrong just because his activities are regarded disfavourably ... some matters ... are supreme and overshadow all niceties of … the usual legal rules.” (emphasis mine) J16 [51] In view of the above and given the facts––Judicial policy may demand denying accessibility to court in certain unworthy matters. Such a policy is indeed irregular and should be pursued carefully yet vigorously in the appropriate exceptional circumstances such as those existing in this case, wherein PW1 is suing DW1 for what he considers blooming defamation. (Emphasis supplied) [52] And commenting on “right-thinking”, Levin, J1., followed the standard of the “right-thinking members of society generally” and concluded that its application in that case justified the District Court’s decision to strike the claim for lack of a cause of action. His argument was that: … “Every reasonable person … in any civilized state does not regard as defamatory a statement alleging that a certain person collaborated with a policy aiming at securing the Rule of Law and maintaining security and public order. On the contrary, a person acting this way will be regarded by any reasonable person as someone who deserves to be commended and encouraged” (emphasis supplied) [53] Thusly, the ethical criterion within the standard for determining the defamatory nature of a statement demands that the persons in whose estimation the plaintiff sinks must be “respectable”. This rule is commonly justified in terms of public policy. The justifications are sheltered beneath the hereunder umbrella: i. Minimizing encroachments on freedom of speech; ii. Safeguarding the prestige of the judiciary; iii. Discouraging "anti-social" conduct. [54] The first justification is anchored in public law. Underlying it is the feeling that since the law of defamation, by nature, imposes a limitation on the right to free speech, defamation should not be interpreted broadly so as to avoid jeopardizing the existence of that vital constitutional right. According to this view, in determining what is defamatory, society would be better off disregarding opinions or reactions of outcasts, especially if their number is 1 SHAHA V. DARDIRYAN, P.D. 39 (4) 734 (1985) J17 negligible (RESTATEMENT OF TORTS, § 559, COMMENT E (1938).). Therefore, any limitation on free speech should be confined to statements likely to be regarded as defamatory by most members of that society. In the absence of such a limitation, life in society will be intolerable since almost any utterance might give rise to an action for defamation. [55] However, the freedom of expression justification of the ethical criterion standard for determining the defamatory nature of a statement stands on shaky foundation. This ethical qualification seems to undermine the democratic process rather than strengthen it. Fundamentally, society consists of people of differing and divergent views and reactions. Therefore, protection of the interest of the individual in his reputation should not be confined to those members of the community whose views and moral standards conform or are at least seem sympathetic to the majority. [56] Such a conception discriminates among citizens according to their views and moral convictions. [57] A second justification advanced for the ethical qualification is the prestige and public image of the judiciary. And as a consequence, maintaining the image of an independent, professional, moral, and neutral institution is paramount for the judiciary. Some argue that if a plaintiff prevails in a defamation action dealing with utterances which are not defamatory according to the majority of the population, yet which present the plaintiff in a bad light within a specific immoral, illegal, or anti-social minority group, there is a danger that the public will misinterpret that decision as judicial endorsement of the activities of the antisocial group. As a result of such a decision, the public esteem of the court may be lowered. [58] Courts must preserve their respectability. Respect for the court is instrumental in attaining and maintaining respect for law. That image is so vital that the goal of maintaining it is sometimes given priority even over the most basic duty of the judiciary, namely, the administration of justice in the individual case. Wilmut, C.J. made a sticking point in re COLLINS V. BLANTERN (1767) 2 WILSON 341, 350, wherein it was held in part that: J18 … “when the grant of justice would cause public scandal, the merits of the individual case must yield to the necessities of the law. The law needs moral support and in return it must be prepared to support public morality, and where that would be outraged by the use of the law, then, but only then, should the law refuse its aid. That is one of the major reasons why many courts have refused to “soil their hands” by refusing to rectify genuine wrongs. Two principles seem to be in a constant clash: the principle that “everyone is entitled to his just deserts whether he has broken the law or kept it' and the principle that "no polluted hand shall touch the pure fountains of justice.” (emphasis mine) [59] The latter is the main rationale of the doctrine of ex dolo malo non oritur actio; namely, no court will lend its aid to a man who founds his cause of action upon an immoral or illegal act (GRODECKI, IN PARI DELICTIO POTIOR EST CONDITIO DEFENDENTS, 71 LAW Q. REV. 254, 265-66 (1955).). Yet, as in SHAND, UNBLINKERING THE UNRULY HORSE: PUBLIC POLICY IN THE LAW OF CONTRACT, 30 CAMBRIDGE L. J. 144, 152 (1972), Professor Shand made a tendentious point when he stated that: “Our system of justice is not a beautiful garden ornament but is (or should be) a piece of machinery for social engineering which may occasionally require its operators to put on overalls and get their hands dirty2”. (emphasis mine) [60] The matter at hand breaks the mould particularly in the context of the Zambian jurisdiction vis-à-vis defamation. And in a bid to provide a secure and sufficient basis to resolve the suit herein commenced by PW1 against DW1––I will draw from one or two foreign cases which I have curated for their persuasive value in order to answer the inquiry hereunder: J19 IS IT DEFAMATORY TO ALLEGE THAT A CERTAIN PERSON INFORMED THE AUTHORITIES OF THE ILLEGAL ACTIVITIES OF OTHERS AND THEREBY ASSISTED THE POLICE IN BRINGING THESE PEOPLE TO JUSTICE? [61] In the leading English case of BYRNE V. DEANE, (1937) 1 K.B. 818, the defendant suggested that the plaintiff, a member of a golf club, had informed the police of the existence of gambling machines in that club. The plaintiff argued that the suggestion meant he had been disloyal to the members of the club and devoid of all true sporting spirit. Hilberry, J., allowed the action, but the Court of Appeal accepted defendant's appeal, stating that: “To say of a man that he has put in motion the proper machinery for suppressing crime is a thing which cannot on the face of it be defamatory”. [62] In the leading South African case, of PRINSLOO V. SOUTH AFRICAN ASSOCIATED NEWSPAPER, LTD., [1959] 2 S.A. 693, a student was alleged to be doing espionage work for the police in the university. She claimed that the publication lowered her in the estimation of many students and others. She argued that the appellation "spy" is an opprobrious one. Moreover, to say of a university student that she has deliberately spied upon fellow students whose confidence and trust she may be the court refused to take a sectional view and held that she had not been lowered in the estimation of members of society generally. [63] In the leading United States case, of CONNELLEY V. MCKAY, 176 MISC. 685, 28 N.Y.S.2D 327 (SUP. CT. 1941), the defendant spread the false report that the plaintiff, a gasoline station operator, habitually informed on truck drivers violating the I.C.C. regulations. Despite evidence of a decline in plaintiff's business, the court ruled against the plaintiff, holding he was charged merely with doing that which he had a duty to do. The court justified its decision as follows: “To permit the injured plaintiff to recover would be contrary to the public interest in that it would penalize the law-abiding citizen and give J20 comfort to the law violator. It would impede law enforcement for the benefit of the anti-social.” (emphasis added) [64] And while it may not be consummate to argue the idea of public policy in the context of defamation. I am persuaded that in light of the peculiarity of the facts herein, it would be remiss for me not to illumine the idea of public policy without the real risk, or mortal danger of disinformation. ISSUES OF PUBLIC POLICY AND WHAT IT IS. [65] Winfield, Public Policy in the English Common Law, 42 Harv. L. Rev. 76, 92 (1928) [hereinafter referred to as Winfield, Public Policy]. Winfield defined public policy as: “a principle of judicial legislation or interpretation founded on the current needs of the community.” (emphasis supplied) [66] In view of the foregoing, it is worth noting that, the operation of public policy tends to be negative. Notwithstanding, the courts have discretionary power to disallow defamation actions for public policy reasons. This power should be exercised cautiously after conducting a balancing process in which factors such as the conduct of the parties and the gravity of the allegation are taken into account. A drastic decision to disallow otherwise justifiable defamation actions for public policy reasons should be taken only in exceptional cases in which the courts reach the conclusion that the interest in protecting the right to live free of defamation should be sacrificed for the sake of assuring that wrong conceptions or deeds, especially ones which undermine the rule of law, will not be legitimized3. CONCLUSION [67] And as I ring down the curtain relating to the suit by PW1, and following the clear-sighted argument deployed by Ms. Chapinda, counsel for the defendant (DW1) that, DW1 in keeping with acceptable procedure went to the police and took out a call out for PW1 on what he considered an infraction and 3 Ibid J21 impropriety on the part of PW1. I feel obliged to advert to an excerpt from a storied scholar, one Anthony Scalia, who had the following to say about facts: … 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 supplied) [68] In every democracy, there is a necessity to maintain an appropriate equilibrium between the freedom of expression, a sense of responsibility, and public safety. However, the European Court of Human Rights (ECHR) held that the presumption of reputational harm cannot be uniformly applied in accordance with the European Convention on Human Rights (ECHR) in those exceptional cases where insignificant damage to reputation is demonstrated, and the curtailment of freedom of expression would not be deemed necessary for safeguarding the claimant’s reputation (see Freedom Of Expression and Reputation: A Balancing Act, by Alicja Mokrzycka - EUROPEAN JOURNAL OF INTERNATIONAL LAW (2014). [69] In words of one syllable, the ECHR recognizes that there are rare cases where damage to reputation is so trivial that any interference with freedom of expression would not be considered necessary for protecting the claimant’s reputation. In these situations, upholding freedom of expression takes precedence over reputational concerns. [70] On balance––while the was a slight contretemps between PW1 and DW1 and words hurled at PW1 by DW1, which words make a prima facie case that the same were opprobrious and inherently injurious to PW1’s character––I will at the risk of being viewed as playing legal “ostrich”, assert in no uncertain terms that, considering all the facts at hand––it is evident that this particular case may not be suitable for PW1 to base a defamation claim on due to its potential implications for public interest and the risk of opening up the court system to abuse, as litigants will be under license to commence farcical suits. [71] I will go out on a limb and assert that––the appropriate course in such a case would be to strike out the claim, not on the ground that it failed to disclose a J22 cause of action, but as an abuse of process. Why? Well. Firstly, it is within the province of a robust adjudicator, to ensure that he is alert and invokes the inherent jurisdiction vested in him of weeding out hopeless, frivolous, and vexatious matters and those wrongly presented before him after giving the parties an opportunity to be heard4. Lastly, I will get on my soapbox about the herein issue and assert that––it is not enough to rely on the inherently injurious character of the statement made by DW1 without so much as sagely acknowledging issues of public concern, seeing as the suit is nested in the fact that DW1 called PW1 a “thief” at the Old bill in the presence of the police; PW2 as a consequence of DW1 having informed against PW1 on what DW1 perceived as a legal impropriety on the part of PW1. [72] To iterate, this decision is neither a free pardon to DW1, or a drawn veil over the calumny and damaging slur hurled at the reputation and or character of PW1 by DW1, which mud has stuck, nor is it a private privilege arbitrarily employed by this court to emasculate and browbeat PW1 into capitulating to its whims––but a righteous safeguard against anti-socials who seek to abuse court process, which courts have but very scarce resources. [73] In any case––implicit in the ‘call out’ herein marked “LCS1”by police on account of DW1’s complaint concerning PW1 is the accusatory undertow or justifiable imputation of criminal conduct by PW1 herein, which move by DW1 was well within the preserve of due process. [74] This I say notwithstanding the excerpt hereinafter from 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 4 INDENI PETROLEUM REFINERY CO. LTD V. KAFCO OIL LIMITED; ANDREW BUNGONI; SILAS MUMBA AND EMMANUEL SHIKAPUTO SCZ SELECTED JUDGMENT NO. 29 OF 2017. J23 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) [75] Further, in an attempt to be thoroughgoing, I will argue transiently albeit making no odds to the issue that, DW1 in view of what happened in December, 2023, the same did not stoutly impugn the fact that he defamed PW1 at the police station during cross-examination, except to raise belatedly in his defence the fact that DW1 did not defame PW1. [76] Following from the hereinbefore––the general rule in civil cases, as stated in PHIPSON ON EVIDENCE 20TH Edition (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) [77] The learned authors of CROSS ON EVIDENCE 6TH EDITION (1985) state that: “The object of cross-examination 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) [78] Notwithstanding, the fact that PW1 did not aptly oppugn the testimony of DW2 when he asserted that––PW1 did in fact confirm in the vicinity of––PW1 had appropriated the fertilizer held in reserve for DW1 does give me pause, as the same is crucial and did necessitate the issuance of the herein ‘call out’. Why do I say so? Simple. A claimant is not entitled to be compensated for a reputation that he does not deserve, and as Littledale said in M’PHERSON V DANIELS (1829) 10 B AND C 263: J24 “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) [79] For the avoidance of doubt, I find the herein remark to have a smack of vitriol and is a hatchet job on PW1 by DW1, as the same is inherently defamatory, and was made in respect of the plaintiff. Nevertheless, when viewed in the round, and factoring in the threshold of seriousness, PW1’s character is not at stake per se considering the circumstances surrounding the making of the statement by DW1 herein. And to put it loosely, the expression by DW1 to PW1 is in my considered view incapable of being defamatory. [80] Thusly––to permit the plaintiff (PW1 herein) albeit injured to recover damages for defamation owing to an untimely ejaculation on the part of DW1, would be contrary to public interest in that it would––I dare say––penalize the lawabiding citizen and give comfort to potential law violators. It would impede law enforcement for the benefit of the anti-social––heaven forfend that this court should be seen countenancing such a practice and or be seen normalizing the same in our jurisdiction. [81] In light of the hereinbefore law and facts, and in trying to nourish public confidence in the police and Court system––the plaintiff’s claim fails and is dismissed forthwith. [82] 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 16TH MAY, 2024. _____________________________________________ DEELESLIE MONDOKA HON’BLE MAGISTRATE J25