Welcome to the new ZambiaLII website. Enjoy an improved search engine and new collections. If you are used to accessing ZambiaLII via Google, note Google will take some time to re-index the site.
We are still busy migrating some of the old content. If you need anything in particular from the old website, it will be available for a while longer at https://old.zambialii.org/
Nalubamba & Another v Mukumbuta (S.C.Z. Judgment 20 of 1987)  ZMSC 26 (21 September 1987);
CHIEF BRIGHT NALUBAMBA AND ZAMBIA CO-OPERATIVE FEDERATION LIMITED v MULIYUNDA WAKUNGUMA MUKUMBUTA (1987) Z.R. 75 (S.C.)
NGULUBE, D.C.J., GARDNER AND SAKALA, JJ.S.3RD SEPTEMBER, AND 22ND SEPTEMBER,1987 (S.C.Z. JUDGMENT NO. 20 OF 1987)
|Civil procedure - Defamation - Express malice - Necessity to plead.
Tort - Defamation - Qualified privilege - Common interest.
|The first defendant was employed by the second defendant and circulated a letter to various organisations defamatory of the plaintiff who was also employed by the second defendant. In his statement of claim the plaintiff did not plead express malice. The first defendant pleaded, by way of defence, a common interest with the organisations circulated. At the trial, the court allowed in, at the instance of the plaintiff, a number of documents that dealt with matters of fact not pleaded by the plaintiff. The plaintiff did not amend his statement of claim to allege those matters. The court, in giving judgment, took into account the material matters raised in the documents. It found, by relying upon the documents, that although there was a common interest the defence of qualified privilege was defeated by malice and gave judgment for the plaintiff. The defendant appealed.
|GARDNER, J.S.: delivered the judgment of the court.
This is an appeal from a judgment of the High Court awarding damages for libel. In this judgment we will refer to the 1st appellants and second appellants and the respondent as the 1st and 2nd defendants and the plaintiff respectively.
2.In a circular letter dated the 1st February, 1984, signed by the first defendant as Chairman of the second defendant addressed to all General Managers of affiliated organisations, Principal Marketing and Co-operative Officers and copied to Permanent Secretary, Ministry of Co-operatives, the Director of Marketing and Co-operatives, the Regional Director I.C.A. Regional Office, Mosh Tanzania, the Director, I.C.A. Headquarters, London, the Director, Swedish Co-operative Centre Stockholm, Sweden and the first defendant falsely and maliciously wrote and published of the Plaintiff and of him in the way of the said occupation employment and office and in relation to his conduct therein the following words.
The Statement of Claim continued with an averment that the plaintiff had been injured in the way of his occupation, employment and office, and claimed damages. In the Defence on behalf of both defendants, paragraph 2 of the Statement of Claim was admitted, but paragraph 3 was denied on the grounds that the words used were - not understood to bear nor were capable of bearing or being understood to bear any meaning defamatory of the plaintiff. The fourth paragraph of the defence was a defence of qualified privilege on the ground that the plaintiff was employed as Managing Director of the 2nd defendant and the 2nd defendant published the statement complained of to the addressees because they all had a like duty and an interest to receive such information.
I find from the pleadings that although on the face of it Document No. 1 appears to have been addressed to interested parties the manner in which it was written and the correspondence to addresses of the other documents were not made in good faith. There was the desire to tarnish the plaintiff's standing in society. Some of the documents which should have been marked confidential or secret were open to anyone's eye. It can safely be presumed that many people not concerned with the matter read some of the letters and went away convinced the plaintiff was not fit to hold any office of trust and responsibility. On a balance of probabilities I find the plaintiff has proved his case I enter judgment for the plaintiff. . . . .
Each party must plead all the material facts on which he means to rely at the trial; otherwise he is not entitled to give any evidence of them at the trial. No averment must be omitted which is essential to success. . . . .. Moreover, if the plaintiff succeeds on findings of fact not pleaded by him the judgment will not be allowed to stand.
I find that legal technicalities can occasion a lot of injustice in a trial. As commented above and following Mr Mwisiya's submissions these letters form part of the bone of contention. It will stand for the administration of justice to allow them without - prejudice the inclusion of the letters in the bundles and the admission of the letter. Mr Chongwe argued that the learned trial commissioner was right in his earlier comments about the requirement for the letter to be pleaded and wrong when he said that the letters can be admitted without prejudice; whatever that may have meant.
I find from the pleadings that. . . . . . . .
we would refer to note 4 of Order 82 Rule 3 in the White Book. This note reads as follows:
82/3/4 . . . In his statement of clam the plaintiff pleads that the defendant 'falsely and maliciously published' or 'falsely and maliciously spoke and published' the words complained of. But if the libel or slander is published without lawful excuse the law conclusively presumes that the publisher is actuated by that malice, which gives the injured party a cause of action and accordingly (notwithstanding 0.18 r.12 (1) (b)), the plaintiff need not give particulars of the facts on which he relies in support of the allegation of malice. This is sometimes called 'malice in law.' But if there is a lawful excuse for the publication (as for example,where it is an occasion of qualified privilege) by which the inference of law is prima facie rebutted, the onus is thrown upon the plaintiff of proving their existence as fact of the malice necessary to maintain the action. The latter is sometimes called 'malice in fact'or 'express malice' (see e.g. Harris v Arnott (No. 2)(1890), 26 L.R. Ir. at p. 75; Jones v Hulton,  2 K.B. at p. 477) and the plaintiff must serve a reply pleading malice and giving the particulars referred to in para. (3) of this rule.
impliedly found that all the addressees had sufficient common interest, but that the defence of qualified privilege was defeated by malice. Neither of the parties raised the question of the adequacy of the common interest either by way of appeal or by way of cross-appeal, and, although, by reason of the findings which we have made this court is at large, and is in as good a position as the court below to come to a conclusion on the pleadings and the evidence presented there, we do not consider that we have heard any argument to justify our interference with the implied finding by the learned trial commissioner that there was sufficient common interest between all the addressees and the defendants to justify the defence of qualified privilege. If we were called upon to decide the issue we would be of the view that the Managing Director of the 2nd defendant organisation must be a man of integrity and if there is a doubt about his integrity those doubts should be made known to all affiliated members of co-operative movements whether such members be below or above the rank of the person concerned. We would therefore find that there was a common interest with all the addressees of the letter complained of.