LEWISH MOSHO v MALTILDAH PHIRI HIGH COURT CHISHIMBA, J., 5th OCTOBER, 2011. 2010/HP/183 Flynote [1] Tort - Defamation - Allegation of a lawyer failing to provide for a spouse and children's general welfare - Whether defamatory. [2] Tort - Nervous shock and mental anguish - Exposure to HIV and AIDS - Whether recoverable Headnote By an amended writ of summons filed on 20th October, 2010, the plaintiff is claiming the following from the defendant: (i) damages for defamation arising from the allegation by the defendant that the plaintiff does not provide for rentals, children's school fees, medical facilities and general welfare; (ii) damages for nervous shock, mental anguish and loss of public image; (iii) interest on any amounts that will be found due to the plaintiff; (iv) costs; and (v) further and any other relief. Held: 1. A statement is defamatory of the person of whom it is published if it tends to lower him in the estimation of right thinking members of society generally, or it exposes him to public hatred, contempt or ridicule. 2. In deciding whether or not a statement is defamatory, the Court must consider what meaning the words would convey to the ordinary man. 3. The words uttered and complained of would tend to lower the plaintiff in the estimation of right thinking members of society based on his occupation of a lawyer; a noble profession. 4. Nervous shock and mental anguish actions are actions for non-physical injuries and these are allowable in recovery in limited circumstances. 5. There must be physical injury sustained as a result of the defendant's negligence and there must be predicate physical injury. 6. A plaintiff asserting a claim for nervous shock, mental anguish, based on concealment and fear of developing or having contracted HIV and AIDS will not necessarily experience a predicate physical injury. 7. Where the negligent behaviour of a defendant subjects an individual to actual direct, imminent and potentially life threatening to a person's physical safety by virtue of exposure to HIV and AIDS, recovery for nervous shock and mental anguish is permissible. 8. In the absence of physical injury or illness, damages for fear of HIV and AIDS may be recovered only where the plaintiff is exposed to HIV and AIDS. 9. To allow recovery for emotional injuries and mental anguish without proof whatsoever that the plaintiff was actually exposed to HIV and AIDS is unreasonable. 10. The plaintiff was exposed to the HIV and AIDS virus by the defendants concealment of her HIV status and therefore is entitled to the claim for nervous shock and mental anguish. Cases referred to: 1. Wilkinson vs Downtown [1897] 2 Q.B. 57. 2. Dulieu v White [1901] 2 K.B. 669. 3. Janvier v Sweeny [1919] 2 K.B. 316. 4. Hay (or Bourhil) v Young [1942] 2 ALL E.R 396. 5. Page v Smith [1955] 2 ALL E.R. 736. 6. Wooldridge v Summer [1963] 2 Q.B. 43. 7. Aloupis v Zambia Tanzania Road Service Limited (1972) Z.R. 51. 8. Zambia Publishing Company v Mwanza (1979) Z.R. 76. 9. Acropolis Bakers Limited v Zambia Consolidated Copper Mines. Limited (1985) Z.R. 232. 10. Altia v British Gas Plc [1988] Q.B. 304. 11. Bark v Sage Products in 747 F. Supp. P. 285 CED PA 1990. 12. Kerins v Hartley 27 cal. App (Cal.ct. App.1994).20. 13. Ndola Central Hospital Management Board v Kaluba and Another (1995-1997) Z.R. 215. 14. Bain v Wells, Supreme Court of Tennessee Nashville (936 SW 2a b18). 15. Fletcher v Commissioner for Public Works [2003] 1E.S.C. 13. 16. Faya v Almaraz (Personal Representative of the Estate of Rudolph Almarazi) Court of Appeal No. 3/9/1933, Maryland. Legislation referred to: 1. Penal Code, cap. 87 s.183. Works referred to: 1. Harvey McGregor, McGregor on Damages, 8th Edition, 1998 (London, Sweet and Maxwell, 2009) 2. John Munkman, Damages for Personal Injuries and Death, 10th Edition. (London, Butterworths, 1996). 3. John Segen McGrew, Concise Dictionary of Modern Medicine (New Zealand, McGrew-Hill Companies, 2006). 4. Bryan A. Garner, Blacks Law Dictionary 8th Edition, (United States of America Thompson Reuters, 2009). 5. N. K. Anard and Shikka Goel, Psychology for Nurses, (India, AITBS, 2007). Mwanabo of Messrs Lewis Nathan Advocates for the plaintiff. A. Mwalula of Messrs Corpus Legal Practitioners for the defendant. JUDGMENT CHISHIMBA, J.: By an amended writ of summons filed on 20th October, 2010, the plaintiff is claiming the following from the defendant: (i) damages for defamation arising from the allegation that the plaintiff does not provide for rentals, children's school fees, medical facilities and general welfare; (ii) damages for nervous shock, mental anguish and loss of public image; (iii) further and any other relief; (iv) interest on any amounts that will be found due to the plaintiff; and (v) costs; According to the statement of claim between 2004 and 2005, the defendant acting together with her close relatives and associates actively and without respect to the plaintiffs right to life conspired to conceal and concealed to the plaintiff the fact that the defendant had been HIV positive for the proceeding years and on therapy. In July, 2005, the plaintiff and the defendant got married. Thereafter, some family members of the defendant disclosed to the plaintiff the concealment and upon being threatened with criminal proceedings under section 183 of the Penal Code, along with a medical test conducted on the defendant, the defendant without an ounce of apology admitted her HIV status. The said plaintiff was and is still HIV negative. The plaintiff averred that this concealment was a scheme to inevitably gain pecuniary advantage upon his death, has caused all those members of the public who know him to assume he is HIV positive and diminished in the public mind the image of the plaintiff due to the general stigma associated with the ailment, thereby losing the good image and status. Upon discovery of the concealment, the plaintiff had the marriage annulled in August, 2006, but that the defendant continues holding herself by suggestion that she is still married to the plaintiff, negatively affecting his image. It is further averred that the defendant and her relatives have consistently disturbed the peace of the plaintiff by the following acts; threats of superstition, throwing into his place of abode scary matter assembled in blood and flesh and coiled in snake skin, threatening media exposure and disclosure of confidential information held of the plaintiff's clientele. It is averred that as a result of exposure and learning of the possibility of testing HIV positive in future, the plaintiff suffered a neurotic disorder, emotional turbulence, stress and fear. Thereby reducing him to a state of uncertainty, indecisiveness and unable to cope with life and business. It is further averred in the statement of claim that the defendant has defamed the plaintiff falsely and maliciously by telling people that he does not provide for her and the children, when he does provide necessities for his five children including school fees, medical membership fees and rental payments. The defendant in her defence dated 12th November, 2010, stated that she had requested the plaintiff prior to the marriage to go for voluntary counselling and testing for HIV, which the plaintiff vehemently refused to do. She denied ever hiding her HIV status from the plaintiff with intent to cause him harm and has never made any public disclosure of his status. She stated that she no longer uses the name Mrs. Mosho, nor claim herself as married to the plaintiff. The defendant denied the claims and further averred that if she uttered any claims pleaded by the plaintiff in his statement of claim, then the words were fair comment and justified in that the maintenance of herself and the children by the plaintiff are inconsistent as he make provisions when it suits him. The plaintiff testified as PW1. According to his evidence he met the defendant in 2004, at a bar at Chrisma Hotel and they dated for a couple of months marrying in July, 2005. After the marriage, the plaintiff was informed by Judy Kalenga, a cousin to the defendant that the defendant and her family was hiding her HIV status. The defendant had been positive for four to five years preceding the marriage. Thereafter, the plaintiff with the defendant went for an HIV test at Maina Soko Hospital whose results were that the plaintiff tested negative and the defendant tested HIV Positive. CD4 counts test were conducted. A family meeting was held where defendant's family admitted her status. The marriage was subsequently annulled and a decree absolute obtained. The plaintiff conducted further tests at Maina Soko hospital and in the Republic of South Africa where one of his doctors referred him to a psychologist. It was the plaintiff's further evidence that he was confused, restless and couldn't eat as a result of the concealment. The plaintiff was diagnosed with a neurotic disorder condition and put on therapy for two and half years. As a result of this disorder, he lost self-confidence and his behaviour was affected. The plaintiff testified that he expected the defendant to protect his life and that she never showed any surprise about the results. The defendant was brought back to cohabit with him due to pressure from the family and herself. They stayed in different bedrooms and he was taken advantage of by the defendant due to his state of mind. The plaintiff testified that he suffered damage as a result of the neurotic disorder. He testified that the defendant never encouraged him to go for HIV voluntary testing and counselling prior to the marriage. The plaintiff did receive a letter from the defendant's lawyers and was told by her friends that he needed to provide for the family which allegations are untrue, as he has been consistently providing for the defendant by paying school fees, accommodation, cash deposits in the defendant's bank account and medical schemes. The plaintiff only continued to co-habit with the defendant after discovery of her status, because his family believed he might fall sick and she was brought back to be held responsible. The plaintiff said that as a man, the defendant took advantage of him as he was desperate. Further, that the defendant went to speak to the priests at St. Ignatius Church, lying that the marriage was subsisting in order to disrupt his intention to marry another woman. In cross-examination by the defence, PW1 testified that he had children with the defendant in 2007 and 2009, after he already knew the defendant's HIV status. PW2 Major Chungu, a Biomedical Scientist working at Maina Soko Military hospital testified that he knows both the plaintiff and the defendant. The plaintiff is his brother-in-marriage. He testified that the couple quarrelled a lot as a result of the information that the defendant is HIV positive. He had earlier organized for the defendant to undergo HIV testing due to her prolonged illness and the result was positive. The defendant's mother blamed and threatened him for revealing the defendant's HIV status at a family meeting held. He testified that he revealed her status to her parents. PW3, Laston Nkonde, testified that he was assigned the task of family representative over the proposed marriage between the plaintiff and another lady. He presented the intended marriage to the woman's family who were divided over the issue of marriage, due to the information they had that the plaintiff has contracted a disease from his former wife. PW4, Dr. Lawson Fanwel Simapuka, a medical practitioner at Maina Soko Military Hospital testified that he had conducted annual full medical examinations on the plaintiff. The results for HIV 1/2 were negative, the CD4 count was normal and that normal CD4 count is between 500 to 1,200. PW5, Doctor David Nalumango, a general practitioner based in South Africa testified that Mr. Mosho consulted him over the medical problems he was facing as a result of his wife's status. The plaintiff presented anxiety symptoms, abdomen pains, chest pains, loss of appetite, loss of concentration and sleepless nights. Upon physical examination, he found him to be clinically stable. A rapid test of HIV status came out negative. PW5 concluded that the plaintiff needed specialist treatment such as a psychologist, or psychiatrist due to his mental condition and referred him accordingly. PW6, Tresford Kabanga, a Chartered Accountant testified that he was part of the team that negotiated the marriage arrangements between the plaintiff and the defendant in 2005. His role was of a gobetween and he paid the bride price. After two months, he was informed of the HIV status of the defendant by the plaintiff and a meeting was held at a Mr. Banda's home. Mr. Banda expressed regret and asked for forgiveness.Thereafter, they took back the defendant to her uncle’s home. PW7, Mr. Clara Chibola, a specialist in HIV Management Care and Prevention, began her testimony by defining what HIV is and how it is acquired. She further testified that in 2005, the plaintiff approached her in confidence that he had been exposed to HIV by intimacy with his wife. The plaintiff was scared, uncertain of his future and he could not eat. She advised him to seek professional counseling and HIV testing. She testified that due to the nature of AIDS being an incurable disease, people are subjected to stigma, there is fear of rejection, death, depression and suicidal tendencies. She stated that Mr. Mosho feared death and was confused. In cross-examination, she testified that she was aware that PW1 went on to have a child with the defendant and that people react differently. PW8, Monde Munyinda testified that she met the defendantand the plaintiff through mutual friendship in 2003 at College. She testified that in January, 2011, she went to visit Racheal a close friend of hers who had informed her that she had packed sweet potatoes for the defendant because the plaintiff had not provided food for her. Thereafter, she confronted Mr. Mosho in January, because she knew him. The plaintiff was upset and said he provided for the defendant and his family. The defendant Matilda Mosho (DW1) testified that she met the plaintiff in 2004 and they got married on 2nd July, 2005. The plaintiff did inquire about her HIV status in 2004, when he had received an anonymous letter suggesting she was HIV positive. She did not disclose her status to the plaintiff because he had not told her his status. She had requested him to accompany her for VCT to know each others status, but he did not want. She was aware of her HIV status during the period and that her mother, father and brother-in-law Major Chungu were also aware of her status. After two months in marriage, the couple went for testing at Maina Soko hospital and the results showed that the plaintiff tested HIV negative and she tested HIV positive in 2005. A family meeting was held at her uncle's residence where her uncle apologised because he didn't know her status at the time of marriage until the plaintiff informed him. The outcome was that Mr. Chungu and she had concealed the status. She was returned to her family in November, 2005, by the plaintiff's cousin Mr. Ng'uni and a Mr. Tresford Kabanga, whilst at the farm she was served with Court documents in January, 2006. The plaintiff was helping her with medication called Sondashi formula and moved her to Chelston. The plaintiff later asked her to move back to the matrimonial home in July, 2006 and told her to forget about the Court process. The couple went on to have two children in 2007 and 2009. In 2010, the plaintiff wrote to her telling her he had permanently moved out and that he would contribute to the rentals. In February, 2010, the plaintiff took the children for shopping at Mr. Price shop. Thereafter, he bought the defendant a car which he got the keys back upon receiving a letter from Messrs Corpus Globe. The defendant testified that she discussed with her mother the plaintiff's HIV status after seeing his CD4 count result and nobody else. She stated that the plaintiff used to provide money for the children though the same came late and was not enough. She used to borrow money and her family used to help her. At one time she even borrowed K100,000.00 from a friend to buy milk. It was during this time when he was not providing, that she told a friend, her family, her mother and brother. The defendant disputed threatening the plaintiff in order to secure cohabitation. She testified that she is still his wife though she stopped using his name after the annulment. In cross-examination, she testified that she was fully aware of her HIV positive status and that when the plaintiff requested to know her status she did not tell him because she didn't know his status. When asked if she was at all concerned about his health and the risk the defendant stated that she had asked the plaintiff to accompany her so that they both know their status. She tested HIV positive in 1999, after being unwell and upon Mr. Chungu arranging for her to see a Doctor.She commence medication in 2006/7, whilst expecting their first child. She stated that upon the couple going for testing and being told the results, she was not shocked because she knew her status. She further stated that she was not remorseful having exposed the plaintiff. She testified that she discussed the HIV status of the plaintiff with her mother in 2005, though he never gave her consent to discuss his CD4 count results which she kept at her mother's house. She stated that she took precautions after counseling by using condoms which the plaintiff did not prefer. The defendant conceded and agreed that she informed people that the plaintiff was not providing for her in order for them to know. This was because he was not providing though there was no dire need of money for food or a critical period. She confirmed having seen the annulment order. DW2, Dr. Zebron Thole, a Medical Doctor specialising in HIV /AIDS started his evidence by defining what HIV/AIDS is and how it is contracted. He testified that in cases of discordant couples, where one is positive and the other negative, couples are advised on how to prevent transmission from the positive partner to the negative partner by use of protective sex. In the event that safe sex is not practiced, there is a possibility that the virus can be passed on. He went on to state that neurotic disorder is a functional mental status of an individual such as distortion of mind comprising several entities like anxiety state and hysteria. A person with neurotic disorder does not lose grasp on reality as to engage in risky behaviour. CD4 count testing is done after HIV test is positive and according to DW2 the normal range is between 600 and 1,500, however CD4 count can be done where there is a viral infection and the only disease that can lower CD4 is HIV. In cross-examination, DW2 conceded that there was no crediable documents that he presented before Court showing his training in HIV AIDS. He stated that neurotic disorder includes distortion of mind which can exist in a person appearing normal and disturbance of behaviour might include doing abnormal things. He stated that he never dealt with the plaintiff and the defendant. The parties filed into Court written submissions dated 28th July, 2011, and 10th August, 2011, respectively. The plaintiff's advocates referred to Winfield and Jolowicz on Tort on definition of defamation. The case of Zambia Publishing Company v Mwanza (8), where the Court recognized that injury to one's reputation entitles the injured party to damages was referred to. It is submitted that the defendant did not dispute the fact that she uttered the words complained of. On the claim for damages for nervous shock, neurotic disorder, mental anguish and loss of public image, it is submitted that its common cause that by association with the defendant through marriage, everyone is aware of the defendant's HIV status have held the plaintiff to be of the same status. Society at large in Zambia does stigmatise HIV positive persons and those deemed to have sexual intercourse with them. Further, that there being no cure for HIV and AIDS, the discovery that one's wife is HIV positive is enough to cause the other spouse nervous shock, neurotic disorder, mental anguish and loss of public image hence the pretesting and post-testing counseling for HIV cases. It is submitted that the plaintiff suffered damage as per evidence before the Court. The plaintiff referred to McGrew Hill, Concise Dictionary of Modern Medicine's, definition of neurotic disorder. It is contended that DW2 confirmed to the Court that one of the categories of neurotic disorder is hysteria exhibited as gross abnormality of behaviour. This it is submitted can be seen by the plaintiff's abnormal behaviour of accepting back and having unprotected sexual intercourse with the defendant even after he knew her status. It is submitted in regard to the law on damages for nervous shock and neurotic disorder that the shock must be the cause of some physical, nervous or mental injury or illness. They referred to the learned author John Munkman, Damages for Personal Injuries and Death 10th Edition (London, Butterworths, 1996) and the case of Hay (or Bourhill) v Young (4). It is submitted that the plaintiff suffered shock through the medium of the ear upon hearing that his then wife was HIV positive and he was not aware. The cases of Dulieu v White (2), Altia v British Gas Plc (10), Page v Smith (5), relating to shock were citied. The Court was further referred to the cases of Wikinson v Downton (7) and Janvier v Sweeny (3), where it was held that: “Shock caused by deliberate action affords a valid ground of claim”. In regard to nervous shock the case of Ndola Central Hospital Board of Management v Kaluba and Another (13), was cited where it was stated that: “the shock theory is now too well established to require debate”.In a nutshell the basis of the plaintiff's claims for damages for nervous shock, mental anguish and loss of public image is the discovery of the defendant's HIV status, the concealment of that information and expose thereof. On the question of damages, the case of Zambia Publishing Company Limited v Mwanza (8), was cited where the Supreme Court awarded damages for mental anguish and social isolation. It is further submitted that though the case before this Court is novel, the plaintiff is entitled to damages for nervous shock. The case of Acropolis Bakery Limited v ZCCM (9), was cited in favour of the above argument. It was submitted that the plaintiff has proved his case on a balance of evidence adduced. The defendant on the other hand in regard to the claim for defamation submitted that the plaintiff has not proved that the defendant published some untrue statements that tendered to lower his reputation in the opinion of right thinking members of the country. The case of Aloupis v Zambia Tanzania Road Services Limited (7), was cited. It is contended that the evidence of PW8 is hearsay as she did not actually hear the defendant utter the words complained of. It is submitted that the statement that was uttered by the defendant was not untrue as she had merely asked her friend to lend her money to buy necessities for children, as she did not know the whereabouts of the plaintiff. Further, that apart from the test of whether the statement uttered is untrue, the second test is whether the words tended to lower the plaintiff in the estimation of right thinking members of the society generally. It is contended that no witness were called concerning the alleged defamation, apart from PW8. In regard to the claim for nervous shock, mental anguish and loss of public image, it is contended that though the defendant concealed her HIV status prior to the marriage, the principle of volenti non fit injuria applies to this case. This it is contended is because despite being aware of the defendant's HIV positive status, the plaintiff continued to have unprotected sex with her resulting in two children being born. The case of Wooldridge v Sumner (6), was relied on where it was held that: “No act is actionable as a tort at the suit of a person who has expressly, or impliedly assented to it”. In regard to the neurotic disorder suffered in 2007, it is submitted that this assertion is false as no medical practitioner who treated him was called to testify, nor did the plaintiff tell the Court what medication he had been prescribed. The Court was referred to the definition of a neurotic disorder by N. K. Anand in Psychology for Nurses (supra). It is contended that a neurotic disorder cannot stop the plaintiff from reasoning and removing himself from a dangerous situation by engaging in high risk behaviour. It is further contended in regards to loss of public image by people close to him and his business relations, no witness was called to testify in this regard. It is submitted that the plaintiff is not entitled to claims as he has failed to prove his claim against the defendant. I have considered the evidence adduced together with the list of authorities and submissions by counsel for the parties. I will proceed first with the claim for damages for defamation for the allegation by the defendant that the plaintiff does not provide for rentals, children's school fees, medical facilities and general welfare. Damages as defined by McGregor on Damages, 8th Edition (supra), are in a vast majority of cases pecuniary compensation obtainable by the success in an action for which a wrong which is either a tort or a breach of contract. Defamation is a tort which protects reputation. In deciding whether or not a statement is defamatory, the Court must consider what meanings the words would convey to the ordinary man, whether the words to a reasonable man would be likely understood in a defamatory sense. A statement is defamatory of the person of whom it is published if it tends to lower him in the estimation of right thinking members of society generally, or if it exposes him to public hatred, contempt or ridicule. The issues in considering the claim for damages in respect of defamation before this Court are: (i) whether the defendant did utter the words complained of; (ii) whether the actual words complained of would tend to lower the plaintiff in the estimation of right thinking members of society generally; and (iii) if answered in the affirmative, whether the statement was fair comment and whether the defendant was justified in making the said statement as pleaded. The evidence on record is that PW8 testified that she was informed in January, 2011, by a friend called Racheal that she had packed food for the defendant because the plaintiff had not provided food for her. She thereafter confronted the plaintiff about it. It has been argued that this is hearsay evidence by the defendant. I am of the considered view that hearsay evidence is inadmissible as evidence of any fact asserted. The only exception is where the evidence is tendered to prove the fact that the statement was made and not as to its truthfulness. I am of the considered view that the evidence of PW8 relates to the fact that the alleged statements were made and not to the truthfulness of the statements and as such is admissible. In her evidence, DW1 admitted telling her friend, mother, brother and family that the respondent did not provide for her. She further testified that the plaintiff did provide for the children though the same came late and was not enough. There is evidence on record in the bundle of documents showing that the plaintiff did provide for the defendant and the children by paying rentals in advance of one and half years up to 19th June, 2012, paid medical cover, school fees and cash deposits in the defendant's account. I find as a fact that the defendants did utter the words, or statements complained of. I am of the considered view that the words uttered and complained of would tend to lower the plaintiff in the estimation of right thinking members of society based on his occupation. The plaintiff is a lawyer of a noble profession. Any right thinking member of society would think less of the plaintiff hearing the said defamatory statements. The defendant has pleaded the defences of justification that the words complained of were true. For the defence of justification to be successful, the defendant must prove that the defamatory statements are true or substantially true. I am of the considered view that the defendant has not adduced clear and sufficient evidence that the allegation is true. The defendant has merely stated that the plaintiff did not provide for her but has not adduced any evidence to that effect. The burden of proving the defence of justification is on the defendant not on the plaintiff. The defendant bears the burden to prove her claim that the statements are true. The defendant has failed to prove the facts and the comment to be true, or at least substantially true. I find as a fact that the statements uttered by the defendant are untrue and I am of the considered view that the plaintiff has proved his case on the balance of probability in regard to damages for defamation. The defendant further pleaded the defence of fair comment. I am of the considered view that this is misconceived as the requirement for defence of fair comment is that it must be an expression of opinion on matters of public interest. I hold that this is not a matter of public interest. The plaintiff has further claimed for damages for nervous shock, mental anguish, loss of public image and neurotic disorder. The gist of the plaintiff's claim is based on the concealment by the defendant of her HIV status which resulted in damage. I must state here that the claim is indeed a novel claim. It is not in dispute that the defendant concealed the fact that she was HIV positive at the time of contracting the marriage with the plaintiff in 2005. It is further not in dispute the fact that the plaintiff only discovered his former wife's status two months after the marriage. It is also not in dispute the fact that upon the plaintiff becoming aware of the defendant's HIV status, the parties went on to have two children in 2007 and 2009. The issues as I see them before this Court are as follows: 1) whether the plaintiff is entitled to damages for nervous shock, mental anguish, neurotic disorder and loss of public image upon discovery of the defendant's HIV status during the marriage. There are a number of case authorities where the Courts have recognized shock and mental anguish such as the Ndola Central Hospital Board of Management v Kaluba and Another (13). The claim for neurotic disorder fall into what is currently referred to psychiatric harm. A Neurotic disorder it has been defined by the McGraw-Hill, Concise Dictionary of Modern Medicine (supra) as: “A mental disorder in which the predominant disturbance is a distressing symptom or group of six which one considered unacceptable and alien to one's personality without a marked loss of reality testing; behaviour does not actively violate gross social norms although it may be quite disabling; the disturbance is relatively enduring or recurrent without treatment, and is not limited to a mild transitory reaction to stress; there is no demonstrable organic etiology”. (emphasis ours). and N. K. Anand in the Book entitled Psychology for Nurses (supra) defined a neurotic disorder as: “functional mental disorder, usually of psychogenic origin where the patient's contact with reality is not as a rule impaired.... It is commonly contrasted with the psychoses or insanities, mental disorders in which reality is to some degree impaired, the patient having very often to be admitted to a psychiatric unit.” I will tackle the claim for nervous shock and mental anguish under one head due to its definition which encompasses both. Mental anguish as defined by Black's Law Dictionary, 8th edition, (supra) is: “A highly unpleasant mental reaction such as anguish, grief, fright, humiliation, of fury that results from another person's conduct; emotional pain and suffering” It further goes on to state that: “Emotional damages passes under various names, such as mental suffering, mental anguish, mental or nervous shock or the like and includes all highly unpleasant mental reactions such as fright, horror, grief, shame, humiliation, embarrassment, anger, chargrin, disappointment, worry, and nausea”. Liability for the claim of nervous shock and mental anguish arise in extreme circumstances where the distress is so severe that no reasonable man could be expected to endure it. In a claim for damages for nervous shock and mental anguish, the plaintiff must satisfy the following requirements: (i) the plaintiff suffered shock; (ii) it must have been caused by an act or omission; and (iii) it must be by reason of actual apprehended injury to the plaintiff and that the defendant owed the plaintiff a duty of care, not to cause him reasonable foreseeable injury. I refer to the case of Fletcher v Commissioner of Public Works (15). Nervous shock and mental anguish actions are actions for non-physical injuries and these are allowable in recovery in quite limited circumstances. There must be a physical injury sustained as a result of the defendant's negligence. This is where there's a predicate physical injury. The main issues under this novel claim are: (i) whether the Courts should recognise a cause of action based upon the concealment of HIV status and fear of developing HIV where an individual has been exposed; (ii) whether if such action exist, can damages be solely based upon nervous shock, mental anguish, or emotional distress; and (iii) whether the plaintiff must demonstrate an underlying physical injury separate and apart from the nervous shock, and mental anguish? I am of the considered view that a plaintiff asserting a claim for nervous shock, mental anguish based on concealment and fear of developing or having contracted HIV will not necessarily experience a predicate physical injury. In order for a claim to be available to the plaintiff as a result of the defendant's conduct, there would be need to curve out the exception to the general rule where recovery is allowed only when there's a predicate physical injury. The claim herein must be premised upon a breach of duty owed directly to the plaintiff which actually endangered the plaintiff's safety, or causes him to fear for his safety. In the case at hand, the defendant knowingly concealed her HIV status to her husband, when they wedded in 2005, thereby putting the plaintiff at risk of contracting HIV, when as a spouse she should have shown care. I am of the considered view that any reasonable person would foreseeably be unable to cope with the mental stress and nervous shock caused by the actual, direct, imminent and potentially life threatening danger to his/her health. In the case of Faya v Almaraz (16), it was stated that: “Conventional wisdom mandates that the fear of AIDS triggers genuine not spurious claims of emotional distress”. I am of the considered view that there's an exception to the general rule that the recovery for nervous shock and mental anguish is permitted only where there is predicate injury to a claimant. I am further of the considered view that where the negligent behaviour of a defendant subjects an individual to actual, direct, imminent and potentially life threatening to a person's physical safety by virtue of exposure to HIV, recovery for nervous shock and mental anguish is permit table. I refer to the case of Bark v Sage Products (11). The plaintiff in such a claim must show exposure to HIV or AIDS virus before he can recover for mental distress and nervous shock. I refer to the case of Kerins v Hartley (12), where it was held that: “In the absence of physical injury or illness, damages for fear of AIDS may be recovered only where the plaintiff is exposed to HIV or AIDS”. It was further stated that to allow recovery for emotional injuries and mental anguish without proof whatsoever that the plaintiff was actually exposed to HIV is unreasonable. Exposure has been defined as “proof of a scientifically accepted transmission of HIV”. In the case before this Court, there is evidence that due to the concealment of her HIV status, the defendant exposed the plaintiff her then husband to the risk of contracting HIV or AIDS Virus. I am of the considered view that the defendant was exposed to the HIV/AIDS virus by the defendant's concealment of her HIV status and I hold that the plaintiff is entitled to the claim for nervous shock and mental anguish as claimed on the balance of probabilities. Having held that the plaintiff is entitled to damages for nervous shock and mental anguish, the critical issues that remains to be determined is the period or time that the plaintiff is entitled to the said damages. In this matter, the plaintiff became aware of the defendant's status two months after the parties married in July, 2005 and undertook an HIV test in September, 2005 and returned the defendant to her home in July, 2006. The question that begs to be answered is whether upon testing HIV negative, the plaintiff who chose to continue living with the defendant and went on the have children is entitled to the claims to date of issue of writ of summons. I am of the considered view that any damages recoverable for nervous shock and mental anguish should be confined to the time between discovery of the actual exposure and the receipt of a reliable negative medical diagnosis, or other information that puts to rest the fear of contracting HIV/AIDS virus. I refer to the case of Bain v Wells (14). I would like to make obiter dict comments in this matter before proceeding further on. The defendant's behaviour and conduct of the concealment of her HIV positive status is wanton. As much as her behaviour is wanton despite being counseled as to proper conduct in the prevention of HIV/AIDS in discordant couples, the plaintiff went ahead to have two children with the defendant in 2007 and 2009. For the foregoing reasons, I hold that the plaintiff is only entitled to damages for nervous shock and mental anguish for the period between July, 2005 up to June, 2006. In regard to the claim for damages for neurotic disorder, I am of the considered view that the plaintiff has not proved this claim on the balance of probabilities as no evidence was adduced to show that he suffered from the condition. The doctor who treated him was not called. The only doctor was PW3, Dr. Nalumango who said he merely referred him to a psychologist. There was no medical report to the effect that a neurotic disorder was suffered. In regard to the claim for loss of public image as a result of concealment of HIV status, I am of the considered view that the same is misconceived. The plaintiff contends that by having been associated to the defendant, people close to him and business associates would assume he is HIV positive. I was urged to take judicial notice of the stigma by people of persons associated with HIV positive people. This is totally misconceived and if damages are allowed to be recoverable under this head would per se be unreasonable. This would entail enforcing and validating the notion of stigma of HIV in society. The role of Courts in regard to HIV is to discourage discrimination in whatever form. I am further of the considered view that the purported stigma of HIV/AIDS is no longer prevalent. There are many members of society that have been exposed to HIV/AIDS and allowing recovery of damages for loss of public image would greatly increase the class of persons who would recover damages in tort opening the floodgates. For the foregoing reasons, I hold that the plaintiff is not entitled to the claim for loss of public image. Therefore, the only recoverable damages that the plaintiff is entitled to for the avoidance of doubt are as follows: 1. damages for defamation; and 2. damages for nervous shock and mental anguish for the period July, 2005 to June, 2006. The said damages are to be assessed before the Deputy Registrar. Costs are awarded to the plaintiff to be taxed in default of agreement. Leave to appeal granted. Plaintiff's claim partially allowed. LEVY HAMALALA JUSTIN HACHULU v ATTORNEY GENERAL HIGH COURT. DR MATIBINI, SC, J. 2007/HP/344. 19TH DECEMBER, 2012. Flynote [1] Tort - Malicious prosecution - Ingredients and onus. [2] Civil procedure - Pleadings - Function of. Headnote This action was commenced by way of writ of summons on 11th April, 2007. In the writ, the plaintiff claimed for the following: 1. Damages for malicious prosecution; 2. Any other relief as the Court may deem fit; and 3. Costs. Held: 1. The foundation of the action for malicious prosecution lies in the abuse of the Court by wrongfully setting the law in motion. 2. The tort of malicious prosecution is designed to discourage the perversion of the machinery of justice for an improper purpose. 3. The tort of malicious prosecution is not regarded with favour by the Courts, because it runs counter to the policy of freedom to prosecute suspected criminals, and to the interest in bringing litigation to a close. This judicial attitude is reflected in the requirement that there must be an absence of reasonable and probable cause. 4. There are four requirements that need to be proved in order to sustain an action for malicious prosecution. First, there must be prosecution by the defendant. Thus the law must be set in motion against a plaintiff on a criminal charge. Second, the prosecution should end in favour of the plaintiff. Third, the prosecution should have been instituted without reasonable and probable cause. Fourth, the prosecution should have been125 instituted maliciously. 5. The first two requirements referred to above are relatively easy to prove. However, the third and four requirements usually pose a challenge to prove. 6. In order for a plaintiff to prove the issue of reasonable and probable cause, he must prove one or other of the following: First, that the defendant did not believe that the plaintiff was probably guilty of the offence. In this regard, evidence should be given by the plaintiff of some fact or facts which either inherently or coupled with other matters proved in evidence, would permit the inference that the defendant did not believe the plaintiff's guilt. Second, that a person of ordinary prudence and caution would not conclude, in light of the facts in which he honestly believed, that the plaintiff was probably guilty. 7. The fourth requirement that needs to be proved in order to sustain an action for malicious prosecution is malice. Judicial attempts at defining the word malice have not been completely successful. However, consensus opinion among judges has been that there must be some other motive on the part of the accuser, than a desire to bring to justice the person whom he honestly believes to be guilty. 8. The question of existence of malice is one of fact, and the burden of proving it, is on the plaintiff. 9. Malice and lack of reasonable or probable cause must be separately proved. Albeit the absence of reasonable and probable cause, maybe evidence of malice. 10. Malice means spite or ill will. It also more aptly means improper motive. The proper motive for any prosecution is to ensure and secure the ends of justice. If therefore, the securing of the ends of justice was not the true and dominant motive, then malice is proved. 11. The function of pleadings may be summarised as to: Inform the other side of the case they come to meet; prevent the other side from being taken by surprise; enable the other side to know what evidence they ought to be prepared with and to prepare at trial;126 limit the generality of the pleadings or of the claim or the evidence; limit and define the issues to be tried and to which discovery is required; and tie the hands of the party so that he cannot without leave go with any matter not fairly included in it. 12. There was reasonable and probable cause for the officers of the Drug Enforcement Commission (DEC) to proceed in the manner they did, because it was not denied that the cannabis sativa was being illegally cultivated. 13. Further, the cultivation was being done in the plaintiff's field. In the premises, it was reasonable to suspect that a crime had been committed by the plaintiffs. 14. It is not enough for a plaintiff in an action for malicious prosecution to claim that an acquittal in criminal proceedings is proof of absence of a reasonable and probable cause to prosecute. 15. A plaintiff must do something more. A plaintiff must adduce evidence tending to establish an absence of reasonable and probable cause operating on the mind of the defendant. 16. To do this, a plaintiff must show the circumstances in which the prosecution was instituted, and demonstrate also that the defendant had personal knowledge that the real facts did not suggest or establish criminal liability. In a word, an acquittal does not ipso facto substract from the reasonableness of the prosecution. 17. There was nothing about the way the DEC officers conducted themselves that suggested that they were prompted by anything other than a desire to secure the ends of justice. In nutshell, the plaintiffs have not been able to prove malice on the facts of this case. 18. It is procedurally improper to introduce new claims at the stage of submissions. The introduction of such claims constitutes an unacceptable departure from the pleadings, and has the effect of taking the other party by surprise; a practice which is deprecated or frowned upon by Courts.127 Cases referred to: 1. Thorp v Holdworth [1876] 3 C.L.D. 637. 2. Hicks vFaulner [1881] Q.B.D. 167. 3. Bradford Corporation v Pickles [1895] A.C. 587. 4. Gould v Mount Oxide Mines Limited [1916] 22 C.L.R. 490. 5. Mohammed Amin v Jogendra Kumar Bannerjeee [1947] A.C. 322. 6. Ginski v Mclver [1962] 1 ALL E.R. 696. 7. Stapeley v Annetts and Another [1969] 3 ALL E.R. 1541. 8. Gaynor v Cowley (1971) Z.R. 50. 9. Mbangav Attorney General (1979) Z.R. 234. 10. Kariba North Bank Limited v Zambia State Insurance Corporation Limited (1980) Z.R. 94. 11. Mundiav Senator Motor Limited (1982) Z.R. 66. 12. Dare vDulham [1982] 148 C.L.R. 858. 13. Mulimba and Another v Attorney General Appeal Number 117 of 2005. (unreported). 14. Kvello v Miazga [2010] 1 W.N.R. 45. Legislation referred to: 1. Constitution, cap 1, Articles 13(l)(e); 15; and 22. 2. Narcotic Drugs and Psychotropic Substances Act cap 96, s.9. 3. Criminal Procedure Code, cap 88, s. 26(a). Works referred to: 1. Michael A. Jones. Clerk and Lindsell on Torts. Twentieth Edition, (London, Thomson Reuters (Legal) Limited, 2010). 2. Blair, Brennan, Tacob, and Langstaff, Bullen and Leake and lacobs Precedents of Pleadings. Seventeenth Edition, Volume 9, (London, Thomson Reuters (Professional) U.K. Limited, 2012). 3. Margaret Brazier, Street on Torts. Ninth Edition, (London, Butterworths, 1993). 4. W.V.H. Rodgers, Winfield and lolowicz on Torts. Thirtieth 30. Edition, (London, Sweet and Maxwell, 1989). DR MATIBINI, SC, J.: This action was commenced by way of writ of summons on 11th April, 2007. In the writ, the plaintiff claims for the following: (a) damages for malicious prosecution; (b) any other relief as the Court may deem fit; and (c) costs. The writ of summons was accompanied by a statement of claim, also128 dated 11th April, 2007. In the statement of claim, the plaintiff averred as follows: on or about the 12th March, 2006, the defendant maliciously and without reasonable and probable cause, charged the plaintiffs before the Principal Magistrate's Court, presiding at Lusaka, with the offence of cultivation of psychotropic substances contrary to section 9 of the Narcotic Drugs and Psychotropic Substances Act. Further, on or about 21st April, 2006, the plaintiffs appeared before the magistrates Court. And the Court after a summary trial of the charge, found the plaintiff's with no case to answer, and accordingly acquitted the plaintiffs of the charge on 9th October, 2006. In consequence of the prosecution referred to above, the plaintiffs claim that they were injured in their reputations, and were put to considerable trouble, inconvenience, anxiety, and expenses. And as such have suffered losses and damages. On 20th May, 2008, the defendant filed a memorandum of appearance, accompanied by the defence in this matter. In the defence dated 20th May, 2008, the defendant denied the plaintiff's claims and maintains that the defendant arrested the plaintiffs on reasonable suspicion of having committed a crime. The trial of this action commenced on 18th July, 2011. The 1st plaintiff; Levy Hamalala testified on his own behalf, and on behalf of the 2nd plaintiff; Justina Hachulu. I will continue to refer to him as the 1st plaintiff. The 1st plaintiff recalls that on 12th March, 2006, he was together with the 2nd plaintiff, accused of having cultivated cannabis sativa. And accordingly, were charged of the offence of cultivating psychotropic substances, contrary to section 9 of the Narcotic Drugs and Psychotropic Substances Act. The plaintiffs appeared in Court on 21st April, 2006. The plaintiffs denied the charge. And the trial continued up to 9th October, 2006, when the plaintiffs were acquitted. The ruling of the Subordinate Court acquitting the plaintiffs was in the following terms: "IN THE SUBORDINATE COURT. OF THE FIRST CLASS. HOLDEN AT LUSAKA. (CRIMINAL JURISDICTION) BETWEEN: THE PEOPLE V LEVYHAMALALA AND AUSTINHACHULA RULING CASE TO ANSWER The prosecution brought four (4) witnesses who in a nutshell testified that the two (2) accused persons were reported to the D.E.C. by informers as persons cultivating cannabis in Kalwana village. The evidence on record is that the D.E.C. proceeded to some field on their own and using their said sources. Information and uprooted some plants from some fields which in their wisdom was cultivated by the accused persons. No evidence was adduced to link the accused persons to the actual cultivation of the said Cannabis. Not a single witness testified evidentially to the effect that the plant exhibited in this case belonged or were owned by the accused. In fact, the accused were not present when the plants were uprooted. IN THE PEOPLE V WINTER MAKOWELA AND ROBBY TAYA BUNG A (1979) Z.R. 290 HC. The High Court said that a submission on no case to answer may be properly 20. made. 1. There has been no evidence to prove an essential element in the alleged offence; and 2. When the evidence of prosecution has been so discredited a result of cross-examination or is so manifestly unreliable that no reasonable tribunal could safely convict on it. In this case both these (2) scenarios above are present. Consequently, it appears to me that a case is not made out against the accused persons sufficiently to require them to make a defence. I therefore dismiss this case and acquit the accused persons forthwith pursuant to section 206 of the Criminal Procedure Code, chapter 88 of the laws of Zambia. DELIVERED IN OPEN COURT ON THE 9TH DAY OF OCTOBER, 2006. HONOURABLE E. MASUWA MAGISTRATE CLASS I130 The 1st plaintiff testified that the effect of the Ruling referred to above was that there was no case to answer. And the plaintiffs were consequently acquitted. Finally, the 1st plaintiff testified that they have to come to Court in order to prosecute the claim for the malicious prosecution, as well as to recover the costs incurred in defending themselves in the Court below. The defendant called one witness; Sibongile Mwanza. And I will continue to refer to her as DW1. DW1 recalled that on 9th April, 2006, she was on duty, and received information that they were some people cultivating dagga in Namwala Village, in Mazabuka District. The information specifically identified the plaintiffs as the offenders. Upon receipt of the information, DW1 assembled a team to follow up the matter in Mazabuka District. When the team arrived in Mazabuka, it called upon, and introduced itself to the headmaster of the school in the village where the plaintiffs reside. The team explained its mission to the headmaster. And requested that it be led to the homes of the plaintiffs. The headmaster obliged. When the team reached the 1st plaintiff's home, it was informed that the 1st plaintiff had left for Kafue to purchase some fish. The 1st plaintiffs wife was informed that the team had come to search their fields, because the team had information that they were growing cannabis sativa. DW1 testified that the 1st plaintiff's wife confirmed that in the fields where charcoal was being burnt, there was some cannabis sativa been grown. The 1st plaintiff's wife is said to have shown the team the field. And the team found the cannabis sativa in the field. The 1st plaintiff's wife denied having any knowledge about the presence of the cannabis sativa in the field, albeit she had heard rumours about the same. The team proceeded to uproot the cannabis sativa. And in the company of the 1st plaintiffs wife, transported the cannabis sativa to Lusaka. The 1st plaintiffs wife was later detained. The following day, DW1 recorded a statement from 1st plaintiff's wife. On 11th April, 2006, DW1 decided to release her. On the same day, the plaintiffs were interviewed by DW1. And later warned and cautioned. In due course, the plaintiffs were arrested and detained. Ultimately, the cannabis sativa was taken for analysis at the131 University of Teaching Hospital (UTH) laboratory. Afterwards, criminal proceedings were launched in the Subordinate Court against the plaintiffs, which resulted in the acquittal of the plaintiffs. After the closure of the trial, on 15th July, 2011, Mr. Dindi filed submissions on behalf of the plaintiffs. Mr. Dindi pointed out that in order to prove the tort of malicious prosecution, the following elements need to be proved; 1. that a plaintiff was prosecuted in a criminal Court of competent jurisdiction; 2. that a plaintiff was acquitted of the criminal offence; and 3. that the criminal proceedings were actuated by malice and without any reasonable or probable cause. Mr. Dindi. went on to submit that the position of the law in Zambia is grounded in Article 13 (1) (e) of the Constitution which enacts as follows: "13( 1)A person shall not be deprived of his personal liberty, except as may be authorized by law in any of the following cases: (a) Not relevant. (b) Not relevant. (c) Not relevant. (d) Not relevant. (e) Upon reasonable suspicion of his having committed or being about to commit, a criminal offence under the law in force in Zambia;" Further, Mr. Dindi submitted that section 26 (a) of the Criminal Procedure Code is in these terms: "26 Any police officer may without an order from a magistrate and without warrant, arrest. (a) Any person whom he suspects, upon reasonable grounds of having committed a cognizable offence; Mr. Dindi argued that in view of the preceding provisions, there must be a reasonable cause to suspect that a plaintiff committed an offence for criminal proceedings to be instituted against any person, and the Courts have laid down that, where there was no reasonable cause to institute criminal proceedings, then such proceedings are deemed to have been actuated by malice. Mr. Dindi submitted that it is not in dispute that the plaintiffs were tried in the Subordinate Court for cultivating in this case psychotropic substances, and that they were eventually acquitted because there was no evidence adduced to link the accused persons to the actual cultivation of the cannabis sativa.132 Consequently, Mr. Dindi contends that there was no reasonable or probable cause for them to be prosecuted on allegations of cultivating cannabis sativa because the cannabis sativa was neither found in their possession nor in their field. Mr. Dindi pressed that the decision to arrest the plaintiffs was capricious and malicious. He went on to argue that capricious arrests not only inconvenience citizens, but also amount to abuse of power and the legal process. Mr. Dindi noted also that the most disconcerting of all this is that malicious prosecutions violate constitutional rights, such as the right to personal liberty; protection from inhuman treatment, and freedom of movement as provided for in Articles 13 (1) (e); 15; and 25 of the Constitution respectively. In a word, Mr. Dindi submitted that on a balance of probabilities, the plaintiffs have made their case against the State, because they have shown that they: (1) were prosecuted; (2) acquitted at the end of the prosecution case; and (3) they was no reasonable or probable cause whey they were subjected to the prosecution. Therefore, Mr. Dindi submitted that the whole legal process was a malicious charade aimed at persecuting them. As regards damages, Mr. Dindi submitted that the plaintiffs find sanctuary in the Supreme Court decision of Mulimba and Another v The Attorney General (13). And urged me to award the plaintiffs damages for false imprisonment, malicious prosecution, and torture in the sum of K 100,000,000=00 each, together with interest, and costs of this action. On 5th August, 2011, Lt. Namwawa filed the submissions on behalf of the defendant. Lt Namwawa submitted that in an action for malicious prosecution, the onus is on the plaintiff to prove the cause of action. And in doing so, the plaintiff must prove the following: a) the prosecution; b) favourable termination of the prosecution; c) lack of reasonable and probable cause; and d) malice. However, Lt Namwawa elected to focus on the third and fourth requirements listed above. He pointed out that in Gaynor v Cowley (8), the Court aptly defined reasonable and probable cause as being a genuine belief based on reasonable grounds that a criminal offence had been committed. In this case, Lt Namwawa pointed out that the 1st plaintiff133 testified in the examination-in-chief that he was accused of having planted cannabis sativa withthe 2nd plaintiff. However, during cross-examination, Lt Namwawa pointed out, the 1st plaintiff testified that he had been arrested because it was discovered that the cannabis sativa was being grown in the field where himself and the 2nd plaintiff burnt their charcoal. In any event, the 1st plaintiff revealed also during cross-examination, that prior to their arrest, both plaintiffs had heard from different sources that someone was cultivating cannabis sativa in their field; and a rumour that they later confirmed to be true. The discovery was made a week before the officers from the Drug Enforcement Commission (DEC) visited the site. Lt Namwawa wondered why such a crime was not reported to the local police. In the circumstances, Lt Namwawa submitted that the officers from DEC were merely carrying out their duties in procuring the arrest of the plaintiffs. And contends that there was reasonable and probable cause for the officers to proceed in the manner they did because, first, it is not denied that the cannabis sativa was being illegally cultivated. And second, that the cultivation was being done in the plaintiff's field. In the premises, Lt Namwawa pressed that it was reasonable to suspect that a crime had been committed by the plaintiffs. As regards malice, Lt. Namwawa submitted that in Mbanga v Attorney General (9), malice was defined as being some motive on the part of the accuser other than a desire to bring to justice the person whom he believes to be guilty. Further, Lt. Namwawa submitted that the question of the existence of malice was one of fact, and the burden of proving it was on the plaintiff. Lt. Namwawa also pointed that in Gaynor v Cowley case (supra), it was observed that the foundation for malicious prosecution lies in the abuse of the process of the Court by wrongly setting the law in motion. And that the tort is designed to discourage the perversion of justice for an improper motive. Granted what has been stated above, Lt. Namwawa submitted that there was nothing about the way the DEC officers conducted themselves which would suggest the presence of malice. The officers were merely carrying out their functions as law enforcement officers. Lastly, Lt. Namwawa, submitted that the fact that the plaintiffs were acquitted does not negate the circumstances leading to their arrest. L.t Namwawa maintained it was reasonable to effect the arrest of the plaintiffs. The acquittal, he pressed did not subtract or take away anything from the reasonableness of the arrest.134 Lt. Namwawa was also confounded about the introduction of the claim of false imprisonment at the stage of submissions. He submitted that the claim for false imprisonment was not pleaded. And therefore objected to reference to a matter that was not pleaded. In aid of this submission, Lt Namwawa drew my attention to the case of Mundia v Senator Motors Limited (11), where it was stated that the object of pleadings was to give a fair notice of the case which was to be met and to define the issues on which the Court will have to adjudicate in order to determine the matters in dispute between the partners. Once the pleadings have been closed, Lt. Namwawa argued, the parties are bound by their pleadings. In this regard, Lt. Namwawa brought to my attention the case of Kariba North Bank Limited v Zambia State Insurance Corporation Limited (10), where the Court held that one of the most important functions of pleadings is: "to tie the hands of the party so that he cannot without leave go into any matter not fairly included therein." Overall, Lt. Namwawa submitted that the plaintiffs have failed to discharge the burden of proof in proving the essential elements of the tort of malicious prosecution. Accordingly, urged me to dismiss the claim. MALICIOUS PROSECUTION I am indebted to counsel for the spirited arguments and well researched submissions. I must state from the outset that the foundation of the action for malicious prosecution lies in the abuse of the Court by wrongfully setting the law in motion. The tort is therefore designed to discourage the perversion of the machinery of justice for an improper purpose, (see Mohamed Amin v Jogendra Kumar Bannerjee (5), per Sir John Beaumont.jMargaret Brazier, in Street on Torts. Ninth Edition, (London, Butterworths, 1993) at page 476, observes that the tort of malicious prosecution is not regarded with favour by the Courts because it runs counter to the policy of freedom to prosecute suspected criminals and to the interest in bringing litigation to a close. This judicial attitude, Brazier notes, is reflected in the development of the requirement that there must be an absence of reasonable and probable cause. I will revert to this requirement in a moment. ESSENTIAL ELEMENTS OF MALICIOUS PROSECUTION. There are four essential requirements that need to be proved in order to sustain an action for malicious prosecution. First, there must be prosecution by the defendant. Thus the law must be set in motion against a plaintiff on a criminal charge. Second, the prosecution should135 end in favour of the plaintiff. Third, the prosecution should have been instituted without reasonable and probable cause. Fourth, the prosecution should have been instituted maliciously. The onus or burden of proving everyone of these requirements is on the plaintiff. It is also instructive to note the observation of Lord Denning M. R. in Stapley v Annets and Another (7), at page 1543, that: "In action for malicious prosecution the burden is on the plaintiff to prove malice and absence of reasonable and probable cause. If the defendant denies it, it is not the practice to require the defendant to give particulars of his denial. It is only if he puts forward a positive allegation that he should be required to give particulars of it." REASONABLE AND PROBABLE CAUSE The first two requirements referred to above are relatively easy to prove. However, the third and fourth requirements usually pose a challenge to prove. Little wonder that the learned authors of Clerk and Lindsell on Torts, Twentieth Edition, (London, Thomson Reuters (Legal) Limited, 2010) observe in paragraph 16-30, at page 1083 as follows: "The question of reasonable and probable cause may create difficulties in the conduct of a trial, not so much from its own inherent difficult as from the manner in which it presents itself. Since first it involves the proof of a negative, and secondly, in dealing with it the judge has to take on himself a duty of an exceptional nature. The claimant has in the first place to give some evidence tending to establish an absence of reasonable and probable cause operating on the mind of the defendant. To do this, he must show the circumstances in which the prosecution was instituted. It is not enough to prove that the real facts established no criminal liability against him, unless it also appears that those facts were within the personal knowledge of the defendant." The House of Lords in Hicks v Faulkner (2), approved the definition of "reasonable and probable cause" by Hawkins, J. as follows: "An honest belief in the guilt of the accused based upon a full conviction founded upon reasonable grounds, of the existence of a state of circumstances, which assuming them to be true, would reasonably lead any ordinary prudent and cautious man, placed in the position of the accuser, to the conclusion that the person charged was probably guilty of the crime imputed." In Ginski v Mclver (6), the House of Lords held that in order that the plaintiff succeeded on the issue of reasonable and probable cause, he must prove one or other of the following: First, that the defendant did not136 believe that the plaintiff was probably guilt of the offence. In this regard, evidence should be given by the plaintiff of some fact or facts which either inherently or coupled with other matters proved in evidence, would permit the inference that the defendant did not believe the plaintiff's guilt. Second, that a person of ordinary prudence and caution would not conclude, in the light of the facts in which he honestly believed, that the plaintiff was probably guilty. The learned author of Clerk and Lindsell on Torts, (supra) observe in paragraph 16-31 at page 1038, that in Canada actions for malicious prosecution may succeed against Crown prosecutors only in exceptional circumstances. Thus the Supreme Court of Canada held in Kvello v Miazga (14), that "reasonable and probable cause" is not a question of subjective belief in the guilt of the claimant. As a public servant, the prosecutor must set aside personal views as to likely guilt and innocence and make a professional assessment of the strength of the case. The Supreme Court of Canada note in the Kvello case (supra) that given the burden of proof in a criminal trial, belief in "probable" guilt therefore means that the prosecutor believes, based on the existing state of circumstances, that proof beyond reasonable doubt could be made out in a Court of law. To hold otherwise, and to require the prosecutor's decision to be based on personal views, the Supreme Court went on, would run counter to the impartial and quasijudicial role of the prosecutor which is an important aspect of the proper administration of justice. To illustrate the application of the requirement of reasonable and probable cause in the Zambian context, I will refer to the case of Gaynor v Cowley (8). The facts of the case were that the defendant and the plaintiff were partners in a business of building contractors. The plaintiff was given the use of a Datsun vanette both for the work of the partnership, as well as his private use. Following a dispute between the partners over the return of the vanette, the defendant made a false report to the police that his vanette had been stolen, and later added to it that the plaintiff was seen heading towards Kasama. The plaintiff was later arrested by the police. Following representations by the plaintiff's lawyer that the dispute between the parties was of a civil nature, the plaintiff was released from custody. The plaintiff sued for false imprisonment and malicious prosecution. In delivering judgment, Baron, J, observed as follows at page 56: "The essentials of an action for malicious prosecution are set out by the various text writers and need no repetition, save as to the question whether137 there was a prosecution, these essentials are clearly satisfied in the present case; the defendant did not have reasonable and probable cause in that he did not have genuine belief based on reasonable grounds that a criminal offence had been committed and he was actuated by malice in that he had an improper motive, namely a desire to obtain through the machinery of the police some redress which should have been sought by civil process." To conclude this discussion of "reasonable and probable cause," it is instructive to note the observation of the learned author of Street on Torts (supra) at pages 477-478 that it is impossible to enumerate all the factors which may be relevant in deciding whether there was reasonable and probable cause. Particularly important points would be that the defendant acted in good faith on the advice of counsel, or on the advice of the police, the defendant had taken care to inform himself of the true facts. MALICE The fourth requirement that needs to be proved in order to sustain an action for malicious prosecution is malice. In Mbanga v Attorney General (9), Muwo, J, observed at page 235 that judicial attempts at defining the word malice have not been completely successful. Be that as it may, he observed that consensus of opinion among judges has been that there must be some other motive on the part of the accuser than a desire to bring to justice the person whom he honestly believes to be guilty. Muwo, J, went on to observe at page 235 that the question of existence of malice is one of fact, and the burden of proving it is on the plaintiff. It has also long been the law that malice and lack of reasonable or probable cause must be separately proved. The absence of reasonable and probable cause may therefore be evidence of malice. To sum up, malice means spite or ill will. It also more aptly means improper motive. The proper motive for any prosecution is of course to ensure and secure the ends of justice. If therefore the securing of the ends of justice in a prosecution was not the true and predominant motive, then malice is proved. FUNCTIONS OF PLEADINGS There is another matter that I would like to discuss before I determine the question whether or not the plaintiffs have on the facts of this case, proved malicious prosecution. This is, the function of pleadings. The basic rule is that pleadings are binding on the parties at trial. Within that framework, Courts have laid down some valuable statements of principle. I will consider some of those statements below: First, in one138 early judgment, in Thorp v Holdsworth(l), Jessel M. R. said at page 639: "The whole object of pleadings is to bring the parties to an issue, and the meaning of the rules... was to prevent the issue being enlarged, which would prevent either party from knowing when the cause came on trial, what the real point to be discussed and decided was. In fact, the whole meaning of the system is to narrow the parties to definite issues and thereby to diminish expense and delay, especially as regards the amount of testimony required on either side at the hearing." Second, in Gould v Mount Oxide Mines Limited (4), Isaacs and Rich JJ of the High Court of Australia said at page 517: "Undoubtedly, as a general rule of fair play, and one resting on the. fundamental principle that no man ought to be put to loss without having a proper opportunity of meeting the case against him, pleadings should state with sufficient clearness the case of the party whose averments they are. That is their function. Their function is discharged when the case is presented with reasonable clearness. Any want of clearness can be cured by amendment or particulars. But pleadings are only a means to an end, and if the parties infighting their legal battles choose to restrict them, or to enlarge them, or to disregard them, and meet each other on issues fairly fought out, it is impossible for them to hark back to the pleadings and treat them as governing the area of contest... There are qualifications, no doubt, and each case must depend for the proper application of the principle upon its own facts." Third, the High Court of Australia developed the preceding theme in Dare v Pulham (12), when it observed at page 664 that: "Pleadings and particulars have a number of functions; they furnish a statement of the case sufficiently clear to allow the other party a fair opportunity to meet it. They define the issues for decision in the litigation and thereby enable the relevance and admissibility of evidence to be determined at the trial; and they give a defendant an understanding of a plaintiff's claim in aid of the defendant's right to make a payment into Court. Apart from cases where the parties choose to disregard the pleadings and to fight the case on issues chosen at the trial, the relief which may be granted to a party must be founded on the pleadings. But where there is no departure during the trial from the pleaded cause of action a disconformity between the evidence and particulars earlier furnished will not disentitle a party to a verdict based upon the evidence. Particulars may be amended after the evidence in a trial has closed..." Lastly, in Kariba North Bank Company Limited v Zambia State Insurance139 Corporation Limited (10), the function of pleadings was lucidly summarized by Commissioner Kakad as follows: (a) to inform the other side of the nature of the case they come to meet; (b) to prevent the other side from being taken by surprise; (c) to enable the other side to know what evidence they ought to be prepared with and to prepare at trial; (d) to limit the generality of the pleadings or of the claim or the evidence; (e) to limit and define the issues to be tried and to which discovery is 10. required; and (f) to tie the hands of the party so that he cannot without leave go with any matter not fairly included in. It is also noteworthy, that the learned authors of Bullen and Leake and Jacob's Precedents of Pleadings, Seventeenth Edition, volume 1 (London, Thomson Reuters (Professional) U. K. Limited, 2012) point out in paragraph 1-12 at page 10 that other considerations identified by Jacob, the leading modern exponent of civil procedure, include setting the limits of the action and providing a record of the ambit of the dispute for the purposes for res judicata and issue estoppel. I will now pass to apply the law to the facts of this case. It is common ground that the plaintiffs were prosecuted by the defendant. And the prosecution terminated in favour of the plaintiffs. What is in dispute however is whether or not, first, the prosecution was instituted without reasonable and probable cause. And second, whether it was malicious. The plaintiff's major contention is that there was no reasonable and probable cause for them to be prosecuted on allegations of cultivating cannabis sativa, because the cannabis sativa was neither found in their possession, nor in their fields. The following excerpt in cross- examination of the first plaintiff is instructive in determining whether or not there was no reasonable and probable cause for the prosecution. "Q: Why was the second plaintiff with you ? A: We used to move together and we were jointly charged. We used to burn charcoal together and we learnt that at that location somebody was growing cannabis [sativa]. Q: Where were you burning the charcoal ? A: 2 to 3 kilometers east of my home. Q: From whom did you hear that Cannabis [sativa] was been grown in your field? A: I heard from people that where we were burning charcoal somebody was140 growing dagga. We verified. It was true and we reported the matter to a village headman. Q: In those circumstances was it unreasonable that you were arrested ? A: It was wrong because when they went to uproot, I was not there. When I reported that is when I was arrested. Q: Why did you not report to the police? A: Where we stay there are procedures, so I followed standard procedure for reporting to the headmen." In light of the preceding testimony, Lt. Namwawa submitted, and I agree with the submissions that, first, there was reasonable and probable cause for the officers of DEC to proceed in the manner they did because it is not denied that the cannabis sativa was being illegally cultivated. Second, that the cultivation was being done in the plaintiff's field. In the premises, it was reasonable to suspect that a crime had been committed by the plaintiffs. I also agree with Lt. Namwawa that it is not enough for a plaintiff in an action for malicious prosecution to claim that an acquittal is proof of absence of a reasonable and probable cause to prosecute. A plaintiff must do something more. A plaintiff must adduce evidence tending to establish an absence of reasonable and probable cause operating on the mind of the defendant. To do this, a plaintiff must show the circumstances in which the prosecution was instituted, and demonstrate also that the defendant had personal knowledge that the real facts did not suggest or establish criminal liability. In a word, an acquittal does not ipso facto subtract from the reasonableness of the prosecution. I further agree with the submissions by Lt. Namwawa that there was nothing about the way they DEC officers conducted themselves, that suggested that they were prompted by anything other than a desire to secure the ends of justice. In a nutshell, the plaintiffs have not been able to prove malice on the facts of this case. Before I conclude, I would like to endorse Lt. Namwawa's submission that it is procedurally improper for Mr Dindi to introduce new claims for, false imprisonment, and torture, at the stage of submissions. The introduction of these claims constitutes an unacceptable departure from the pleadings, and has the effect of taking the defendant by surprise; a practice which is deprecated or frowned upon by Courts. The net result if that the claim for malicious prosecution has failed. And I accordingly, dismiss it. Costs follow the event. Leave to appeal is hereby granted. Plaintiffs claims dismissed. CLAUDE SAMUEL GAYNOR v CYRIL ROBERT COWLEY (1971) Z.R. 50 (H.C.) HIGH COURT BARON, J. 25TH JUNE, 1971 ( 1970/HP/802) Flynote Tort - False imprisonment and malicious prosecution - Distinction - Ingredients and onuses. Headnote The defendant and plaintiff were partners in a business of building contractors. The plaintiff was given the use of a Datsun vanette both for the work of the partnership as well as his private use. Following a dispute between the partners over the return of the vanette, the defendant made a false report to the police that his vanette had been stolen, and later added to it that the plaintiff was seen heading towards Kasama. The plaintiff was arrested by the police. Following representations by the plaintiff's lawyer that the dispute between the parties was of a civil nature the plaintiff was released from custody. In an action by the plaintiff for false imprisonment and malicious prosecution: Held: (i) In an action for false imprisonment it is necessary for the plaintiff to prove nothing but the imprisonment itself; it is then for the defendant to discharge the onus of justifying it. (ii) In an action for malicious prosecution the onus is on the plaintiff to prove his cause of action. (iii) To found an action for malicious prosecution the test is not whether the criminal proceedings have reached stage at which they could be correctly described as a prosecution but whether they have reached a stage at which damage to the plaintiff results, whether the complaint has been made to a magistrate or to the police. Cases cited: (1) Mohamed Amin v Jogendra Kumar Bannerjee [1947] A.C. 322. (2) Golap Jan v Bholonath Khettrye (1911) I.L.R. 380C. 880. (3) Casey v Automobile Renault of Canada Ltd (1965) 54 D.L.R. (2d) 600. (4) Danby v Beardsley (1880) 43 L.T. 663. For the plaintiff: M. Folotiya, Folotiya & Co. For the defendant: A.W.W. Cobbett - Tribe, Peter Cobbett - Tribe & Co. Judgment BARON, J.: This is an action for damages for malicious prosecution, false imprisonment and defamation; during argument, after the evidence has been completed, the plaintiff abandoned defamation as a cause of action. The plaintiff, an engineer, the defendant, a company director, and one other were at the material times working in partnership in the business of building contractors; it was the intention of the partners to operate the business through a limited company and to this end the necessary steps were taken, but at the relevant time the company had not yet been registered and the business was operating under the name of Kafue Construction and Engineering. Some time in February, 1970, a few months after the business had commenced and at a time when the gross receipts on its contracts had been some K8,000 (there is no evidence as to the profits at this stage) the firm bought a new Datsun vanette to enable the plaintiff to move from site to site and to transport materials. The defendant was at some pains to show that the payment for this vehicle was made by him personally, while the plaintiff contended that the cheques were drawn on the defendant's personal bank account only because it was through this account that the business was being operated. This particular point of conflict was one of many which were totally irrelevant to these proceedings, although they would no doubt be highly relevant in other pending proceedings concerning disputes between the parties arising out of the business; the fact remains - and this is common cause - that the vehicle was registered in the name of Kafue Construction and Engineering and was intended to be, and was, the property of the partnership. The vehicle was continuously in the custody of the plaintiff; he took it home at night, and the defendant in evidence agreed that the plaintiff was authorised to use it for his private purposes as well as for business purposes. In about July, 1970, a dispute arose between the parties. It is both unnecessary and undesirable to consider this dispute in these proceedings save to the extent that the nature of that dispute and the claims made by each of the parties helps to explain their conduct. The defendant and the third partner purported to pass a resolution dismissing the plaintiff from the service of the company, although it appears that the company had not at that time been registered; each party made financial claims against the other. The defendant ordered the plaintiff off the building sites. On one occasion he and a friend tried to take the keys of the vanette from the plaintiff; the plaintiff says he was physically assaulted, while the defendant admits only to "unpleasantness". On the 10th July Messrs. Shamwana & Co., at that time acting for the defendant, wrote to the plaintiff requesting him to hand over all property belonging to the "company" which he held. On the 15th July Messrs. Folotiya & Co. replied to this letter making certain proposals designed to resolve the disputes between the parties, and containing this paragraph: "We are also instructed to inform you that our client will in the meantime keep the vehicle and any other assets of the Company, presently in his possession." The contents of this letter were discussed by the defendant and his solicitors at their offices, probably on about the 14th July. The defendant said that he had not actually seen the letter but had had the contents read out to him, the interview having been before certain incidents which had taken place during the days immediately preceding his report to the police on the 17th. In answer to a question by the court the defendant said that he understood the above quoted paragraph to mean that the plaintiff intended to take possession of the vanette and never give it back. I find this evidence very difficult indeed to accept. Even if it could be accepted that the defendant himself, without advice, might have placed such a construction on this paragraph, I am not prepared to accept that his solicitor did so. And even for a layman, I regard this construction as totally unreasonable, particularly a man who describes himself as a director and who was in charge of the business administration of this partnership. Although the dates of the following events were not specifically stated, they can be worked out by reference to the report made by the defendant to the police on the 17th July. Early in July an incident took place as a result of which the defendant told the plaintiff that his association with the company was terminated and that he should leave the building site. The plaintiff refused to do so at that time but eventually left about ten or fifteen days later, taking the vanette with him. The vanette was normally kept at No. 3 Jan Nel Street where the partnership had its offices and where the plaintiff was living (it appears that the plaintiff had a flat or room in the house, which was shared by other people). The defendant says that he went to the office on three successive mornings but the vehicle was not there and on the third morning, which was the 17th July, he reported the matter to the police. The defendant says that he reported the vehicle as being missing and did not use the expression stolen, and I will deal with this particular aspect of the matter more fully later. On the evening of the 17th the defendant went back to No. 3 Jan Nel Street and saw that the plaintiff was in his room but that the vehicle was still not outside the house; he says that the plaintiff did not see him and that he did not approach the plaintiff because he did not wish to have anything to do with him. The defendant says that he spoke to other occupants of the house who told him that the vehicle had not been kept there for the last three days. This last piece of evidence is of course admissible only to the extent that it may be relevant to explain the defendant's subsequent behaviour; it is not admissible as to the truth of whether or not the vehicle had in fact been kept at the premises during the time stated. I find it highly significant however that none of this was put to the plaintiff in cross-examination, and when asked whether he could explain this omission the defendant said that he had not told his solicitor of these facts. Once again I find this very difficult to accept; the fact that the vehicle was not where it ought to have been for three days prior to the crucial report to the police, a report which goes to the root of these proceedings, is obviously of fundamental importance and something which the defendant would hardly be likely to forget throughout all the interviews he must have had with his solicitor during the pre-trial period. Furthermore, this evidence of the defendant is not consistent with his subsequent behaviour. In his report of 17th July the defendant made no mention of any suspect, but is recorded as having said that the vehicle had been stolen between 20:00 hrs on the 16th and 0630 hrs on the 17th; save that he says that he reported the vehicle as missing and not stolen, the defendant agrees that his report is accurately recorded. On the next morning he went back to the police, and of this interview he said in evidence: "I told them what I had discovered, and also said that I suspect the plaintiff knows where the vehicle is." Yet this report was recorded as follows: ". . . the accused in this case is known to the plaintiff. His name is said to be C. S. Gaynor who used to work in the same construction; the complainant has been to the station, and stated that the vehicle disappeared when the suspect left work and was the person who was using the vehicle and he stays at No. 3 Jannel Street, but complainant checked at the place and found the accused was not at the house." As a result of this report the police circulated the following telegraphic message to all stations: "Ref CR 3838/70 stolen MV Datsun Pickup Blue. 1970 model. Reg. No. EU 7407. Stolen between 16/7 20:00 and 17/7 06:30 Jannel Street. Chas No. 234504. EN No. 900468. It is being driven by a Mr C. S. Gaynor who was once working under Kafue Construction and is believed to be heading for Kasama if seen arrest and inform this formation. Vigil please circulate." Before closing the plaintiff's case Mr Folotiya invited Mr Cobbett - Tribe to accept that the docket (put in as Exhibit 7) was proof of the fact of the reports having been made as they appear on the face of the docket, and of the actions taken by the police officers as recorded. I understood Mr Cobbett - Tribe to accept the docket as evidence on this basis and I recorded his agreement in those terms. Subsequently, however, Mr Cobbett - Tribe indicated that he did not intend that agreement to cover the precise words as recorded in Exhibit 7 but only the substance, and specifically he did not intend to agree that the defendant had used the word "stolen". Accepting this qualification, it is nonetheless clear that the defendant personally signed Exhibit 6, which is a form headed "Theft of motor vehicle" and contains two other references to "stolen". And an admission made by the defendant seems to me to be conclusive on this point; the defendant said: "I made a criminal complaint to the police; I did this because the vehicle was the property of the company, and no individual member had the right to deny the company the use of the vehicle." Viewing the evidence as a whole I am quite satisfied that whatever might have been the precise words used the defendant made reports to the police on two successive mornings, the substance of which was that the vehicle had been stolen from the address, and during the period stated, and that in the second report he informed the police that the person he suspected of having stolen it was the plaintiff and that he believed the plaintiff was heading for Kasama. It is obvious that the police could not have obtained this last piece of information from anyone but the defendant. It is also quite clear that if the defendant's evidence in this court, namely that he saw the plaintiff in his room on the evening of the 17th, was true, his report at 8.00 a.m. the following morning that he thought the plaintiff was heading for Kasama was false (unless of course this information was obtained in a manner and from sources of which there is no evidence whatever). The defendant in evidence agreed that it was implicit in the letter of the 13th July that the plaintiff was making claims; he admitted also that he did not, until after the plaintiff was arrested, make any explanations to the police concerning the background. It is relevant to note also that on the 17th July the plaintiff's solicitor wrote a further letter to the defendant's solicitor and it is date-stamped by the defendant's solicitor as being received on that day. This letter contains more detailed proposals for the settlement of the dispute, one of which was that the plaintiff should continue to give technical and managerial advice to the builders on the site and continue to occupy the flat and make use of the vehicle as before. There is no evidence as to whether the defendant was made aware of this letter prior to his second report to the police on the morning of the 18th, although I would have expected him to be so aware prior to the arrest of the plaintiff at 4.00 p.m. on the afternoon of Monday the 20th. However, it may well be that he was not so aware, and I do not base any findings on the contents of the letter of the 17th July. My findings of fact are (1) that the defendant made reports to the police on the 17th and 18th of July the cumulative effect of which was that a motor vehicle belonging to Kafue Construction and Engineering had been stolen by the plaintiff, who was believed to be heading for Kasama; (2) that to the knowledge of the defendant these reports were false; (3) that in making these reports the defendant was seeking to use the police to recover possession of the vehicle. The text writers and the older cases draw a sharp distinction between false imprisonment and malicious prosecution. This distinction is based on the difference between ministerial and judicial proceedings; as the learned author of Clerk & Lindsell on Torts (12th Ed.) puts it at para. 557: "Legal proceedings may be either ministerial or judicial. In case of the former, the party employs the machinery of the law entirely at his own risk and is directly responsible for the consequences. In case of the latter, he appeals to the discretion of a judge or magistrate, which is thus interposed, and the steps thereupon taken result immediately from the exercise of that discretion and not from the act of the party." The distinction, however, is not total. As the learned author of Salmond on Torts (15th Ed.) says at p. 548 when speaking of malicious prosecution: "the tort clearly has some affinities with defamation and false imprisonment but there are also differences." And the same sequence of events may found an action for false imprisonment up to one point, and thereafter an action for malicious prosecution, the standard example being the case where a man is arrested and then taken before a magistrate who thereupon remands him; after the remand the action, according to the cases must be on the basis of malicious prosecution because at that point the discretion of a judicial officer was interposed. Perhaps the most important aspect of the distinction, however, lies in the ingredients of the two actions and the onuses in each case. In an action for false imprisonment it is necessary for the plaintiff to prove nothing but the imprisonment itself; it is then for the defendant to discharge the onus of justifying it. On the other hand, in an action for malicious prosecution the onus is on the plaintiff to prove the four well known ingredients. I will deal first with the action for false imprisonment. Mr Folotiya cites Halsbury's Laws of England (3rd Ed.) Volume 38 para. 1268: "A private person is liable if he unlawfully detains another, or if he gives him in charge to a police officer who thereupon arrestshim, or if he causes a police officer to arrest or detain the other, or if he participates in the arrest or detention." Mr Folotiya submits that in the present case the defendant caused a police officer to arrest or detain the plaintiff, or alternatively that the conduct of the defendant amounted to a participation in the arrest or detention. Mr Cobbett - Tribe relies on the statement in para 559 of Clerk & Lindsell (12th Ed.): ". . . it is enough if he makes a charge on which it becomes the duty of the constable to act. But it is quite a different thing if a party simply gives information, and the constable thereupon acts according to his own judgment." Mr Cobbet - Tribe argues that what the defendant did in the present case was simply to give information and thereafter the police acted according to their own judgment. In support of his submission, Mr Folotiya argues that the defendant caused or participated in the arrest because the report that the vehicle had been stolen was false to his knowledge; Mr Folotiya argues that because of this falsity the police officers could not exercise a real discretion and the defendant must therefore be responsible for the action they took based on the false information he gave them. I recognise the force of this argument, but it seems to me to be more appropriate in an action for malicious prosecution than in one for false imprisonment; in the latter case it seems to me to be irrelevant whether the report was deliberately false or inadvertently false. In either case the issue is whether the defendant "made a charge on which it became the duty of the constable to act" or simply "gave information on which the constable acted according to his own judgment". Mr Cobbett - Tribe submits that what the defendant did in the present case was simply to give information. He submits in effect that the police before arresting the plaintiff should have made further inquiries and satisfied themselves as to his guilt independently of the defendant's report. I find some difficulty in appreciating precisely what it is suggested the police should have done apart from what they did in fact do; the police received report, signed by the managing director of the company alleging to own it, that a vehicle had been stolen, and second report was then made giving the name of the person alleged to have stolen it and saying that he was believed to be heading for Kasama. To suggest that it is not the duty of the police in these circumstances to seek to apprehend the person named is quite unrealistic. A man who sets ministerial proceedings in motion in this way "employs the machinery of the law entirely at his own risk and is directly responsible for the consequences." It is pertinent to quote also passage from the judgment of the Privy Council, delivered by Sir John Beaumont, in Mohamed Amin v Jogendra Kumar Bannerjee (1) (a case to which I will refer again later) at p. 300: "No man can be heard to say that he lodged a false complaint maliciously without any justification in the belief that, though supported by his own oath, the magistrate would have no difficulty in detecting its falsity and in dismissing it without calling on the accused." The falsity or maliciousness of the complaint is not, of course, relevant in an action for false imprisonment nor is there any question of an oath in the present case; however, the sentiments expressed in this passage seem to me to apply with equal force to a man who lodges a complaint with the police and then suggests that they should have no difficulty in detecting its falsity and dismissing it without calling on the person named. In the result, I am satisfied that the defendant caused or participated in the arrest of the plaintiff, and the claim based on false imprisonment succeeds. The essentials of an action for malicious prosecution are set out by the various text writers and need no repetition. Save as to the question whether there was prosecution, these essentials are clearly satisfied in the present case; the defendant did not have reasonable and probable cause in that he did not have a genuine belief based on reasonable grounds that a criminal offence had been committed, and he was actuated by malice in that he had an improper motive, namely a desire to obtain through the machinery of the police some redress which should have been sought by civil process. The only question is whether there had been a prosecution, and on this issue I was inclined during the argument to accept Mr Cobbett - Tribe's submission, based on a number of ancient English cases, that there had not. However, my attention was not drawn to Mohamed Amen v Jogendra Kumar Bannerjee (1), in which the Privy Council adopted a more flexible - and in my humble opinion a more realistic - approach to the matter than did the English courts in the nineteenth century. Mohamed Amin's case (1) was an appeal from India, but the matter did not turn on any provisions peculiar to Indian legislation. The action was one for damages for malicious prosecution, which "is part of the common law of England, administered by the High Court at Calcutta under its letters patent" - per Sir John Beaumont at p. 330. The appeal was from a decision of the Indian Court of Appeal upholding the decision of the trial judge, following Golap Jan v Bholonath Khettry (2), that a complaint to a magistrate which was referred by him for inquiry and report under the provisions of s. 202 of the Indian Penal Code did not constitute "proceedings" for the purposes of an action for malicious prosecution. Golap Jan's case (2) had been followed by some courts in India but not by others, and for this reason, and because it did not "lay down any principle which may have served as a guide to conduct in other cases", the Privy Council thought it right to examine the principle on which the case was based. Sir John Beaumont, at p. 330, said: "The foundation of the action (for malicious prosecution) lies in abuse of the process of the court by wrongfully setting the law in motion, and it is designed to discourage the perversion of the machinery of justice for an improper purpose. The plaintiff must prove that the proceedings instituted against him were malicious, without reasonable and probable cause, that they terminated in his favour (if that be possible), and that he has suffered damage." The expression "(if that be possible)" is highly significant. If "proceedings" is to be construed in technical or formal sense this phrase would be meaningless, since it is clearly possible to prove that such proceedings terminated in some way or other. The phrase is explicable only on the basis that "proceedings" has a wider meaning. For instance it is stated in Salmond, 15th Ed. citing Casey v Automobiles Renault of Canada Ltd (3), that an information laid before a magistrate, but withdrawn before a summons or warrant is issued, is nevertheless sufficient to found the action; but Clerk & Lindsell, 12th Ed. para. 1697, takes the opposite view. This edition was, of course, published before Casey (3) was decided, and it is interesting to note once again that such recent cases as there are in this branch of the law are tending to break out of the strait-jacket rules laid down in the old English cases. Sir John Beaumont, in Mohammed Amin's case (1) said this at p. 331: "To found an action for damages for malicious prosecution based on criminal proceedings the test is not whether the criminal proceedings have reached a stage at which they may be correctly described as a prosecution; the test is whether such proceedings have reached a stage at which damage to the plaintiff results. Their Lordships are not prepared to go as far as some of the courts in India in saying that the mere presentation of a false complaint which first seeks to set the criminal law in motion will per se found an action for damages for malicious prosecution. If the magistrate dismisses the complaint as disclosing no offence with which he can deal, it may well be that there has been nothing but an unsuccessful attempt to set the criminal law in motion, and no damage to the plaintiff results. But in this case the magistrate took cognisance of the complaint, examined the complainant on oath, held an inquiry in open court under s. 202 which the plaintiff attended, and at which, as the learned judge has found, he incurred costs in defending himself." It seems to me entirely logical to put a complaint to a magistrate and a complaint to a police officer on the same footing. The latter is just as much the setting in motion of the criminal law as is the former, and indeed in circumstances such as we are considering in the present case the complaint to the police is intended to lead to proceedings before a magistrate. This passage seems to me to apply with equal force in either case. Suppose for instance the defendant had explained the circumstances fully to the police and then asked that the vehicle be circulated as having been stolen or that the plaintiff be charged with theft, and the police had declined to proceed because (as indeed they subsequently decided when they learned the true facts) the matter was in their view a civil one; then, no doubt, there would have been nothing but an unsuccessful attempt to set the criminal law in motion and no damage to the plaintiff would have resulted. But this was not the case, the police did in fact act on the defendant's false report and damage to the plaintiff resulted. The test laid down by the Privy Council has therefore been satisfied. It is relevant to note also that Clerk & Lindsell at para. 557 in the passage quoted above refers to legal proceedings as being either ministerial or judicial; thus it seems clear that an arrest by a police officer is a criminal proceeding for the purposes of an action for malicious prosecution. Winfield on Tort, 7th Ed. at p. 706 says: "If I merely tell a policeman that I have had a particular thing stolen from me and that it was last seen in X's possession, and the policeman without further instruction on my part makes inquiries and arrests X, it is not I who have instituted the prosecution. I certainly set a stone rolling, but it was a stone of suspicion only." and he cites Danby v Beardsley (4). The text continues: "Similarly, if a man does no more than tell the story of his loss to a judicial officer, such as a magistrate, leaving him to determine whether the facts amount to a felony, he does not maliciously procure the magistrate to issue a warrant for his arrest ... But where the story told is known by the teller to be false, the Judicial Committee has held in an Indian appeal that the teller is liable.The peculiar frequency of such lying charges in India was a special ground for this decision, but its general reasonableness adds to its persuasive authority here." Equally in Zambia, it is necessary and proper to have regard to circumstances obtaining in the country today. Here it is not a question of the peculiar frequency of lying charges, but the presence of a comparatively inexperienced police force. Winfield concludes this passage thus: "So too, if A goes before a magistrate and positively asserts (whether on oath or not, and whether orally or in writing) that he suspects B of having committed a crime, and the magistrate thereupon issues a warrant for B's arrest, A has commenced a prosecution, for he has done much more than give a mere narration of facts from which the magistrate may or may not infer that B has committed a crime." In my judgment, if in this example the positive assertion is made to a police officer, who thereupon arrests B without a warrant, A has equally commenced a prosecution. In the result the plaintiff's claim succeeds on this ground also. The plaintiff has succeeded on the basis of both false imprisonment and malicious prosecution, but I think it would be unrealistic to attempt to split up what was in fact one course of action. The result was the arrest and detention of the plaintiff, and I would have awarded the same amount if I had found for the plaintiff on only one ground. The plaintiff was arrested at about 4.00 p.m. on a Monday afternoon in Cairo Road; he was then handcuffed and was in custody at the police station for two or three hours before his solicitor secured his release. He has suffered in his reputation, and has suffered also anxiety and indignity. There will be judgment for the plaintiff for K500 and costs. Judgment for the plaintiff HARRY MWANGA NKUMBULA v MINDECO SMALL MINES LIMITED (1977) Z.R. 240 (H.C.) HIGH COURT HADDEN, J. 31ST AUGUST, 1977 1976/HP/A8 Flynote Mines and minerals - Prospecting licence - Holder not in possession of the land covered by the licence Whether holder can maintain action in trespass. Mines and minerals - Prospecting licence - Whether statutory rights conferred by prospecting licence include possession of land. Mines and minerals - Holder of mining licence encroaching on neighbouring claims and extracting minerals therefrom - Whether holder of prospecting licence covering claims encroached upon can maintain action in respect of minerals extracted. Tort - Trespass - Prospecting licence - Whether holder can maintain action in trespass in respect of minerals wrongfully extracted. Headnote The appellant was the holder of a prospecting licence, and the respondent the holder of a mining licence, to prospect for and mine respectively similar minerals. The area covered by the respondent's mining licence was surrounded by the area covered by the appellant's prospecting licence. In carrying out its mining operations the respondent encroached onto part of the area covered by the appellant's licence and removed a large quantity of minerals. The wrongful encroachment was not disputed. The Chief Mining Engineer awarded the appellant K1 as damages for trespass and K1, 400 as compensation for the reduction of the mineral bearing potential of the area. The appellant appealed against the latter award on the ground that it was too low in view of the value of the minerals removed the respondent cross-appealed on the ground (inter alia) that the appellant was not entitled to any damages for the reduction of mineral potential. Held: (i) Proceedings for trespass can only be brought at the suit of the person in possession of land. (ii) The statutory rights acquired by the holder of a prospecting licence do not, on their own, confer upon him possession of the land covered by the licence. (iii) The appellant could not therefore maintain an action for damages for trespass in respect of the minerals wrongfully removed by the respondent. Cases cited: (1) Thompson v Ward (1953) 2 QB 153. (2) Lord Advocate v Young, (1887) 12 App. Cases 544. Legislation referred to: Mines and Minerals Act, Cap. 329, sections 25, 40, 94, 96. For the appellant: M.F. Sikatana, Annfield & Sikatana. For the respondent: B.S. Banda, Jaques & Partners. Judgment HADDEN, J.: delivered the judgment of the court This is an appeal brought by Mr H M Nkumbula and a cross-appeal brought by Mindeco Small Mines Limited from a decision of the Chief Mining Engineer following the making of an order under section 96 of the Mines and Minerals Act after a dispute between the parties had been referred to him under section 94. The appellant is the holder of a prospecting licence (hereinafter referred to as PL92) issued on the 10th December, 1972, and valid for three and half years. It authorised the appellant to prospect for, inter alia, fluorspar and feldspar. The respondent is the holder of a mining licence (hereinafter referred to as ML36) which was issued on the 1st August, 1973, for a period of ten years and authorised the respondent to mine fluorspar and feldspar, as well as another mineral. The area covered by ML36 is wholly within that covered by PL92 and does not form part of the area included in PL92. In carrying out its mining operations the respondent encroached onto part of the area covered by PL92 which was not within ML36 and constructed roads and mined and removed a large quantity of fluorspar and feldspar. The Chief Mining Engineer awarded the appellant K1.00 as damages for trespass to the land covered by PL92 and K1,400 as compensation for the reduction of the mineral bearing potential of that area. The appellant contends that the award by the Chief Mining Engineer, bearing In mind the value of the minerals wrongfully removed by the respondent, was too low, whereas the respondent in its crossappeal contends that the appellant is not entitled to any damages for the reduction of mineral potential of the area and, in the alternative, that the quantities of minerals wrongfully mined by the respondent was less than that found by the Chief Mining Engineer who should also have deducted the cost of extracting the minerals from the amount awarded. As the appellant was the holder of PL92 he says he is in possession of the land covered by the licence and has exclusive rights to possession of the minerals in that area. The respondent on the other hand says that the appellant has no right to the minerals in that the rights conferred by a prospecting licence enable the appellant only to prospect for minerals and that unless and until a mining licence is issued to the appellant, ownership of the mineral vests in the President. The rights vested in the appellant are those arising out of the issue of a prospecting licence and are set out in section 25 of the Act and, subject 25 to Part IX, enable him to enter upon the land covered by the licence with his servants and agents and, inter alia, to prospect for the minerals to which the prospecting licence relate; it also enables him to carry out certain other works which may be necessary to enable him to carry out this work effectively. Section 40 permits him to remove any mineral for the purpose of having it analysed, valued and tested, Part IX provides restrictions on the exercise of the rights conferred on the holders of prospecting licences and for the payment of compensation where such rights have been infringed. The principal issue for determination is whether the rights vested in the appellant by virtue of his being the holder of a prospecting licence entitle him to maintain an action for damages for trespass where minerals have been removed from the area covered by the licence by someone else. Proceedings for trespass can only be brought at the suit of the person in possession of the land; a person in possession can sue although he is neither the owner nor derives title from the owner. It is clear from Part IX of the Act that the rights held by the holder of a mining are rights limited in that they cannot be exercised in certain areas or unless certain conditions have been fulfilled, and there are provisions to ensure that the rights are exercised in such a manner as to cause the minimum of disturbance to the land and to the rights vested in the owner or occupier of the land. In Thompson v Ward [1] a tenant whose contractual tenancy was determined by the landlord, continued in occupation under the protection of the Rent Acts. He subsequently left the premises but his licensee remained in possession. In due course he wished to re-occupy the premises again himself and gave notice to his licensee purporting to determine the licence. On appeal the court found that the tenant had abandoned the premises and had forfeited his status as a statutory tenant. At pages 158 and 159 Evershed, M R , said: "It is necessary to bear in mind that before the rent restriction legislation an action for trespass was only maintainable at the suit of him who was in possession of the land, using the word 'possession' in its strict sense and including a person entitled to immediate and exclusive possession." I find that the statutory rights acquired by the holder of a prospecting licence are limited to those set out in the Act and these rights do not, on their own, confer upon him possession of the land covered by the licence. Sufficient possession of land to maintain an action for trespass could be acquired as a result of de facto possession and such action could be maintained against all wrongdoers but not against the lawful owner. In these proceedings the right to possession is claimed to arise out of the issue of PL92 and not as a result of the occupation of the land. If that part of the area covered by PL92 which was mined by the respondent was on a farm an action for trespass would only be maintainable by the farmer, not by the appellant. There was no evidence to show that the appellant had any occupation or physical control of the land wrongfully mined by the respondent. "By possession is meant possession of that character of which the thing is capable" (Lord Advocate v Young, [2]) and in my judgment, means more than a right to prospect. The cross-appeal is limited to the damages awarded by the Chief Mining Engineer on account of the reduction of mineral bearing potential by the respondent in the area covered by PL92, that is the sum of K1,400 and not to the amount awarded presumably for searching for minerals in the plaintiff's prospecting area, namely K1.00. I dismiss the appeal and allow the cross-appeal and set aside the order of the Chief Mining Engineer in favour of the appellant of the award of the sum of K1,400. SHELL AND BP ZAMBIA LIMITED v CONIDARIS AND OTHERS (1974) Z.R. 281 (H.C.) HIGH COURT (CIVIL JURISDICTION) MOODLEY, J. 22ND NOVEMBER, 1974 (CASE NO. 1974/HP/719) Flynote Tort - Trespass - Defendant on premises by invitation of licensee - Licence not revoked - Licensee not a party - Whether right of action available to plaintiff. Affidavit - Deify of practitioners when swearing in legal proceedings. Legal practitioners - Conducting cases - Introducing evidence by swearing affidavits - Contents hearsay Undesirability. Headnote The plaintiff took out a summons for an interlocutory injunction restraining the defendants from entering or occupying a service station situated at Emmasdale, Lusaka, until the trial of an action commenced by a specially endorsed writ duly amended against the defendants whereby the plaintiff claimed, inter alia, possession of the said land and an injunction restraining the defendants from entering or occupying the land in question. The defendants opposed the summons and filed an affidavit sworn by a licensee of the premises who stated that he had been the occupant of the premises and that on account of his long absence from Zambia he had entrusted the running of the petrol filling station in the said premises to the defendants but that the premises had been in his possession, supervision and control and that the defendants had remained on the premises for the purposes of assisting him in the running of the petrol filling station situated on the land. Held: (i) Since the defendants entered the premises by invitation of the licensee who was in lawful possession of the premises, the plaintiff cannot proceed against the defendants for trespass without revoking the licence. (ii) It might he well for practitioners to make sure that when they swear affidavits in legal proceedings, the Contents of such affidavits should comply with the High Court Rules, Cap. 50. (iii) It is highly undesirable that legal practitioners conducting cases should introduce evidence by swearing affidavits, the contents of which are entirely hearsay. Cases cited: (1) Chikuta v Chipata Rural Council, 1974 Z.R. 241. (2) Thompson v Ward (1953) 2 Q.B. 153, 159. (3) Brown v Draper (1944) 1 K.B. 309. Legislation referred to: High Court Rules, Cap. 50, Order 5, rules 15, 16, 17, 18. For the plaintiff: Williams, Jaques and Partners. For the defendants: Mansoor, Musa Dudhia and Co. Judgment MOODLEY, J.: On the 4th September, 1974, the plaintiff took out a summons for an Interlocutory Injunction restraining the defendants from entering or occupying a service station situated at subdivision 67 and 68 of Farm 737, Emmasdale, Lusaka, until the trial of an action commenced by a specially endorsed writ duly amended against the defendants whereby the plaintiff claimed, inter alia, possession of the said land and an injunction restraining the defendants from entering or occupying the land in question. The defendants opposed the summons by an affidavit filed on the 24th September, 1974. They relied on paragraphs 8 and 9 of an affidavit sworn by one Odysseus Telemadios Cavadias, who states that he has been the occupant of the premises since April, 1967; that on account of his long absence from Zambia he had to entrust the running of the petrol filling station in the said premises to the defendants with effect from 15th December, 1973; that the premises have been in his possession, supervision and control and that the defendants have remained on the premises for the purposes of assisting him in the running of the petrol filling station situated on the land. The affidavit of Kushalpal Singh dated the 14th August, 1974, deposes, inter alia, that the plaintiff had entered into a licence agreement of the premises in question with Odysseus Telemadios Cavadias on or about the 8th December, 1973; that paragraph 3 of the said agreement provided that the licence was exclusively personal to Odysseus Telemadios Cavadias; that paragraph 4 of the agreement preserved for the plaintiff the right to occupation and possession of the promises at all times during the subsistence of the agreement; that the defendants had entered the premises by way of trespass; that as a result of the trespass the plaintiff could not use the petrol and service station; and finally the plaintiff was losing gross margin on the sales. The plaintiff, in support of the application, had also filed an affidavit sworn on the 8th October, 1974, by a legal officer employed by the plaintiff's I advocates who deposed to the fact that the defendants were the owners in fee-simple of the said property, but in a subsequent affidavit he corrected himself by stating that at the time he swore the first affidavit, he was under the misapprehension that the defendant to these proceedings was Ahmed Ibrahim Bobat, the owner of the fee-simple interest in the said property and that the use of the words "the defendant" was intended to refer to Mr Bobat and not to the defendants in these proceedings. Further in paragraph 9 of his first affidavit the legal officer in question ventures to give his opinion as to whether the lease between the parties was valid and binding. These affidavits leave much to be desired. It might be well for practitioners to ensure that, when they swear affidavits in legal proceedings, the contents of such affidavits should comply with our High Court Rules, Cap. 50. Order 5, rule 15 of the High Court Rules states: "An affidavit should not contain extraneous matter by way of objection or prayer or legal argument or conclusion." Order 5, rule 16 states: "Every affidavit shall contain only a statement of facts and circumstances to which the witness deposes, either of his own personal knowledge or from information which he believes to be true." Order 5, rule 17 states: "When a witness deposes to his belief in any matter of fact, and his belief is derived from any source other than his own personal knowledge, he shall set forth explicitly the facts and circumstances forming the ground of his belief." Order 5, rule 18 states: "When the belief of a witness is derived from information received from another person, the name of his informant shall be stated, and reasonable particulars shall be given representing the informant, and the time, place and circumstances of the information." In this connection it is pertinent to draw the attention of legal practitioners who swear affidavits in proceedings dealing with contentious matters to the observations of Doyle, C.J., in a recent case before the Supreme Court-Chikuta v Chipata Rural Council [1]-and I quote: "The evidence of the case was entirely contained in affidavits made by respective advocates on each side. These affidavits were entirely hearsay. I would like to say that I have noticed an increasing practice among lawyers in introducing evidence in such a manner. In my view this is not merely ineffective, but is highly undesirable, particularly where the matters are contentious. In the instant case the affidavit made by the advocate on behalf of the defendant made serious allegations against the Chairman of the Council, and it was clearly improper for the defendants advocate personally to make such hearsay allegations. Furthermore, as the deponents of affidavits may be cross-examined thereon, the position can arise in which each of the advocates would be cross-examining the other. I hope that this practice will now cease." I now come to the issue for determination in these proceedings, viz the relief sought by the plaintiff to restrain the defendants from commit tiny trespass to premises assigned to Mr Cavadias by the plaintiffs in terms of the licence agreement. The question of title to the said property was argued in these proceedings by Mr Williams. Mr Mansoor for the defendants conceded that, on the documentary evidence furnished in support of the plaintiff's application, it would appear that while the plaintiff was not the owner he nevertheless had some sort of title to the property. However, I do not propose to deal with the issue of title because it is not a matter for determination in these proceedings. I am, however, prepared to accept on the documentary evidence before me that the plaintiff has established, prima facie, an equitable title to the property. The issue in these proceedings, therefore, can be crystallised in one question. Assuming the plaintiff has some sort of title to the property and by licence had assigned the premises situated on the said property to Mr Cavadias, can it be said that the defendants by their subsequent occupation of the said premises committed an act of trespass against the plaintiff ? If the answer is in the affirmative, then no doubt the plaintiff would have made out a strong case for an interlocutory injunction to issue. A trespass is actionable only on the part of him who is in possession using the word possession in its strict sense, as including a person entitled to immediate and exclusive possession Thompson v Ward [2] (Salmond on Torts, 15th edition, page 57). The only person who should be in lawful possession of the premises is Mr Cavadias, to whom the plaintiff had assigned the said premises by licence agreement. According to the defendants they were invited by Mr Cavadias to assist him in the running of the service station and this accounts for their presence on the premises. The plaintiff contends that Mr Cavadias had assigned his rights under the licence agreement to the defendants and, accordingly, possession of the premises had passed to the defendants. Mr Cavadias, however, contends that the defendants were invitees and that the occupation, control and possession of the premises vested in him and he continued to supervise the defendants. However, there is no direct evidence as to the actual status f these defendants in relation to these premises and the only evidence in this connection is the affidavit by a Cavadias. The plaintiff disputes Mr Cavadias's assertion in this regard. The position is made difficult for this court to ascertain the true position, since Mr Cavadias is not a party to these proceedings and, accordingly, could not be cross-examined on this matter. Since the defendants are on the premises by invitation of Mr Cavadias and since Mr Cavadias says he is still in possession of the premises in terms of the licence agreement, does it necessarily mean that the plaintiffs can proceed against the defendants as trespassers Mr Cavadias, theoretically, is in possession of the land and he has not complained about the presence of the defendants on the premises. The plaintiff on the other hand has not taken any action against Mr Cavadias but rather insist that they have a right to proceed against the defendants. Logically one would have thought that where-as in this case-premises were assigned under a licence agreement on terms that the lease was personal to the licensee and had specifically prohibited the assignment of rights under that agreement to a third party, then the moment the licensee committed a breach of the terms of that agreement the licenser would revoke the licence agreement and proceed against the licensee as a trespasser. By failing to revoke the licence agreement against Cavadias on the grounds of the alleged breaches and by failing to join him in these proceedings, it is questionable whether the plaintiff can now maintain an action against the defendants who are on the premises by invitation of Cavadias, who continues to be in legal possession of the property under the licence agreement entered into with him by the plaintiff. One must ascertain whether the defendants are in actual physical possession of these premises and not subject to any form of control or supervision by Cavadias. The failure on the part of the plaintiffs to join Cavadias in these proceedings has deprived this court from having before it evidence concerning the arrangements vis-a-vis Cavadias and the defendants, as well as affording the plaintiff an opportunity to cross-examine Cavadias with a view to establishing their contention that Cavadias had assigned all his rights under the licence agreement to the defendants, thereby committing breaches of the said agreement by giving the defendants complete possession of the premises. Salmond, 15th ed., referring to the tort of trespass at pages 57 and 58, says: "For this tort is essentially a violation of the right of possession, not of the right of property. It is disturbance of the right of exclusive use vested in the occupier of the land. Ownership unaccompanied by possession is protected by other remedies. Thus a landlord cannot sue for a mere trespass to land in the occupation of his tenant; such an action can be brought only by the tenant. The landlord has no right of action unless he can prove more than a mere trespass-viz. actual harm done to the property, of such sort as to affect the value of his reversionary interest in it." It cannot be said therefore, in the instant case, that there has been a violation of the plaintiff's right of possession. The land is in the occupation of Cavadias, who has not complained that his right to exclusive use of the property has been disturbed by the presence of the defendants. Even if the defendants had committed trespass, the landlord had no right of action unless he can prove more than a more trespass. Otherwise it is only the tenant in such a cave who could bring an action. Finally I come to the case of Brown v Draper [3]. That case which fell to be determined under the Rent Restrictions Acts is relevant to the issues I have to decide in these proceedings. For the purpose of this judgment I shall merely quote the headnote: "A husband was the tenant of a house on weekly tenancy, and would, in the event of the tenancy being determined, be entitled to the protection of the Rent Restrictions Acts. After occupying the house for some months he left it owing to disputes with his wife, but he left his wife and child in occupation of the house, with the use of his furniture, and continued to pay the rent. Having received notice to quit, the husband stopped paying the rent, but he did not revoke his leave to the wife to reside ill the house, nor did he remove his furniture. The landlord later brought proceedings against the wife for trespass, and at the hearing, the husband, who was not made a party to the proceedings, gave endence that he had no interest in the house. It was held, inter alia, (1) that the husband was still in possession of the house; (2) that the only way he could be deprived of the protection of the Rent Restrictions Acts was- (a) by his going out of possession or (b) by his having an order for recovery of possession made against him; (3) that he could not contract to give up his right to claim the protection of the Acts, and could still loss give it up by a statement of his wishes or intentions; and (4) that the landlord could not obtain possession of the house without making the husband a party to the action." Thus, the principles of law that one can deduce from the above case when considering the issue in these proceedings are, that the planting could maintain an action for trespass against the defendants where Mr Cavadias had opted out of the licence agreement and delivered possession of the premises to the plaintiff, or where the plaintiff had obtained an order for the recovery of possession of the premises against Mr Cavadias, a party to the action. It would seem, therefore, that the presence of the defendants on the premises with the approval of Mr Cavadias cannot be 1 regarded as being unlawful as long as Mr Cavadias continues to be in possession of the said premises, under the licence agreement entered into between him and the plaintiff. Thus, had these proceedings been one for the eviction of the defendants from the premises for being in unlawful occupation, I would have held, as the court did in the Brown v Draper's case (supra), that it had no jurisdiction to make an order against the defenants unless Mr Cavadias was a party to the proceedings and an order is made against him as well. Mr Cavadias is a necessary party to these proceedings and no order can be made against the defendants in his absence. I am fortified in this conclusion because in the Brown and Draper case (supra) the wife was a licensee, whereas the relationship of the defendants to the licensee in these proceedings was that of an invited. I therefore come to the conclusion that the plaintiff has failed to establish to my satisfaction that the defendants, prima facie, are trespassers. The application for an interlocutory injunction against the defendants, in my view, is misconceived and I therefore dismiss the summons with costs. Summons dismissed THE ATTORNEY-GENERAL v D. LANDLESS (M/W) (1970) Z.R. 1 (C.A.) COURT OF APPEAL PICKETT, J.A., HUGHES, J., AND BRUCE-LYLE, AG.J. 23RD DECEMBER, 1970 APPEAL NO. 1 OF 1970 Flynote Tort - Negligence - Duty of care - Whether army Commander owes a duty of care to a person injured by soldiers under his control. Headnote This was an appeal against the decision of the trial High Court Judge awarding damages to the respondent against the appellant. The facts which were not disputed were that a company of soldiers were being moved from the place of their exercises to their barracks under the charge of an army officer Lieutenant Banda when they committed an assault on the respondent causing her serious injuries. In awarding the respondent damages the judge held that Lieutenant Banda was negligent in failing to perform his duty with due care thus causing the soldiers to get out of control and cause damage to the respondent. The appellant was held vicariously liable for Lieutenant Banda's negligence. On appeal it was argued inter alia that: (i) Lieutenant Banda did all he could to prevent the incident and there was nothing more he could have done; (ii) Lieutenant Banda did not owe a duty of care to the respondent and that even if he did such duty ceased when the soldiers acted outside the scope of their authority and employment; (iii) Lieutenant Banda could not have foreseen the likelihood of the plaintiff's becoming injured. Held: (i) Negligence consists of doing something which a reasonable man would not have done in that situation or omitting to do something which a reasonable man would have done in that situation. (ii) Lieutenant Banda did owe a duty of care to the respondent and such duty did not cease to exist when his subordinates behaved in the manner in which they did. He had the power and authority to control the troops under his command and he was negligent in not ordering the loyal soldiers to control the unruly ones. He could have foreseen the injury to the respondent from stone throwing by the rioting soldiers if they were not prevented from doing so. Cases referred to: (1) Dorset Yacht Co. Ltd v The Home Office, [1969] 2 All E.R. 564. (2) Donoghue v Stevenson, 1932] (Rep.) All E.R. 11. (3) Smith v Leurs ( 1945) 70 C.L.R. 261.1 (4) Geddis v Proprietors of Bann Reservoir (1878) App. cases 430. (5) 404. Overseas Tankship v Mort Dock and Engineering Co. Ltd (The Wagon Mound), [1961] 1 All E.R. (6) King v Anthony (1946) S.C.R. 569; (1946) 3 D.L.R. 577. 5 (7) Davis Contractors Limited v Fareham Urban District Council, [1956] 2 All E.R. 145. (8) Hedley Byrne & Co. Ltd v Heller and Partners Ltd. [1963] 2 All E.R. 575. Judgment PICKETT, J.A.: delivered the judgment of the court: This is an appeal from a judgment of the High Court in which 10 damages of K 10,120 and costs were awarded to the respondent against the appellant. The grounds of appeal are nine in number and are as follows: 1. The learned judge was wrong in drawing the inference from the agreed facts that Lieutenant Banda did more than make a weak remonstrance and in drawing the inference that he did not take all steps open to him to prevent his men from acting as they did. 2. Having found that the acts of the soldiers constituted mutiny, the learned judge erred in concluding that Lieutenant Banda could have done any more than he did to control his men. 3. The learned judge erred in drawing the inference from the agreed facts that lorries were due to arrive on the scene by the time of the incident or in time for their occupants to be of any assistance in controlling the soldiers or in preventing them from acting as they did. 4. The learned Judge was wrong in drawing any parallel between the case of the Dorset Yacht Company Limited v The Home Office (1) and the present case. 5. The learned judge erred in finding that Lieutenant Banda was negligent in absenting himself and in drawing the inference that by being so absent lieutenant Banda was not in command of his men. 6. The learned judge erred in finding that Lieutenant Banda had more than one N.C.O. available for the purpose of instructing them to take the offenders into custody. 7. The learned judge erred in concluding on the agreed facts that there was any evidence on which to find Lieutenant Banda guilty of negligence. 8. Lieutenant Banda owed no duty of care to the plaintiff and even if he did, such duty ceased to exist when his subordinates acted outside the scope of their authority and /or outside the course of their employment. 9. Lieutenant Banda could not have foreseen the likelihood of the plaintiff becoming injured as a result of any failure on his part to prevent his subordinates from acting as they did.2 Before the case was heard in the High Court the facts had been agreed by the parties and all the learned judge was asked to decide was what was the legal position arising out of these facts. In order that this judgment may be fully comprehensive, I think it is necessary to recapitulate these facts which are as follows: "On 29th June 1969, around 1700 hours 'A' Company of 1st Battalion Zambia Regiment (hereinafter called 'the Company') arrived at Landless Corner. Landless Corner is approximately 40 miles from Lusaka on the Great North Road. The Company was on its way from Kalabo in the Western Province, after completion of its assignment, to its base to Ndola. The Company was led by superior officers, one of whom was Lieutenant Banda. When the Company reached Landless Corner, some lorries belonging to it which had gone ahead stopped to wait for other lorries in the convoy lagging behind. Lieutenant Banda was instructed to take charge of the Company while his immediate senior went ahead to Kabwe. While standing between two lorries, Lieutenant Banda heard a noise behind. He walked behind, then saw a man, whom he later learnt to be Mr. Landless, and a soldier coming from a field towards the convoy of lorries. Mr. Landless was carrying a BSA Air Rifle. The soldier had trespassed on to Mr. Landless's Farm. Mr. Landless had earlier seen the soldier aim to shoot at a bird sitting in the field. Mr. Landless went to investigate. He asked this soldier to go with him to the Police Station. The soldier replied that he could not go without first obtaining the permission of his superior officer. Mr. Landless then agreed to go with the soldier to the soldier's superior officer. It was at this stage that Mr. Landless took the airgun from the soldier. When they reached the convoy of lorries, Mr. Landless asked to see the Officer-in - Charge. The Officer-in- Charge was not there. Instead he saw an N.C.O., or sergeant. He told the sergeant that he was taking the man to the police station. The soldiers surrounded Mr. Landless. One of them standing on the right took the gun from Mr. Landless without a struggle. He pointed the gun and fired: in doing so he hit one of his fellow soldiers in the cheek. The soldiers then accused Mr. Landless of shooting this man. Their anger was rising. One of them kicked Mr. Landless on the legs. He realised he must get away and ran down the Great North Road with them in pursuit. By this time, Mrs. Landless had come to look for her husband. When he got to the vehicle he got in at the driver's seat and proceeded to reverse to Old Mumbwa Road turn-off. Once in the vehicle some of the soldiers began throwing stones at the vehicle. Lieutenant Banda tried without success to stop the soldiers pursuing and throwing stones at the vehicle. As the vehicle moved down Mumbwa Road and Mr. Landless changed into first gear, one of the stones came through the opendriver's3 window, past Mr. Landless and struck his wife in the right eye. Other stones hit the vehicle with no apparent damage. They drove to their parents' house for Mrs. Landless to receive temporary treatment. The plaintiff was before the injuries a stenographer earning K300 per month. She is now unable to perform the same functions.Mr. Landless borrowed his brother's car to go to Lusaka for fear that the soldiers might recognise the vanette. On passing the corner there were still dozen soldiers standing there looking into vehicles although the army vehicles had now moved off. Mr. Landless took his wife to Dr. Glynn who recommended them to see Mr. Phillips, who operated at about 7.00 p.m. that evening. After surgery, Mr. Landless reported to the Officer-in - Charge, Zambia Regiment. Four of the soldiers were sentenced by the Magistrate at Kabwe and given sentences of six months imprisonment with hard labour." The first three grounds of appeal, in my opinion, can all be taken together, because the essence of these grounds is the same, namely, that Lieutenant Banda did everything in his power to prevent the happening of this disgraceful incident and there was nothing more he could have done. Mr Williams referred us to paragraph 710 on p. 381 of Clerk and Lindsell on Torts. "Standard of a reasonable and prudent man." I do not propose to quote in this judgment the whole of this paragraph, but will content myself with quoting the concluding lines thereof wherein it is stated: "The question whether the defendant has acted reasonably in the circumstances or not is a question of fact. It would be undesirable to crystalize into rules of law what constitutes 'reasonableness'; tendencies in that direction have met with scant encouragement. All that the law does is to prescribe reasonableness as the standard and to leave it there, for the value of the concept of reasonableness lies in its flexibility. Decisions in individual cases as to what amounts to reasonable or unreasonable conduct are useful as guides but no more. 'The basic rule', said Pearson J. in Hazell v B.T. C. (2) at p. 171, 'is that negligence consists in doing something which a reasonable man would not have done in that situation, or omitting to do something which a reasonable man would have done in that situation', and I approach with scepticism any suggestion that there is any other rule of law, properly so called, in any of these cases. But, of course, one can look at decisions in other cases, especially Court of Appeal decisions, to see how that basic rule can properly be applied to situations of a particular class." On a careful consideration of this matter it seems to me that Lieutenant Banda could have done a great deal more to prevent this occurrence than he did. He was the officer in charge of what has to be considered a disciplined body of soldiers. Surely the greater number of these soldiers would have been amenable to his orders, and surely he could have ordered those loyal soldiers to stop this rioting by taking physical action to arrest4 these dissidents. Applying the principle of res ipsa loquitur to the agreed facts it is clear that he did not take any such action, and in my opinion the first three grounds of appeal must fail. We now come to the fourth ground of appeal which is set out ante. The brief facts of the Dorset Yacht case (1) were as follows: "Ten borstal trainees were working on an island in a harbour in the custody and under the control of three officers. During the night seven of them escaped. It was claimed that at the time of the escape the officers had retired to bed leaving the trainees to their own devices. The seven got on board a yacht moored off the island and set it in motion. They collided with another yacht, the property of the respondents, and damaged it. The respondents sued the Home Office for the amount of the damage. A preliminary issue was ordered to be tried whether on the facts pleaded in the statement of claim the Home Office, its servants or agents owed any duty of care to the respondents capable of giving rise to a liability in damages with respect to the detention of persons undergoing sentences of borstal training, or with respect to the manner in which such persons were treated, employed, disciplined, controlled or supervised whilst undergoing such sentences. It was admitted that the Home Office would be vicariously liable if an action would lie against any of the borstal officers. On appeal against the decision of the preliminary point in favour of the respondents it was held (Viscount Dilhorne dissenting) the appeal would be dismissed because - (i) (per Lord Reid, Lord Morris of Borth-y - Gest and Lord Pearson) (a) the taking by the trainees of the nearby yacht and the causing of damage to the other yacht which belonged to the respondents ought to have been foreseen by the borstal officers as likely to occur if they failed to exercise proper control or supervision; in the particular circumstances the officers prima facie owed a duty of care to the respondents (dictum of Lord Atkin in Donoghue (or M'Alister) v Stevenson (2) at 11 applied); (b) the fact that the immediate damage to the property of the respondents was caused by the act of third persons, the trainees, did not prevent the existence of a duty on the part of the officers towards the respondents because (per Lord Reid) the taking of the yacht and the damage to the other was the very kind of thing which the officers ought to have seen to be likely, or (per Lord Morris of Borth-y - Gest and Lord Pearson) the right of the officers to control the trainees constituted a special relation which gave rise to an exception to the general rule that one person is under no duty to control another to prevent his doing damage to a third, (dictum of Dixon J. in Smith v Leurs (3) at 261, 262, applied);5 (c) the fact that something was done in pursuance of statutory authority did not warrant its being done unreasonably so that avoidable damage was negligently caused (dictum of Lord Blackburn in Geddis v Proprietors of Bann Reservoir (4) at 455 applied); (d) there was no ground in public policy for granting complete immunity from liability in negligence to the Home Office or its officers; (ii) (per Lord Diplock) there was material, fit for consideration at the trial, for holding both that the officers were acting in breach of instructions and ultra vires and that they owed a duty of care to the respondents. Decision of the Court of Appeal sub nom Dorset Yacht Co. Ltd v Home Office (1) affirmed." In particular, Mr Williams for the appellant has referred me to certain portions of the judgment in the Dorset Yacht case of Lord Reid where referring to the borstal officers His Lordship observed "the three officers knew, or ought to have known, that these trainees would probably try to escape during the night, would take some vessel to make good their escape, and would probably cause damage to it or some other vessel. There were numerous vessels moored in the harbour, and the trainees could readily board one of them. So it was a likely consequence of their neglect of duty that the respondent's yacht would suffer damage.". In the second quotation from Lord Reid's speech quoted by Mr Williams he stated: "But the law now is that there is no liability unless the damage was of a kind which was foreseeable (Overseas Tankship v Mort Dock and Engineering Co. Ltd (The Wagon Mound )) (5)." Mr Williams' contention is that it was completely wrong and completely unwarranted to have drawn a comparison between the Dorset Yacht case and the present case, because he maintains that the circumstances are completely different; the characters and actors are completely different and the circumstances involving the officers in charge are completely different. I do not agree with this contention at all. I am of the opinion that there was ample justification for the learned trial judge drawing this comparison and I am fortified in my conclusion by a passage in the judgment of Lord Morris of Borth-y - Gest on p. 304 of the record of that judgment which states: "The conclusion that I have reached is that the officers owed a duty to the respondents to take such care as in all the circumstances was reasonable with a view of preventing the boys in their charge, and under their control, from causing damage to the nearby property of the respondents, if that was a happening of which there was a manifest and obvious risk. If in the daytime the6 officers saw that the boys in their charge and under their control were deliberately setting out to damage a nearby yacht, or were in the act of damaging it and if the officers could readily have caused the boys to desist, the facts would warrant a conclusion that there was a failure to take reasonable care." In the present case, Lieutenant Banda saw the recalcitrant soldiers throwing stones at the vehicle in which were the respondent and her husband. Obviously this very action of throwing stones was most likely to cause damage to the respondent and certainly could have been foreseen by Lieutenant Banda. According to the agreed statement of facts which I have before quoted, Lieutenant Banda tried, without success, to stop the soldiers pursuing and throwing stones at the vehicle. As I have said before in this judgment only a small number of soldiers were involved in this incident. By far the greater number of soldiers would still have been amenable to discipline and to carrying out the orders of Lieutenant Banda. It seems to me that he was thoroughly negligent in not at once ordering the loyal portion of his soldiers to stop the rioters by taking physical action in arresting these trouble-makers. In my opinion what I have said above also adequately disposes of the points raised by Mr Williams in grounds 6, 7 and 9. This leaves only ground 8. In support of his argument on this ground, Mr Williams quoted the case of King v Anthony (6) in which case a soldier had wrongfully procured live ammunition which he began firing while being transported by truck from one station to another. Other soldiers were firing blank ammunition. It was contrary to orders for any man to have or fire any ammunition. The officer in charge of the party knew the men were firing live and blank ammunition but took no steps to stop it. The soldier with the live ammunition fired an incendiary bullet at plaintiff's barn and the contents were destroyed. Plaintiff brought action against the Crown under s. 19 (1) (c) of the Exchequer Court Act. Under s. 50A of that Act (enacted 194344 (Can). c. 25) a member of the armed forces is deemed to be a servant of the Crown. The trial judge gave judgment for the plaintiff on the ground that the failure of the officer in charge to stop the firing was negligent and the damages were such as should have been foreseen. The Supreme Court of Canada, by a majority (3-2), reversed this and gave judgment for the Crown. Rand, J., writing for the majority, held that the officer had merely failed to perform a duty to the Crown, not a duty to the injured person. "Where the injured person is not the one with whom the undertaking is made, then it must appear at least that he is within the intended range of benefit . . . In other circumstances, reliance by him on the undertaken conduct may be necessary to establish the link of legal duty. I see nothing of those elements in the duty of an officer under military discipline in relation to acts of subordinates." In his dissenting judgment, Estey, J., said the duty of the officer in charge was based on the general doctrines of negligence explained in Donoghue v Stevenson. These were contained in the judgment of Lord Atkin in that case where he stated:7 "at present I content myself with pointing out that in English law there must be, and is, some general conception of relations giving rise to a duty of care, of which the particular cases found in the books are but instances. The liability for negligence, whether you style it such or treat it as in other systems as a species of 'culpa' , is no doubt based upon a general public sentiment of moral wrong doing for which the offender must pay. But acts or omissions which any moral code would censure cannot in a practical world be treated so as to give a right to every person injured by them to demand relief. In this way rules of law arise which limit the range of complaints and the extent of their remedy. The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyer's question; 'Who is my neighbour?' receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be - persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind tothe acts or omissions which are called in question." Precedents do not fix the limits of what may be described as duty situations, they merely illustrate them. In all the circumstances of this present case, I would concur with the dissenting judgment of Estey, J. Lord Morris of Borth-y - Gest observed in his speech in the Dorset Yacht case at p. 308: "If the test whether in some particular situation a duty of care arises may in some cases have to be whether it is fair and reasonable that it should so arise the court must not shrink from being the arbiter. As Lord Radcliffe said in his speech in Davis Contractors Limited v Fareham Urban District Council (7), the court is 'the spokesman of the fair and reasonable man'." I am also impressed with the words of Lord Diplock in his speech also in the Dorset Yacht case (1) at p. 324 where he says: "It will be apparent that I agree with Lord Denning M.R. that what we are concerned with in this appeal 'is . . . at bottom a matter of public policy which we, as judges, must resolve'." He cited in support Lord Pearce's dictum in Hedley Byrne &, Co. Ltd v Heller and Partners Limited (9): "How wide the sphere of the duty of care in negligence is to be laid depends ultimately on the courts' assessment of the demands of society for protection from the carelessness of others." I would hold in this case that Lieutenant Banda did owe a duty of care to the respondent and that such duty did not cease to exist when his subordinates behaved in the manner in which they did. He had the power and authority to control the troops under his command and he was negligent in not at once taking the action I have outlined earlier in this8 judgment and the likelihood of injury to the respondent was one which should have been foreseen by him if the stone throwing of the rioting soldiers was not prevented. Accordingly I would dismiss this appeal. Appeal dismissed