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