IN THE MALAWI SUPREME COURT OF
APPEAL
AT BLANTYRE
MSCA CIVIL APPEAL NO. 19 OF 1999
(Being High Court Civil Cause No. 1553 of 1997)
BETWEEN:
BLANTYRE
NEWSPAPERS
LIMITED.....................1ST
APPELLANTS
- and -
BLANTYRE PRINT AND
PUBLISHING..................2ND
APPELLANTS
- and -
A W
NGULUWE......................................................1ST RESPONDENT
- and -
LAWRENCE
MTCHERA........................................2ND RESPONDENT
- and -
AUSTIN
KAMANGA...............................................3RD RESPONDENT
- and -
ALECK
MKWEPU....................................................4TH RESPONDENT
BEFORE: THE
HONOURABLE MR JUSTICE UNYOLO, JA
THE HONOURABLE MR JUSTICE
TAMBALA, JA
THE HONOURABLE JUSTICE MRS
MSOSA, JA
Malera, Counsel for the
Appellants
Chirwa, Counsel for the
Respondents
Ngaiyaye (Mrs), Official
Interpreter/Recorder
J U D G M E N T
Unyolo, JA
This is an appeal against the
ruling of Tembo, J, which the learned Judge delivered on 19th February
1999.
The relevant facts can be
stated in a few lines. The respondents,
who are the plaintiffs in this matter, are employees of the Judiciary. They were at all material times stationed at
the High Court Principal Registry in Blantyre.
The appellants, on the other hand, are proprietors, printers and
publishers of a newspaper called “The Daily Times”.
By a Writ of Summons and
Statement of Claim served therewith, the respondents instituted civil
proceedings against the appellants claiming damages for libel. The words complained of appeared in The
Daily Times of Friday, 21st February 1997, in which the appellants
published an article that, among other things, contained the following passage:
“Meanwhile, members
of staff at High Court have written a circular to the Registrar requesting the
resignation of the Chief Justice.”
The appellants filed a defence
denying the alleged libel in its entirety and subsequently they made an
application seeking the determination of the Court below, as preliminary
issues, firstly, whether the respondents are a class or body of persons capable
of being libelled and, secondly, whether the words complained of are in fact
defamatory of them.
After hearing Counsel for the
parties in argument, the learned Judge answered the first question in the
affirmative. He found and held that
respondents were a class or body of persons readily identifiable in the
community as distinct from the rest of the people and that as such, they were
entitled to bring the libel suit against the appellants. On the second question, the learned Judge
held that whether the words complained of were in fact defamatory of the
respondents, was a question of fact which would only be decided after a
trial. The learned Judge accordingly
ordered that the case should proceed to trial.
It is on the basis of these
findings that the appellants bring the appeal to this Court.
The first point taken on
behalf of the appellants was that the learned Judge misdirected himself in
omitting to consider the real issue before the Court, namely, whether the words
complained of would be deemed to refer to the respondents, but instead
proceeded to determine the question of whether the words were defamatory. Counsel submitted that the words complained
of are so general as not to spare any member of staff of the Judiciary, except
for the Registrar and the Chief Justice, who are specifically mentioned in the
article. Counsel argued that it is
preposterous, in the circumstances, for the respondents to claim that as
couched, the words complained of referred to them.
Related to this point, it was
also submitted that the learned Judge did not sufficiently consider the test
applicable when determining defamation of a class or body of persons. Counsel argued that it was spurious to think
that all members of staff of the High Court, countrywide, would, all of them,
want the Chief Justice to resign.
Counsel submitted that here lay the difficulty of the respondents
establishing that they were in fact included in the words complained of.
With respect, we are unable to
agree with the appellants in these submissions. Reading the lower Court’s ruling as a whole, it is clear to us
that the learned Judge addressed his mind to the issues the appellants have
raised in this appeal. Put briefly, the
learned Judge held the view that although the words complained of were broad
and general, they were nevertheless clear enough to designate an identifiable
class of people. The learned Judge then
went on to hold that whether the said words referred in fact to the
respondents, was a matter of fact to be shown in evidence. Respectfully, the learned Judge was
right. This point was well made by Lord
Porter in Knupffer vs. London Express Newspaper Ltd (1944) AC 116, at
page 124, where the learned Judge said:
“The question whether
the words refer in fact to the plaintiff or plaintiffs is a matter for the jury
or for a judge sitting as a judge of fact, but as a prior question it has
always to be ascertained whether there is any evidence on which a conclusion
that they do so refer could reasonably be reached.”
The Knupffer case also
stated the correct legal position that where the plaintiffs are not named, as
in the present case, the test as to whether the words complained of refer to
them, is a question whether the words are such as would reasonably lead persons
acquainted with the plaintiffs to believe that they were the persons referred
to. Again, it is clear from this
statement that the question on this aspect is one of evidence.
To sum-up, we are unable to
agree with the appellants that the learned Judge was wrong in ordering that the
case should go to trial. It is clear
from the observations we have made in this judgment that the issues the
appellants raised both in this Court and at the preliminary hearing in the
Court below are matters that must be dealt with at the trial of the case. It might be necessary and useful to add on
this aspect that in our view any submissions which involve consideration of the
evidence should, save in the most exceptional cases, not be ruled on before the
evidence is complete.
The result is that this appeal
should fail in its entirety, and we dismiss it accordingly, with costs.
DELIVERED in open Court, this
8th day of December, 1999 at Blantyre.
Sgd ......................................................
L E UNYOLO, JA
Sgd ......................................................
D G TAMBALA, JA
Sgd ......................................................
A S E MSOSA,
JA