IN THE HIGH COURT OF MALAWI
PRINCIPAL REGISTRY
CIVIL
CAUSE NO. 3670 OF 1998
BETWEEN:
HENRY KHEMBO ……………………………………………………….PLAINTIFF
AND
THE WEEKLY CHRONICLE NEWSPAPER……………………….DEFENDANT
The
plaintiffs claim against the defendant is for damages for libel contained in an
article entitled “NASME swindles over
K250,000” published by the defendant on page 1 of The Weekly Chronicle Volume
3, Number 65 of November 13 to November 19, 1995. The plaintiff also claim costs of this action. The plaintiff obtained an interlocutory
default judgement against the defendant on the 5th day of December
2001 for damages to be assessed and for costs of this action.
This is
now a notice of assessment of damages.
There was only one witness, the plaintiff himself who testified. The defendants despite being duly served
were not in attendance. The assessment
therefore, proceeded in the absence of the defendants.
The
evidence of the plaintiff which was undisputed is that he was the founding
Chairman of NASME the subject of the alleged libelous article titled ‘NASME’
swindles K250,000’ and that because of this article his reputation went down
and his picture changed among the donor community where he used to source funds
for the organisation as well as the banks with which he interacted because of
his personal business. It was further
his testimony that even the President of the country invited him twice to
discuss the said article and that all his friends looked at him as a
swindler. He further informed the court
that during their Annual General Meeting where an Accounts report was
presented, there was no shortage and he was never prosecuted of any of the
allegations. Eventually he had to
re-allocate to another country and he spent U$D 1438,00 for transport to come
and attend to matter in court.
It is
pertinent at this stage to have recourse to the relevant part of the article in
question which stated as follows:
“According
to various reports circulating around the issue, this association was
established in 1994, and to date the interim executive committee headed by Mr H
Khembo has collected membership fees from over 11,000 members totaling over
K500,000 of which only K250,000 has been accounted for and the rest has
disappeared into thin air”.
The
plaintiff avers that these words were meant and understood to mean that:
(i)
the plaintiff is a dishonest person where money is
concerned;
(ii)
the plaintiff by himself and/or with other executive
members used the money alleged to be unaccounted for their own benefit;
(iii)
the plaintiff was deceiving people of this nation to
join NASME so that he benefits from their membership,
(iv)
the plaintiff was robbing the public in day light.
As
already noted herein the question whether the said article was defamatory or
not was already taken care of by the default judgement entered herein. What this court has to do is to asses
damages payable to the plaintiff as a result or consequence of such
article. As to the measure of damages
the general rule is contained in the speech of Lord Blackman in Livingstone
v. Rawyanrds Coal Company [1880] 5
App. Cas. 25 at page 39 where the measure of damages for compensation purposes
was defined as:
“that sum of money which will put the party who has been injured or who has suffered, in the same position as he would have been in if he had not sustained the wrong for which he is now getting his compensation or reparation”.
It has
further been stated in the case of Justice Mwaungulu v. Malawi News Civil Cause Number 518 of 1994 that the court
takes into account several factors in assessing damages for defamation which
inter alia, are (i) the context of the defamatory material, (ii) the nature and
extent of the defamatory publication including the aspect of reproduction,
(iii) the plaintiff standing, his reputation, character and status, (iv) nature
of defamation-either libel or slander, (v) conduct of the defendants from the
time of publication and (vi) recklessness of publication.
In the
matter at hand the defamatory article was published on the front page of the
Weekly Chronicle Newspaper and one would rightly conclude that whoever bought
the newspaper ought to have seen and read the article hence the averment by the
plaintiff that his image and reputation has been tarnished among his peers and
all those he had business transactions with.
It has not been shown in evidence whether the article was reproduced in
subsequent editions but it is clear that the defendants never apologised in any
way to the plaintiff and no apology was ever published in the subsequent
editions of the defendant newspaper.
The
absence of an apology or retraction by the defendants must therefore be taken
into consideration in assessing damages as well as “the whole conduct of the
defendant from the time the libels (were) published down to the very moment of
the verdict” per Lord Esher M.R. in Paed v. Craham [1889]
24 QBD at p. 53.
“(The
defendant) may have behaved in a high-handed, malicious, insulting or oppressive
manner in committing the tort he or his counsel may at the trial have
aggravated the injury by what they said” per Lord Reid in Cassel and Company
Ltd vs. Broome (op.at). Again in Sutelittle vs. Pressdraw
Ltd [1990] IALLER 269. Norse L J
said, “The conduct of a defendant which may often be regarded as aggravating
the injury to the plaintiff’s feelings so as to support a claim for aggravated
damages includes: a failure to make any or any sufficient apology or
withdrawal; a repetition of the libel, conduct calculated to deter the
plaintiff from proceeding persistence by way of prolonged or hostile
cross-examination of the plaintiff and persecution of the plaintiff by other
means.”
In the
matter at hand the plaintiff testified that his reputation was seriously
damaged such that he lost some funding which he had sourced and was in the
pipeline from donors. He was queried by
the State President due to the article and in the end he had to re-allocate to
another country and is currently based in the United States of America. It is therefore the courts view that the
extent of the damage caused to his reputation was grave indeed. Having been a founding member and Chairman
of NASME he was well known figure in the social services circles and yet he had
to leave everything and re-allocate to another country. The said article further imputed criminal
responsibility and liability on the plaintiff these are indeed aggravating
factors and yet there was no apology or retraction of the said article. The defendants were therefore not
remorceful-Malawi Railwlays Ltd and Another v. A H Bhandur Khan
[1984] 11 MLR 432 where Honourable Makuta, CJ (as be then was) had this to say;
“In my judgement there are no
mitigating circumstances. The defendant
does not show any remorse. There was no
provocation from the plaintiff. The
allegations in my view, were made with reckless indifference to the truth. The serious imputations of criminal
activities are rude, damaging and discourteous and can have unpleasant
consequences on the plaintiff’s livelihood.”
In
awarding damages in this matter I have considered cases of similar nature. In the case of Victor Mbewe and
Other v. Ken Ndanga and Others Civil cause No. 179 of 2002 on award
of K200,000 each and K50,000 was made as aggravated damages: Chitalo
v. Majankhosi and Malawi Congress Party Civil
Cause No. 631 of 1993 on award of K130,000 was made; Dangwe v. Malawi
Congress Party Civil Cause No. 8 of 1993 a sum of K100,000 was
awarded as damages.
In the
present case after considering the awards of damages made in the previous
comparable case and further considering that the value of the kwacha has since
plunged into an all time low since such awards were made this court awards the
plaintiff K280,000 aggravated damages.
I further order that the defendant pay the plaintiff U$D 1439, the value
of an air ticket since the plaintiff had to travel all the away from United
States of America to attend court on assessment of damages.
The costs
of this action are also awarded to the plaintiff.
MADE in
Chambers at Blantyre this day
of December, 2003.