Chimala Stores v. Zambia-Tanzania Road Services Ltd. Civ. Case 15-D-69; 17/6/70; Georges, C.J.

Chimala Stores v. Zambia-Tanzania Road Services Ltd. Civ. Case 15-D-69; 17/6/70; Georges, C.J.

The plaintiff trading under the name of Chimala Stores was a sub-contractor and a member of the Association of sub-contractors employed by defendants who were transporters of general cargo, oil and fuel from Tanzania to Zambia and copper from Zambia for export through Tanzania. Acting on information from one of their servant defendants wrote a letter to the drivers of two vehicles and to the Association stating that two sub-contractors’ vehicles had been found near Mikumi “stealing copper from our truck”. At defendants’ behest the letter was posted on the notice board of the Association to serve “as a strong warning to the two sub-contractors concerned: Chimala Stores ….. and …for the information of the members of the Association.” In a suit for libel the plaintiff by way of innuendo pleaded that “By the said words, the defendants meant and were understood to mean that there was a theft as alleged and that the plaintiffs were dishonest and were involved in the alleged theft either as principals or as accessories – criminal offences punishable by imprisonment.” It was agreed that the issues in this case were four: (a) were the words used capable of being understood in a sense defamatory of the plaintiff, and were they in fact so understood? (b) Were the words published on a privileged occasion? (c) If the occasion was privileged, was there malice? (d) If the plaintiff was entitled to damages, in what sum should they be assessed?

            Held: (i) …. I find that the innuendo pleaded is quite plausible on the letter drafted as it was …… (The) emphasis on the sub-contractors does create the impression of their involvement in the incident …. (One official of the company) made it very clear when he spoke to the plaintiff that he thought he was dishonest and that he was involved in the theft. This established, in my view, that the management of the defendant company did not exclude the possibility that the sub-contractors were involved and that action should be aimed at them …. As I have attempted to show, the entire emphasis of the letter is that a criminal offence has been committed, that sub-contractors’ vehicles are involved, that the sub-contractors must consider themselves warned and that their money had been stopped. To deduce from this involvement of the sub-contractors themselves, even though the drivers may have been the persons actually carrying out the theft, is quite reasonable …. On the first issue, therefore, I find for the plaintiff.” (2) “The second issue raises the question of privilege. There are many classes of statement which can be held protected by qualified privilege. They are set out in Gatley on Idbel and Slander, 5^th Edition, at page 190. I understood advocate for the defendant to fit this case under class 2: ‘Statements made on a subject matter in which both the defendant and the person to whom the statements are made have a legitimate common interest. ‘ The general principle was defined by Lord Fsher in the case of Hunt –v- Great Northern Railway Company [1891] 2Q.B. 189, at page 191 thus: ‘A privileged occasion ….. Arises if the communication is of such a nature that it could be fairly said that those who made it had an interest in making such a communication, and those to whom it was made had a corresponding interest in having it made to them ….. When those two things co-exist, the occasion is a privileged one ….. In other words, there must be reciprocity of interests.’ ….. (The counsel for the plaintiff) argues that this reciprocity cannot be found in this case, that the Association would have no interest in the matter published if it were true. He points out that the Association had no disciplinary powers and could do nothing about a delinquent member. Finally, he contends that the case ….. discussed above deal with a special relation- ship of master and servant, which has fiduciary connotations, and that it is only in that relationship that a publication of that nature can be privileged. To extend it to an association like the

one under consideration would be spreading the privilege too wide. I do not find these arguments convincing. If, in fact, the plaintiff was a party to the theft of copper by his servants from the defendant company’s lorries, every member of the Association would have an interest in knowing this – not only from the point of view of the action which the defendant company was likely to take against them as sub-contractors, but also in their own interests to protect their freight from possible theft. If it could happen to copper bars belonging to the defendant company, it could happen to cargoes being carried on their Lorries which broke down on the route. I would hold, therefore, that the occasion was privileged and that the area of publication was not too wide. There was no evidence that persons other than the members of the Association and their agents visited the office maintained by the Association.” (3) “The third issue is whether or not there was malice on the part of the defendant company so as to destroy the privilege. The concept of malice is clearly defined in the judgment of Brett, L.J., in Clarke  -v- Molyneux [1877] 3 Q. B. 235, at page 246: …… if the occasion is privileged, it is for some reason, and the defendant is only entitled to the privilege if he uses the occasion for that reason. He is not entitled to the protection if he uses the occasion for some indirect or wrong motive. …. Malice does not mean malice in law, a term in pleading, but actual malice, that which is popularly called malice. ….So, if it be proved that out of anger, or for some other wrong motive, the defendant has stated as true that which justifies it, but for the gratification of his anger or other indirect motive. …….. The only (test is) whether the defendant did, in fact, believe what he said, and not whether a reasonable man would have believed it ….’ Directing myself in accordance with these principles, which I accept as correct, I am satisfied that the plaintiff has not succeeded in showing that there was compress malice in this case. …. None of the Officers of the company knew him, and it cannot be suggested that they would have had any reason for wanting to get at him personally. The area of publication was not unduly wide. The method of communication used was the normal method between the defendant company and the sub-contractors. The report of the alleged theft had come from a responsible officer …. Copper bars had indeed been taken from the company’s Lorries which met accidents on the road. The company was concerned with the problem which caused financial loss and wished to do something. The element of protecting its own interests was strong. There was motive to get at the plaintiff personally or to use him as a victim for working off a deep prejudice, irrespective of the circumstances ….. it has been suggested that the subsequent conduct of the defendant company’s official confirms the idea of malice. The notice was never taken down from the Association’s notice board until the office was closed. There is nothing to indicate that this was on the orders of the defendant company. The indications are that it was left three because it had been forgotten. Perhaps the strongest evidence in favour of the plaintiff is the fact that the defendant company did not terminate their sub-contract. It could be argued that this indicated that they did not really believe that there was any complicity on the plaintiff’s part in the alleged theft. If they did not believe their allegation to be true, then clearly there would be malice. Viewing the situation as a whole, however, I am not convinced that the officials of the defendant company did not believe in the allegation. …. On the third issue, therefore, I hold that the plaintiff has not established malice and that the action must fail.” (4) (Were the defendants to be held liable) … The evidence would be admissible to show the nature of the loss the plaintiff could have suffered as a result of the libel and it would be helpful in assessing general damages. There was no evidence of widespread circulation of the libel. The vindication of the plaintiff’s character and a solatium for his sense of injury because of an unjust attack are, in my view, the important factors in assessing damages. An award of Shs. 5,000/- would suffice.” (5) Claim dismissed.