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