Chicole v Chatsama (Civil Appeal No. 16 of 1995) [1995] BWCA 38; [1997] B.L.R. 139 (CA) (13 July 1995)

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Chicole v Chatsama (Civil Appeal No. 16 of 1995) [1995] BWCA 38; [1997] B.L.R. 139 (CA) (13 July 1995)

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IN THE COURT OF APPEAL OF BOTSWANA HELD AT LOBATSE
Civil Appeal No. 16/95 High Court Civil Case No. (F) 128/91
In the matter of:

ALBINO PEREIRA FRANCISCO CHICOLE Appellant
and
1st Respondent 2nd Respondent
MR. WIKIMAN CHATSAMA MR. JUSTICE SAM
Appellant in person
Mr. B. Majoko for the 1st Respondent

JUDGMENT
CQRAHi AGUDA J.A
SCHREINER J.A LORD COWIE J.A
AGUDA!J.A.. INTRODUCTION.

On May 14, 1991, the appellant caused to issue a Writ of Summons at the High Court of Botswana, Francistown, making claims against the respondents as follows:

(a)

P250,000.00 for false and defamatory statements published in a document dated April 5, 1990.

(b)

P950,000.00 for pain and suffering in respect of an assault alleged to have been committed against him on April 28, 1990 as a result of which he sustained two broken ribs.

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(c) P200.00 for medical expenses.
(d) Costs of the suit.

The summons was accompanied with a Declaration. On objection by the respondents certain paragraphs of that Declaration were later deleted upon the order of a Judge of the High Court.

The Declaration as finally filed in Court contained the following averments which in summary are:

The first respondent prepared a document dated April 5, 1990, and procured one Mosikwa to assist him in getting some of the traders in the market in which he, the appellant had his shops to join him, the first respondent in appending their signatures to the document.

The second respondent was one of those who appended their names to the document.

The said document contained the alleged defamatory matter the offending parts of which were quoted verbatim in the Declaration.

As a result of the publication, he the appellant, had sustained damage to his reputation.

The two respondents (2nd respondent being an employee of the first respondent) jointly unlawfully assaulted him on April 28, 1990 at the market place at Francistown as a result of which he sustained some injuries.

In his Plea, the first respondent averred as follows:

That he is not the author of the document which contained the alleged libel.

In the event that the Court found against him on the authorship of the documents then -

(i) the document was made honestly and without

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malice;
(ii) That in any event it was made in furtherance and in protection of his interests;

(iii) That it was directed to the authority with a legitimate duty to receive it; and

(iv) in the circumstances the publication was published under privileged circumstances.

(v) On the question of assault, the first respondent denied assaulting the appellant, and also denied instructing the second respondent to assault the appellant.

It does not appear that the second respondent took part in
the proceedings at all - he in fact never entered appearance.
On April 21, 1992 the appellant filed an application for default
judgment in the sum of PI,400,000.00 plus costs on the premises
that -
1. the first respondent failed to deliver his plea within the time laid down in the Rules of Court; and
2. The second respondent failed to enter an appearance.
The application was dismissed by Cotran, J., on July 17, 1992 in so far as it concerns the first respondent, but was granted as it relates to the second respondent; and the question of the assessment of damages was left in abeyance.

After some other interlocutory applications and proceedings into which it is unnecessary to go in this appeal, the case went

!
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to trial. However it is pertinent to say that as the first

respondent had died before the completion of the trial and his wife was by an order of court, substituted as the executrix. However, I shall continue to refer to the first respondent as such regardless as to whether it was the deceased or his wife that is meant. SUMMARY OF FACTS

Sometime in 1985 the appellant obtained a licence from the Francistown Town Council to run a restaurant in the central market in Francistown. Early in 1990 a young lady by the name of Kgopa Patiko took over from her mother a stall in which the latter had been sewing clothes and selling them. That stall was directly opposite that of the appellant. Soon after, Patiko started to sell food in the stall in competition with the appellant who thereby suffered a reduction in his sales. He therefore lodged a complaint with the council alleging that Patiko's mother's licence did not cover the sale of food. For reasons which are not stated, the council neither replied to his letter of protest nor did it take any other action to his satisfaction. As time went on the appellant assaulted a nephew of Patiko, a boy of 17 years of age on the allegation that he had stolen P20.00 from his stall.

Now the first respondent also had a stall near by where he

5 sold and repaired radio cassettes and watches. When trouble
began to brew between the appellant and Patiko, it would appear
that the first respondent took sides with the latter.
Subsequently because the appellant felt that the noise coming
from the first respondent's amplifier was too much, he then
sought and obtained in March 1990 an order against the first
respondent to reduce the noise. Thereafter the first respondent
championed a course of action by which he thought that the
appellant's licence would be revoked. He then prepared a
petition and procured a number of stall holders in the market
including himself and the second respondent to sign. It is that
document dated April 5, 1990 that contained the defamation
complained of in this case.
What followed was this. Apparently on April 27, 1990 the
town council ordered the appellant to remove some extension which
the appellant had made to his stall. However by the time the
appellant got to the market the following day April 18, 1990, the
second respondent had started to pull down the extension to the
appellant's stall covered by the town council order. This
apparently provoked a fight between the appellant and the second
respondent during which the second respondent threw a brick at
the appellant which caused two of his ribs to be broken. The
appellant alleged that it was the first appellant that instigated

the second respondent to assault him but that allegation was denied. Needless to say that the second respondent was also seriously injured during the fight.

It is in connection with those two events that the appellant instituted these proceedings. As I have indicated, whilst the first respondent has vigorously defended the action, the second respondent has shown no concern in it. HEARING AND THE ISSUE OP PRESCRIPTION
The actual taking of evidence in this case commenced before
Cotran, J., on October 10, 1993. The appellant gave oral
evidence in support of his claim, but called no other witnesses.
On the other hand the defence called two witnesses including,
surprisingly, the second respondent. At the close of the
evidence, counsel for the first respondent, Mr. Majoko was
reported as saying.

"My Lord I close the defence, but I have a point on prescription which I want to argue now. The cause of action rose on the 5th April, 1990. Summons were filed on 6/5/91. This is one month after the prescription period for an action of defamation in .... terms of Prescription Act Cap 13:01 section 4 (2) (a) (i) .... Now if you look at section 7(i) (b) it seems to me that the above action was prescribed."

Apparently this point was explained by the learned trial judge to the appellant who then told the court, "I understand the point and I need time to respond." The court then made an order

7 as follows:

"1. It is agreed that defendant submits written arguments on prescription by 1st July 1994 with copy to plaintiff.

2. Plaintiff to reply to submission in writing on 25/7/94."

The hearing was postponed to July 27, 1994. On that day counsel for the first respondent again addressed the court extensively on the question of prescription, in addition to the written address. The appellant raised objection to any consideration of the question of prescription on the ground that the respondents had waived all their rights to raise prescription. Ruling on the question was reserved.

On September 15, 1994, the learned trial judge delivered his

ruling on the question of prescription. He ruled against the

appellant, and decided that the action in defamation was

prescribed. He said:

"In the present case the plaintiff admits that he was
aware that the contents of the petition was defamatory
from day one. In fact he was warned about the
impending action that the 1st defendant proposed to
take soon after the court case ended on the 4th April
1990 in connection with the amplifiers. It may be
correct that the plaintiff did not "officially" know
the ipsissima verba in the petition but he had a
pretty good idea what these allegations were

Perusal of the case file shows abundantly and clearly that neither the 1st defendant nor his legal advisors either expressly or by implication ever waived or intended to waive any of their rights of defending the

action. The 1st defendant¹' conduct in this respect was plainly consistent throughout. He waived nothing nor did his attorneys.

The action for defamation against the 1st defendant is prescribed and accordingly dismissed with costs."

After giving this Ruling the learned trial judge then gave the parties an opportunity of addressing the court on all the remaining issues concerned. THE HIGH COURT JUDGMENT

On November 17, 1994, the learned trial judge delivered a considered judgment in the case. In summary the learned judge held:

If he was wrong in his Ruling as to prescription, then he would award damages as respects the claim in defamation in the sum of P3,000.00 with costs in favour of the appellant against the first respondent.

That the claim of the appellant against the first respondent for the assault would be dismissed.

3. The claim of the appellant against the second
respondent in defamation succeeded (if the defence of
prescription failed) , and would be entitled to damages
in the sum of P200.00 with costs.

4. The claim of the appellant against the second
respondent for the assault succeeded, and he awarded
damages in the sum of PI with no order as to costs.

APPEALS

On October 21, 1994, the appellant filed an appeal against the Ruling of the learned trial judge on the question of prescription which had been given on September 15, 1994. Then

on December 7, 1994, the appellant filed what he called "Amended and Consolidated Notice and Grounds of Appeal" in which he set down his Grounds of Appeal against both the Ruling of October 21, 1994, and the judgment delivered on November 17, 1994.

Subsequently both the appellant and the first respondent filed their Heads of Argument. Oral arguments were proffered before this Court on July 4, 1995. From the arguments it is clear that the issues for determination by this court are:

Whether the learned trial judge was right in his ruling that the action in defamation was prescribed.

If we come to the conclusion that the Ruling was correct, that would be the end of the claim in defamation.

If on the other hand we come to the conclusion that the action of the appellant was not prescribed then we have to consider whether we can interfere in the quantum of damages awarded in favour of the appellant as against each of the respondents.

Whether the learned trial judge was right in dismissing the appellant's action for assault as it concerned the first respondent.

If the learned trial judge was wrong is dismissing the appellant's action for assault as it concerned the first respondent, what damages would be proper to award.

Whether we can interfere in the award of damages in the sum of PI awarded against the second respondent.

Whether the various orders as to costs should be allowed to stand.

WAS THE ACTION PRESCRIBED?

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The first question to be answered in this appeal is whether
the learned trial judge was right when he held that the action
in defamation had been prescribed. I have already quoted the
views of the learned judge and as to how he arrived at his
conclusion that the action in defamation was prescribed. Before
examining the factual basis of the learned judge's conclusion,
I think I should examine the applicable law and rules of practice
thereto.
The Prescription Act, Cap 13:01, says in Section 4(1) that
"extincture prescription is the rendering unenforceable of a
right by the lapse of time." Subsection (2) of the section then
goes on to say that the period of extincture prescription in an
action for defamation shall be one year. It is clear that the
Act does not extinguish the legal right of the plaintiff who
brings his action after the one year period, but simply renders
that right unenforceable. It seems clear from this premise that
a defendant who claims the unenforceability of an existing right
must have the onus to plead the facts he is relying upon and
prove such facts by evidence. It is for this reason that the Act
provides in Section 16 that "a party to a suit who raises
prescription shall do so in the pleadings." In the same vein the
High Court Rules, Order 20, rule 8 provides that -
"The defendant .... must raise by his pleadings all matters which show the action .... not to be

maintainable, .... and such grounds of defence ... as if not raised would be likely to take the opposite party by surprise .... as for instance, fraud, prescription, release ...."

It is my view that as our law stands a party who wishes to rely on extinctive prescription must raise it by his pleadings. He cannot raise it in any other way. If it is not raised in his original pleading he must seek and obtain leave of the court to amend his pleading in order to raise the issue. And of course the plaintiff must be permitted to amend his own pleading accordingly if he so wishes.

I have set out the manner in which the question of prescription was imported into these proceedings. For the reasons which I have herein given I am of the view that learned counsel was in error in urging the court a quo to permit him to argue the point on prescription, as he put it. And the learned trial judge was also in error to have acceded to the request of learned counsel and to have ordered that the parties should merely submit addresses to him on the issue.

In addressing us in this appeal Mr. Majoko says that since the proviso to section 16 of the Act permits the court to allow prescription to be raised at any stage in the proceedings, the learned trial judge was right in the order he made. Counsel further called our attention to the Rules of the High Court,

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Order 32, rule 1, which gives power to the court to permit the

parties to amend their pleadings at any stage. He then submitted that for that reason the learned trial judge was within his right to have permitted the question of prescription to be raised at that late stage of the proceedings. In my view the proviso to section 16 gives a defendant the right to raise the issue at any stage of the proceedings whilst Order 32, rule 1 provides for the procedure by which it can be raised.

I am quite clear in my mind that the issue of prescription must be raised in the pleadings since it is invariably based upon proof of facts. As it turned out in this case, even when addressing this court on this point, both parties gave us different dates as to when the period of prescription commenced or was deemed to have commenced to run. This fact should have been settled by the trial judge on any evidence that the parties might have adduced before him. In effect what the first respondent should have done was for him to have sought to amend his pleadings so as to permit him to raise the issue of prescription. At that stage, it may well be that the trial judge would have exercised his discretion to have granted such an application, but this point must be left open in this case. This would have meant re-opening the whole case and taking further evidence from the parties. Bullen & Leake & Jacobs Precedents

13 of Pleadings 13th ed. (1990) says at page 1291 -
"An application to amend to plead the limitation defence at the trial is likely to be refused where the party's failure to plead it was deliberate or negligent: Kftttlfimfln v. Hansel Properties Ltd. [1988] 1 All ER 38, H.L."

I believe that the procedure in our High Court cannot be any different. In this respect the learned trial judge's reference to the case of Cassim v. Kadi (1962) 2 SA 473 is, with all due respect, most inapposite. Clearly the issue that was raised in that case was whether a defendant was confined to raising the plea of prescription in limine, and whether he could not raise it later in the proceedings. Of course that question did not and could not have arisen in these proceedings in view of the clear words of our statutory provision. There is no obligation under our law for the defendant to raise the issue of prescription in limine - although it would be more appropriate to raise it at that stage. For if it succeeds that would be the end of the case and the parties will be spared enormous costs which would have been incurred by a full trial. However the law in this country is that the issue can be raised at any time during the proceedings and a defendant who successfully raises it at a late stage of the proceedings may suffer in respect to costs.

For all the reasons herein given I have come to the conclusion that the issue of prescription was not properly raised

14
and that the learned trial judge erred by holding that the action
in defamation against the first respondent was prescribed and consequently in dismissing that action.

Now even if the plea had been properly raised, it seems clear that the first respondent could not have succeeded in establishing prescription upon the evidence properly put before the learned trial judge. The learned trial judge said that "the plaintiff admits that he was aware that the contents of the petition were defamatory from day one." If by "day one" the learned trial judge meant April 5, 1990, when the defamatory matter was typed, there is no shred of evidence in support of that conclusion, from the appellant under examination or under cross-examination. The learned trial judge then goes on to say "it may be correct that the plaintiff did not 'officially' know the ipsissima verba in the petition but he had a pretty good idea what these allegations were". Again there is no evidence that the appellant had any idea that the petition which the first respondent and others were going to submit to the Local Town Council was going to contain any unjustifiable defamatory matter. Even then the learned trial judge would appear to have shifted the onus of proof as regards prescription on the appellant. The appellant alleged that he did not have the knowledge of the defamatory matter until sometime in June when he received a copy

15
of the petition sent to him upon his request. The first
respondent said that the appellant knew the contents of the
petition or ought to have known them as far back as April 5,
1990. In my view the onus of establishing that fact lay on the
first respondent not on the appellant as the learned trial judge
apparently believed. For whosoever wants the court to bar a
plaintiff who has a legal right to ventilate in the court from
so doing must bear the onus of proof of the facts and
circumstances which justify the bar.
One other odd aspect of this case is that the learned trial
judge, on his own, and apparently without affording the appellant
an opportunity of knowing what was happening, went and perused
the file of the case, and from such perusal came to the
conclusion that -

"the case file shows abundantly and clearly that
neither the 1st defendant nor his two legal advisors
either expressly or by implication ever waived or
intended to waive any of their rights of defending the
action "^

There is nothing on record to indicate that the appellant was privileged to know the contents of the file, nor were such contents put to him in the witness box. It is not part of our judicial process to do cloistered justice,- the learned trial judge therefore erred in basing his decision partly on a matter which was never placed before him in evidence in the open court.

16
In his evidence in chief the appellant deposed to the fact
that on April 5, 1990, the first respondent told him that he was
organising a petition to chase him, the appellant, out of the
market. The appellant saw the first respondent write something
on a piece of paper. He continued his evidence in chief thus:

"After about 15 minutes Chatsama came back. He was holding a paper in his hand which he waived at me

saying 'I will get you out of this market'

Chatsama handed over the paper to Mosikwa and I saw the letter going around the market. Two or three days later I saw Mosikwa hand over the petition to Chatsama and said it was full. He (Chatsama) took the paper and showed it to me and said "here it is, it is full." Chatsama took it from him and said to me showing the paper ' you will leave the market.'"

Later he demanded a copy of the petition from the Town Council to which it was submitted but was advised to put it in a written request which he did on May 22, 1990. He received a copy in June 1990. Then he issued out a summons on May 14, 1991. Clearly on these facts the action cannot be held to have been prescribed. But then the learned trial judge held that the appellant "had a pretty good idea what these allegations were." In the first place there was no evidence whatsoever, to justify this assertion. Secondly, to have an idea that a petition seeking the removal from the market of the appellant is far from proof that he knew that such a petition would contain libellous matter and what precisely that libellous matter was going to be.

17 Having thus considered all possible aspects of the plea of
prescription, I have come to the inevitable conclusion that the
plea did not avail the first respondent. And it being common
cause, or an admitted fact, that the matter published by first
and second respondents, as well as others, were libellous of the
appellant what remains to be considered now is whether this court
is entitled to interfere in the quantum of damages awarded
against each of the two respondents.
APPEAL AGAINST QUANTUM OF DAMAGES FOR DEFAMATION

Although the appellant claimed P250,000.00 against the two respondents jointly for defamation, the court a quo made an award of P3,000.00 against the first respondent, and P200.00 against the second respondent. I shall deal first with the appeal against the award made against the first respondent. Whilst the appellant has argued that we should increase that amount, the first respondent has not appealed against the award but has merely resisted the appeal in this regard.

In deciding upon the quantum of damages the learned trial judge adequately adverted his mind to the matters he was obliged to put into consideration. These are the general reputation of the appellant in the community; how far the defamatory publication was capable of lowering the reputation of the appellant; the extent of the publication of the defamatory

18
matter; and the motive and conduct of the respondent. Having
taken all these matters into consideration in assessing the
damages, the right of this court to interfere in such an award
is circumscribed. I accept the principles stated by Lord Wright
in the House of Lords' decision in Davies v. Powell Duffryn
Associated Collieriea Ltd [1942] AC 601, at pp. 616, which should
guide a Court of Appeal when requested to interfere in the award
of damages made by a trial court as applicable in this court.
He stated it thus:

"Where the award is that of the judge alone, the appeal is by way of rehearing on damages as on all other issues, but as there is generally so much room for individual choice so that the assessment of damages is more like an exercise of discretion than an ordinary act of decision, the appellant court is particularly slow to reverse the trial judge on a question of the amount of damages. It is difficult to lay down any precise rule which will cover all cases, but a good general guide is given by Greer L.J. in Flint v. Lovell [1935] 1KB 354. In effect the court, before it interferes with an award of damages, should be satisfied that the judge has acted on a wrong principle of law, or has misapprehended the facts, or has for these other reasons made a wholly erroneous estimate of the damage suffered. It is not enough that there is a balance of opinion or preference. The scale must go down heavily against the figure attacked if the appellate court is to interfere, whether on the ground of excess or insufficiency."

Bearing in mind all the facts of this case and the amount of P3,000.00 awarded, I cannot say that the learned trial judge has made a wholly erroneous estimate, or that he has acted on

19
wrong principles, or that he has misapprehended the relevant
facts, or that he has breached any other principle of law so as
to warrant this court's intervention in that award. The appeal
against this award is therefore dismissed.
The learned trial judge made an award of P200.00 against the
second respondent without saying why he made such an obviously
inadequate and ridiculous award. The second respondent did not
enter appearance to the claim of the appellant nor did he defend
it. Judgment was entered against him in default on July 17,
1992, and what was left in abeyance at that stage was the quantum
of the damages to be awarded. The learned trial judge said on
that occasion that he would make an assessment at the same time
as he would make an award against the first respondent. The
judge seemed to have forgotten this, for, at the end of his
judgment he merely said:

"As against Justice Sam who did not defend I award the plaintiff P200.00 damages for defamation with costs as agreed or taxed."

Bearing in mind the principles of the law which I have quoted above, I am firmly of the view that in this case the learned trial judge made a wholly erroneous estimate which is an indication that he must have acted on wrong principles of law. For this reason I hold that this is a clear case in which this court should interfere. I would therefore set aside the award

20
of P200.00 and substitute therefor an award of PI,500.00 with
costs. In making an award of this amount which is less than the
one made against the first respondent I bear in mind that the
second respondent was an employee of the first respondent, who
must have influenced his decision to append his signature to the
petition. However in spite of that relationship he was one of
the persons who signed as authors of the defamatory matter, and
he signed it in his own right, and was therefore as liable as the
first respondent.
CAN THIS COURT SET ASIDE THE DISMISSAL OP THE ACTION FOR ASSAULT BROUGHT AGAINST THE FIRST RESPONDENT?
As regards the claim of damages for assault the case of the
appellant as given by him in evidence is as follows:

"On 28/4/90 Justice Sam who is the employee of Chatsama (i.e. first respondent) started to pull down the tent. He was not a council employee, and it was the council who had ordered me to move the shade, not him. I pleaded with Justice Sam not to do it. I heard Chatsama say to Sam "Let us beat him." Justice Sam immediately picked up a brick. He threw it at me from a distance of 4 metres (agreed) and a brick which caught me on the side breaking two ribs. I suffered

pain. I had to go for medical tests Chatsama

came to me with a sjambok and lashed me two or three times, I think three."

The first respondent did not give evidence but Justice Sam gave evidence. He denied assaulting the appellant either on his own or on the instigation of the first respondent. On the other

1
21
hand it was his evidence that it was the appellant and his sons
who assaulted him.

From the evidence as a whole including in particular, medical reports there is no doubt that the appellant was assaulted on that day. The learned trial judge so found; and also found that it was the second respondent that assaulted the appellant. The trial judge did not accept the appellant's evidence that it was at the instigation of the first respondent that the second respondent assaulted him. I find that this court cannot interfere in that finding of fact which is based entirely upon the credibility of the witnesses. The appellant based his argument on vicarious liability of the first respondent for the tort of the second respondent. The trial judge did not believe that the first respondent in any way instigated the second respondent. The appellant has not been able to show that the learned trial judge is wrong in this respect.

I have therefore come to the inevitable conclusion that the
dismissal of the action for assault brought by the appellant
against the fist respondent was right. Therefore I would dismiss
the appeal of the appellant on this point.
CAN THIS COURT INTERFERE IN THE AWARD OF DAMAGES MADE IN FAVOUR OF THE APPELLANT AGAINST THE SECOND RESPONDENT?
The learned trial judge found that it was the second

22
respondent who committed the assault on the appellant and that

it was that assault that caused the latter to sustain injuries, and that the assault was unlawful. Of course, the assault was clearly unlawful since the fight which ensued between the parties was as a result of the illegal action of the second respondent in illegally pulling down the appellant's structure. The second respondent, during the scuffle which apparently ensued, threw a brick at the appellant. It may be true that the second respondent suffered some injuries during the scuffle but in this case there is the evidence including medical evidence that the appellant suffered some damage to two ribs in respect of which he had to receive medical treatment. The appellant told the court that he suffered pain, and clearly this cannot be controverted.

In respect of the assault the appellant made a claim of P950,000.00 and another of P200.00 as medical expenses. The second respondent did not make any defence as regards these claims, yet, and rather curiously, without giving any reasons whatsoever the learned trial judge made an award of PI for the personal injuries, and none in respect of the medical expenses.

Bearing in mind the principles which I have earlier set down, I have no doubt in my mind that this is a clear case in which this court should interfere in the award of damages.