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THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT KAMPALA
(COMMERCIAL
COURT DIVISION)
HCT-00-CC-CS-244 OF 2002
PETER KAGGWA ........................................................
PLAINTIFF
VERSUS
1. NEW VISION PRINTING &
PUBLISHING CORPORATION
............................ DEFENDANTS
2. WILLIAM PIKE
3. TIMOTHY BUKUMUNHE
BEFORE: HON. JUSTICE LAMECK N. MUKASA
JUDGMENT:
The Plaintiff, Peter Kaggwa, an advertising and promotion coordinator
with the Uganda Telecom Limited, filed this suit against the
Defendants, jointly
and severally, seeking general damages, exemplary damages and costs for libel
contained in an article published
by the first defendant in Volume 17 No. 76 of
the New Vision Newspaper dated Saturday 30th March 2002. The first
defendant is statutory corporation carrying on business of a daily newspaper
publication called “New
Vision”. The second defendant is the Chief
Editor or Editor in Chief of the New Vision and the Chief Executive Officer of
the 1st Defendant. The third Defendant was a columnist for the New
Vision. The article complained of run as follows:-
“UTL’S PETER KAGWA PAYS SHS 2M FOR A FROLIC
Will the real Slim Shady please stand up? Hot whispers from the scandal
corridors of our dusty town have it that we have a new bad
boy in the house.
Peter Kaggwa a.k.a PK of UTL, was apparently caught pants down with a Tender
Ronnie (an under age girl) by the
TR (Tender Ronnie’s) mother. The good
woman threw a fit and called the police. It was not so quietly settled out of
court
for a paltry Shs2m. Who knew virgins came so cheap.”
At the
scheduling conference it was agreed as a fact that the publication complained of
was made, that it was false and that the
Plaintiff was entitled to damages.
Only one issue was framed for the Court’s decision being quantum of
damages. In his pleadings
the plaintiff prayed for general damages, exemplary
damages, interest on the above and cost of the suit.
In paragraph 6 of
their written statement of defence the defendants pleaded as follows:-
“Following the plaintiffs threat to sue, the defendant’s offered
to compensate him. In the course of subsequent negotiations
and meetings of the
parties, the plaintiff insisted on payment of Ugshs4,000,000/= ---- in
consideration for his forbearance to sue,
which counter – offer was
accepted by the defendants in a letter dated 22/4/2002 attached hereto as annex
“A”
Referenced letter exhibit D3 stated:-
“Please refer to your various correspondences and our meeting regarding
this matter. Your proposal of four million shillings
as damages in full and
final settlement of this matter is acceptable to us”
The only
defence witness Mr. Robert Kabushenga testified that he had, on behalf of the
defendant’s, held the negotiations towards
a settlement, first with Mr.
Mathias Sekatawa and later Mr. Daudi Mpanga advocates in M/S Mugerwa Masembe
& Co Advocates Counsel
for the Plaintiff with whom the said compensation was
agreed upon. That the defendants’ acceptance was further confirmed by
the
defendants’ letter to the Plaintiff exhibit D3 but that the plaintiff and
his Counsel in their letter of 29th April 2002, exhibit D1 reneged on
the agreement and opted to file this suit. That in their letter dated
29th April 2002, exhibit D2, the defendants protested the
Plaintiff’s rescission of the agreement. Mr. Denis Owori, Counsel for
the
defendant, submitted that the negotiations between the plaintiff’s counsel
and the defendants which resulted into the offer
for settlement by the
Plaintiff, which offer was accepted by the defendants, resulted into a valid and
binding settlement under the
contractual doctrine of Accord and Satisfaction.
He contended that the Plaintiff was estopped from bringing this suit. He relied
on the case of British Russian Gazette ltd V/S Associated Newspapers Ltd
(1933) 2 K. B. 616 where accord was defined in the following
holding:-
“--- the purchase of a release from an obligation, whether arising
under contract or tort by means of any valuable consideration,
not being the
actual performance of the obligation itself, the Accord is the agreement by
which the obligation is discharged. The
satisfaction is the consideration which
makes the agreement operative”
Counsel argued that the offer
verbally discussed with Mr. Daudi Mpanga, the Plaintiff’s Counsel and
therefore agent with authority
to act on the plaintiffs behalf, which offer was
in writing accepted by the defendants vide exhibit D3 amounted to a valid
agreement
binding on the plaintiff and the defendants and was thus a valid
“accord.” That the sum of UgShs4,000,000/= verbally
communicated by
the Plaintiff’s Counsel, which the defendants agreed to pay was the
“satisfaction.”
Regarding the negotiation the
Plaintiff’s counsel submitted that they were without prejudice
negotiations and thus inadmissible
in evidence. He referred to the
Defendant’s letter to the Plaintiff’s counsel dated 22nd
April 2003, Exhibit D3 which he termed the originator of the whole matter and
contended that it was marked “without prejudice”
It is the
uncontradicted evidence of the defence witness Robert Kabushenga that he on the
Defendant’s behalf held meetings with
the Plaintiff’s Counsel in one
of which held with Mr. Daudi Mpanga compensation to the Plaintiff was proposed
at Shs4,000,000/=.
The law is that so long as Counsel is acting for the party
in a case and his instructions have not been terminated, he has full
control
over the conduct of the case and has apparent authority to compromise all
matters connected with the matter See B.N. Technical Services Ltd V/S Francis
X Rugunda H.C. Misc. Appl. No. 75 of 1998, Bulandina Nankya & Anor V/S
Bulasio Konde (1979)
HCB 239, Roberts Nakaana & Anor V/S Joyce Nayiga H.C.
Misc. Appl. 829 of 2001. The Plaintiffs Case before this court was handled
by M/s Mugerwa & Masembe Advocates and all correspondence exhibited were
either to or from the said firm of advocates. Therefore they had instructions
at all material times to conduct this matter with
apparent authority to bind the
Plaintiff.
However, the defendant’s evidence shows that the
proposal made on behalf of the Plaintiff in the meeting the defence witness
held
with Mr. Daudi Mpanga was still subject to the defendant’s written
acceptance. The defendant’s acceptance was communicated
in the letter
dated 22nd April 2002, Exhibit D3. This letter was headed
“WITHOUT PREJUDICE.”
The general rule is that letters
written during a dispute between parties which are written for the purposes of
settling a dispute
and which are expressed to have been made “without
prejudice” cannot generally be admitted in evidence. See
Halsbury’s Laws of England 4 Ed Vol. 17 page 151 para 121, Smith
Shropshire District Council V/S Amos (1987) 1 ALLER 340. Section 22 of he
Evidence Act deals with admissions made on condition that evidence of thereof
shall not be given. The section
states:-
“ In civil cases, no admission is relevant if it is made either upon an
express condition that evidence of it is not to be given
or circumstances from
which the court can infer that the parties agreed together that evidence of it
should not be given.”
By heading the acceptance letter
“without prejudice,” the defendants made clear to the plaintiff that
the acceptance had
been made upon an express condition that evidence of that
acceptance was not to be given in the event of any future proceedings.
Therefore neither the Plaintiff nor the Defendants can rely on that letter to
prove that compensation to the Plaintiff in the sum
of Shs4,000,000/= had been
agreed upon by the parties.
The defence witness’s evidence shows
that following the defendant’s letter, exhibit D3, the Plaintiff in his
Counsel’s
letter exhibit D1 reneged on the agreement but that in the
defendant’s reply, exhibit D2, the defendants protested the
plaintiff’s
recession of the agreement. This time the defendant’s
letter was not written “without prejudice.” Such a situation
was
delt with in Sakar on Evidence 11th Edition at page 215 where the
learned authors states:-
“where a letter was sent by an attorney to the opposite party containing an offer to “purchase peace” and headed “without prejudice”, it cannot be given in evidence , nor the reply though not guarded in a similar manner. A letter marked “without prejudice” protects subsequent and previous letters in the same correspondence”.
Therefore the communication in the defendants letter exhibit D2 did not
provide a cure to the defendants’ “without prejudice”
acceptance in exhibit D3, the effect of which acceptance was that if the
plaintiff was not to stand by his proposal in the negotiations,
the defendants
having accepted it was to have no effect at all.
In the circumstances
there was no compromise agreement concluded between the parties. I therefore
find that the contractual doctrine
of accord and satisfaction is not applicable
to the circumstances of this case. The above settles the issue whether the
defendants
acceptance to settle the plaintiffs claim in the sum of
Shs4,000,000/= is binding on the plaintiff.
That now brings me to the
sole issue framed by the parties - the quantum of damages. The plaintiff in
this case seeks both general
damages and exemplary, damages. On the law on
assessment of damages in defamation the Plaintiffs Counsel referred me to the
English
case of John V/S MGN Limited (1996) 2 All ER 35 where at
page 4 the court stated this on compensatory damages:-
“The successful plaintiff in a defamation action is entitled to receive
as general compensatory damages, such sum as will compensate
him for the wrong
he has suffered. That sum must compensate him for he damage to his reputation;
vindicate his good name, and take
account of the distress, hurt and humiliation
which the defamatory publication has caused. In assessing the appropriate
damages
for injury to reputation the most important factor is the gravity of the
libel the more closely it touches the plaintiff’s
personal integrity,
professional reputation, honour, courage, loyalty and the core attributes of his
personality, the more serious
it is likely to be. The extent of publication is
also very relevant, a libel published to millions has a greater potential to
cause
damage than a libel published to a handful of people. A successful
plaintiff may properly look to an award of damages to vindicate
his reputation
but the significance of this is much greater in a case where the defendant
asserts the truth of the libel and refuses
any retraction or apology than in a
case where the defendant acknowledges the falsity of what was published and
publicly expresses
regret that the libelous took place.---“
On
exemplary damages it was stated in the same case at page 55 as follows:-
“A summary of the existing English law on exemplary damages in actions
for defamation, accepted by the Court of Appeal in Riches
V/S News Group
Newspaper Ltd (1985) 2 All ER 845 at 850, --- as concise, correct and
comprehensive, appears in Duncan and Neill on
Defamation (2nd edn,
1983) para 18.27. The passage remains a correct summary of the relevant law.
So far as relevant to this case, -----, the passage
reads:-
(a) Exemplary damages can only be awarded if the plaintiff proves that the defendant when he made the publication knew that he was committing a tort or was reckless whether his action was tortious or not, and decided to publish because the prospects of material advantage outweighed the prospects of material loss. What is necessary is that the tortious act must be done with guilty knowledge for the motive that the chances of economic advantage outweigh the chances of economic or perhaps physical penalty. (b) The mere fact that a libel is committed in the course of a business carried on for profit, for example the business of a newspaper publisher, is not by itself sufficient to justify an award of exemplary damages.
(c) If the case is one where exemplary damages can be awarded the court or jury should consider whether the sum which it proposes to award by way of compensatory damages is sufficient not only for the purposes of compensating the plaintiff but also for the purpose of punishing the defendant. It is only if the sum proposed by way of compensatory damages (which may include an element of aggravated damages) is insufficient that the court or jury should add to it enough to bring it up to a sum sufficient as punishment”.
(d) The sum awarded as damages should be a single sum which will include, where appropriate, any elements of aggravated or exemplary damages---
(e) A jury should be warned of a danger of an excessive award
(f) The means of the parties, though irrelevant to the issue of compensatory damages, can be taken into account in awarding exemplary damages.”
The plaintiff’s Counsel
also referred to the Kenyan case of Machira V/S Mwangi (2001) EA 110 wherein
Mulwa J. stated at page 113:-
“A person who considers himself defamed can bring an action against the person who authorized the defamatory material or caused it to be published. He can claim damages for injury to his reputation and for the hurt to his feelings. These are compensatory damages and are termed damages at large. “See the English case Cassel and Co. Ltd V/S Broone and Another (1972) 1 All ER 801 where the Judge observes: ‘The whole process of assessing damages where they are ‘at large’ is essentially a matter of impression and not addition.’
The awarding of damages to the plaintiff is for the purposes of vindicating him to the public for the wrong done to him.”
The learned judge went on to quote part of the portion already herein
above quoted from the case of John V/S MGN Ltd (supra)
In his submission Counsel for the Defendants referred to the case of
Roakes V/S Barnard (1964) AC 1129 wherein the House of Lords held
that:-
“apart from any statutory provision, exemplary damages may only be awarded where there is oppressive, arbitrary or unconstitutional action by servants of the Government or where the defendants conduct was calculated to procure him some benefit, not necessarily financial at the expense of the plaintiff.”
The above case was in the Kenya case of Obonyo and Another V/S
Municipal Council of Kisumu (1971) EA 91 accepted by Spry V.P as
authoritatively setting out the law as to exemplary damages in tort. And at
page 96 the learned Judge stated:-
“---- It is well established that when damages are at large and a court
is making a general award, it may take into account
factors such as malice or
arrogance on the part of the defendant, and this is regarded as humiliation or
distress. Damages enhanced
on account of such aggravation are regarded as still
being essentially compensatory in nature. On the other hand, exemplary damages
are completely outside the field of compensation and although the benefit of
them goes to the person who was wronged, their object
is entirely
punitive”
In his submissions Counsel for the Plaintiff argued that,
in the circumstances of this case, the Plaintiff is entitled to both
compensatory
and exemplary damages. He suggested that, considering the gravity
of the defamation, the extent of the publication and the comparative
awards in
similar cases, the Plaintiff was entitled to an award of Ugshs45,000,000.
Further that the article was maliciously published
for gain and contended that
exemplary damages are thus justified in the sum of Ugshs50 million to punish the
defendants.
On the other hand Counsel for the defendants contended that
the Plaintiff is only entitled to nominal damages if any at all. He relied
on
the authority of Samwiri Lugogobe V/S Hussein Lukaga (1980) HCB 18 where in
Allen J. held that in a defamation case, when considering the quotation of
damages, what matters is the injury done to the plaintiff’s
reputation and
character taking into account his wounded feelings and any insulting or
malicious conduct on the part of the defendant.
In absence of evidence of any
of those factors an award of nominal damages only would be made for injury done
to the plaintiffs
good name.
The offending article stated that the
Plaintiff “ was apparently caught pants down with a Tender Ronnie (an
under age girl)
–” In his evidence the plaintiff stated that having
sexual intercourse with an underage girl is immoral and criminal.
The Concise
Oxford Dictionary (7th Ed.) defines “underage” to mean
“not old enough, esp. not yet of adult status.” Under Section 129(I)
of the
Penal Code Act it is a criminal offence to have unlawful sexual
intercourse with a girl under the age of eighteen years, the maximum
sentence
for which is death. The implication of the article is that the Plaintiff was
caught by the victims mother in the act of
committing a serious criminal offence
of defilement.
The article further stated “--- the good woman threw
a fit and called the police. It was not so quietly settled out of Court
for a
partty the 2m ---” The implication is that the Plaintiff corruptingly
avoided prosecution by bribing the police and paying
for the silence of the
complainant. The alleged plaintiffs corrupt conduct in the article also amounts
to an offence under Sections
2(b) and 6 of the Prevention of Corruption Act
punishable by imprisonment for a term not exceeding ten years or fine not
exceeding
three hundred currency points or both. Such criminal implications
show the gravity of the defamatory article.
With regard to the extent of
the publication Counsel for the Plaintiff submitted that the article was
published in a leading national
newspaper with wide circulation and particularly
in a popular column entitled “Have you heard”. Exhibit P3 shows
that
before the introduction of the “Have you hear” Column for the
July- December 1998 period the average daily sales of the
New Vision was 31,704
copies and after the introduction of the column the average daily sale of the
paper was 33,472 for the period
January – June 1999. The above evidence
shows that there was increase in the sales following the introduction of the
“Have
You Heard” column. The Plaintiff did not produce any evidence
to show the circulation of the New Vision paper, particularly
there is no
evidence to show the circulation of the paper on 30th March so as to
show the article’s effect to the publication. However, it was pleaded in
paragraph 2 of the plaint that the
New Vision is a national daily newspaper
distributed widely throughout Uganda and posted on the internet. Paragraph 2
above was
admitted by the defendants in paragraph 2 of their written statement
of defence. It is trite that each party is bound by his or
her pleadings. I
therefore agreed with the Plaintiff’s Counsel that the fact of wide
circulation is conceded by the defendants.
In David Etuket & Anor
V/S The New Vision Printing and Publishing Corporation H.C.C. S. No. 86 of
1996 (unreported) it was held:
“In order to prove the reduction of reputation or esteem, the plaintiff must adduce evidence from either his or her colleagues or from any member of the society who knew the plaintiff before the publication of the statement complained of and who read the article. The court can then judge as to how the right thinking members of society regarded the plaintiff following the publication of the article. The plaintiff’s evidence alone cannot prove that important element of defamation which is also so crucial in the determination of quantum of the general damages”
Sir John Spray while dealing with the law governing the assessment of
damages for defamation in his book Civil Law of Defamation in
East Africa stated
at paragraph 118 pages 45-46 thus:-
“The status of the person to whom the defamatory statement is published may also be relevant. Thus publication to a person’s employer, especially of an allegation of dishonesty is regarded as particularly serious, since it might lead to dismissal or prosecution. The fact that the person to whom the statement is published is in position to dismiss it out of hand or even to check its accuracy is not ground for awarding nominal damages, indeed if a libel is sufficiently outrageous, it may be that no one in the world will believe it, but that is no reason for depriving the victim of the appropriate damages.”
In the defamatory article the plaintiff is described as
“UTL’s Peter Kaggwa.” It is a fact that the Plaintiff was
at
all material time an employee of Uganda Telecom Ltd (UTL) as an Advertising and
Promotions Coordinator. The Plaintiff testified
that as part of his duties he
was the Coordinator of his employers sponsorship of the Kampala Kids Link a
league which comprised
of underage children. That the article was not taken
lightly by his superiors at work. For example the plaintiff testified that
he
was directed by the Human Resource Manager to communicate his explanation on the
article to his co-staff numbering about six hundred.
PW1, the Plaintiff’s
co-staff stated that he had received an email in that regard. However, no such
email was exhibited in
Court. It is also the plaintiff’s testimony that
the Human Resource Manager appreciated the state the Plaintiff was in following
the publication. The Plaintiff also testified that the Company Secretary and
the Commercial Director Mobile Division of UTL contacted
him about the article.
That the Company Secretary advised him to file all his correspondences about the
article with the Resource
Department. I am however, of the view that this
advice must have been intended to safeguard the Plaintiff against any
eventuality.
In cross-examination the Plaintiff admitted that he was not
subjected to any disciplinary proceedings by his employer, that he was
still
holding the same job, so his employment status was not effected,. In fact he
was voted one of the best employees of his department
in December 2002, the
exact year of the publication.
Francis David Obela (PW1) testified that he had no reasons to doubt
anything published in the New Vision. That he believed the article
and has
since tried to distance himself from the Plaintiff. However, the witness
contradicted his belief in the New Vision when
he stated in cross- examination
that he did no believe in the apology carried in the same paper. One wonders
whether the witness
was not in his evidence in chief only exaggerating his
reaction to the article.
The plaintiff testified that his mother,
Esther Byarugaba (PW2), was devasted by the article and blamed him for the
immoral act
portrayed by the article. PW2 stated that when she read the article
she was annoyed and cried due to the damage by the Plaintiff’s
conduct to
her entire family. That she believed the story as it was carried by her
favourite newspaper. However, when she was cross-examined
about the effect of
the apology on her, her reaction was that she had already believed the
Plaintiff’s explanation that he
had not done what had been reported. The
plaintiff’s mother believed in he Plaintiff’s innocence even before
the apology,
she believed the plaintiff’s explanation.
The
Plaintiff further testified that he received several calls from friends and
relatives about the article. That he also received
emails, though none was
exhibited in court. However it is his testimony that despite the publication he
could still be called upon
to chair wedding meetings which shows that his
friends still regarded him highly.
The Plaintiff was at the time of the
publication about 28 years old. He was and is still single. He complained that
his chances
of wedding were affected by the article. But the Plaintiff did not
produce any evidence to show that he had had any girl friend
or fiancé
who had deserted him as a result of the article. He admitted that he was
neither prosecuted nor investigated as
a result of the publication.
With
regard to the claim for exemplary damages, the Plaintiff’s Counsel invited
Court to consider the evidence of the defence’s
sole witness Robert
Kabushega where he testified that the defendants after the publication carried
out investigations and found that
the story was untrue. Counsel argued that as
the leading National Newspaper the defendants should have carried out their
investigation
before and not after the publication of the article. I was
referred to John V/S MGN Ltd (Supra), wherein their Lordships at page 36
stated thus:-
“ On the facts the defendants total failure to check the story clearly
contributed reckless with the result that the Judge was
right to refer to the
issue of exemplary damages to the jury”
Counsel submitted that the
Defendants failure to investigate the story before its publication justified an
award of exemplary damages.
In my view it is only prudent that Newspapers
should establish the truthfulness or justification of any story before its
publication.
On the issue as to whether there was a calculation by the
Defendant’s that the prospects of material advantage outweighed the
prospects of material loss the plaintiff’s Counsel submitted that this can
be evidenced by the prominence with which the article
was placed in the
newspaper. He contended that the article was extremely prominent being at the
very top of the “Have You
Heard” column and further that the
Defendant is in the business of publication of news for gain. Exhibit P1, the
pull out of
the paper from the Newspaper in which the article was published,
shows that it was at page 13. It was thus not one of the lead stories
of the
day. As I have already indicated herein, there was a general increase in sales
following the introduction of the “Have
You Heard” column but the
Plaintiff did to produce any evidence to show the probable effect of the article
to the sales of
the day as compared to the usual sales.
It was among
the agreed facts that the article was false and undisputed that having so
established, the defendants published an apology
in the “Have you
Heard” column of the 6th of April 2002. The defamatory article
was published on 30th March 2002 and the apology run in the next
issue of the same “Have you Heard” column of 6th April
2002. I find this to have been the first most appropriate opportunity. The
apology must have been intended to put right the
impression the defamatory
article had made on the people who had read the article. An apology should not
have the effect of opening
old wounds nor should it have the effect of
aggravating the damage and it should avoid the readers of the apology who had
not read
the defamatory article becoming fully aware of the contents of the
article being apologized for. An apology for the defamatory statement
by the
defendant may mitigate damages while its absence may aggravate them. The
apologetic conduct of the defendants is further
exhibited by the fact that they
willingly held discussions and communications with the Plaintiff’s Counsel
aimed towards an
amicable settlement of the Plaintiff’s
claim.
The Plaintiff’s Counsel has drawn my attention to the
award in the Kenyan cases of Marcharia V/S Mwangi (supra) where the
Plaintiff, an Advocate, was awarded KShs8,000,000/= (equivalent to Ugshs.184
million) as compensatory damages
for having been depicted as dishonest and
Biwot V/S Clays (2000) 2 EA 334 where a total of KShs30million
(equivalent to Ugshs300,000million) was awarded for both compensatory and
aggravated damages to
a politician for depicting him a murderer and as corrupt.
On the local scene I have come across Sarah Kanabo V/S Ngabo
Newspaper (1994) VI KALR 169 where the Plaintiff a businesswoman was
depicted a murder and the defendant sought to justify the allegations but failed
and the
plaintiff was awarded Shs2,250,000/= as general damages. In Jeffrey
Thompson & Anor V/S Teddy Cheeye & Anor (1995) IV KALR 158 where the
first Plaintiff the Managing Director of the second Plaintiff Company was
alleged by the defendants to have bribed the
World Bank Officials and producing
false invoices from competitors to gain business. The defendants failed to
prove the truth of
the allegations. The first Plaintiff was awarded Shs6
million general damages and Shs.2 million punitive damages. In Richard
Kaijuka V/S Teddy Seezi Cheeye & Others (1995) 11 KALR 110 the Plaintiff
was depicted a criminal, unfit to be a minister, corrupt and abusing his office.
He was awarded Ushs15million as general
and aggravated damages. The above
Ugandan judgments are of 1994/1995. The financial conditions have since changed
greatly.
Having viewed the principles of law governing the quantum of
damages in defamation cases, taking into account the facts before this
court and
guided by earlier court awards in more or less similar circumstances I am
inclined to award the Plaintiff Ugshs17million
(seventeen million shillings)
compensatory general damages with interest at the Court rate from the date of
this judgment until payment
in full. I decline to make an award for aggravated
damages. The Plaintiff is awarded costs of this suit to be taxed. I so
order.
Lameck N. Mukasa
Judge
17th February, 2006
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