THE

COPPERBELT UNIVERSITY
SCHOOL OF HUMANITIES AND SOCIAL
SCIENCES

NAME: EDGAR HUSSEIN CHIINGU

STUDENT NO: 21124567
PROGRAM: BACHELORS DEGREE IN LAW
TASK: ASSIGNMENT THREE
COURSE: LAW OF TORTS
CODE: LS 120
LECTURE: MR. HENRY AONGOLA
DUE DATE: 21st JULY 2022

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QUESTION
Isaac Phiri, a well-known diva, who is a very famous patron of little Eden was drinking in the
company of friends, Rachel Nakawala, Maureen Dugude and Moustapha Patel, Lillian Nyakaseya
who was admiring Patel decided to call Patel aside for a private discussion but Patel who was
uncomfortable only removed a plastic toy gun from his pocket and pointed it at Nyakaseya telling
him to mind his own business.

Dennis Zibazako who is a friend to Nakaseya decided to call Patel Chidangwaleza later on, there
was a scuffle that ensued that led the two ladies in the company of Patel to be locked up by
Xylophone Mulenga who rebuked them that there were not supposed to be falling for useless
Indians. However, when the bars where about to close at midnight he decided to release the two
ladies stating that he was only protecting them from squabbles.

Discuss the civil liabilities of the parties.

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The following legal issues arise from the given set of facts:

(i) Whether or not Patel’s act of pointing a toy gun at Lillian Nyakaseya amounts to an
assault;
(ii) Whether or not Dennis Zibazako has defamed Patel by calling him a “Chidangwaleza;”
(iii) Whether or not Xylophone Mulenga can be held liable for false imprisonment when he
locked up the two ladies in the company of Patel;
(iv) Whether or not they are remedies and defenses available for each party.

With regards to the first legal issue, Halsbury’s law of England1 points out that an assault is an
intended threat of violence against a person. Notice should be made that an assault can give rise to
both civil and criminal liability. In Zambia the relevant law on assault is the Penal Code Cap 87 of
the Laws of Zambia2. From the above provision of the law, the ingredients that have to be proved
in respect of assault are: intention; reasonable fear of the apprehension of imminent harm; and
lastly the conduct of the defendant. It ought to be considered if it was intended by Patel to cause
Lillian to apprehend harm to her person despite the weapon in question being a toy gun. Guidance
is sought from the case of The People v Philip Kangwa3 were the respondent was held liable for
assault and the fact that he used a toy pistol to assault the aggrieved proved immaterial in
determining his liability. This ingredient requires that there is intent to cause an apprehension of
unlawful force to be used upon their person.

The second ingredient is that there has to be reasonable fear on the part of the claimant that
unlawful force is imminent to their person. Further guidance is sought from the case of Blake v
Barnard4 where the court held that pointing a pistol at a person whether is it loaded or not in an
event that it causes him to reasonably fear the imminent application of unlawful force can lead to
an assault.

Lastly, consideration is given to the conduct of the defendant. Conduct in this context amounts to
something which threatens the use of unlawful force. Assault requires a deliberate act and thus

1
Halsbury, H. S. G., & Mackay, C. J. P. H. (2008). Halsbury's laws of England. (Halsbury's Laws of England.)
London: LexisNexis
2
Section 67
3
[2017] ZMHC 481
4
[1840] E.R. 985

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Patel’s act of pointing a toy guy at Lillian Nyakaseya fulfils the last and final ingredient of the an
assault thus making him liable.

Regarding the second legal issue, there is a need first to consider the ingredients of the tort of
defamation and note that the law of defamation in Zambia is regulated by the Defamation Act Cap
68 of the Laws of Zambia. The first ingredient is that the words must be defamatory as seen in
Slim v Stretch5; Secondly the words needs to be made about the plaintiff as seen in Mwiinga v
The Times of Zambia Limited6 and lastly the statement needs to be published or communicated
to a third party as seen in Slipper v BBC7. With the ingredients having been considered a claim
under defamation would fail as the words ‘Chidangwaleza’ only amount to mere vulgar abuse and
are not defamatory. The aforementioned position in the law has its authority from the case of
Thorley v Kerry8 in which Manfield CJ stated, in the holding of the case that ‘For mere general
abuse spoken no action lies.’ Further guidance is sought from Niels Jespersen v Sinkala9 where
the Supreme Court affirmed that in terms of the law of defamation, no action lies for general abuse.
The same can be said of Xylophone Mulenga rebuke calling referring to Patel as “useless Indians.”

Regarding the third legal issue, the first ingredient of the tort of false imprisonment is that there
must be restraint. The restraint must be total and if there is a reasonable means of escape then the
restraint cannot amount to false imprisonment as seen in Bird v Jones10. The second ingredient is
that the detention was without consent as seen in Hepburn v CC Thames Valley11 and lastly the
detention must be unlawful meaning erroneous or wrong. A successful claim under false
imprisonment can be made against Xylophone Mulenga as he restrained and totally deprived the
two ladies and Patel from bodily movement. To further elucidate the aforementioned position,
guidance from Sikombe v Access Bank Zambia Limited12 were the Supreme Court held that the
test for false imprisonment is the total deprivation of a person's liberty for however short a period
by the use or threat of force or by confinement.

5
[1936] 2 All ER 1237
6
[1989] ZR 177
7
[1991] 1 AIl ER 165
8
[1812] 128 Eng. Rep. 367
9
[2001] ZMSC 85
10
[1845] 7 QB 742
11
[2002] All ER (D) 214
12
[2016] ZMSC 178

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The fourth legal issue will consider the possible defences available to the parties. The Possible
defenses available for the defendant in a suit for assault include lawful authority, consent,
necessity, parental authority and self-defence. None of which are available to Patel as can been
seen from the facts of the case. Lastly the defence of lawful arrest can work in favour of Xylophone
Mulenga as it is not only the police that carry out a lawful arrest. Private citizens can carry out a
citizen’s arrest as-well; Xylophone decided to restrain the two ladies and Patel for the purposes of
protecting them as there was a scuffle. In that sense the defence of lawful arrest is available to
Xylophone Mulenga.

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BIBLIOGRAPHY

STATUTES

The Penal Code Cap 87 of the Laws of Zambia

The Defamation Act Cap 68 of the Laws of Zambia

CASES

Bird v Jones [1845] 7 QB 742

Blake v Barnard [1840] E.R. 985

Hepburn v CC Thames Valley [2002] All ER (D) 214

Mwiinga v The Times of Zambia Limited [1989] ZR 177

Niels Jespersen v Sinkala [2001] ZMSC 85

Sikombe v Access Bank Zambia Limited [2016] ZMSC 178

Slim v Stretch 1936] 2 All ER 1237

Slipper v BBC [1991] 1 AIl ER 165

The People v Philip Kangwa [2017] ZMHC 481

Thorley v Kerry [1812] 128 Eng. Rep. 367

BOOKS

Halsbury, H. S. G., & Mackay, . C. J. P. H. (2008). Halsbury's laws of England. (Halsbury's

Laws of England.) London: LexisNexis