Prasad v Khelawan [2011] FJHC 123; HBC325.2003 (1 March 2011)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

Action No. HBC 325 of 2003

BETWEEN:

SUSHILA DEVI PRASAD daughter of Thakur Prasad of Koronubu, Ba, Fiji, Assistant Head Teacher
Plaintiff

AND:

RAM KHELAWAN son of Ram Lakhan and KESHWAN son of Permal, both of Koronubu, Ba, Fiji, Cultivators in their personal capacities and as the PRESIDENT AND MANAGER, respectively of KORONUBU INDIAN SCHOOL, School established and registered under the Education Act Registration No. 1061
1st Defendants

AND

GANGA RAM son of Jiwan and GOVIND SAMI father's name not known to the Plaintiff both of Koronubu Ba, Fiji, Cultivators as the TRUSTEES OF KORONUBU INDIAN SCHOOL, School established and registered under the Education Act Registration No. 1061
2nd Defendants

Dates of trial; 16th June 2010 and 29th June 2010.

Appearance;

For Plaintiff; Mr. V. M. Mishra.

For 1st named 1st Defendant; in person.

For 2nd named 1st Defendant; in person.

For 1st named 2nd Defendants; no appearance.

For 2ndnamed 2nd Defendants; no appearance.

Date of Judgment; 1st March 2011.

JUDGMENT

1. This action was filed by the Plaintiff against the 1st named and 2nd named 1st Defendants and against the 1st named and 2nd named 2nd Defendants, altogether 4 Defendants. A statement of Defence was filed by G.P.Shankar & Company for the Defendants on 24/10/2003.
   
2. Though a notice requesting a Pre-trial Conference under Order 34 Rule 2 had been filed by the Plaintiff there are no minutes of a Pre trial Conference.
   
3. When this matter came up for trial on 16/6/2010 the 1st named & 2nd named 1st Defendants (Ram Khelawan and "keshwan" respectively) appeared in person and the identities they carried were noted. This Court observed that the Solicitor G.P.Shankar had expired some years ago and as such the 1st named & 2nd named 1st Defendants were thereafter appearing in person.
   
4. Though advised by Court to retain Counsel the 1st Defendants opted to be self represented.
   
5. There was no appearance for the 2nd Defendants, and as such the court proceeded under Order 35 Rule 1(2) against them.
   

Evidence;

6. Including the Plaintiff, 4 witnesses gave evidence for the Plaintiff leading in evidence P1 to P8. The 2nd named 1st Defendant only gave evidence for the defence and marked D1, D2 in evidence.
   
7. The Plaintiff gave evidence, and, stated that on the 26/1/2003 when she was the Assistant Head Teacher at Koronubu High School she received transfer orders and was advised by the Head teacher Mr. Prem Chand to go to the Ministry of Education in Ba. She met Mr. Driu and Mr. Veitala at the Ministry of Education office at Ba. Mr. Veitala who was the Head of the Western Division in the Ministry of Education has re-posted the Plaintiff then and there and the Plaintiff went back to school with a transfer letter back to Koronubu High School.
   
8. When she reported back to school with the retransfer letter from the Ministry of Education on the 26/1/2003, there was a staff meeting in session and she had attended that meeting (half way). According to her the two Defendants (1st & 2nd named 1st Defendants) and 10 others were in attendance at the meeting. She said she was given a letter which was marked P1. The letter is dated 28/1/2003. Plaintiff stated that though it stated "even date" it was actually given to her on the 26/1/2003. P1 set out certain allegations against the Plaintiff. The Plaintiff has subsequently replied to those allegations by a letter marked as P2. She denied the allegations in P1.
   
9. The Plaintiff stated that she was not present when the utterances were said to have been made defamatory of her. The Plaintiff read and referred to the allegations made against her in P1 and she was Cross examined by the 1st named & 2nd named 1st Defendants. The Plaintiff stated she heard the 2nd named 1st Defendant (Keshwan) speak on the radio in the "Navatarang" Radio program on the 28/1/2003. It was before she could reply to the allegations. The transcript of the radio program was marked as P3.
   
10. She gave the names of 5 friends who rang her after the radio program. She stated that it affected her health, she was given valium by a doctor, that she could not go out for 4, 5 months because "friends asked her" and that after 6 months she decided to take legal action. She marked P1 – P8 in her evidence. P8 is the school constitution. Documents 2,3,4&5 of the Plaintiff's list of documents were marked as P4,P5,P6 & P7.
    
11. P4-P7 are notices sent to "The trustees (Mr. Govind Sami)", "The Trustees (Mr. Ganga Ram)", "Mr. Keshwan s/o Permal the Manager Koronubu Indian school" and to the "President and the Management Committee of Koronubu school". All the notices are of the same date of 28/6/2003 and addressed to the Koronubu Indian School Koronubu Ba, Fiji, and sent by the Plaintiffs Solicitors. P7 is addressed to the "President and the Management Committee" and as the 1st named 1st Defendant is identified as the President of the said school Management Committee, P7 is a communication to the 1st named 1st Defendant though not addressed to him by name.
    
12. P4-P7 set out the allegations made against the Plaintiff on or about the 28th January 2003.
    
13. At paragraph 4 of the statement of claim the Plaintiff itemized the particulars of the alleged defamatory content thus;
    

" 4. That on or about the 28th January 2003 at a meeting in Ba, Fiji and in presence of the Senior Education Officer, BafTavua, Paula T. Mara and other staff of the Education Department, Ba, the First Defendants spoke and published the following defamatory words of and concerning the Plaintiff:

a) You are always against the School Management and there are times you swear and branded them as Hindus, Muslims, Gujis etc. within this 22 years of service.

b) Parents complain about your dressing style as being very concerning at times.

c) Inflicting corporal punishment in Class since a case way back in September,2000 you were sited as giving $50.00 to a parent to settle the matter.

d) You have been involved in forming groups amongst teachers.

e) When you were appointed to act as Head Teacher, your husband used to make personal calls from the school telephone and that he would also use the School photocopier.

f) Being the longest serving staff at school you have been heavily involved with village politics as your family is a close friend of Mr Satendra Singh a current MP.

g) On a day last year you requested 1 day sick leave from the Head Teacher. However, you were seen rolling rotis on the same day at a wedding ceremony."

14. In evidence, it was stated by the Plaintiff that the particular meeting was in fact held on the 26th of January 2003. Seven (7) allegations were itemized.
    
15. Document 6 & 7 of the Plaintiff's list of documents were photocopies which were not clear and as such, they were not marked and received in evidence.
    
16. In answer to Counsel the Plaintiff stated that the radio program was broadcast on 28/1/2003 even before she could answer the allegations. She further stated that, radio announcements were never made when enquiries were made against teachers before.
    
17. Under cross examination, she stated that she did not sue one "Segran" (a trustee of the school at that time) because she wanted to sue the person who made the allegations. She indicated that she was not proceeding against the trustees the 2nd Defendants. In fact it transpired in evidence (of the 3rd witness) that the 1st named 2nd Defendant Ganga Ram has since expired.
    
18. Under cross examination she was further asked whether she was making roti at a wedding on Friday (at Ram Singh's sons wedding) and she stated that she did not attend the wedding and she did not roll the roti, but stated she was on sick leave that day.
    
19. On the 2nd date of trial the Defendants sought an adjournment to retain counsel and the Plaintiff moved for cost in $5000/- as the Plaintiff had come from overseas for the case. On the Plaintiff asking for cost the Defendants opted to continue to represent themselves without a lawyer.
    
20. The 2nd witness to give evidence for the Plaintiff was Mr. Prem Chand. He was the Head teacher during the relevant time in the Koronubu School and the Plaintiff's immediate superior.
    
21. In the Plaintiffs evidence it was clear that the Plaintiff was not present when the alleged slander was made of her at the meeting in school. As such she had to establish that evidence through other witnesses. The 4th witness was her husband and he too was not present at the particular school meeting. Therefore evidence of any slander of the Plaintiff at the meeting on 26th January 2003 had to be established through the 2 & 3rd witnesses for the Plaintiff.
    
22. The Plaintiff had heard the radio program and the transcript was marked as P3. However P3 does not make reference to the allegations itemized in P4-P7, nor in paragraph 4 of the statement of claim set out above.
    
23. The 2nd witness for the Plaintiff, stated very clearly that the 1st named 1st Defendant Mr. Ram Khelawan stated that the Plaintiff was "rolling roti in a wedding during school hours". This evidence was with reference to the alleged utterance set out in paragraph 4(g) of the statement of claim.
    
24. Apart from the said statement, the other allegations, though stated to be true by the 2nd named 1st Defendant under Cross examination, there was no admission or evidence elicited that, those other allegations in paragraph 4 (a) to 4(h) were verbally uttered by the 1st named & 2nd named 1st Defendant or any other particular defendant.
    
25. The 1st named 1st Defendant (Khelawan) did not give evidence in this case. According to the 2nd named 1st Defendant (Keshwan) it was the 1st named 1st Defendant (Khelawan) who had seen the Plaintiff rolling roti at the particular wedding. The 1st named 1st Defendant did not give evidence to verify this nor was any other evidence lead to prove the truth of that allegation. No evidence was led to prove the truth of the other allegations set out in paragraph 4 (a) to 4(h) of the statement of claim, and said to have been uttered by the Defendants. It is for the Defendants to prove that those allegations are true if they are to succeed in their defence of justification.
    
26. The Plaintiff in evidence and under Cross examination denied attending the wedding of Mr. Ram Singh's son. She stated she did not roll the roti at that wedding, and that she was on sick leave.
    
27. As such I find that the Plaintiff has proved on a balance of probability, that the 1st named 1st Defendant (Khelawan) has made a false utterance as set out in paragraph 4(g) of the statement of claim. The said utterance taken in the context of the Plaintiff being a school teacher, and having being uttered in the presence of those who knew her as a school teacher, is calculated to disparage the Plaintiff in her profession and calling as a School Teacher.
    
28. As such I find that the natural and ordinary meaning of the words in the said utterance, amounts to; "That the Plaintiff took sick leave from work when not being sick.", as pleaded in paragraph 6(g) of the statement of claim of the Plaintiff.
    
29. Also by innuendo I find that the said utterance is meant and understood to mean; "That the Plaintiff was a person not suitable to hold a position as a civil servant and/or a school teacher and/or an assistant head teacher of a school" as pleaded in paragraph 7(a) of the statement of claim.
    
30. The said utterance imputes that she has neglected her students and left the school to attend to rolling roti at a wedding. It also imputes that she has done so without taking proper leave. Both neglect of her students and absence without leave are serious allegations and imputes the lack of honesty, competence and misconduct in that office.
    
31. Therefore the said utterance is a slander actionable per se and defamatory.
    
32. Therefore there is no precondition for the Plaintiff to prove actual material loss or special damages for the said slanderous statement to be actionable, (par 19 page 12 – Halsbury's Laws of England. 4th Ed.Vol 28), and the Plaintiff is therefore entitled to general damages if any.
    

Defence of Justification;

33. The 1st named 1st Defendant failed to prove that the said allegation was true in fact. The 1st named 1st Defendant also failed to prove that the Plaintiff was not on leave on the said day of the alleged wedding.
    
34. Though it was asserted by the Defendants that they repeated the allegations made by the parents, the Defendants failed to prove that. There was no evidence of any parent having made any such allegations. Though the 2nd named 1stDefendant gave evidence, the 1st named 1st Defendant failed to give evidence to prove that the Plaintiff was "rolling roti at a wedding", which according to the 2nd named 1st Defendant, the 1st named 1st Defendant has stated he had seen.
    
35. The 2nd named 1st Defendant in the radio broadcast script P3 makes no reference to this allegation and states that the only reason they are asking for the transfer is on the basis that the Plaintiff has been at the said school for a period of 22 years.
    
36. Therefore on a balance of probability the Defendants have failed to prove that allegation to be true.
    
37. Therefore that allegation remains a falsehood, and the defence of justification (truth ) fails.
    

Defence of fair Comment;

38. The defence of fair comment does not arise in respect of this allegation in that it is not a comment but a statement of what is alleged to have happened to wit; that the Plaintiff was "rolling roti at a wedding".
    

Defence of qualified privilege;

39. However, the Court needs to look in to the defence of qualified privilege as well. The 1st named 1st Defendant is the President of the School Committee.
    

However, the Plaintiff is not the employee of the 1st named 1st Defendant(Khelawan) in his capacity as President of the school Committee. The Plaintiff is not the employee of the 2nd named 1st Defendant (Keshwan) the "Manager" of the School either.

40. Plaintiff's employer is the Education Department in the Civil (Public) Service.
    
41. It was admitted, by the 3rd Defendant that no notice was received of the meeting as per the constitution of the school. By the date the meeting was held, (26/1/2003) the Plaintiff had already received transfer orders and the purpose of such a meeting would not be to obtain the transfer of the Plaintiff. It is not an utterance made at a meeting of a Committee under the constitution of the school (P8), but an ad hoc meeting to either oppose a possible cancellation of the transfer or with the purpose of adding slander to the Plaintiff's transfer which would be an act with malice.
    
42. The particular meeting was not attended by any complaining parents nor was it a duly convened meeting to consider any allegations or to consider any disciplinary action.
    
43. At the subsequent radio program, the 2nd named 1st Defendant states (P3) that he would go to the extent of locking the gate to prevent the Plaintiff entering the school. All the Defendants needed to do were to prove these allegations at a proper inquiry by the Ministry of Education, and, not only a transfer but more could have befallen the Plaintiff. Instead the Defendants appear to have gone on a campaign to the extent of going on radio to harm the Plaintiff's reputation and employment. Therefore the meeting of the 26th January 2003 or the Radio broadcast of the 28th January 2003 does not attract qualified privilege.
    
44. Therefore the defence of qualified privilege fails.
    
45. The transcript of the radio program is indicative of the malice by the 2nd named 1st Defendant against the Plaintiff. Though it does not disclose words per se defamatory of the Plaintiff, the innuendo is that the Plaintiff is considered as a person who ought not to be permitted entry to a school. In question and answer in the script in P3 at the last page;
    

"SATYA; If Ministry will not transfer then?

MANAGER; We were thinking of locking the gate but then we changed our mind.

SATYA; Please don't do anything like that, because in my point of view problems can be solved by sitting and talking by the committee members and the management rather then dragging the problem too high. So you want Ministry to look upon this matters

MANAGER; Yes.

SATYA; Because she has been there 22 years?

MANAGER; Yes very long service for her.

SATYA; 1 year more will not do for her?

MANAGER; No."

(the "MANAGER" is the 2nd named 1st Defendant and "SATYA" is the radio Announcer)

46. The script (P3) did not carry any of the allegations in P4-P7.
    
47. Under section 3 of the Defamation Act of Fiji (Cap 34) a radio broadcast is defined as a libel and as such if defamatory it is per se actionable, and the law of libel applies.
    
48. Section 3 of the Defamation Act;
    

"3. For the purposes of the law of defamation and of this Ahe broadcastinasting of words, shall be treated as publication in permanent form and, if defamatory, governed by the law ofl."

1. In Section 2 of the Defamation Act the definition of "Broadcasting" is set out thus;
   

" "broadcast" or "broadcasting" means publication for general reception, as part of any programme or service provided through a broadcasting station within Fiji, by means of telecommunication, within the meaning of the Telecommunications Act; and, where words broadcast by means of telecommunication are simultaneously transmitted by telegraph, as defined by the Telecommunications Act, in accordance with a licence granted under such Act, the provisions of this Act shall apply as if the transmission were broadcast within the definition hereinbefore contained;

(Cap. 173)

"broadcasting station" means any station operated by the Government or in respect of which a licence granted by the telecommunication authority under the Telecommunications Act, is in force, being a licence which (by whatever form of words) authorised the use of the station for the purpose of providing broadcasting services for general reception;"

50. However the plaintiff has not pleaded the script P3 and has not set out the particulars and any content alleged to be defamatory therein and no cause of action is pleaded arising from the said radio broadcast. The allegations in paragraph 4(a) to 4(g) are not carried in the radio broadcast as per the script P3. As such P3 and the Radio broadcast is only at the most corroborative evidence or evidence of aggravating circumstances.
    
51. However the plaintiff has not sought aggravating damages or exemplary damages.
    
52. The Plaintiff's witnesses were not able to identify who uttered the other allegations and as such the Court cannot come to a finding of slander and defamation in respect of the other allegations set out in Paragraph 4(a) to 4(h) of the statement of claim of the Plaintiff. There was no evidence led or authority submitted to prove vicarious liability.
    
53. The letter P1 is a letter from the Plaintiff's employer to the Plaintiff, and attracts qualified privilege. In any event the Plaintiff is not suing the author of P1.
    

Damages;

54. The Plaintiff is a Teacher with a service of 22 years! Every year a teacher in a school teaches a different set of students. In ancient times students live in with their "Guru" (Teacher) for many years. No amount of years spent with a Teacher was thought to be too much. No payment was considered as able to erase the sacred debt a student owed his Teacher. Since time immemorial teachers have earned the deepest respect and regard of civilized societies by their sheer dedication to the betterment of the human race.
    
55. Unlike most animals the human child cannot be an adult in a year or two. It takes 18 years for a human child to be an adult. There is much that he has to be capable of before he fends for himself. Much of that he has to learn outside his home. A school is the second womb outside of the mother where children are nurtured and educated to be productive good citizens. Teachers are the facilitators of that all important process.
    
56. The dedication required of a Teacher cannot be compensated by a wage alone. Only respect will beget it. No profession offers a better opportunity to serve humanity than the teaching profession. The 2nd named 1st Defendant (Keshwan) in his radio broadcast objects to the Plaintiffs 22 year service in the school. 22 years is not too long a period for a Teacher to be of service to a school, unless the Defendants found her an intellectual challenge to their petty authority.
    
57. The Manager does not educate the students nor does the President of the school nor are they qualified to do so. They are neither qualified nor capable of judging the capabilities of a teacher. Theirs is an administrative function to manage the material assets of the school. The Teachers, the students and their education is more important than the ego of the President of the School, the Manager, the School committee or the trustees who are the Defendants in this action. It is not that infrequent to find persons of dubious achievements aspiring to office in School committees for their personal glory, instead of intellectuals of the community.
    
58. There is not an iota of evidence challenging the Plaintiffs 22 year unblemished career as a Teacher. To have served in one school for 22 years is a salutary achievement. The conduct of the Defendants may well have lowered the respect of the students towards the other teachers as well, by which it is the students who are at a loss.
    
59. To insult a Teacher is a most uncivilized act. And the arrogance not to apologize is even worse. Education is not the number of words and calculations learnt but the number of good qualities learnt. One such quality is not to defame another human being. It is a sign of decadence when only the bad and not the good of men are spoken.
    
60. The Plaintiff had an impeccable reputation as a School Teacher having taught in one school for over 22 years. Her students are many.
    
61. The 1st named 1st Defendant (Khelawan) made the defamatory utterance in the presence of the officials of the Ministry of Education and Trustees of the school. He made that false utterance using his capacity as the President of the school Committee.
    
62. The 2nd Witness for the Plaintiff being the Plaintiffs immediate superior spoke of her good reputation as well as his subsequent disbelief of the allegations against the Plaintiff. He was the Plaintiffs new immediate superior (Head Teacher) that year, and the allegations had created a lower opinion of the Plaintiff in the mind of her immediate superior. It is after some years thereafter having observed the Plaintiff that the said witness disbelieved those allegations. By that time the damage is done.
    
63. The 3rd witness for the Plaintiff a trustee of the school too was in dismay by the utterances of the Defendants.
    
64. The damage to the Plaintiffs reputation thereby was no doubt severe. The words were defamatory, they referred to the Plaintiff and they were published( to persons other than the Plaintiff). The damage to the Plaintiffs reputation was foreseeable if not direct. Therefore the Plaintiff has established the elements necessary for an award of general damages.
    
65. I considered the authorities submitted by the Plaintiff in her written submissions, in Fiji Daily Post Company Limited & Ors v. Sakiusa Rabuka and Volau Rabuka, F.C.A Civil Appeal No. ABU 61 of 2005, where an award was made of $40,000/-, and find the general damages claim of $30,000/- sought in this case in the Plaintiffs written submissions as reasonable and fair.
    
66. However as the applicable bank rate was not led in evidence I am not in a position to award interest as per CREMER & OTHER V. GENERAL CARRIERS (1974) 1 ALL ER Page 1, as submitted by the Plaintiffs Counsel. However I award interest at 6% per annum in keeping with other awards for damages.
    
67. The Plaintiffs claim for special damages in $3600/- being traveling expenses from overseas cannot be considered as special damages as there is no evidence that the Plaintiff was compelled to live overseas due to the wrong caused by the Defendants. It is not a foreseeable expense and fails under the category of damages.
    
68. In concluding the Plaintiffs written submissions the Plaintiff did not move for the injunctive relief sought in its statement of claim, and as such this court shall not consider same.
    
69. However this court is inclined to advise the Ministry of Education to accept and attach a copy of this Judgment to the records of the Plaintiff maintained under TPF 9023, if and when requested and furnished by the Plaintiff.
    
70. The Defendants in not apologizing at an early stage has brought upon themselves the costs incurred by the Plaintiff in prosecuting this action. As such I award costs on indemnity basis against the 1st named and 2nd named 1st Defendants in favour of the Plaintiff.
    

Vicarious liability;

71. The meeting at which the defamatory statements were made was not a duly constituted meeting under the school constitution and the liability arising thereof is personal. The Plaintiff too was not keen about pursuing her action against the 2nd Defendants the trustees of the school, going by her evidence. There was no conspiracy proved and I find no cause in fact or Law to come to a finding of vicarious liability.
    

Liability of the 2nd Defendants (Trustees);

72. The Defendants have not pleaded a claim in reconvention(cross claim) in their Statement of Defence filed on behalf of all the Defendants, and as such this Court can proceed to dismiss the action without costs against the deceased1st named 2nd Defendant (Trustee) without substitution in place of the said deceased 1st named 2nd Defendant(Trustee).
    
73. The action against the 1st named (deceased) and 2nd named 2nd Defendants are dismissed without costs, due to absence of evidence against them, and as no application was made and no steps were taken to substitute in place of the deceased 1st named 2nd Defendant.
    

Liability of the 2nd named 1st Defendant (Keshwan);

74. Though there was no evidence to attribute a defamatory utterance to this Defendant this Court cannot ignore the complicity of this Defendant in the wrong in tort done to the Plaintiff, and as such I award costs on indemnity basis against the 2nd named 1st Defendant (Keshwan) in favour of the Plaintiff, and make no award for damages against him.
    

Liability of the 1st named 1st Defendant (Khelawan);

75. Therefore this court finds that the utterance made by the 1st named 1st Defendant Ram Khelawan and referred to in paragraph 4(g) is defamatory, and the Plaintiff is entitled to general damages.
    
76. As arrived at above I award general damages in $30,000/- against the 1st named 1st Defendant (Khelawan) in favour of the Plaintiff, for the wrong in tort of defamation of the Plaintiff, and interest thereon at the rate of 6% per annum from 28/1/2003 till date of this judgment and thereafter on the aggregate sum of this judgment till payment in full.
    
77. I award cost on indemnity basis against the 1st named 1st Defendant (Khelawan) taking in to consideration the fact that this Defendant unduly gave cause to sustain this action for over 10 years without submitting an apology at an early stage knowing well, the defamatory allegation he uttered, to be false.
    

Comment;

78. It is the view of this court that in pleadings it is desirable wherever possible to avoid the usage of naming several Defendants under one Defendant so as to avoid confusion and errors in typing, and especially where their liability could be several. They could be named as 1(A) Defendant, 1(B) Defendant, 1(C) Defendant etc., where necessary.
    

Orders on Judgment;
1. Judgment is herby entered against the 1st named 1st Defendant RAM KHELAWAN, to pay the Plaintiff a sum of $30,000/- together with interest thereon at the rate of 6% per annum from the 28/1/2003 till date of this judgment and thereafter together with the same interest of 6% per annum on the aggregate sum of this judgment till payment in full.

2. Costs awarded on indemnity basis against the 1st named 1st Defendant RAM KHELAWAN and the 2nd name 1st Defendant KESHWAN, in favour of the Plaintiff.

Hon. Justice Yohan Fernando.
PUISNE JUDGE.

High Court of Fiji
At Lautoka
1st March 2011.