Chand v Fiji Times Ltd [2011] FJSC 2; CBV0005.2009 (8 April 2011)

IN THE SUPREME COURT OF FIJI ISLANDS
AT SUVA

CIVIL APPEAL NO. CBV0005 of 2009
(Fiji Court of Appeal No. ABU0035 of 2007)

BETWEEN:

DR GANESH CHAND
Appellant

AND:

1. FIJI TIMES LIMITED
2. MARGARET WISE
Respondent

Coram: The Hon Justice Saleem Marsoof, Judge of Supreme Court
The Hon Justice Sathyaa Hettige, Judge of Supreme Court
The Hon Justice William Calanchini, Judge of Supreme Court
Hearing: Thursday, 31st March 2011, Suva
Counsel: Mr. V. Mishra for the Appellant
Mr. J. Udit with V. Prasad for the 1st Respondent, with the 2nd Respondent absent and unrepresented.

Date of Judgment: Friday 8 April 2011, Suva

JUDGMENT OF THE COURT

1. This is an appeal against the decision of the Court of Appeal (Byrne JA, Hickie JA, and Bruce JA) which affirmed the judgment of the High Court sitting in Lautoka (Philips J) that the action instituted by the Appellant, Dr. Ganesh Chand against the Fiji Times Limited claiming damages for defamation should stand dismissed. The factual background to the case may be summarized as follows:
   

Factual Matrix

2. In May 1999, the Fiji Labour Party led Peoples Coalition was elected into parliament. The Appellant, Dr. Chand, was appointed Minister for National Planning, Local Government, Housing and Environment. His appointment entitled him to State residential accommodation. The Public Service Commission (PSC) allocated the Appellant government quarters at 18 Richards Road, Suva (the premises). The premises was formerly used as offices for the Ministry of Environment, Renovation and maintenance work on the property including the provisions of furniture and other chattels was carried out prior to the Appellant moving in to occupation of the premises in November 1999.
   
3. The Appellant was amongst the group of politicians held hostage following the 19th May 2000 attempted coup. It is also not in dispute that the period of 56 days that the Appellant endured as a hostage was a very traumatic experience for him and his family. He was released on 13th July 2000, and it was an agreed fact at the trial that upon his release, the Appellant went to his family residence in Lautoka to rest and recuperate. It was also an agreed fact that despite the Appellant opting to go to Lautoka upon his release, his possessions remained in the government quarters at 18, Richards Road, Suva on 26th August 2000, which was the date of the publication of an article in The Fiji Times under the heading "Chand faces theft probe" which the Appellant claimed was defamatory.
   
4. The High Court found, and it was not disputed on appeal, that on 1st August 2000, during a routine inspection of the premises, the PSC quarter clerk, Mr. Vilitati Mataitini, who also had with him for service on the Appellant, a notice requiring him to vacate the premises, discovered that the premises had been broken into and a number of items were missing from the premises. Mr. Mataitini reported the break-in to the police. The missing property was reported as belonging to the State. The police opened a file and commenced investigations.
   
5. The article which constituted the subject matter of the action, and the contents of which were alleged to be defamatory of the Appellant, was published on 26 August 2000 in The Fiji Times, a daily newspaper circulating throughout Fiji. The article which was published with the caption "Chand faces theft probe", was the lead story on the front page of the newspaper, and it inter alia stated that the Appellant's Lautoka residence will be subjected to a search.
   
6. It is pertinent to note that the High Court found, and this too was not disputed on appeal, that on the very day the above quoted article was published, but after the newspaper was made available to the public, a search warrant was executed by the police at the Appellant's then place of residence in Lautoka, but the search was fruitless. On 29th August 2000, the Appeallant was interviewed under caution by the police. Charges were never filed due to insufficient evidence against him. In 2001 the Appellant was again elected to the Lautoka Indian Communal Seat with an increased majority from 1999.
   

The Trial and the Appellate Proceedings

7. The action filed by the Appellant against the Respondents seeking damages for defamation and certain other relief, was taken up for trial in the High Court of Lautoka, on 4th September 2006 and the trial was concluded with oral submissions on 18th September 2006.
   
8. At the trial, the Appellant himself, and Subash Verma, the Co-ordinator of the Fiji Labour Party, who had been the Appellant's campaign and constituency manager, testified for the Appellant. On behalf of the 1st Respondent, Russel Douglas Hunter, who had served as the Editor in Chief of the Fiji Times some time prior to the 2000 attempted coup, and could not continue to function in that capacity at times relevant to this case due to the non-renewal of his work permit, testified along with Rajesh Kumar, Assistant Superintendant of Police, Hari Shankar, Director of Office Accommodation of the Public Service Commission, and Vilitati Mataitini, Civil Servant attached to the Public Service Commission, gave evidence.
   
9. It is important to note that in the course of the testimony of Russel Douglas Hunter, it was elicited that both Alan Robinson, who functioned as the Editor in Chief of Fiji Times at the relevant time, and Margaret Wise, who was the reporter who authored the impugned article, and the 2nd Respondent to this case, were no more in Fiji, and could not be called to testify.
   
10. On 13th April 2007, the High Court entered judgment dismissing the action with an order for cost in a sum of $2500.00 in favor of the 1st Respondent, Fiji Times Limited. The learned High Court Judge concluded that the article, viewed as a whole, was not defamatory of the Appellant, and that in any event, the Appellant had failed to specifically plead those passages or parts of the article alleged to be defamatory of him. The decision was affirmed by the Court of Appeal of the Republic of Fiji by its decision dated 26th November 2008.
    

Special Leave to Appeal

11. Since the Appellant, having not applied for leave to appeal from the Court of Appeal, has sought special leave to appeal against the decision of the Court of Appeal dated 26th November 2008, it is at the outset necessary to decide whether this is a proper case to grant special leave to appeal. Section 8(1) and 8(3) of the Administration of Justice Decree 2009, make it clear that in the exercise of its exclusive appellate jurisdiction, the Supreme Court "has power to review, vary, set aside or affirm decisions or orders of the Court of Appeal and may make such orders (including an order for a new trial and an order for an award of costs) as are necessary for the administration of justice." It is expressly provided in Section 8(3) of the said decree that an "appeal may not be brought from a final judgment of the Court of Appeal unless-
    
    • (a) the Court of nappeal gives leave to appeal on a question certified by it to be of significant public importance; or
      
    • (b) the Supreme Court gives special leave to appeal."
      
12. The Appellant has sought special leave to appeal against the decision of the Court of Appeal in terms of Section 8(3)(b) of the Administration of Justice Decree on the basis of several questions set out in paragraph 3.4 of the Petition for Special Leave to Appeal dated 27th March 2009. It is pertinent to note that Section 7(3) of the Supreme Court Act No. 14 of 1998, sets out several criteria for the grant of special leave to appeal in the following manner: -
    

"In relation to a civil matter (including a matter involving a constitutional question), the Supreme Court must not grant special leave to appeal unless the case raises-

(a) a far reaching question of law;

(b) a matter of great general or public importance;

(c) a matter that is otherwise of substantial general interest to the administration of civil justice. "

In applying these provisions, the Supreme Court of Fiji has adopted in decisions such as Bulu v Housing Authority [2005] FJSC 1 CBV0011.2004S (8 April 2005), the criteria enunciated by the Privy Council in Daily Telegraph Newspaper Company Limited v McLaughlin [1904] UKLawRpAC 45; [1904] AC 776, which was the first case in which special leave to appeal from a decision of the High Court of Australia had been sought. Lord Macnaghten, at pageof 9 of his judgment, after observed that the same principles should apply as they did for an appeal from the Supreme Court of Canada, referred to the case of [1882– 83] 8 AC 103, in which it was stated that appeals would not be admitted-

"save where the case is of gravity involving a m of public interest, or somr some important question of law, or affecting property of considerable amount, or where the case is otherwise of some public importance or of a very substantial character."

As noted by Lord Macnaughten at pages 778 to 779, even in such cases special leave would be refused if what is canvassed is the decision on the facts of a particular case, where the judgment sought to be appealed from was plainly right, or not attended with sufficient doubt to justify the grant of special leave. In the later decision of Albright v. Hydro-Electiric Power Commission [1926] AC 167 at page 169, it was stated that a question involving the construction of a particular agreement did not warrant the grant of special leave.

13. Mr. V. Mishra, who appeared for the Appellant indicated that it would be sufficient if only the questions set out in paragraphs 3.4 sub-paragraphs (a)(i) and (v), sub-paragraphs (b) (ii) (v) and (vi) and sub-paragraph (c)(i) of the Petition for Special Leave to Appeal are considered for the purpose of the grant of special leave to appeal. On the threshold issue of whether special leave ought to be granted in the circumstances of this case, having heard the submissions of Mr. Mishra for the Appellant as well as those of Mr. J. Udit, who submitted on behalf of the 1st Respondent that special leave should be refused, we hold that the requirements of justice would be sufficiently met if special leave is granted with respect to the following two questions:-
    
    • (i) Whether the Court of Appeal was obliged to follow the decision of Fiji Daily Post Company Limited & Others v. Sakiusa Rabuka & Another Fiji Court of Appeal Civil Appeal No. ABU 0061 of 2005 as to adequacy of pleadings and findings in a defamation action (paragraphs 3.4(a)(ii) and paragraph 3.4(b)(v) of the Petition of Appeal); and
      
    • (ii) Whether it is defamatory to allege or imply that a person is suspected of an offence, and whether the Court of Appeal properly considered and decided on the same in its decision (paragraphs 3.4(a)(i) and 3.4(c)(i) of the Petition of Appeal).
      

We consider that both these are far reaching question of law of general or public importance, and are matters of substantial general interest to the administration of civil justice within the meaning of Section 7(3) of the Supreme Court Act.

The Adequacy of Pleadings

14. For the purpose of considering question (i) above, in the formulation of which the decision of the Court of Appeal of Fiji in Fiji Daily Post Company Limited & Others v Sakiusa Rabuka & Another (supra) was apparently included despite its focus on the findings of a Court as opposed to the pleadings in a case on the basis that it did shed some light on the issue of adequacy of pleadings that looms large in this appeal, it will be instructive to refer to the pleadings in this case.
    
15. The original Statement of Claim filed on 25th September 2005 on behalf of the Appellant was amended on 8th November 2005, and in paragraph 6 of the Amended Statement of Claim it was pleaded as follows:-
    

"6. On the 26th day of August, 2000, which fell on Saturday, the first defendant published an article on its front page, as the lead story of the day, written by the second defendant titled: "Chand faces theft probe" which stated and/or alleged and/or implied that:

(a) The Police were investigating the theft of Government owned furniture and household items after the Public Service Commission had lodged a complaint with it from a house previously occupied by a "deposed Cabinet Minister".

(b) The plaintiff who was the previous occupant would be questioned in respect of the same.

(c) The Plaintiff was suspected of having stolen the said furniture and items.

(d) Investigations into the theft had revealed that funds used to renovate the home were almost double the reported $47,000.00 used by the Public Works Department and that the Housing Ministry had also spent $54,000.00 on improving the house.

(e) As a result the proposed new occupant Ratu Sir Kamisese Mara was reluctant to move into the house.

(f) The Police investigations would include a search of the plaintiff's private home."

16. Paragraphs 7 to 10 of the Amended Statement of Claim were as follows:-
    

"7. The natural and ordinary meaning of the article published by the first defendant and written by he second defendant, the text of which is produced below, meant and were understood to mean and by way of innuendo meant and understood to mean:-

Chand faces theft probe – Fiji Times Saturday August 26, 2000 - State quarters stripped of items by Margaret Wise:-

Police are investigating the theft of government-owned furniture and other household items from the home previously occupied by a deposed Cabinet minister.

Former housing, environment and national planning minister Dr Ganesh Chand will also be questioned, said SSP Emosi Vunisa, head of the Criminal Investigation Department.

The Public Service Commission lodged a complaint with police after it found the residence at Richards Road stripped of all household furniture, including the air conditioning system, washing machine, stove and refrigerator.

And investigations into the theft revealed that funds used to renovate the home was almost double the reported $47,000 used by the Public Works Department. The Housing Ministry has revealed it also spent $54,000 on improvement.

The building was formerly the Environment Ministry's headquarters before it was converted into a residence to be used by Dr Chand.

PSC secretary Anare Jale said the commission only found out about the missing items when government officials went to inspect the quarters and prepare it for the new occupant – former President Ratu Sir Kamisese Mara. He is now reluctant to move there.

This means his successor Ratu Josefa Iloilo will have to wait a while longer before he can move in to Government House, the official residence of the Head of State.

Permanent Secretary in the President's Office Luke Ratuvuki referred all queries to PSC, saying he has submitted his report on the matter.

SSP said a report on the theft has been lodged. He said police investigations would include a search of Dr Chand's private home.

"Nothing has been recovered and investigations are continuing. We will carry out a search of Mr Chand's private residence," Mr Vunisa said.

Dr Chand asked for written question when contacted earlier this week. Yesterday he still had not responded to questions sent to the People's Coalition Office in Samabula.

Housing Ministry permanent secretary Rishi Ram said he was not aware of the theft.

He said he did not know which items were missing as he had only visited the quarters once, while renovations were being carried out.

Mr Ram said the ministry spent $54,000 on renovations, of which $35,000 was provided by the Finance Ministry and the remaining $18,590 was used from funds allocated to the Housing and Environment Ministry - $15,000 from the minister's overseas travelling vote and $3590 from supply and service.

Mr Chand was also responsible for the Ministry of National Planning where he was entitled to another $15,000 for overseas travel.

Mr Jale could not put a figure to the value of the missing items because improvements were made without the PSC's approval.

"Everything is gone, stove, fridge, furniture, air conditioning and washing machine. The quarters is bare," he said.

"We are now asking the Housing Ministry to furnish us with an inventory of things bought or items that were in the house while the former minister lived there."

(a) The plaintiff (now Appellant) is a thief and crook.

(b) He had stolen valuable goods and items from the Government of Fiji which he is a Minister.

(c) He was a dishonest person and not a law-abiding citizen.

(d) He was guilty of abuse of Office.

(e) He had spent a great deal of unauthorized government money to improve a premises where he himself was residing and/or that he had spent a great deal of government money on his own personal house.

(f) He was deceitful and dishonest and unworthy of respect.

(g) He had stripped all the furnishings and fittings from a government house which he occupies and has converted the same to his own use and/or unjustly enriched himself."

8. On the same day of the said publication the plaintiff's residence at Lautoka, Fiji was raided and /or searched by the Police searching for furniture and various items.

9. As a result of the above, the plaintiff has been seriously injured in his normal character, credit and reputation and has been brought into public scandal, odium and contempt.

10. The plaintiff's reputation as an economist, an intellectual, politician and as a reliable and decent person has been gravely affected and / or destroyed, and his reputation as a Doctor of Philosophy in Economic, as an intellectual and politician has been affected and he has been brought into public scandal, odium and contempt."

It needs to be noted that apart from the aforesaid paragraphs 6 to 10, there were some other paragraphs of the Amended Statement of Claim wherein certain aggravating circumstances had been pleaded, such as paragraphs 15 to 16 which made reference to certain comments being made in the House of Parliament, the proceedings of which were regularly televised, and paragraph 23 which contained particulars of subsequent articles which had been published in the same newspaper after defamation notice had been issued to the Respondents, which literally added fuel to the fire. In my view, these were not intended to be, and were not, separate causes of action, and were at best only aggravating circumstances which had relevance to the question of quantum of damages.

17. The primary question that arises for consideration is whether the pleadings contained in the Amended Statement of Claim have adequately met the standards of pleadings required in a an action for defamation. In the Republic of Fiji, Order 18 of the High Court Rules generally deals with pleadings, and Order 18 Rule 6(1) lays down that as a general rule "every pleading must contain, and contain only, a statement in a summary form of the material facts on which the party pleading relies for his claim or defence, as the case may be, but not the evidence by which those facts are to be proved, and the statement shall be as brief as the nature of the case admits." Order 18 Rule 11 requires that "every pleading must contain the necessary particulars of any claim, defence or other matter pleaded" except when such particulars exceed 3 folios, which may be then "set out in a separate document referred to in the pleading".
    
18. The objective of pleadings is to narrow the issues between the parties and limit the scope of the trial. However, it is trite law that pleadings in a defamation action are in a special category and must be prepared with great care and scrutiny. The rationale for this difference of treatment is the recognition that libel and slander are committed primarily with the use of words, and as Oliver Wendell Holmes once put it: "A word is not a crystal, transparent and unchanged; it is the skin of a living thought, and may vary greatly in color and content according to the circumstances and the time in which it is used". What this means is that the meaning of a word will differ from time to time, nation to nation, culture to culture, and according to the context in which it is used, and the subtleties of such usage must be highlighted in the pleadings in a defamation suit. See, Lewis v Daily Telegraph Ltd. [1964] AC 234.
    
19. Another cardinal rule of pleading in defamation cases is that the Statement of Claim generally must set out verbatim the precise words alleged to have been used by the perpetrator, and where the defamatory words are said to be contained in a lengthy document, identify the part or parts of the document that is or are alleged to be defamatory. Of course, there may be cases, such as Churchill Forest Industries (Manitoba) Ltd. V. Finkel, [1971] 1 W.W.R. 745 (Man. C.A.), in which it may be possible for a plaintiff to legitimately plead an entire document by reproducing it or attaching it to the Statement of Claim. In that case, it was observed by Court at page 749 as follows:-
    

"The Appellant says "Here is the whole matter alleged to be defamatory. Read as a whole, and not out of context, I aver that it is defamatory of me. Look at the three schedules. You published them. I didn't. It does not lie in your mouth to ask me to pin myself down to some little point and to exclude the rest." I cannot see where the defendant is taken by surprise, or can pretend to be taken by surprise."

Such cases may be exceptional, but in the generality of cases, the courts have not allowed a plaintiff to plead an entire document of considerable length as defamatory, and have frequently relied on the sentiments expressed by Lord Denning in DDSA Pharmaceuticals Ltd. v. Times Newspaper, [1972] 3 All E.R. 417 at 419 (C.A.), where he was faced with an extremely lengthy document which contained a great deal of information regarding various persons and matters along with what were claimed to be words defamatory of the plaintiff. In that case, Lord Denning reacted to this with the following words:-

".......the pleading is defective because it throws - and I use that word deliberately - on to the defendant a long article without picking out the parts said to be defamatory. Some of the article is not defamatory of anyone at all. It describes only the method of importing drugs. Other parts of the article are defamatory of some unnamed chemists, but not of the Appellants at all. Yet other parts may be defamatory of the Appellants. To throw an article of that kind at the defendants and indeed at the court - without picking out the particular passages, is highly embarrassing."

20. While the 1st Respondent relied heavily on the above quoted words of Lord Denning, as did the High Court and the Court of Appeal in upholding its contention that the pleadings in the case were woefully inadequate and embarrassing, it was strongly contended by Mr. Mishra on behalf of the Appellant that the lower courts were obliged to follow the decision of the Court of Appeal in Fiji Daily Post Company Limited & Others v. Sakiusa Rabuka & Another (supra) in regard to the question of adequacy of pleadings. The pleadings in the Sakiusa Rabuka case were similar to those in the instant case, and in the former, the entirety of a relatively short article that appeared in the front page of The Sunday Post of 22nd October 2000 under the caption "EX DIPLOMATS WIFE FOUND IN HOME RAID" was pleaded as being defamatory without any attempt at highlighting the allegedly defamatory words contained therein. Unlike in the instant case, in Sakiusa Rabuka, no objection was taken to the inadequacy of pleading, and the court did not encounter any difficulty in holding that the entirety of the article was defamatory and awarding damages.
    
21. Mr. Udit, has submitted that the decision in Sakiusa Rabuka related to the findings of the judge, and did not deal with the issue of adequacy of pleadings. He has invited the attention of the Court to paragraph [19] of the judgment of the Court of Appeal, wherein it was observed that:-
    

"Mr Lajendra suggested that the judge ought to have specified the exact words in the article which he found to be defamatory. We do not agree. While the Judge did, in fact, make it clear that he found that the most damaging aspect of the article to be the allegation that the second Respondent had been found in the raid, when in fact she was not present at all, we do not think that it was incumbent upon him to do more than fairly look at the whole article and its contents from the view point of the reasonable Fiji reader and come to a conclusion that the article either was, or was not defamatory. (emphasis added by me)

The focus of the judgment, no doubt, was on the findings of the judge on what was before him, and not on the adequacy of pleadings, which was in fact a point noted by the Court of Appeal which was constrained to observe in paragraph [7] of the judgment that-

"We are moved to observe at this point that although the meaning of the pleadings is sufficiently clear, counsel drafting them might have taken rather greater care to express themselves precisely and grammatically".

In any event, the decision of the Court of Appeal in the Sakiusa Rabuka case cannot be considered as a binding authority for the proposition that was advanced by Mr. Mishra that the entirety of an article may be pleaded irrespective of its length and variety of content, without the parts thereof which are alleged to be defamatory being separately identified. A judicial decision cannot be considered as a binding authority under the rules of stare decisis with respect to a proposition of law that was not argued in the case at all. As the Supreme Court of India observed in Arnit Das v. State of Bihar, 2000 (5) SCC 488: (2000) AIR SCW 2037: AIR 2000 SC 2264: 2000 Cri LJ 2971-

"A decision not expressed, not accompanied by reasons and not proceeding on a conscious consideration of an issue cannot be deemed to be a law declared to have a binding effect as is contemplated by Article 141. That which has escaped in the judgment is not the ratio decidendi. This is the rule of sub silentio, in the technical sense when a particular point of law was not consciously determined."

We see no merit in the submissions of Mr. Mishra on this point.

22. It is, in this context, necessary to stress that there is no real conflict between decisions such as DDSA Pharmaceuticals Ltd. v. Times Newspaper (supra) on the one hand, and the decisions in Churchill Forest Industries (Manitoba) Ltd. v. Finkel, [1971] 1 W.W.R. 745 (Man. C.A.) (supra), and Fiji Daily Post Company Limited & Others v. Sakiusa Rabuka & Another (supra) on the other, and they are easily reconcilable on the basis that each line of decisions represent an end of a spectrum. At one end, there is the publication which is long, and containing along with material which are allegedly defamatory of the plaintiff, other material that are no at all defamatory, or do not even relate to the plaintiff, where it is incumbent on the part of the plaintiff to set out very clearly in his pleadings the part or parts of the publication which is or are allegedly to be defamatory, and on the other end there is the very brief article, which is in its entirety defamatory of the plaintiff, where the aforesaid rule of pleading could have no application. The question is, on what side of the spectrum did the facts in this case fall.
    
23. For this purpose, it is necessary to look closely at paragraphs 6 and 7 of the Amended Statement of Claim, which constituted the main cause of action, and was described by the learned High Court Judge as "embarrassing". Paragraph 6 of the Amended Statement of Claim simply refers to the article published in The Fiji Times with the caption "Chand faces theft probe" and seeks to set out in sub paragraphs (a) to (f) the various allegations and/or implications as understood by the appellant, without referring to the various parts of the said article from which those allegations and / or implications arise. The difficulty with this manner of pleading is that both the respondent as well as the court in which the pleadings were filed, had to undertake the task of picking parts from the article which would fit in to the various imputations set out in sub paragraphs (a) to (f). Such an approach is unacceptable as it would not only prejudice the appellant but also the 1st respondent who had, rather blindly, sought to include in is Statement of Defence, certain justifications and other defences with respect to the allegation of defamation. What Salmon L.J. said in Slim v Daily Telegraph Ltd. [1068] 2 QB 157 about the failure of the plaintiff to indicate what meanings he sought to attribute to particular words used in an allegedly defamatory statement might apply equally to the case of a plaintiff who does not set out what parts of a document are alleged to be defamatory, as the defendant in both instances, is kept guessing. The problem is, as Salmon L.J observed at page 185 –
    

"He might guess wrong and thus not only waste a great deal of time and money in raising a defence of justification or fair comment which would prove to be wholly irrelevant at the trial but he might also come to court wholly unprepared to meet the actual case sought to be made against him."

24. Paragraph 7 of the Amended Statement of Claim begins by referring to "the natural and ordinary meaning of the article" and then refers to the understanding that is sought to be established by way of innuendo and then quotes verbatim the entity of the article published in The Fiji Times. Thereafter the appellant has set out in sub paragraphs (a) to (g) the various allegations and / or implications that appellants seeks to attribute to the entity of the article. This form of pleading is also defective as no attempt is made to indicate what parts of the article are alleged by the appellant to be defamatory, whether in its plain meaning or by reason of any innuendo, and no external material which could sustain any innuendo have been pleaded. Thus, in Allsop v Church of England Newspaper Ltd. and Others [1972] 2 QB 26, the word used was "bent", obviously as slang, in a context which made its meaning imprecise, and it was held that in the absence of the extraneous material necessary to establish that it was defamatory, particulars of any innuendo relied upon by the plaintiff must be pleaded or supplied.
    
25. It is for this reason that in Lewis v Daily Telegraph Ltd. [1964] AC 234, at page 280, Lord Devlin took pains to instruct that-
    

"In consequence of all this, I think, that there will have to be three paragraphs in a statement of claim where previously two have served. In the first paragraph the defamatory words will be set out as hitherto. It may be that they will speak for themselves. If not, a separate paragraph will set out those innuendoes or indirect meanings which go beyond the literal meaning of the words but which the pleader claims to be inherent in them. Thirdly, if the pleader has the necessary material, he can plead a secondary meaning or legal innuendo supported by particulars.......The essential distinction between the second and third paragraph will lie in the fact that particulars under the rule must be appended to the third. That is, so to speak, the hallmark of the legal innuendo."

In Chakravarti v Advertiser Newspapers Ltd. [1998] 193 CLR 519, the High Court of Australia took the view that a party will be considered bound by the innuendo pleaded by him.

26. It is clear from a reading of the impugned article that certain parts of it are clearly and obviously statements of fact which are not defamatory of any person. It also contains certain allegations about overspending of funds for renovating and improving the official government quarters, but nothing is pleaded which makes any reference to the appellant in regard to those allegations. One cannot but have sympathy for Judge Madam Phillips who presided at the trial at Lautoka High Court for the difficulties that she would have faced with such inadequate or defective pleadings.
    
27. However, it appears that despite such difficulties, the learned Judge had endeavored to consider the article as a whole and had come to the conclusion that it was not defamatory of the appellant. This is an aspect of this appeal which will be considered fully in the next section of this judgment. However, the fact remains that having found that the article, considered as a whole, was not defamatory of the appellant, the learned Judge went on to add that had she arrived at a different finding in respect of the alleged defamatory imputations from the article, she would have "struck out the pleadings as embarrassing and defective". The Court of Appeal, very rightly considered this conclusion of the High Court as sound, and we see no reason to defer.
    

Defamatory Nature of the Article

28. The second question on which special leave to appeal was granted as set out in paragraph 13 (ii) of this judgment is whether it is defamatory to allege or imply that a person is suspected of an offence. The question arises in the context that the learned High Court Judge has found, on an examination of the article as a whole, on the basis of the natural and ordinary meaning of the words used therein, that the article was not defamatory of the Appellant, and the Court of Appeal has affirmed the said finding.
    
29. Mr. Mishra has submitted that the Appellant has suffered considerably because of the portrayal of him by the Respondents as a thief and a crook who had stolen valuable goods and items from the government quarters allocated to him as his official residence. He has also submitted that the caption "Chand faces theft probe" along with the statement in the second paragraph of the article that the appellant "will be questioned" by the Criminal Investigation Department and the subsequent statement that as a report on the theft had been lodged, the Police investigations "would include a search of Dr. Chand's private home", portrayed the appellant as a suspect. He contended that such an imputation was by itself defamatory.
    
30. As against this, Mr. Udit has relied heavily on the decision in Lewis v Daily Telegraph Ltd. (supra) for the proposition that the reference in The Fiji Times report to the "probe" against the Appellant was not defamatory in the context of present day social norms, particularly in view of the fact that the life, work and conduct of a public figure were matters of public concern. In that case, Mr John Lewis former Socialist M.P. for Bolton, complained of certain news reports that revealed that officers of the City of London Fraud Squad were inquiring into the affairs of a holding company and its subsidiaries in which Mr. Lewis had considerable financial interest and managerial involvement. The House of Lords, however, took the view that what mattered was the impression the report made on the mind of an ordinary reasonable man, and held that the report was not necessarily defamatory. Lord Reid, at page 260 of the judgment observed that-
    

"What the ordinary man, not avid for scandal, would read into the words complained of must be a matter of impression. I can only say that I do not think that he would infer guilt of fraud merely because an inquiry is on foot..........To my mind, there is a great difference between saying that a man has behaved in a suspicious manner and saying that he is guilty of an offence, and I am not convinced that you can only justify the former statement by proving guilt."

31. Mr. Mishra sought to distinguish Lewis's case on the basis that while the Appellant, Dr Chand, was projected in a negative manner by the ordinary and natural meaning of the words used in the article, particularly the very blatant caption "Chand faces theft probe", all that the report in Lewis's case stated was that an inquiry was being conducted into the affairs of Mr Lewis's company by the fraud squad. We are not at all convinced by the subtlety of the distinction, and are inclined to the view that the mere portrayal of a person as a possible suspect of a crime or other offence, does not by itself make the publication defamatory. As already noted in this judgment, the meaning of a word will differ from time to time, nation to nation, culture to culture, and according to the context in which it is used, and whether any particular word or words are defamatory would depend on the surrounding circumstances.
    
32. The complex nature of modern society carries with it the possibility that the conduct of any individual may for various reasons such as national security and the prevention of terrorism, money laundering and other such crimes or offences are subjected to scrutiny by the relevant authorities, and such matters are generally taken for granted, and the fact that there is some investigation about some crime or offence would not necessarily tarnish the reputation of the person subjected to such investigation. Not only the affairs of terrorists and other criminals, but even those of corporations, professionals, businessmen, and politicians are increasingly subjected to scrutiny and comment, and modern society is sophisticated enough not to be overly sensitive to these intrusions or to look down upon such persons whose affairs are subjected to scrutiny and comment.
    
33. In the result, we hold that the High Court and the Court of Appeal did not err in law in holding that it is not per se defamatory to allege or imply that a person is suspected of an offence, and conclude that the Court of Appeal properly considered and decided on the same in its decision.
    

Conclusions

34. For the aforesaid reasons, we hold that both questions on which special leave to appeal was granted by this Court have to be decided in favor of the Respondent, and the appeal should be dismissed and the decisions of the High Court of Lautoka and the Court of Appeal of Fiji, affirmed. In all the circumstances of this case, we do not make any order for costs.

Dated at Suva this 08th day of April 2011.

Saleem Marsoof
Judge of the Supreme Court

Sathyaa Hettige
Judge of the Supreme Court

William Calanchini
Judge of the Supreme Court

Solicitors:
Mishra Prakash & Associates, Solicitors for the Appellant
Howards Lawyers, Solicitors for the First Respondent