Tuisawau v Fiji Times and Herald Ltd [1975] FijiLawRp 28; [1975] FLR149 (26 November 1975)

[1975] 21 FLR 149

COURT OF APPEAL OF FIJI

RATU MOSESE VARASEKETE TUISAWAU

v.

FIJI TIMES AND HERALD LIMITED AND OTHERS

[COURT OF APPEAL, 1975 Gould V.P., Marsack J.A., Spring J.A.),
20th, 26th November]

Libel - publication in newspaper of picture and article intimating that unsuccessful candidate for Manager of Native Land Trust Board was corruptible - whether reasonable readers, having regard for context, would consider words used as imputation against character.

The appellant was one of three local applicants who applied for the vacant post of Manager of the Native Land Trust Board. A further 28 persons applied from overseas. The new Manager appointed was a Mr Josefata Kamikamica who had not applied.

The Fiji Times published an article supported by a photograph on its front page showing Mr Kamikamica shaking hands with the Minister of Fijian Affairs together with the caption "He got the job because he is incorruptible". Later in the article, the names of the three local unsuccessful applicants were revealed.

The appellant contended that the photograph and article were understood to mean that the appellant was a corruptible person, and that he was not sufficiently trustworthy and reliable to hold the position of Manager of the Native Land Trust Board.

Held: (Spring J.A. dissenting): The fact that Mr Kamikamica was appointed to the post because he was incorruptible did not signify that the other applicants in general and the appellant in particular, were by necessary inference, held to be described as corruptible.

Cases referred to:

Hough v. London Express [1940] K.B. 507.
Capital & Counties Bank v. Henty (1882) 7 App Cas. 745, (1880) 5 C.P.D. 514.
Gwynne & Small v. Wairarapa Times Age Co. Ltd. [1972] N.Z.L.R. 586Lew
is v. Daily Telegraph Ltd. [1964] A.C. 234; [1964] 1 All E.R. 705
Morgan v Odhams Press Ltd. [1971] 2 All E.R. 1156; [1971] 1 W.L.R. 1239

Appeal against the judgment of the Supreme Court dismissing a claim for damages by the appellant for libel.

H. M. Patel for the appellant.
D. J. Williams for the 1st and 2nd respondents.
C. Jamnadas for the 3rd and 4th respondents.

The following judgments were read:

MARSACK J.A: [26th November 1975]-

This is an appeal against a judgment of the Supreme Court sitting at Suva delivered on the 5th September 1975, dismissing a claim by the appellant for damages for an alleged libel. The second respondent was sued as editor and publisher of the Fiji Times and Herald; the third respondent as Minister for Fijian Affairs and Chairman of the Native Land Trust Board.

It is the appellant's case that the libel of which he complains appeared in three articles in the Fiji Times in its issues of 8th, 10th and 12th January 1973. These articles are set out in full in the judgment appealed from and I do not find it necessary to transcribe them again in this judgment. They referred to the appointment of a Manager of the Native Land Trust Board, a position which at that time was vacant. Thirty-one persons, nearly all from overseas, had applied for the position; one of the applicants was the appellant. The new Manager appointed was Josefata Kamikamica, who had not applied.

In the article of the 8th January, featured on the front page of the Fiji Times, there was a photograph of the new Manager shaking hands with the third respondent, and above the photograph was the headline. "He got the job because he is incorruptible". In the course of the article, the third respondent is quoted as saying that the Board felt that Mr Kamikamica was incorruptible. The report continues:

"We feel the manager must be absolutely incorruptible, I am not insinuating that previous managers have been corrupt. But the fact is that in this position there is scope for corruption and this is why the manager must be incorruptible."

Later in the article the names of the three local applicants, including the appellant, were set out; the source of information being given as "reliable reports." There is no suggestion that, this last information came from the third respondent.

A member of the Native Land Trust Board, Ratu Napolioni Dawai, who had suggested to the appellant that he should apply for the position, was angry with the Board's decision and expressed himself frankly to a Fiji Times reporter. His views were published in that paper on 10th January 1973. On the 12th January 1973, the third respondent made a lengthy statement, also published in the Fiji Times, criticising what Ratu Napolioni had said. In the course of that statement, he said:

"Because of the complicated nature of dealings in land on which the Board will make decisions, it is extremely important that the manager is of proven and unshaken integrity.

Every application for the managership of the NLTB was assessed in the light of these criteria. We are satisfied that all the applicants are men of integrity. But none of them fulfilled the full requirements of the remaining criteria for the job.

The appellant brought an action for libel against the four respondents claiming damages to the amount of $100,000, on the grounds that the articles and the photograph were understood to mean that the appellant was a corruptible person, or a person who was not incorruptible; and that he was an unreliable and untrustworthy person, who could not be relied on to hold a position of responsibility and trust and be Manager of the Native Land Trust Board. The learned trial judge held, in effect, that the words used were not in themselves libellous, and were not open to the inference by an average reasonable reader that the appellant was corruptible. He accordingly dismissed the claim:

Two grounds were set out in the notice of appeal, and these are as under:

"1. The learned trial Judge erred in law and in fact in holding that the words complained of, when the three articles were taken together, did not contain any defamatory meaning of the Plaintiff.

2: The learned trial Judge erred in law and in fact in not having regard to the various witnesses called on behalf of the Appellant who said that they understood the article in a defamatory sense."

It would be perhaps be convenient to deal first with the appeal against the third and fourth respondents, as in my view it is possible to do that very shortly. The learned trial judge held that no reference was made by the third respondent to the effect that the appellant had been an applicant for the position; the disclosure of the names of the local applicants resulted, in his finding, from their having "been unearthed by some enterprising reporter his own private source". The fact that he had been such an applicant would not have been known to the general public. The learned trial judge is in my view correct when he says in his judgment, referring to the third respondent:

"His liability should therefore be confined to any statement that he himself made. He cannot be held responsible for information revealed to the Fiji Times from other sources whether such sources were mentioned in the three articles or not."

Consequently, there was nothing said by the third respondent from which any inference, derogatory to the character of the appellant, could have been drawn. In his subsequent statement, he affirms that all the applicants are men of integrity, even though they did not have the particular qualifications required for the position. It cannot, in my view, be contended that what was said by the third respondent is in any way libellous on the appellant; and it certainly does not come within the four corners of the allegation in the statement of claim, upon which the action was based against these respondents. In the result, I can find nothing justifying a verdict against the third respondent, or the Board of which he is the Chairman; and the appeal against third and fourth respondents should be dismissed.

With regard to the appeal against the first and second respondents, this is based upon the contention that the wording of the article of the 8th January, together with the photograph and the headline, emphasized that Josefata Kamikamica had been appointed because of his incorruptibility, particularly as in that position there was scope for corruption; that the three named persons, one of whom was the appellant, had been unsuccessful applicants; and that it was a reasonable inference from this that the appellant was not incorruptible. The question for determination on this appeal is thus not a complicated issue.

There is no direct statement in any of the articles concerned, attributing to the appellant anything which would lower him in the esteem of his fellows. Any libel of the appellant must be a matter of imputation or inference. The test to be applied to such cases is well expressed in Gatley on Libel and Slander, Sixth Ed., page 89, para. 88:

"88. Objective test. What imputation is conveyed by any particular words is to be determined on an objective test, that is, by the meaning in which the ordinary reasonable man would understand them. " The test according to the authorities is whether, under the circumstances in which the writing was published, reasonable men to whom the publication was made would be likely to understand it in a libellous sense.": per Lord Selborne L.C. in Capital & Counties Bank v. Henty (1882) 7 App. Cas. at p. 745. The imputation conveyed is not to be determined by the meaning intended by the man who published the words, nor is it, necessarily determined by the meaning which those to whom the words were published in fact attached to them."

The underlying principle to be followed is discussed at some length by Goddard L.J. in Hough v. London Express Newspaper Limited [1940] 2, K.B. 507 at p. 515. In the course of his judgment, he expresses the opinion that it is unnecessary, though not perhaps inadmissible, to call witnesses as to what they understood the words used to imply; he goes on to say that the only question is, might reasonable people understand those words in a defamatory sense.

At the hearing in the Court below, the appellant called five witnesses, all friends of the appellant, who deposed to what had been the effect of the articles concerned on their minds. Dr Verrier said in cross-examination:

"I think that the plaintiff was rejected because he was not incorruptible."

Ratu Napolioni said:

"The selection was unfair and ... 'incorruptible' would cast a bad reflection on other applicants."

Edward March said:

"I felt bad about it. I did not like the use of the word 'incorruptible' in that article."

Michael Columbus said:

"I thought that the statements were injurious to Ratu Mosese I thought that they were injurious to the other applicants too."

Apisai Tora said:

"I thought the article was a slur on the applicants."

No evidence was called for the respondents; and as I see it, there was no need for any such evidence. The whole point is: what inference would be, drawn by the average reasonable man from the articles concerned? That is a matter for the Court to decide; and, as stated by Lord Goddard in Hough's case (supra), it is of little avail to either of the parties to call witnesses to prove what they understood by the words. In any event, the evidence called for the appellant is in some respects conflicting. Dr Verrier stated that he did not understand the articles to be defamatory of all the applicants including the Australians. Michael Columbus and Apisai Tora both expressed the view that the statements complained of were injurious also to the other applicants. No explanation was put forward as to why the articles were libellous only of the appellant, except perhaps that no one would' know the identity of the applicants other than the three local persons named in the article of January the 8th. If it were possible to hold that the use o£ the word 'incorruptible', in the way in which it was used in the articles concerned, necessarily bore the imputation that all other applicants were corruptible, then the principle set out in 24 Hals. (Third Ed.) page 5 would apply. A group or class of persons cannot be defamed as a class or group unless the plaintiff is able to say that, though the statement complained of reflected on a class of persons, he was the person aimed at and defamed. There is not a little of evidence in this case indicating that of all the applicants for the position, it was the appellant who was singled out as being corruptible.

The point in issue is well expressed by Roper L.J. in Gwynne and Small v. Wairarapa Times Age Co. Ltd. [1972] NZ.L.R. 586 at p. 593:

"The real crux of the matter is, however, whether reasonable readers, having regard for the context, would necessarily regard the language used as an imputation against character."

In this case the appellant asks the Court to find that, as Josefata Kamikamica was appointed to the post because he was incorruptible, the other applicants in general, and he in particular, must, by necessary inference, be held to be described as corruptible; and that this is the view which would be taken by the reasonable reader. I do not think that this submission is tenable; and no authorities were cited in support of it.

Mr Williams, in my opinion, was thoroughly justified in conceding that the natural reaction of a reasonable person would be that the headline to the article of January the 8th was overdone. I think he was right when he added that such features are not uncommon in the Press, which often uses its headlines for the purpose of attracting public attention. That in itself is not sufficient to support the appellant's claim. What has to be looked at is the actual text of the words used.

For reasons, which I have endeavoured to express, I am satisfied that the learned trial judge was correct in his finding that no imputation of corruptibility against the appellant could reasonably be inferred from the articles of which complaint was made. Moreover, the articles could not be held to infer that the appellant was an unreliable and untrustworthy person who could not be relied on to hold a position of responsibility and trust.

Accordingly, I would hold that the appeal must be dismissed and that the appellant must pay the costs of all the respondents in this Court.

GOULD V.P.

I have had the advantage of reading the judgment of Marsack J.A. in this appeal and he has stated the main facts.

As to the third and fourth respondents I have no hesitation in agreeing with Marsack J.A. and with the learned trial judge that no case was made out against them. The article in the Fiji Times of the 8th January 1973 was only in part a quotation of what the third respondent had said and no argument was addressed to this Court suggesting that there was any implied authorisation by the third respondent of the remainder of the article. Had there been, it must have failed, as the article as a whole could not in any way be described as merely an editorial gloss on the words used by the third respondent while retaining their sense and substance. Without the additions attributable to the newspaper itself there was no libel on the appellant.

Whether there was a libel in the case of the first and second respondents, I find to be a question of considerable difficulty. It arises within quite a small compass. There can be no doubt that an imputation of corruptibility is defamatory. As I see it, the only factor which might prevent the present articles from conveying such an imputation to an ordinary fair-minded reader is the question of the extravagance of the suggestion. The caption at the beginning of the article of the 8th January, "He got the job because he's incorruptible" gives tremendous prominence to this aspect of the matter. Even before reading on, the query would come to a reader's mind-and were the others not incorruptible? Then there is the following in the text, after the naming of the three local applicants and the disclosure that there were thirty-one in all-

"Ratu William said the Board felt that Mr Kamikamica was incorruptible.

SCOPE

'We feel the manager must be absolutely incorruptible', he said.

'I am not insinuating that previous managers have been corrupt.

'But the fact is that in this position there is scope for corruption and this is why the manager must be incorruptible'."

In the publication in the newspaper of the 12th January the third respondent is quoted as saying-

"We are satisfied that all the applicants are men of integrity."

And this I would construe as an acknowledgement that there had at least been a possible imputation in what had previously been published.

To my mind, the fact that there was a group of 31 applicants enters into the question only as a factor in the consideration of whether the imputation is so extravagant as not to be taken seriously. It is not a case where reference to a group prevents identification of any particular member of that group. The three local applicants were named, and it is particularly to them that the attention of Fiji readers would be directed; such readers would have little interest in the overseas candidates.

As is indicated in Hough v. London Express [1940] K.B. 507, 515 the plaintiff need only show that the article (I refer particularly to the first of them) tends to defame him; he does not have to prove that persons to whom it was published think less of him. In this case, a fair-minded reader could well, I think, consider that all the unsuccessful applicants were being disparaged with particular reference to corruptibility as well as other matters; unless the very number of the applicants made such an imputation ridiculous and therefore incredible.

The learned judge based his judgment partly on this aspect of the matter and partly on the extravagant nature of the claim that the successful candidate was incorruptible. Such extravagance, the learned judge says, provokes questionable humour directed at the innocent recipient but would be hardly likely to cast a dishonourable reflection upon those who escape such praise.

I am with respect not impressed by this last argument- if the plight of those who were unsuccessful, in being compared unfavourably with the incorruptible one proved humour also, would not that be ridicule? However, I think I must agree that it would be an unreasonable reading of the article in question to construe it as meaning that all thirty-one applicants were possibly corruptible. The only doubt I have about this, and it is a strong doubt, arises from the naming of the three local readers upon them-but detriment arising from that, though possible, would not be the result of logical reading. The difficulty is that a newspaper cannot expect to find all its readers entirely logical. I have no doubt that the articles are capable of a defamatory meaning. Whether they should be construed as being in fact defamatory is a difficult question and one primarily for the learned judge in the Supreme Court. On full consideration, I am not prepared to differ from his finding.

In accordance with the opinion of the majority of the court dismissed with costs.

SPRING, J.A.

The facts giving rise to these proceedings are fully recorded in the judgment under appeal and I find it unnecessary for me to deal with the facts in detail and it will suffice for me to refer only to such facts, which are directly relevant to my judgment.

The appellant is the son of a paramount Fijian chief, an honours graduate from Hull University and a member of the Senate in Fiji since 1970. At the material time, he held the office of Estates Manager of the Housing Authority. In October 1972 the Ministry for Fijian Affairs called for applications for the position o£ Manager of the Native Land Trust Board. The plaintiff was one of 31 applicants, all of whom except three, were from overseas.

The appellant complains that he was libelled by the 1st, and 2nd respondents by three articles which appeared in the newspaper, Fiji Times, on the 8th, 10th and 12th January 1973. On the 8th January 1973 on the front page of the Fiji Times was an article announcing the appointment of the New Manager of the Native Land Trust Board. Alongside the article was a photograph of the appointee, Mr Joseph Kamikamica, shaking hands with the Chairman of the Board. Above the photograph was the headline "He got the job because he's incorruptible".

The article of 8^th January 1973 stated (inter alia):

"Most of the applications were from Australia and New Zealand.

The three local ones were from Ratu Mosese Varasekete Tuisawau, an executive with the Housing Authority; Mr Joketani Cokanasiga, general manager of the Fiji Visitors Bureau; and Mr Dike Naigulevu, acting manager of NLTB.

The Fiji Times understands that only Mr Naigulevu reached a short list of five."

It appears that the above information was elicited by a reporter of Fiji Times. Later in the article, the third respondent is quoted as saying:

"We feel the manager must be absolutely incorruptible," he said.

"I am not insinuating that previous managers have been corrupt.

"But the fact is that in this position there is scope for corruption and this is why the manager must be incorruptible"

On the 10^th January 1973, the Fiji Times published the report of an interview with Ratu Napolioni Dawai criticising the remarks of the third respondent that Mr Kamikamica was "incorruptible" and that the use of such a word was a bad reflection on the other applicants.

On the 12th January 1973 yet a third article appeared under the heading "Minister rejects Dawai attack" which purported to explain how the Board came to make its selection of Joseph Kamikamica and saying (inter alia) that all the applicants were men of integrity.

The appellant claimed that the Fiji Times by publishing his name, as an unsuccessful applicant, together with the articles and the photograph with the caption thereon defamed the appellant, in that, the ordinary reasonable man reading the articles and seeing the photograph would immediately draw an inference that the appellant was a corruptible person or a person who was not incorruptible; and that he was an unreliable and untrustworthy person who could not be relied on to hold a position of responsibility and trust and be manager of the Native Land Trust Board.

The appellant brought an action for libel against the four respondents claiming damages. Actions for libel in Fiji are heard by a judge alone. The learned trial judge dismissed the action holding that the article in question did not constitute libel.

I have had the advantage of reading the judgments of the learned Vice-President and my learned brother Marsack J.A and agree, for the reasons they have given, that the appeal against the 3^rd and 4^th respondents should be dismissed.

However, in so far as the appeal against the 1^st and 2^nd respondents is concerned I find that I differ from the conclusions reached by the learned Vice-President and my learned brother and I propose to state my reasons for so doing.

The appellants claims that the 1^st and 2^nd respondents in publishing the article of the 8^th January 1973 together with the photograph and the heading thereover "He got the job because he is incorruptible" stressed that one of the principal reasons Kamikamica was selected was due in large measure to the fact that he could not be corrupted or bribed; that in naming the appellant as one of three local applicants, all of whom were unsuccessful, the ordinary reasonable reader of the newspaper could make the inference that the appellant lacked this quality of incorruptibility. The appellant in effect said, that the inference to be drawn from such a publication was to lower him in the estimation of right thinking members of society generally and to expose him to contempt or ridicule.

If there is a libel of the appellant then it must of necessity be a matter of inference. Gatley on Libel and Slander 6th Edition page 94 para. 93 states:

"Words are normally construed in their natural and ordinary meaning, i.e., in the meaning in which reasonable men of ordinary intelligence, with the ordinary men's general knowledge and experience of worldly affairs, would be likely to understand them. The natural and ordinary meaning may also 'include any implication or inference which a reasonable reader guided not by any special but only by general knowledge and not fettered by any strict legal rule of construction would draw fro the words'."

In Lewis v. Daily Telegraph Ltd. [1964] A.C. 234 Lord Reid at page 258 dealing with the natural and ordinary meaning of words said:

"What the ordinary man would infer without special knowledge has generally been called the natural and ordinary meaning of the words. But that expression is rather misleading in that it conceals the fact that there are two elements in it. Sometimes it is not necessary to go beyond the words themselves, as where the plaintiff has been called a thief or a murderer. But more often the sting is not so much in the worlds themselves as in what the ordinary man will infer from them, and that is also regarded as part of their natural and ordinary meaning."

The appellant gave evidence and the learned trial judge found that the appellant was "undoubtedly hurt" by the article of 8th January 1973 and he further found that "the plaintiff found this article somewhat distasteful". Five witnesses were called by the appellant and they all testified that the article as it was worded tended to belittle the plaintiff whom they all knew personally and for whom they would appear to have had considerable respect. The 1st and 2nd respondents called no evidence.

There were 31 applicants for the position and I would agree that if the appellant's name had not appeared there would be no libel. However, what disturbs me is the fact that the appellant's name was published as one of the three local applicants. In a small country such as Fiji, I the average reader of a newspaper would, in my view, brush aside all reference to outsiders and concentrate his attention on the local people; the appellant, in my view, by reason of his position and standing would be widely known. The fact that there were only three local persons all of whom were named applying for the position, it could in my view quite properly be said that an imputation of corruptibility could apply to each of the three named persons.

The appellant said in evidence, "I was upset because my name was revealed and it was implied that I was corrupt."

The learned judge founded his judgment on the fact that the use of the word incorruptible is a reckless and extravagant use of language and says:

"It does, however, show that the use of such recklessly extravagant language is only likely to provoke questionable humour to be directed at the innocent recipient of the praise. It is hardly likely, in the average reasonable reader's mind, to cast a dishonourable reflection upon those who escape such praise."

I cannot agree with the learned judge's reasoning here, that the unsuccessful candidates, who did not have "praise heaped upon them", would escape without inferences being drawn as to their likelihood of being corruptible. In my view the ordinary reasonable reader of a newspaper is influenced by sensational headlines, is quick to jump to conclusions and draw inferences. He does not bring to bear a careful and analytical mind in the study of the paper. I can well imagine an ordinary reasonable reader saying, "Oh, I see Mosese did not get that big job with the Land Board; apparently they think he is not beyond taking a bribe."

The learned trial judge decided further that in this case no defamatory words had been used and that to hold that the average reasonable reader of the newspaper would impute corruptibility to the other persons named in the paper would be unlikely. With respect to the learned judge, I cannot agree; he is I think for one thing overlooking the "sting" that Lord Reid referred to in Lewis' Case (supra). The approach attributes and foibles of the ordinary reasonable man in reading a newspaper are in any view, with respect, well summed up in the words of Lord Reid in Morgan v. Odhams Press Ltd. [1971] 2 All E.R. 1156 at page 1162 where he said:

"If we are to follow Lewis' case [1964] A.C. 234 and take the ordinary man as our guide then we must accept a certain amount of loose thinking. The ordinary reader does not formulate reasons in his own mind: he gets a general impression and one can expect him to look again before coming to a conclusion and acting on it. But formulated reasons are very often an after thought. The publishers, of newspapers must know the habits of mind of their readers and I see no injustice in holding them liable if readers, behaving as they normally do, honestly reach conclusions which they might be expected to reach. If one were to adopt a stricter standard it would be too easy for purveyors of gossip to disguise their defamatory matter so that the judge would have to say that there is insufficient to entitle the plaintiff to go to trial on the question whether the matter refers to him, but the ordinary reader with perhaps more worldly wisdom would see the connection and identify the plaintiff with consequent damage to his reputation for which the law would have to refuse him reparation."

In my view, therefore, I must differ from the learned Vice-President, my learned brother Marsack J.A. and the learned trial judge and I would find that the article of 8th January 1973 coupled with the photograph, and the caption could in the mind of the ordinary reasonable reader, that Lord Reid refers to, reasonably be construed as meaning that the appellant was a corruptible person or one not above being bribed. Accordingly, I would find the articles defamatory of the appellant and I would allow the appeal and remit the case to the Supreme Court for assessment of damages.

Appeal dismissed.