Mara v Fiji Times and Herald Ltd [1984] FijiLawRp 20; [1984] 30 FLR 119 (27 July 1984)

[1984] 30 FLR 119

IN THE FIJI COURT OF APPEAL

RATU SIR KAMISESE MARA

v.

FIJI TIMES AND HERALD LIMITED, GARRY BAKER AND VIJENDRA KUMAR

[COURT OF APPEAL (Speight, V.P., O'Regan, J., Barker, J.A.)]

Date of Hearing: 23 July 1984
Delivery of Judgment: 27 July 1984

Defamation - Libel - Judge without jury should assume the mantle of reasonable man of ordinary intelligence - Judge should ask himself "is the natural and ordinary meaning of words that which is alleged in the Statement of Claim - if not what do the words mean" - Fair Comment - no defence if not based on facts - or if based on mis-statement of facts.

M. H. McHugh Q.C. (of the New South Wales Bar), G. P. Lala & M Patel for the Appellant
B. N. Sweetman for the Respondents

Appeal against a decision of the Supreme Court in an action wherein the appellant (Plaintiff) had sued the respondents (defendants) being respectively the owner, publisher and editor of the Fiji Times for libel arising out of a letter published in that newspaper.

The judgment of and for the Court was delivered by O'Regan J.A.

The letter omitting formal parts, read (numbers added for convenience of reference):

"1. Sir, Senator Inoke Tabua's insensitive remarks about deporting certain Fiji Indian leaders is unbecoming of a man who is the Prime Minister's nominee in the Senate.

2. The sad thing really is that the Prime Minister has not seen it fit to rebuke the Senator for his outburst which is not conducive to the promotion of multiracialism in the country.

3. It is worth remembering that in 1974, Mr Sakiasi Butadroka was castigated by the Alliance Party of which he was then a member, and ostracised by the majority of the people of Fiji for his similarly racist outburst. Will Senator Tabua face a similar situation?

4. Unfortunately, Senator Tabua's brand of racism is, becoming all too familiar now. It seems to become the pattern for all and sundry to make the derogatory remarks about Indians, apparently under the illusion that the Indians will not retaliate. It is a dangerous self-deception, for any community however divided, selfish and insecure, can take insults only to a certain degree.

5. In this case, if Senator Tabua or anyone else thinks that Indians can easily be deported to another country, they are deluding themselves. There cannot be another Uganda in Fiji for obvious historical and economic reasons.

6. In addition, the Fiji Indians have made more than their share of contribution to the country, which they will not give up easily. It will be more fruitful to stop talking about deporting people and living in a make-believe world and think seriously about how both Fijians and Indians can live together, to work towards solutions of problems facing us now.

7. Mr Jai Ram Reddy has been the target of the Alliance wrath in recent weeks. He has been one person singled out as having insulted Fijian people.

8. Some correspondents in this column have exposed the raucousness of his argument in relation to the 4 Corners programme. It needs no further comment.

9. Another incident that Senator Tabua was no doubt thinking of when he made his outburst was the 'toilet' remark. Mr Reddy made that remark in the heat of the moment, about another politician, rather than about a high Lauan chief.

10. It is said that such a simple fact cannot be realised by the people of this country. It is not Mr Reddy's problem if Ratu Sir Kamisese Mara wants to mix his traditional and modern political roles.

11. Ratu Sir Kamisese portrayed himself as the injured party, insulted by Mr Reddy. But let us pause for a moment and go back to the first day of campaigning for this election. It was April 28 I believe, when both the Coalition and the Alliance launched their campaigns in Nausori.

12. It was in Koroqaqa on the very first day of campaigning that Ratu Sir Kamisese promoting the candidature of Senator Kuar Battan Singh spoke disparagingly of Mr Sharda Nand as "atta baba" a contemptuous reference to Mr Nand's involvement in the Flour Mills of Fiji Case.

13. Is that not character assassination of a man who had been proven not guilty by the due process of law.

14. Who planted hecklers in Coalition meetings, who slipped in filthy notes beneath doors in Lautoka? Who has talked of the Russian connection without producing a shred of evidence?

15. No, the story is different from the one the Alliance would have the public of Fiji believe. We like to think of ourselves as living in a democratic country, so let us observe the rules of the game.

16. Let us not obfuscate issues by confusing ritual with reason, principles of ascribed status with the fundamental principles of democracy. It is sad that people of Senator Inoke Tabua's wisdom use the highest forum of debate in the country to make racial statements to appeal to a section of Fiji's population, or to get a renewal of a Senate seat.

17. I think the citizens of this country surely deserve more than this. We should do something about it."

The plaintiff was then the Prime Minister of Fiji.

The appeal was advanced on grounds including the following:

"1. THE Learned Trial Judge erred in failing to hold that the words contained in the published letter were defamatory of the Appellant in their natural and ordinary, meaning.

2. ....................................

3. THE Learned Trial Judge erred in holding that the language used in the published letter was within the ambit of fair comment.

4. THE Learned Trial Judge erred in holding that the defence of fair comment had been made out on the basis that such a finding was against the evidence and the weight of the evidence.

5. THE Learned Trial Judge erred in holding that the defence of fair comment had been made out on the basis that the matter upon which the defence was pleaded was not comment and was factually incorrect.

6.....................

7. THAT the Learned Trial Judge erred in finding that the material complained of did not bear one or more of the imputations set out in paragraphs (a), (b), (c), (d), (e), (g), (h), (i), (l), (m), (n), (o), (p), of paragraphs 5 of the Statement of Claim.

8. THAT the Learned Trial Judge erred in failing to find that the words contain a true innuendo that 'the plaintiff is a hypocrite because he does not believe his expressed views of a multiracial society' (paragraphs 7 and 55(q) of the Statement of Claim).

9. THAT the Learned Trial Judge erred in assuming that the average reader of the Fiji Times has some education including a fair knowledge of the public institutions of his country.

10. THAT the Learned Trial Judge misdirected himself by stating that the imputations set out in paragraph 5 (a), (b), (c), (d), (e), (f), (g), (i), (j), of the Statement of Claim were disposed of by his findings that Senator Tabua was a free agent able to express his own views and that he was speaking his own mind and that the published letter could not be understood to mean that what was said by him was under the direction of the plaintiff.

11...................................

12..................................

13. THAT the learned Trial Judge erred in holding that no one reading the published letter would conclude that the Prime Minister had cheated at the elections and that the words used were incapable of bearing that or any other defamatory meaning.

14. THAT the Learned Trial Judge erred in holding that paragraph 14 of the published letter could not be understood to mean that the plaintiff was personally responsible for planting hecklers at coalition meetings.

15. THE Learned Trial Judge erred in holding that he was not satisfied that the words used in the published letter were capable of supporting the imputations in paragraph 5.

16. THE Learned Trial Judge erred in holding that it is not defamatory to say of anyone that he is undemocratic.

17....................

18. THAT the Trial Judge erred in law in holding that the defence of fair comment was made out after finding that the author had misinterpreted the plaintiff's reference to "atta baba".

19. THAT the Trial Judge should have found that a comment, based on facts which the writer has misrepresented in the article, is not fair.

20. THAT the Learned Trial Judge erred in finding that the defence of fair comment was made out, when in truth:

(a) the words 'character assassin' were a statement of fact and not a comment;

(b) no facts were proved in evidence which could support a fair comment to the effect 'Is that not character assassination';

(c) the fact that the plaintiff has used the term 'atta baba' in reference to Mr Sharda Nand was not of itself a sufficient basis for the comment 'Is that not character assassination';

(d)......................

(e) the defendant in its pleadings, submissions and evidence made no attempt to support the statement as a fair comment,

(f) there was no evidence to prove the meaning of the term 'atta baba' or any other facts to support the fairness of a comment 'Is that no character assassination'.

21. THE Learned Trial Judge erred in that, even if objectively the term 'atta baba' would support the words 'is that not character assassination' as a fair comment, the defence failed in this case by reason of the finding that the author misrepresented the plaintiff's reference to 'atta baba'."

The plaintiff pleaded that the letter in its natural and ordinary meaning conveyed the following defamatory imputations of him:

"(a) The plaintiff was of the view that Fijian Indians should be deported.

(b) The plaintiff as Prime Minister appointed one Senator Inoke Tabua who in turn as his nominee in the Senate has made disparaging remarks about Fijian Indians and such were being attributed to him personally in his position as the Prime Minister of Fiji.

(c) That the plaintiff was dishonest.

(d) That the utterances of Senator Inoke Tabua in the Senate were under the direction of the plaintiff.

(e) That the plaintiff was a racist in so far as he possessed an enmity against Fijian Indians.

(f) That the plaintiff was a bigot in so far as he had a dislike for Indians.

(g) That the plaintiff was a racist and unfit to lead the Fijian population as the Prime Minister.

(h) That the plaintiff was a troublemaker and nothing short of a political activist who stooped to the lowest forms of political agitation.

(i) That the Prime Minister was aligned with the man who had racist policies and/or attitudes and accordingly became vicariously identified as adopting and/or promoting and in fact supporting the attitudes of Senator Inoke Tabua.

(j) That the plaintiff as a tribal chief of his people was a man who was unfit in the circumstances to lead them and the rest of the population in his office as Prime Minister in view of his racist overtones and attitudes to certain sections of the multi-cultural society of which he was Prime Minister.

(k)....................

(l) That the Prime Minister is racially prejudiced and unfit for office because he nominated Senator Inoke Tabua to the Senate being a person who is also racially prejudiced and intolerant.

(m) That the Prime Minister is unfit for office and to be a Member of the Parliament because he cheated in the elections by resorting to unfair and improper electioneering tactics.

(n) That the Prime Minister is unfit for the office and to be a Member of Parliament because he was a party to character assassination by making false allegations against a political candidate.

(o) That the Prime Minister is unfit for office and to be a Member of Parliament because he behaved unfairly at the election by behaving in an improper manner in that he planted hecklers in coalition meeting and slipped fifty notes beneath doors in Lautoka.

(p) That the Prime Minister is unfit for office because he was undemocratic and did not obey the rules applicable to democratic society.

(q) The plaintiff is a hypocrite because he does not believe his expressed views of a multiracial society."

The defendants pleaded that if the words were defamatory, they were fair comment on a matter of public interest.

The learned Judges of Appeal reminded themselves (inter alia) that a judge sitting alone in a defamation action

".......... has to eschew construing the words complained of in a legal sense ...... and has to assume the mantle of the reasonable man of ordinary intelligence with the ordinary man's general knowledge and experience of men and affairs...... and assume the liberality wherewith the ordinary man is prone to perceive an implication."

See Lewis v Daily Telegraph (1964) A.C. 234 (at p. 277 and p. 258 per Lord Devlin and Lord Reid respectively).

and to ask

"Is the natural and ordinary meaning of the words that which is alleged ........

and:

(If not) what, if any, less injurious defamatory meaning do they bear?"

It was common ground that the letter was concerned with the matter of public interest and that respondents were entitled to adopt and advance what was in reality the protection afforded to the author and not the publisher of the words complained of.

The defendants acknowledged on the day following publication that the statement in the letter that Senator Tabua was the nominee of the plaintiff was untrue. That statement had been the substratum for several matters of comment in the letter.

The learned trial Judge found that the words in the letter in their ordinary and natural meaning conveyed one of the imputations for which the appellant (plaintiff) had contended viz. that in para (n) above and in that regard, was defamatory. He then upheld the respondent defendant's claim of fair comment and dismissed the action.

Their Honours said that the learned trial Judge did not appear to have considered paras. (k), (l) and (q). They noted that he found all the other imputations alleged had not been established.

Their Honours found that the words in para (n) (supra) as to character assassination were also defamatory-as the trial Judge had found.