Ati v Eriakim [2003] KIHC 162; Civil Appeal 08 of 2002 (4 December 2003)

IN THE HIGH COURT OF KIRIBATI
CIVIL JURISDICTION
HELD AT BETIO
REPUBLIC OF KIRIBATI

High Court Civil Appeal 8 of 2002

Between:

MELITIANA ATI & OTHERS
Appellant

And:

TAWARE ERIAKIM
Respondent

For the Appellant: Mr. B. Berina
For Respondent: Mr. Aomoro Amten

Date of Hearing: 4 December 2003

JUDGMENT

The appellant and respondent are or were husband and wife. Whether or not they still are lawfully married they have gone their separate ways. The respondent wife sued the appellant husband for their defamation. The Single Magistrate found the defamation proved and assessed damages @ $992.00.

The facts are in the Single Magistrate's judgment. Briefly they are that the bridegroom got quite drunk at the wedding party. The bride left the hotel after midnight without him. He joined her between 0200 and 0300 in the morning. A white cloth had been laid out on the floor. The groom had intercourse the bride. Despite his drunken condition, it is common ground that there was penetration. Afterwards no blood on the white cloth, just a bits of staining. The bridegroom concluded that his wife had not been a virgin. He communicated this to his sisters who were awaiting the result outside. The sisters telephoned the bride's mother. Subsequent medical examination at the hospital shewed that after all the Respondent had been a virgin.

The Single Magistrate found the defamation proved against the Appellant, holding that his defence of justification not proved. The defence of qualified privilege had been raised but the Single Magistrate did not, in her reasons, consider it.

Mr Berina, without objection from Mr Amten, explained the custom to me. That a bride should be a virgin is regarded in Kiribati society as most important. The white cloth is laid down so that the couple may lie on it and have sexual intercourse for the first time. If the bride be a virgin the hymen will rupture, there will be bleeding and the blood will stain the cloth. The bride and groom are alone but relatives wait outside for report on blood or not.

The custom was followed but unfortunately gave, as medical examination showed, a false result.

Gatley (8^th ed @ para 444) under the sub-heading "Statements Made in the Discharge of a Public or Private Duty" sets out Baron Parke's statement of the law in Toogood v Spyring:

"In general, an action lies for the malicious publication of statements which are false in fact, and injurious to the character of another, and the law considers such publication as malicious, unless it is fairly made by a person in the discharge of some public or private duty whether legal or moral, or in the conduct of his own affairs, in matters where his interest is concerned. In such cases the occasion prevents the inference of malice which the law draws from unauthorized communications, and affords a qualified defence depending on the absence of actual malice. If fairly warranted by any reasonable occasion or exigency, and honestly made, such communications are protected for the common convenience and welfare of society."

That exposition in 1834 is still good law. It covers the situation here. The Appellant spoke in discharge of a private moral duty (to report to his sisters whether or not there was blood on the cloth, whether or not his wife was a virgin). He spoke "in the conduct of his own affairs, in matters where his interest (was) concerned". There is no evidence of actual malice on his part: he apparently acted in good faith.

If the Single Magistrate had considered qualified privileges he would have found the defence proved.

Although, in view of the conclusion I have reached, the assessment of damages becomes of no consequence I suggest that it would have been helpful if the Single Magistrate had given some guidance as to how she reached the figures she did and why she divided the assessment in two – "for loss of plaintiff's marriage $500.00: for general damages - $492.00". Normally assessments of general damages are made in round figures in her assessment of $492.00 is puzzling. In any case I consider a total of $992.00 is rather too high. Perhaps as much as $500.00 would have been more appropriate.

The appeal is allowed. The order of the Single Magistrate is quashed. There will be judgment for the Appellant dismissing the Respondent's action against him.

THE HON ROBIN MILLHOUSE QC
CHIEF JUSTICE