Uan v Ritema & Biribo - Judgment [2006] KIHC 87; 16-06 (18 July 2006)

IN THE HIGH COURT OF KIRIBATI
Civil Jurisdiction
Held at Betio
Republic of Kiribati

High Court Civil Case 16 of 2006

Between:

LINDA UAN
Plaintiff

And:

AAKO RITEMA
TEIWAKI BIRIBO
Defendants

For the Plaintiff: Ms Fleur Hamilton
For the Respondents: Mr Karotu Tiba

Date of Hearing: 18 July 2006

JUDGMENT

The background to this action is the unhappy differences which have developed among those concerned with the Kiribati School for the Disabled.

The action is for defamation. The plaintiff was formerly the Project Officer at the School. The first defendant is her successor, the second defendant the Chairman of the Parents Support Group. Paragraphs 4 to 7 of the Statement of Claim, admitted in the Defence:-

4. The 1st Defendant is the project officer for the aforementioned Parents Support Group and the School.
   
5. The 2nd Defendant is the chairman of the Parents Support Group.
   
6. On or about 17th February 2006 the 2nd Defendant signed a letter to all Parents, grandparents and guardians of the children who attend the School for the Disabled.
   
7. The 1st Defendant published and distributed the letter referred to in paragraph 6 above.
   

There was no hand-over/take-over when one lady succeeded the other as Project Officer. They did not communicate. The only communication was through the second defendant.

The first defendant, going through the records, could find nothing to account for certain sums of money which had been spent. She wrote a report. In parts of the report she wrote disparagingly of the plaintiff. The report was attached to the letter signed by the second defendant and circulated, "to all Parents, grandparents and guardians of handicapped children". The defamation complained of is in the report:-

Unlawful withdrawal of funds

In Linda’s time as Project Officer, withdrawals of funds have been carried out under her authority (because she has signed the withdrawals) from the School accounts and funds from donors, amounts as high as $13,000 at one time, another is $6,000, $10,000 and many others. This is not the way public funds should be handled, and she has done this - there is no record of these funds. There is no information about it and no money left. What is the reason for the withdrawals of disabled children’s funds at one time and without any records? My feeling is that - had she worked for the Government, you have no other place but the prison for your embezzlement of donor funds. And I wonder how she presented her reports to the donors? No wonder she gets all angry when we wanted all the papers for auditing.

During the hearing there was discussion as to whether this translation accurately reflected the original Kiribati. In the Further Amended Defence the correct translation is alleged to be:-

INCORRECT PROCEDURE OF WITHDRAWING MONEY

At the time when Linda was a Project Officer, withdrawals of funds had been carried out under her authority (since she signed the withdrawals slips) from the Schools Account on donors funds, which amount can be $13,000 in one lump sum, $6,000 in another time, $10,000 in another and many others. This is not, absolutely not the correct procedure of handling public funds to be executed like this - no supporting vouchers, no details and where were the balances gone to? Why should the Children’s money in the sum of thousands of dollars be withdrawn in one go without any records? As I said had you been employed by Government, you have no other place but the prison for the irregularities done to the donors fund. No wonder why she so refusal and got angry when we asked for those accounting records for auditing. Her responses were, "documents are all lost, or all muddled up or do not have them with us". Is this the kind of person we are going to rely on?

Perhaps the most significant difference between the two translations is that in the defendants’ the Kiribati word "kamangao" has been translated "irregularities done" rather than, is as in the plaintiff’s, "embezzlement". It makes no difference to the sense of the passage. The sting is in the assertion that a person who does things which the plaintiff was said to have done should end up in gaol. People go to gaol for doing bad, dishonest things: the plain inference in the context is that the plaintiff had done bad, dishonest things.

Whichever translation one adopts the words "in their ordinary signification are capable of being defamatory" (per Lord Atkin in Sim v Stretch ((1936) 2 ALL ER 1237 @ 1240). The words expose "the plaintiff to hatred, ridicule and contempt". To adopt the test proposed by Lord Atkin, "the words tend to lower the plaintiff in the estimation of right thinking members of society generally".

The words are capable of a defamatory meaning. Are they in fact defamatory?

Justification and fair comment are pleaded in paragraph 4 of the Further Amended Defence:

1. Justification
   

That the statement allegedly complained of are substantially true and that inferences from both fact and comment are true.

Particulars

(i) That there was actual withdrawals authorized and signed by the Plaintiff;

(ii) That there was withdrawals made in the sum of $13,300.00 on 14/5/04 and $4,000.00 on 19/9/04;

(iii) That the monies withdrawn were not recorded as to their spending.

2. Fair Comment
   

That the statements allegedly complained of are statements of fact on which the comment is based are substantially true and are matters of public interest and that the comment on those facts is true.

Particulars

(i) That the procedural and practice of proper management of handling money were not duly followed.

For the defences of justification and fair comment to succeed the words complained of must be proved to be true in substance and in fact. The onus of proof is on the defendant.

There were only two witnesses, the two ladies concerned, the plaintiff and the first defendant.

The plaintiff denied any wrong doing and explained that every dollar spent on projects had been accounted for to the donors: the donors had receipts for expenditure and no copies were kept but "spreadsheets" had been prepared giving details of expenditure. The spreadsheets should have been available to her successor. Ms Hamilton tendered by consent a number of letters from various donors all of which support the plaintiff’s evidence that all monies spent were accounted for.

The first defendant in her evidence did not identify any wrong doing by the plaintiff. She denied she had a personal vendetta with the plaintiff or that there was bad blood between them. Her report to the committee suggests the opposite.

The defendants have failed to prove the defences of justification and fair comment.

The words complained of were defamatory. The defendants had no justification for publishing them.

The plaintiff succeeds on liability.

It was agreed that I should first decide liability and, if the plaintiff succeeded, hear the parties further on damages.

Dated the day of July 2006

THE HON ROBIN MILLHOUSE QC
Chief Justice