Mwemwenikarawa v Timeon [2011] KIHC 8; High Court Civil Case 132 of 2010 (21 January 2011)

In the High Court of Kiribati
Civil Jurisdiction
Held at Betio
Republic of Kiribati

High Court Civil Case 132 of 2010

Between:

Nabuti Mwemwenikarawa
Plaintiff

And:

Hon Taberannang Timeon as
Publisher of "Boutokaan Te Koaua
Newsletter"
Defendant

For the Plaintiff: Mr Banuera Berina
For the Defendant: Ms Taoing Taoaba

Dates of Hearing: 20 & 21 January 2011

JUDGMENT

These Reasons should be read following the decision of 20 January 2011 on the only defence pleaded, qualified privilege.

Before argument on damages Ms Taoaba asked me to correct a mistake in the earlier judgment: on page 5, the third to last paragraph and in brackets. I accept the mistake – Ms Taoaba did not concede that the broadcast of the parliamentary proceedings was irrelevant. She submitted that the broadcast was relevant as it was the same matter as was published in the article of which the plaintiff complains. I have already found that it was not the same matter. Even correcting my mistake the broadcast is not relevant despite Ms Taoaba's position.

Counsel were able to agree facts:-

1. The newsletter has been widely circulated in North Tarawa, South Tarawa, Betio and Abaiang. It is also circulated throughout Kiribati but the extent of circulation is not known.
   
2. The Plaintiff is no longer leader of the Opposition. He lost that leadership after the article was published. The other two political parties who were in coalition with the Plaintiff's party when the Plaintiff's party was leading the opposition had joined up to form one party.
   
3. During the debate on the need to set up a select committee in 2004 to investigate the involvement of the Plaintiff when he was the Minister of Finance with a pretty Japanese lady, the then member of the opposition MP Patrick Tatireta informed Parliament that he was the one who took the Japanese around to meet with Ministers.
   
4. Further when that motion was debated the ruling Boutokaan te Koaua Party which has an interest in the newsletter that published the article complained of defended the Plaintiff and objected to the setting up of the Committee as being unnecessary.
   

Although Ms Taoaba had signed the Statement she had one qualification. It related to paragraph 2 and was to the effect that the plaintiff did not necessarily lose the leadership of the Opposition because of the article.

Mr Berina next tendered two letters. The first (marked Exhibit P1) a copy of his letter dated 26 July 2010 addressed to

The Publisher

Boutokaan te Koaua Newsletter Office

Antemai

The second (marked Exhibit P2) a letter from Mr Patrick Tatireta MP dated 30 July 2010 addressed to

The Hon Banuera Berina.

I set out the relevant parts of each.

Mr Berina's letter was written quite promptly, in the same month as the issue of BTK Newsletter was published:-

Re: DEMAND FOR APOLOGY AND COSTS: NABUTI MWEMWENIKARAWA

1. I act for Nabuti Mwemwenikarawa the member of Parliament from North Tarawa and the Leader of the Opposition.
   
2. In your issue of your newsletter Nambwa 2/2010, Turai 2010 under the heading "Tera Tibwangam Ibukin Abam te Mataniwi n te Kaaitara" your newsletter stated, in discussing NEM as follows"
   

[here is set out the article].....

5. Such article, in its ordinary meaning, does convey the following meaning to any reader:-
   
1. That my client, when he was a Minister of Finance, fraudulently tried to transfer $3 million from Kiribati Insurance Corporation and $50 million from the government's reserve fund to the lady from Japan for his own benefit and had it not been for the diligence of the staff at the Kiribati Insurance office and of those who look after the reserve fund, the Insurance Corporation and the government reserve fund would have lost $3 million and $50 million respectively.
   
2. That my client, when he was the Minister of Finance, had conspired with the lady from Japan to fraudulently transfer monies from Kiribati Insurance Corporation and from the reserve fund for their own benefits.
   
3. That my client had abused his office when he was a Minister of Finance in his attempt to obtain benefits for himself at the expense of public funds.
   
4. That my client is dishonest, deceitful and not to be trusted.
   
5. That my client is not fit to hold any position of trust.
   
6. That my client, because of his deceitful nature, should resign from being Leader of the Opposition and from his seat as a Member of Parliament.
   
6. You knew or ought to have known as well as members of Boutokaan te Koaua Party knew or ought to have known that such assertions are not true and are grossly defamatory of my client.
   
7. The purpose of this correspondence is to demand an apology from you and all those who are connected to the newsletter. My client demands that such apology, which must be framed and worded in such a way as to the satisfaction of my client, must be published in your next issue of your newsletter and you make a copy available to me for my client.
   
8. My client also demands payment of $350.00 being legal costs.
   
9. Unless the demands herein are met within 2 weeks of the date hereof court proceedings will follow. I trust you will see to it that the matter does not end up in Court.
   

The only response to Mr Berina's letter was from Mr Patrick Tatireta MP:-

Re: DEMAND FOR APOLOGY AND COSTS?: NABUTI MWEMWENIKARAWA

I write on behalf of the Publisher whom you forwarded your correspondence demanding compensation in respect of the Leader of the Opposition whose name is captioned above.

I furnished all the information to the BTK Publisher and requested that my article be printed in their newsletter. For ease of reference I would like to stress here that I am not quite happy myself with my released article for the BTK Publisher withheld some facts on the matter where the former Minister of Finance who is now your Leader of the Opposition whom you are representing did, with full awareness, try to invest three million dollars (3 000 000.00) of the Kiribati Insurance Company entrusting the investment to a Japanese lady whose name is Miss Yumiko.

I first met this lady by chance at the Ministry of Information, Communication and Transport in 2004.

[Mr Tatireta then goes on to say that it was he who took the Japanese lady to meet other ministers and the Beretitenti. He was at the time an Opposition Member of Parliament. After canvassing some allegedly actual or possible misconduct by the Minister – including that the plaintiff accepted an envelope containing $10,000 from the lady but gave it back the next day - the letter continued].

What kind of apology are you demanding for your client from the BTK Publisher? You call yourself a lawyer? You are demanding an apology for your client whom you state has been so badly and wrongly defamed and demand in compensation an apology for your client whom you state has been so badly and wrongly defamed and demand in compensation $350.00. I have no business in your assessment and to the weight of the defamation affecting your client but if it is only $350 I would be more than willing to write fiction and accept to pay $350.00.

Such a shame, a leader of an opposition party worth $350 when defamed. You know very well that what I wrote in that article is the sole truth, the whole truth and nothing but the truth.

In response to paragraph 5 of your letter I wish to elaborate that

Paragraph 5

1. That your client (not fraudulently) but did try to transfer $3 million from Kiribati Insurance Corporation and did also try to transfer $50 million from government reserve fund to the lady from Japan for Kiribati and for his own benefit.
   
2. That was exactly what transpired. Why accept the envelope? Bona fide agreement in an envelope???
   
3. I second you on that.
   
4. I can word it no better.
   
5. Analyse it yourself. Is he to be trusted after what he did?
   
6. Boutokaan te Koaua members have nothing to do with the article. It is solely my article and they are not assertions nor assumptions. I wrote what actually transpired without malice.
   
7. You must inform your client that he will never receive an apology from me but if BTK Publisher wishes to apologize for printing the truth then let him do so.
   
8. If this is what your client is worth then I pity the value of your Leader bearing in mind what you consider as assertions.
   
9. You make claims as much as you want for I will never cease in requesting true and factual events and happenings to be released by BTK newsletter.
   

You have been writing articles about me concerning KOSEA, Mataraoi, Unbefitting to be Minister and what not. I do not fret myself over your assumptions. I pride myself in having you affected by the truth that I have written. You and especially your client had the full opportunity when this was mentioned in the last session of Parliament but why did you keep silent??? Your client never responded then but has now plucked up courage to defend himself by having you threaten to sue me? I have the full right to express myself and it is my duty to the people to announce or write what I know is the truth to enlighten and inform people. I will not even hesitate to write articles about any corrupt dealings that the government might conspire in.

I trust that your letter has been well responded to and I wish you all the best. Convey my regards to your client.

This letter is written as the first words say, "on behalf of the Publisher". It is the only response ever received by the plaintiff. It has never been disavowed by the defendant. It is not an apology: the reverse – "what I wrote in that article is the sole truth, the whole truth and nothing but the truth". The letter reaffirms in robust language the truth and accuracy of the facts in the article. It compounds the libel. Yet neither justification nor any other defence was pleaded in the Defence: Ms Taoaba did not seek to raise any.

That the defendant did not plead justification must be taken as an implied admission by him that the contents of the article are false. He has never apologized. At the end of the hearing I asked Ms Taoaba whether her client would make an apology. She said that he would not.

In assessing damages a court may take into account the conduct of the defendant subsequent to the original publication. Mr Tatireta's letter on behalf of the defendant and the refusal of any apology aggravate the defamation in the article.

Damages for defamation are quite at large as all the authorities say. Much has been written and can be written about the factors to be taken into account in making an assessment but it all comes back to what is a fair and reasonable amount in the circumstances of the particular case.

I refer only to two cases. The first because the words of the Master of the Rolls are apt, given the facts of this case. The second because
Roger Coventry J sums up succinctly the assessment process.

In John v MGN Ltd [1995] EWCA Civ 23; (1996 2 All ER 35 @ 47-48) Sir Thomas Bingham MR discusses compensatory damages:

The successful plaintiff in a defamation action is entitled to recover, as general compensatory damages, such sum as will compensate him for the wrong he has suffered. That sum must compensate him for the damage to his reputation; vindicate his good name; and take account of the distress, hurt and humiliation which the defamatory publication has caused. In assessing the appropriate damages for injury to reputation the most important factor is the gravity of the libel; the more closely it touches the plaintiff's personal integrity, professional reputation, honour, courage, loyalty and the core attributes of his personality, the more serious it is likely to be. The extent of publication is also very relevant: a libel published to millions has a greater potential to cause damage than a libel published to a handful of people. A successful plaintiff may properly look to an award of damages to vindicate his reputation: but the significance of this is much greater in a case where the defendant asserts the truth of the libel and refuses any retraction or apology than in a case where the defendant acknowledges the falsity of what was published and publicly expresses regret that the libelous publication took place. It is well established that compensatory damages may and should compensate for additional injury caused to the plaintiff's feelings by the defendant's conduct of the action, as when he persists in an unfounded assertion that the publication was true, or refuses to apologise, or cross-examines the plaintiff in a wounding or insulting way ..... There could never be any precise, arithmetical formula to govern the assessment of general damages in defamation .....

As Roger Coventry J put it in Bob Herston v Kalfau Moli (Supreme Court of Vanuatu, Civil Case 19/2000), "the purposes of an award of damages for defamation are –

Consolation for the distress

Reparation for the harm done to reputation

Vindication of the plaintiff's reputation"

I am indebted to Mr Berina for referring me to decisions in Vanuatu, Western Samoa and Fiji. I have read and considered them all and shall be guided by the principles set out. They are also most useful as a guide to amount to be awarded in defamation actions in the Pacific: much less than is awarded nowadays in New Zealand, Australia and the United Kingdom. Yet still substantial. The three decisions to which Mr Berina has referred me are all 10 or more years old. In the meantime the value of money has somewhat declined. The awards today may well have been more than they were then.

I am also indebted to Ms Taoaba for her reference to my decision in HCCC22/00 Teraoi Tetabea v Boutokaan te Koaua. I awarded only nominal damages of $200 as I did "not regard it as a serious libel: not quite trivial but not serious". Easily distinguishable from this case where the libel is serious.

I did wonder whether the fact that both gentlemen are members of Parliament is relevant. Finally I included it is not. As Mr Berina said when I put it to him, it is one thing to trade insults on the floor of the House but another to publish deliberately outside Parliament a libelous article.

The damages I award are principally compensatory but because of the defendant's conduct subsequent to publication, beginning with Mr Tatireta's letter do include some element of aggravated damages. I assess one sum for compensatory and aggravated damages. What is fair and reasonable in all the circumstances? I award $55,000.00.

I shall hear counsel on the form an order, if I make any, for an injunction should take.

Dated the 26th day of January 2011

THE HON ROBIN MILLHOUSE QC
Chief Justice

NOTE

I began the hearing of this action on 13 December as the notes on the front cover of the file shew. To fix a date for further hearing the action was listed for mention on 31 December. On 13 January the hearing was adjourned to 17 January to hear a possible application to disqualify myself from hearing the case. On 17 January no such application was made and the hearing continued immediately.

Pursuant to S.86 of the Constitution I was part heard when my commission as Chief Justice expired but able to "sit as a judge of the Court for the purpose of giving judgment or otherwise".

Neither counsel raised the matter.