Manakako said the government could not allow this to
happen.
Malasa was reported to have thrown away his wife and family and got himself a new one and had allocated himselfmself with a house
at
the expense of the government.
Much of the facts in the case were not contendhe
defendant treated them in his plea in defence as admitted, and his testimony
in court confirmed them. They are these: The defendant was at the time of
the events leading up to the incident,
the subject of this case, the
Secretary to Prime Minister. He was responsible for, among others, the
Public Service.
The plaintiff was employed in the Public Service Division.
He held a post at the ranking of level 8 in the Management Section,
but was
acting in a post at level 9. He had marital problems as the result of which
he moved out of his house and occupied
house No. 1533 at Naha, Honiara, a
house being rented by government for its employees. The plaintiff paid
$55.23 per
fortnight as rental; the sum was deducted from his salary. There
was government policy that employees who owned houses were
not to be
allocated government houses. When the deputy of the defendant, Mr. Fred Iro,
was in need of a house, the defendant
learnt that the plaintiff who owned a
house was in occupation of government house No. 1533. The defendant
instructed
Under Secretary, his subordinate in the Public Service Division,
to get the plaintiff out of the house and to have the house
allocated to
Fred Iro. The plaintiff pleaded to be allowed to remain in the house or be
posted to a province so as to
solve his housing problem; he did not vacate
the house. His plea was rejected and when he continued to remain in
occupation
of the house, he was charged as a procedural way leading to
possible disciplinary action. The plaintiff still remained in occupation
of
the house. In a letter dated 16.6.1994, the defendant dismissed the
plaintiff from the Public Service, forthwith.
The letter advised that the
plaintiff had right to appeal. He did; his appeal was partly successfully in
that the punishment
of dismissal was reduced to severe reprimand. Only a few
days after the dismissal of the plaintiff, a Mr. Lamani of Solomon
Star
called the defendant in his capacity as Secretary to Prime Minister, to
inquire about government expenditure and
rumours about corruption. As the
result of the conversation with the defendant, Mr. Lamani published on
22.6.1994, the
article complained about.
Facts in Dispute
/p>
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The plaintiff testified in court and sought to prove
other facts which are not conceded. The facts in contention were: He was
dismissed because of insubordination not because he allocated a house to
himself rather, "housing secretary",
T. Anitau allocated the house. He did
not occupy the house at the expense of government, he paid $55.23 per
fortnight
for it. The defendant published the story simply because he was
angry with the plaintiff. It was not the responsibility of
the defendant to
allocate houses, rather it was that of Administrative Officer (Housing) and
Senior Administrative Officer
(Regulations).
The defendant's evidence were: That the plaintiff indeed
left his wife for another woman with whom he lived. He obtained the
key for
the house, No. 1533, at Naha, without the house having been properly
allocated to him, and, even when the improper
temporary allocation was
revoked, the plaintiff refused to vacate the house. The plaintiff at the
time was on level 8
in the Management Section of the Public Service
Division, but was acting Principal Administrative Officer, on level 9. The
defendant was responsible for house allocation; the Administrative Officer
(Housing) and Senior Administrative Officer
(Regulations) were responsible
"only routinely." Applications which had other than normal reasons were for
the defendant's consideration. They would be "channelled" through the Under
Secretary in the Public Service Division.
The application of the plaintiff
would be such a case. The defendant did not know about it and would have
refused it
anyway, because the plaintiff had a house and it was the policy
not to allocate house to house owners, besides, the plaintiff's
difficulty
was the result of infidelity; if he was allocated a house, may be another
officer guilty of infidelity would
also ask for a house. The defendant said
that what appeared in the newspaper article was "in effect" what he had
told
Mr. Lamani. It was justified because it was true.
What the Plaintiff Proved
The position is therefore that the plaintiff has proved
that the defendant published to Mr Lamani,mani, the
words in the article. The defamatory meaning that the plaintiff asked the
court to accept was in his
own words, "that the plaintiff misused his
position in the Public Service to allocate himself with a house at
government's expense
and that he was dismissed for that reason." I agree
with the submission of Mr. Radclyffe that the meaning that the plaintiff
pleaded is the ordinary meaning of the
words published in exhibit No. P1.
There is a prima facie defamatory meaning. All that the plaintiff needed to
do was
to prove that the words complained of were falsehood, and were
published, that is, communicated to someone other than the plaintiff,
by the
defendant, and of course that the ordinary meaning of the words are
disparaging to the reputation of the plaintiff.
The plaintiff has proved
that the words are defamatory. It was for the defendant to prove that the
meaning of the words
were not disparaging to the reputation of the
plaintiff, and that the words did not tend to injure the reputation of the
plaintiff so that he would be lowered in the estimation of right thinking
people; the words did not bring him into hatred,
contempt, ridicule, fear,
dislike or disesteem generally so as to cause or be likely to cause people
to shun him. The
definition of defamation has remained that stated by Lord
Atkin in Sim v. Stretch (1936) 52 TLR 669 at page 671. Since then
cases tended to show that right thinking persons need not be logical
thinking persons; it is
the general impression in the community about
esteem. For instance a recipient of falsehood may be aware that it is false,
yet there will be defamation. A falsehood or even the truth that a woman has
been raped should, logically, not be cause
for lowering her esteem, and is
doubtful whether people nowadays will shun her because of that, yet it is
defamation
according to the case of Youssoupoff v. Metro - Goldwyn -
Mayer Pictures (1934) 50 TLR 58 1.
Defence Case
&nbs>
The defendant's defence was that there was no falsehood
in the statement published that in any case it was faas fair comment
about a
matter of public interest; he was the head of Public Service and was
entitled to make the comment. His defence
of truth, that is of justification
was properly pleaded in his defence. In my view he has also established it
in evidence.
I accepted the defamatory meaning given by the plaintiff, that
is that the plaintiff misused his position in the Public Service
to allocate
a house to himself, at the expense of government. Those words impute
dishonesty and do lower the plaintiff's
esteem, but the law on the point is
that if the words are true it is justified to lower the esteem. The reason
is stated
by Littledale. J. in the old case of McPherson v. Daniels
(1829) 10 B and C 263 also (1829) KB 14, as, "For the law will not permit a
man to recover damages in respect of an injury to character which he either
does not or ought not to possess." Moreover, it does not matter whether the
publisher was actuated by malicious or improper
motive. The submission of
Mr. Radclyffe that the defendant published the defamatory, story because he
was angry with
the plaintiff is of no consequence, and so is his question,
"why pick on the plaintiff when there were many house owning
officers and
action had not been taken against them?" I think that the defendant had to
start with someone; it happened
to be the plaintiff. In any case the
defendant made reasonable administrative explanation for starting with the
plaintiff.
He said that the plaintiff's case came up for action, and the
plaintiff was a senior officer directly in the Public Service
Division and
in the defendant's department.
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Decision
In proving justification, the rule is that the defendant
not prove the statement literally; it will suffice if he shhe shows
that the
statement is true in substance. The essence and not all details of the
defamatory meaning need be true. A case
in point is Sutherland -v- Stopes
(1925) AC 47. Their Lordship set themselves the task of identifying the,
"real sting of the matter" in an article which stated
that the plaintiff had
taken advantage of poor women who sought contraception, carried out
dangerous experiment and used
obscene publications.
I examine first the statement that it was at the expense
of the government. The plaintiff said that it was not true because
the
plaintiff paid $55.23 per fortnight for the house. He, however, admitted in
cross-examination that the rent he paid
for the house would not be the same
as the rent that Fred Iro to whom the defendant intended to allocate the
house would
pay. The plaintiff paid the $55.23 based on his salary. That was
also in his testimony. In fact he was evasive about stating
the figure even
in examination in chief. It has therefore been proved that some element of
the rent was being borne by
government. A non monetary meaning of "at the
expense of the government and at the expense of others" would be this:
The
plaintiff admitted that there was government policy not to allocate house to
officers who owned houses. The plaintiff
occupied house No.1533 at Naha,
Honiara when he was not supposed to because he owned a house. The number of
officers
eligible for allocation of houses remained unnecessarily higher by
the one house that the plaintiff wrongly occupied. The number
of people
waiting for houses was stated in evidence to be 1000. That was at the
expense of government. That meaning is
true even if I were to accept the
argument of the plaintiff that he occupied the house after due allocation by
Mr. T
Anitau, because he remained in occupation after that temporary
allocation had been revoked and therefore at the expense of
government for
the period after revocation of the allocation.
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The statement that the plaintiff misused his position to
allocatse to himself was also said to be true by the defendant. Tht.
The
plaintiff adduced evidence to show that the house was allocated to him by
letter dated 10.3.1994, signed by T. Anitau
who he said had the
responsibility to allocate houses, and not the defendant. The allocation
letter is exhibit No. P4
in court. He also said that he was employed in the
Management Section of the Public Service, not in the Regulations Section,
the section which had responsibility for allocation of houses. So the
plaintiff's case was that the court should restrict
the meaning of
allocating to, authorising by letter, exhibit No. P4. The defendant, by
evidence and cross examination,
wanted the court to interpret "allocating
house" and, "helping themselves" to include (1) taking occupation
improperly
and (2) refusing to vacate the house after revocation of the temporary
allocation which the defendant said
was improper anyway.
The plaintiff, in his testimony in chief, gave the
ssion, without candidly committing himself, that he first arst applied for
the house to Mr. Anitau who he described as the "Housing Secretary", got the
allocation and then took occupation.
Cross-examination of him altered that
impression. He was asked about how he applied, he said that he wrote a
letter.
When asked for the date of the letter and to whom it was addressed,
he changed his testimony saying that he filled a form.
He was asked whether
the form was addressed to the Secretary to the Prime Minister, (the
defendant). He agreed, but added
that it was marked "for attention of Chief
Administrative Officer." When asked whether the letter reached the
defendant, he said that it was up to the registry. Then the plaintiff was
very evasive about the date he got the key for
the house and from whom he
got it. He did not commit himself to a date, saying he did not remember. He
first said that
he learnt about the house being vacant from neighbours,
wantoks, and that he got the key from them. Then he changed and said
that he
got it from someone who the previous occupier had left in the house to keep
the house. He had no answer to suggestion
that the previous occupier was his
wantok and he knew him well. The defendant succeeded in getting the
plaintiff to admit
that he did not get the key from the allocating
authority. The plaintiff even denied that he wrote a letter accepting
allocation, until he was shown exhibit, No.D6, dated 15.3.1994. The letter
was written by him, addressed to, "Secretary
to the Prime Minister, Attn: T
Anitau." It would appear that his difficulty was to admit something which
suggests
that the defendant had anything to do with allocation of houses. I
do not accept wholly what the defendant said about his role
in allocating
houses. From the evidence, other officers normally actioned allocation in
his (Secretary to Prime Minister's)
name. That means that he was responsible
for allocation policy, and indeed if any application was outside the policy
and therefore outside working instruction, his view had to be obtained. On
the whole, the plaintiff's story that he obtained
the key after allocation,
is less probable than that of the defendant that the plaintiff got the key
before. That is
because the plaintiff was very evasive about the allocation
actions and about the actual obtaining of the key. He would have
checked the
date of obtaining the key, it would have shown in his pay slip since he said
that rent was deducted from
his salary. Importantly, why would an occupier
not return the key to the allocating authority and rather leave it with
someone after he had vacated? Would he not be asked for it or be forced to
continue paying rent? It appears that the plaintiff
had obtained the key, by
reason of being associated with Public Service Division, and allocation was
a foregone conclusion.
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Another related line of evidence is this: Mr. Anitau, the
actioning officer was merely an Administrative Officer in Regulations
Section of the Public Service Division. He was a very junior officer. Above
him was Senior Administrative Officer, according
to exhibit No.D10 which
outlined job description. According to the plaintiff, Anitau was responsible
to Chief Administrative
Officer (Regulations). He, the plaintiff, was a
level 8 officer in Management. That was meant to show that he was the
counter part in Management. Then he admitted that he was acting in a level 9
post. The defendant said that level 9 was that
of Principal Administrative
Officer. That is more senior to even the officer to whom Anitau was
responsible, and it is
in the Public Service Division as a whole. The
plaintiff said that he knew about the policy not to allocate to house
owners, yet he submitted his application, which went against policy, to a
very junior officer. If it was not meant to put undue
pressure on the
junior, then it was meant to circumvent the policy without those more senior
to the plaintiff knowing.
That would be using his position or helping
himself. I do not believe, anyway, that he submitted any application; the
evidence tends to show that he obtained the key, that is occupation first
and then asked for allocation letter. If there was
application letter or
form the plaintiff would have produced it or called Mr. Anitau to say that
application letter or
form was given to him by the plaintiff. The submission
of Mr. Radclyffe that there was falsehood in the statement that the
plaintiff was dismissed for insubordination and not for improper allocation
of house to himself cannot be upheld. The
insubordination was the result of
the improper taking up occupation of the house and refusing to vacate the
house after
the improper allocation had been revoked. The distinction is
about words not meaning.
Summary of Decision
For the reasons I have given, I have decided Mr.
Manakako published the words complained about, by utterance to Mr. Lamani.
The words are prima facie defamatory, in the meaning stated by the
plaintiff, being that they meant that the plaintiff
misused his position to
allocate government house to himself at the expense of government - the
article included the
words, "at the expense of others. " The defendant has
proved that there was justification in that the meaning was
true because
that is what happened. I do not think that the expression "allocated to
himself" should be restricted
to allocation in writing; it should include
improper taking up occupation, and or refusing to vacate after the right
authority had asked the plaintiff to vacate. After all would it matter to an
ordinary reader whether the improper allocation
was by letter or by taking
up occupation or by misusing the weight of senior position? The law on the
point is that the
meaning need not be the literal meaning, rather what an
ordinary reader would understand from the words. The claim about misusing
office for personal gain at the expense of government is dismissed.
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It was conceded that the utterance about the plaintiff's
domestic situation was true and the plai would not pursue the claimclaim
of
defamation based on the utterance. The claim relating to the utterance about
the plaintiff's domestic situation is
also dismissed. True it may have been,
but it appears to me to have been unnecessary. Fortunately for the
defendant,
the law of defamation in Solomon Islands is the Common Law of
England; it does not require that even if there is truth, there
must be need
to utter the disparaging truth. The Roman Dutch Law requires so. The Law of
New South Wales, in Australia
since 1847 required that there be public
benefit in the statement; it was changed to public interest. Queensland,
Tasmania
and Australian Capital Territory followed suit. Even in England,
justification is not available defence in malicious disclosure
of spent
conviction of persons.
The defence of justification has succeeded, the plea of
fair comment dot then arise - see Dakhyl v. Gabouchere (1908) 2
2
KB 325, and Digby v. Financial News [1906] UKLawRpKQB 166; (1907) 1 KB 502. I accordingly do
not deal with the plea of fair comment.
The plaintiff's claim in defamation in this case is
dismissed. Costs are awarded against the plaintiffavour of the
defendafendant.
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Dated this 9th day of July 1997
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Sam Lungole-Awich
JUDGE
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