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High Court of Solomon Islands |
IN THE HIGH COURT
OF SOLOMON ISLANDS
Civil Jurisdiction
BETWEEN: ROBERT SIAW KEE GOH - Claimant
AND: DAVID TUHANUKU - 1st Defendant
NATIONWIDE LIMITED - 2nd Defendant
Date of Hearing: 26 September 2016
Date of Judgment: 11 October 2016
Mr. Nimepo for claimant
Mr. Taupongi for defendant
Application to set aside the judgment entered for liability for defamation and application to assess damages for defamation.
Brown J:
Extempore:
Today, an application assessment of damages has been listing for hearing. Also handed up but not apparently served, is an application
by Mr. Tuhanuku to set aside the judgment entered previously restricted to the issue of liability in the absence of a defence.
The Rules set out the matters or hurdles over which the applicant need clear before the Court can, by the applications nature, grant leave but in the interests of justice, I shall proceed to hear it today since the facts do not admit of further delay. Rule 9.53
I do not accept the defendant’s more recent assertion that he never was served with the claim. I accept the sworn statement of Clement Jimmy Natei who deposes to the fact of personal service on David Tuhanuku at his employment, the office of the Prime Minister on the 7 June 2013, both of the claim filed 5 June 2013 and the statement in support by Robert Siaw Kee Goh.
I am further satisfied that no sufficient reason has been put forward to explain away the delay for an application to set aside, after he become aware in December last year that a “default judgment” had been entered against him.
From reading his statement I am further satisfied, as a consequence of his position, that he would aware of the nature of the proceeding against him and to seek to blame others for the delay when his own interest are at risk, is insufficient good reason that the interests of justice after such a length of time and now at such short notice, call for my discretion to allow the defendant in to now defend the case instituted in June 2013.
Any defence is plainly weak, relying as it does on fair comment. Part of the libel by the defendant was:- “I will also pursue the line that Whim, Patrick Wong and John Whiteside are alleged remnants of the Asian Mafia that controlled the Solomon Islands through alleged bribery and corruption spearheaded by Robert Goh when he was special Advisor to former Prime Minister Sir Allan Kemakeza”. Such an allegation may serve some purpose of the defendant but that does not necessarily make it fair comment. On its face, it is scurrilous.
After this length of time and since the defendant has refused to protect his interests, substantial prejudice would be suffered by this claimant, were the application to set aside the summary judgment for liability to be allowed.
Although I am not required to address the issue on trial, only here, in relation to the issue of whether a defence of “fair comment” may be available, even without argument, the matters in the statement of case may be seen to exceed the bounds of fair comment.
The application to dismiss the summary judgment, restricted to the issue of liability is refused.
The defendant shall pay the claimants costs of the application today.
The assessment of damages shall proceed.
Assessment of damages for defamation
Mr. Nimepo the Lawyer for the claimant, has proceeded with the claim for assessment of damages in relation to the libel.
For by his statement of case, the claimant seeks damages for libel, defamation of him in his profession as “the principal of Goho Partners, a firm offering public accountancy service and which was formally auditor for Russel Island
Plantation Estate Ltd (RIPEL).”
The Statements by the 1st defendant disparaged the claimant and may be said to be provocative of “hatred ridicule or contempt” in term of the understanding
of such phraseology used by Lord Blackburn1[1]
Before proceeding with the particulars of the particular libels, the defendants have been described by the claimant as follows.
I set out the particulars of the libels in the statement of case, since it is necessary to make findings in relation to the type of damages sought according to the nature of the libels.
Particulars
“In a press statement Mr. Tuhanuku also alleged that........”
“The Government and local shareholders must work together to initiate immediately a ‘Forensic Audit’ into the company’s formation, power structure, decision-making, general and financial management; and the roles played by John Whiteside, Patrick Wong, and Robert Goh in the formation of RIPEL”
“A Forensic Audit is necessary because on hindsight, I have no doubt that the Scheme of Arrangement, the RIPEL Shareholders Agreement, and subsequent actions taken since then by John Whiteside, Patrick Wong, Robert Goh and Mr. Whim were all based on a corporate structure which they shrewdly cooked up and built upon lies manipulation, and corrupt tactics, Mr. Tuhanuku said.”
[a] The letter was then produced to the Solomon Star newspaper whose personnel then saw the letter and published a story made from it. At all material times, Tuhanuku made the letter with the knowledge that it would be seen, used and published by the Solomon Star newspaper.
[b] In their natural and ordinary meaning the said words meant and were understood to mean;
i.] That Robert Goh was a shrewd person who used lies and was involved in manipulation and corruption.
[c] Further or in the alternative the said words bore and were understood to bear the meanings pleaded in paragraph 5[b] by way of innuendo.
[d] The words complained of in paragraph 5 above are calculated to disparage Goh.
[e] In consequence Goh’s reputation had been seriously damaged causing injury to reputation and injury to feelings.
And Goh claims damages for libel.
Additional Particulars
[a] “Making the call, a RIPEL Director, David Tuhanuku says roles played by John Whiteside, Patrick Wong and Robert Goh in the formation of RIPEL must be investigated.”
“Mr Tuhanuku alleged a forensic audit is necessary because it is possible the scheme of arrangement, shareholders agreement and subsequent actions from the trio were based on a corporate structure shrewdly cooked, manipulated and corrupt.”
[b] In their natural and ordinary meaning the said words meant and were understood to mean:
i.] That Goh was part of a “trio” that produced “a corporate structure that was shrewdly cooked, manipulated and corrupt”,
ii.] That Goh is a shrewd, manipulative and corrupt person.
[c] Further or in the alternative the said words are and were understood to bear the meanings pleaded in paragraph 6[b] by way of innuendo.
[d] The words complained of in paragraph 6[a] above are calculated to disparage Goh.
[e] In consequence Goh’s reputation had been seriously damaged causing injury to reputation and injury to feelings.
And Goh claims damages for libel.
Additional Particulars
[a] Paragraph 8; Tahanuku said the words;
“Some of the local media outlets appeared to have missed the point. But what I am working on now is to get the Government and RIPEL local shareholders named in the scheme of Arrangement approved by the RIPEL creditors and sanctioned by the High Court in 2002, to push for a ‘Forensic Audit’ of the entire RIPEL saga including how Whim, Patrick Wong, John Whiteside, and Robert Goh set up RIPEL in the first place”
“On hindsight, my view is that the formation of RIPEL and all actions undertaken by Whim, Patrick Wong, and John Whiteside since 2002 were based on deception and lies and only a Forensic Audit can determine this.”
[b] In the natural and ordinary meaning the said words meant and were understood to mean:
i.] That in 2002, Goh was involved in deception and lies concerning the setting up of RIPEL.
[c] Further or in the alternative the said words bore and were understood to bear the meanings pleaded in paragraph 7[b] by way innuendo.
[d] The words complained of in paragraph 7[a] above are calculated to disparage Goh.
[e] In consequence Goh’s reputation has been seriously damages causing injury to reputation and injury to feelings.
And Goh claims damages for libel.
Additional Particulars
[a] Paragraph 5 and 24; Tuhanuku said the words;
“Robert Goh whose company, GOH and PARTNERS helped to form and structure RIPEL was special Adviser to Sir Allan Kemakesa at the time”
“The RIPEL saga cannot be resolved with the direct involvement or Wong, Whim and Whiteside and without dismantling the Shareholders agreement of 2002 which has played a central role in this Cartel-Style set formulated by Wong, Whim and John Whiteside with the help of ROBERT GOH enabling them to take control of RIPEL and LSL.”
[b] In their natural and ordinary meaning the said words meant and were understood to mean:
i.] That Goh helped to form and structure RIPEL.
ii.] That Goh enabled Wong, Whim, and Whiteside to take control of RIPEL and LSL.
[c] Further or in the alternative the said words bore and were understood to bear the meanings pleaded in paragraph 8[b] by way of innuendo.
[d] The words complained of in paragraph 8[a] above are calculated to disparage Goh and in particular by the way Tuhanuku close to emphases Goh’s name by producing it in capital letters.
[e] In consequence Goh’s reputation has been seriously damaged causing injury to reputation and injury feelings.
And Goh claims damages for libel.
Additional Particulars
[a] Paragraph 6; Tuhanuku said the words;
“Also, I will put to any investigation into RIPEL initiated by local shareholders that I believe that Whim, Wong, and Whiteside took over RIPEL by seriously compromising some of the top National, Provincial, and community leaders of the Central Islands Province through Robert Goh who was in a very powerful position at that time (2002) being special Advisor to former Prime Minister Sir Allan Kemakeza.”
[b] In their natural and ordinary meaning the said words meant and were understood to mean:
i.] That Goh is a corrupt person.
ii.] That Goh corrupted national, provincial and community leaders of Central Islands Province.
[c] Further or in the alternative the said words bore and were understood to bear the meanings pleaded in paragraph 9[b] by way of innuendo.
[d] The words complained of in paragraph 9[a] above are calculated to disparage Goh.
[e] In consequence Goh’s reputation has been seriously damaged causing injury to reputation and injury to feelings.
And Goh claims damages for libel.
Additional Particulars
[a] Paragraph 7; Tuhanuku said the words;
“I will also pursue the line that Whim, Patrick Wong, and John Whiteside are alleged remnants of the Asian Mafia that controlled Solomon Islands through alleged bribery and corruption spearheaded by Robert Goh when he was special Advisor to former Prime Minister Sir Allan Kemakeza.”
[b] In their natural and ordinary meaning the said words meant and were understood to mean:
i.] That Goh is a members of the “Asian Mafia”.
ii.] That Goh, as a members of the “Asian Mafia”, “Spearheaded” the control of Solomon Islands through “bribery and corruption”.
[c] As is generally known, the Asian Mafia are an extremely corrupt and deadly criminal organization originating out of Asia.
[d] Further or in the alternative the said words bore and were understood to bear the meanings pleaded in paragraph 10[b] by way innuendo.
[e] The words complained of in paragraph 10[a] above are calculated to disparage Goh.
[f] In consequence Goh’s reputation had been seriously damaged causing injury to reputation and injury to feelings.
And Goh claims damages for libel.
Additional Particulars
[a] Paragraph 8,9,10 and 11; Tuhanuku said the words;
“The ordinary people of Solomon Islands knew about this Asia mafia and this is reflected what happened during 2006 Chinatown riots, which I believe to be a spontaneous reaction to his perception and the possibility of the same Government continuing in government after the 2006 general elections.”
“Firstly, the rioters set fire to Chinatown, then they moved on and set fire to the Pacific Casino Hotel where Robert Goh’s Head Office was based, and where did the rioters go after Pacific Casino?”
“They walked up the hill to East Koala Ridge and burnt to the ground Robert Goh’s Residence! And who helped Whim, Patrick Wong, and John Whiteside to form and structure RIPEL?”
“Robert Goh through his company, Goh and Partners!”
[b] In their natural and ordinary meaning the said words meant and were understood to mean:
i.] That Goh was a member of the “Asian Mafia” and this was known by the “ordinary people of Solomon Island”.
[c] Further or in the alternative the said words bore and were understood to bear the meanings pleaded in paragraph 11[b] by way of innuendo.
[d] The Words complained of in paragraph 11[a] above calculated to disparage Goh.
[e] In consequence Goh’s reputation has been seriously damaged causing injury to reputation and injury to feelings.
And Goh claims damages for libel.
The United Kingdom cases made plain the role of the judge was to be satisfied the words complained of were capable of a defamatory meaning in cases of ambiguity. If so they may go to a jury. Where the words are prima facie defamatory, then they may go to a jury. The roles in the Solomon Islands are combined. In so far as allegations in 8 [above] are concerned, I am neither satisfied the language used in its natural and ordinary meaning is defamatory nor by innuendo, is it defamatory. “the test, according to the authorities, is whether under the circumstances in which the writing was published, reasonable men, to whom the publication was made, would be likely to understand it in a libelous sense.”[2]
I am satisfied the other paragraphs language is prima facie defamatory and the prima facie nature has not been refuted by evidence.
The Court of Appeal, in Solomon Star Ltd v Wale[3] was careful to address the manner in which the trial judge was to approach the appropriate damages available to him.
The Appeal Court referred to “head of damages” or the kind of damages, which were claimed in that case on appeal, and
used Lord Devlin’s judgment in Rooks v Barnard[4] for a fuller exposition of the terms. It should be remembered that defamation is a tort or actionable civil wrong, and care should
be taken when necessary to identify the head of damage relied upon by the claimant. Lord Devlin confirmed that in these type of cases,
damages are “at large” so that redress is not restricted to proof of actual pecuniary loss but may take into account
motives and conduct of the defendant as they “injure the plaintiff’s proper feelings of dignity and pride”[5]
The basic head may be seen as compensatory, which encompasses that injury to the feelings of the claimant as a consequence of the defendant acts. For even in the absence of found pecuniary loss, the claimant is able to recover a sum as compensation for his lost pride and dignity, for no proof of actual monetary loss is necessary7. In this claim, I find the claimant has been disparaged by the 1st defendants language and in consequence the claimant has been tarnished with injury to his reputation and feelings. Apart from the 1st defendant’s assertion of fair comment covering the publications, no evidence has been given to undermine the reasonable presumption that the claimant was of good repute and honest. For the various publications by the 1st defendant undermine the presumption since they allege corruption, deceitfulness, dishonesty and membership of the “Asian Mafia”. I accept the reference to the Asian Mafia would by ordinary Solomon Islanders, be seen as a criminal group concerned with corruption and the association of ideas with Mr. Goh, that organization and the former Prime Minister, Sir Allan Kemakeza while Mr. Goh was special advisor would be extremely offensive. Had persons been following “the saga” of RIPEL they would be swayed by the continuing publications by the 1st defendant, a person of importance in the community by virtue of his calling and position.
A further head separately recognized is that of exemplary damages. [This is calculated to deter the particular offender from similar acts in future.] It is in the nature of a penalty to confirm the detestation of the act, and may be seen as punitive. Lord Devlin sought to restrict exemplary damages into two categories, the first; oppressive, arbitrary or unconstitutional action by the servants of the government. The standing of the 1st defendant in this case cannot by the possible assertion in the claim, be said to be that of a public servant presuming to exercise some power or authority of the Government, by use of the phrase, “in the office of”, rather he is shown to be critical of the former Prime Minister Kemekaza (and by definition his Government). The second category is that of the benefit seen to flow from the acts of the defendant to himself through detriment to the claimant8 by the defamation. Neither category is applicable in these proceedings.
Again, on the facts here, where the 2nd defendant company is a shareholder of the Company, RIPEL, in the absence of explanation on any facts in evidence showing a benefit flowing to the 2nd defendant company as a consequence of the libel, it would seem a detriment in asset value suffered by RIPEL through these libels would be reflected is a detriment to the value of the 2nd defendant company, yet the director of the 2nd defendant company saw fit to continue with statements likely to adversely affect the 2nd defendant companies value. There is no evidence to show any attempt to use the appropriate provisions of company law to deal with any conflict between the respective company interests, rather these libels have defamed the individual. Such behavior would appear to be contrary to directors’ fiduciary duties.
On the evidence of the claimant, I am not minded to find exemplary damages. Neither is there question of an award of exemplary damages expressly authorized by statute.
But the fact that I am precluded from considering as award of exemplary damages does not prevent me from considering an award for compensation enlarged by the aggravating factors in the behavior of the defendant in this case.
For as can be seen from the later particularized libel, the 1st defendant blames this Claimant’s provocation for the lawless conduct of the mob by their torching and looting of Chinatown, the Pacific Casino and the torching of his own home. Provocation claimed by this defamer cannot call in aid the acts of the mob. There are no facts tending to provocation by the claimant, rather the evidence suggests the 1st defendant’s libels were aggravating and may be treated as such on assessment of damages. Personal invective when company matters are issues concerning the shareholding company, Nationwide is evidence of malice in the director but on the face of the likelihood of diminution of value suffered by Nationwide, I am unable to find liability in the company for damage suffered by the claimant as a consequence of the 1st defendant’s libels.
There may be causal connection between the libels complained of and the mob’s behavior in the burning down of the claimant’s home but on the evidence before me, I am not willing to accept the 1st defendant’s assertion that his libels were a direct incitement to arson.
Following the passing of the Defamation Act 1952 [United Kingdom] the common law position was extended to allow a defamatory imputation that would tend to prejudice or hurt the claimant in his professional calling, to be actionable per se without proof of special damage to his income, for instance.
By virtue of Schedule 3 to the Constitution, the application of the common law and Acts of the United Kingdom in force on 1 January 1961 shall have effect as part of the laws of the Solomon Islands. Of course no jury is empaneled in the Solomon Islands to determine an award of damages in such cases as these, rather the judge stands in place of the jury, and it is left to the judge where damages are at large, to find an appropriate award. And the judge may look to the conduct of the defendant.
Direct evidence of malice and use of language to inflame the public against the claimant is apparent especially when I have regard to the latter particulars pleaded. To blame Mr. Goh for the Chinatown destruction and riots is beyond reason and devastatingly racist after the event. For the 1st defendant obviously associates Mr. Goh with the ethnic division seen as “Chinese” when blaming him for the riots.
By judgment of the Court of Appeal in Solomon Star Ltd v Wale, the court accepted the principle that the High Court may seek assistance from previous awards of damages for comparative purposes.
As well, this Court should not increase an award of damages where republication or rebroadcasting was shown. But these republications were not repetitions of the same materials, rather fresh material was broadcast, material of the defendant’s doing.
The number of attacks on the claimant clearly demonstrate malice. For republication originated in the defendant’s acts, and the responsibility rested with him.
The claimant filed his statement in support of the claim for damages on 5 June 2013. Apart from the statement of case formally claiming serious damage to reputation and injury to feelings, the claimant has not verified that effect in his statement in support. Nevertheless he reiterated the publications of the libels and I accept from the manner in which he has stated the allegations of the 1st defendant he impliedly denies the assertions but has been disparaged by them. He does not say they have been seriously devastating to him personally but a properly directed jury may come to that conclusion.
For, ignoring the quantum of damages awarded in the United Kingdom, the line of authorities cited by Lord Devlin clearly accept the principle that the jury (or here the judge) may fix the award, after looking objectively at the libels, rather than relying on any subjective view of the claimant. Hence, the disparaty of awards.
To plead fair comment in the circumstances of this case rather proves the malice, in the absence of facts to support the plea.
The facts are not dissimilar to those before my brother judge Faukona J who awarded $ 200,000 in the case of Wale. For that case considered matters amounting to treasonous conduct while the defendant in these proceedings presumes conduct of the claimant provoked mob action injurious to the State. The defendant’s later libel reflects the behavior of the mob and may accordingly be seen as also injurious to the State. Where there are alternate dispute resolution processes in relation to company matters available, racial vilification should not be countenanced as a means to the 1st defendant’s ends, whatever they may be. The Appeal Court suggested the defamatory material complained of in Wale “amounted to treasonous conduct and the penalty for treasonous conduct is invariably higher than any other criminal offence.”
To suggest this claimant deserved to have his home torched by the mob because he provoked the act rather exacerbates the offensive libel and the detestation of the court towards this brazen attribution of cause is justified.
In this case, a round sum of $ 500,000 is justifiable. I award the claimant $ 5000,000 for damages for defamation.
The claimant shall have his costs of the proceeding to be assessed and agreed or taxed on the normal scale.
BROWN J
[1] Capital &Counties Bank v Henty(1882) 7 App. Cas. 741 at 771
[2] Capital & Counties Bank v Henty [1882] 7 App Cas 741 per Lord Selborne at 745
[3] (2016) SBCA10, SICOA-CAC 11 of 2015 at 4
[4] (1964) 1 ALL.L.R. 377 at 396.
[5] Abidem P. 407 G.
7 English & Scottish Co-operative Properties v Odhams (1940) 1 K.B. 440 at PP.455,461
8 Rooks v Barnard ibid p.410 G, It.
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URL: http://www.paclii.org/sb/cases/SBHC/2016/175.html