Asia Pacific Investment Development Ltd v Sasako [2018] SBHC 3; HCSI-CC 524 of 2015 (31 January 2018)

ASIA PACIFIC INVESTMENT -V- ALFRED SOLOMON

DEVELOPMENT LTD, SASAKO, SOLOMON STAR

BINTAN MINING (SI) LTD, LIMITED, EDITOR OF

SUPREME RESOURCES LTD SOLOMON STAR
(1^st 2^nd 3^rd Claimant) NEWSPAPER
(1^st 2^nd 3^rd Defendant)

IN THE HIGH COURT OF SOLOMON ISLANDS
(BROWN J)
Civil Case No.524 of 2015

Date of Hearing: 13 October 2017
Date of Judgment: 31 January 2018

G. Suri for claimant
No appearance for defendant

Brown J:

Damages claim for libel

Following judgment declaring publication of an article “Secret Shipment” in the Solomon Star newspaper on Friday 25 September 2015 constituted serious and damaging libel, this court now comes to assess damages. Since the publication is relatively short, I propose to set it out in full for the claimants say its, by its natural and ordinary meaning and by innuendo, publication has seriously libeled these claimants.

1. “ Secret Shipment
2. Asia Pacific Investment Development Ltd (APID) appears to have exported an unspecified ton of bauxite stockpiled on West Rennell, exclusive photographs obtained by this newspaper have shown.

100. The consignment left the country about two weeks ago following a High Court Order, which allowed the log ship to leave with 6,000 cubic meters of illegally-felled round logs on Rennell.

4. It is not clear whether APID has informed authorities that it was exporting bauxite, along with the round logs.”
5. It is also not clear whether APID has an export licence for the consignment of bauxite.
6. APID, a logging company masquerading as a mining concern, has admitted in a recent High Court hearing that it did not have a felling licence for the round logs it extracted on West Rennell.
7. The photographs obtained by this newspaper show large blocks of dirt (earth) being cut out and loaded onto a barge.
8. A West Rennell landowner claimed recently that APID used the 6,000 cubic meters of round logs it was allowed to export to camouflage its cargo of bauxite, which had exported.
9. The photographs are the first direct evidence suggesting there is some truth to the initial claim by the landowner.”
   

The claimant asserted the meaning and innuendo, in the publication to be,

1. “That the Claimant stole bauxite from the people of West Rennell, the SI Government and the nation as a whole. In fact the Defendants made it look like pricey at work.
2. The Claimants deceived the people of West Rennell, the SI Government and the nation as a whole by concealing bauxite export.

100. That the Claimants avoided paying relevant export duty to SI Government.

4. That the Claimant companies thrive on theft or conversion of bauxite.
5. That the Claimants colluded or corrupted Forestry Officer and Customs Officers to conceal bauxite amongst logs.”

On the face of the publication it is difficult to accept the assertions in c) to e), above when the ordinary Solomon Islander may not be sufficiently cognizant of commercial affairs of this type to reach such conclusion. The natural and ordinary meaning however, does suggest theft and deception, concepts well understood here.

Mr. Suri, counsel for the claimant has not shown, on the articles face, why damages should follow in favour of these other claimants, as well as Asia Pacific Investment Development Ltd (APID). They are not named in the article. No evidence has been introduced to show loss by the 2^nd and 3^rd claimants of their companies’ reputation. Nor is there any claim for direct loss caused by the publication. Agency association through commercial arrangements or cross-company holdings wholly unassociated from the wording of the publication cannot, by reason of such association or arrangement give rise to any claim for libel by this article in the absence of evidence referring to them or of damage.

I am left then to determine the seriousness of the effect of the article on the companies’ reputation “in the way of its trade or business”^[1]
The claimant seeks the higher range for damages, relying on the conduct of the defendant as “high handed malicious, insulting or oppressive.”^[2]

Before proceeding to consider an appropriate award, I accept there has been no apology by the publisher although the articles author, Mr. Alfred Sasako did publish a letter in the newspaper seeking to exculpate himself by arguing the use of the word, “appears” in the article somehow excuses the article’s libelous nature. That argument can be seen to concede the absence of “truth” in the original article for certainly no defense of truthfulness has been pleaded by these parties sued. Such absence of curiosity about “facts” woven through the article, used in such fashion to amount to a libel by the innuendo (of impropriety) implied with the leader, “Secret Shipment” is a reminder that journalism in this country is still practiced by some, including Mr. Sasako, to foster notoriety rather than knowledge. When the paper publishing and the editor accepts such lack of intellectual rigor in its journalists, they must suffer obligation to pay for such lack of professionalism. The damage in this case is not restricted to the party complaining; rather it has ramifications further afield for the effect of shallow snipes at this mining company may well signal to others contemplating business in the Solomon Islands such business is not without risk of obloquy. For such is the effect of this kind of “false news”, highlighted in this claim.

In support Mr. Suri, counsel for the claimant company, has read the statement of Solomon Maui the principal land owner of the APID mining tenement of West Rennell who had worked with APID to build public relations with landowners and the community, relation hindered by the article which, he says has “damaged the good work which we have been and are providing to the community of West Rennell, such as medical clinic, ambulance service and other community programs”.

It may have undermined the communities support, but when the principal landowner and agent for APID has continued to support APID and recognizes impliedly that “awareness” programs are necessary to explain the benefit flowing from the companies work, a recognition which reflects somewhat on the cupidity of the community, I am not satisfied the companies reputation has suffered to such a material degree as to call for higher compensatory damages. There is no suggestion the companies continued business relations with the Government or the people at West Rennell has suffered to such as extent that its existence was threatened, as was the case referred to, PNG Aviation Services.^[3] The article, whilst defamatory through lack of care does not rise to that categorization as, “high handed, malicious, insulting or oppressive” calling for greater compensation.

Another supporting statement is by William Tino, a trustee of the land parcel in which bauxite mining was being carried out in West Rennell. He says he spent time and effort to assure the landowners that the allegation “might be groundless and untrue” and that it took more than one year before he could see change in peoples attitude towards APID.

The statements in support reflect the parochial view and natural reticence of those concerned at the tenor of the article but does not appear to go beyond that.

Teng Song Chok of Ranadi Industrial Area, Honiara, Managing Director of Tan Sri Marine Products, a business carrying out shipping and sea transportation in the Solomon Islands stated he was shown the headline in the Solomon Star (the article) and contacted APID. He does not presume to say, however, that his company declined to do business with APID as a consequence, rather in his opinion the article caused damage to APID amongst the business community. The nature or extent of such damage has not been detailed.

Solomon Maui by his original statement filed with the claim, deposing as the principal land owner of the mining tenement called Naone land, stated, “the article was a serious concern to us, the landowners of West Rennell especially my Clan who owned the Naone portion of land. The clearly false message sent to the public and landowners was that the claimant stole bauxite by secret shipment of bauxite hidden in large blocks of dirt amongst logs. This was a very serious and damaging allegation” Of course the article has had an effect on him in his position with the company but it does not follow that he speaks for the company when he says “this was a very serious and damaging allegation”. He then went on to recite the steps taken by the company and the lawyer for the company, and annexed such letters not originated by him. Whilst one of the letters annexed, was under letter-head of Asia Pacific Investment and Development Ltd, (and claimed the article in the Solomon Star was seriously defamatory) and addressed to these now named defendants, it did not further the claimant case for damages by alleging any particular loss as a consequence of publication. Rather it sought “proof” of various matters, none of which have been raised as issues in the pleadings or in evidence so as to give this Court assistance in determining an amount, appropriate, for monetary loss.

The claim, consequently may be seen to be one then for injury to the company’s reputation. Apart from the letter from APID to these various defendants wrongly annexed to a landowners statement (it was neither his document nor did the contents concern him), no officer of the company has seen fit to make complaint by statement.
If objection has been made to the inclusion of the original statement by Solomon Maui, with its contestable annexure, no evidentiary material whatsoever supporting this claim by APID may have been before the court. Whilst I accept Mr. Suri has acted upon instruction, the manner in which this claim has been pleaded has been in a somewhat cavalier fashion.

Once defamation has been found, this court shall make an appropriate award according to the evidence. In this case damages shall be restricted to that head of damage referred to as “company reputation”. The evidence to assess both the companies’ reputation before and since publication of the article is sparse or absent. The effect on others than the company, may by reflection, be seen to be suggestive of effect “serious and damaging” to the company, for that is the only way the Court can justify an award. The company’s relationship with landowners was certainly at stake.

As I have said previously, this court should have regard to the standard of living of most Solomon Islands and should not be swayed by the size of awards in other jurisdictions’ currency. This court should not fall prey to a culture of litigation whenever somebody, [aggrieved by apparent slight or offensive ad hominem criticism by words or in print who seeks redress], causes this court to accede to claims for damages by awards which may leave the ordinary Solomon Islander nonplussed.

The Court in this case also finds the libel to be mild, in the category of willful carelessness amounting to mischievous conduct wholly unprofessional of a responsible journalist, where the claimant companies’ reputation has suffered but not to such extent [in absence of meaningful evidence] as to justify a large award.

I award damages for libel in the 1^st claimant’s favour in the sum of $ 10,000, against the three defendants. The 1^st claimant shall have interest on the judgment dated from institution of proceedings in accordance with the Rules. It shall have its costs on the 3^rd schedule basis. Claim by the other claimants shall be dismissed with no order as to costs.

BROWN J

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^[1] PNG Aviation Services Pty Ltd v Somare(2000) PGSC 18, SC658 (1 Dec 2000)
^[2] Supra per Saliha J
^[3] PNG Aviation Services Pty Ltd v Somare [2000] PGSC 18 (1 Dec 2000)