Edwards v Simiki [2002] TOSC 42; C 0821 2000 (7 March 2002)

IN THE SUPREME COURT OF TONGA
CIVIL JURISDICTION
NUKU’ALOFA REGISTRY

NO. C. 821/2000

BETWEEN:

HON. WILLIAM CLIVE EDWARDS
Plaintiff

AND:

1. ‘OFA SIMIKI
2. VIKA PULINI
Defendants

BEFORE THE CHIEF JUSTICE WARD

Date of ruling: 7 March 2002

RULING

At the close of the evidence and before counsel commenced their final addresses to the jury, I sought their agreement on the proper form of questions that the jury would be asked to answer.

I had proposed that the first question should be, “Do the words read out by the second defendant have a meaning that is defamatory of the plaintiff?”

Mr Tu’utafaiva for the first defendant has submitted that the first question should be, “Whether the actual words stated, in paragraph 4 of the statement of claim, to have been spoken by the second defendant were spoken?”

He points out that paragraph 4 starts, “During the course of the meeting the second defendant verbally explained and read out a document which was approved by the first defendant and their committee for the purpose of inviting people to sign it. She stated inter alia to the meeting...” and there are then set out the alleged statements.

The defence he has pleaded is that no verbal explanations were made by the second defendant and the only words spoken were those in the petition. He relies on the rule that the actual libel must be stated in the claim. Although the evidence adduced by the plaintiff has never proved any other words, there has been no application by the plaintiff to amend his claim.

Mr Fakahua for the second defendant adopts that submission in relation to his client.

The plaintiff suggests that the purpose of the pleadings is to give the other side notice of the case that is to be proved. He suggests that the words in the claim set out the same ingredients of the allegation against him as the words which have been proved to have been stated and that is sufficient. He has made no application to amend his claim.

There is plentiful authority for the proposition that, in defamation claims, the words themselves are the material facts and therefore must be pleaded. Clearly where the words, although in writing, are only stated orally the plaintiff may have some difficulty in setting them out accurately but he must do the best he can. If the written document is in the exclusive custody of the defendant and the plaintiff is unable to sight it, he must await the trial and serve a subpoena duces tecum. When the document is produced and if there is a difference between the words in the document and those pleaded, he may apply to amend.

That was not done in this case but the actual document was put in evidence. Had the plaintiff accepted that the words on the petition were the actual words read out, it would have been a simple matter, and one certain of success, to seek to amend accordingly. However, even at the end of the trial when the advice of counsel was being sought in chambers about the exact form of the questions, the plaintiff was reluctant to made any such concession.

This is a case where the precise form of the words could have been easily discovered. The document in question was in the hands of a third party and there had been a criminal trial at which the document was extensively reviewed.

The failure to check and amend the statement of claim before the trial was careless and the manner in which it was presented in court on the basis of the case pleaded was equally careless.

However, I must decide whether the first question should be as Mr Tu’utafaiva suggests. If it is in that form and the jury answer it in the negative, that must be an end of the case.

I have some sympathy with the defendants’ position on this but it is clear to me that the case has been run entirely on that basis that the words uttered by the second defendant that day were those in the petition produced in the trial. There has been no evidence to counter that defence. Despite the plaintiff’s refusal to limit his claim to those words, I shall sum up to the jury on the basis that no words other than those in the petition have been proved to have been stated by the second defendant.

However, despite the strictness of the rule as stated in many cases in England, since Tournier v National Provincial Bank [1924] 1 KB 461, there is some scope to relax the rule. That was a case of slander but I consider the same principle may apply in a case of libel.

In those circumstances I rule that the first question shall be:

1. Were the words spoken by the second defendant at the meeting on 13 September 2000 substantially to the same effect as the words alleged in paragraph 4 of the statement of claim?
   

I agree that, if the answer to that question is in the negative, the case cannot go further and the jury will not be asked to answer any further questions.

NUKU’ALOFA: 7^th March, 2002

CHIEF JUSTICE