Fotu v Loketi [2003] TOSC 23; AM 007 2003 (6 May 2003)

IN THE SUPREME COURT OF TONGA
APPELLATE JURISDICTION
NUKU'ALOFA REGISTRY

NO. AM 7/2003

BETWEEN:

KALISI FOTU
Appellant

AND:

LOTANA LOKETI
Respondent

BEFORE THE HON. JUSTICE FORD

COUNSEL: Mr Luki Veikoso for appellant and
the respondent in person.

Date of hearing: 2 May 2003.
Date of judgment: 6 May 2003.

JUDGMENT

The appellant issued defamation proceedings against the respondent in the Magistrates' Court claiming damages in the sum of $500 and costs. The case was heard in Mua on 12 March 2003. The magistrate rejected the claim on the basis that the appellant had not been able to establish that she had suffered any damage to her reputation as result of the defamation. She now appeals to this Court against that decision.

The 49 -year-old appellant, Kalisi, and the 43 -year-old respondent, Lotana, are from the village of Vaini. They are neighbours and the court was told that, prior to the incident giving rise to this claim, they were close friends. They have known each other virtually all of their lives and they both belong to the same church.

Kalisi is married to Nai and they have four children. The eldest, aged 24, is in the police force; the second son, aged 23, lives in New Zealand, the third child, aged 18, is a student at Tonga High School and the youngest child attends Talafo'ou High School. On Saturday 8 February 2003 Kalisi and Nai were walking to the local shop to buy some meat for their Sunday meal. On the way they met Lotana who asked if they were having nice food. Kalisi replied that they were having "beef, bacon, tinned corn beef and tinned fish." Lotana then turned to Kalisi and said in an angry tone, "sosa moe peleti" which translates as "saucers and plates".

Kalisi was extremely upset over this remark and that afternoon she and her husband went to the Vaini Police Station and made a complaint to police officer Pouvalu over what Lotana had said. Lotana also attended the police station and the police officer asked her who she was referring to when she said, "saucers and plates"? Lotana indicated that she was referring to Kalisi and her older sister, Veiongo.

The court was told that in Tongan terminology the phrase "saucers and plates", when used in the context intended in the present case, is tapu and deeply offensive. It signifies two woman having an affair or a lesbian relationship. The older woman metaphorically is the "plate" and the younger woman the "saucer". The respondent alleged that Kalisi and Veiongo had carried on their activity in a cave known as "Pusi Cave" a long time ago. Veiongo, the older sister, is now deceased.

After the complaint was lodged with the police, Lotana obviously began to realise the seriousness of the situation and she became very remorseful over what she had said. She attended Kalisi's home with the Church Minister, Vili Fangupo, on the Monday and formally apologised but Kalisi told the Minister to go and pray about it because she was not satisfied with the apology. Further attempts were made with the assistance of the Church Minister to try and resolve the impasse but Kalisi told the court that, as the rumour was circulating in the village, she felt the only way that she could restore her reputation was through court action. There was no evidence before the court that it was the respondent who had been responsible for spreading the story in the village.

In his decision, the magistrate referred to the definition of "defamation" in section 2 (1) of the Defamation Act (CAP.33) and noted that the words complained of must either damage the reputation of the other person or expose him or her to hatred, contempt or ridicule or cause the person to be shunned. The magistrate went on in his decision to say that the only witness called by the appellant was her husband Nai and he did not say anything in evidence to suggest that the words were damaging to his wife's reputation. Hence, the court held that the action failed.

Mr Veikoso complained that the husband had given evidence to the effect that if the allegation was true then he would divorce his wife and he had allegedly given other evidence establishing that his wife's reputation had, indeed, been damaged but, counsel went on to submit, that through the fault of the court clerk, "a lot" of the evidence given at the hearing is missing from the transcript.

Had that been the end of the matter then I would have upheld the Magistrates' decision and dismissed the appeal. This Court has frequently stated that if counsel intends to challenge the record of proceedings in the Magistrates' Court then there is a proper way to go about doing that. Counsel challenging the record should first give notice to the other side and seek agreement as to what was actually said or, failing that, file affidavit evidence of the matters under challenge and then seek the court's leave to adduce that evidence at the hearing. That was not done in the present case and, on the basis of the transcript of evidence before the court, the magistrate's finding, that there was no evidence of any damage to the appellant's reputation, would have to stand.

That is not the end of the matter, however. Section 16 of the Defamation Act provides that in certain situations, a civil action for defamation will lie without proof of any resulting damage because such damage is presumed. If the defamatory words fall within the category of cases identified in section 16 then all a plaintiff needs to prove is that the words were spoken of him or her and the cause of action is complete. In such a case, the law presumes that the plaintiff has suffered damage without the need for actual proof.

One of the categories listed in section 16 is when spoken words, "impute unchastity to a woman or girl." In Kerr v Kennedy [1942] 1 KB 409, the court was dealing with the identical wording in section 1 of the Slander of Woman Act (UK). Asquith J., after observing that lesbianism "as a phenomenon has existed for at least 2500 years", concluded that the "imputation of lesbianism is an imputation of unchastity" within the meaning of the Act. The learned judge held that what is meant by the presumption in the statute is that any false imputation of unchastity is such an intrinsically outrageous slander that it ought to be actionable even if no pecuniary loss results.

The present case falls within the same category. In my view, the defamatory words were actionable per se without the need to formally prove damage to reputation.

The respondent, who is a divorced woman with eight children, told the court that she was unable to afford a lawyer but she appeared on her own behalf at the appeal hearing and made some short submissions. She explained that she was angry when she spoke the words in question because of the appellant's reference to "tinned fish". In a rather convoluted explanation, she said that some years ago she had had a "one night stand" with a man and in the morning he had left her a tin of fish. When the appellant had mentioned the tin of fish, along with the other food items, Lotana assumed that she was teasing her about the one night stand. In court, she again expressed remorse over her actions but the appellant was equally adamant that she wanted judgment in her favour in order to clear her name.

Counsel invited the court should the appeal be upheld, to remit the case back to the magistrate but I have decided against that option. Instead, I make a formal order allowing the appeal and setting aside the decision in the court below.

Trying to balance the obvious hurtfulness to the appellant of the defamatory words against the genuineness of the respondent's remorse and her very limited publication of the defamation is not an easy task. Taking all relevant factors into account, I consider that the justice of the case can best be met by a damages award of $100 and judgment is entered for the appellant in that sum. The appellant is also entitled to costs but, as the point upon which the appeal succeeds was not taken either in the court below or in this Court, I award costs on the appeal, in an amount to be agreed, or, failing agreement, at two-thirds of the sum allowed on taxation.

NUKU'ALOFA: 6 MAY 2003.

JUDGE