Tupou v Saulala [2004] TOSC 38; CV 272 & 220 2001 (21 July 2004)

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

NO. CV. 220/2001

BETWEEN:

TEVITA POASI TUPOU
Plaintiff

AND:

1. SANGSTER SAULALA
2. ANNA TUPOU
3. MASAO PAASI
Defendants

NO. CV. 272/2001

BETWEEN:

TEVITA POASI TUPOU
Plaintiff

AND:

1. SEMISI KAILAHI
2. SANGSTER SAULALA
3. OCEANIA BROADCASTING NETWORK LIMITED
Defendants

BEFORE THE HON MR JUSTICE FORD

Counsel: Mr Waalkens for the plaintiff and Mr Stanton for the defendants

Date of hearing: 7 July 2004
Date of judgment: 21 July 2004

JUDGMENT

The short point at issue in this interlocutory proceeding is whether or not the defendants are entitled to have their substantive defamation actions tried by jury. The plaintiff contends that they are not.

It is necessary for me to say something, albeit briefly, about the background to the two cases. The writs were issued in April 2001. At that time the plaintiff was a Minister of the Crown, Attorney-General, Minister of Justice and Deputy Prime Minister. The first action relates to an attack on the plaintiff, which appeared in an article on the front page of the "Tonga Star" newspaper on 12 March 2001. The second, relates to similar allegations made in a television programme called "Check it Out" which was broadcast on 3 April 2001. The gist of the allegations in both cases was that the plaintiff had made a deliberate false statement on oath and to that extent he had committed perjury.

The allegations related to an affidavit which the plaintiff had sworn on the 30th of January 1998 where, according to his own statement of claim, he "had mistakenly said that one, Anna Tupou, was one of a number of people present at a meeting in San Francisco on 7 March 1996."

At this stage, the two actions have not been consolidated but all the indications are that this will happen in the near future. In both cases Mr Stanton, who acts for all the defendants, seeks to have the matter tried by jury. The delays up until now in progressing the case to trial cannot be attributed in any way to the court.

Numerous, and some lengthy, affidavits have been filed by both parties. The plaintiff seeks orders that the trial of the two actions should take place before a judge alone rather than before a jury. He alleges that the defendants have "disentitled themselves of the right to trial by jury" in that through their actions they have "poisoned" the minds of potential jurors or influenced them in such a way that the prospect of a fair trial by jury has been put in "serious jeopardy".

In this regard, the plaintiff places particular reliance upon a petition which was submitted to His Majesty on 5 April 2001 by one of the named defendants, allegedly on behalf of all the defendants, inviting the King to take action against the plaintiff for, amongst other things, "committing the crime of perjury." The petition was signed by 1051 persons. The plaintiff also relies upon other adverse publicity which he alleges was generated by the defendants and was designed to influence the minds of potential jurors.

The defendants take issue with the plaintiff's allegation that he is unlikely to obtain a fair trial before a jury. They stress that the people of Tonga have a constitutional right to petition the King. They also refer to various articles published around the period of time in question in which the plaintiff, as they put it, "freely participated in a debate in the media concerning the issues in these proceedings and his reputation generally." Mr Stanton also made the point that if there has been aggravation by other attacks on the plaintiff in the media, as alleged, then that will sound in damages.

In his typically succinct submissions, Mr Waalkens accepted that his whole argument centres around the interpretation of clause 99 of the Constitution. I shall set that provision out in full:

"99. Any person committed for trial before the Supreme Court on a charge of having committed any criminal offence punishable by a term of imprisonment exceeding two years or a fine of five hundred pa'anga or both such penalties shall if he shall so elect be tried by a jury; and whenever any issue of fact is raised in any civil action triable in the Supreme Court any party to such action may claim the right of trial by jury; and the law of trial by jury shall never be repealed."

(emphasis added)

Mr Waalkens submitted that the intention from the "clear and deliberate wording of the clause" was that it is mandatory for serious criminal offences to be tried by jury whereas the use of the word "may" in relation to civil actions gives a party the right to elect to have trial by jury but the right is optional at the exercise of the court's discretion.

Specifically, in relation to the present case, Mr Waalkens does not deny that the section creates a right for the defendants to claim trial by jury but, as he put it, the right is not mandatory. In other words, once the claim is made, the court needs to then consider "the circumstances and/or facts of the case" and exercise its discretion as to whether jury trial is appropriate.

Mr Waalkens accepted that if this interpretation of clause 99 is correct then we have a situation where the laws of Tonga provide no guidance as to how a judge should go about exercising his or her discretion but counsel invited the court to invoke English authority, "both judicial and academic", which in his submission "strongly supports the submission that in the case before the court, trial by judge alone should be ordered."

For his part, Mr Stanton strongly disagreed with the plaintiff's interpretation of clause 99. Counsel referred the court to all the other constitutional provisions, enactments and rules of court dealing with trial by jury and he submitted that, when read in context, clause 99 affords a constitutional right to a party in civil litigation to have the case tried by jury. Mr Stanton asked rhetorically why, if all clause 99 gave a party to civil litigation was a right to ask for a jury (a right which may or may not be granted depending upon the exercise of the judge's discretion), would it be necessary for clause 99 to conclude with the words of entrenchment, "the law of trial by jury shall never be repealed".

Counsel for the defendants further submitted that as Tonga has its own Defamation Act and Constitutional and other statutory provisions dealing with the right to trial by jury, there is no need to have recourse to any English legislative provisions on the subject such as section 69 of the (UK) Supreme Court Act 1981, which was one of the authorities relied upon in the plaintiff's written submissions.

I agree with that particular submission although, in fairness, it should be pointed out that Mr Waalkens's submissions on this aspect of the case were filed prior to the passing of the Civil Law (Amendment) Act 2003 which dispensed with the provision allowing this court to have recourse to English statutes of general application in certain circumstances.

Mr Stanton analysed the other statutory provisions and rules of court dealing with the right to trial by jury. The significant provisions he highlighted were:

1. Clause 11 of the Constitution (Cap. 2).

This clause deals with the procedure on indictment but concludes with a sentence referring to trial by jury in civil cases. The sentence reads:

"And all claims for large amounts shall be decided by jury and the Legislative Assembly shall determine what shall be the amount of claim that may be decided without a jury."

2. Section 13 (1) of the Supreme Court Act (Cap. 10) which reads:

"Civil actions shall be commenced by writ of summons and may by the consent of the parties thereto be tried by the Chief Justice, or a Judge of the Supreme Court, without a jury."

3. Order 23 Rule 2 of the (Tonga) Supreme Court Rules 1991 which read:

"(1) Subject to (2), an action shall be tried by a judge alone.

(2) An action shall be tried by a judge sitting with a jury if any party notifies the Court that he so desires."

The thrust of Mr Stanton's submissions were that these provisions were consistent with an intention by the Legislative Assembly in clause 99 of the Constitution to grant a mandatory right to trial by jury, upon request, to any party in a civil action.

Mr Waalkens contended that Mr Stanton's analysis of clause 11 of the Constitution "did not stand up to scrutiny." He maintained that the Legislative Assembly had never determined the amount of those claims that may be decided without a jury and, if it was correct that trial by jury was mandatory by virtue of clause 11 then, as Counsel expressed it, "out goes section 13 (1) of the Supreme Court Act" which gives the parties the choice, by consent, to have an action tried without a jury.

Mr Stanton's response to this particular submission was that the Legislative Assembly had, in fact, determined the amount of those claims that may be decided without a jury. In this regard, he referred to section 4 of the Supreme Court Act, which fixes the jurisdiction of the Supreme Court in civil claims to all cases in which the amount of the claim exceeds $500. No mention was made in argument to section 59 of the Magistrates' Courts Act, which fixes the limit of the amount of claims in civil cases before a magistrate to a sum not exceeding $1000.

In relation to section 13 (1) of the Supreme Court Act and Order 23 Rule 2, Mr Waalkens submitted that they were both inconsistent with his interpretation of clause 99 of the Constitution and, to that extent, they should, pursuant to section 34 of the Interpretation Act (Cap. 1), be disregarded as being ultra vires the Constitution.

Mr Stanton, on the other hand, contended that clause 11 of the Constitution, section 13 (1) of the Supreme Court Act and Order 23 Rule 2 of the Court Rules are all consistent with clause 99 if that provision is interpreted as granting a mandatory right to a party in a civil action to have the case tried by jury.

I must say that I have some problems with Mr Stanton's analysis of clause 11 of the Constitution. Even accepting that the $1000 figure mentioned in the Magistrates' Courts Act constitutes the Legislative Assembly's determination of the upper limit of civil actions that may be tried without a jury, the mandatory requirement that claims for any higher figure shall be decided by a jury seems to be inconsistent with the interpretation for which both parties contend in relation to clause 99.

In other words, whether clause 99 gives a party a constitutional right to trial by jury (as argued for by the defendants) or a non-mandatory right, subject to the discretion of the Court (as argued for by the plaintiff), both propositions appear to be inconsistent with the notion in clause 11 that all claims for large amounts are to be decided by a jury.

The plaintiff relies upon, what he calls, the "plain and literal meaning" of clause 99 and, in particular, the difference in meaning between the use of the obligatory word "shall" in relation to trial by jury in criminal cases and the use of the non-obligatory word "may" in relation to trial by jury in civil proceedings.

The authorities make it clear that, while the grammatical and ordinary sense of words used in a statute is to be adhered to, if such an interpretation would involve some absurdity, repugnancy or inconsistency with other parts of the enactment then the grammatical sense must be modified insofar as it is necessary to avoid such a result. In this regard, one of the most important rules of statutory interpretation is that words must be read in the context. As Lord Davey expressed it in Canada Sugar Refining Company v R [1898] UKLawRpAC 47; [1898] AC 735, 741:

"Every clause of a statute should be construed with references to the context and other clauses in the Act, so as, as far as possible, to make a consistent enactment of the whole statute or series of statutes relating to the subject-matter."
(emphasis added)

Bearing these principles in mind, I am satisfied that the interpretation of clause 99 argued for by the defendants in the present case is the correct one. If it were otherwise so that the clause offered no more than the right to ask for trial by jury; a right which may or may not be granted depending upon the discretion of the judge then that is hardly the type of right that deserves even a mention in the Constitution, let alone any type of entrenchment such as that provided by the additional words "and the law of trial by jury shall never be repealed."

Mr Waalkens argued that if the right to trial by jury was a mandatory right then clause 99 would have been worded differently and the word "shall" would have been substituted for "may". Against that, it seems to me that there is equal, if not even stronger, force in Mr Stanton's submissions that if the intention of the Legislative Assembly was to give the court a discretion in the matter then that should have been clearly spelt out and some criteria should have been included or referred to in the legislation upon which the judge could exercise that discretion.

In this regard, for example, section 69 (1) of the (UK) Supreme Court Act 1981 allows for an action to be tried by jury, "unless the Court is of the opinion that the trial requires prolonged examination of documents or accounts or any scientific or local investigation which cannot be conveniently made with a jury . . ." That is a helpful guideline to a judge and it is the type of provision I would have expected to find in the Tongan legislation had the intention been to give the Court a discretion in the matter. The fact that there is no such provision militates against the plaintiff's suggested interpretation of the clause.

The arguments of both counsel on the "missing words" approach to the construction of clause 99 can be illustrated further by reference to section 6 of the (UK) Law Reform (Miscellaneous Provisions) Act, 1933, which made amendments to the procedure for trial by jury in the UK. The opening part of section 6 states:

" . . . on the application of any party to action . . . the action shall be ordered to be tried with a jury . . ."

That is the type of mandatory language Mr Waalkens submits clause 99 should contain if the Legislative Assembly had intended the party asking for trial by jury to have a mandatory right to jury trial. In Salvalene Lubricants Ltd v Darby [1938] 1 All ER 224, 225, Greer LJ commented: "There can be no doubt about this matter. By reason of the Law Reform (Miscellaneous Provisions) Act 1933, s. 6, a defendant in a slander action is entitled to have a trial by jury."

So that part of section 6 is supportive of Mr Waalkens's approach.

On the other hand, the concluding words of that same statutory provision (section 6) lend weight to Mr Stanton's submissions that if the intention was to give the Court or judge a discretion in the matter then it would have spelt that out. The final part of section 6 states:

" . . . unless the Court or judge is of opinion that the trial thereof requires any prolonged examination of documents or accounts . . . which cannot conveniently be made with a jury; but save as aforesaid, any action to be tried . . . may in the discretion of the Court or a judge, be ordered to be tried either with or without a jury."

That, argues Mr Stanton, is the type of language clause 99 should contain if Parliament had intended the right conveyed to a party by virtue of clause 99 to be merely a right to make a claim for trial by jury, the final decision to be left to the discretion of the Court or judge. The provision not only specifically refers to the discretion element but also contains the criteria the Court or judge would be required to have regard to in exercising the discretion.

Thus, as that particular statutory provision illustrates, the arguments for both parties based on the "missing words" approach to the construction of clause 99 really cancel themselves out and it is, therefore, necessary to turn to some other recognised aid in determining the Legislative Assembly's intention. One such aid, noted in the highlighted passage from the Canadian Sugar Refining case (supra) is the need to look for a consistency in a series of statutes relating to the same subject matter -- in this case the right to trial by jury.

I find the interpretation of clause 99 argued for by the plaintiff inconsistent not only with the provisions of clause 11 of the Constitution but also with section 13 of the Supreme Court Act and Rule 23 of the Supreme Court Rules. In construing statutory provisions, the Court should proceed on the basis that the legislature knows the existing state of the law and if possible, therefore, the provisions need to be interpreted so as to give them sensible meaning rather than ruling them void or unconstitutional. The interpretation of clause 99 argued for by the defendants best gives effect to this principle of statutory construction.

The scheme of the legislation appears to me to be clear. Clause 11, with minor variation, appeared in the original Constitution that became law on 4 November 1875. The relevant parts then read:

"And all large debts shall be tried by jury, but it shall be with the Legislative Assembly to determine what shall be the amount of debt shall (sic) be tried by jury."

Clause 100 of the original Constitution provided: "All cases tried before the Supreme Court and Circuit Court shall be by jury . . ."

Clause 99 did not appear until many years later and section 13 (1) of the Supreme Court Act did not appear until some years after that. In other words, the chronological development of the legislative provisions dealing with trial by jury were that originally all civil cases for large amounts had to be tried by a jury (clause 11) then a change was made through clause 99 of the Constitution to provide that where a party in a civil case desired trial by jury that mode of trial had to be asked for and, finally, under section 13 of the Supreme Court Act a further change was made so as to allow for civil claims to be tried without a jury where both parties consented.

That analysis does not remove altogether the apparent inconsistency noted earlier between clauses 11 and 99 but at least it is more consistent and meaningful than would be the case if the plaintiff's interpretation of clause 99 was to prevail.

In a different context Lopes LJ in Jenkins v Bushby [1891] UKLawRpCh 13; [1891] 1 Ch 484, 492, made a comparable analysis of parties' rights to trial by jury under the rules in Order XXXVI of the old (UK) Rules of the Supreme Court 1883. His Lordship then noted:

"It appears to me that (the rules) form a code of regulations as to the mode of trial. The effect of them is this. They make a trial by a Judge without a jury the normal mode of trial. They do not take away the right of trial by jury where it existed before, or give it where it did not previously exist. That appears to me beyond all question to be the general effect of those rules. They do, however, make the change, that where it is desired the trial should be by a Judge with a jury, this mode of trial must be asked for. That is a great and important change, because previously to the Judicature Acts all Common Law actions were tried with a jury, and they could not be tried by a judge without a jury unless the parties consented."

The wording in the English rules Lopes LJ was referring to in that passage differs from the wording used in the comparable Tongan legislation but under the English code it appears from the authorities that in every case where a party to an action had the right to ask for trial by jury that right was regarded as mandatory unless, as in the case of section 6 of the 1933 (UK) Act referred to earlier, there was a specific discretion, coupled with guidelines, vested in the Court to be the final decision-maker. There is no such specific qualification to the right granted to a party under clause 99.

My views are fortified by the concluding words of clause 99. There seems to be significant force and, if I may say so, much common sense in Mr Stanton's contention that if clause 99 gives no more rights to a party to civil litigation than the opportunity to ask for a jury trial, a right which the Court may or may not in its discretion allow, why would it be necessary for Parliament to enshrine such an insipid right so that it "shall never be repealed?"

My conclusion, therefore, is that clause 99 of the Constitution provides a mandatory right to a party in a civil proceeding triable in the Supreme Court to have the action tried by a jury provided that he or she asks for it. That right is entrenched to the extent that it can never be repealed. Having said that, I note in passing that clause 100 of the original Constitution of Tonga which provided for trial by a jury of twelve also stated that that law shall never be repealed and yet it was changed in 1933 to allow for juries of seven.

Be that as it may, for the reasons I have set out at some length, I uphold the defendants' interpretation of clause 99. It follows that in both actions they will be entitled to the trial by jury which they seek. The defendants are also entitled to costs on this interlocutory hearing to be agreed or taxed.

NUKU'ALOFA: 21 JULY 2004

JUDGE