Fakaanga v Moala [2004] TOSC 6; AM 034 2003 (24 February 2004)

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

NO. AM. 34/03

BETWEEN:

SAMISONI FAKAANGA
Appellant

AND:

FATULISI MOALA
Respondent

BEFORE THE HON MR. JUSTICE FORD

Counsel: Mr Kaufusi for the appellant and
Mr Veikoso for the respondent.

Date of hearing: 18 February, 2004.
Date of judgment: 24 February, 2004.

JUDGMENT

It has often been said in this court that any litigant attempting to appeal a judgment of the Magistrates' Court on the facts alone faces a formidable task. Such an appeal will succeed only in the clearest of cases. This court will not interfere unless, in the language of Finnegan J. in Lasolo v Palu (unreported) C. App 855/98, dated 15 January 1999, it can be shown that the magistrate has "gone off the tracks". That general principle continues to apply. It has particular relevance in the present case.

The appellant appeals against a judgment of Magistrate Mafi dated 9 June 2003 in which the court found in favour of the respondent (plaintiff), Fatulisi Moala, in a civil defamation action and ordered the appellant (defendant) to pay $1000 to the respondent together with fixed costs. In this court appellant's counsel presented a six-page helpful written synopsis of his submissions in support of the appeal but nowhere in that synopsis is any reference made to the magistrate's decision. Counsel deals only with alleged defects in the pleadings and in the evidence. With such an approach, the appeal must almost inevitably fail. An appellant must be able to pinpoint the relevant passage or passages in the judgment of the court below upon which he relies to support his contention that the magistrate has somehow gone off the tracks. I dismissed the appeal on the spot but indicated that I would give written reasons for my decision later. I now do so.

The allegation made by the respondent was that the appellant had said to Fetaiaki Moli that "Fatu is a dangerous man, he will take the receipt to withdraw the money from the Village Committee in Australia." Counsel for the appellant argued that the claim was fundamentally flawed because no date was specified in the summons but that submission was not made before the magistrate nor was it included in the written grounds of appeal. In any event, it was open to the appellant, had he so desired, to have sought particulars of the date upon which the words complained of were allegedly spoken but no such step was taken. I reject this first ground of appeal.

The evidence was that the appellant and the respondent had known each other for some 40 years. The respondent is now a permanent resident in Australia. He is secretary and treasurer of the Water Committee for Tokomololo in Australia. The appellant is the Town Officer for Tokomololo.

It appears that there was a proposal to upgrade the water supply to Matalikufisi, a small village close to Tokomololo. The estimated overall cost of the water supply project was not stated in evidence but the respondent's Water Committee in Australia had raised some $14,000 for the purpose. After allowing for some overheads, the committee in Australia had, on 13 December 1999 deposited $12,600 in the project's bank account.

The key witness for the respondent in the case before the magistrate was Fetaiaki Moli. He is a church steward for the Free Wesleyan Church at Matalikufisi. Fetaiaki said in evidence:

"I met Samisoni (the appellant) at Viola Hospital and we talked about the water supply for Matalikufisi and he asked me about the receipts for the cutting through of the road and I said I gave it to Fatulisi (the respondent). He said to me that Fatulisi is a dangerous man (unreliable) and he will take the receipt and withdraw the money from the Village account."

Fatulisi told the court that he came to Tonga during the Easter break (he did not state the year but from the evidence he would appear to be referring to Easter 2002) and Fetaiaki had then told him what Samisoni had said. Fatulisi said that he was upset and he confronted Samisoni and asked what stories he had been saying about him. Samisoni denied having said anything and so Fatulisi went and asked Fetaiaki, the Church steward, to come to Samisoni's home. Fetaiaki did so and he repeated what Samisoni had told him. Samisoni was obviously surprised when confronted by Fetaiaki. He told Fetaiaki that he did not think that he would have passed on the story to Fatulisi.

Fatulisi said that he was upset and he felt "really bad" over what Samisoni had been saying about him. He told Samisoni that he would complain to the Prime Minister over the allegations. He explained to the magistrate that it had cost him $9,000 to come back from Australia in order to pursue the defamation case against the appellant.

The magistrate referred to the definition of defamation in the Defamation Act (CAP. 33) and he had no difficulty in concluding that Samisoni had spoken the words complained of, that they referred to Fatulisi and that they were defamatory.

The appellant's first ground of appeal in his written notice of appeal was that, "there was no evidence before the court that the appellant said the words appearing in the summons." That proposition, however, was clearly untenable. Fetaiaki Moala's evidence as to what he was told by the appellant was quite explicit. Even in his own evidence before the magistrate, the appellant had admitted saying that Fatulisi was "a dangerous and unreliable person".

At the hearing of the appeal, counsel appeared to change his stance in relation to this particular ground. He submitted instead, although the passage does not appear in the transcript, that in cross-examination Mr Moala had conceded that the statements in question had been made over a year previously and that his recollection as to what had been said may have been wrong. Counsel also noted some apparent inconsistencies in the evidence of other witnesses.

The challenge to the accuracy of the transcript should have been made prior to the appeal hearing. In any event, however, the reality is that, even accepting that such concessions were made and that other witnesses may have said something different, the magistrate, who saw and heard the witnesses, had no difficulty in accepting Mr Moala as a credible witness. The appeal on this ground, therefore, cannot succeed.

Appellant's counsel then argued that the words were not defamatory in themselves and no innuendo meaning had been pleaded. Counsel submitted that the word "dangerous", for example, was not defamatory in itself because, as he put it, in sporting vernacular a "dangerous" player is a good player. The difficulty with this submission, however, is that the magistrate did not purport to rely upon any innuendo meaning. He found that the words complained of were, in their context, defamatory in themselves. That finding was open to the magistrate and I have not been persuaded that he erred in reaching the conclusion he did.

Mr Kaufusi also submitted that the defence of qualified privilege applied to the facts of the case. That defence was never pleaded, however, or raised in submissions before the magistrate. More significantly perhaps, it was not included as one of the written grounds of appeal in the notice of appeal. It is obviously, therefore, very much an afterthought and against that background I am not prepared to entertain the proposition.

The appellant also appealed against the quantum of the damages awarded. Counsel referred to the judgment of Webster J. in Manu v Haidas (unreported) C.57 of 1988, dated 24 January 1990 and in particular the passage at page 10 where his Honour stressed that general damages are intended to compensate the plaintiff and not to punish the defendant.

Whilst that proposition is sound, there is no evidence before me that the magistrate in the present case sought to punish the appellant in awarding the respondent the amount of $1000. There is no indication that any part of the award was on account of aggravated damages.

The magistrate could perhaps have explained in his judgment how he had concluded that $1000 was an appropriate figure but I do not see the absence of any such explanation as fatal. There is nothing to indicate that the magistrate took into consideration irrelevant matters or omitted to consider some relevant matter or applied a wrong measure of damages. The mere fact that the sum fixed by the magistrate may have been larger or smaller than the sum this court may have determined is not of itself a sufficient reason for upsetting the award.

Finally under this head, the appellant submitted that the award of damages could not stand because no witnesses were called to prove that the words complained of had damaged the reputation of the respondent or caused him to be exposed to hatred, contempt or ridicule or shunned, within the meaning of section 2 (1) of the Defamation Act.

In cases actionable per se, it is well recognised that there is no obligation on the plaintiff to show that he has suffered actual damage. As Gatley on Libel and Slander (10th edition) para 32.45 states:

"The law presumes that some damage will flow in the ordinary course of things from the mere invasion of his (the plaintiff's) absolute right to reputation."

The magistrate was entitled to take into account the distress, hurt and humiliation the respondent would have suffered. Often direct evidence of such matters is simply not available and the respondent himself was entitled to give evidence, as he did in this case, describing his reactions and feelings upon learning what the appellant had been saying about him.

There is one aspect of the case which has caused me some concern although it was not advanced as a ground of appeal. It is not free from doubt and I accept that there may be some problem in the translation but it appears that the magistrate may have treated the case as a charge of criminal defamation instead of a civil defamation claim. I say that because in his judgment the magistrate speaks about "the charge" made against the appellant and he refers at one point to the appellant as "the accused". He also concludes that the appellant was "guilty". Such terminology is not appropriate in reference to a civil case. As I have observed, however, no submissions were made on the point and so I do not take the matter any further.

The appeal is dismissed with costs to the respondent to be agreed or taxed.

NUKU'ALOFA: 24 FEBRUARY 2004.

JUDGE