Fotofili v Tapuelelu [2011] TOSC 51; CV 46 of 2011 (9 May 2011)

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

CV 46 of 2011

BETWEEN:

KALANIUVALU FOTOFILI
Applicant

AND:

MATENI TAPUELUELU
Respondent

BEFORE THE HON. CHIEF JUSTICE

Mrs. 'A. Taumoepeau for the Applicant
Mr. S. Tu'utafaiva for the Respondent

JUDGMENT

1. On 12 April 2011, after considering the Applicant's ex parte application I granted an interim injunction prohibiting the publication of an undated letter which had been recently sent by Rev. Simote Vea to a number of newspapers, including Ko e Kele'a of which the Respondent is the Editor.

2. The 13 April 2011 edition of Ko e Kele'a featured an article on its cover and second page which the Applicant contends breaches the terms of the injunction granted on 12 April. Pursuant to leave granted on 26 April, the Applicant moves for the committal of the Respondent for contempt of court.

3. The matter was heard in open court on 4 May. Oral evidence was not called. Mrs. Taumoepeau relied on the contents of the letter, the terms of the injunction, the service of the injunction on the Respondent and the publication of the newspaper. It was her submission that although the letter itself was not reproduced, the contents of the article amounted to a "redressing" of the matters complained of in the letter.

4. Mrs. Taumoepeau relied, in particular on the suggestions, contained in the article that:

(a) Negotiations between the Applicant and the Free Wesleyan Church in relation to a lease for Tupou College were "by nature a sale of land";

(b) that the sale of land is forbidden by the Constitution of Tonga; and

(c) that accordingly the Applicant had been engaged in unlawful conduct.

5. These allegations, prima facie, are also contained in the letter in question.

6. Mr. Tu'utafaiva submitted that there was no case to answer. Among other submissions, he pointed out that according to the affidavit of service, the relevant documents, including the court's order, were not served on the Respondent's agent until 10:14am on 13 April 2011. Given that the edition of the Ko e Kele'a which was complained of was dated 13 April, it appeared likely that the publication of the newspaper had already occurred by the time the order was served upon it. Therefore the publication could not have occurred as an act of deliberate disobedience of the order in question.

7. In paragraph 3 of her affidavit dated 19 April filed in support of the Application, Mrs. Taumoepeau averred that:

"I believe that Mateni Tapueluelu is in contempt of the above-named order of the Supreme Court by publishing the contents of the article subject of the above court order. Subsequent to the dates of the court order and service on newspaper."

Although this paragraph is not absolutely clear, I took the view that it contained some evidence of publication after the service of the order. Given that each sale of a newspaper is a re-publication of the issue, I took the view that there was a case to answer.

8. The Respondent elected not to give evidence and counsel made closing submissions. Having heard counsel I adjourned until 9 May to consider my judgment.

9. On 6 May a further document was filed by Mrs. Taumoepeau. It was an "Application for leave to introduce further evidence". The application was supported by a further affidavit by 'Aisiena Taumoepeau in which she averred that she had purchased a copy of the edition in question of the Ko e Kele'a on the morning of 15 April 2011.

10. The evidence which Mrs. Taumoepeau sought to introduce by this application was exactly the same evidence which Mrs. Taumoepeau herself had attempted to give from the bar table in answer to Mr. Tu'utafaiva's submission of no case. I explained at the time that I could not accept evidence from the bar table.

11. The application filed on 6 May was not served, as far as I can tell, on counsel for the Respondent. It is not endorsed with Mr. Tu'utafaiva's consent. It is apparent that the evidence was available at the hearing but was not adduced in acceptable form.

12. Contempt proceedings must strictly confirm with the rules of Court. They are quasi-criminal in nature. In my view it would be wrong to permit further evidence to be received without argument, especially when the evidence has not only recently come to light.

13. Although it seems likely that distribution and sale and therefore publication of the 13th April Edition of Ko e Kele'a continued after service of the court's order on the morning of the 13th I do not think I would be justified in making a finding of fact beyond all reasonable doubt that it did, in the absence of clear evidence.

14. As appears from the article in question, it was published following a visit to the newspaper by a senior member of TMP Law, Solicitors for the Applicant. That visit was said to have taken place on "Monday of this week" i.e. Monday 11 April. This was on the day before the order was granted.

15. From the evidence before me I find that the article was prepared after the visit to the newspaper by the senior lawyer but before the Order was granted. In other words, the article was prepared and first published before the terms of the order become known and before, indeed, it was known that any order at all had been issued. It will be noted that the article does not refer to any order of the court having been made.

16. If, which is yet to be determined, the Applicant was defamed in the letter sent by Rev. Simote Vea, then the re-publication of the central allegations contained in that letter (set out in paragraph 4 above) would prima facie constitute a further act of defamation. That, however, is not the question before me.

17. The question before me is whether I am satisfied beyond reasonable doubt, on the evidence, that the article was published in breach of and in disobedience of, my order of 12 April.

18. For the reasons I have given I have a reasonable doubt that the Applicant's case has been proved. Accordingly the application fails and is dismissed.

19. Before leaving the matter I think it appropriate to make two further points. First, my order of 12 April remains in place. Any disobedience of that order will certainly lead to a further application of the present kind.

20. Secondly, it seems to be the practice in Tonga for members of the bar to swear affidavits and give evidence in other forms in matters in which they are briefed. This practice has been found unacceptable in other jurisdictions (see e.g. R v Secretary of State for India Ex parte Ezekiel [1941] 2 KB 169 and R v Governor of Brixton Prison Ex parte Caldough [1961] 1 All E.R. 600). Since the practice has apparently been established without judicial objection, I propose to raise the issue with the Tonga Law Society before taking it any further.

M.D. Scott
CHIEF JUSTICE

Dated: 9 May 2011.