Eikene v The Observer [1981] WSSC 1 (7 December 1981)

IN THE SUPREME COURT OF WESTERN SAMOA
HELD AT APIA

BETWEEN:

ASI EIKENI
of Safotulafai and Vailima, Member of Parliament
Plaintiff

AND:

THE OBSERVER
a newspaper published in Apia
First Defendant

AND:

SANO MALIFA
of Apia, Editor of The Observer
Second Defendant

AND:

MIKA KELEKOLIO
of Apia newspaper writer
Third Defendant

AND:

INSTANT PRESS
a duly incorporated company carrying on business in Apia as printers
Fourth Defendants

Counsel: Mr. T.K. Enari for Plaintiff;
Mr. R. Va’ai for First, Second & Fourth Defendants;
Mr. A.S. Epati for Third Defendant

Dates of Hearing: 1st, 2nd & 3rd December 1981
Date of Judgment: 7th December 1981

JUDGMENT OF R.J.B. ST. JOHN, C.J.

The Honourable Asi Eikeni, presently Minister of State for Justice, Labour and responsible for the Public Service, and at the relevant time Minister of State for Justice, Transport, Civil Aviation and responsible for the Public Service sues the proprietors of the newspaper "Observer", its editor Sano Malifa, a journalist Mika Kekekolio and, Instant Press a firm of printers for damages for libel. The alleged defamatory matter was printed in a newspaper, "The Observer" dated 21st August 1979 and is the following words:-

"STOP THE ROT"

Then came the allegation against the Minister of Transport smuggling furniture into the country.

"Had it not been for a revelation by the media resulting in a public outcry of distaste, the Minister would not have bothered paying any duty at all. The general thinking of course is that any person with a conscience would have resigned from his portfolio if not from Parliament altogether."

The defendants, the proprietor, the editor and Mika have admitted publication but pleaded that, insofar as the words complained of were statement of fact, those statements were true and, insofar as they amount to comment, such comment was fair and was on a matter of public interest. Having admitted publication of matter which they admit is defamatory, the onus is upon the defendants to prove the truth they allege, the fairness of the comment and the public interest in the matter commented upon by them. As to public interest there is no question that such interest lies in the behaviour of a Minister which can be described as criminal or is such that is not consistent with probity or integrity in his dealings in relation to government matters or his obligation to pay revenue. This preceding sentence is not intended to be an exhaustive statement of the law but is appropriate to the defence raised.

I shall first record that version of the facts deposed to by witnesses called by the plaintiff. They are:

(1) That in 1978 the government of this country or its agency, the Western Samoan Shipping Corporation, purchased a vehicular ferry, "Puleono" then lying in Singapore harbour and that agency was for executive purposes within the Ministry of Transport.

(2) That ship arrived in Apia harbour on 11th December 1978, the only cargo carried being two containers consigned to the plaintiff, the plaintiff’s wife, or both of them, or to Western Samoa Printing and Publishing Company Limited, (hereinafter referred to as the company) of which the plaintiff was previously managing director but which directorship was now held by his wife Mary Fruean.

(3) That such cargo was placed on board at the instance of the plaintiff’s wife who visited Singapore for the purpose of purchasing furniture and other goods.

(4) That in the evening of the day of arrival the two containers were discharged from the ship and delivered from the wharf unopened to the plaintiff’s home, there opened and the contents unpacked.

(5) That before removal of the containers from the wharf area an import entry form, prepare and signed by one Fotu Crichton an employee of the company, and described the plaintiff and his wife as a "shipping agent", was lodged with customs officers and annexed to which form was an invoice describing the goods referred to in the form as:-

Quantity	Description of Goods	Amount
1 set	4 panels Carved Wooden Screen	$1,665.50
1 pce	Wooden Tea-Trolley w/removable tray w/bottle holder	$435.00
1 pce	Wooden Display Cabinet w/glass doors and shelves	$1,149.50
	$3,250.00

uty of $559.92 was paid, that amount being based upon the amounts shown in the invoice and and a receipt for that amount issued showhe plaintiff as the payer.

(6) That a document described as a ships manifest (which for the sake of convenience I ( so described hereafter) described the cargo as consisting of two containers, the first of which contained "Wooden Furniture" and the second of which contained "Assorted Cane Furniture, Floor tiles and Aluminum Foil".

(7) That the customs officer who calculated duty, so marked the manifest as to indicate that duty had been paid on all items in the both containers as shown on the manifest, and that marking was a mistake, because the import entry showed only one container and less goods on the invoice attached to it.

(8) That after marking the manifest the import entry was stamped by a custom officer "deliver" and such stamping could be used to release the goods from the Wharf subject to (12) hereafter.

(9) The customs officer in charge of the wharf area, Richard Mariner, on the same day, instructed the master of the vessel not to clear the goods, that is, allow them to be removed from the wharf area, without customs authority.

(10) That according to the Comptroller of Customs, Mr. Stanley his directions was, and the practice invariably was and is, that when a container is removed from the wharf area unopened a customs officer is present when it is opened in order to check the contents. In respect of these containers this was not done.

(11) That the goods in the two containers included goods on which duty had not been paid and goods that had not been declared in the sense that they were not included on the manifest or the invoice referred to in 5 above.

(12) That the gatekeeper is under instructions not to allow goods to be removed from the wharf area unless there is presented to him a delivery docket signed by the shipping agent appointed by the owners of the vessel authorizing such removal.

(13) In the event that there is no shipping agent for the vessel, the gatekeeper is instructed by a customs officer that a delivery docket was not necessary and he is thereby authorized to allow the goods to be removed. No delivery docket came into existence nor did the gatekeeper receive the required instructions relative to the two containers.

(14) That after mention in Parliament and newspaper publicity regarding the goods in the containers the Auditor-General spoke to the Comptroller of Customs and the mistake referred to in above was detected, the plaintiff was telephoned, an appointment made and goods in the plaintiff’s home which appeared on the manifest and other goods valued for duty purposes and an amount of $733.54 was paid and an official receipt issued on the name of the plaintiff as payer and dated 23.3.79. That date was obviously altered to read 13.8.78. The plaintiff’s wife stated that she received it in such altered condition and in her own handwriting in the bottom left-hand corner of the same wrote 23.3.79.

(15) That about the same time the Customs Department cam into possession of a copy Invoice from Breckwoldt and Company which described goods and prices as follows:-

Goods	Prices
1,500 sq.ft (135 cartons @ 50 pcs. 6,750 pcs) Quarry Tiles	S$2,400-1.60 per sq.ft
4,000 pcs (80 cartons @ 50 pcs 12" x 12" Vinyl Tiles $2,080 - .52 per pcs	2,080-.52c per pce
12 rolls 200’ x 54" No. 450 ‘Sisalation’ Aluminum Foil	2,592 - 216.00
	S$7,072

Those goods were shipped in the containers. An import entry form was completed in respect of them numbered 3963, and on the face thereof the said Fotu Crichton signed a declaration in the following terms:

"I hereby certify that the materials declared on this Import Entry would be used specifically for the School Publication Company Ltd. (Duty free as per C.M. (77) 31)"

That declaration had the effect of exempting them from duty under an industries incentives scheme. Six thousand of the quarry tiles were laid at the plaintiff’s house and not at a factory built for a company known as Schools Publications Limited for which incentives approval had been given by Cabinet minute. Under the Customs Act and Regulations such good were dutiable until such time as such declaration was made.

(16) That the Honourable Prime Minister asked Mr. Stanley to investigate whether duty on the goods imported by the plaintiff had been paid. The latter did so and reported in writing inter alia -

28 December 1979

The Hon. Prime Minister.

CARGO EX - "PULEONO" FROM SINGAPORE

With reference to the cargo discharged by the above vessel, I forward herewith my statement leading to the delivery of cargo consigned to the Hon. Asi Eikeni.

Prior to the ship’s arrival, an import entry was lodged with Customs Office together with invoices for some of the goods purchased by Mr & Mrs Asi Eikeni in Singapore. Import duty and wharfage on these goods were accordingly charged, and the word "Delivery" was stamped on the face of the last copy of the entry indicating to the ship or its agent that duty and wharfage have been accounted for. This is the normal procedure with all inward cargo.

A manifest clerk in the Customs Office used the number of this entry to write off all the other items in the manifest including those goods on which duty was not paid. This clerk’s action was a misleading point to a Senior Officer when he also checked the manifest.

When the news was received that the two containers included some undutiable goods, Mr. Asi Eikeni was immediately contacted and the Chief Examining Officer was detailed to attend to the matter.

Some household effects privately purchased by Mrs Fruean were also assessed. The Chief Examining Officer visited the home of Mr. and Mrs Asi Eikeni to ascertain that all the items listed in the manifest have been correctly accounted for.

From the Customs view point, all goods have now been written off the manifest.

No mention is made in that report of (a) the misstatement as to the number of containers on the original import entry (b) the lack of authority of the gatekeeper as set out in (12) and (13) above or the departure from practice in (10) above.

(17) That the vinyl tiles described in 16 above, were used in the factory for Schools Publications Ltd. but 500 other tiles on which duty had been paid were used and in the plaintiff’s view this "balanced" his use of the 6,000 quarry tiles in his home, which latter tiles were intended for toilets and cafeteria at the factory.

(18) That from the time of arrival of the containers i.e. 11th December 1978 until March 1979 neither the plaintiff, his wife nor any of the employees of the two companies in which he had interests informed customs officers of the importation of the goods additional to those described on the invoice referred to in 5 above.

The facts set out above are not in dispute. I now turn to evidence in which contradictory statements were made and different versions given. A number of witnesses gave evidence about the plaintiff’s presence on the wharf, after a ceremony to welcome the ship, the role he played in the discharge of the containers from the ship and their removal from the wharf. It was suggested that he supervised such operations. Even if he did I see no significance in the owner of a valuable cargo being concerned in its safety and delivery. The fact that it was delivered at night is explicable; ships are not encouraged to lie around wharves and there was no dispute that the plaintiff and his wife were due to, and did in fact, leave for New Zealand the next day and remained there several days. One of the gatekeepers on duty that night said the plaintiff approached him at the gate immediately before the truck carrying one of the containers passed through the gate and told the gate-keeper that the papers relating to the container had been left at home. I find unnecessary to decide between the gatekeepers assertion and the plaintiff’s denial although I was impressed with the gate-keeper’s evidence.

In his evidence in chief, the plaintiff stated that it was the company that was importing the relevant goods and that the company imported goods to the value of $100,000 per annum. He said Mr. Crichton was the person who organized the shipment and generally adopted a stance of not being personally concerned in the operation at all. Defence counsel induced him to concede that household furniture was his and his wife’s concern, not the company’s, but he maintained that Mr. Crichton was the person in charge. At a late stage in the plaintiff’s case Mr. Crichton was called to the witness box, Plaintiff’s counsel asked me would I adjourn earlier than I intended. I did so. I was told on resumption that Mr. Crichton would not be called. From failure to call a witness who is obviously in one party’s camp I am entitled to draw the inference that the witness’s evidence would not assist that party’s case; Jones v Dunkel [1959] HCA 27; 101 C.L.R 1. The strength of that inference is increased when the witness, so available, is hastily removed from the arena. Had he been called he would, no doubt, be asked to explain his entry of one container only on the import entry, the altered receipt and the arrival of the invoices additional to the invoice annexed to the import entry.

I am satisfied that he knew exactly the contents of the containers at the time of their arrival but that finding is perhaps unnecessary. He would surely have known them on return from New Zealand some days later. I am satisfied that he knew only a part of the contents was for Schools Publication. When Mr. Crichton obtained the two receipts the payer named was the plaintiff personally. The invoices bear no company name as the purchaser. Additionally I was not satisfied from his demeanour that he was a witness of truth. His use of the duty-free tiles does nothing to enhance his credibility.

I do not propose to specify all the aspects and circumstances that lend me to the conclusion that he well knew the contents of the containers. They are numerous and compelling.

I turn to the issue of whether the plaintiff knew that all the duty required to be paid was in fact paid. There are helpful indicia in the plaintiff’s attitude towards his obligations in other respects, for example his use of duty free tiles. His statement that 500 vinyl tiles "balanced" 6,000 quarry tiles is ludicrous. The only persons interested to alter the receipt date from 23.3.79 to 13.12.78 would be those in whose interest it was to promote the deception that the payment of duty, the second amount, was not delayed. Those interested persons are the plaintiff and his wife.

Ministers of State are usually careful to ensure that their use of government property, their obligations to pay money due to public funds, and that in their dealings with government agencies and officers of the public service are characterized by promptness, and scrupulous adherence to following the procedure. "Careful" is perhaps too weak a word; "meticulous" is more appropriate. The plaintiff admitted that on reflection he had not been careful in his dealings over this matter. When mystery alteration of a receipt, misdescription of cargo, mistake of custom officers, dereliction of duty of customs officers, the admitted failure of the plaintiff to arrange for payment of freight on the cargo before the ship sailed, provided a sorry background to the care that should have been exercised. When the plaintiff said he fully intended to pay the duty he did not speak the truth. He was a party to the deliberate deception of customs authorities, even though the withdrawn witness, Crichton, signed the documents. The plaintiff intended to pay as little as possible. Although there are many factors to rely upon to reach this conclusion the fact that he was not paid duty, without satisfactory explanation, on the quarry tiles three years after importation would go a long way towards such a conclusion.

The plaintiff’s wife, Mrs. Fruean, gave evidence that she visited Singapore for the purpose of buying furniture. At first she said that she had bought only a proportion, "only a few", of what she required before returning home. She asserted that she did not know what would arrive, having told her cousin to buy the rest, and had not additional invoices to examine before the ship arrived. Annexed to the customs import entry No.3963 there was an invoice referring to "Mrs Fruean" (sic) visit on 23.10.78 and listing the vinyl and quarry tiles. On being recalled Mrs Fruean admitted that she had placed orders for all the furniture that had arrived although some had yet to be manufactured at the time of ordering. She then remembered ordering the tiles and not being told that the order could not be filled. I find that she knew precisely what was expected to arrive, that she had no doubt that it would arrive and on her return to this country she had documents in her possession that should have been disclosed to customs. She knowing these matters, the goods being, in the main, household furniture and effects, it is not unreasonable to infer that her husband would be apprised of what he would be living with in the future. Her performance in the witness box confirms, if confirmation was needed, that the plaintiff well knew that duty remained unpaid from the time of arrival of the goods, and there was no intention to pay it.

There is, in my view, no necessity to comment on the evidence of Mr. Roy Fruean and other witnesses except to say that they said nothing credible that goes against was needed, that the plaintiff well knew that duty remained unpaid from the time of arrival of the goods, and there was no intention to pay it.

There is, in my view, no necessity to comment on the evidence of Mr. Roy Fruean and other witnesses except to say that they said nothing credible that goes against the findings I have made.

The words complained are substantially true whether quarry tiles are included in the definition of "furniture" or not. The comment they contain is fair; it was undoubtedly comment on a matter of public interest. That defence has been made out. I need consider no other defence. There will be judgment for the defendants but as one defendant was represented by one counsel and the rest by another I reserve the question of costs.