Ropati v Omeka [2012] WSSC 3 (2 February 2012)

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

TOALA TULOUNA ROPATI of Faga Savaii
Plaintiff

AND:

LINO FAIMALO OMEKA of Faga Savaii
First Defendant

AND:

FAIMALO OMEKA, LEAOA FAIMALO OMEKA
and NAOMI OMEKA, all of Faga
Second Defendants

AND:

UNASA FAAPUPULA of Faga Savaii
Third Defendant

Counsel: Tanya Toailoa for Plaintiff
Papali'i Lio Taeu Masipa'u for Defendants
Hearing: 2 November 2011
Decision: 2 February 2012

DECISION OF THE COURT

1. The Plaintiff, a high ranking matai of the village of Faga Savaii, seeks damages for slander from the defendants. The words complained of and spoken by the first defendant to his aunt Ruta were:
   

"E lelei pe a e le alu alu i le maota o Toala e sau ma sau ko."

2. Neither the plaintiff nor the defendants have attempted the English translation of the words. But it is common knowledge and accepted by all the parties that the words in their natural and ordinary meaning mean that the first defendant's aunt was engaged in a sexual relationship with the plaintiff Toala.
   
3. The said words were uttered by the first defendant during an argument with his aunt Ruta over a mobile telephone charger which the first defendant refused to return to his aunt. Both of them live in the same house and no one else was present during the argument. The father of the first defendant and Ruta are sister and brother.
   
4. The second defendants Faimalo Omeka and Leaoa Omeka are the parents of the first defendants. Naomi Omeka the third named second defendant was not mentioned or referred to in the evidence or submissions and the claim against her should be dismissed and is dismissed.
   
5. The plaintiff and second defendants are neighbours; their houses are not far apart. They are related.
   
6. The third defendant is also a high ranking chief of the village of Faga. She is from the sub-village of Siufaga whilst the plaintiff, first and second defendants are from the sub-village of Malae. The other sub-villages of Faga are Sapini, Salimu and Lu'ua.
   

Claim against the Second and Third Defendants

7. The plaintiff claims that the second and third defendants spread and published the words spoken by the first defendant to other villagers exposing him to ridicule and contempt and seriously damaging his standing within his family and village.
   

The First Defendant's Defence

8. He admitted uttering the words complained of but he had no intention to defame the plaintiff who was not present at the time. His intention was to refrain his aunt Ruta from getting pregnant again as she already has 3 children from 3 different fathers which greatly embarrassed the family.
   
9. He also pleaded at paragraph 9 of his Statement of Defence:
   

"The first defendant said those words ...because he actually saw the Plaintiff and Ms Tunufai having sexual relationship on Wednesday morning 28th April 2010 at about 2am and he then reported the matter to his father, the Second Defendant Faimalo Omeka.

The Second Defendants Defence

10. They deny spreading and publication of the rumors within the village.
    
11. They also allege that Ruta admitted to them that she did have sexual intercourse with the plaintiff as witnessed by the first defendant.
    

The Third Defendant's Defence

12. Other than denying all the allegations made by the plaintiff including the allegation of publication leveled against her, the third defendant specifically pleaded in paragraph 7 of her statement of defence:
    

"The Third Defendant in her duty as matai of the village, reported the matter to the Village Fono as the action (sexual relationship) done by the plaintiff and Ms Tunufai is against the village customs and usage."

The evidence

13. The first defendant told the court he did see the plaintiff and Ruta having sexual intercourse inside the plaintiff's house at about 2 o'clock in the morning. He was able to see by standing between their house and the plaintiff's house and although it was night time there was sufficient illumination from the light bulb outside his family house to see what was going on inside the plaintiff's house which had no walls.
    
14. The next day when he argued with Ruta over the telephone charger he uttered the words complained of. No one else was present.
    
15. The words spoken by the first defendant came to the notice of the second defendant the day after. The first defendant admitted to the second defendants he did say the words to Ruta and he also told them he did see Ruta and the plaintiff having sexual intercourse inside the plaintiff's house.
    
16. Rumors spread throughout the sub village of Malae and to other sub villages. They reached Vaisau Agavaa the senior orator of Malae sub village. Pressure was exerted on Vaisau to impose village sanction on the plaintiff for his unbecoming behavior. Vaisau however did not give in.
    
17. Refusal by Vaisau to accept the rumours and impose village sanction on the plaintiff prompted the third defendant to take the rumours to the village council and demanded immediate action against the plaintiff. The subject matter placed before the village council was not the words spoken by the first defendant to Ruta. The village council was told that the plaintiff had sexual intercourse with Ruta.
    
18. Despite protests from Vaisau, the village council imposed a fine of five hundred (500) pigs to be provided by four o'clock in the afternoon of the same day in default the plaintiff would be banned from residing in the village indefinitely.
    
19. The plaintiff, who was absent from the village on the day the fine was imposed was promptly banished for failure to meet the punishment. He went and stayed in a motel several villages away.
    

Discussion

20. In deciding whether or not a statement is defamatory the court must first consider what meaning the words would convey to the ordinary man. Slim v Daily Telegraph Ltd (1968) 2 QB 157; Lewis v Daily Telegraph Ltd (1963) 2 All Er 151. If the words are capable of a defamatory meaning the next step is to determine whether the statement or words did in fact bear the defamatory meaning.
    
21. As stated earlier it is not disputed the words can only mean that the plaintiff was in a sexual relationship with Ruta a member of his family. They are defamatory of the plaintiff. The intention of the first defendant when he uttered the words is irrelevant simply because even if the first defendant intended to stigmatise the plaintiff there will be no defamation if the words used did not bear any defamatory meaning: Slim v. Daily Telegraph Ltd
    
22. The first defendant however cannot be liable for defamation simply because the words he uttered during the argument with his aunt Ruta were said inside their home and was not heard by anyone else. It came to the notice of the second defendants when Ruta complained to the second defendants who in turn questioned the first defendant about what he said to Ruta.
    
23. There was no publication by the first defendant. Neither can it be established from the evidence that the second defendants after being told by the first defendant that he did actually witnessed the plaintiff and Ruta engaged in sexual contact went on to publish what they were told. It is contended by the plaintiff that the second defendants relayed the story to the third defendant; a contention the court is not prepared to accept. It follows the second defendants could not be held accountable for publishing the slander to the third defendant.
    
24. How the third defendant gain knowledge of the slander is unknown. She did not merely relay what the first defendant uttered to Ruta. She told the village council that the plaintiff and Ruta had sexual intercourse and the council despite protestations from Vaisau imposed the fine of 500 pigs.
    
25. Her defence as stated in paragraph 12 above that it was her duty as a matai to report the unbecoming conduct of the plaintiff to the village council cannot exonerate her. She did more than reporting. She did not tell the council it was a rumor which should be investigated. She reported a fact which should be dealt with promptly..
    
26. All the three defendants pleaded justification as a defence. They contended that it is substantially true that the plaintiff was in a sexual relationship with Ruta as witnessed by the first defendant. The testimony of the first defendant that he did witness the plaintiff and Ruta having sex early in the morning inside the plaintiff's house while he was standing outside between his house and the plaintiff's house was difficult to accept given that the only source of light was from a light bulb outside his house. This prompted the court to make a site visit which confirmed that it was physically impossible for the first defendant to have witnessed any sexual activity or any other activity inside the plaintiff's house let alone identifying the faces of anyone inside the house at night time and from where the first defendant was supposed to be standing.
    
27. The court rejects the evidence of the second defendants that Ruta admitted to them that she had sexual intercourse with the plaintiff. Ruta denied making such an admission and her testimony is accepted.
    
28. The plea of justification fails.
    

Damages

29. A man defamed does not get compensation for his damaged reputation but because he was publicly defamed: Cassell & Co. Ltd v. Broome [1972] UKHL 3; (1972) AC 1027 at 1070. Compensation by way of damages thus serves not only as consolation for the wrong done but as a vindication of the plaintiff in the eyes of the public.
    
30. The third defendant did not testify. No apology was given or offered to the plaintiff. After receiving written submissions from counsels, they were summoned to a chambers meeting. Both were informed of the courts finding of facts against the third defendant and were invited to file submissions as to quantum.
    
31. Neither the second defendants nor the third defendants took steps to verify the reliability of the allegations made by the first defendant. The first named second defendant (father of the first defendant) openly displayed his hostility towards the plaintiff during the course of his testimony. His acceptance of the first defendant's slanderous remarks against the plaintiff without question was undoubtedly due to malice and ill feeling.
    
32. It was undoubtedly this ill feeling which permeated throughout from the moment the rumour was uttered to the time the third defendant saw fit to place it before the village the Council meeting and which prompted the council meeting to deal with the issue as a proven fact resulting in the imposition of a very substantial penalty against the plaintiff.
    
33. In Mauli v University of the South Pacific (2008) WSCA 8 the Court took into account that there had been publication to only a handful of people and damages of $15,000 assessed at the lower end of the scale were awarded.
    
34. The publication here was limited to within the village of Faga. The court agrees with counsel for the defendants that compensation should be assessed at the lower end of the scale against the third defendant.
    
35. The Court will also bear in mind the third defendant was not the original author of the slander. It will bear in mind that the plaintiff was previously sanctioned by the village for similar conduct although not with a member of his family.
    
36. As recognized in Mauli v University of the South Pacific the assessment of general damages for defamation is not a matter of precise calculation. For the purpose of balance and parity the court must attempt to determine the general level of damages previously awarded.
    
37. As a result of the hasty action by the village council in banishing the plaintiff following the complaint he was prompted to find accommodation elsewhere before returning to New Zealand. He is entitled to be reimbursed for the costs of accommodation after he was banished awaiting return to New Zealand amounting to $640.
    
38. Damages for defamation are assessed at $15,000. The total damages awarded against the third defendant therefore amount to $15,640.00.
    
39. The claim for exemplary damages is dismissed.
    
40. The third defendant will also pay costs of $1,500.
    

_________________
JUSTICE VAAI