Ah Him v Brunt [2013] WSSC 16 (22 March 2013)

SUPREME COURT OF SAMOA

Ah Him v Brunt [2013] WSSC 16

Case name: Ah Him v Brunt

Citation: [2013] WSSC 16

Decision date: 20 February 2013

Parties:
MUAGUTUTAGATA PETER AH HIM of Malifa, Businessman, and MALCOM JOHNSTON of Vaoala, Chief Executive Officer and FALEFATA TUANIU PETAIA of Lelata, College Principal and FUIMAONO POLOMA ETEUATI of Papauta, Businessman, and LEALIIFANO DR. IOPU TANIELU of Faatoia, Doctor, and MIRIAMA ALENAPI of Vaitele-uta, Retired. (Plaintiffs) and JERRY BRUNT of Tanumapua, Solicitor, and NAMULAUULU TAUTALA MAUALA of Nofoalii, General Secretary. (Defendants)

Hearing date(s):

File number(s): CP 143/10

Jurisdiction: Civil

Place of delivery: Mulinuu

Judge(s):Justice Nelson

On appeal from:

Order:

Representation:
Mr S Wulf for plaintiffs
Mr R Schuster for defendants

Catchwords:

Words and phrases:

Legislation cited:

Cases cited:
Samoa Red Cross Society Inc v Maka Sapolu et al [2011]
Enosa v Samoa Observer Co. Ltd [2009] WSSC 15
Mauli v USP [2007] WSSC 23
Letele et al v Filia and Others (unreported) 13 May 2011

Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

CP 143/10

BETWEEN

MUAGUTUTAGATA PETER AH HIM of Malifa, Businessman, and MALCOM JOHNSTON of Vaoala, Chief Executive Officer and FALEFATA TUANIU PETAIA of Lelata, College Principal and FUIMAONO POLOMA ETEUATI of Papauta, Businessman, and LEALIIFANO DR. IOPU TANIELU of Faatoia, Doctor, and MIRIAMA ALENAPI of Vaitele-uta, Retired.

Plaintiffs

AND

JERRY BRUNT of Tanumapua, Solicitor, and NAMULAUULU TAUTALA MAUALA of Nofoalii, General Secretary.

Defendants

Counsel: Mr S Wulf for plaintiffs

Mr R Schuster for defendants

Decision: 20 February 2013

Reasons: 22 March 2013

REASONS FOR DECISION OF NELSON J

As indicated to counsels when delivering the decision of the court on 20 February 2013 my reasons would be made known on my return from New Zealand. These are those reasons.

Introduction

1. Little did Swiss businessman Jean Henri Dunant know on June 24^th 1859 when he witnessed the horrors of the Battle of Solferino in Italy that he was about to launch a worldwide movement existant to this day dedicated to the prevention and alleviation of suffering. Thus were birthed from the tragedy of human conflict the International Red Cross or as it is formally styled the International Committee of the Red Cross (“ICRC”) and the Geneva Conventions on the conduct of warfare. In Samoa the Red Cross has operated in various guises for over 50 years and in the mid 1980’s it was registered as an incorporated society (“the Society”) by pioneers such as Maka Sapolu and Vaasilifiti Moelagi Jackson and later continued under the benign reign of a series of notable presidents such as current High Commissioner to Australia Lemalu Tate Simi.

Background

2. In March 2009 at its Annual General Meeting the plaintiffs were elected to its governing council the National Executive of the Samoa Red Cross Society Inc. (“the National Executive”) under the presidency of the first named plaintiff (“Muagutu”). Some six months later on 29 September 2009 Samoa suffered one of its worst natural disasters, the 2009 tsunami. Catastrophic loss of life and considerable damage to infrastructure and property was the result. The Society and its Executive were taxed to the limit in having to provide services and support to victims of the tragedy.
3. But by early 2010 things were not running smoothly. As noted by Slicer, J in his judgment in Samoa Red Cross Society Inc v Maka Sapolu et al [2011] WSSC 43 in findings with which I expressly concur and adopt as they are consistent with the evidence I have heard: Some members believed that there was a need to review the response of the Society and to consider and enhance its methods of allocation of resources. They considered that resources could have been more effectively allocated and the response system or protocols improved. They anticipated the holding of an annual meeting in or about March 2010. Such a meeting never eventuated.
4. There was a further date which guided their subsequent actions. The Society was required to submit budget proposals for international funding from the ICRC on or before 31 August 2010.
   
5. A group including Maka Sapolu and Vaasilifiti Jackson who shared the above and other concerns sought to raise matters of grievance and reform with the National Executive. On Thursday 05 August 2010 they met and composed a letter addressed to:

“Hon. Muagututagata Pita Ah Him,

Sui Auai o e sa i le Komiti Tutonu (Pervious Executive Members of the National Executive) 2009- 2010,

Kolose Mumu a Samoa (Red Cross Society of Samoa)”

6. The letter signed by Vaasilifiti Moelagi Jackson requested in polite and respectful terms an urgent meeting to discuss “unusual happenings within the Society that we all love that was affecting the national and international reputation of the Society” (“Ona ua maitauina nisi o tulaga sa le masani ai le Sosaiete e pele i le toatele oi matou atoa ma le lamatia o le tulaga aloaia o le Koluse e le gata i Samoa ae faapea fo’i le silasila a le Koluse Mumu o le lalolagi IFRC, CRC ma isi o Paaga a le Sosaiete”): see Exhibit “D-1” for the defendants. It concluded with the words:

“Above is a letter from some of the founding Members and Registered Members of the Samoa Red Cross Society General Assembly requesting a Special Meeting with the Ex-President and Members of the previous Executive committee.”

Copies of the letter were forwarded to the Prime Minister and the General Secretary of the ICRC

7. The use of the words ‘2009-2010’ and ‘Ex-President and Members of the previous Executive Committee’ was unnecessary and the President not surprisingly took offence at their inclusion. His subsequent conduct reflected hubris rather than reason. Hubris that continues into the present proceedings.
8. There was clearly disharmony within the organization. The requested meeting did not occur as no-one of the National Executive attended. The record of a 07 August 2010 meeting produced as plaintiffs Exhibit “P-5” records the concerns of Maka Sapolu, Vaasilifiti Moelagi Jackson and the rest of their group and that at 1:30 pm:

“A call was made to Muagututagata for his response by which the following were his exact words: In English “I am not putting much value upon the letter as Vaasili has no right to just descend upon us and try to direct us. They should have seeked your assistance of in arranging for a meeting with me before I call a Board Meeting with them. Therefore I am not coming”.

9. The group therefore decided to call a meeting of the General Assembly. Accordingly the following notice produced as Exhibit “P-3” for the plaintiffs was published in the 08 August 2010 Sunday Samoa Observer edition:

“PUBLIC NOTICE

The Samoa Red Cross Society Incorporated, pursuant to Article 13 of its Constitution, hereby call an Extraordinary Session (meeting) to be held on Friday, 13 August 2010 at the Nurses Hall, Motootua from 4pm – 5pm.

All members MUST attend. Transportation home will be provided.

AGENDA

Tsunami Recovery Operation

Constitutional Matters

Other Matters

Thank you

The General Assembly.”

10. A further meeting with the plaintiffs appears to have been requested on 12 August 2010 as evidenced by plaintiffs Exhibit “P-6”. This however was only attended by plaintiff Falefata Tuaniu and not in his capacity as a Board Member but as a member of the General Assembly. At that meeting work in preparation for the next days Extraordinary General Meeting (“EGM”) was attended to. The plaintiffs refused to attend this or any other meeting because in their view the EGM was unlawful. A regrettable position as this effectively closed down any opportunity for discussion and negotiation between what had quickly coalesced into two distinct and opposing camps.
11. Court challenges were launched by the National Executive. An ex-parte interim injunction from the court was sought and obtained on 13 August 2010 to stop the proposed EGM. It is not clear exactly what time on 13 August 2010 the injunction was obtained or how and on whom it was served.
12. A power struggle was being played out. Unfortunately in a very public arena. The “va-fealoa’i” and “soālaupule” concepts for which we Samoans are known throughout the world rapidly disintegrated in the fiery furnace of human frailty and emotion.
13. The Extraordinary General Meeting of Friday, 13 August 2010 went ahead despite the court injunction. This led to the above-cited proceedings against inter alia the defendants for contempt of court before Slicer, J. Proceedings which he described in his judgment as “sorry and avoidable” and which the Society “to the detriment of itself, office bearers and members decided to pursue”. A description which could equally apply to the current matter.
14. Slicer, J concluded the EGM was validly held (a matter which needs no revisiting) and dismissed the Societys contempt application awarding indemnity costs against it. The present proceedings arise out of what was purportedly stated by the defendants at that meeting as reported by the news media in documents produced as plaintiffs Exhibit “P-1” (extract from the Sunday Samoan) and “P-2” (from the Pacific Island News wire service).
15. The minutes of the EGM were produced as plaintiffs Exhibit “P-7”. These show that the three matters on the agenda were discussed and that various resolutions were passed by the General Meeting. The record does not indicate what was said and by whom in relation to said resolutions but they do show a vote of no confidence was adopted as was a resolution removing the plaintiffs from the governing board. An interim managing committee was appointed to manage the affairs of the Society until the next AGM.
16. Also produced as part of the plaintiffs case were Exhibit “P-8” headed ‘Reasons for Extraordinary General Meeting’ and “P-9” the text of the resolutions expressing no confidence in the plaintiffs and requiring their removal. It is uncertain who drew up “P-8” but defendant Brunt seemed to think it was Vaasilifiti and that it was circulated either at the 12 August 2010 meeting or at the EGM. The latter would seem more consistent with the evidence that the organizers were concerned to keep the EGM as short as possible and the reference at the bottom of page one of the EGM Minutes (“P-7”) that “Due to time constraints the Lawyer was called and skip Vaasilis part in reading out the main Issues why we have to call the Meeting.”
17. As to “P-9” Brunts evidence was that as solicitor he drafted the resolutions on instructions from the organizers of the meeting. And that at the EGM again on instructions he read out those parts in capital letters but not the italicized portions.

The Relevant Resolutions

“EXTRAORDINARY MEETING OF THE GENERAL HELD ON FRIDAY 13^TH AUGUST 2010 PURSUANT TO ARTICLE 13 – CONSTITUTION, INTIATED BY THE GENERAL ASSEMBLY HAVING OBTAINED 1/5 OF ITS FINANCIAL MEMBERS

FIRST MOTION – VOTE OF NO CONFIDENCE

THE GENERAL ASSEMBLY (CENTRAL COMMITTEE) PURSUANT TO ITS AUTHORITY VESTED UNDER ARTICLE 11 OF THE SAMOA RED CROSS CONSTITUTION NO LONGER HAS THE CONFIDENCE IN THE CURRENT PRESIDENT AND ITS MANAGING COMMITTEE (GOVERNING BOARD) AND HEREBY RESOLVES TO DISSOLVE AND REMOVE THE CURRENT PRESIDENT AND THE CURRENT MANAGING COMMITTEE (GOVERNING BOARD) FROM OFFICE IMMEDIATELY UPON THE GROUNDS THAT THE CURRENT PRESIDENT AND THE CURRENT MANAGING COMMITTEE (GOVERNING BOARD):

HAS JEOPORDISED THE FUNDAMENTAL PRINCIPLES OF THE RED CROSS MOVEMENT THROUGH UNACCEPTABLE CONDUCT UNBECOMING OF A PRESIDENT OF THE SAMOA RED CROSS (physically assaulting a vulnerable member of the Society under care of the Samoa Red Cross and demanding that he be removed and chased away from the Samoa Red Cross premises);

HAS MISAPPROPRIATED THE SOCIETY FUNDS FOR PERSONAL GAIN AND IN DIRECT CONFLICT OF INTEREST;((a) awarding of contract to a Board member without proper assessment of the need from Management, no transparency process and then payment of such without knowledge of Management; (b) unauthorized and abuse of position by President in hiring a make up Security firm belonging to himself, and then making unauthorized payment to his security firm amounting to approximately SAT16,000.00 plus discovered to date);

HAS ABUSED POSITION FOR ADVANCEMENT OF PERSONAL INTEREST AND GAIN; (same as in (II) above);

HAS ABUSED THE SOCIETY ASSET FOR IMMORAL PERSONAL PLEASURE AND INTEREST (the tenant at the Society’s Property at Lotopa was put there by the President and is reported to be an acquaintance of the President; the said tenant has advised members of the General Assembly that she has been paying rent of $500 per month to the President for the last 4-5 months);

HAS FAILED TO RECEIPT/ACCOUNT FOR RENTAL REVENUE OF $500.00 PER MONTH FROM THE SOCIETY’S BUILDING AT LOTOPA FOR THE LAST FOUR (4) TO FIVE (5) MONTHS AS ADVISED BY THE TENANT AND PERSONALLY ADMITTED BY THE PRESIDENT;

(TO CITE ONLY A FEW)

Motion Moved By: Seiuli Titi Grey

Motion Seconded By: Greta Percival

Motion Carried or Rejected: Motion was unanimously accepted by the General Assembly when the question of acceptance or rejection was put to members.

SECOND MOTION – LOSS OF STATUS/REMOVAL FROM OFFICE

THE CURRENT PRESIDENT AND HIS MANAGING COMMITTEE (GOVERNING BOARD) NO LONGER PROTECTS THE WORK AND INTEREST OF BOTH THE SAMOA RED CROSS SOCIETY INCORPORATED AND THE RED CROSS MOVEMENT AS A WHOLE AND ARE THEREFORE DEEMED AS UNFIT PERSONS TO BE OFFICE BEARERS/HOLDERS OF THE SAMOA RED CROSS SOCIETY INCORPORATED AND ARE TO BE REMOVED FROM CONTINUING TO BE CURRENT OFFICE BEARERS OF THE SAMOA RED CROSS SOCIETY INCORPORATED HEREWITH

Motion Moved By: Liai Iosefa

Motion Seconded By: Rev. Reupena Leau

Motion Carried or Rejected: Members unanimously accepted the Motion”

18. It is not clear whether this document was prepared before or after the EGM. Prima facie it would seem to be post the meeting as it refers to the resolutions being unanimously accepted by the membership. Which is in conflict with “P-7” which notes they were carried “by the majority of those present.”

The Claim

19. The plaintiffs statement of claim alleges:

“That it was at this Extraordinary Meeting of the Red Cross that the defendants maliciously and falsely made or published or caused to be maliciously and falsely made or published the following statement or words of or concerning the plaintiffs which defamed the plaintiffs.

SAMOA RED CROSS BOARD FIRED AMID ALLEGATIONS

...Among reasons for the motion cited by the Societys Legal Counsel, Jerry Brunt, were:

...

Alleged misappropriation of funds

...

...

In moving for a vote of no-confidence Mr. Brunt outlined a number of evidential grounds against the former President and his board.

He outlined, “Motion 1-under article 11 the General Assembly no longer has confidence in the current president and its management committee hereby resolves to remove the current president and current management committee.

...

Has misappropriated the Society funds for personal gain and in direct conflict of interest.

Has abused decisions for the advancement of personal interest and gain.

...

...

Those to cite only a few of the grounds which effected the support for the vote of no confidence”...

Secretary General, Namulauulu Tautala Mauala said, “If we were given that task then yes, we’ll be conducting an investigation but right now we have a report with very firm evidence and proof to back up what was tabled at the meeting.”

Holding steadfastly to the ‘report’ with all the evidence was Legal Counsel Brunt. “This report is comprehensive. And sure, the former Board can contest the decision made by the General Assembly. But I can tell you that the Society has very good records to back them up. It’ll be very difficult to contest but yes, if they want to there’s nothing stopping them from taking this to court, that’s their right.”

20. Plaintiffs allege the natural and ordinary meaning of the underlined words are that:

“(i) The Plaintiffs have taken or used funds of the Red Cross for their own personal gain, use and interests to further themselves at the expense of the Red Cross.

The Plaintiffs abused or misused or took advantage of their position as the National Executive of the Red Cross for their own benefits;

The plaintiffs engaged in misappropriation or are suspected of misappropriation or engaged in conduct unbecoming or are suspected of engaging in conduct unbecoming elected members of the National Executive of the Red Cross resulting in disrepute or disgrace to the Red Cross and the country.”

21. And that the plaintiffs have accordingly been exposed to ridicule and contempt and their reputations have been seriously injured and impaired. They also allege the defendants were “actuated by malice and in contumelious disregard for the plaintiffs reputation or positions as the National Executive of the Red Cross.”
22. Plaintiffs are seeking $600,000 in general damages plus costs.

The defences

23. The defendants do not deny the plaintiffs were members of the governing body of the society, the National Executive. Or that the defendants were at the relevant time respectively the solicitor and General Secretary of the Red Cross. But they say that “P-3” (notice of the EGM) was published by the General Assembly of the Society and not by them. They also deny malice and say the words were used in the context of the Extraordinary General Meeting. Originally they pleaded in their Statement of Defence that the alleged defamatory words were not capable of bearing the meaning ascribed to them by the plaintiffs. But in final submissions they modified this to admitting the statements were defamatory but denied responsibility for publication. They say they neither requested or caused the statements to be publicised by the media.
24. By way of affirmative defence the defendants plead that the statements complained of are true in substance and in fact and that there were reasonable grounds to support the allegations made against the plaintiffs. They also rely on the defence of fair comment on a matter of public interest.

Analysis

25. The plaintiffs case hinges on what was said at the 13 August 2010 meeting. They also claim the meeting was called by the defendants and a vocal minority of the Society. But it is clear from “P-3” the meeting was called on behalf of the General Assembly as an Extraordinary General Meeting pursuant to article 13 of its Constitution. On the agenda were three matters: the Tsunami, Constitutional matters and ‘Other matters’. It required members to attend and noted transportation home would be provided. The evidence does not establish the defendants were any more responsible for calling the meeting than other members of the Society. They may have played a leading role because of their official capacities but that is not to say the defendants were responsible for calling the meeting.
26. The Extraordinary General Meeting was found by this court to be validly called. As none of the plaintiffs who testified attended the meeting the plaintiffs evidence of what occurred at the meeting relies on the documents “P-7” and “P-9” and on what was reported by the media in “P-1” and “P-2”. Surprisingly no-one who attended the meeting was called by the plaintiffs. The evidence did not disclose if the non-testifying plaintiffs Falefata Tuaniu Petaia and Miriama Alenapi attended the meeting.
27. The material before the court indicates that at the meeting Muagutu and the other plaintiffs were dismissed by at least a majority resolution of the General Assembly. Misappropriation of Society funds for personal gain and in direct conflict of interest as well as abuse of position for advancement of personal interest and gain were two of the five grounds cited for the removal. The meeting news reports made reference to a “comprehensive” report providing “firm evidence and proof” to back up the resolutions. Both defendants are cited by the media as referring to this report as justification for the removal.
28. First named defendant Jerry Brunt testified that he was called in as honorary counsel to the Red Cross Society. Quare whether this is correct as he was engaged by individual Red Cross members rather than by its governing body the National Executive. But whatever his status he gave advice on the Societys Constitution and other matters to the organizers of the EGM. As such he was privy to the full background of the matter including all relevant reports. This included Exhibits “D-3” and “D-4” for the defendants, documents which detailed President Muagutus involvement in the Societys freehold property at Lotopa and with a certain young lady resident therein.
29. He attended the 12 August 2010 meeting wherein the decision was taken to call an Extraordinary General Meeting. On the instructions of the meeting organizers he drafted the resolutions removing the plaintiffs. At the meeting he played his part as noted in the meeting minutes “P-7” and recalled in his sworn evidence that for “P-9”, on instructions from the meeting chairman he read out the capitalised but not the italicised portions of the Resolutions during the ‘Other matters’ agenda item discussion. No one spoke on the Motions which were passed according to “P-9” unanimously by the 200 or so who were present out of 250 members of the Society.
30. His co-defendant Namulauulu Tautala Mauala also attended the EGM but said her role was limited to agenda item 1, the Tsunami Report. Like Brunt she too stated the meeting was called on behalf of the General Assembly and it was they who passed the resolutions that removed the plaintiffs. She displayed more familiarity with the Lotopa issue and testified that it was Muagutus desire to have the house on the property renovated rather than utilizing the land to store the Societys containers. No rental payments, invoices or any other document crossed her desk in relation to repairs to the Lotopa house.
31. In order for the plaintiffs to succeed they must prove:
    1. that the words complained of carry the imputations pleaded in their statement of claim;
    2. that these imputations are defamatory;
    3. that the words complained of were published by the defendants ; and
    4. that no defences to the claim have been established.

(see Enosa v Samoa Observer Co. Ltd [2009] WSSC 15 and Mauli v USP [2007] WSSC 23)

32. The defendants in their final submissions concede the words complained about are defamatory – i.e. they concede (i) and (ii). But they say there was no publication by the defendants. I agree to a limited extent with the defendants. The words complained of as used in “P - 9” (the motion to remove) are capable of being defamatory. And are capable of carrying the imputations pleaded in the statement of claim.
33. But the problem with the plaintiffs case is attributing these words to the defendants. The plaintiff must prove the defamatory statements were as a matter of fact the statements of the defendants. The evidence shows they were not. The resolutions were drafted by the first named defendant as legal advisor to the organizers of the EGM. They were put to the General Assembly at a validly constituted meeting of the Society. They were approved by the unanimous vote of the membership present according to Exhibit “P - 9”. Admittedly there is conflict between “P – 9” and “P – 7” in this regard. But the difference is inconsequential. The majority of the members present approved the resolutions. And according to Brunts evidence, did so without discussion.
34. President Muagutus assertion in his evidence that he cited Brunt as a defendant because he was fuelling the fire behind the scenes and was improperly advising the EGM as honorary legal counsel does not alter these facts. That may be what he believed. But that does not make it evidence. And cannot even if accepted by the court operate to make the defamatory statements those personally of Brunt and the co-defendant. Likewise his dissatisfaction with the loyalties and performance of the second named defendant does not make her accountable for the resolutions. There is no evidence the second named defendant played any role in the drafting or passage of the resolutions. She participated in the EGM in her capacity as Secretary General. There is no evidence either defendant at any time exceeded the bounds of their office.
35. The plaintiffs action is misconceived. It tries to hold the defendants liable and responsible for the actions of others. It cannot succeed on that basis. The position may have been different if it had been proven the defendants went beyond the scope of their authority. Or if it was proven as asserted in the statement of claim that the defendants acted falsely and with malice. But no evidence of that was adduced.
36. I disagree with the defendants on the issue of publication. It is in my view clear that the defendants published the statements by disclosing them to the press. That is why they are quoted extensively in “P – 1” and “P – 2”. No doubt that is also why the plaintiffs feel they were primarily responsible for the complained of statements and is why they were singled out for suit. But the evidence does not support the plaintiffs contentions. It does not show these were the words personally of the defendants. They reflect instead the resolutions of a valid meeting of the Society. They are thus the words and actions of not the defendants but the Society.
37. The plaintiffs action against the defendants must fail. But even if that were not the case and these statements could be attributable to the defendants jointly and/or severally, after hearing the evidence I have come to the conclusion that the defence of truth has been made out in relation to the first named plaintiff. There is ample evidence President Muagutu misappropriated Society funds and conflicted his interests with those of the Society in relation to his management of the Lotopa house. The evidence showed the house was renovated by Muagutu according to his evidence by him personally at a cost of $3,000. He then rented it out to one Feleni Viliamu Faumui for $500 per month. He kept the rental for the first three months (November, December 2009 and January 2010) to recoup his investment but says he passed the rest to the Society. He produced as Exhibit “P – 4” for the plaintiffs copies of rental receipts for the months of February, March, April, May, June and July 2010. He says the tenant left in July 2010, coincidentally one month before this whole saga erupted. The original receipt book was not produced neither was Faumui called. The receipt copies are consecutively numbered and are signed by him and the then treasurer of the Society an employee that according to the second named defendant was hired by Muagutu and dismissed by her for misfeasance of office. He did not explain why if he intended to reimburse himself he only reimbursed half of his expenditure. There was also no evidence the Society received any of these payments or that the National Executive was aware of any arrangement in relation to the Lotopa house.
38. What there was good evidence of was that the house was in fact tenanted by a young lady in whose house Muagutu spent much time. See Exhibits “D – 3” and “D – 4” for the defendants as supplemented by the oral sworn testimony of the authors thereof. I do not propose to examine the nature of this nocturnal relationship as it is irrelevant. Suffice to state that I do not accept the legitimacy of Exhibit “P – 4” or the denials of President Muagutu on the matter. The rental paid by the Lotopa tenant whomever that was did not find its way into the Society account. The Societys receipt book for the relevant period produced as Exhibit “D – 7” for the defendants confirms this.
39. There is also the evidence concerning Muagutus hiring of his security firm without National Executive approval. For services rendered his firm was paid over $17,000. His evidence was the Executive was well aware of this. But this was not supported by the other plaintiffs. Dr Iopu Tanielu said the matter was raised at a meeting with the Treasurer Mr Johnston but no approval for such payment was sought or given. Johnston could not definitively recall and said he was prepared to accept the second named defendants evidence that it was not discussed. He certainly did not sight any quotes, invoice or documentation. The only other witness for the plaintiff Fuimaono Poloma said he had no knowledge of such matters.
40. Johnston (whom I found to be a credible and impartial witness prepared to give an honest and unbiased assessment of the situation) complained that the procedures adopted by President Muagutu and the Society left much to be desired. Too many decisions on important and significant financial matters were made by the President or Secretary General alone without consultation with the National Executive. Processes needed to be streamlined and proper accounting policies followed. This he tried to implement in conjunction with the Society auditors but not always successfully. The absence of audited accounts was a serious concern.
41. There were other areas of maladministration addressed by the evidence. I do not propose to delve into them. What is clear is there were sufficient grounds for the dismissal of President Muagutu for mismanagement of the Societys affairs and advancement to the detriment of the Society of his personal and business interests.
42. As for his Executive, they may have been lax in carrying out their duties and responsibilities but I found no reliable evidence that they were involved in any misappropriation of Society funds. Or that they in any way abused their positions or acted for reasons of personal gain. They seem to have been caught up in the attempt to remove their leader President Muagutu. Their failures were of omission rather than commission.
43. The incident involving Fuimaono Poloma and repair of the Societys Manono Office was grossly mishandled. It was imprudent for Mr Poloma as an Executive member to undertake such work especially in the absence of a proper tendering process. He also put himself in a position where potentially his interests and those of the Society could conflict. But not to the extent that it could be said he was stealing Society money or abusing his position on the National Executive.
44. The defence of justification succeeds but only in relation to President Muagutu. In relation to the other plaintiffs, their difficulty is it was not the defendants who maligned them if maligned they were. It was the General Assembly of the Society which passed the relevant resolutions. The Society was well within its rights as an organisation so to do. Those who undertake public office must be prepared to live in the public eye. And cannot shrink from the glaring and sometimes harsh spotlight of transparency and accountability.
45. In fairness to counsels I have not taken into consideration the defence of qualified privilege and how if at all it may apply to the instant case. Absent malice it certainly protects fair and accurate news reports of the EGM and its resolutions: see section 18 and Schedule II paragraph 13 of the Defamation Act 1992/1993. Whether this should extend to the defendants as office bearers of an incorporated society was not raised and remains an open question.
46. For completeness I add that the plaintiffs face the further hurdle that even if they were able to establish a case against the defendants they failed to adduce evidence as to how any damage to their respective reputations could be assessed. See generally paragraph 4.6 of the decision in Enosa. What little evidence existed was to the contrary e.g. Dr Tanielus evidence that subsequently he was unanimously appointed Vice President of the Society and his agreement with the suggestion that was because no-one believed the adverse publicity about them.
47. Plaintiffs claim is dismissed. Defendants are entitled to costs. As I have received submissions on quantum I assume counsel have been unable to reach agreement as to same.
48. Costs were not awarded on an indemnity basis as sought by defence counsel. This is not a case where such costs should be awarded: for guidance counsels should see the Court of Appeal decision in Letele et al v Filia and Others (unreported) 13 May 2011 where the court said indemnity costs are appropriate “only if the case advanced is hopeless or is pursued for improper purposes.” There is no evidence the litigation was pursued for improper purposes. As to prospects of success it would appear this is the first defamation claim against office holders of an incorporated society in respect of resolutions promulgated by one of them but approved by the society in general meeting. As such no precedent exists at least in this jurisdiction. The plaintiffs case was therefore arguably arguable and not completely hopeless. More could also have been made of the issue of malice. No basis for indemnity costs has been made out.
49. The Court of Appeal also said in Letele that costs sought must be reasonable and the “bare assertion of what has been charged does not establish reasonableness.” Costs will be assessed on the usual basis of a contribution towards a litigants reasonable costs. This contribution is usually ⅔ of the defendants taxed costs, in this case an amount of $13,600 plus VAGST. Counsel can obtain from the Registrar a copy of the taxed Bill of Costs.
50. Plaintiffs therefore to pay as their contribution to the defendants costs the sum of $15,640.

...............................

JUSTICE NELSON