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Prasad v University of the South Pacific [2000] FJHC 53; HBC0567J.97S (6 April 2000)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO: HBC 567 OF 1997

BETWEEN:

MAHENDRA PRASAD
Plaintiff

AND:

THE UNIVERSITY OF THE SOUTH PACIFIC
1st Defendant

AND:

ROBIN SOUTH
2nd Defendant

Counsel: Mr J. Maharaj for Plaintiff
: Mr R. Prakash with Mr S. Samuels for Defendants

Hearing: 8th March 2000
Judgment: 6th April 2000

JUDGMENT

On 29th December 1997, the Plaintiff filed a Statement of Claim claiming for unpaid wages and damages for defamation of character.

On 25th November 1999 this matter was set for hearing. On that day, the Defendants made an application to strike out the Statement of Claim, on the ground that the matters pleaded were matters within the jurisdiction of the University Visitor.

On 3rd December 1999, paragraphs 1 to 15 of the Statement of Claim were struck out, leaving only the defamation action for adjudication. That action was heard on 8th March 2000. This judgment is in respect of that trial.

The Plaintiff called three witnesses. PW1, Mahendra Prasad is the Plaintiff. He gave evidence that he is employed by the University of the South Pacific (the 1st Defendant) as Assistant Engineer in the Department of Marine Studies. He has been employed by the University since 1982, when he held a post as a cleaner and handyman. He was promoted to the position of Assistant Engineer in 1994, and became responsible for the engine on the boats belonging to the University. One of the boat was named “Aphareus.”

Mahendra Prasad was involved in a dispute with the University about the salary owed to him when he worked on the boat as relieving Chief Engineer. In 1995, the “Aphareus” broke down near the Toberua Island, at the mouth of the Rewa River. The boat was insured, and the insurance company employed a private investigator, Mr Philip Arnfield, to conduct an investigation into its breakdown. The result of the investigations, was forwarded to the police by the University. Mr Prasad was asked to come to the CID Headquarters. He said he was questioned by a Detective Constable Waqa, who told him that he had been accused of sabotage of the boat, by the Marine Studies Programme. He was told that he was the only suspect from the University.

Mr Prasad answered the questions asked of him. He denied the allegation. He was not charged. He said his workmates thought that he had sabotaged the boat, and that Mr Arnfield had questioned his wife who has a sickly disposition.

Mr Prasad continues to work for the University as Assistant Engineer. He plans to migrate in due course.

Under cross-examination, Mr Prasad agreed that he had never seen any letter, document or memorandum written by an employee of the University, accusing him of sabotage. He agreed that if such an accusation had been made, he did not know the words which had been used.

PW2 was Detective Constable Waqa Caulati. He was in charge of investigations into the suspected sabotage of the Aphareus.” He said that after receiving Witness Statements, and a complaint from the University, he treated the Plaintiff as a suspect because “he was the last person to work on the vessel as an engineer.” He also said that sabotage was suspected because there was foreign matter in the engine.

Constable Waqa said that he took statements from Mr Prasad’s workmates. He did not take a statement from the second Defendant, who is the head of the Marine Studies Programme. He said that another reason he was suspicious of the Plaintiff was because he had stayed on the boat on the day it broke down, when everyone else left the boat at the island.

Constable Waqa said that the investigations had commenced when the matter was referred to the police by the University. He said he received no other direct communication from the University about the case.

Under cross-examination, Constable Waqa said that he treated the Plaintiff as a suspect as a result of his own independent inquiry. He said that whilst he was questioning the Plaintiff, the Plaintiff asked him who had complained. He said he told him that the Registrar had complained. However he did not show him any document in relation to the complaint.

The third witness for the Plaintiff was Umesh Nath, Assistant Projects Officer at the Marine Studies Board. He said he had heard rumours that the Plaintiff had sabotaged the boat.

The Defendants called the 2nd Defendant, Professor Robin South. He gave evidence that he was in charge of the Marine Studies Programme. He said that the Aphareus broke down in Toberua Island in 1995. He wrote a report in relation to the breakdown to the Registrar of the University. The matter was then investigated by Mr Arnfield, on behalf of the Insurance Company. He referred to this report (Exhibit D-11) dated 2nd November 1995. That memorandum states:

“Attached are reports on recent damage to the MV “Aphareus” engine which occurred on October 11th 1995. The reports are self-explanatory. From these reports I believe there is reason to suspect deliberate tampering with the engine resulting in serious mechanical damage.”

The report does not name any suspect. Professor South said he had never alleged, either verbally or in writing, that the Plaintiff was a suspect. He said that he had always supported the Plaintiff in his training and career and held no malice towards him.

Under cross-examination, Professor South said he had not seen the statements obtained by Mr Arnfield and did not know who had sabotaged the boat.

DW2 was Sarojini Pillay, the Registrar of the University. She said she had received Professor South’s report, and that an insurance claim was then made in respect of the damage to the boat. She then wrote the University Bursar suggesting that the University await a report from their Insurance Company before deciding on the next step (Exhibit D-10).

On 20th May 1996, she wrote to the Commissioner of Police (D-6) in the following terms:

“I write to report a possible crime pertaining to the damage to the engine of the University’s research vessel MV ‘Aphareus’ which occurred on 11 October 1995.

On that day the vessel left Laucala Bay for Natovi. Few hours after leaving it developed an engine problem. When the vessel anchored at Toberua, the engine was checked by the Engineer. On removing the valve cover he found materials: grinding paste, brass nut and a plastic cap, which apparently was the cause of the problem.

The University is alarmed at what appears to have been a deliberate tampering with the engine resulting in serious mechanical damage. This put at risk the lives of those on the vessel. We request that a criminal investigation be carried out.

I enclose a set of the following documents:

A. Witness statements compiled by Guardforce Investigators, which have been provided by Queensland Insurance (Fiji) Ltd.: ..........”

The complaint (D-6) enclosed eleven witness statements. On 3rd December 1997, the Officer in charge of the Serious Fraud Squad at the CID Headquarters, wrote to Ms Pillay, saying that the investigations were complete, that a number of persons had been interviewed, that Mahendra Prasad had been questioned, and that there was no material evidence implicating any of them (Exhibit D-2).

Ms Pillay said that the matter had been reported to police because it was thought that a crime might have been committed. She said that she had never suggested that the Plaintiff was responsible for the sabotage. She said that she had a duty to refer the matter to the Police.

Counsel made written submissions. Mr J. Maharaj, for the Plaintiff submitted that the act of referring the Plaintiff to the police for investigation, was defamatory. He submitted that when the police referred specifically to the Plaintiff in D-2, it could be inferred that the Plaintiff was a suspect. He submitted that in referring the matter to the Police, the 1st Defendant had defamed the Plaintiff.

Mr R. Prakash for the Defendants submitted that the words alleged in the Statement of Claim were never published by the 1st or the 2nd Defendants. He submitted that in any event, the referral to the police was covered by qualified privilege because it was made honestly in the public interest.

Paragraphs 22 and 23 of the amended Statement of Claim particularise the alleged defamatory words. Paragraph 22 states as follows:

“That on or about the 15th of August 1997 the plaintiff was interviewed by a police officer named Waqa to the effect that the first defendant’s registrar had lodged a written complaint with the police saying that the first defendant suspected the plaintiff in relation to the Aphareus breaking down at Toberua Island. The actual words were substantially to the following effect:

“That Mahendra Prasad is the major suspect in the sabotage of the Aphareus when it broke down at Toberua Island”.”

At paragraph 23, the 2nd Defendant is alleged to have written a memorandum to the Registrar of the University saying:

“That the damage to the turbo charger of the Aphareus appears to have been due to sabotage, and the person suspected is Mahendra Prasad.”

Defamation is committed when the Defendant publishes to a third person words or matter containing an untrue imputation against the reputation of the Plaintiff. Words capable of being defamatory may be words which would tend to lower the plaintiff in the estimation of right-thinking members of society, or tend to cause others to shun the plaintiff, or would expose the plaintiff to hatred, contempt or ridicule.

It may be defamatory to publish that the defendant is guilty of a criminal offence. In Berry v. BTC (1961) 1QB 146 at 164 Diplock J said that the question was whether the criminal charge alleged was necessarily and naturally defamatory of the plaintiff. However statements that the plaintiff is under suspicion or under investigation are not necessarily defamatory. As Lord Devlin said in Lewis v. Daily Telegraph (1964) AC 234, 286, if the ordinary, sensible person thought an investigation meant guilt, it would be impossible to persuade anyone to give information about suspected crime.

It is clear however, that each alleged statement has to be considered in its context to decide whether or not guilt is implied.

The onus, on a balance of probabilities, of proving defamation and publication is on the Plaintiff.

It is clear having heard the evidence, that the Plaintiff himself has never seen or heard, publication of the words alleged. He did not see any memoranda, letter or document written by the University, accusing him of committing the sabotage. The basis for his claim is that he was told by Constable Waqa that the University had accused him. However Constable Waqa said he did not tell the Plaintiff any such thing. He had merely said that the University had complained of the sabotage.

Furthermore, Professor South and Ms Pillay (DW1 and DW2) both denied making any such statements. I believe them. I believe Constable Waqa when he said that the Plaintiff was treated as a suspect because of his own independent investigations. I do not believe that Professor South said either directly or by innuendo, that the Plaintiff had been guilty of a criminal offence.

I do not believe that Ms Sarojini Pillay said either directly or by innuendo that the Plaintiff might be guilty of a criminal offence.

Counsel asks me to infer that such a statement had been made by the reference to the Plaintiff in the letter to the University from the police, dated 3 December 1997.

However, Constable Waqa made it clear that the Plaintiff was a suspect and that he was the only suspect. It is also clear from the statement of Jope Lesavua, forwarded to the police by Ms Pillay with D-6, that on the day of the breakdown of the boat, the Plaintiff was dissatisfied with the terms and conditions of his employment with the University, and that he was alone in the boat on 30th August 1995 at Nukulau. That trip was followed by the trip in September, when the vessel broke down.

I note that Jope Lesavua’s statement is factual. It does not accuse the Plaintiff of sabotage. Nor does it imply that the Plaintiff was responsible for the damage.

In all the circumstances, although the words alleged to have been written, in the Statement of Claim, are certainly capable of having a defamatory meaning, I find as a matter of fact, that they were not written or said by the 1st or 2nd Defendants. The words were not published by the Defendants.

I note that the Defendants submit through counsel, that in any event, the report made to the police is protected by qualified privilege. That might be so in theory. However, qualified privilege was not pleaded by the Defendants in their Statement of Defence. As the Court of Appeal said in Titus Adit Narayan v. Edward William Smith Civil Appeal No. 28 of 1976, a defence of qualified privilege must be pleaded and proved.

In any event, I find that the report made by the 1st Defendant to the police, with the witness statements attached, was not defamatory, in that it did not accuse the Plaintiff of committing the damage to the vessel. The statements themselves are factual. The Plaintiff himself did not suggest that the information in them regarding his grievances with the University, and his time alone in the boat on 30th August, was untrue.

I find also that the 2nd Defendant’s report to the Registrar was not defamatory. It made no accusations against anyone at all.

In all the circumstances, having heard the evidence, I find that the Plaintiff has failed to prove his case on a balance of probabilities.

For these reasons, the Plaintiff’s claim is dismissed.

The Defendants ask for indemnity costs. Indemnity costs are available where the unsuccessful party has conducted itself in a reprehensible manner. I can find no grounds for making such an order in this case.

The Plaintiff is to pay the Defendants’ costs, to be taxed if not agreed.

Nazhat Shameem
JUDGE

At Suva
6th April 2000