IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

Civil Action No: HBC 336 of 2005L

BETWEEN:

ATIL CHANDRA GOSAI 
father’s name Jagdish Chandra Gosai of Martintar, Nadi, Accountant
Plaintiff

AND:

SANJIT PATEL
father’s name Mahijibhai Patel of Nadi Town, Merchant and Councilor of Nadi Town Council.
Defendant

JUDGMENT

Judgment of : Ms Dias Wickramasinghe J.

Counsel : Mr Vipul Mishra for the plaintiff
Mr. D. S.Naidu for the defendant

Solicitors : Messrs Mishra Prakash & Associates for the plaintiff 
Messrs Pillai Naidu & Associates for the defendant 

Date of Judgment : 1 May 2012

Keywords: Defamation; slander; libel;

INTRODUCTION

[1]	This is an action for defamation where the plaintiff is seeking damages caused to him by slander and libel. 

[2]	The plaintiff and the defendant were duly elected in October 2000 as council members of the Nadi Town Council for three years. The plaintiff was elected from a Fiji Labour Party (FLP) and the defendant from the National Federation Party (NFP). 

[3]	The plaintiff is a chartered accountant by profession and a part time teacher at the Training and Productive Authority of Fiji (TPAF). He also professed that he was an official at the Hindu temple and had good standing and status in the community. The defendant is a businessman and was elected as Mayor of the Nadi Town Council in the election held in 2005. 

[4]	The plaintiff alleges that Councilor (Cr) Suresh Pratap, at the council meeting held on 28 September 2005, made defamatory statements before the public and the media and the defendant who was chairing the meeting permitted and allowed Cr Suresh Pratap to make those defamatory statements. The said statements were broadcasted on Fiji television accessible both in and out of Fiji.

[5]	The plaintiff states that the alleged defamatory statements purport to portray that the plaintiff committed fraud and cheated the council and the rate payers by obtaining a 50% discount on the outstanding rates without declaring his interest in the property. 

[6]	The defendant relies on the defences of truth, qualified privilege, justification and fair comment. 

HEARING

[7]	At the hearing, Robin Ali (Town clerk – retired), PW1; Bal Ram (former Mayor), PW2; and Atil C Gosai (plaintiff), PW3, gave evidence in support of the plaintiff’s case. Mr Suresh Chand (the Rates Officer), DW1 and Sanjit Patel, DW2, gave evidence on behalf of the defendant. 

[8]	The parties filed documents as follows. An agreed bundle of documents marked ABDO containing six documents. At the hearing, the plaintiff marked documents P1 to P13 and the defendant marked documents D1 to D10 (blue file). Apart from the above documents the defendant also filed a further two bundles of documents. The first set was marked DB1, and contains 15 documents. The second set was marked DB2 and contains nine documents. I find that the documents are duplicated in the bundles thereby at times causing difficulties when referring to them. 

EVIDENCE 

[9]	In May 2003, the Nadi Town Council, in an effort to collect outstanding arrears, offered its constituents a special discount on rates up to 30% if the ratepayers paid the total outstanding sums before 31 December 2003. The council only had power to grant discounts up to 7% but the Minister of Local Government increased the limit of authority up to 30%. Any discounts above 30% had to be referred back to the Minister for approval. 

[10]	Nadi Town Council established a Task Force Committee (TFC) on 21 May 2003 (D4) to consider the applications for discounts. The defendant served as the chairman of TFC, whilst the plaintiff was appointed as a member.

[11]	The father of the plaintiff, Jagdish Chandra Gosai, by letter of 4 August 2003 (DB1), was one of the people amongst many others that completed an application requesting discounts. His application requested a discount up to 50%, disclosing 1/6 ownership in the property. 

[12]	The TFC, at its meeting held on 17 September 2003 (DW1-3), approved the 50% discount. On the same day, the council also unanimously approved the application for the 50% discount. Subsequently, the Minister of Local Government also approved the discount of 50% by his letter of 4 November 2003. (DW1-10). Upon notification by the Town Clerk on 13 November 2003, (DW1-13) the payments were made on 17 November 2003 on behalf of the plaintiff’s father. (DW1- 14 and 15). 

[13]	It is common ground that the plaintiff was not present when the TFC and the council considered his father’s application. 

[14]	In October 2003, the defendant contested the post of Mayor but lost by one vote to Cr Balram. The plaintiff in his evidence said that it was he who seconded the name of the opposing candidate Balram thereby expressing his support to Balram instead the defendant. The said elections were held few weeks after the TFC headed by the defendant approved the 50% discounts to the plaintiff’s father’s application. The defendant was elected as Mayor the following year, 2004.

[15]	Soon after the elections the defendant tendered his resignation from the taskforce by his letter of 7 November 2003. The reasons given in the letter inter alia seem to stem from advice received from Dr Sahu Khan who had informed him that the council must not offer such discounts as it would be a loss for the council. He therefore asserted that he does not wish to be part of the decision making process, which gave discounts to tax payers. The defendant states that he felt it was wrong especially where it involved a councilor and his family. 

[16]	At the Finance and Planning Committee meeting held on 27 November 2003, the reasons for the aforesaid resignation of the defendant was deliberated and a motion was moved to investigate the grant of specific discounts granted to Mr Jagdish Chandra Gosai (the plaintiff’s father). 

[17]	The investigation was carried out by Cr Morelli, who submitted a report on 4 December 2003 (DW 2). In his report he concluded that the discount was proper. 

[18]	The minutes of the meeting at page 421 paragraph F99 subparagraph 2 sets out in detail the chronology of events that took place up to 5 December 2003, the date the Council held an emergency meeting (D3). 

[19]	On 25 July 2005, the Minister informed the council that the ‘The Ministry is convinced with Council’s submissions and that the 50% discount on rates arrears for Gosai was approved by the Minister (Hon. M. Raqiqia) under section 73 of the Local Government Act and therefore the case is closed’ (P11). The said decision was then tabled at the Finance and Planning Committee meeting held on 7 September 2005. The said letter was tabled just two weeks prior to when the alleged defamatory statements were made by Cr S Pratap.

[20]	Then came the fateful day, 28 September 2005, when Cr Suresh Pratap and the defendant made the alleged defamatory statements in the presence of the public and media. These statements were later broadcasted. At the said council meeting, a resolution was passed giving authority to the defendant to investigate the matter, if the defendant was of the view that the matter should be investigated. The defendant was the Mayor at the time and the council gave full authority to the defendant to take further action in his discretion. 

[21]	The defendant then, by his letter of 13 October 2005, directed the Town Clerk to investigate the matter (DB1 page 19). Some of the alleged defamatory statements arose from the said letter.

[22]	The council then, by the letter dated 7 November 2005, informed Jagdish Chandra that the council was concerned about the non-disclosure of information that was vital for the council to take a fair decision and decided to cancel the 50% waiver granted on the rates of land and recommend the Minister reverse his decision. The same letter says that the ‘lot owners are now requested to pay the arrears by 30 November 2005, failing which legal action would be instituted without any further notice.’ (D9 - doc 4). The said letter was replied to G.P. Shankar & Company as solicitors of Jagdish Chandra by their letter of 22 December 2005. The reply letter specifically states inter alia that the register always had the name of Atil Gosai as the registered owner of the relevant certificate of the title; Jagdish Chandra made the application for discount in his own name and right and the threat to undo the discount already granted would be unlawful. 

[23]	The council then appointed a ‘Specific Committee’ to consider the issue and submit a report with recommendation to the finance committee. 

[24]	Document P3 is important. The date of the meeting is unclear to me. Mr Mishra produced document P3 with the consent of Mr Naidu. Nonetheless, the minutes contain a report that was prepared by the Specific Committee. The report after deliberation was put to a vote and the matter was finally put to rest with two voting against motion and the others for it. Since the minutes are not disputed, I have set out below the salient parts of the minutes. 

The said minutes reads as follows. 

LETTER FROM LOCAL GOVERNMENT MINISTER – REVERSAL OF MINISTER’S ORDER PAGE 205: ITEM F61 [4] REFERS.

COUNCILOR ATIL GOSAI DECLARED HIS INTEREST AND LEFT THE CHAMBERS AT THIS POINT IN TIME.

Reported that the following report was presented to the Councilors. The Councilors were given time to read the report:-

“REPORT FROM THE SPECIFIC COMMITTEE TO LOOK INTO THE 50% DISCOUNT ALLOWED ON ASSESSMENT NO. 474 (RAM PRASAD GOSAI)

The meeting of the above Committee was held on 28/07/06. In (the) presence were the Mayor Cr Salesh Mudaliar, the Deputy Mayor Cr Timoci Koroqica, Cr Tarun Patel, Cr Tuidraki, Cr Rosahn Ali, the Treasurer and the Town Clerk.

The Committee was briefed about the above form the time the application from Mr Jagdish Gosai for 50% discount was received (04/08/2003) to the time the discount was approved by the Minister and the discounted payment made. Council was also briefed about the Council’s resolution to rescind the Councils earlier resolution that recommended 50% discount to the Minister for Local Government.

The Committee interviewed Mr Balram, the former Mayor of the Council, the former Mayor Cr Sanjit Patel and Cr Atil Gosai.

Events

•	That the application for the discount was received from Mr Jagdish Gosai.

•	The Taskforce Committed under the Chairmanship of Cr Sanjit Patel considered the merits of the application and greed to allow 50% discount on the arrears of town rates subject to the approval of the full Council and the Minister.

•	Since the case against the ratepayer was in the Court the Solicitors, Sahu Khan & Sahu Khan was asked to furnish the Council their cost up to that stage and they were requested to file discontinuation of the case.

•	The Taskforce was given the mandate to recommend discount based on merits above 30%

•	The recommendation was forwarded to the Minister for 50% discount
•	The Minister granted approval on 04/11/03.

•	Council was aware of the fact that Cr Atil Gosai had interest on the said lot from the beginning.

•	Cr Atil Gosai did not attend any of the Taskforce meetings that considered or discussed the application from Mr Jagdish Gosai hence did not influence the Committee in reaching decision.

•	Upon approval from the Minister, Mr Jagdish Gosai paid the discounted amount.

•	Since there was caveat on the said land, the caveat was removed after the payments were made by Mr Jagdish Gosai.
•	The issue of reversing the earlier resolution of the Council that recommended 50% discount to the minister came in September 2005 when former Councilor, Mr. Suresh Pratap produced documents to show that Cr Atil Gosai has acquired additional shares in the property.

•	The Council then resolved to rescind the decision to allow 50% discount and asked the Minister to reverse his approval.

•	The Ministry of Local Government has suggested two options:-

i)	 Criminal proceedings – to be reported to the police if considered there exists valid reasons for the apparent delay in raising this matter now.
ii)	Re-tabling the application and passing a fresh resolution now, the date on which the Council to consider the application should be specifically stated:

Findings

•	The Committee was convinced that the decision to allow the discount was taken correctly at the Taskforce level, Council level and by the Minister based on the relevant information available to them.

•	Cr Atil Gosai did not take part in any of the meetings that discussed the granting of discount nor did he influence the decision at any level of decision-making.

•	The lot was already under caveat when the decision to grant discount was made and that Cr Atil Gosai had two shares in the property then.

•	The discounted had two shares in the property then.

•	The discounted rate was paid by Mr Jagdish Gosai.

•	The Lot currently is owned by Mr Jagdish Gosai, Cr Atil Gosai and Mr Suresh Gosai.

[25]	The matter was further deliberated as reflected in the minutes thereafter but finally after voting, the council on 16 August 2006 endorsed the report of the Specific Committee. 

[26]	Having considered the above report of the Specific Committee, the Minister by his letter of 3 November 2006 (P4) also informed the council that “…… the council is advised that this case has been properly dealt with at committee and council level and that no further action to be taken and the matter to be put to rest.”

[27]	On 17 November 2006, the Town Clerk, R.K. Ali, once again wrote to Atil Chandra Gosai in reply to their letter of 2 November 2006 attaching the Minister’s response (D9 doc 3). 

[28]	Consequent to the receipt of the Minister of Local Government and Urban Development by letter dated 3 November 2006 directing the Council not to take further action on the matter (D9 doc 20), the matter was finally put to rest by the Town Clerk, R.K. Ali writing to the plaintiff on 20 November 2006, informing him that the 50% discount had been upheld by the Council (D9 doc 18). 

[29]	In the midst of all the above incidents, there was also a case filed by the Nadi Town Council in Lautoka High Court, action 313/89, against Ram Prasad et al to recover the rates due to the council even before 1989. Ram Prasad was the plaintiff’s grandfather. Upon payment of the rates by the plaintiff’s father, the rate clerk by his letter dated 24 November 2003 advised its counsel at that time Dr Sahu Khan to withdraw the action that was pending since 1989. 

[30]	At the hearing the defendant said that he was unaware that the plaintiff had interest in the land and had he known of this interest he would not have granted the 50% discount. I have reproduced the following evidence of the defendant:

Q:	Who was the Mayor before you?
A:	 Balran elected in 2003 October. He stood against me. Both were a member of NFP. Caucus chooses me. All 10 members decided I will be made the mayor. It’s a …. During the night caucus met day before Bal Ram accepted to be the mayor. At that moment, I was shocked. I was holding the mayoral speech very disappointed at Bal Ram for what he did. …..

……………………………..

Q:	Who advised you of the procedure adopted at the meeting?
A:	Town Clerk was the most experienced who guided us.

Q:	On 28/9/05 what happened?
A:	Prior to the meeting, Councilor informed me he has an important issue where a decision has to be made by the council. It’s up to the Mayor to decide whether to allow or deny the request.

Q:	On 28/9/05 did Cr. Pratap asked you anything?
A:	Yes, he asked me permission to speak on an issue relating to the council affairs, which was very important. He did not tell me what it was about. I had no idea. I did not ask what the important matter was.
……………………………………………

Court:	Were you aware that the final decision was going to be your final call?
A:	Yes I did.

Mr Naidu:

Q:	Did you see the document Pratap was waving around?
A:	I saw it after the meeting.

Q:	Page 20, para 2 do you still stand by it?
A:	I still believe that Cr. Atil withheld information.

Q:	Pl witness see pages 25, 26 of DB1?
A:	I had no prior knowledge of it.

Ct:	Have you known that the plaintiff had interest in the land would you have permitted the 50% discount?
A:	It would have looked bad on my side as chairman of Taskforce committee to allow a discount of this type as a father’s councilor. There were others as well who were not councilors who required this discount but I never told anybody as it was not good for Nadi Council. I don’t know the father. I have never met the father.

Q:	Were you trying to help the plaintiff?
A:	I was trying to help to resolved the problem and when I joined the council in 1999 it was common knowledge that this family had issues regarding land within the family and because there were so many shareholder it will be difficult to get each one to pay.

Q:	By giving 50% discount initially whose interest were you looking at?
A:	I was looking at the council’s interest. Atil said I will pay it through my father’s interest. I did not know. He said if it was reduced it could be paid.
………………………………….

Court:	You did not know who the owners ?
A:	Yes, it did not matter to me.
…………………………………………..

Q:	You said plaintiff had approach you on this matter and he had requested for assistance?
A:	He approached said an issue with the family. I was aware.
…………………………………………….

Q:	My instruction are after you lost to Bal Ram, you told plaintiff that you will get the 50% reversed?
A:	No, it’s not true. I was relying only on my members for election.

Q:	But you lost because of one?
A:	I never relied on plaintiff.

Q:	Did you have access to Valuation roll?
A:	I had access. We never look at Valuation roll. Our concentration was on the figure outstanding and the status of the case with the lawyer. We were not too keen to know who the individual owners. To my knowledge we never …the valuation roll in any case.

Q:	You are telling the court you were not concerned who the owners were?
A:	Yes.

Q:	So why is your huge concern about your follow cr. …..when he was a part owner?
A:	Because it was important. I need to correct sometimes ownerships is important.
……………………………

Q:	Page 16, 17, 18 – Request came from Councilor Prathab, you did not even ask him” why did you not stop” when he said Cr. Atil cheat and liar?
A:	No answer.

Q:	You allowed to continue to make allegations when public is present to conduct the meeting with defamatory statements.
A:	he said its important..

Q:	How can you know it was important you did not even know councilor was going to say those things?
A:	The statement that he said was important.

AGREED FACTS 

[31]	The parties at the PTC agreed on the following facts:
 
1.	The Plaintiff is an Accountant and an elected Nadi Town Councilor.

2.	The Defendant is an elected member of Nadi Town Council and is a businessman. 

3.	The Defendant was the Mayor of the Nadi Town Council in September 2003 and chaired a meeting of the Council on the 28th day of September, 2005. 

4.	In a meeting of the Nadi Town Council the Defendant allowed Fiji Television to be present at a meeting of the Council. 

5.	That the Defendant as Chairman of the Council allowed a Councilor Suresh Pratap to say the following words about the Plaintiff before the Nadi Town Council meeting in the presence of the Mayor, Town Clerk, other councilors there present, Fiji TV reporter and photographer and others:-

“There are poor rate payers who can’t afford to pay $300-00 rate. From $76000-00 rate he joined . . . . his personal interest. He manoeuvred the council. I don’t know how he made it. The rate was dropped to $38000-00, he fooled this council. We are not fools here. The fool is sitting there. But at last the property was transferred to his personal name. This property was transferred in his personal name. Whom did he cheat? I think the minister should intervene now and investigate this matter straight away. This is a white collar fraud.”

6.	The Defendant was aware that the application to waive rates or for a discount on the said CT 7081 had not made by the Plaintiff. 

7.	The Defendant was the Chairman of the Task Force Committee of the Council, which had made the recommendation to the Minister for Local Government for discounting or waiving of rate arrears. 

8.	At the relevant time, the Plaintiff was a member of the Task Force Committee of Nadi Town Council which considered the matter of discounts of rates. 

9.	The Defendant was aware that the Plaintiff had not participated in the deliberations of the Council in respect of the application for discount or waiver of Town rates for Certificate of Title No. 7801. 

10.	The Defendant was aware that there was a High Court case by the Council for Town Rates in arrears which was against one Jagdish Gosai and that the Plaintiff was not a party to that action.

11.	There was a caveat lodged by the Council against Certificate of Title No. 7801 to secure rate arrears. 

12.	The Defendant called for an investigation against the Plaintiff to find out whether he had misled the Council and whether he told the truth to the Council. 

13.	The Defendant gave a statement that the Plaintiff did not disclose his partial interest in Certificate of Title No. 7801 and stated: -

"You would recall that a Taskforce Committee was formed in 2003 to collect the arrears of town rates. One of the committee members was Cr Atil Gosai.

Cr Atil Gosai 's father, Mr Jagdish Gosai, being 1/6 owner of the above property wrote to the Council seeking 50% discount on the arrears. One of the reasons given was the family dispute.

Cr Pratap is claiming that the above land was transferred to Cr Atil Gosai's personal name immediately after the discounted rate arrears was paid and that Cr Atil Gosai knew very well that the land was to be transferred to his name from the time the application for discount was made by Mr Jagdish Gosai but failed to advise the Council about his intentions. Cr Pratap believes that Cr Atil Gosai by not advising the Council about his intentions, has cheated the Council and its ratepayers of $37,924-09.

I have personally sighted the copies of the transfer documents signed by two members of the Gosai family, transferring their shares in favour of Cr Atil Gosai.”

14.	The Defendant in or about 13th October 2005 wrote a letter to Town Clerk of Nadi Town Council where he stated as follows: -

"It is very clear from the above that Cr Atil Gosai did not declare the whole truth, that is, his personal interest on the said land to the Taskforce Committee nor to the Full Council when the application for the discount was being discussed.”

[32]	At the hearing, the plaintiff said that he in fact paid the $7500.00 to Dr Sahu Khan & Sahu Khan. ABOD document 3 contains the certificate of title, which confirms that the property was transferred in the name of Atil Chandra Gosai on 26 September 1994. The plaintiff in his evidence confirms that he paid the $7500.00 and the caveat was removed and the land was transferred in his name thereafter. It is pertinent to state that D8 does not disclose the $7500 paid by the plaintiff and the plaintiff at the hearing said after adding the said $7500 there should in fact be an overpayment to the town council. D4, the unsigned report which was prepared by the council on 4 December 2003, states at paragraph 2 that on 2 August 2003 the council wrote to Dr Sahu Khan, instructing him to remove the caveat. 

LETTER 

[33]	It is the defendant’s evidence that before submitting the application, the plaintiff had asked him whether he could also apply for a discount as the family had a dispute over the property. The defendant then says he asked the plaintiff to apply for the discount. He strongly maintained that he did not know the plaintiff’s father and only knew that there was a family dispute. At the TFC meeting he had asked the plaintiff to leave as the application related to his father. Mr Balram in his evidence said that the plaintiff disclosed his interest, which is denied by the defendant. The application of the father made on 4 August 2003 reads:

4th August 2003
P.O. Box 9427
Nadi Airport

The Town Clerk
Nadi Town Council
P.O.Box 241
Nadi

Dear Sir

Re: Outstanding Town Rates Assessment No. 474

I wish to advise you that I am owner of one-sixth share in the property CT 7081 at Martintar, Nadi.

I understand that the council is currently giving a 30% discount for total rates due.
I have been having problems with getting other owners to agree for payment of the outstanding town rates.

I hereby request the council for discount of 50% on total outstanding rates on the above property and I will personally arrange for the payment of the total discounted amount of approximately $37,000.00 (Thirty Seven Thousand Dollars).

You council’s kind consideration in this matter will be most appreciated.

Yours faithfully
…………………….
Jagdish Chandra

[34]	Mr Mishra submits that the application was made by the plaintiff’s father clearly setting out his one-sixth ownership and not by others. He says that it is apparent that the letter disclosed the difficulties faced by the plaintiff’s father getting the other co-owners to pay the outstanding rates. The letter only says that he is having problems getting other owners to agree to pay the outstanding rates.

[35]	The letter states that the plaintiff’s father is having difficulty getting the other owners to pay the rate, but he will honour the entire payment of the outstanding arrears if he is given 50% discount. The letter clearly disclosed that he was only a part owner, but the obligation is offered by him personally. At the hearing, the defendant accepted that the entire council knew that the property had a family dispute. I am unable to accept that the defendant was unaware that the plaintiff was a part owner, and later on I will give my reasons for same. 

MALICE 

[36]	The plaintiff states the defendant changed his mind about the discount matter only when the plaintiff openly supported Mr Balram Kistaiya for the Mayoral post at the elections held in October 2003. The defendant contested the Mayoral post and was defeated at the council election by one vote, resulting in Mr Balram Kistaiya becoming the next Mayor for three years. The defendant in his evidence admitted that he was disappointed about his defeat as he even had the Mayoral speech ready at the meeting. At the hearing, the defendant maintained that he never relied on the plaintiff’s vote. The plaintiff says after the elections the defendant threatened to ruin him. 

[37]	Mr Mishra submits that the plaintiff’s actions are couched in malice for the sole purpose of defaming the plaintiff, due to the fact that he was defeated at the election by one vote, within two weeks after the 50% discount was given to the plaintiff’s father. 

[38]	On a consideration of the totality of evidence, I am inclined to agree with Mr Mishra that the defendant indeed acted with malice throughout the entirety of all the incidents that followed the discount issue. At the hearing, I observed the enmity of the defendant over the defeat as the Mayor, where he lost by one vote. Although his evidence commenced referring to the plaintiff as my friend, even his facial expressions gave way when he explained to the Court his disappointment over the Mayoral issue. The defendant at one point expressed his sorrows but in cross-examination then attempted to say it did not matter. His hatred was further portrayed when he said he did not want the plaintiff’s vote and never will. At the hearing, the defendant said that there were others who were not Councilors who had requested this discount but he never told anybody as it was not good for Nadi Council. In my mind, this is a classic case of ‘you scratch my back and I will scratch yours’. The letter of 7 November 2003, where he gave his reasons (ABDO - 6), clearly manifests that the defendant knew about the plaintiff’s ownership. I have no doubt all decisions and comments that were made by the defendant related to the discount issue at various times were couched in malice. 

DEFAMATORY STATEMENTS

[39]	Paragraph 11 of the statement of claim sets out the defamatory statements as follows.

The defendant said:

11.1 “The said property was already transferred to Councilor Gosai’s name and he waited for this discount and then later got the property stamped in his name” . (Vide paragraph 2 of P7- Transcript Fiji news 1)

[40]	Mr Mishra submits that this statement gave the clear impression or was understood to mean or was capable of being understood to a reasonable man that the plaintiff acted discreetly or furtively waited for discount of rates then had the property “stamped” when it was registered. He further states that the plaintiff had nothing to do with obtaining the discount and secondly he had declared his interest and made it known to the Mayor and the Council.

[41]	I agree with Mr Mishra for the following reasons.

[42]	The hand written minutes dated 17 September 2003 (DB1 document 4) read as follows. 

Gosai’s property (474) – (Ram Prasad) presented by Chairman 50% discount allowed (write to the Minister for approval), Chairman said that he will obtain mandate from the council to decided on the discount issues (today)

Write to Sahu Khan and withdraw the case (disbursements to be paid) [letter written on 23/09/2003] (emphasis added)

[43]	The minutes of the meeting of 28 September 2005 revealed that Cr Prasad’s utterances of the alleged defamatory words were caused by a telephone call he had received from a friend stating that the plaintiff was alleged to have said that Cr. Pratap’s Company had undertaken the sealing work of the Namaka Market without following a tender process.

[44]	It appears that the contents of the telephone conversation had annoyed Cr S Pratap, and he then commenced chastising the plaintiff by stating ‘Cr. Atil Gosai is a cheat and a liar himself. He joined the council with only two agendas, one was to get 50% discount on the rate owned to council on family property of Cr. Atil Gosai and the other one was the mountain view drainage.

[45]	No sooner were those words uttered than the plaintiff objected but the council minutes disclose that the defendant had told the plaintiff that he will be given a chance to reply and permitted Cr Pratap to speak.

[46]	Several statements were made by Cr Pratap. Since those statements are also a cause in another pending case before this court, I do not wish to make any comments or findings in those utterances. Let me therefore only limit my finding to the defendant’s alleged defamatory statement.

[47]	When Cr Pratap said Cr Atil Gosai was a cheat and a liar himself during Mayoral business, clearly any reasonable prudent person would know that any further utterance by Cr Pratap would include derogatory statements. 

[48]	The defendant then uttered the aforesaid words. 

[49]	The defendant in his evidence clearly informed court that ownership of land did not matter. He later, under cross–examination, said since the plaintiff was a Councilor the ownership mattered. I have already found that I disbelieve the defendant that he did not know the plaintiff’s ownership. The offer of discounts did not exclude the Councilors. Therefore, if the defendant truly believed that his actions could be interpreted that the Taskforce Committee (TFC) had favoured a Councilor, then in my mind the same yardstick should be applied to the plaintiff’s father, who lived in the same house with the plaintiff and should have been only offered the normal discount of 30%. The several subsequent approvals given both by the Council and the Minister clearly established that the ownership did not matter. I am not required to determine the rightness of such decisions and therefore I will not delve further into the matter. 

[50]	By that time, three different investigations and three Ministerial decisions were available before the Council and the entire Council members including the defendant and Cr Pratap were well aware of it. Moreover, two weeks prior to the incident, the Minister had requested the Council close the matter on discount and I have no reason to believe that the defendant, who was the Mayor at that point, was unaware of the letter.
 
[51]	It appears to me that the TFC considered the application for 50% discount, had deliberated on the case that was pending before the High Court since 1989 and had considered the 50% as an overall settlement for recovery of the taxes and the settlement of the case. My opinion is fortified by the subsequent action of the Council where Dr Sahu Khan had been asked to withdraw the legal action by the Nadi Council by its letter on 23 September 2003. This instruction had in fact been sent even before the discounted rate was paid by the plaintiff’s father on 17 November 2003. 

[52]	The arrears of rent that were due to the council pertaining to the two properties that were purchased was not caused due to the plaintiff non-payments of arrears. Clearly those payments were due from Prabhat Chandra and Shakuntala Devi Singh as part owners at the date of transfers in 2003 and not the plaintiff. DW1, Suresh Chand, the Rate Officer, in his evidence said that the TFC deliberated the applications for about an hour and he submitted the property assessment file and the rate transaction history for TFC consideration. He also confirmed that, apart from the plaintiff’s father, another person was given 50% discount by the TFC, which was admitted by the defendant at the hearing. 

[53]	Due to the foregoing reasons, I conclude that the statement above is defamatory.

[54]	Let me now consider the second statement set out in paragraph 11.3 of the statement of claim. 

The Defendant said (vide DB1 page 19 letter dated 13 October 2005 written by the defendant to the Town Clerk recommending investigation)

“You would recall that a Taskforce Committee was formed in 2003 to collect the arrears of town rates. One of the committee members was Cr Atil Gosai. (paragraph 2)

Cr Atil Gosai’s father, Mr. Jagdish Gosai being 1/6 owner of the above property wrote to the Council seeking 50% discount on the arrears. One of the reasons given was the family dispute. (paragraph 3)

Cr Pratap is claiming that the above land was transferred on Cr Atil Gosai’s personal name immediately after the discounted rate arrears was paid and that Cr Atil Gosai knew very well that the land was to be transferred on his name from the time the application for discount was made by Mr Jagdish Gosai but failed to advise to Council about his intentions Cr Pratap believes that Cr Atil Gosai by not advising the Council about his intentions has cheated the Council and its ratepayer of $37,929.09. (paragraph 4)

I have personally sighted the copies of the transfer documents signed by two member of the Gosai family transferring their shares in favour of Cr Atil Gosai. (paragraph 5)

[55]	The Defendant was Chairman of the task force that made the recommendation to the Minister for discount in respect of arrears of rate. The Defendant was aware of the relevant facts, namely the plaintiff’s interest, the plaintiff did not apply for the discount and took no part in any meeting or discussion for discount or waiver of rates.

[56]	CT 7081 contains the memorandum that says that the land was transferred in the name of the plaintiff on 26 September 1994. Since 1994 the Council had records of the ownership of the plaintiff of the property. In my mind the subsequent purchase had no application to the discount offered as he was still an owner of the property and he would had received a benefit proportionately for the 50% discount for his part. I agree with Mr. Naidu’s argument that under section 75 of the Local Government Act Cap 125 that the rates run with the land. However, it is the owners who are obliged to pay the rates.

[57]	I have set out my reasons at length above. In my mind the entire investigation was recommended to further wound the plaintiff and not with virtuous intentions as alleged by the defendant. Due to the foregoing reasons, I conclude that the statements above are defamatory. 

DEFENCES

[58]	Mr. Naidu says that the plaintiff’s pleadings are defective as the plaintiff failed to identify precisely the defamatory words in the pleadings and alleged that any or all of the words contained in the subject article are defamatory. He cites DDSA Pharmaceuticals Ltd v Times Newspaper (1973) 1Q.B.21@26, cited in Bokini v Associated Media Ltd (1996) FJHC88@p.2.

[59]	I have considered the statement of defence and am satisfied that the plaintiff has set out the alleged defamatory statements where the defendant could identify them. 

DEFENCE OF TRUTH

[60]	The issue is centered around two transfers made by the plaintiff around the time when the discounts were offered. The first transfer was made on 23 July 2003 for a consideration of $6000.00 and the other on 1 October 2003, for the consideration of $85,000.00. The Minister of Local Government approved the discount by letter dated 4 November 2003. The defendant alleges that the plaintiff fraudulently delayed the registration until July 2004, therefore he is a cheat and a liar. 

[61]	The defendant maintains that he and the other council members were unaware of the transfer and the transfer was fraudulently not submitted for registration until July 2004. I have already given my reasons earlier. However, let me recap as to the reasons why I disbelieve the defendant. 

•	Firstly, the report of the ‘specific committee’ specifically says that the council was aware that the plaintiff was an owner of the property. The council’s own minutes establish that the defendant’s assertion is incorrect.

•	Secondly the Nadi Town Council had several cases filed to recover town rates. It appears that the Gosai family have had a long drawn case with the Nadi Town Council since 1989 under High Court Lautoka Case No. 313/89. It also appears that the family had another dispute where action was filed in 1994 under HBC 230/1994L – (Vide DB2 Page 8) and a caveat had been filed in 1990 in High Court Lautoka case No. 230/1990 (DB2 page 17), 785/1983 (DB2 page 19). All these cases had been either settled, withdrawn or struck out in 2004 after the discount issue was settled. The defendant was aware of the case pending at the Lautoka High Court relating to the outstanding rates owned by the Gosai family as the hand written minutes dated 17 September 2003 at DB1 document 4 show (these are set out above), establishes that the long drawn case had been considered when considering the 50% discount. I disbelieve the witness when he said he hardly knows the plaintiff and his family and only knew that the family had a dispute. 

•	Thirdly, the valuation role, P2, prepared (on 25 November 2002) and maintained by the Nadi Town Council, contains a column depicting the registered owners of the property as ‘Atil Chandra Gosai F/N Jagdish Chandra as the owner of Lot 1. As a member and subsequently the Mayor of the Nadi Council, the defendant could have easily satisfied himself with a simple perusal of the valuation roll that the plaintiff was the owner if he thought ownership mattered.

•	Fourthly, at the hearing the defendant said that ownership of the land did not concern granting of the discount.

•	Fifthly, the letter of Jagdish Gosai clearly indicates that he is the owner of one-sixth share of the property. This indicates that there were five other owners of the property. The rates register manifest that (D9 - 1) (i) Ram Prasad, (ii) Suresh Chand, (iii) Prabhat Chand, (iv) Jagdish Chand, (v) Jairam Chand and (vi) Atil Gosai were the owners of the land. 

[62]	I am satisfied that the defendant was fully aware that the plaintiff was a partial owner of the property. I am also satisfied that when the Council approved the 50% discount it was fully aware that the plaintiff was the owner of the property. In my mind whether the owner was one-sixth owner or two-thirds owner is immaterial as either way the plaintiff would have benefitted up to some extent. The defendant being well aware of this benefit consciously recommended the 50% discount over and above what was given to other ratepayers. The defendant now attempts to portray his virtue by stating ignorance of plaintiff’s ownership, which I disbelieve. 

DEFENCE OF JUSTIFICATION

[63]	The defendant also relies on justification under Section 15 of the Defamation Act Cap 34].

[64]	Section 15 reads:

“In an action for defamation in respect of words containing two or more distinct charges against the plaintiff, a defence of justification shall not fail by reason only that the truth of every charge is not proved if the words not proved to be true do not materially injure the plaintiffs reputation having regard the truth of the remaining charges.”

[65]	I have already concluded that the statements are true and have at length given my reasons. In the circumstances the defendant is not entitled to the defence of justification. 

DEFENCE OF FAIR COMMENT 

[66]	The defendant also relies on a defence under fair comment under section 16 of the Defamation Act Cap 34.

[67]	Section 16 reads:

“In an action for defamation in respect of words consisting partly of allegations of fact and partly of expression of opinion, a defence of fair comment shall not fail by reason only that the truth of every allegation of fact is not proved if the expression of opinion is fair comment having regard to such of the facts alleged or referred to in the words complained of as are proved.”

[68]	 Mr Naidu drew my attention to his well researched written submissions on this point and in particular to several cases that I have considered at length. Albert Cheng –v- Tse Wai Chun Paul [2000 HK (FA 35); (2000 (3) HKLRD 418]; Abbas Ali (appellant) –v- Edward Henry Thompson & Two Others Civil Appeal No. ABU 0029 of 2011 (Ltk High Court Action HBC No. 159 of 2004).

[69]	In Abbas Ali (supra) discussed this defence thoroughly starting from page 4. The requisites required for establishing the defence of fair comment are stated on page 5:

•	“The comment must be a matter of public interest.
•	The comment must be recognizable as comment as distinct from an imputation of fact.
•	The comments must be based on facts which are true or protected by privilege.
•	The comment must be explicitly indicated at least in general terms, what are the facts of which the comments are being made.
•	The comments must be one which could have been made by an honest person, however prejudiced he might be, and however exaggerated or obstinate his view. It must be germane to the subject matter criticized”.

[70]	In Telniknoff –v- Matusevitch [1992] 2AC at 351 quoted in the aforesaid judgment it is stated :

“the question whether words are facts or comments is in the first instance for the judge; if he is satisfied that they must fall into one of the categories he should so rule. If a defamatory allegation is to be defended as fair comment it must be recognizable by the ordinary, reasonable reader as comment and the key to this is whether it is supported by facts, stated or indicated, upon which as comment, it maybe based”.

[71]	Another passage stated by the FCA in the above case is from Hasselblad (G.B.) v Orbinson [1985] QB 475, an observation had been made to state:

“Whether an inquiry is made of a person with a view to the detection of a criminal offence, it is his duty in the sense here used to give such information as he may possess, and such information, if given bona fide and without malice, will be privileged. “I cannot doubt, said Parke B. in Kine v Sewell, that is a perfectly privileged communication, if a party who is interested in discovering a wrongdoer, comes, and makes inquiries, and a person in answer makes a discovery, or a bona fide communication, which he knows or believes, to be true, although it may possibly affect the character of a third person”. However, answers to inquiries by the police may now be protected by absolute privilege even though no proceedings have been started.”

[72]	At page 6 his lordship cites a passage from the text book of “Gatley on Libel and Slander”. It is stated :-

“To succeed in the defence of fair comment, defendant must show that the words are comment and not a statement of fact. [Campbell v Spottiswoode (1863) 3 B & S 769; Minister of Justice v S. A. Associated Newspapers, 1979 (3) S.A. 466. However, an inference of fact from other facts referred to, may amount to a comment. [Kemsley v Foot (1952) A.C. 345; Jeyaratnam v Goh Chok Tong (1989) 1 W.L.R. 1109; London Artists v Littler (1968) 1 W.L.R. 607; He must also show that there is a basis for the comment, contained in the matter complained of. Finally, he must show that the comment is on a matter of public interest or is otherwise a matter with which the public has a legitimate concern.” [Page 288 in Chapter 12].

And then goes on to say:

“As stated by Gatley, to succeed in the defence of fair comment, it is necessary to establish that the words are written for the purpose of comment only and not to state facts at a given situation. This is the law found in all the authorities including in Albert Cheng, referred to by the learned Trial Judge as well as both the Counsel”.

[73]	In the case of Fiji Times Ltd v Vayeshnoi [2010] FJCA 35; ABU002 of 2008 (16th July 2010) at pages 4 to 8 the FCA has analyzed the boundaries of fair comment but we start from page 5 where it is stated:-

“Reynolds v. Times Newspapers Ltd and Others [2000] UKHL 57; (2001) 2 AC 127 concerned the plaintiff, a prominent public figure in Ireland who began proceedings for defamation against the defendants, the publishers of an article contained in the British mainland edition of the national newspaper. The publication related to the political crisis in Ireland in 1994 culminating in the plaintiff's resignation as Taoiseach and the collapse of his coalition government which had during its course, progressed the peace process in Northern Ireland. The plaintiff claimed that the words complained of bore the meaning that he had deliberately and dishonestly misled the Dail and his Cabinet colleagues. He sued for defamation.

20.0 On appeal to the Court of Appeal Lord Bingham of Cornhill, CJ in a reserved judgment on behalf of the whole Court said at p. 165 dealing with the defence of fair comment that "it is the right of fair comment or honest opinion which has, up to now, provided the main protection of free political discussion in places and on occasions not attracting the protection of privilege". Later, at p. 170 the Court of Appeal mentioned with approval the decision of the House of Lords in Derbyshire County Council v. Times Newspapers Ltd (1993) AC 534 where the House held that since the threat of Civil Action for defamation would place an undesirable fetter on freedom to express criticism of a democratically elected government body, it was contrary to the public interest for institutions of central or local government to have any right at common law to maintain an action for damages for defamation. Then, at p. 174, and in our view very relevant to the facts of this case, the Court said: 

"There can be little doubt that in a modern parliamentary democracy electors have a proper interest in being informed about the activities of their elected representatives when those activities are relevant to their performance as such and their fitness to hold their representative office. That being so, members of the news media and others have a proper interest, some would say duty, in informing electors as a whole of relevant activities of individual politicians".

21.0 In the House of Lords, Lord Nicholls of Birkenhead delivered the leading judgment. At page 193, he said: "Traditionally one of the ingredients of this defence is that the comment must be fair, fairness being judged by the objective standard of whether any fair-minded person could honestly express the opinion in question. Judges have emphasized the latitude to be applied in interpreting this standard. So much so, that the time has come to recognize that in this context the epithet "fair" is now meaningless and misleading. Comment must be relevant to the facts to which it is addressed. It cannot be used as a cloak for mere invective. But the basis of our public life is that the crank, the enthusiast, may say what he honestly thinks as much as the reasonable person who sits on a jury. The true test is whether the opinion, however exaggerated, obstinate or prejudiced, was honestly held by the person expressing it": see Diplock, J in Silkin v. Beaverbrook Newspapers Ltd [1958] I WLR 743,747.

22.0 Towards the end of his judgment, Lord Nicholls said at pg. 205;

"Above all, the court should have particular regard to the importance of freedom of expression. The press discharges vital functions as a blood hound as well as a watchdog. The court should be slow to conclude that a publication was not in the public interest and, is in the field of political discussion. Any lingering doubts should be resolved in favour of publication".

25.0 The clear conclusion to be drawn from the judgments of Lord Nicholls and Lord Cooke is that although the constitutional structures vary, the pervading ideals are the same. Freedom of speech on the one hand and personal reputation on the other have the same importance in all democracies. The whole purpose of defamation law is to enable a plaintiff to clear his or her name.

26.0 Because we consider this question of fair comment is so important we believe it necessary to refer to two judgments of Mr. Justice Eady in the Queen's Bench Division of the English High Court, Branson v. Bower (2002) QB 737 and Sara Keays v. Guardian Newspapers Ltd and 2 Others, the only citation for which we have is (2003) EWHC 1565 delivered on the 17th of June 2003, a copy of which was provided by the appellants and not disputed by the respondent.

27.0 In Branson v. Bower the Judge held that the touchstone for fair comment on a matter of public interest was always honesty and should not be watered down by considering issues such as fairness or moderation even if the words complained of could be characterized as attributing corrupt or dishonourable motives to the claimant; and that, accordingly, the only requirements for establishing a defence of fair comment were that the defendant had expressed his opinion honestly or has done so upon facts accurately stated. It was not submitted by the respondent in this case that the expression "chamcha" was not accurately stated by the appellants nor that it was stated dishonestly.

[74]	In the aforesaid case His Lordship also considered the famous summing up of Diplock J as follows:

'35.0 We cannot conclude our comments on the defence without referring to the classical summing up to the Jury by Diplock, J in Silkin v. Beaverbrook Newspapers Limited (1958) 2 ALL E.R 516.

His Lordship began his summing up with these words: 

"This is an important case, for we are here concerned with one of the fundamental freedoms – freedom of speech, the right to discuss and criticize the utterances and the actions of public men. Freedom of speech, like the other fundamental freedoms, is freedom under the law, and over the years the law has maintained a balance between the right of the individual, like the plaintiff, whether he is in a public life or not, to his un-sullied reputation if he deserves it. That is on the one hand. On the other hand, but equally important, is the right of the public, which means you and me, and the newspaper editor and the man who, but for the bus strike, would be on the Clapham omnibus, to express his views honestly and fearlessly on matters of public interest, even though that involves strong criticism of the conduct of public people. If I spend a little time in talking to you about the law in this matter, I hope you will excuse me, because it is an important matter, not merely to the parties in this case, but to all of us".

36.0 At page 518 the judge said: 

"People are entitled to hold and to express freely on matters of public interest strong views, views which some of you, or indeed all of you, may think are exaggerated, obstinate, or prejudiced, provided – and this is the important thing – that they are views which they honestly hold. The basis of our public life is that the crank, the enthusiast, may say what he honestly thinks just as much as the reasonable man or woman who sits on a jury, and it would be a sad day for freedom of speech in this country if a jury were to apply the test of whether it agrees with the comment instead of applying the true test: was this an opinion, however exaggerated, obstinate or prejudiced, which was honestly held by the writer?". 

At page 10 FCA states:-

"44.0 It has to be remembered that public figures do not live in a cocoon, safely protected from the slings and arrows which the media may see fit at times to fire at them. This is part and parcel of a public figure's life and he or she must be prepared to accept it or choose another occupation. We therefore reject Mr. Justice Singh's finding that this article was also defamatory of the Plaintiff". (Emphasis added)

[75]	Having considered the dicta of the aforesaid cases I am of the view that the defendant's statements cannot be justified as fair comment. The defendant's evidence was that the only criteria that they considered in granting the discounts were the pending cases and the amounts outstanding. Admittedly, he requested the plaintiff to leave the meeting and not to participate. Not even at the subsequent inquiries the plaintiff was asked to explain about his ownership or other interests in the land. The plaintiff and his father live in the same house. It was the plaintiff who came to the Council and paid the money on 17 November 2003 when the discount was permitted. Even the subsequent letter sent to Dr Sahu Khan requesting to withdraw the pending action was addressed to the plaintiff. Two weeks prior to the fateful meeting on 28 September 2003, the defendant participated at a meeting when the Minister's third letter was tabled informing the council to rest the matter. Despite that and the objections taken by the plaintiff no sooner were the statements by Suresh Pratap made that the plaintiff was a liar and cheat, than he permitted Suresh Pratap to continue making utterances in the guise of public interest, very well knowing that the matter was inquired into more than once before. Then he went on to make the defamatory statements attempting to portray that there is new evidence to be considered. Not a word was said about the Minister's letters or about the previous investigations. A common listener no doubt would get the impression that the matter surfaced for the first time due to the investigations of a member. I have no doubt in my mind that the pungent statement is not a fair comment but an attempt to take another shot at the plaintiff. 

DEFENCE OF QUALIFIED PRIVILEGE

[76]	This is discussed in the Abbas Ali case (supra) in the FCA at page 8 where it states:

"The occasions of qualified privilege could broadly be classified into two. First is where the marker of the statement has a duty (whether legal, social or moral) to make the statement and the recipient has a corresponding interest to receive it. Second is where the maker of the statement is acting in pursuance of an interest of his and the recipient has such a corresponding interest or duty in relation to the statement. The facts of this case fall into the second category".

This proposition of law is reiterated by the learned Counsel for the Appellant in his submissions in referring to Halsbury's Laws of England (4th Edition). He elaborating this position has referred further to para 145 of the same text and has quoted thus:

"… what must alternatively be decided is the Defendant's honesty in publishing the words complained of. Where the defence is qualified privilege, the words complained of are assumed to be untrue and the burden is on the plaintiff to prove express malice and so rebut the privilege on which the defendant seeks to rely".

[77]	Lord Diplock in Horrocks v Lows (supra) said:

"the motive with which a person published defamatory matter can only be inferred from what he did or said or knew".

"what is required on the part of the defamer to entitle him to the protection of the privilege is positive belief in the truth of what he published or, as it is generally though tautologously termed, "honest belief" [page 27 of the record].

[78]	Mr Naidu argues that the defendant does not have to prove that the matters stated in the letter are in fact true in order to establish the defence of qualified privilege. He says that the statement is caught in the defence of privilege as: 

•	All are councilors.
•	Matter in issue concerned rates arrears discount and plaintiff was to benefit directly.
•	Matter of public interest where public have a legitimate interest.

[79]	During the oral submissions stage I asked the counsel whether the council has statutory immunity. I have not been referred to any legislation on the point. It appears that the defendant is therefore relying on common law principles on qualified privilege. The statements are not within the ambit of section 15 of the Defamation Act (Cap 34). I am not satisfied that the aforesaid criteria satisfies the defendant to rely on common law principles of qualified privilege. I therefore conclude that the defendant has not proved this defence either. 

DAMAGES 

[80]	In Lewis vs. Daily Telegraph Ltd 1964 A.C. Page 234, Lord Hodson says that it can even be defamatory to say someone is suspected of an offence and stated at page 275:- 

"It may be defamatory to say that someone is suspected of an offence. But it does not carry with it that that person has committed the offence, for this must surely offend against the ideas of justice which reasonable persons are supposed to entertain. If one repeats a rumor one adds one's own authority to it and implies that it is well founded, that is to say, that it is true" 

[81]	Mr Mishra submits that a further investigation had to be carried out as a result of the actions of the defendant. This occurred on 28 of July 2006 where the Plaintiff, the defendant and Cr. Balram were interviewed and the plaintiff was again cleared of any wrongdoing with a 10 to 2 vote by the Council, the defendant being one of the two voting against this. 

[82]	The plaintiff is claiming an award of $70,000.00 as damages. He submits that in a case where a person was called a coward and was awarded $50,000.00 by the Fiji Court of Appeal. He says the defamatory words uttered in this case is worse than been called a coward. 

[83]	Since the discount was offered by the Nadi Town Council, several investigations were carried out. There are several Council decisions and several Ministerial decisions. I have no doubt of the pain and suffering of the plaintiff at each juncture when the matter was discussed or investigated. The icing on the cake was when the defendant permitted another blow on the fateful day.

[84]	In the circumstances I conclude that the statements made by the defendant are defamatory and couched in malice and were made to mislead the public at the upcoming elections with an attempt to expose the plaintiff to hatred, contempt and ridicule. 

[85]	As far back as 1882, Cave J. held in Scott v Sampson (1882) 8 Q.B.D. at p 503, 'The law recognizes in every man a right to have the estimation in which he stands in the opinion of the others unaffected by false statements to his discredit'. 

[86]	The plaintiff is a councilor of the Nadi town and a professional by account. He is a person of high social standings in the society. The image of the politician and the perception among the constituents are essential tools for a politician. To be branded as a corrupt politician, abusing his office for his private gain would not auger well for a political life. There is also the direct implication of abuse of office and dishonesty and fraud in respect of public money of ratepayers. 

[87]	The plaintiff says he was seriously injured in his character, credit and reputation and has been brought into public scandal, odium and contempt. He says his reputation as a Teacher, Accountant and as a Hindu Temple Official and as a reliable and decent person was gravely affected and destroyed. The embarrassment had prompted him to migrate. No apology was made by the defendant. 

[88]	Mr Mishra submits that the newspaper publications at Exhibits P.12 and 13, further aggravated the defamation and he pain and suffering of the defendant. 

[89]	I have already concluded that the utterances and publications of the defendant were calculated to harm to the plaintiff's reputation. 

[90]	Halsbury's Laws of England Fourth Edition, Vol 12 – page 472 paragraph 1189 states:

"Aggravated damages in tort. In actions in tort, where the damages are at large, the court may take into account the defendant's motives, conduct and manner of committing the tort, and, where these have aggravated the plaintiff's damage by injuring his proper feelings of dignity and pride, aggravated damages may be awarded. The defendant may have acted with malevolence or spite or behaved in a high-handed malicious, insulting or aggressive manner. The court may consider the defendant's conduct up to the conclusion of the trial, including what he or his counsel may have said at the trial.

[91]	Mr Mishra submits that the defendant acted in a high handed and malevolent manner using his position and authority as mayor and submits that the damages ought to reflect this. In the Sakiusa Rabuka case $40,000.00 was granted by the High Court as damages for the Permanent Secretary of Justice in respect of an article which reported that Mr Rabuka's wife had been caught in a raid by New York Police at a house suspected by Police as a base for a migration racket. Mrs Rabuka was given an award of $38,000.00 and confirmed by the Court of Appeal. 

[92]	 In the case of Sushila Devi Prasad –v- Ram Khelawan & Ors Lautoka High Court Civil Action No. HBC 325 of 2003 which states as follows in paragraph 27 on page 9:-

"27)As such I find that the Plaintiff has proved on a balance of probability, that the 1st named 1st Defendant (Khelawan) has made a false utterance as set out in paragraph 4(g) of the statement of claim. The said utterance taken in the context of the Plaintiff being a school teacher, and having being uttered in the presence of those who knew her as a school teacher, is calculated to disparage the Plaintiff in her profession and calling as a School Teacher

[93]	It further states in paragraph 29 on page 10 as follows: 

"29)	Also by innuendo I find that the said utterance is meant and understood to mean; "That the Plaintiff was not a person suitable to hold a position as a civil servant and/or a school teacher and/or an assistant head teacher of a school" as pleaded in paragraph 7 (a) of the statement of claim." 

[94]	 Halsbury 4th Edition at page 42 Vol.28 where it is stated that the law presumes that a person is of good repute until it is proved otherwise.

[95]	Mr Mishra submits that after the basic necessities of life such as food and shelter one of the most important things to the human race is the ability to live with dignity and without ridicule and contempt. One of the worst types of defamation is being called dishonest and guilty of abuse of office or suspicion thereof. There is also the direct implication of abuse of office and dishonesty and fraud in respect of public money of ratepayers.

[96]	In the case of Mohammed Hassan –v- Fiji Times and Herald Limited Supreme Court Decision no. 304 of 1983 where Honourable Justice Kermode said in respect of a Prison Officer who had been alleged to have offered $1500.00 in a bribe to protect his name following the bashing of a prisoner.

"National Newspapers overseas have a very wide publication and this has some bearing on the high damages that juries overseas award. Those national dailies make profits out of circulating a sensational libel which juries consider justify very substantial awards. 

I have rejected the request for aggravated or punitive damages but consider that my award should reflect the serious nature of the libel and compensate the plaintiff for the mental torment and distress he must have suffered.
I award the plaintiff $5000.00 damages and costs"

[97]	 Mr Mishra says since the above 1983 decision, awards of damages have been increased considerably and the an award must reflect the extent of defamation and harm caused to the plaintiff and the mental torment and distress he has suffered. In this case the effects and humiliation was so much that the plaintiff has migrated. He also had to go through another investigation on the 28 July, 2006 which also cleared him.

[98]	In Air Fiji Ltd v Shandil, High Court of Fiji Civil Action No. 380 of 1999, the Court awarded general damages of $80,000 and special damages of $120,000 with respect to a media broadcast after there had been a fatal air crash.

[99]	Having considered the judicial thinking on the award of damages on the point, I award the plaintiff $70,000.00 as damages. 

COSTS

[100]	I summarily assess costs as $6000.00

[101]	Orders accordingly. 

……………………………………………………
D. Dias Wickramasinghe
Judge