IN THE HIGH COURT OF FIJI AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO.: HBC 56 of 2010

BETWEEN:

PAULINE CAMPBELL
Plaintiff

AND:

CHALLENGE ENGINEERING LIMITED
1st Defendant

AND:

SURESH PATEL
2nd Defendant

COUNSEL : Ms. L. Vaurasi and Ms. Nayacalevu for the Plaintiff
Ms. N. Khan and Ms. A. Ali for the Defendants 

Dates of Hearing : 21st, 22nd & 23rd September, 2015
Date of Judgment : 27th November, 2015

JUDGMENT

[1]	The plaintiff became the tenant of the premises bearing No. 06, Clerk Street, Suva under the 1st defendant. The purpose for which this building was taken on rent by the plaintiff was to run a hair dressing and beauty therapy saloon and a school in which the plaintiff was the director and also the principal. The agreed rent was $ 4500.00 per month (inclusive of VAT) and the plaintiff was also required to make a deposit of $ 4500.00. The plaintiff paid $ 9000.00 in February 2008 and went into occupation in the first week of March 2008. 

[2]	It is common ground that the plaintiff renovated the building to make it suitable for her business. According to the plaintiff she had spent $ 6182.12 for the renovations. 

[3]	The relationship between the landlord and the tenant became somewhat hostile when the plaintiff failed to pay the rent as agreed. The plaintiff has, in her evidence, stated that she paid rent regularly until November 2009. It is the evidence of the plaintiff that she informed the financial controller of the 1st defendant company that there would be a delay in payment of rent in December and January. The reason for this delay according to the plaintiff was due to the policy changes of the Fiji National Provident Fund [FNPF] which stopped providing funds for some educational institutions including schools of hair and beauty. The plaintiff in cross-examination admitted that she did not pay the rent for the months of November 2009, December 2009, January 2010 and February 2010.

[4]	By e-mail dated 29th December 2009 on behalf of the 1st defendant, the 2nd defendant informed the plaintiff that the tenancy would be terminated with effect from 31st January 2010 and required her to pay $ 9000.00 as the rent in arrears for the months of November and December 2009. The plaintiff on 04th January 2010 wrote to the 2nd defendant and Sunil, one of the employees of the 1st defendant, that the arrears of rent would be paid and also that it would be difficult to relocate the school within a month. [D2]. 

[5]	The 1st defendant on 18th January 2010 informed the plaintiff that she should settle the total arrears of rent for November/December 2009 and January 2010 and also that, they would like to have the vacant possession of the property as advised earlier. [P11].

[6]	Since the plaintiff failed to pay the arrears of rent the 1st defendant decided to levy distress for rent under Distress for Rent Act (Cap 36). 

[7]	When, Amy Chand, the Property Manager of the 1st defendant company went to the premises the plaintiff had not been there. The witness for the plaintiff who was there at that time testified that Amy Chand wanted her to vacate the premises but she refused. When the plaintiff came the gates were locked but she was allowed to enter the premises. The plaintiff thereafter moved the business to another location which cost her $ 25,000.00. 

[8]	It is not in dispute that the plaintiff did certain repairs and improvements to the building. The plaintiff testified that when she moved in, there was no electricity and to have the electricity reconnected she paid a deposit and also $ 372 in settlement of outstanding bills. It is also an admitted fact that the premises in dispute and the adjoining premises occupied by the United Nations Development Programme (UNDP) had one electricity meter which was later separated at the request of the plaintiff. It is her evidence that until May 2010 she had been paying electricity bills of both these premises. 

[9]	The other complaint of the plaintiff is that the electrical and the water systems were not working properly in that there were power disruptions and water leaks. Although the plaintiff informed the defendants they did not take any action to correct it. The position of the defendants is that the power disruption was due to the plaintiff using various electric appliances which needed more power but she had obtained a power supply for domestic use. This position has not been denied by the plaintiff. When she got the power supply reconnected she should have informed the Fiji Electricity Authority about her requirements. The plaintiff has also fixed additional showers and washbasins which were required for her business and school without replacing the supply line to suit these requirements. 

[10]	The question arises for determination from the above facts is whether the plaintiff is entitled to recover the expenses incurred by her for the renovations of the building, from the defendants. 

[11]	After having discussions with the 1st defendant to take the building in question on rent the plaintiff, on 08th January 2008 wrote a letter [P6] to the 2nd defendant agreeing to pay $ 4500.00 per month as rent. I reproduce below certain paragraphs of the said letter which is useful to understand the terms and conditions of the unwritten rent agreement between the parties. 

The purpose of the lease is for a Hair and Beauty school. There may be few minor works that needs to be done before I move in. I mentioned that for commercial usage, the floor carpet in inappropriate. I will appreciate the carpet downstairs be removed and stored away. 

I also spoke with you on my interest to purchase the same building. Can you please get back to me on the price and how soon this can be arranged?

I will liaise with you on any additional work I may need to install. There would be extra water units. I can assure you that we will only add professionally made units. I can assure you your building is in good hands as my standards of cleanliness and presentation is high.

[12]	From this letter it is clear that the plaintiff refurbished the building with the intention of purchasing it and also to suit her business. Since the defendants were expecting to dispose of the property in its existing condition it cannot be said that they expected to compensate the plaintiff for the expenses incurred by her to refurbish the premises. Even in the e-mail sent to the 2nd defendant on 04th January 2010 [D2], the plaintiff has not requested the 2nd defendant to pay her the costs of repairs. The e-mail "P12" was sent to the 2nd defendant after the plaintiff was asked to vacate the premises. In that e-mail too, the plaintiff has not demanded the costs of the repairs. She has only demanded the payments made by her to settle the electricity bill and damages for loss of business. 

[13]	From the evidence of the plaintiff and the correspondence exchanged between her and the 2nd defendant show that there was no agreement or understanding between them that the defendants were liable to pay the amount incurred by the plaintiff to refurbish the premises. Since there is no evidence, that there was such an understanding between the parties the plaintiff is not entitled to recover the costs of refurbishment. 

[14]	The defendants terminated the tenancy agreement on the ground that the plaintiff failed to pay the rent as agreed. The reason given by the plaintiff for her failure to pay rent is the decision of the Fiji National Provident Fund to stop providing funds for schools of hair and beauty. However, the defendants cannot be expected to wait for any length of time for the plaintiff to pay the rent. The defendants cannot suffer for the financial constraints of the plaintiff. There is no implied condition of the tenancy agreement that whenever the tenant is in a financially difficult position the defendant must grant unlimited extension of time to pay the rent. The plaintiff's own behavior shows that she did not take an interest in settling the arrears of rent in that knowing very well that she was in arrears of rent the plaintiff went to Australia without making arrangement to settle her dues. This is not the way a person who is really interested in keeping the tenanted premises for a long period of time would behave. 

[15]	It is submitted by the learned counsel for the plaintiff that the long term tenancy was conveniently shortened by the 2nd defendant when he found a buyer for the property.

[16]	To terminate a contract of tenancy for failure of the tenant to pay rent is a right the landlord has and for that the length of the period of tenancy is immaterial. For the plaintiff to complain against the termination of tenancy by the defendants her hands must be clean. Without paying the rent as agreed she does not have any legal or moral right to complain against the termination of the tenancy. The term of tenancy may be five years or five months; the responsibility of the plaintiff to pay rent regularly is the same in both cases. 

[17]	Therefore, if any damage has been caused to the plaintiff due to the termination of the tenancy including the relocation of the business, she must bear its consequences, it is more so because as agreed, when the 2nd defendant gave the plaintiff the first opportunity to purchase the property and went to the extent of inquiring whether she wanted to buy the part of the property with the building in which she was the tenant or the entire property with both buildings, the plaintiff did not even respond to the e-mail sent by the 2nd defendant. 

[18]	The learned counsel for the plaintiff submitted that levying of distress for rent by the defendants was contrary to the provisions of section 3(1) of the Distress for Rent Act (Cap 36) which provides as follows;

From and after the commencement of this Act no person, other than a landlord in person, shall act as a bailiff to levy any distress for rent unless he shall be authorised to act as a bailiff by a certificate in writing to that effect, and such certificate may be general or apply to a particular distress or distresses, and may be granted at any time in such manner as may be prescribed by rules made under the provisions of this Act.

[19]	According to section 2 of the said Act the landlord means lessor or sub-lessor of any premises, under any lease or agreement of tenancy, and includes any person claiming to be entitled in any capacity to receive rents due under any such lease agreement.

[20]	The learned counsel for the plaintiff submitted that for the following reasons the distress for rent levied by the defendants was illegal;

(I)	At the time the distress for rent was levied, the tenancy agreement had already been terminated and therefore the defendants were no longer the landlords of the plaintiff.
(II)	Mr. Ami Chand was not the landlord of the premises.
(III)	Mr. Ami Chand was not a registered bailiff at the time the distress for rent was levied.
(IV)	There had been no demand notice served on the plaintiff nor was the distress for rent notice served on her.
(V)	The reasons for the late payment have been communicated to the defendants.
(VI)	The 1st defendant had informed that it would accept clearance of rental. 

[21]	It is a fact admitted by both parties that Ami Chand was not a registered bailiff at the time he levied the distress for rent. When Ami Chand went to the premises the plaintiff had not been there. The evidence of the witness who was present at the time is that Ami Chand came with a document [P14] and blocked the entrance to the premises without allowing her to remove anything from the premises and when the plaintiff came she was allowed in and later the plaintiff relocated the business at Home Finance Centre, Victoria Parade. The witness also said that at that time she had ten clients who left when Ami Chand and his people came. There is no other evidence that the defendants or Ami Chand on their behalf took any of the belongings of the plaintiff into their custody. Since there is no evidence that the alleged illegal levying of distress for rent caused any damage to the plaintiff its legality does not arise for consideration.

[22]	It is common ground that there was only one electricity meter for both the premises occupied by the plaintiff and the UNDP and also that the plaintiff was paying the electricity bills for both these premises for several months. It is also not a disputed fact that for the plaintiff to have the electricity line reconnected she had to pay the arrears of the previous occupier of the premises. The plaintiff tendered in evidence the electricity bills for the months of March 2008 to August 2008 marked as "P10". In my view a cause of action cannot be said to have accrued to the plaintiff to sue the defendants to recover the amounts paid in settlement of the electricity bills for the reason that it was not the defendants who were benefited by these payments and also that she took the building on rent as it was. There was no understanding between the parties that the 1st defendant had to settle all these arrears.

[23]	The main issue for determination in this matter is whether the 2nd defendant is liable in damages for defaming the plaintiff. The e-mail of 19th February 2010 [P15] sent to the plaintiff by the 2nd defendant which led to the institution of this action for defamation reads as follows;

You were to call in our office on 5th February 2010 and sort out all your rental arrears.
I have given you two more weeks since then to make arrangements but you have once again failed to do your part.
Now I have decided to forward all your correspondence together with your e-mail received on 8th February and a transcript of your two text massages to me of 3rd February 2010 to the following.
1)	FRICA
2)	FICAC
3)	Ministry of Education
4)	FNPF
5)	Rotary International
6)	TPAF
7)	Natasha Khan & Associates
8)	Divisional Commander Western
You will be hearing from my Solicitors in Due Course.

[24]	In the affidavit filed of support of writ of summons the defamatory words are not stated. However, in the written submissions filed on behalf of the plaintiff the learned counsel submits that following are the defamatory words;

(i).	The plaintiff is required to pay outstanding overdue rents for the months of November and December 2009 for a total sum of $9000.
(ii).	The plaintiff accepts clearance of all rentals by 15th February 2010 on the understanding that she will vacate the premises by 31st March 2010.
(iii).	Also by separate letter, the plaintiff is to confirm that all outstanding rentals will be paid on or before February 2010.
(iv).	The plaintiff had failed to give an undertaking and thus the defendants withdraw their offer and requested that all outstanding rent be paid by close of business today of the same day. 
(v).	AND FURTHER TAKE NOTICE that unless the said rent be paid together with expenses of this distress within 5 days from the date hereby they will be sold accordingly.
(vi).	The plaintiff was advised not to remove its properties from the premises until rental arrears have been sorted.
(vii).	The plaintiff is in breach of the agreement of the parties.
(viii).	The plaintiff was to call the office of the defendants on 5th of February 2010 and sort out all rental arrears. 

[25]	In order to sue a defendant in defamation, a claimant has to show three things. She has to show that:

(1)	The defendant published to a third party ……
(2)	…….a statement that referred to the claimant……
(3)	…….and that statement was defamatory of the claimant.

[26]	The third requirement is the most fundamental, and yet the most ill-defined. In future, the definition laid down by Tugendhat J in Thornton v Telegraph Media Group Ltd [2010] EWHC 1414 (QB) 530, 532 is likely to be accepted as providing the core definition of what is defamatory. On this definition, a statement will be defamatory if it 'substantially affects in an adverse manner the attitude of other people towards him, or has a tendency to do so'. Tugendhat J also observed that the word 'attitude' in this definition 'makes clear that it is the actions of right thinking persons that must be likely to be affected (so that they treat the claimant unfavourably, or less favourably than they would otherwise have done) not just their thoughts or opinions'. Putting these two statements together, we arrive at the following core definition of when a statement will be defamatory of a claimant:

A statement will be defamatory of a claimant if it substantially affects in an adverse manner the way the claimant is treated by right thinking persons, or has a tendency to do so. 

[27]	In this case there is no statement made by the 2nd defendant about the plaintiff. What has been circulated amongst certain state institutions, Rotary International and the solicitors are the certain correspondences between the plaintiff and the defendant with regard to the issues pertaining to the tenancy agreement between the plaintiff and the 1st defendant. There is absolutely no allegation that the 2nd defendant made any adverse remarks about the plaintiff to a third party. There had been no understanding between these two parties that these correspondences were to be confidential. It is thus clear that a part of the publication is what the plaintiff written to the 2nd defendant. All what is contained in these e-mails and other correspondences are facts and no comments on any of the parties except for the e-mail sent by the plaintiff to the 2nd defendant on 08th February 2010 [D5] with which I will deal later in this judgment.

[28]	It is the submission of the learned counsel for the plaintiff that the e-mail circulated by the 2nd defendant to the effect that the plaintiff had to pay $ 9000 as arrears of rent for the months of November and December 2009 is untrue for the reason that she had already made a deposit of $ 4500 which could have been set off against arrears of rent.

[29]	The deposit was not part of the payment of rent. There had been no such understanding between the parties. The evidence of the 2nd defendant is that the bond money was to set off against the arrears of utility bills and cost of damages if any, caused to the property. On the other hand in her evidence the plaintiff admitted that she did not pay the rent for November and December 2009.

[30]	Truth is a defence because 'the law will not permit a man to recover damages in respect of an injury to a character which he either does not, or ought not to possess'. The defendant must establish the truth of the precise charge that has been made, which is ultimately a matter of interpretation of the facts. 

[31]	What is contained in the notice of distress for rent cannot be considered as defamatory. The distress for rent is levied when the tenant or the lessee is in arrears of rent. In the instant case as I have stated earlier in this judgment there was no dispute that the plaintiff was in arrears of rent and she sought time to settle the dues. She has also given the reason for not paying the rent regularly. Therefore, anything stated in the e-mails sent by the 2nd defendant and in the notice of distress for rent, which are based on true facts, cannot be construed as defamatory.

[32]	The 2nd defendant counter sued the plaintiff for defamation. The defamatory words according to the 2nd defendant are contained in the email dated 08th February 2010 [D5].

[33]	Before considering whether the words contained in the e-mail marked 'D5' are defamatory it is important to see whether there is publication of this alleged defamatory material. 

[34]	In Pullman v. W. Hill & Co. Ltd. [1891] I QB 524,527 Lord Esher MR described the publication as: '[t]he making known of the defamatory matter after it has been written to some person other than the person of whom it is written.' 

[35]	If a statement is sent to the person of whom it is written, there is no publication of it, for one cannot publish a libel of a man to himself. Lord Esher's statement is equally true of spoken words. Communication to the claimant alone is thus insufficient to ground liability, because the law is concerned with the esteem that the third parties have of the claimant. 

[36]	In this case there is no evidence that this e-mail was sent to any other person other than to the 2nd defendant by the plaintiff. Since the 2nd defendant has failed to establish publication of the alleged defamatory statements made by the plaintiff the question whether they are in fact defamatory or not does not arise for consideration.

[37]	For the grounds set out above I make the following orders.

ORDERS.

1.	The writ of summons of the plaintiff is dismissed.
2.	The counter claim of the 2nd defendant is also dismissed.
3.	The plaintiff shall pay the defendants $ 3000.00 [$1500 each] as costs (summarily assessed) of this action. 

……………………………….
Lyone Seneviratne
JUDGE