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High Court of Fiji |
IN THE HIGH COURT OF FIJI
WESTERN DIVISION AT LAUTOKA
CIVIL JURISDICTION
Civil Action No.: HBC 253 of 2012
MOHAMMED SHAHEEM KHAIRATI formerly of Yalalevu, Ba,
Fiji, but presently residing at 88 Stirling Drive, Morrinsville, Waikato, 3300, New Zealand, Businessman.
PLAINTIFF
V
MOHAMMED FAREED KHAIRATI of 14582-85A Avenue Surrey
B.C. Postal Code: V3F5T6, Canada, Businessman.
1ST DEFENDANT
MOHAMMED HASSAN aka MAHMUD HASSAN of 13545-66!
Avenue, Surrey B.C., Postal Code: V3W2B6 Canada, Businessman.
2ND DEFENDANT
Before : Hon. Mr Justice R. S. S. Sapuvida
Counsel : Mr Vipul Mishra for Plaintiff
No appearance for Defendants
Date of Judgment : 13th October, 2016
JUDGMENT
BACKGROUND
[1] The Plaintiff being a businessman with interests in both New Zealand and Fiji
instituted the present action against the Defendants for defamation of his character.
[2] The action stems from two purchases he made, one of land and another of a
tractor for which the Plaintiff had financed and bought in the name of his father who was old and sickly which are the subject of the defamation.
[3] The Plaintiff had bought a farm tractor registration No. DR 158 from his personal
funds and through his own financial arrangements in New Zealand for his brother Mr Mohammed Naim Khairati. He sent it to his brother and he had it shipped over from New Zealand.
[4] Plaintiff alleges that both the Defendants falsely stated in 2010 to family
members that the Plaintiff and his father Mohammed Ibrahim had bought the abovementioned Tractor No. DR 158 and Certificate of Title No. 27500 from monies belonging to the ESTATE OF KHAIRATI and/or the Khairati and Sons Partnership.
[5] Further, the Plaintiff alleges that they also said that the Plaintiff had put the
Certificate of Title No. 27500 in the name of his wife and mother to avoid liability for any Court orders which might be made against him and/or to deprive the Defendants and others of their lawful entitlement in the Estate and/or partnership.
[6] The Plaintiff is the beneficiary of the Estate of Khairati and a partner of the
Khairati & Sons partnership. He has a certain reputation and status both in Fiji and New Zealand and with his family in Canada and USA.
[7] The assault on the Plaintiff’s character by the Defendants took place in Fiji after
both Defendants came here in 2010. The late Mr. Khairati was the Plaintiff’s paternal grandfather. His father Mr. Mohammed Ibrahim had been the Trustee of his Estate at one stage and he had been removed by the Court after litigation by his brother. Mr. Khairati had also formed a Khairati and Sons Partnership in which he, his wife and sons were all partners. This partnership had certain properties.
[8] The Plaintiff was humiliated and defamed by the Defendants saying that he and
his father bought the tractor and property in question through monies they unlawfully took and/or stole from the Estate of Khairati and/or the Khairati Partnership.
[9] Based on the forgoing background facts of misuse of the funds of Khairati
partnership and the Estate of Khairati partnership were made by the Defendants the Plaintiff instituted these proceedings against the Defendants by way of writ of summons dated 5th December, 2012.
THE TRIAL
[10] The statement of defense was filed by the Defendants on 15th April, 2013 followed
by the reply by the Plaintiff dated 14th May, 2013.
[11] The matter had then having been finalized the pre-trial steps, listed for trial before
former Judge Sanath Weerarathne on 4th and 5th August, 2014. Thereafter, the case had been allocated to Justice Mohammed Ajmeer.
[12] However, the Registry allocated the case to me, on 26th May, 2015. I issued
Notice to all the parties for the matter to be mentioned in Court on 5th June, 2015 before setting down the case for trial.
[13] Plaintiff’s Counsel was present. Neither the Defendants nor the Counsel or
Solicitor for Defendants was present in Court.
[14] The Plaintiff’s Counsel moved to file the list of documents. The application for the
same was allowed having been issued Notice again on the Defendants for filing of their list of documents and also the NOAH on them to be present in Court before setting down the case for trial.
[15] When the matter was then taken up for mention to fix for trial on 3rd July, 2015
both the Counsel requested a further mention date to settle an issue regarding
the agreed bundle of documents between parties.
[16] The next mention date was on 24th July, 2015 on which neither the Plaintiff nor the
Counsel was present in Court. The Counsel for the Defendants was present. Then the Court made orders to take the matter out of the cause list.
[17] The Plaintiff’s Solicitors filed a notice of motion dated 6th August, 2015 to take the
case back to the cause list with reasons to be considered for the same.
[18] The matter was called on 3rd September, 2015. Both the Counsel were present and
the Counsel for Defendants moved for further time to get instructions from the Defendants regarding the Plaintiff’s notice of
motion to take the case back to the trial roll. The Plaintiff did not object to this.
[19] The case was then called on 22nd September, 2015. The Defendants consented for
the application filed by the Plaintiff to take the matter back to the trial roll. The Court rescheduled the case back in the cause list.
[20] Both the parties then begged for another mention date to fix the case for trial.
[21] The case was called on 5th November, 2015 on which both the parties wanted and
agreed upon to fix the case for trial on 8th and 9th of June, 2016.
[22] The Counsel for Defendants in the meantime filed a summons for leave to
withdraw as Counsel for the Defendants. The matter then was called on 18th May, 2016 to hear the same. The application was heard and made orders in terms of the summons allowing the Counsel for the withdrawal.
[23] The Court then issued notice again on the Defendants in view of the said
withdrawal of their Counsel to inform them to get ready with the trial.
[24] The case was mentioned on 1st June, 2016. The Defendants were absent and no
Counsel appeared for them either. The Plaintiff’s Counsel then moved the case to be fixed for trial ex-parte.
[25] The trial was proceeded on 8th June, 2016 and concluded.
EVIDENCE
[26] There are 8 agreed facts in the pre-trial conference minutes which are reproduced as follows:
[27] The Plaintiff referred to Agreed Document No. 6 which is the Insurance Policy
for the Tractor No. DR 158 for the period 22/9/2003 to 22/09 /2004 which shows that Mr. Mohammed Naim Khairati was the owner.
[28] The Agreed Document No. 8 which shows that his brother Mr. Mohammed
Naim Khairati paid the customs in Fiji for a tractor on 21st September, 2000.
[29] Later this tractor was sold to Ms. Lusiana Nasiqa in 2012.
[30] The Plaintiff also from his own funds and resources purchased Certificate of Title
No. 27500 which is in Nailaga, Ba, Fiji for his father Mr. Mohammed Ibrahim.
[31] Mr. Mohammed Ibrahim was elderly and had a heart bypass and he lived in the
said house. This was in 2006. The Agreed Document No. 3 which is the Transfer dated 30th June, 2004 witnessed by lawyer Mr. Samuel Ram. As he was sick he expressed that he wanted to transfer his property to his wife Marunissa (the Plaintiff’s mother) and the Plaintiff’s wife, his daughter in law Rehana Ismail Khairati and mother in 2006. Both transfers were registered on the same day by Mishra Prakash & Associates.
[32] It was stated by the Defendants that the Plaintiff had put the Certificate of Title
No. 27500 in the name of his wife and mother to avoid liability for any orders which might be made against him and/or to deprive the Defendants and others of their lawful entitlement in the Estate and/or partnership.
[33] The Defendants filed a Statement of Defence. In that they say that the Tractor
No. DR158 was at all material times owned by the Khairati & Sons partnership. But no documentary proof has been shown by the Defendants to establish this fact. The Defendants have abandoned the trial. No evidence was brought to prove their averments in the defense.
PROOF
[34] It has been established by the Plaintiff that both the Defendants falsely stated and
circulated in 2010 among family members that the Plaintiff and his father Mohammed Ibrahim had bought the abovementioned Tractor No. DR 158 and Certificate of Title No. 27500 from monies belonging to the ESTATE OF KHAIRATI and/or the Khairati and Sons Partnership.
[35] The Defendants have also said that the Plaintiff had put the Certificate of Title
No. 27500 in the name of his wife and mother to avoid liability for any Court orders which might be made against him and/or to deprive the Defendants and others of their lawful entitlement in the Estate and/or partnership.
[36] The Plaintiff has filed an affidavit in chief and there are also the affidavits of his
mother Mrs Marunissa and brother Mr Mohammed Naim Khairati. The Defendant’s lawyer has withdrawn and in their affidavit of withdrawal their lawyer reveals they have not been instructing them despite numerous efforts on their part.
[37] It has been revealed in evidence with precision that the Plaintiff is a businessman
with interests in Fiji and New Zealand. He was close to his father the late Mr Mohammed Ibrahim. His father is now deceased and
he is the Trustee of his father’s Estate as well. The Plaintiff is the beneficiary of the Estate of Khairati and a partner
of the Khairati & Sons partnership. He has a certain reputation and status both in Fiji and New Zealand and with his family in
Canada and USA. The damaging on the Plaintiff’s character by the Defendants took place in Fiji after both the Defendants came
to Fiji in 2010. The late Mr Khairati was the Plaintiff’s paternal grandfather. His father Mr. Mohammed Ibrahim had been the
Trustee of his Estate at one stage and he had been removed by the Court after litigation by his brother. Mr. Khairati had also formed
a Khairati and Sons Partnership in which he, his wife and sons were all partners. This partnership had certain properties. The Plaintiff
was humiliated and defamed by the Defendants saying that he and his father bought the tractor and property in question through monies
they unlawfully took and/or stole from the Estate of Khairati and/or the Khairati Partnership. The evidence came to light from the
affidavit evidence proving that these allegations of misuse of the funds of Khairati partnership and the Estate of Khairati partnership
were made by the Defendants.
[38] The Defendants in their defense in paragraph 2 state revealing a fact that the
tractor No. DR 158 was the property of Khairati & Sons partnership. However, there is evidence to establish the fact that this tractor was sourced and bought by the Plaintiff in New Zealand. The agreed documents clearly show this. As the allegation made by the Defendants that the Khairati & Sons Partnership is the owner of the tractor, the Defendants needed to show proof of that and that it was transferred away from the partnership by the Plaintiff. The Defendants have not proved the former. In the absence of a justification of such an allegation by the Defendants, it becomes a false statement and the same is badly defamatory of the Plaintiff. It is not just once this allegation was made by the Defendants, yet it seems to be quite deliberate and designed by both the Defendants.
[39] It is important to observe that in fact the Defendants were only rousing up
trouble and trying to cause damage to the Plaintiff’s reputation.
[40] In Lewis vs. Daily Telegraph Ltd 1964 A.C. Page 234 (Lord Hodson) saying that it can 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 idea 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.”
[41] There is no proof by the Defendants or from the evidence before this Court to say
that the Plaintiff bought this property from money from the Estate of Khairati or the Khairati & Sons Partnership. Hence, what reveals from the evidence is that the Defendants have simply said the Plaintiff is dishonest and has fraudulently and wrongly used monies which don’t belong to him and averred distinctly that he has misappropriated monies. The two statements made by the Defendants relating to both the tractor and the house and Certificate of Title No. 27500 contain obvious falsehoods and fictitious which badly cause harm to the Plaintiff’s reputation.
[42] In paragraph 2 of the statement of defense it is alleged that the Tractor was the
property of the Khairati partnership. It has been shown by the Agreed Documents that it is not. However, if the Defendants seek
the privilege of justification, then it needs a strict requirement of justification of the statements before the justification is
pleaded in the case.
[43] Order 18 Rule 8 footnote 18/8/14 of Supreme Court Practice 1985 which states:-
“Libel and slander – Defendant must plead justification or privilege specifically; he must not merely traverse the words “falsely and maliciously” in the statement of claim (Belt v. Lawes (1884) 51 L.J.Q.B. 359; Penrhyn v. Lincenced Victuallers’ Mirror(1891) 7 T.L.R 1)....
The Defendant must always make it quite clear how much of the alleged libel he justifies; if his plea leaves this in doubt, it will be struck out as embarrassing (Fleming v. Dollar [1889] UKLawRpKQB 109; (1889) 23 Q.B.D. 388; and see Zierenberg v. Labouchere [1893] UKLawRpKQB 102; [1893] 2 Q.B. 183.”
[44] In Halsbury’s Laws of England Fourth Edition Volume 28 paragraph 186 states
as follows:-
“186. Particulars of justification.
Where a Defendant raises an imputation of misconduct against the Plaintiff, the Plaintiff ought to be enabled to go to trial with knowledge of the acts which is alleged to have committed and on which the Defendant intends to rely as justifying the imputation. A Plaintiff cannot be expected to come to trial prepared to justify his whole life.
A Defendant who pleads justification to a general charge must give full particulars of the facts he relies on as showing that the defamatory statements is true, to prevent the Plaintiff from being taken by surprise.”
The Defendants have not provided any evidence of justification whether by their list of documents or otherwise. We ask that the defence be struck out.
[45] In Halsbury 4th Edition page 42 Vol. 28 where it is stated that the law presumes
that a person is of good repute until it is proved otherwise:
“81. Truth as a defence...
Since the law presumes that every man is of good repute until the contrary is proved, it is for the Defendant to plead and prove affirmatively that the defamatory words are true or substantially true.”
[46] In the case of Sushila Devi Prasad –v- Ram Khelawan &Others Lautoka (1
March 2011) High Court Civil Action No. HBC 325 of 2003 states as follows in paragraphs 27 & 29 on page 9 and 10 respectively:-
“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.”
“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.”
[47] The Plaintiff’s grievance in the instance is that he has been seriously injured in
his character, credit and reputation and has been brought into public scandal, odium and contempt. His reputation as a reliable and decent person has been gravely affected and/or destroyed. No apology was made by either Defendant, and yet they maintained the same statements even in their statement of defense they filed in this case.
[48] It was held in the case of Sakiusa Rabuka and Volau Rabuka v Fiji Daily Post
Company Limited & Ors, Suva High Court Action No. 511 of 2000, Judgment dated 8th July, 2005, page8:
“A defamatory statement has been defined as one that is of a kind likely to lead ordinary decent folk to think less of the person about whom it is made. A statement is sufficient if he or she is dishonoured. “Whether statements which have a clearly disparaging meaning are to be found defamatory depends very much on the context in which they are made, and the audience to whom they are made.” (Law of Torts by Balkin & Davis at 558).”
[49] Therefore, the Plaintiff in the instance has established by his evidence that the
utterances of the Defendants are clearly defamatory and that the thrust and effect of utterances was calculated to do harm to the Plaintiff’s reputation.
[50] In Sakiusa Rabuka [supra] case $40,000.00 was granted by the High Court as
damages for the Permanent Secretary for 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. These awards have recently confirmed by the Fiji Court of Appeal.
[51] Before me, the Plaintiff has placed clear evidence with no refutation by the
Defendants and has established his case against the Defendants. Therefore, I accept the evidence of the Plaintiff against which the Court can find no reason to disbelieve the averments in the statement of claim of the Plaintiff which clearly proves the harm caused to the Plaintiff by the Defendants.
INJUNCTION
[52] The Plaintiff in his statement of claim in addition to the damages claimed against
the Defendants, also seeking an injunction restraining the Defendants from repeating such utterances in future.
[53] This is somewhat a strange application by the Plaintiff. The court cannot
predetermine and say the type of statements that can be made or cannot be made by the Defendants in future and what will be made by
the Defendants to be in the form of defamatory towards the Plaintiff and so on as is totally up to the Defendants to decide on their
own will. The court cannot dictate terms and direct any person to refrain from making statements. It is solely up to the Plaintiff
to decide whether or not the statements made by any party have become defamatory or libel to the Plaintiff. Then the Plaintiff would
have a cause of action on that statement against the person who made it. Simply the court cannot decide what would be the defamatory
statements towards the Plaintiff or any other party as the case may be to make orders by way of an injunction in terms of the Plaintiff’s
prayer in the statement of claim to enjoin the Defendant or any other person. The Defendants making statements is absolutely out
of the control of the Court. It is also clearly out of the jurisdiction of this Court to interfere with someone’s liberty to
speak or make certain statements. The certain statements made by somebody are defamatory to another or not should be adjudicated
only after the statements are uttered. Therefore, this Court cannot restrain the Defendants from repeating any such statement in
future. The restraining orders are to be made against specific and identified harm or occurrence to prevent an expected ongoing act
or acts of a person that will be an irreparable damage to the other.
[54] Therefore, the Court cannot grant an order of injunction restraining the
Defendants from making statements in terms of prayer (d) in the Plaintiff’s statement of claim. If there will be such, then the Plaintiff will have a separate cause of action to be dealt with in a separate action.
THE DAMAGE CLAIMED
[55] The Plaintiff pleads that the basic necessities of life such as food and shelter, one
of the most important things to human beings is the ability to live with dignity and without ridicule and contempt. The Plaintiff further submits that one of the worst types of defamation to a person is being called dishonest and a thief. I admit it without hesitation.
[56] The amount of damage claimed by the Plaintiff in this case against the Defendants
is an award of $20000.00 (twenty thousand dollars).
[57] The Plaintiff is also claiming costs in the sum of $5000.00 (five thousand dollars)
taking into account the fact that Plaintiff had to make visits to Fiji for this litigation all the way from New Zealand.
THE AWARD
[58] The Plaintiff has clearly proved his case against the Defendants. The fact that the
Plaintiff was not a person of dishonest or not a thief (during the time of the cause of action) is general fact. The Defendants must prove in rebuttal of this if the Defendants want to avoid damages. In the absence, the Plaintiff is entitled for the damage claimed against the Defendants. I have no reason to reduce the amount pleaded by the Plaintiff.
[59] The costs claimed by the Plaintiff are also justified with reasons that can be
accepted by the Court.
[60] The Defendants are jointly and severally liable to pay the damages and costs to
the Plaintiff.
FINAL ORDERS
[61] The Court makes the following orders:
R. S. S. Sapuvida
[JUDGE]
High Court of Fiji
On the 13th day of October, 2016
At Lautoka
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