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Manu v Haidas & Editor of the Tonga Chronicle [1990] TOLawRp 10; [1990] Tonga LR 7 (24 January 1990)

TONGA LAW REPORTS

[1990] Tonga LR 7

Manu

v

Haidas & Editor of the Tonga Chronicle

Supreme Court, Nuku'alofa
Webster J.
Civil case No. 57 / 1988
26, 27, 28 April; 10, 11, 12, 13, 14 July 1989; 24 January 1990,

Defamation — damages

Defamation — elements of liability

Tort — defamation — elements of liability

Damages — defamation

The plaintiff sued the defendants for an article published in the Tonga Chronicle by the second defendant based on statements made by the first defendant that he had misused Moslem funds.

HELD:

(1) The article in its ordinary meaning was defamatory in that it indicated that the plaintiff had dealt improperly with the funds of Moslems;
(2)The article also carried an innuendo to the same effect and was for the same reason defamatory;
(3) The defendants had not proved on a high balance of probabilities that the article was substantially true;
(4) The defendants could not rely on the defence of fair comment because there was was no correct basis of fact for the comment;
(5) It was no defence for the second defendant that he was merely repeating what had been told to him by the first defendant;
(6) In assessing damages regard must be had to the fact that the defamatory statement had been published throughout Tonga and there had been no apology or justification; and also to the fact that the plaintiff's evidence had been unsatisfactory and his reputation was low; so that an award of $150 was appropriate.

Judgment

In this case the Plaintiff Fisi'ihoi Manu sues as Defendants Abdulkadeer Haidas and the Editor of the Tonga Chronicle for defamation resulting from an article in the Chronicle on 29th April, 1988. Mr Manu claims that the words meant that he had fraudulently converted Muslim funds, which was untrue and had injured his credit, character and reputation, especially as a minister of the Muslim religion, and had also brought him into hatred, contempt and ridicule.

The First Defendant Mr Haidas says that the words and their meaning were true and therefore denies that there was any defamation. The Second Defendant the Editor of the Chronicle also claimed that the words were true in their literal meaning and denied the innuendo which the Plaintiff sought to place on the words. Accordingly he denied defamation and did not claim any privilege in the publication of the article. However he did appear to claim that the Chronicle was merely reporting what it had been told by Mr Haidas, though such a defence is not open to him for reasons which will be given later.

The article was published only in the Tongan edition of the Chronicle and an agreed translation is -

"SETTLEMENT ON MOSLEM MONEY
Two Moslems from Arabia and Malaysia will be in Tonga next month to check on more than $200,000 on which disputes are going on between the Tongan Moslems and the prior head the religion has in Tonga, Fisi'ihoi Manu. The Moslem Imann who is currently working here in Tonga said the total of the money is $200,000, is the sum of all the financial aids from different offices of the church overseas, given to Fisi'ihoi to help build the church here in Tonga.
Fisi'ihoi is an ex-Pentecostal Minister, but the first Tongan to accept the Moslem faith here in Tonga in 1983. He has already made a pilgrimage to Mecca, South Arabia, and his son is currently attending school on a Moslem scholarship in Libya.
But will anything happen to Fisi'ihoi's son?
"No" that is what the Moslem Imann said, whose name is also known as Haidas Kada. 'The children will not be punished for the parents' mistakes.
He said Fisi'ihoi's son is improving a lot in his education and is very well looked after. He has started writing and speaking in Arabic, and he will become a good Imann in the future.
But in the meantime, there are about 50 Tongan members of the Moslem faith, according to the Imann, apart from other 30 expatriates.
On their great annual mating in February, Magistrate and ex-Member of Parliament Vili 'Ahio Vaipulu of Malapo was selected President. Mohamed Kadil Nau is Assistant President, and Mohamed Al Fateh Lutui is Secretary and Luna Mafi is Assistant Secretary while Uate Uele is Financial Manager.
It was ordered in the annual meeting that a request be made to the Headquarters in Saudi Arabia to help build a centre for prayer in Tonga plus other materials for learning."

The Plaintiff Mr Manu gave evidence himself about the publication of the article and the defamatory passages in the first and sixth paragraphs about the various funds received by him from Moslem organisations overseas and how he had used the funds, and about Moslem matters generally. He led evidence from his son 'Onitili Manu about the alleged damage to his father's reputation and from Tevita Mahe who had known Mr Manu for many years but was not a Moslem and considered that the article contained imputations against Mr Manu. Finally Mr Manu led evidence from the Second Defendant himself of the publication and distribution of the Chronicle and that the article had not been printed in the English edition in case it caused trouble overseas in some way.

The First Defendant Mr Haidas gave evidence himself about the Moslem community in Tonga and the funds which had been sent to Mr Manu without apparent results. He also led evidence on these matters from Mr Vaipulu, Mr Nau, Mr Ariff and other members of the Moslem community in Tonga with varying amounts of knowledge about the matters before the Court; and some fairly inconclusive or irrelevant evidence from 'Opei Samate and Fatafehi Valu, both of the Bank of Tonga, about the Moslems bank accounts. The Second Defendant led evidence from Sione Tu'itahi the reporter of the Chronicle who had been asked by Mr Haidas to publish the information and had interviewed him about it.

A great deal of the evidence presented to the Court concerned the personalities and struggles for leadership within the Moslem movement in Tonga and the attendant political manoeuvring and did not bring much credit to any of those concerned. While these matters are all clearly of great moment to the Plaintiff and the First Defendant, they are not really relevant to the heart of this case, which can be resolved into a number of simple issues.

1. Are the words in the Chronicle defamatory? That is, in terms of section 2(1) of the Defamation Act (Cap. 140) do they damage the reputation of Mr Manu or expose him to hatred, contempt or ridicule or cause him to be shunned? The test of this is what meaning the words convey to the ordinary man or woman in Tonga with their knowledge of life, and whether the words would be likely to be understood by them in a defamatory sense (Halsbury's Laws (4th Ed) Vol. 28 para 43). In doing so a strained or unlikely construction must not be put on the words (para 45). On the evidence and on consideration of the words in the Chronicle it is very clear that Tongans understood the words in the article read as a whole to mean that Mr Manu had at the least dealt improperly with Moslem funds amounting to T$200,000 or that he had actually misappropriated them. While I did not accept all the evidence of 'Onitili Manu, who was a most truculent and evasive witness, I did believe what he said about his friends and even his wife taunting him, as a result of the article, that his father was a money thief. It is possible that on its own the first paragraph of the article might not carry this meaning, as it would be perfectly possible for a dispute on the spending of money to arise in good faith and without dishonesty, but when the first paragraph is read together with the sixth paragraph about the parents' mistakes, the imputation is undeniable.

2. In case I am wrong in this, and as it was pled by the Plaintiff, I have to consider whether additionally or alternatively there is an innuendo, that is a secondary defamatory meaning depending on special facts and circumstances extrinsic to the words or relating to a special meaning (para 46). Undoubtedly, for the same reasons as for the ordinary meaning, the words of the article also carry the defamatory innuendo of fraudulent conversion claimed by the Plaintiff. Relevant to this and emphasising it was the evidence of letters of 23rd January and 28th March 1988 from Moslem donors concerned about what had been done with the money they had sent from overseas (Exhibits 15 and 23).

3. Looking at section 15 (a) and (b) of the Act, the defamatory words clearly referred to the Plaintiff Mr Manu by name. They were communicated by the First defendant Mr Haidas to a person other than the Plaintiff, namely a reporter of the Second Defendant, who in turn published them in the Tongan edition of the Chronicle and so communicated them to other persons throughout Tonga.

4. If words are defamatory, in law it is presumed that they were published falsely and maliciously and it is for the Defendants to prove justification (i.e. that the words were true) (Vol. 28 para 16). The intention with which the words were written or spoken is irrelevant (para. 17), so it is irrelevant for Mr Haidas to claim, as he did, that he only meant the Chronicle to publish the prepared press statement signed by Mr Vaipulu as President of the Tonga Muslim League. (Exhibit 17) and that the defamatory information was only given to the reporter as background and not for publication.

5. The next and major question of this whole case is whether the words complained of are true: if so, it is a complete defence in terms of section 14 of the Act. Athough each expressed it differently, this is in essence the defence of each Defendant. What this means is that the Defendants have to prove affirmatively that the statement complained of are true or substantially true in substance and fact and that the defamatory inferences are true (Vol. 28 paras 21 and 81). The Defendants must only justify the meaning taken by the Plaintiff (ie in this case that the Plaintiff had fraudulently converted the money) (para 83), and substantial justification is sufficient even though it does not extend to everything (para 84). If a Defendant can prove that the main charge or gist of a libel is true, a slight inaccuracy in one or more of its details will not prevent him from succeeding in a defence of justification: Gatley on Libel and Slander (8th Ed) para 364). The standard of proof is the balance of probabilities, though depending on the seriousness of the charge (para 92), which in this case is serious so that there is a high degree of probability required: Hornal v Neuberger Products Ltd [1956] 3 All ER 970 (CA), 973.

The allegation in the Chronicle concerned an amount of T$200,000 but all the money was paid to Mr Manu in US$. Using an approximate conversion factor which appeared to be accepted by the parties of 1.5 US$ to 1 T$, this sum equals US$133,000, so first, the Defendants must prove on a high balance of probabilities., that this is the amount which was received by Mr Manu. The letter of 23rd January, 1988 from the Regional Islamic Da'wah Council of Southeast Asia and the Pacific at Kuala Lumpur (Exhibit 15) asks Mr Manu for details he has spent 3 sums -

US$50,000 in Feburary 1987 from World Islamic Call Society, Libya.
US$60,000 in April 1987 from World Islamic Call Society, Libya.
US$10,000 in July 1987 from Rabitah through Br Milhan.

which only amount to US$120,000. Mr Manu admitted receiving the $60,000 and $10,000 but consistently denied ever receiving the $50,000. There was no independent proof, even from the Bank witnesses, that Mr Manu had received this sum, so even on a balance of probabilities the defendants did not succeed in establishing that the $50,000 had been paid to Mr Manu.

So this raises the question of whether, even if there is proof relating to fraudulent conversion of the amount Mr Manu acknowledges receiving, ie US$70,000 or T$105,000, this could amount to proof of the substantial truth of the defamatory statements about T$200,000. I believe that if this allegation were proved to be true in relation to the T$105,000 (being around half of the sum referred to) that would meet the test of proof of the substantial (meaning considerable, sizeable, significant, important, large or ample) truth and would be a defence if proved.

Mr Manu's evidence was that the sum of US$60,000 or T$90,000 was used approximately as follows –

I accept Mr Manu's evidence, taken with his election advertisement in the Chronicle of 13th February 1987 (Exhibit 18) that this amount was paid out by him here with so much publicity that it would be most unlikely that Mr Manu did not pay it out - to keep it would have worked against his interest at the election. There was also some evidence from a defence witness of Mr Manu giving out such money: the same witness, a close friend of the First Defendant, also spoke of Mr Manu also giving a cheque for $200 on such an occasion which was not met, but there was no other independent evidence of this. It is important whether in being paid out it was used for the purposes of Mr Manu himself (and thus fraudulently converted) or used for Moslem purposes. Mr Haidas and Mr Vaipulu said in evidence that giving money in this way was not the Moslem way of giving and I accept this. But I also accept Mr Manu's evidence that in doing so he was giving money to further the Moslem cause though probably also to further his own prospects in the 1987 Parliamentary elections. He is much open to criticism for doing that and may even have been in breach of the election laws on bribery. But whatever else Mr Manu's use of the $30,000 may have been, it falls far short of being established by the Defendants as fraudulent conversion by him.

Again loans such as these seem odd and unusual by normal standards but I am satisfied from the evidence of Mr Manu and Mr Vaipulu himself that the loans were agreed by Moslem headquarters and cannot be fraudulent conversion by Mr Manu when the money went to Mr Teiapa'a Bloomfield and Mr Vaipulu.

This van is owned in the name of Mr Manu personally, whereas if it was for the Moslems, as Mr Haidas said, it should have been registered in the name of the Tonga Muslim League: There was conflicting evidence from Mr Manu on the one hand and Mr Haidas and Mr Vaipulu on the other whether the van was given and used solely by Mr Manu and his family or was used for Moslem purposes. This is an appropriate place to say that I also had considerable reservations on the evidence of Mr Haidas: he was very excitable in the witness box and also had difficulty keeping to relevant answers and it was impossible to tell when he was exaggerating. I accept that the van is used sometimes for Moslem purposes but apparently not very much. But it seems most likely that the Moslems would have wished it to be held in their name and Mr Manu offered no real explanation on this so I find that on the balance of probabilities it seems that this property was fraudulently convened by Mr Manu, but I cannot make a formal finding to this effect because no evidence of actual registration was produced.

There was no evidence of this payment beyond Mr Manu's oral evidence. While in general I treat Mr Manu's evidence with some reservations, as he seemed to have difficulty giving a straight answer to questions, no contrary evidence was presented. In the nature of such matters he would not get a receipt for such a payment. The burden of proof is on the Defendants to prove on a high balance of probabilities that there was fraudulent conversion of this sum and they have not established this.

Again there is no real evidence apart from that of Mr Manu himself. However I believe that the Moslem authorities did expect Mr Manu to use some money for himself in recompense for his own work in trying to spread the Moslem faith. It was very unwise of Mr Manu not to keep full records of what he did with the money so that he could produce them if challenged like this, but there is no evidence of excessive spending by Mr Manu and no sound evidence of the Defendants that Mr Manu had fraudulently converted this sum to satisfy the burden of proof on a high balance of probabilities.

Regarding the payment of US$10,000 or T$15,000, Mr Manu said that this was a personal payment to him by way of salary, while Mr Nau said that it was given to Mr Manu in public at a meeting and stated by the donor to be for use for Moslem purposes. There was therefore a clear conflict of evidence which was not readily resolvable and the only proper solution is for the Court to find once again that the Defendants have not produced sufficient proof to satisfy the burden on them of proving on a high balance of probabilities that Mr Manu fraudulently converted this sum.

Therefore the Defendants have not established on a high balance of probabilities that the T$105,000 was fraudulently converted, misappropriated or stolen by the Plaintiff Mr Manu; and any sum which the Court believes may have been fraudulently converted is an even smaller fraction of the total sum alleged of T$200,000. The result is that the defence put forward - that the defamatory words were true - has failed. As explained earlier, merely proving that there was a dispute about this sum, which was undoubtedly true, is not enough because of the meaning of money thief placed on the words in the Chronicle by ordinary Tongans.

6. Counsel for the Second Defendant also submitted that what was published was fair comment, but this cannot help her client. For a defence of fair comment to succeed a defendant must prove that the facts and inferences from both fact and comment are true, in this case in their innuendo meaning. Vol, 28 paras 83,131, and 144. As stated above that has clearly not been achieved.

7. As stated earlier, the Second Defendant attempted to show in evidence that what he published in the Chronicle was merely what he was told by the First Defendant, but it is very clear from the law of defamation that that is no defence. (Section 2(2) of the Act and Vol 28 paras 66, 67 and 69 ). A publisher has a duty to avoid defaming other people by checking the truth of material strictly before it is published.

8. Turning to the matter of damages, it is clear that the spoken words communicated by the First Defendant to the reporter of the Second Defendant accused the Plaintiff of having committed a felony (ie fraudulent conversion) so that section 16 (1) (a) of the Act applies to the First Defendant. Section 16(1) also applies to the Second Defendant as the defamatory matter is printed. It is therefore not necessary for the Plaintiff to prove that he has sustained any monetary or other actual loss by reason of the publication of the defamatory matter. When considering the damages to be awarded to the Plaintiff, the Court must consider general damages at large to compensate the Plaintiff and not to punish the Defendants (Morgan v Odhams Press [1971] 2 All ER 1156 (HL), 1171 and Vol. 28 para 18): the compensation is for injury to the Plaintiff's reputation by way of the social damage resulting and for hurt to his feelings. The purpose of damages is to vindicate the Plaintiff to the public and console him for the wrong done (para 235). In addition a failure by the Defendants to establish a defence of justification they have pled leads to aggravated damages (paras 82 and 241).

However a person should not recover damages for a reputation that is not his (para 247), ie. the character which he in fact bears in the public estimation. Plato Films v Speidel [1961] 1 All ER 876 (HL), 883. As the damage sustained must depend almost entirely on the estimation in which a Plaintiff was previously held, the court should know if he is a man of no reputation: Cave J unless Scott v Sampson [1882] ALL ER Rep 628 at 634E approved in Plato Films and cited in Gatley para 1414. So evidence was admitted to show what the Plaintiffs general reputation in the community was at the time of publication: Associated Newspapers v Dingle [1962] 2 All ER 737 (HL).

What then was the reputation of the Plaintiff before the publication of the defamatory words on 29th April 1988. The court cannot take into account any past criminal record of the Plaintiff unless relevant to this case (para. 248) although this was suggested in evidence. However it is relevant that the Plaintiff is no longer the unchallenged leader of the Moslems in Tonga. I am not going into the leadership dispute or deciding in this case who is the rightful leader of the Moslems in Tonga, but it is clear from the minute of the annual general meeting of the Tonga Muslim League on 20th February, 1988 (Exhibit 12) (ie. well before the defamation occurred) that Mr Manu no longer had the confidence and backing of a substantial number of Moslems in Tonga. It is also clear that while some of the Moslem organisations overseas still support Mr Manu (as shown by the excerpt from the Chronicle of 12th May, 1989 - Exhibit 19), others support Mr Vaipulu as the elected President (as in the letter from the Secretary-General of the Regional Islamic Da'wah Council of Southeast Asia and the Pacific dated 1st March, 1989 - Exhibit 20). Thus while Mr Manu remains a minister of the Moslem religion he is not unchallenged leader and so any damages awarded are bound to be less.

The First Defendant through Mr Vaipulu claimed that Mr Manu had no reputation which could be damaged by the defamation, and while this was an expression of opinion rather than a proved fact, I am not convinced that among the Tongan people Mr Manu had a high reputation to be injured. One of the reasons for this was that he was formerly minister of the United Pentecostal Church and not a Moslem by birth saying that he had been converted to the Moslem religion in 1983. Tongans are inclined to see such a change as being made for economic rather than spiritual reasons and I do not believe that it left Mr Manu with a high reputation or high professional standing in the community. It is also relevant that Mr Manu was an unsuccessful Parliamentary candidate in the 1987 elections. Going by the election advertisement which he put out in the Chonicle of 13th February, 1987 (Exhibit 18) I cannot think that Mr Manu had a high reputation in Tongatapu as people would see it as a thinly disguised attempt to persuade them by gifts or even bribes to vote for him. But there is no case where proof of a plaintiffs general bad reputation which could not be made worse was a complete answer to an action - he is always entitled to nominal damages; Hobbs v Tinling [1929] All ER Rep 33 (CA) and Gatley para 1414.

In assessing the damages, Gatley states (para 1451) that the Court has to consider the conduct of the Plaintiff (which was far from exemplary and left him open to challenge, as mentioned later); his position and standing (already covered); the nature of the libel (a serious allegation); the mode and extent of publication (throughout Tonga in the only weekly paper read by almost everyone ); the absence of any apology or retraction; and the whole conduct of the Defendants (and their counsel) from the time of the libel right through to the end of the trial (the first Defendant has continued to claim the truth of the libel without offering adequate proof of this). Further, in assessing damages the Court is entitled to take into account that the Plaintiff's claim, though proved, is unmeritorious and that only nominal damages should be awarded because the actual loss suffered by the Plaintiff is trifling.

Having heard all the evidence in this case, in my view the Plaintiff has only himself to blame if fellow Moslems were upset and started asking questions about the amounts paid to him for Moslem work. He appears to have kept neither books of account nor accurate records of how he paid out the money - he certainly did not produce any to the Court and this is always bound to give rise to suspicion. Although he claimed to have paid the monies into a bank account he produced no records to substantiate this. It was also questionable or at least unwise for him alone to operate this account. Also some of the ways in which he claims to have spent the money, while not amounting to criminal offences, appear somewhat questionable against Moslem principles. He has appropriated the van to his own ownership. Further Mr Manu does not appear to have given to the donors and other Moslem authorities overseas the reports they requested on how the money has been spent. Nor, from the evidence which the Court heard, does the money given appear to have produced concrete results to further the spreading of the Moslem faith in Tonga and there is certainly not any Moslem building in Tonga or even architects' plans for one. This lack of success or even progress must have detracted from the Plaintiff's reputation before the defamation in April, 1988.

The Plaintiff sued for damages of $100,000 but in light of what has been said above there can be no way in which the damage to his reputation amounts to this. The major factors are on the one hand the serious libel widespread through Tonga with no apology or proven justification; and on the other hand the Plaintiff's minimal reputation and unsatisfactory conduct. In light of these factors and all the relevant circumstances, even taking into account aggravated damages due to failure to prove the defence of truth, I shall therefore award $150 to the Plaintiff against both Defendants together, plus his costs as agreed or taxed.