In The High Court of Tuvalu
At Funafuti

Civil Jurisdiction

HC. Civil case no. 3/11

Between:

Hon. Lotoala Metia
Plaintiff

V

And:

Hon. Taukelina Finikaso,
Hon. Enele Sopoaga,
Hon. Matia Toafa,
Hon. Fauoa Maani,
Hon. Monise Laafai,
Hon. Vete P Sakaio and
Hon. Namoliki Neemia.
Defendants

BEFORE THE HIGH COURT

L Malifa for plaintiff
T Finikaso in person and for all defendants

Hearing: 12 January 2012
Judgment: 21 January 2012

Judgment

[1] The plaintiff and the defendants are all currently Members of Parliament. The plaintiff brings this action for defamation in respect of certain comments in, and innuendos arising from, two letters written on 25 and 26 September 2010. They were written in the short period following a general election when the elected members were trying to gather the numbers needed to form a government.

[2] The evidence before this Court suggests that those letters were a ripple which produced a wave of bitterness and invective which clearly still manifests itself in the documents and oral evidence in this case. It has also resulted in other court actions between some or all of the same parties in each of which their antipathy is still as apparent.

[3] At the time the September letters were written, the Members of Parliament were divided into two groups each of which hoped to form the next government. The plaintiff, Lotoala Metia was one of a group who went to Funifala for their discussions. The defendants made up the other group. Eventually the defendants' group was able to form a Government under the Prime Ministership of the third defendant, Maatia Toafa. However, that Government fell on 21 December 2010 following a vote of no confidence and a new Government was formed from the erstwhile opposition members under the present Prime Minister.

[4] These proceedings were commenced in February 2011 and initially were brought by two plaintiffs, Apisai Ielemia and Lotoala Metia. Both had been Ministers in the Government prior to the general election: the former as Prime Minister and the present plaintiff as Minister of Finance. The National Bank of Tuvalu was also joined initially as a second defendant.

[5] The case was listed in the March 2011 sitting of this Court. The pleadings were unsatisfactory and incomplete and the Court directed the plaintiff to file an amended statement of claim. That was filed and was followed by statements of defence by the first and the second defendants. However, shortly before the present sitting of the Court, Apisai Ielemia, gave notice of discontinuance of his whole claim. Shortly afterwards the present plaintiff gave notice of his discontinuance against the National Bank only.

[6] The amended claim remedies the defects in the original pleading but is now unnecessarily long, running to 13 pages of typescript, and seeks to add reference to placards on the walls of the Talimalie Falekaupule hung there, it is claimed, by the defendants and/or their supporters and bearing comments specifically defaming the plaintiff. Those later incidents form no part of the claim for defamation but they may be relevant should it become necessary to consider damages. 

[7] The late withdrawal by Apisai Ielemia after the amended claim had been filed means that many parts of the claim which referred to him only are now no longer relevant. There was not time to delete those passages but it has raised no difficulty to proceed with the trial and simply to ignore them.

[8] I do not set out the pleadings. In summary, the claim is that both letters convey "in their natural, literal and ordinary meaning" inflammatory statements against the plaintiff in respect of his name, character and reputation as a Member of Parliament. The alleged defamatory passages are set out in the amended claim. I shall indicate them when I set out the text of the letters.

[9] One of the difficulties, in any case where the proceedings are in English and the challenged document is in Tuvaluan, is to obtain an English translation which accurately expresses the meaning and flavour of the original. Some of the defendants' affidavits acknowledge that the plaintiff's English translation fairly represents the meaning of the Tuvaluan passages, but concern about that was raised by the defence at the hearing. Both counsel agreed to request the Court Registrar to prepare a translation they would both accept and that has been done. The amended claim, of course, still contains the earlier translation and I shall replace that translation with the new where necessary.

[10] The defence contained little more than a bald denial of everything in the amended statement of claim. It may have been a reaction to the prolixity of the claim but it gave no assistance to the Court or the plaintiff as to the defence being advanced. Furthermore affidavits filed by the defendants made it clear that the denials wrongly included many undisputed facts.

[11] Pleadings in defamation actions require very careful and precise drafting. It was clear the parties are anxious to have the matter heard but no application was made for particulars. I gave a short adjournment to allow the defendants to give notice of the defence upon which they were relying. It stated:

1.	Both of the letters written on 25 and 26 September 2011 are fair comments made on a matter of public interest without malice 

2.	Both letters as mentioned above, were made in good faith and a reasonable belief that they were true statements.

3.	The words complained of in both letters do not convey the defamatory meaning as pleaded by the plaintiff.

[12] In answer to the Court's enquiry, counsel for the defendants confirmed that the second paragraph was not intended to indicate a defence of justification. 

[13] Normally where fair comment is pleaded by the defence, it is necessary to state the facts upon which the comment is based and the reason why the comment is fair. No request was made for any further details. Once again, it appears this arose from the parties' anxiety to avoid further delay. Most of the evidence had already been supplied by affidavit and adequately reveals the basis of the defence.

[14] Authorities from England and many other common law jurisdictions explain and differentiate the roles of judge and jury in defamation actions. However, where trial is by judge alone as in the present case, the judge inevitably must decide all matters. However, it is necessary for the decisions to be made in the same order as would occur if the case was being heard before a jury.

[15] Defamation is the publication of a statement defaming the plaintiff. In general terms, if the statement is defamatory, the tort is made out on proof of publication by the defendant. In the present case there is no dispute that the letters were published by the defendants so the issue for the Court is the meaning and effect of the statements contained in them. If they are defamatory, the Court must then consider any defence raised..

[16] The judge must first decide whether the published statements are capable of being defamatory in their natural meaning as is claimed here and, if so, whether they do defame the plaintiff. Once that is proved, the court must decide whether the article was published as alleged. As stated, that is not disputed in the present case. The burden of proving all those matters lies on the plaintiff.

[17] Only if those issues are proved does the court need to consider any defence pleaded. Where, as here, the defence is one of fair comment, the burden is on the defendant to prove that the subject matter is one of public interest and that the words to which the plaintiff objects are fair comment on facts truly stated. 

[18] It is helpful to set out the full text of both letters.

[19] The letter of 25 September 2010 was addressed to three members of Parliament who, it is not disputed, were on Funafala at the time with the group which included the plaintiff.

"Dear Honourable Members,

[1] We, as signed below are very much obliged to convey this letter to you, honourable members to ask for your time if there is a possibility for us to get together or meet together to discuss forming up of a Government for our country, Tuvalu. This new government that will be able to look into building a better government for our country.

[2] This letter again serves you as a means of communication to you as there is no opportunity for us to get in touch with you so we can share with you the ideas that we have with us.

[3] In addition, we, from our side would like you to join us getting together to share ideas. We do believe that some of your honourable members are faced with difficulties that we think that they might be faced with sadness.

[4] We have now with us evidences that the Hon. Apisai Ielemia and Honourable Lotoala Metia have received money from overseas company which it is illegal and unlawful.

[5] This is not a good situation which we do believe that whole people in Tuvalu will not be happy that their leaders are doing such illegal and unlawful practice.

[6] Therefore, we humbly ask your honourables to seriously look into this matter with the hope that you will join us in sharing ideas that will make Tuvalu a better nation without having any doubts on our ideas.

We thank you once again and hope that you will consider our request."

[The paragraphs in the original letter were not numbered. I have added numbers for convenience of reference.]

[20] The letter was signed by all seven defendants and copied to the Leader ('Toeaina') on each island except Funafuti.

 [21] Apisai Ielemia and Lotoala Metia are from Vaitupu and Nukufetau respectively and the letter written on 26 September 2010 was addressed, by name, to the high chiefs of those two islands:

"Greetings Respective Chiefs,

1. First of all, we must give our praise and thanksgiving to our Lord God Almighty for having to look after us in our health and keeping us in prosperity. We are in perfect health and hope that the same goes to you, respective chiefs.

2. We, as signed below serve you this letter with our humble request that your respective islands join us in building Tuvalu a better nation. We do know that one important role of a leader in Tuvalu, is a leader who cares, honest and abide with the rules of our nation.

3. We do know that there is an investigation by the Police in the cases of Hon Apisai Ielemia and Hon Lotoala Metia receiving money from an oversea company in an illegal and unlawful manner whilst holding their portfolios as Prime Minister and Minister of Finance.

4. Because this is an important time for MPs to form up the government, there are rumours that the police are investigating the cases of these two MPs, we humbly request your respectives to look into this matter and to raise this issue in your respect islands and to make a decision in making the MPs from your islands to step down from their positions while the investigation is being carried out.

5. We do hope that your MPs step down or they will get to an embarrassing situation and also not to hold on to their being MPs from your islands as they are still being investigated.

6. We know that Tuvalu has heard rumours about these leaders who are not honest and do unlawful act which might lead to imprisonment.

7. Therefore, we are asking you again to seriously look into this matter and to ask your MPs to step down and for the police to do their investigation as this is a sad situation.

8. This is something that we can all see that these leaders are especially elected by their respective islands and yet not doing good governance but are doing it for their own benefit.

9. We do hope that your respective islands will make a decision in removing your MPs so that the investigation is being carried out on their cases.

10. May God be with us and God bless your islands."

[22] The letter is signed by each of the seven defendants and is copied by name to the island chief of each island apart from those of the addressees, Vaitupu and Nukufetau. It is not disputed that neither letter was sent to the plaintiff or to Apisai Ielemia.

[23] In respect of the letter of 25 September 2010, the claim relates to paragraphs [3], [4] and [5] and asserts:

"These words, statements and allegations, in so far as they expressly mention the plaintiffs by name, but without making the same available to them, are not true, and are false. They are therefore lies and were made fraudulently. In writing and making these statements and allegations, the defendants were actuated by malice. It follows their intent is malicious, and was made with the express motive to defame the plaintiffs especially that this letter and its statements were not made known to and or available to them.

In their natural and ordinary meaning, these statements and allegations show and are intended to show that each and or the plaintiff's jointly, illegally and or unlawfully received and/or obtained monies from overseas companies, which obtaining and or receipt of money is not an act or a decision good leaders to form the new Government to lead the country should do. While the letter mentions that the defendants have "received evidence" in support of their allegations and accusations that the plaintiff unlawfully received and or obtained moneys from overseas companies, such evidence are not produced and/or made available or made known. It follows these are malicious allegations that were/are made for the dominant purpose and intent to defame, smear and vilify the plaintiffs personally and or jointly in and of their good names, characters and or reputations."

[24] The plaintiff objects, in the letter of 26 September 2010, to paragraphs 3 to 9. The claim, as with the previous letter, is that it is false, untrue and actuated by malice. The plaintiff avers:

"In their natural and ordinary meaning, this letter, particularly the paragraphs pleaded above, expressly alleges that each and or the plaintiffs jointly must not be appointed as leaders to form any new government, and therefore that the addressees should join their -- the first defendant's party or team and work together with them -- "in developing the country". Moreover, the addressees must instruct and make sure that the plaintiffs must step down as their elected members in parliament, as they, the plaintiffs are not good people; they are not good leaders, and they are being investigated by the police. Also, all of Tuvalu knows about the plaintiffs unlawful and illegal acts, which therefore shows they, the plaintiffs, had acted not in accordance with the laws of Tuvalu. And it may be that the plaintiffs may be sent to prison. Therefore, each and/or both of them must step down as the addressees representative in parliament."
 
[25] The statement of claim goes on to set out at length particulars of the defamation. It is not necessary to set them out. The plaintiff then claims:

"As a result of these letters, writings, publications, circulations etc, the plaintiffs -- together with their families (wives, children, relatives and supporters etc etc, considering Tuvalu is a small community) were subjected and continued to be subjected to ridicule, harassment, embarrassment and or persistent intimidation, threats and vilification. This is evident in the protest march on 12 January 2011, spearheaded, initiated an organised by the 1st and 2nd named defendants, with the ulterior purpose and intent of publicly humiliating and thereby defame the plaintiffs, by demanding that they step down and resigned as elected members of parliament."

[26] In a defence of fair comment the defendant must prove that the facts to which the comments are directed are true and that his comments on it are fair. In determining the merits of the defence, the court must consider the defendants' state of mind at the time the comments are made. The defence must prove that the objectionable passages are comments and are fair comment on a matter of public interest.

[27] The proof that the facts upon which the comments are founded are true, is subject to the qualification made by section 6 of the English Defamation Act 1952 which was introduced to modify the strictness of the old rule which required the defendant to prove the truth of every fact relied upon. The section provides that the defence will 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.

[28] It is important to distinguish statements of fact from comment. It is a comment to say that something a man has done is dishonourable or falls short of normal expectations of a person in his position but it is an allegation of fact to say that he did the act upon which the comment was made. If the statements challenged by the plaintiff include allegations of fact those facts must be proved to be true. The second paragraph of the defence filed at the beginning of the hearing pleads that the letters were made in good faith and a reasonable belief that they were true statements. That is insufficient as a defence of fair comment. His belief in their truth means nothing unless and until they are proved to be true.

[29] As has been stated, both sides presented their evidence principally by affidavits. The plaintiff and the second defendant were cross-examined and the defence called two additional witnesses. It is not necessary to repeat the details of the evidence but one matter must be noted. The defence evidence referred to rumours of illegal payments to the plaintiffs circulating prior to the challenged letters. It was also stated that the defendants' group had reported the allegations made in the rumours to the police and requested investigation.

[30] There is no challenge to the fact that there was and still is an investigation which has not been completed. The evidence was that it must have started at the time the defendants made their report. The two additional witnesses called by the defence were the Auditor General and the Commissioner of Police. Both confirmed they were conducting such investigations although the former told the Court his investigation started in November 2010 and was being conducted in conjunction with the Police Department whilst the latter said the investigation started on 19 October 2010 and only involved the police.

[31] The letter of 25 September 2010 was clearly written in order to invite the three addressees, both MPS from Nui and one from Nanumaga, to consider joining the defendant's group at least for discussions. (In fact the decision by the two MPs from Nui to join the defendants gave them the necessary majority to form a government and it was the subsequent withdrawal of their support which brought the new government down.)

[32] The content of the letter in paragraphs [3], [4] and [5] goes beyond the initial purpose of soliciting the support of the addressees. The suggestion in those paragraphs is perfectly clearly that the defendants have evidence that the plaintiffs are receiving money and that either the receipt or the money itself is illegal and unlawful. There is evidence that information was received (apparently from the erstwhile second defendant, the National Bank of Tuvalu) of payments into Ielemia's account of a few substantial sums from an overseas company. It is not clear whether this had been received by the defendants before or after the letters were written in September but, even if it was afterwards, the allegation in the letter is not just that the defendants had evidence of payment but of illegality and unlawfulness in respect of it. Those allegations are clearly linked in paragraphs [3] and [4] with Lotoala Metia and Apisai Ielemia. However, the defence has produced no evidence of payments to the former or of any illegality by him.

[33] There is no complete and final definition of a defamatory statement. It is variously stated to be one which is to a person's discredit, which tends to lower in the estimation of others or to expose him to hatred, contempt or ridicule or to injure him in his office, trade or profession. The standard is the opinion of right thinking people generally and I am quite satisfied that the words to which I have referred in the first letter are capable of being defamatory and do in fact defame this plaintiff.

[34] In the letter of 26 September 2010, it is clearly stated that there is an investigation by the police of the receipt of those monies by these two men. Paragraph 3 sets out the basis of the investigation and identifies the plaintiff. Thereafter, the letter suggests that the addressees, in their capacity as high chiefs of the respective plaintiffs' islands should look into the matter and make the MPs in question stand down during the investigation. The letter repeats rumours as to the conduct of these men and ends with a comment that the actions they are rumoured to have done might lead to imprisonment. Finally it is stated in paragraph 8 that "these leaders" are "not doing good governance but are doing it for their own benefit".

[35] The publication of a statement that a person in public life is being investigated is not defamatory in itself. Neither is it defamatory to suggest that, whilst any such investigation is continuing, that person should stand down from his office. However I am satisfied that the statement in paragraph 8 is defamatory. Read with the content of the letter as a whole and the specific mention of "these leaders" it is a clear reference to the two Ministers named earlier and defames them.

[36] The third ground of defence, that the words I have referred to do not convey the defamatory meaning alleged by the plaintiff, fails. 

[37] As I have stated previously there is no dispute that the statements were published by the defendants. I also note that, in each case, the publication was extended by copying the letters beyond the persons to whom they were addressed.

[38] It is therefore necessary to consider the defence of fair comment. As I have stated a defendant who relies on this offence must prove that the subject matter on which he comments is one of public interest and the words complained of are a fair comment based on facts which were true.

[39] There can be no doubt that the conduct of Members of Parliament and, particularly, of Ministers of the Government are matters of public interest. As such they are and always should be the subject of scrutiny and comment. In such cases the courts have always set the limits of such comments widely. 

[40] A century and half ago, Cockburn CJ recognised that the character and conduct of a person in public office or who takes part in public affairs may be the subject of fair comment in so far as it has reference to or tends to throw light on his fitness to occupy the office or perform the duties of it. He concluded with the frequently quoted warning:

"Those who fill public positions must not be too thin-skinned in reference to comments made upon them."Seymour v Butterworth [1862] 3F&F 372.

[41] In Canada, Brain J pointed out:

"One who undertakes to fill a public office offers himself to public attack and criticism; and it is now admitted and recognised that the public interest requires that a man's public conduct shall be open to the most searching criticism."Martin v Manitoba Free Press [1892] 8 Man R 50

[42] There can be no doubt that the conduct of a Government Minister should always be subject to scrutiny and comment. The public is entitled to know of any misconduct by a person in public office but it is equally important that any allegations of such conduct are true and accurate.

[43] The manner in which the defence had to be ascertained at the outset of the hearing was unfortunate. Where a defence of fair comment is claimed the defendant should give particulars of the facts on which he relies as the basis of his comments; order 21 rule 24. However, it is clear in this case that it is based on the fact that these men were being investigated for possible illegal or unlawful conduct. When the second defendant was pressed by Mr Malifa to explain what was the evidence, in respect of Lotoala Metia, referred to in paragraph 4 of the first letter, he was unable to identify anything relating to him.

[44] I accept the evidence that there was an investigation going on at that time into the conduct of this plaintiff and Mr Ielemia. It was clearly in its early stages and nowhere near making any findings of guilt. One would hope that most reasonable people would, in those circumstances, hold their comment until the investigation was complete or, at the very least, until they had given those men an opportunity to explain. The defendants were all too clearly unwilling to do either.

[45] I accept that negotiations to form a new government were at a critical stage. Political ambitions were at stake. Had the defendants limited their remarks to reporting the fact of the investigation and suggesting the wisdom of asking these men to stand down, there would be no defamation. However they went much further. They actually stated that these men had acted in that way. They stated it unequivocally in paragraphs 4 and 5 of the first letter. Having made those statements of fact the defence is required prove them. They have totally failed to do so.

[46] This case concerns the conduct of Lotoala Metia and the defence has been unable to produce evidence before this Court that he ever received money from an overseas company.

[47] As I have stated, I accept that when a man in a public position is under investigation for a very serious offence, it is a fair comment to suggest he should stand down from that position pending the enquiry. I have not found the first paragraphs in the letter of 26th are defamatory for that reason but I do add the comment that they tread very close to the line of suggesting the men are guilty of the matter being investigated. Paragraph 8 of the letter steps over that line. It is a clear statement of fact of which the defence has not produced a shred of evidence and the earlier paragraphs make it perfectly clear that Mr Metia is one of the people whom the defendants say are governing badly for their own benefit.

[48] In some circumstances a statement of fact when read in the context of the document as a whole may reasonably be considered actually to be a comment. I have considered that in respect of both these letters but I am driven to the conclusion that, apart from the fact of the investigation, the surrounding passages all arise from unproved allegations of fact.

[49] The defence of fair comment, as the name suggests, applies only to comment. If, instead, it is a statement of fact it must be true to make comment upon it permissible. As was stated in an early case on fair comment:

"There is no doubt that the public acts of a public man may be lawfully made the subject of fair comment or criticism …. But the distinction cannot be too clearly borne in mind between comment or criticism and allegations of fact, such as that disgraceful acts have being committed. … It is one thing to comment upon or criticise, even with severity, the acknowledged or proved acts of a public man, and quite another to assert that he is being guilty of particular acts of misconduct." Davis v Shepstone[1886] 11App Cas 187.

[50] I am satisfied that the statements in the paragraphs to which I have referred in both letters are statements of fact. In a case before a jury, the judge would direct the jury to decide whether, using the test of the reasonable man, they find such a statement is one of fact or comment. I, too, use that standard in reaching the conclusion they are statements of fact unsupported by any evidence.

[51] In those circumstances the defence must fail. I find that the statements in paragraphs [3], [4] and [5] of the letter of 25 September 2010 and paragraph 8 of the letter of 26 September 2010 defamed the plaintiff, Lotoala Metia, and were not matters of fair comment. They were statements of fact of which the defendants had no proof .

[52] I must, therefore, consider the appropriate order of damages.

[53] As I stated above, the statement of claim refers to subsequent events which it is suggested are a consequence of these defamatory statements. I have not heard evidence of those matters although one such incident is described in the statement of claim and I am aware they are the subject of one of the other cases involving this plaintiff.

[54] Where trial is by jury, the amount of damages is a matter entirely for the jury. In many cases that has resulted in very high awards. However numerous cases have criticised that approach and it should always be remembered that actions for libel in a civil court are not brought to punish the libeller but to vindicate the character of the person libelled; (Reeves v Associated Newspapers; The Times 13 October 1919.

[55] Overgenerous damages awarded by juries in defamation cases compared to other actions have frequently been criticised. They led Greenberg J to remark, "The figure of Justice carries a pair of scales, not a cornucopia" Innes v Visser [1936] WLD 44 and Lord Diplock to complain, " I do not believe that the law today is more jealous of a man's reputation than of his life and limb. That is the scale of values of the duel." McCarey v Associated Newspapers [1965] 2QB 86.

[56] The plaintiff has adduced evidence of his position and standing and the effect of the libel. However, in order to determine an appropriate award, the Court should, and is entitled to, consider the conduct of the defendant before, during and after the trial. I know of no similar previous case in this jurisdiction and it is important that I have all the necessary evidence to fix damages at an appropriate level.

[57] I shall adjourn the case to the next sitting of the High Court and order that the parties provide affidavits of any matters they consider relevant to the assessment of damages. The plaintiff shall file and serve any such affidavits on or before 31 March 2012 and the defendants shall file and serve affidavits in reply on or before 31 May 2012. Notice of intention to cross examine must be filed and served on or before 30 June 2012.

Dated 21st day of January 2012

Hon. Gordon Ward
CHIEF JUSTICE