Home | Databases | WorldLII | Search | Feedback High Court of Kiribati

Tetabea v Boutikaan Te Koaua [2002] KIHC 39; Civil Case 22 of 2000 (20 September 2002)

IN THE HIGH COURT OF KIRIBATI
CIVIL JURISDICTION
HELD AT BETIO
REPUBLIC OF KIRIBATI

HIGH COURT CIVIL CASE 22 OF 2000

BETWEEN:

TEIRAOI TETABEA
PLAINTIFF

AND:

BOUTOKAAN TE KOAUA
DEFENDANT

FOR THE PLAINTIFF: MS TAOING TAOABA
FOR THE DEFENDANT: MR BANUERA BERINA

DATE OF HEARING: 16 & 17 SEPTEMBER 2002

JUDGMENT

"Boutokaan te Koaua" is (or was in 2000) a newspaper, printed in the vernacular, circulating on South Tarawa (the exact area of circulation was not proven but two witnesses purchased copies on Betio and Bairiki respectively so I assume it circulates at least in these two areas). The paper is not incorporated. It is often critical of the present Government.

The plaintiff, alleging libel, brought an action in the High Court. The defendant is named as "Boutokaan te Koaua" (Newspaper or Firm). The Writ was directed:

To: (1) Roniti Teiwaki of Abarao, Tarawa

(2) Taberannang Timeon of Bikenibeu, Tarawa

The Notice of Service:

TAKE NOTICE that service was made on Roniti Teiwaki and Taberannang Timeon as owners and partners.

The Statement of Claim is silent on whom is or are the defendant or defendants, variously referring merely to "the Defendants" or "the Defendant".

No point was taken as to whom should be the defendant or defendants. This could have been done pursuant to O. 17 r 12. However in the Defence this allegation in the Statement of Claim is admitted:-

2. At all material times the Defendants carry on the business of publishing and vending the newspaper under the name of IIBoutokaan te Koaua" a newspaper duly registered pursuant to the provision of the Newspaper Registration 1988 ......
   

During the hearing I raised with counsel who are the true defendants. Mr Banuera Berina, for the defendant, admitted that the two gentlemen named in the Writ had been served and had given him his instructions.

O.17 does not contemplate quite this situation but O.17 rr 11 and 13 provide for changes in parties. Use could have been made of r.12. I told the lawyers that I proposed to regard Messrs Roniti Teiwaki and Taberannang Timeon as the true defendants. Neither Ms Taoaba, for the plaintiff, nor Mr Berina demurred. I would have been most unwilling to decide the case on a technicality and not on the merits.

I now come to the substantive issues. In March 2000, in the third issue of Boutokaan te Koaua, an article was published of which this is an English translation:-

Minister's Wife was detained in Fiji

During the Minister of Labour Teiraoi Tetabea's trip to Kiritimati on 27 January he took his wife with him. However, when they arrived in Fiji the Immigration there discovered that the passport belonging to the Minister's wife had expired. This is forbidden under immigration regulations. 'When this was found out the Minister's wife was detained in Fiji and was not allowed to accompany her husband to Kiritimati. She stayed back in Fiji to await her new travel documents from Tarawa. 'When these were completed she was able to travel to Kiritimati and she arrived there on 9 February on a flight which the Minister should have taken back. During the inquiries by BTK it was found out that Minister Teiraoi stayed an extra week on Kiritimati to wait for his wife to join him despite the fact that the purpose of his visit had been completed. The Permanent Secretary for Labour who accompanied the Minister on this trip left Kiritimati on 9 February, while the Minister and his wife together with another employee left a week later on 16 February. On this trip in question the Minister and his wife left Tarawa on 27 January and they returned on 22 February. 'What about the amount of money and time wasted without good reason? The Beretitenti who does not like public funds being wasted - where was he all this time???

The words complained of were part of this article and are set out in the Statement of Claim:-

The Minister Teiraoi further stayed for a week on Christmas Island than had been previously scheduled awaiting the coming of his wife even though he had already finished with his commitment..... What about the expenditure incurred and the time spent unnecessarily? Where is our President who does not want the Public fund to be wasted???

Paragraph 4 of the Statement of Claim alleges these words, inter alia, "bore and [were] understood as bearing the following meanings:

(a) That the Plaintiff was corrupt

(b) That the Plaintiff was a thief

(c) That the Plaintiff was a cheat

(d) That the Plaintiff misused the Public fund

(e) That the Plaintiff misappropriated the Public Fund

Paragraph 5 complains that "The word (sic) spoken or published of the Plaintiff... ... were untrue".

The plaintiff is a Member of Parliament for Betio. He has been for nearly eight years the Minister of Labour, Employment and Cooperatives. He has been in the practice of making a visit to Kiritimati Island every year to carry out ministerial duties. The length of the visit has varied but has been, as a rule, either one or two weeks. The Minister himself decides on the length of the visit. Necessarily at present, visits to Kiritimati must be either a week or multiples of a week as there is only one flight a week from Honolulu to and return from Kiritimati.

In 2000 the Minister decided to make a visit of two weeks: his wife was to go with him. This decision was made in Tarawa well before the visit took place. The Minister gave evidence to that effect and despite Mr Berina's vigorous cross examination, was not shaken. His evidence was confirmed by that of Mr Teekabu Tikai, the Permanent Secretary of the Ministry and by the Combined Imprest Warrant and Payment Voucher dated 24/1/2000 (Exhibit PI). The latter shews the "date of departure from duty station" as "27-01-2000" and" Appx date of return to duty station" as "22-02-2000". It takes nearly a week of travelling each way to go from Tarawa to Kiribati and return. Thus the imprest warrant contemplated two weeks on Kiritimati.

I have no doubt that the plaintiff had intended from before he left Tarawa to spend two weeks on Kiritimati. Despite Mr Berina's vigorous cross examination on this point as well I am satisfied that he contemplated carrying out ministerial duties and did carry them out during both weeks of his visit.

There came the unfortunate discovery that the passport of the Minister's wife had expired. She had to wait in Fiji for some time before she could continue her journey. She was able to join her husband in Kiritimati only for the second week of the visit.

On the evidence I am satisfied that the article in Boutokaan te Koaua was inaccurate in saying-

"The Minister Teiraoi further stayed for a week on Christmas Islands than had been previously scheduled awaiting the coming of his wife even though he had already finished with his commitment."

Of course, that is the sting in the article: that the Minister wasted a week in Kiritimati just so that his wife could join him there: otherwise he would have left a week earlier (when the Permanent Secretary left) having completed his ministerial duties in the first week. The sting is based on inaccuracy: it is not true.

Had the article merely criticized the Minister for spending two weeks on Kiritimati, a stay longer than necessary, thereby wasting time and money I would have regarded it merely as fair comment on the matter of public interest.

As it is, it bears the implication that the plaintiff misused public funds, one of the meanings alleged in paragraph 4 of the Statement of Claim.

The sting in the article was untrue and bore the meaning that the plaintiff had misused public funds. Does that make the article defamatory?

The plaintiff called two gentlemen, one from Betio, the other from Bairiki. Each said he knew the plaintiff and had read the article. Reo Teua of Betio said he-

Understood from it - Minister stayed longer for another week more than fixed length of trip. Overstayed - what money he'd been using. If true our view of this man different from our previous view using Government moneys which belonged to other bodies.

Mr Raion Bwataroma:-

Minister of Labour has had a trip to Kiritimati and overstayed a week. I felt it could be that Minister a dishonest man abusing his role as a Minister: abusing the people's money for the Government: corruption.

That evidence, together with my own view of the article, is sufficient for me to find that the article in its clear and natural meaning tended to /flower the plaintiff in the estimation of right thinking members of society generally" (see Gatley on Libel and Slander (8th edition) paragraph 4).

The words complained of were defamatory. They were comments based on inaccurate facts. No question of justification arises.

No evidence was called for the defence.

What of damages?

Reo said that when he tackled the Minister on the subject he "was satisfied with his explanation". Raion, although he had met the Minister subsequently, never gave the Minister an opportunity to explain.

The Hon. Natanaera Kirata is the Member of Parliament for Onotoa and now Minister for Home Affairs. In 2000 he was Chairman of the Government Members Party in Parliament. The plaintiff was called on at a Party meeting in April 2000 to explain himself: having read the article fellow members had criticized him. Apparently the plaintiff did explain and his explanation was accepted.

During addresses I remarked to counsel that those in public life expect to receive and often do receive criticism which is wounding and which, as here, is quite unjustified. This is a price paid by those who take part in public affairs: something they get used to.

It seems that this matter was explained and forgotten.

It has often been said that the real justification for taking proceedings in defamation is to clear one's name. The plaintiff has amply done that. An award of damages is less important than reputation.

Damages are affected by two other considerations. The plaintiff must take action promptly to justify much of an award. Here the Writ was issued within three months: hardly prompt. On the other hand the defendants neither offered nor made an apology.

I take those factors into account as well as the nature of the libel itself.

I accept that the publication of the article caused the plaintiff embarrassment at the time. Yet in the rough and tumble of political life I do not regard it as a serious libel: not quite trivial but not serious.

Only a small award of damages is appropriate. I fix damages at $200.

The plaintiff will have judgment against both defendants in the sum of $200.

Dated the 20th day of September 2002

THE HON ROBIN MILLHOUSE QC
CHIEF JUSTICE