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International Comtrade v Solomon Star Ltd [2017] SBHC 38; HCSI-CC 121 of 2015 (16 November 2017)

HIGH COURT OF SOLOMON ISLANDS
(BROWN J)
Civil Case No.121 of 2015

INTERNATIONAL COMTRADE -V- SOLOMON STAR LIMITED,
AND SHIPPING (SI) LIMITED, EDITOR OF SOLOMON
WILLEM JOHAN VAN STAR NEWSPAPER,
VLYMEN, JOHN WHITESIDE, ALFRED DAVID
RUSSEL ISLANDS RAMOAGALO,
PLANTATION ESTATE LTD COMMODITIES EXPORT
(1^st 2^nd 3^rd 4^th Claimant) MARKETING LTD,
JOEL RUUNANITA

Date of Hearing: 8 September 2017
Date of Judgment: 16 November 2017

G. Suri for claimants
M. Tagini for 1^st 2^nd 3^rd defendant
No Appearance of 4^th 5^th defendant

Claim for damages for various libels published in the newspaper.

Brown J:

On the 13 July I gave reasons for finding various libels had been committed by these defendants, excepting one Joel Ru’unanita which appeared to be a nom de plume for Jeffrey Joel Aihunu Houakaua director of Transit Market Place Trader Limited. The fifth defendant was not determined liable for the name I am satisfied was but a front and it is not possible to recover damages in such a case.

Articles were published headed “RIPEL land sales” and “Lunga land sales” by these named Joel A. Houakau and Aihunu Houakau in the newspapers of the 20 November, and 7 December, 2014. Those articles, I found to be a libel on John Whiteside and RIPEL for both implied illegal land sales in dealings involving these named claimants and one “Patrick Wong”. To quote from the first article, “It is a well-known story that Patrick Wong is now a prohibited person in Solomon Islands.” And further on; “Those who are agents for Patrick Wong and are making the illegal sales...,” and; “The Lungga Fixed Term Estate now being plotted and sold by John Whiteside and David Iro for Patrick Wong ...” No attempt has been made to assert the truth of the assertions.

An article, “Let’s pray to release RIPEL” by Alfred David Ramoagalo published in the Solomon Star on 11 March 2015, was under signature of that individual writing as General Manager, Commodities Export Marketing Authority. On the 30 April 2015, he wrote again stating the earlier letter was his personal view and not that of the Commodities Authority. In the later letter he sought to explain, in some three columns, his intention when writing his first letter, to be to seek Gods guidance through prayer for assistance in resolving the RIPEL imbroglio. His earlier letter spoke of the network of evil:-
“The RIPEL saga emanates from a network of evil that only God’s power can root out.”
When read as a whole, I was satisfied the letter defamed the company, RIPEL and those associated with its directorship and management. The letter said:-
“Therefore, having it operational under a management that has no conflict of interest under a free political environment would certainly open the floodgates to prosperity.
To those who are involved in what makes RIPEL stagnant, let us repent and ask God’s forgiveness and seek that true justice from God prevails to the betterment of all Solomon Islanders and for the glory of God who is sovereign over all things.”
Commodities had not sought to distance itself from the earlier letter, although I accepted Ramoagalo’s apology and intend to treat it as such from the Commodities as well, since obviously in this long running saga, “true justice from God” has been difficult to ascertain.

A further letter to the editor by one David Iro Fulanga was published by the paper on 17 December 2014 sought to refute the allegations about the “land sales” and reflected another opinion about the issues raised by the articles. He said; “I have personally had to stand for the losses caused by Jonathan. It is very thoughtless and unkind for Mr. Houakakau to falsely accuse and blame LSL, RIPEL, ICSL, and John Whiteside for Jonathan’s indiscretions.”
The accusations as they affect RIPEL and John Whiteside have been found to be libellous, whether false or not.

On the 11 March 2015 an article entitled “The time is right to revive RIPEL” was published by the newspaper, by one Joe Ru’unanita. The article to quote part, again disparages certain parties; “As for the so-called foreign investor, ICSL [the 1^st claimant] which is a minor share in RIPEL and yet seems to be calling the shot, did not bring in to this country any money except a cooked up scheme of arrangement, hijacked the Chairman of CEMA Board then to agree to the scheme of arrangement and had it sanctioned by the High Court”.
The article again was found to be libellous by its express assertions concerning the parties underlying purpose, “to pay this foreign schemer millions of dollars fine and continues to sell the land at Lunga in broad daylight.”

Earlier the RIPEL saga was made the subject of a libellous cartoon published by the newspaper. Cartoons are the source of ironic amusement for they usually concern topical items of interest. They invariably create interest in the matter of the cartoon and in this case, caused these claimants to take offence. The factual basis of the cartoon would appear to be wrong, placing RIPEL as one lampooned, in a ridiculous light. In the manner in which the cartoon was drawn, this finding of a libel is not attached to the publication, for ordinary Solomon Islanders may find humour in the drawings but would not impute evil as asserted by the claimants.

There is no doubt this RIPEL saga has been news for very many years. It is news even today as it endeavors to settle continuing disputation, unfortunately having given rise to claims of this nature as time go by.
Both the third defendant and the newspaper [and editor] have apologised and I accept the apologies as effective for the purposes of Lord Campbell’s Libel Act, 1843. For while the apologies may be no defence, they may be seen to mitigate the damages caused. Mr. Suri for the claimants, argues the apologies failed to mitigate. Mr. Ramoagalo’s letter of the 30 April 2015 should be read as self-justification rather than apology. I do not agree. The newspapers apology published in the edition of the 15 February was negated by the later cartoon. I find the cartoon not to be libellous and the apology stands.
No special damages have been proven as a result of these libels. The assessment of damages lies within the province of the jury in overseas jurisdictions which follow the English law. In this jurisdiction, the responsibility falls on the judge although I accept the principle that assessment of damages does not depend on any legal rule.^[1] To quote from Gatley;-
“They [jury] are entitled to take into consideration the conduct of the plaintiff, his position and standing, the nature of the libel, the mode and extent of publication the absence of any retraction or apology, and the whole conduct of the defendant from the time when the libel was published down to the very moment of their verdict”
As I have said, RIPEL may be seen as a saga and long running and a matter of public knowledge. To chasten these defendants to be more careful is not the province of the court, they must balance the risk [of defamation proceedings] with that obligation to pursue the principle of free speech by publishing. In this case they may be said to have crossed the line. The published apologies accept the fact.

Mr. Suri’s written submission for the claimants does address the issue I later raised; the manner in which an appropriate award of damages may be arrived at in this jurisdiction. His authorities were principally those given in this jurisdiction, those from Papua New Guinea and cases quoted in the various decisions by reference to Gatley on Libel and Slander, 8^th edit. Whilst I have had the benefit of the 5^th edition, the principles and law remained the same in England.

Mr. Suri has conveniently and separately dealt with the assessments as they affect corporate claimants and individuals. In SMY Luluaki Ltd v Paul Paraka Lawyers^[2] the National Court said;-
“However, a company might have a reputation, injury to which will give rise to a right to damages.”
Such is the case here, although as I have said, the RIPEL saga is not wholly of these defendants making for the ramifications following the Scheme of Arrangement are still being heard and litigated through the court. It would be unfair to ignore the fact that may be deemed to be common knowledge; “troubles” associated with RIPEL and its internal and external dealings. An earlier English court had recognised “common knowledge” to encompass the fact that rain sometimes falls in England. I feel it only fair, standing in place of a jury, if you like, to accept common knowledge in this jurisdiction to include some knowledge of the litigiousness, surrounding RIPEL.

The second PNG case^[3] touched on the damages calculated to affect the business reputation and in that case, the defamation was materially responsible for the company going out of business. Such cannot in all fairness be imputed to these defendants. Consequently I refuse to consider any award of aggravated damages. The amounts awarded in those cases cannot be useful comparisons in this matter.

The Individual claimants cases [the 2^nd and 3^rd claimants] referred to were:-Sikua & Manele v Tradewinds Investment Co Ltd^[4] and Coyle v Henao^[5]. In that earlier case, Chetwynd J considered the concept of reputation as a nebulous thing nevertheless to be considered a precious and valuable thing and its loss to be treated in law as a violation of an absolute right. I agree that the precept or maxim gives rise to the right for damages.

In the second case, the PNG Supreme Court reiterated the principle that there is no fixed measure for damages in an action for defamation. And to include the courts reference to Brown’s text-book; The Law of Defamation in Canada [a Commonwealth country], “However the reputation of any person is necessarily an evanescent thing and it is difficult to calculate an appropriate financial equivalent for its loss. An award must have regard for both probable past and prospective damages.”
Whilst Mr. Suri submitted the PNG case of Aviation Services with its award of K100,000 is a guideline in relation to corporations suffering damages through defamation, the disparate circumstances with the Solomon Islands [even when realising and acknowledging the currency differences reflecting that disparity] or with other countries for that matter and the disparate cultural attitudes must leave this court with disquiet were it to be guided in that way.

So far as the individuals are concerned, Mr. Suri listed the more recent awards in these cases including that one of Dettke v Tradewinds^[6] where an apology had been given and the court awarded some SI$ 100,000. The facts of the other two cases relied upon were so different to the present, no assistance may be had.

A pertinent and differentiating factor from those other jurisdictions must be the level of earnings in this country. While I realise this court may seek assistance by reference to previous awards^[7], the factual defamations in this case cannot be equated to the earlier cases. In Goh^[8] for instance, the defendant had implied the successful claimant, Goh deserved to have his home torched by the mob because he provoked the act and the court viewed such assertion as an exacerbation of the libel and the detestation of the court towards this brazen attribution of cause was justified.

The defamations found here may be categorized as mild in comparison.
At 625 of Gatley, `there is a quote from a judgment of Green, MR^[9] who said:- “It cannot be suggested that a judge sitting alone is in some way disentitled from awarding heavy damages because he is able [unlike a jury] in his spoken judgment to express his opinion of the seriousness of a libel and to say what he thinks of the conduct of the person uttering it.”
In the same vein, a judge sitting alone may set down whether he considers the defamation to be mild or strong or contumacious or detestable for instance, sitting in place of the ordinary Solomon Islander.
Where the Public Service Unified Salary Structure 2017 pays a gardener with 10 years service some $18,190 per annum or a driver with such service some $19,932 per annum, and private enterprise about Honiara are not necessarily so concerned with pay scales, it can be seen that an amount of $20,000 is a years salary to some people. I must also realise the majority of Solomon Islanders live beyond the bounds of Honiara and most are at subsistence level. It may be reasonable to suppose a lump sum of some $10,000 would be seen to be a large amount of money for an unseen hurt.
These persons claiming may be expected to receive an income beyond the salary to which I have referred, but the award of damages is not premised on their wealth or income. It need take account of the ordinary perception by a Solomon Islander as to the sum of money appropriate in this case to be given these claimants for their injured feelings and loss of business reputation. An award in favour of an individual should encompass reparation, protection and vindication of the reputation, consolation and solace for injured feelings and compensation for past and prospective losses caused by the publications. In these cases, it is difficult to quantify an amount with respect to the last head of damage but the other two may stand for assessment.
I make the following award of damages.
DAMAGES AWARDED

This manner of award may seem to breach the principle that the “jury has no power, jurisdiction or authority to apportion the damages, and if they do, so judgment cannot be entered against the several defendants for the amount so apportioned.

But here the libels relate to separate material generated by different individuals, whilst published in the newspaper at different times, and the apportionment is fair and just.

Interest shall be in accordance with the Civil Procedure Rules to date from the institution of proceedings.

On the question of Costs?
No award of damages has been given the 2^nd claimant for he has not been seen, on the material filed to be identified sufficiently to fall within those claimed to have been defamed.

__________________
BROWN J

^[1] Per Lord Watson in Bray v Ford [1896] A.C. at 50; “The figure of Justice carries a pair of scales not a cornucopia”: per Greenberg J in Innes v Visser [1936] W.L.D. 44; Gatley on Libel and Slander, fifth ed., at 625
^[2] [2012] PGNC 72; N4685 [18 May 2012] per Cannings J
^[3] PNG Aviation Services Pty Ltd v Somare [2000] PGSC 18; SC 658 [1 Dec 2000] per Salika J
^[4] HCSI-CC 138 of 2009
^[5] [2000]PGSC 17; SC655 (30 November 2000)
^[6] [2016] HCSI-CC237/15
^[7] Solomon Star v Wale (2016) SBCA 10; SICOA-CAC 11 of 2015
^[8] {2016) HCSI-CC no. 185 of 2013
^[9] Bull v Vazquez [1947] L.J.R. 551