Uasi v 'Ahokava [2009] TOLawRp 15; [2009] Tonga LR 159 (27 March 2009)

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Appeal against Magistrate's decision – no reason to interfere with findings – appeal dismissed

Defamation – amount claimed should be substantiated – sum required strict proof

The appellant claimed that the respondent defamed her. The Magistrate ruled in favour of the respondent and found that there was no case to answer. The appellant appealed the decision and sought for the Magistrate's decision to be quashed and for the case to be returned to the Magistrate's Court for rehearing.

1. A Higher Court would only interfere with the factual findings of a lower court in the clearest of cases, for example if the appellant court was able to conclude the Magistrate's decision was unsound, or that the Magistrate clearly came to the wrong conclusion.

2. The Court found no reason to interfere with the Magistrate's Ruling. The appeal was dismissed and the decision of the lower court was affirmed. There was insufficient evidence of defamation adduced in the trial.

3. In future defamation cases, if the claim for defamation was in the sum of $10,000 then the claim for that particular monetary value would have to be substantiated by evidence. In other words the sum would have to be assessed by hearing evidence and the amount claimed would require strict proof.

This Appeal concerns a ruling in the Magistrates Court concerning civil case no. 264/08 a civil dispute concerning an alleged allegation of defamation

The plaintiff is claiming from you the amount of $10,000.00 because you created rumours about the plaintiff by telling Setaita 'Ahokava that the plaintiff (Makeleta) licked the ass and penis of the defendant. And Setaita told the plaintiff that Makeleta and Pula have been cohabiting for two years. This is a lie and a rumour and the plaintiff deny all of the contents of the rumour that was talked about in November or close to that at Fanga Market. This is one rumour that is very detrimental to the plaintiff's reputation particularly when it is false and that the plaintiff is a married woman, and operates a big business in Fanga. Wherefore I pray that the defendant pay the costs of these proceedings including legal fees of the Lawyer, $800.00 and other adjustments that deem just.

In which the presiding Magistrate at Lopaukamea made an order on 20-01-09 as follows.

Magistrate Poto Mohenoe at Lopaukamea ruled in favour of the defendant because the onus of proof for criminal case must be proved beyond reasonable doubt, and even though the onus of proof for civil cases is on the balance of probabilities, there are some instances where civil cases use the measure of proof beyond reasonable doubt.

The Magistrate concluded this trial by saying the following I have listened to both parties and their evidence. There is no evidence provided for me to conclude that PULU had defamed Makeleta as stated in the writ of summons, therefore I overrule this case.

Legal Counsel Fees to are to be paid to Tesina Fifita $300.00 within 3 weeks if not a warrant of distress will be issued against the Plaintiff.

Notice of Appeal against the Magistrate's Ruling was issued on 20th January 2008-9 signed by MAKELETA UASI for the appellant. The Notice of appeal was duly served on the Supreme Court. The substantive hearing of this appeal took place in the Supreme Court on the l3-03-2009 with judgment reserved until the 27 March 2009.

1. This is a civil matter and the learned Magistrate has erred in law and made an unconstitutional decision as stated above.

2. The affidavit of the complainant (Makelete UASI) stated that rumours about her in the civil case CV26/08 was known to her when Setaita 'Ahokava told her, by her husband Pulu 'Ahokava (defendant).

3. If there are no disputed facts, disputed by the defendant either in open court, or during the course of the trial, those facts are deemed true if they weren't disputed.

4. It is surprising to the appellant when Magistrate Poto covered up for the defendant in the civil case when he said there wasn't any evidence, disregarding the fact that the appellant gave evidence through the affidavit.

5. This is an unfair decision made by the learned presiding Magistrate, No legal foundation in law, and an unconstitutional decision.

• The decision made by the learned Magistrate be quashed, and the case be returned to the lower court to proceed with another Magistrate.

According to the court record the Magistrate heard and considered oral evidence- as per the court record. Mr Fifita at the close of the Plaintiff's case made a submission that there was no case to answer.

After hearing the evidence and from Mr Fifita for the defendant- the Magistrate concluded as follows:-

• I have listened to both parties and their evidence. There is no evidence provided for me to conclude that PULU had defamed Makeleta as stated in the writ of summons, therefore I overrule this case.

• Legal Counsel Fees to be paid to Tesina Fifita $300.00 within 3 weeks if not a warrant of distress will be issued against the Plaintiff.

The Magistrate in this case did make a findings of fact and found that there was NO EVIDENCE PROVIDED FOR ME TO conclude that Pulu had defamed Makelete as stated.

After hearing and recording the plaintiff's case, counsel for the defendant made a submission of no case to answer. The submission of no case to answer- was upheld by the Magistrate: - in that the first limb of Galbraith had not been complied with. (i.e) there was insufficient evidence to prove the case. This the Magistrate is clearly entitled to do.

"SUBMISSION OF NO CASE

The defence submits that the prosecution has failed to prove an essential element of the offence alleged - and that there is no case to answer. The defence argue that no evidence has been adduced to prove [here specify the element(s)] as required for the prosecution to succeed.

THIS IS THE FIRST LIMB OF A SUBMISSION OF NO CASE TO ANSWER

[Counsel must then summarize the defence submissions]

The defence asks the court to find that the prosecution case has been so undermined that no reasonable tribunal could convict upon the evidence as presented.

They submit that the evidence [of key witness 'A'] is so manifestly unreliable that it cannot be relied upon. [Then refer to reasons provided in submissions, e.g. key witness discredited under cross-examination, witnesses providing differing versions of the event or events, contradictory evidence, and poor identification evidence].

THIS IS THE SECOND LIMB OF A SUBMISSION OF NO CASE TO ANSWER

The prosecution, in response, argue that [summarize prosecution submissions].

If the court finds that no reasonable tribunal could convict upon the evidence-then the court must dismiss the case against the defendant(s)."

Whilst it is likely- that a 'submission of no case to answer' will usually be made by the defendant; the court may raise the issue of its own volition, and may also act of its own motion; and should always do so; wherever a defendant is unrepresented.

Having heard the plaintiff's case; and having considering Mr. Fifita and his "submission" the court found there was a NO CASE TO ANSWER then the case stopped.

In accordance with established tradition and case law- no written reasons are required, or are ever given by a court for its reasons to find there- is a case to answer; but the Magistrate did record and he is obliged to record his reasons for finding that there was insufficient evidence to proceed.

I heard oral argument from both the appellant and the respondent in this matter on the l3 March 2009 and I reserved Judgment of this matter to today. I have considered carefully all that was said in the Supreme Court and considered the paperwork submitted from the lower court. I have also considered the case of Pa'ila v Ma'u (2002) Tonga LR 114- which clearly says - that a Higher Court will only interfere with the factual findings of a lower court in the clearest of eases- For example - if the appellant court was able to conclude the Magistrate's decision was unsound- or that the Magistrate clearly came to the wrong conclusion.

• In this case I can find no reason whatsoever to interfere with the Magistrate's Ruling.

• I find also find as a fact there was insufficient evidence of defamation adduced in this trial.

• For the sake of clarity I point out to all parties in future defamation cases, if the claim for defamation is in the sum of $10,000 (as here) then the claim for that particular monetary value of $10,000 will have to be substantiated by evidence.

• In other words the sum WILL have to be assessed by hearing evidence and the figure will require strict proof.

• In a nutshell- defamation cases are not cases with a licence to print or, to just hand over money, these types of case require strict proof; courts must rely upon admissible and reliable evidence- AND NOT JUST GOSSIP.

• Costs of today are awarded against the appellant to be taxed by the Chief Registrar if not agreed.

Tonga Law Reports

Uasi v 'Ahokava [2009] TOLawRp 15; [2009] Tonga LR 159 (27 March 2009)