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Telaaka v Nia [2022] TVHC 12; Civil Case 17 of 2021 (30 March 2022)

IN THE HIGH COURT OF TUVALU 2022

CIVIL CASE NO.17/21

BETWEEN

TEFITI TELAAKA
FIRST PLAINTIFF

MAUATU TEPOGA
SECOND PLAINTIFF

AND

TAUFALA NIA
FIRST DEFENDANT

MALAU AKELISE
SECOND DEFENDANT

MONO SUITAI
THIRD DEFENDANT

GATII TEVAKANIU
FOURTH DEFENDANT

TELESIA SOGIVALU
FIFTH DEFENDANT

Before Hon Judge Sir John Muria

Hearing 21^st March 2022

Ms F. T. Nelu for Plaintiffs
Ms C. B. Nia for Defendants

J U D G E M E N T

Muria J: This is an application by the Defendants seeking to have the Plaintiffs’ Statement of Claim struck out and to dismiss the Plaintiffs’ action. The Defendants’ application is brought pursuant to Order 27 Rule 4 of the High Court (Civil Procedure) Rules 1964. The Plaintiffs oppose the application.

2. The plaintiffs issued a Writ of Summons on 2^nd June 2021 against the defendants for defamation. The plaintiffs alleged that the first, second and third defendants made certain defamatory statements about them during the Meeting of the Falekaupule on 8^th July 2020. Thereafter, on 9^th July 2020 the first and second defendants gathered the employees of the Kaupule and made defamatory statements about the plaintiffs to the employees of the Kaupule.
   
3. It is also alleged that the first and second defendants incited the employees of the Kaupule to sign a petition for the removal of the plaintiffs from their positions, as well as from being Members of the Kaupule. On 10^th July 2021, the Falekaupule held a special meeting and decided that the plaintiffs be terminated from their positions as well as being members of the Kaupule.
   
4. The plaintiffs also alleged that on 14^th July 2020 the first defendant wrote to the Secretary of Home affairs and made statements about the plaintiff which were untrue and defamatory.
   
5. The plaintiffs set out what they say, are the “particulars” of the alleged defamatory statements in their Statement of Claim.
   
6. For the purpose of this application, I feel I need not set out the particulars of the allegations of defamation contained in the Statement of Claim. I need only at this stage, take the Statement of Claim on its face, and determine whether on any view of the Statement of Facts contained therein, a cause of action has been shown. It is therefore not my purpose in this application to consider and determine any dispute over the facts in this case.
   
7. Having said that I am mindful of the Court’s power in an application to strike out a Statement of Claim, so as not to exercise it in such a way as to deprive the plaintiff of the opportunity to come before the judgment seat with his claim. The statement of principle in this regard is aptly put in Dyson –v- A.G. [1910] UKLawRpKQB 203; [1911] 1 KB 410 where Moulton LJ started at p.419:
   

“The Court will not permit the plaintiff to be driven from the judgment seat except where the cause of action is obviously bad and almost incontestably bad.”

8. The question to be determined is therefore, whether the plaintiffs’ Statement of Claim has showed a cause of action in this case. The defendants argued that the plaintiffs’ Statement of Claim does not disclose a cause of action for defamation in this case. In the first place, the exact words uttered or published by the defendants have not been stated in the particulars of the Statement of Claim. Ms Nia of Counsel for the defendants submitted that as the exact defamatory words were not stated, it would not be possible to ascertain whether the statements published, if published at all, are defamatory. Counsel relied on the cases of Metia –v- Finikaso [2012] TVHC 2; civil case 03 of 2011 (21^st January 2021); Enosa –v- Samoa Observer [2008] WSSC 86. (16^th May 2008); and Kerr –v- Hayden [1981] 1NZLR 443 for the proposition that the exact words alleged to be defamatory must be provided in the particulars of the claim in the Statement of Claim.
   
9. Ms Nelu of Counsel for the plaintiffs submitted that sufficient particulars have been provided both in the Statement of Claim and in the affidavit of Mauatu Tepoga. The plaintiffs also relied on Order 3 Rule 8 of the High Court (Civil Procedure) Rules 1964, which states:
   

“R.8 In action for libel the indorsement on the writ shall state sufficient particulars to identify the publications in respect of which the action is brought.”

10. I have looked at the plaintiffs’ Statement of Claim and what is obvious from what are said to be the particulars of each of the alleged defamatory statements are paraphrases or restatements of the alleged defamatory statements rather than the actual words used. That gives rise to two difficulties namely, the impossibility of establishing publication of the alleged defamatory statements or words and, secondly the impossibility for the Court to determine whether the alleged defamatory statements or words are truly defamatory. The importance of publication of the statements is pointed out in Metia –v- Finikaso. It enables the Judge to decide if the published statements are capable of being shown as defamatory. The Court stated in that case:
    

“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.”

11. In Kerr –v- Hayden the Court also pointed out that “an action for defamation cannot succeed unless the plaintiff can manage to plead the exact words with reasonable certainty.” The case of Kerr –v- Hayden was followed in the Samoan case of Enosa –v- Samoa Observer.
    
12. Pleading the exact words of the alleged defamatory statements or words is an essential ingredient in an action for defamation. Its absence or mere paraphrasing of alleged defamatory statements is fatal in a claim for defamation. The present case falls into this category.
    
13. I am equally convince, having read and observed the Statement of Claim in the present case that, not only are the exacts words or statements are missing, but the element of publication is also wanting in the plaintiffs’ Statement of Claim. In Metia –v- Finikaso [2012] TVHC 3 (assessment of damages hearing) the Court discussed the importance of publication of defamatory statements or words when considering the question of damages. This is because the publication of defamatory words or statements, not only goes to show the nature of the defamatory statements or words, but it also goes to show the effect the defamatory statements or words would have on the plaintiff as well as on those to whom the publication is intended to reach. Publication of defamatory statements or words may also show malice as a motive on the part of the defendant in publishing the defamatory statements or words which if established, would entitle the Court to award exemplary damages. In Metia –v- Finikaso, there was no evidence of malice and so the Court did not impose exemplary damages against the defendants.
    
14. Counsel for the plaintiffs relied on the affidavit of the second plaintiff to shore up the plaintiffs’ argument that they have provided sufficient particulars and that their claim is not frivolous and vexations. However, any particulars supplied can only become relevant and useful if the cause of action is first shown to exist in the pleadings. In this case the essential elements of a claim for defamation are missing from the plaintiffs’ Statement of Claim and as such the said particulars do not assist the plaintiffs’ claim, unless the particulars now supplied by way of affidavit, establish the essential elements for a claim in defamation that are missing from the Statement of Claim. In this case, having read the affidavit of the second plaintiff, I do not see the affidavit as providing any cure to the substantive defects, which have been identified earlier in the plaintiffs’ Statement of Claim.
    
15. It is therefore vitally important that publication of the exact defamatory statements or words are shown in the Statement of Claim. In this case, the exact alleged defamatory statements or words are not stated or identified on the face of the Statement of Claim nor is there any evidence of them being published.
    
16. Finally, there is the defendant’s argument that no harm or damages have been pleaded in paragraph 11 of the Statement of Claim and that the damages claimed are in effect claim for financial losses for termination of their employment and not for defamation. Financial or economic losses directly arising from the publication of defamatory statements or words can be claimed in a defamation case. However, that depends, in the first place, on the existence of a cause of action to ground a defamation claim. If the Statement of Claim in an action for defamation does not show a cause of action, then all that follows from such a Statement of Claim are of little or no consequence at all. That is the position in the present case.
    
17. The defendants also raised the issues of the inappropriateness of bringing the defamation claim under Order 56 of the High Court Rules and that the plaintiffs’ Statement of Claim is frivolous and vexations. I feel I need not deal with those issues since I have already concluded that the plaintiffs Statement of Claim does not disclose a cause of action in defamation in this case. In the words of Moulton LJ the Plaintiffs’ Statement of Claim is “obviously bad and almost incontestably bad” and as such it cannot succeed.
    
18. The plaintiffs’ Statement of Claim is struck out as disclosing no reasonable cause of action in a defamation claim. It follows that the plaintiffs’ claim in defamation against the defendants is dismissed.
    
19. The defendants are entitled to costs and the Court orders costs to be paid by plaintiffs to the defendants to be taxed, if not agreed.
    

Order accordingly.

Dated on the 30^th March 2022

Sir John Muria
Judge