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Kele-Malapa v Nangard [2004] VUSC 54; Civil Case 159 of 1997 (28 May 2004)

IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU
(Civil Jurisdiction)

Civil Case No. 159 of 1997

BETWEEN:

HOUPETTE KELE-MALAPA
Plaintiff

AND:

IRENE NANGARD
Defendant

Coram: Justice Treston

Mr. Sugden for Claimant
Mr. Nakou for Defendant

Date of Hearing: 27 April 2004
Date of Judgment: 28th May 2004

JUDGMENT

CLAIM

This claim is for: -

1. Damages for malicious prosecution, and

2. Damages for slander.

HISTORY

Judgment by default was entered against the Defendant on 7 November 2002. She unsuccessfully sought to have that judgment set aside. A decision was delivered by this Court on 16 October 2003 in relation to that declining her application

The hearing has been to determine the quantum of the Claimant's default judgment. In relation to the hearing, orders were made on 5 February 2004 requiring the Claimant to file sworn statements by 3pm on 26 February 2004 and the Defendant was directed to file sworn statements by 3pm on 18 March 2004. A half day trial set for 9am on 22 March 2004 was abandoned because it seemed the Claimant had left for New Caledonia two weeks before the hearing and efforts made by her lawyer Mr. Nakou to contact her had proved unfruitful. Her counsel sought an adjournment for one month so that he could contact her and advice her of any new hearing date. That adjournment was opposed because the Claimant considered that the Defendant may have left the country permanently but in the circumstances the hearing was vacated. A fresh hearing was allocated for 9am on 27 April 2004 and at that hearing Mr. Nakou again appeared but the Defendant was not again present. It seems that, through her relative in Vanuatu, advice had been given to her of the date of hearing and once more counsel for the Claimant sought to proceed. Counsel for the Defendant again sought an adjournment.

In the circumstances, as the Defendant had failed to pay wasted costs awarded against her on 22 March 2004 and was not present and as she had failed to pay the trial fee the Court elected to proceed with the hearing in the absence of the Defendant and directed pursuant to Rule 4.12 (3) (f) (i) of the Civil Procedure Rules No. 49 of 2002 that the Defendant was not to participate in the quantum hearing. The matter proceeded.

FACTS

In accordance with the statement of claim it seems that between 4 November 1996 and 10 April 1997 a charge of contempt of Court in the criminal jurisdiction of the Senior Magistrates Court at Port Vila was preferred against the Claimant at the instigation of the Defendant. This was filed as a result of a complaint made by the Defendant to the Public Prosecutor who was originally a party to this action, but against whom the Claimant has discontinued her action.

It was alleged that the charge was preferred maliciously and without reasonable and proper cause. It related to a breach of an order of the Magistrates Court at Port Vila dated 13 December 1995 being an order for eviction requiring the Claimant and her family to quit the Defendant's premises within 30 days. The Defendant had no evidence that the Claimant had failed to comply with the order and there was no basis for a charge of criminal contempt.

In 1996 the Claimant and her family left the Defendant's premises and moved to an adjoining plot of land, which is claimed by the Defendant's brother which ownership is disputed by the Attorney General. It was alleged that the First Defendant has since February 1996 continually harassed the Claimant and her family in effect to force her to leave the land including informing the Police that the Defendant owned the land and that they must force her off it, asking Unelco to disconnect power and water to the Claimant, asking the Port Vila Municipal Counsel to force her to leave, which the Counsel threatened to do, and the Prosecution for contempt of Court. The Prosecution for contempt of Court was dismissed on 14 July 1997 and costs were awarded against the Public Prosecutor.

In relation to slander, the Defendant was at Au Bon Marche store at Manples on 18 June 1997 at 11.30am. The Claimant was also present together with many other people and the Defendant said to the Claimant in a loud voice words to the effect of when was the Claimant going to move off her land and that she and her lawyer were thieves and both of them wanted to take her land. The Claimant contended that these words were defamatory to her general and professional reputation that no apology was forthcoming and not only were her feelings injured but her reputation both professionally and generally was injured.

As I say, judgment by default was entered on 7 November 2000 and it is for this Court to set the quantum of the claims.

SUBMISSIONS

It was argued on behalf the Claimant that due to the malicious prosecution the Claimant had been exposed to the risk of imprisonment or a fine, no evidence had been called at the hearing and the matter was dismissed but there was damage to the fair fame of the Claimant for which she was entitled to recompense for the costs of defending the prosecution which were recoverable as damages.

As to the claim for defamation it was submitted that the consequences were not in the higher scale of defamatory statement but an award ought to be made in the vicinity of VT1, 000, 000 to VT1, 500, 000

LAW

The eighth edition of Fleming on the Law of Torts said in relation to malicious prosecution as follows: -

"We have seen that a claim for malicious prosecution must be founded on actual injury. This must consist either in injury to reputation, presumed wherever the plaintiff was accused of a crime involving scandalous reflection on his fair name; or injury to the person, as when he was imprisoned or put in jeopardy of it; or damage to his pecuniary interest, such as being put to expense in defending himself against the charge. But once this stringent requirement is satisfied, damages are at large, just as in defamation, and may take account of injury to the plaintiff's repute and credit as well as any mental distress inseparable from a serious criminal accusation, incidental arrest or detention..."

In the case of Wiffen v Bailey and Romford Urban District Council [1915] 1 KB 600 it was held that damage to a litigant's fair fame or putting him in peril of losing his liberty, was sufficient to support an action by him for malicious prosecution in the event of the complaint having been preferred maliciously and without reasonable and probable cause.

The Claimant can clearly also recover the costs which she incurred in the course of her defence (see Berry v British Transport Commission [1962] 1 Q.B. 302) and "the expenses incurred by the plaintiff in the course of her defence in the Court of summary jurisdiction and before the recorder, over and above the sum of 15 guineas awarded to her, are sufficient to support an action for malicious prosecution" (see p. 339)

In relation to the claim for slander, Carter Ruck on Libel and Slander 3rd edition 1985 said at page 153: -

"An action for defamation is essentially an action to compensate a person for the harm done to his reputation. In all actions for libel and in some actions for slander the law presumes that the plaintiff has suffered harm and in these actions, usually described as being actionable per se the actual sum to be awarded - the damages - are said to be at large"

Counsel for the Claimant submitted that that passage was authority for the proposition that the good reputation of the Claimant is to be presumed. With the greatest respect I do not agree with that nor do I agree with the proposition advanced by the Claimant that it is for a Defendant to prove bad reputation. A Defendant may of course adduce evidence in mitigation of damages, which she has not chosen to do in this case, but that does not alter the primary onus that rests on the Claimant to prove her claim on the balance of probabilities.

The Court of Appeal in Moli v Heston [2001] VUCA 3; CAC 11/2000 approved the principle that: -

"The purposes of an award of damages for defamation are

(i) consolation for the distress;
(ii) reparation for the harm done to reputation;
(iii) vindication of the plaintiff's reputation.

The total award must achieve all these purposes."

An award in these terms is by way of compensatory damages and can include factors for injury to the feelings, the anxiety and uncertainly undergone in litigation, the absence of apology, or the reaffirmation of the truth of the matters complained of or the motive of the Defendant. (see Cassell & Co v Broome [1972] A.C. 1027 at 1071; [1972] 1 All ER 801 at 824.

EVIDENCE

In her sworn statement the Claimant set out the facts about the abuse and harassment that she and her family had been subjected to by the Defendant over the years. Confirmation was given as to the cut off the power and water and she talked about her distress and embarrassment caused by the malicious prosecution and also the incident at the supermarket.

ASSESSMENT OF DAMAGES

In relation to malicious prosecution I find that the damages can be quantified by an award of VT150, 000 together with the costs which the Claimant had to pay and which are set out in exhibit "I" to her sworn statement in the sum of VT191, 000.

In relation to the defamation, I find that the authorities presented to me establish that damages must include factors for injury to the Claimant's feelings, the lack of apology and the obvious malice of the Defendant but while it is accepted by the Claimant that such damages need not be at a high scale, it is my view that, in all the circumstances, there was minimal damage to the Claimant's reputation. After all, it seems that the incident took place in public car park and there is no evidence at all to suggest that anyone even knew who the parties were involved in the exchange. That must reflect upon the amount of damages. This case is quite different to Moli v Heston (above) where there was publication in a newspaper. I award the sum of VT200, 000 damages to the Claimant against the Defendant under that head.

Accordingly the total damages are assessed at VT541, 000.

In the circumstances I award costs on the standard basis to the Claimant against the Defendant as agreed or as determined by the Court.

Dated AT PORT VILA, this 28th day of May 2004

BY THE COURT

P. I. TRESTON
Judge