Briggs v Mapp

• Jurisdiction: Saint Kitts and Nevis
• Judge: Gordon, J.A.,Lewis, J.A.
• Judgment Date: 19 June 1967
• Neutral Citation: KN 1967 CA 2
• Docket Number: No. 2 of 1964
• Court: Court of Appeal (Saint Kitts and Nevis)
• Date: 19 June 1967

The West Indies Associated States Supreme Court. Court of Appeal

Lewis, C.J.,

Lewis, J.A.

Gordon, J.A.

No. 2 of 1964

Briggs

and

Mapp

Appearances:

Adams for appellant.

C.F. Henville for the respondent.

Defamation - Slander

Facts: The respondent accused the appellant of stealing her purse and this led to the appellant's arrest. The question was whether there was malice on the part of the respondent.

Held: That having regard to the style of the accusation the tone and language used by the respondent, there was evidence of malice and this constituted ample justification for the finding of the trial judge. That although the statement made to the policeman was privileged it was destroyed by the subsequent conduct of the respondent.

JUDGMENT OF THE COURT:

1 This is an appeal from a judgment of the Supreme Court of the Windward Islands and Leeward Islands delivered by Mr. Justice Chenery, on the 7th September 1964, in an action for damages for slander, and for wrongful arrest and imprisonment. Mr. Justice Chenery awarded damages in the sum of $750 and costs.

2 The court has been rather at a disadvantage on the hearing of this appeal, because of the absence of any reasons for judgment by the learned trial judge. It appears that sometime after delivering his oral judgment he left the Colony, as it then was, and ceased to be a judge of the Supreme Court, and it has not been possible to obtain from him any reasons in writing. Therefore the court has had to deal with the appeal mainly on the basis of his notes of evidence, and of a statement at the bar by counsel for the appellant, not challenged by learned counsel for the respondent, as to one of his findings as a matter of law.

3 The facts are not difficult and the court has heard the appeal on the basis that the learned trial judge made such findings of facts as were necessary to sustain his judgment, otherwise it would have been necessary for the case to go back for a new trial, in order that there might be proper findings of facts on the record.

4 The plaintiff, who is the respondent in this appeal, is a married woman who lived at St. Johnston Village, and the defendant was a shopkeeper, living at Nevis Street, Basseterre. At the relevant time, the plaintiff was employed as a clerk at Losada's store, and she alleged that she lost her employment as a result of the incident that occurred.

5 At about 10 a.m. on the 16th of February 1962, the respondent, who was a friend of the appellant, went to the appellant's shop. They had a conversation, which is immaterial. After the conversation she left and went to her place of work. Later that day at about 3.30 p.m., the respondent said, the appellant came to her at the store and beckoned to her and she went to the doorway to speak to her. This is important when we come to consider the evidence about the following day.

6 The appellant, she said, asked her whether she had picked up a wallet while they were together that morning to tease her, and she replied she had not. She said that people don't do that sort of thing. The appellant then said, “Well I don't know — a man did that sort of thing in Mingo, and you were the only one who were there that day”. There was further conversation, at the end of which the respondent said that she was not going to take the matter like that.

7 The respondent's evidence was that next morning while she was at work at the store, the appellant came there along with a constable, P.C. David, between 8.00 and 9.00 o' clock, and that in the presence of two store clerks, Ursula Gumbs and Mr. Pereira, as well as a number of customers, the appellant said in a loud voice to the police constable, pointing at her, “That is the woman who steal my wallet with me money”. The police constable asked, “Which one” and she replied, “The thin one”, that is, the respondent. The policeman then told the respondent that she would have to go along with him to the Police Station. The permission of one of the directors of the firm was sought and given, and the two parties went along with the police constable to the Police Station. There the police constable took a statement from the respondent, and then charged her with the offence of larceny. The case subsequently came before the magistrate and the charge was dismissed; and hence this action.

8 Later in her examination in chief, the respondent amplified what she had said. She said, “When Mrs. Briggs pointed her finger at me saying this is the woman, she was speaking very loudly. People in the shop could have heard because they gathered around”. I presume she means by that, they must have heard because they gathered around. Under cross-examination she said: “Ursula Gumbs, another clerk, was standing close to me. I was speaking to her. Nobody was close to us. The customers were at the hardware end of the store. Mr. Pereira behind the counter about the distance of the chair to the witness stand from me. I did not see him hand a wallet to the defendant at that time”.

9 Later she said the police constable was standing just next to her, “quite close to me. She shouted out other things. She said, that is the woman; she sounded angry, she did not say these words loudly”. These two statements, that she sounded angry, and she did not say the words loudly, appear to be inconsistent, and one wonders, having regard to what she had said in examination in chief, whether an error has crept into the notes. The respondent called no witness in support of her story.

10 In her evidence, the appellant admitted the visit to her shop, and the conversation at the store on the afternoon of the 16th, and she said that the conversation that took place on that occasion, took place after she had called the respondent to her. She said that she went to the Police Station when she left the store on the 16th and made a report to police constable David, and from there she went home; and sometime later in the evening her son, Thomas Briggs, gave her certain information, as a result of which she went back to the Police Station, and there made a further report to the constable. Then on the morning of 17th February, she went with the police constable, David, to Losada's stare, and this is her account of what took place then. She said,

“People were there buying, customers were buying, Mr. Pereira was there. Mrs. Mapp was standing a distance away from Mr. Pereira. He (Mr. Pereira) went and brought my wallet, and handed it to me. It was the same wallet, which I had missed. Mrs. Mapp was at the same distance. Mr. Pereira handed the wallet over a workman's head and gave it to me. I said nothing. I gave the wallet to the police constable David. Mrs. Mapp was looking very distressed when Mr. Pereira handed the wallet to me. Police Constable David spoke to me. I don't know if she could hear. I pointed to Mrs. Mapp, I did not say: This is the woman who stole my wallet. Police Constable David went to the plaintiff. He told her that she would have to go to the Station to give a statement.”

11 So according to her account Mr. Pereira and the workmen were in the shop along with Mrs. Mapp, and all she did was to up to Mr. Pereira who handed her the wallet, and Police Constable David then told the respondent that she would have to go with him to the Police Station. She did not use the words complained of.

12 It is quite clear from the decision of the learned trial judge that he did not accept this evidence — her denial that she had used words, which are complained of in this action. It came out in cross examination that the wallet had been found in Losada's van, on the afternoon of 16th February, about 1 o' clock, which would be before the appellant went to the respondent at the store to ask her whether she had taken it. There was some suggestion that the driver of the van was a lover of the appellant but this was denied and there was no evidence of it.

13 The appellant further said that it was not she, but the respondent, who made a noise when the Police Constable said she must come with him to the Station. Learned counsel for the appellant told the court, and indeed this was so stated in his notice of appeal, that the learned judge held that the occasion was a privileged one, and Mr. Henville, who appears for the respondent, has said that he is prepared to accept that this is so, although he was not present at the trial.

14 Learned counsel submitted briefly that there was not evidence of publication given by any of the persons mentioned in the plaintiff/respondent's statement of claim, or by any other person whomsoever, and that therefore the trial judge ought to have found that publication had not been proved. He referred to Halsbury's Laws of England, 3rd edition, paragraph 72, and Gatley, Law of Libel and Slander 4th ed. p. 556 for the well-known proposition of law that in a case of slander publication must be proved by a witness who heard the words uttered, and he submitted that even if the plaintiff gives evidence and shows that...