Joseph Nathaniel France Fitzroy Bryant Defendants/Appellants v Kennedy Alphonso Simmonds Plaintiff/Respondent [ECSC]

• Jurisdiction: Saint Kitts and Nevis
• Judge: ROBOTHAM, C.J.,Chief Justice
• Judgment Date: 06 October 1986
• Judgment citation (vLex): [1986] ECSC J1006-1
• Docket Number: CIVIL APPEAL NO. 2 of 1985
• Court: Court of Appeal (Saint Kitts and Nevis)
• Date: 06 October 1986

[1986] ECSC J1006-1

IN THE COURT OF APPEAL

Before:

The Honourable Mr. Justice Robotham — Chief Justice

The Honourable Mr. Justice Moe

The Honourable Miss Justice Joseph (Acting)

CIVIL APPEAL NO. 2 of 1985

Joseph Nathaniel France

Fitzroy Bryant

Defendants/Appellants

and

Kennedy Alphonso Simmonds

Plaintiff/Respondent

Appearances:

Lee Moore and Henry Browne for the Appellants

Terrence Byron and Constance Mitchum for the Respondent

ROBOTHAM, C.J.

1 "The right of each man during his lifetime to the unimpaired possession of his reputation and good name is recognized by law. Reputation depends on opinion and opinion in the main on the communication of thought and information from one man to another. He therefore who directly communicates to the mind of another, matters untrue and likely in the material course of things substantially to disparage the reputation of a third, person is, on the face of It guilty of a legal wrong for which the remedy is an action for defamation." These are the opening sentences of the learned author of Clerk and Lindsell on Torts in his chapter on defamation to be found in any edition.

2 It was in quest of the vindication of his reputation and good name that Kennedy Simmonds, the plaintiff/respondent herein, a registered medical practitioner, Consultant Anaesthesist, and Prime Minister of the Federation of St. Christopher and Nevis, brought an action for defamation against the first-named defendant/appellant Joseph Nathaniel France, editor of a newspaper published in theFederation and known as the "Labour Spokesman", and the second-named defendant/appellant Fitzroy Bryant, a Barrister-at-Law and Solicitor, and author of a regular column in the said newspaper, entitled "Frankly Speaking by Fitzroy Bryant". The date of appearance of this offending column was May 23, 1981. The Labour Spokesman is alleged to be the official organ of the political party to which both appellants owe their allegiance, a party which is in opposition to that of the plaintiff.

3 The article was boldly captioned "Simmonds you better talk fast. Where the 1¹/₂ million gone"? and the offending portions will be reproduced in full shortly. For the moment it is sufficient to say that the article centered around the purchase by the plaintiff of a ferry boat on behalf of the Federation to operate between St. Kitts, (the name by which St. Christopher is more universally known) and Nevis. The name of the boat was the "M.V. Caribe Queen" and the purchase price in 1980 when the transaction was concluded was $377,000 U.S. plus $20,000 U.S. broker's commission. The equivalent in E. C. currency was 1.2 million dollars and the purchase was effected in Louisana, U.S.A. This boat was to replace the "Liamuiga" which was severely damaged and rendered unserviceable by the hurricane of 1979. The money to pay for the M.V. Caribe Queen was duly approved by the Parliament of the Federation, and it was sent direct from the Treasury in St. Kitts to the escrow agent in the United States in 2 payments of $19,000 U.S. and $378,000 U.S.

4 The purchase of the Caribe Queen having been concluded the damaged "Liamuiga" was sold by private treaty to one Vernon Flemming a member of the plaintiff's political party for $10,000 E.C.

5 At the time of the sale the "Liamuiga" was lying disabled in the Harbour in Barbados, and port expenses there had been incurred by the Government of St. Kitts totalling¹/₄ million dollars. The scrap value was assessed by experts at $10,000 U.S. but those experts were also of the opinion that to get the boat to the scrap yard in Columbia U.S.A. would have cost considerably more than its scrap value. To repair it would have cost the experts said, in the region of $1,572,400. Their advice to the Government of St. Kitts was to sell it "as is" in Barbados or sink it. It was thus sold to Fleming. Subsequently an ex gratia payment of $156,000 E.C., was made by the Insurance Company to the Government of the Federation.

6 The matter came for trial on April 22, 1985 before Singh J and after 10 trial days, on May 7, 1985, he awarded the plaintiff $75,000 by way of aggravated damages with costs to be taxed. There was no further award under the head of exemplary damages. I now set out the offending portions of the article as pleaded in paragraph 2 of the statement of claim.

THE ARTICLE

7 Saturday, 23rd May, 1981:

"SIMMONDS, YOU BETTER TALK FAST: WHERE THE $1¹/₂ MILLION GONE?

"In my column of 20 December 1980 I warned Premier Kennedy Simmonds that the sale of the M.V. LIAMUIGA and the purchase of the M.V. CARIBE QUEEN would turn out to be two of the most costly mistakes of his political life. Events since then have shown that Kittitians will never forgive Simmonds for giving away the LIAMUIGA to his party activist and no amount of explanation will be able to help him.

"The CARIBE QUEEN has proved an even greater embarrassment.

"CARIBE QUEEN RIP-OFF

"Maybe my information is wrong, but I don't think so. There are Kittitians in Tortola, the U.S. Virgin Islands and United States of America who are very disgusted at this LIAMUIGA give-away and CARIBE QUEEN rip-off business and who are watching the fate of both boats with the utmost interest.

"For example, when LIAMUIGA went to St. Thomas, U.S, Virgin Islands, after the give-away, some Kittitians there were violently angry about the corruption surrounding the boat's change of hands and nearly got themselves into trouble.

"SIMMONDS MUST COME CLEAN

"At public meetings the length and breadth of St. Kitts since December last year, Labour's elected representatives of the people and others have warned Simmonds that he should come clean about that $1¹/₂ million and the CARIBE QUEEN.

"Lord, have mercy. So what about the $400,000.00 (United States Currency) which the St. Kitts Treasury gave to Simmonds? Where that none gone? "Donated" means that the boat was a gift.

"Simmonds, boy, you better talk fast bout that $1¹/₂ million. I hope it is a mistake the magazine mek when it say "donated" because, if it ain't a mistake, look at trouble in this little island of St. Kitts."

THE PLEADINGS—STATEMEHT OF CLAIM:

8 Paragraph 3 alleged that the words were falsely and maliciously written and published of the plaintiff by way of his office as Premier of the State (as he was in 1981) and in relation to his conduct therein. Paragraph 4 alleged that the words in their natural and ordinary meaning meant and were understood to mean that the plaintiff was guilty of corruption, incompetence and dishonesty.

9 Paragraph 5 pleaded in the alternative to (4) that the words meant and were understood to mean that the plaintiff had committed some fraudulent or dishonest act in connection with the purchase of the Caribe Queen. Particulars by way of an innuendo were given ascribing defamatory meanings to the use of the slang words "rip-of" and (Simmonds must) "come clean" and the rhetorical question "where the money gone".

10 Paragraph 7 stated that the words were published out of malevolence and spite, and aggravated damages were claimed. In support thereof it alleged the repeated repetition of the said or a similar libel and the continued use of disparaging words of the plaintiff.

11 Paragraph 8 claimed exemplary damages but no additional award we made under this head. The particulars in support thereof however included details of the repetition of the libel and other disparaging words in subsequent issues of the same newspaper. In particular it spoke of the fact that the defendants on being informed by letter by the appropriate authorities through Peter Johnson, that the Caribe Queen wasnot a gift, and that any statement to that effect was incorrect, they none-the-less failed to publish the letter or make any retraction of the incorrect statement. Indeed, they repeated it and continued to refer to the plaintiff as being a liar, a hypocrite, corrupt, dishonest and depraved, amongst other things.

THE DEFENCE AND REPLY:

12 The defence filed jointly on behalf of both defendants denied (a) that the Labour Spokesman had as alleged a wide circulation at home and abroad; (b) that the words were written and published of the plaintiff in the way of his office; (c) that they bear, or are capable of bearing the meaning ascribed to them. They entered a plea of fair comment on a matter of public interest.

13 In an amended defence put in during the course of the trial, they added a plea of qualified privilege. Particulars were given in support of their allegation that the boat was a gift and these were:

(1) A Press release by Morris Silver and Associates Inc. of New York, U.S.A., a public relations firm retained by the St. Kitts/Nevis Tourist Board which was carried in a May 1981 issue of the Caribbean Reporter stating in relation to the Caribe Queen that the Caribbean Central American Action (CCAA) purchased the ship, refurbished it and then donated it to the State.

The plaintiff in his reply denied that Morris Silver and Associates Inc. is or was, at any material time his servant or agent or that the boat was a gift. I pause here to emphasize that the letter written by Peter Johnson the Executive Director of the CCAA dated May 27, 1981, advising the Editor of the Labour Spokesman that their published statement that the Caribe Queen was purchased by them and then donated to the Government of St. Kitts/Nevis was incorrect, is the letter which the plaintiff in paragraph 8 of his statement of claim stated was never published by way of retraction.

(2) A statement in the "Advocate" Newspaper of Barbados on November 20, 1980 that the people of New Orleans "will tomorrow present a dig ferry boat to the small Caribbean State of St. Kitts/Nevis".

(3) A Cave Hill University of the West Indies publication "The Bulletin of Eastern Caribbean Affairs" Vol. 6 No. 5 Nov/Dec 1980 at page 20, that an 85 ft diesel ferryboat was a gift of the people of New Orleans.

(4)...