Osadebay v Solomon et Al

JurisdictionBahamas
CourtSupreme Court
JudgeDaCosta, C.J.
Judgment Date26 Aug 1981
Docket NumberCommon Law Side No. 803 of 1979

Supreme Court

DaCosta, C.J.

Common Law Side No. 803 of 1979

Osadebay
and
Solomon et al
Appearances

Mr. Samuel E. Campbell for plaintiff

Mr. Keith M. Duncombe for 1st defendant

Miss Jeanne I. Thompson for 2nd & 3rd defendant.

Damages - Damages — Libel — Newspaper article — Quantum.

DaCosta, C.J.
1

In this action the plaintiff claims damages for a libel published on page 2 of the issue of the Nassau Guardian dated September 29, 1979 under the heading “The Price of Justice? Eternal Vigilance!” The plaintiff at the material time was a Stipendiary and Circuit Magistrate, tend at the time of the publication referred to above was adjudicating on criminal matters including offences against the Dangerous Drugs Act.

2

The 1st defendant was at all material times a columnist for the 3rd defendant. The 2nd named defendant was and is at all material times the editor of the 3rd named defendants and the 3rd named defendant was the proprietor, publisher and printer of the Nassau Guardian.

3

This is a relatively simple but important case. It is important because we are here concerned with the exercise of one of the fundamental freedoms — freedom of expression — which is now enshrined in Article 23 of the Constitution of the Commonwealth of The Bahamas. It embraces the right to discuss and criticize the utterances and conduct of men in public life. But, as the-definition in Article 23 shows, freedom of expression, 7 like other fundamental freedoms, is not an unfettered right and must he exercised according to law. As Diplock, J. (as he then was) said in his summing-up to a jury:

“Freedom of speech, like the other fundamental freedoms, is freedom under the law, and over the years the law has maintained a balance between, on the one hand, the right of the individual, …………whether he is in public life or not, to his unsullied reputation if he deserves it, and on the other hand, but equally important, the right of the public, which means you and me, and the newspaper editor and the man who, but for the present bus strike, would be on the Clapham omnibus, to express their views honestly and fearlessly on matters of public interest, even though that involves strong criticism of the conduct of public people.”

5

In Ambard v. Attorney-General of Trinidad & Tabago (1936) App. Cas. 322 at p. 335, Lord Atkin laid down the principle as regards those concerned with the administration of justice in words that might have since been marched but never surpassed for dignity and clarity:

“But whether the authority and position of an individual judge, is concerned, no wrong is committed by any member of the public who exercise the ordinary right of criticising, in good faith, in private or public, the public act done in the justice. The path of criticism is a public way: the wrong headed are permitted to err therein: provided that members of the public abstain from imputing improper motives to those taking part in the administration of justice, and genuinely exercising a right criticism, and not acting in malice or attempting to impair the administration of justice, they are immune. Justice is not a cloistered virtue: she must be allowed to suffer the scrutiny and respectful, even though outspoken, comments or ordinary men.”

6

In the case the words complained of are as follows:–

“………There is another aspect of this grisly business of illegal drugs, illegal entries, illegal firearms, illegal ammunition (a lot of illegalities you must admit) which disturbs me.

First of all, I am disturbed that 11 non-Bahamians accused of the above crimes have been set free on bail which averages out at $1,000 per head. I recall a recent occasion when a friend of mine was accused of a crime far less heinous. I cosponsored a bond to set him free on bail which was set at $50,000. You might quickly say that different magistrates have different ideas about these things, and I agree. But, you see, in these cases the magistrate was one and the same.

I am more disturbed by the fact that allegedly not one of these accused non-Bahamians was requested to surrender his/her passport to the police. And my prediction is that when the day for the trial comes to pass, not one of these accused will any longer be in the Bahamas to answer the changes.

The net result if this goes that way? The Treasury will be richer by $11,000. The morality of the Commonwealth of the Bahamas in its endeavours to ensure that justice is not only done but seen to be done will be poorer by an amount in excess of the number of zeroes I can fit onto one of these lines. Under similar circumstances it would be exceedingly difficult if not impossible for a Bahamian to flee it all. But as I pointed out, all of us are equal but some are more equal than others. And in the context of today's Bahamian Society those who pay their dues to the Club are always more equal than those who do not…. If you get caught with a couple of joints you might go to jail…. people have. But if you get caught with 500 pounds of the stuff you probably have enough to buy your freedom.”

7

Further, on the 6th day of October 1979, the defendants printed and published a purported apology in the following words:–

“It has been brought to my attention that certain unpleasant and perhaps libelous inferences may be drawn from my article in your newspaper edition of September 29, 1979…..It has always been my firm conviction — and still is — that the judiciary in the Bahamas is more free from political manipulation that perhaps any other country in the world, save the United Kingdom.”

8

By his Statement of Claim the plaintiff alleges that the words mentioned in the article and the purported apology were defamatory and that they meant that the plaintiff was a member of the “Square Deal Club”, that he was influenced by improper considerations in the course of administering of justice, that persons with considerable financial means even though guilty of a crime could buy their freedom, that the judiciary of the said Commonwealth, manipulation, and therefore unworthy of holding such office of Stipendiary and Circuit magistrate.

9

The defendants in their defence admit the printing and publishing of the article, but they deny that the words have any of the defamatory meanings pleaded by the plaintiff and they say that the words are “fair comment” made without malice upon a matter of public interests, namely, the administration of justice in the Bahama Islands and in particular the granting of bail to non-Bahamian persons accused of drug related offences and who failed to return to the Bahamas to stand trial.

10

The particulars of the facts on which the words are claimed to be “fair comment” are as follows:–

“The 11 persons charged before the Magistrate's Court on various charges including possession of ammunition and possession of an unlicensed revolver contrary to the provisions of the Firearms Act, 1959 and possession of dangerous drugs contrary to the provisions of the Dangerous Drugs Act, chapter 223, and who lacked community ties, have been granted cash bail in varying amounts which average $1,000 per person without surety and without imposing any conditions designed to secure the appearance of the accused persons for trial.”

11

The law relating to libel is one marled by a number of technicalities which can only be explained by reference to its history. In this case, sitting as judge and jury, I deal only with the aspects of the law which are relevant to the issues before me.

12

Defamation has been defined as the publication of a statement which tends to lower a person in the estimation of right-thinking members of society generally; or which tends to make them shun or avoid that person. Another definition of defamation and one adopted by many writers is this: “the publication of a statement which tends to bring a person ‘into hatred, contempt or ridicule’ “. But as Winifield points out this definition is not exact, for a statement may possibly be defamatory even id it does not excite in reasonable people feelings quite so strong as hatred, contempt or ridicule and this definition is deficient in omitting any reference to “tending to shun or avoid”. (See Winfield & Jolowlez on Torts, 10th edition, p. 240).

13

In every case where the plaintiff sues for libel he must prove that the words are defamatory, that they refer to the plaintiff and that they must have been “maliciously publishes”. So far as the element of malice is concerned, although the word is usually inserted in the plaintiff's statement of claim it is a purely formal allegation and no one takes any notice of it at a trial except for the purpose of inflating damages where there has been spite or deliberateness. The test as to whether a publication is capable of a defamatory meaning was authoritatively laid down by Lord Selbourne in Capital and Countries Bank v. Henty (1882) A.C. at p. 745:

“The test, according to the authorities, is, whether under the circumstances in which the writing was published, reasonable man, to whom the publication was made, would be likely to understand it in a libelous sense.”

14

It is now well settled that the intention of anyone who publishes a libel is completely irrelevant and, further as Diplock, L.J. observed in Slim v. Daily Telegraph Ltd. (1968) 2 Q.B. 157 at 172, in ascertaining the “natural and ordinary meaning” of words for the purpose of the law of libel, “one can start by saying that the meaning intented to be conveyed by the publisher of the words is irrelevant”. “However evil the imputation upon the plaintiff's character of conduct he intended to communicate, it does not matter if, in the opinion of the plaintiff's charater or conduct the publisher of the words intended to communicate, it does not matter if, in the opinion of adjundcator upon the meaning...

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