Supreme Court
Action No. 272 of 1981
10th March, 1982
ALCANTARA, J.

Mr. Courtenay with Mr. G. Godfrey for the Plaintiff
Mr. D. Barrow for the Defendants

Tort - Defamation - Libel - Whether words defamatory: objective test, words given natural and ordinary meaning - Who has the burden of proof that the words are defamatory - Defence of fair comment - How is the defence of fair comment established - What factors are to be considered in determining quantum of damages in defamation cases.

J U D G M E N T

I would like to preface this judgment by referring to the Belize Constitution, Article 12 of which, referring to 'Protection of freedom of expression' reads:

"12(1) . . . . . . a person shall not be hindered in the enjoyment of his freedom of expression, including . . . . freedom to communicate ideas and information without interference (whether the communication be to the public generally or to any person or class of persons) . . . .

(2) Nothing contained in . . . . any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question makes reasonable provision -

(a) . . . . . . . . . . . . . . . . . . . .

(b) that is required for the purpose of protecting the reputations, rights and freedom of other persons . . . . ."

What this means is that a person can publish or re-publish anything provided that it is within the limits or parameters of the law of libel.

Now this is a claim for damages for libel arising out of a re-publication. The Plaintiff is claiming:

(1) Damages on the footing of aggravated and/or exemplary damages.

(2) An injunction to restrain the Defendants by himself or his servant or agent or otherwise however from the publication of the said words or any of them or of any similar words or any words to the like effect.

The first three paragraphs of the Statement of Claim read as follows:

"1. The Plaintiff is the Prime Minister of Belize and was formerly at all material times the Premier of Belize, Minister of Finance and a Member of the National Assembly.

2. The first named Defendant is the editor and the second named Defendant is the printer and publisher of a newspaper called 'The Reporter', which has a large circulation throughout Belize and abroad.

3. On or about the 24th May, 1981 the Defendants falsely and maliciously wrote, printed and published or caused to be written, printed and published on page 11 of the issue of the said newspaper dated the said 24th May, 1981, of and concerning the Plaintiff the words following, that is to say: -

MEXICAN MAGAZINE LINKS SUSPECTED DRUG
MERCHANT WITH BELIZE PREMIER PRICE

"A magazine report in the Mexican weekly PRESENCIA of May 15 links Mexican high flier Jorge Diaz Barrera with the Premier of Belize, Mr. George Price.

Barrera, who has acted as purchasing agent for Mexican diesel consigned to the Belize Electricity Board, is also suspected of conducting an illegal trade in Belize marijuana through a small air taxi service which he has for many years operated.

According to the PRESENCIA report Barrera started to make frequent trips to Belize about eight years ago in his light single-engine aircraft. He also makes the claim that he maintains business connection with the Premier of Belize, Mr. George Price and with high officials of the Belize Police Force.

In Progresso, Barrera entertains his friends and business partners regally aboard a posh yacht which he kept stocked with the finest ladies of easy virtue imported from the United States. In Merida he drives a Mercedes Benz car - bearing Government of Belize license plates.

In Merida Barrera operated an air taxi service known as Aerotaxis Bonanza. His company in Belize was known as Belize Air Cargo.

Mexican authorities are now investigating a report that Jorge Diaz Barrera was shot and killed last month in Houston."

The Defendant has admitted in his Defence paragraphs 1 and 2, and further admits that he wrote and published the words complained of.

The Plaintiff's case is that the words were defamatory in their ordinary meaning and further allege that in their ordinary meaning they meant and were understood to mean:

(a) That the Plaintiff is linked with the illegal drug trade.

(b) That the Plaintiff is involved in the business of drug trafficking.

(c) That the Plaintiff is a business associate of a person who is involved in the illegal trafficking of Belize marijuana.

(d) That the Plaintiff permitted himself to be entertained aboard a luxury yacht by a suspected drug trafficker who provided foreign prostitutes for entertainment.

The Defence denies that the words are capable of bearing the meanings alleged or that they were in any way defamatory. They also pleaded the defence of fair comment.

Counsel on both sides have referred me to a wealth of authorities. It is unnecessary for me to deal with all or even list them down. There are two cases on which I would like to comment.

First, Lawrence v Lightburn, the only case, up to now, ever dealt with by the Belize Court of Appeal (No. 4 of 1980), and secondly, Jagan v Burnham from the Guyana Court of Appeal (1973) 20 WIR 96. Both these cases deal in extenso with the correct approach to the issue libel or no libel, and quote from Lewis v Daily Telegraph (1964) A. C. 234. In that case Lord Devlin stated at pp.284-285:

"When an imputation is made in a general way, the ordinary man is not likely to distinguish between hints and allegations, suspicion and guilt. It is the broad effect that counts and it is no use submitting to a judge that he ought to dissect the statement before he submits it to the jury. But, if, on the other hand, the distinction clearly emerges from the words used it cannot be ignored."

Further at p.259, Lord Reid had this to add:

"Ordinary men and women have different temperaments and outlooks. Some are unusually suspicious and some are unusually naive. One must try to envisage people between the two extremes and see what is the most damaging meaning that they would put on the words in question."

The first issue before me is whether the words complained of are defamatory or not. In order to arrive at an answer three things must be borne in mind. The test is objective, the words must be given their natural and ordinary meaning and the burden of proof is on the Plaintiff.

It is well settled that the question whether words complained of are capable of conveying a defamatory meaning is a question of law, and is therefore one calling for the decision of the Court. If the words are so capable, then it is a question for the jury (or a judge sitting as a hypothetical jury) whether the words do in fact convey a defamatory meaning.

Applying the test set out in Lewis v Daily Telegraph, I would rule that the broad effect of the article complained of is defamatory, and capable of bearing all or any of the first three meaning alleged. Before the final address by Counsel for the Defence I ruled, at his request, that the article was not capable of bearing the meaning alleged in subparagraph (d). I would therefore leave meanings (a), (b) and (c) to the jury. I would direct the jury that the sting of the libel is contained in the statement which asserts that Barrera drives in Merida a Mercedes Benz bearing Government of Belize licence plates. That statement leads credence not only to the headlines but to the article as a whole confirming the connection between the Plaintiff and Barrera.

Now, I have to place myself in the position of a jury made up of reasonable men and women. Not the man in the Clapham omnibus in South London; not the man walking along Water Street in Georgetown, Guyana; but the man who crosses the Swing Bridge daily in Belize City. That is our reasonable man with all his virtues and all his faults.

I find that a Belizean jury would come to the conclusion that the words complained of in fact bear the meaning alleged in paragraph (c), that is 'that the Plaintiff is a business associate of a person who is involved in the illegal trafficking of Belize marijuana' but not the two other alleged meanings and would find for the Plaintiff. Consequently, I so find.

The second issue is the defence of fair comment. The Defendant in paragraph 5 of their Defence had pleaded:

"Further or in the alternative the Defendants state that the words complained of were a fair and bona fide comment upon a matter of public interest viz. the fact of allegations having been made in the Mexican Magazine 'Presencia' of May 15, 1981 that:

(a) Jorge Diaz Barrera, a person suspected of trafficking in drugs had claimed business connections with the Plaintiff, the highest Public Office holder in Belize.

(b) The said Jorge Diaz Barrera had driven in Mexico a Mercedes Benz motor car bearing licence plates of the Government of Belize, of which the Plaintiff was the head.

(c) The said Jorge Diaz Barrera was vice president of a Belizean company known as Belize Air Cargo.

And the said words were published by the Defendants without malice, and the publication thereof was for the public benefit."

I have already dealt with this issue during the course of the trial, when I ruled certain evidence inadmissible in support of this particular Defence. However, I shall deal with it again for the completion of the record. I will not devote much time to this particular Defence as I think it is a non-starter from the very beginning. Gatley on Libel and Slander 7th Edition at paragraph 704 has this to say:

"To succeed in a defence of fair comment, the words complained of must be shown to be:

1. Comment
2. Fair Comment
3. Fair Comment on some matter of public interest."

You do not consider (2) and/or (3) until (1) has first been established, and the definition of comment given in Gatley at paragraph 705 is the following:

"A comment is a statement of opinion on facts. A libellous statement of fact is not a comment or criticism on any thing. It is a comment to say that a certain act which a man has done is disgraceful or dishonourable; it is an allegation of fact to say that he did the act so criticised."

The article complained of is not a comment. It is a re-publication of a libel even although it is attributable to someone else. I would have withdrawn this defence from the jury, if there had been a jury. Consequently, I reject the same.

The third issue is damages. The issue of malice pleaded by the Plaintiff in anticipation of the defence does not arise. By alleging in paragraph 3 of the Statement of Claim that the words were published 'falsely and maliciously' they were alleging malice. However, malice is pleaded to seek aggravated damages.

The particulars of paragraphs 7 and 8 are pleaded in support of aggravated or exemplary damages. These are the particulars:

(a) The Plaintiff is a member and leader of the People's United Party. The Defendants are political opponents of the Plaintiff and the said People's United Party and published the said words in order to embarrass the Plaintiff and the said People's United Party and out of political motive.

(b) The Defendants refused to retract or apologize for the said libel after being requested by the Plaintiff so to do.

(c) The Defendants have before and since the publication of the said libel published other words derogatory of the Plaintiff.

(1) The Defendants wrote and published the said article for profit.

(2) The Defendants wrote and published the words complained of knowing them to be libelous of the Plaintiff or with a reckless disregard as to whether or not the said words were libellous of the Plaintiff or without proper inquiry as to whether or not the said words were libellous of the Plaintiff.

(3) The Defendants wrote and published the said words because of the prospect of material and/or political and/or economic advantage to themselves outweighed the prospects of material and/or economic loss or penalty.

Dealing with the particulars seriatim: There is no evidence that the article was written to embarrass the Plaintiff or the People's United Party. The fact that the Defendant belongs to another political party is not evidence of malice and I hope it never is. The article was defamatory of the Plaintiff, period.

It is quite true that the Defendant did not apologise and therefore mitigate whatever damages might be awarded. In fact, he is still unrepentant.

It is true that the Defendant has written other derogatory things of the Plaintiff, but it is also true that he has written a very public spirited article on the incidence of marijuana in Belize. Unfortunately, he spoilt it by being intemperate in his language.

It cannot be really said that the Defendant wrote this particular article for profit, when it was tucked away on the top left hand corner of page 11 of the newspaper.

On the evidence adduced, I refuse to draw the conclusion that the article was written for material, political or economic advantage. More evidence would be required to satisfy me on these points.

I have been referred to Jagan v Burnham (1973) 20 WIR 96 on the question of damages, and to the following quotations at page 107 -

"It would, therefore, be quite wrong to think that damages could be categorised within the confines of level of awards previously made in other cases as if those constituted precedents to be followed. No such limitation in law exists, for each case must be considered in the light of all its relevant factors prevailing circumstances, and without the impediments of inapplicable restraints. That is why in recognition of this freedom the law says that damages are to be 'at large' - judged on the merits and the impression and commonsense of the particular case, which should take into account its special features, that is, the heinous nature of the defamation, the position and standing of the person defamed, the resulting harm and hurt caused, the motivation behind the publication, the extent of the falsity and circumstances of aggravation, and the conduct of the defamers before action, after action, and in court during trial, etc."

I agree with the above statement as a general statement of the law, but I cannot agree, and this I say with some trepidation, with the next paragraph, wherein Chancellor Luckhoo in dealing specifically with cases where lesser award of damages have been given in the Caribbean, said:

"I have considered these cases and have taken into account the circumstances surrounding these cases along with their peculiarities. This case, however, concerns the person of the Prime Minister of this State. He is not a University Lecturer as in the case of Dr. L. Ramsaheye v. Taylor, nor is he the D.P.P. as is the case of Husbands v Barbados Advocate, nor the leader of a minor opposition party as in the case of D'Aguir v New Guiana Co. Ltd."

I agree with the statement of the law as set out in the judgment of Mr. Justice Crane at p. 131 where he states:

"It must not be forgotten that libel is essentially a wrong to a man's reputation. So on principle, it seems to me, in just the same way a man ought not to receive an award out of all proportion to a reputation he does not enjoy, he must not be refused an award for a reputation he clearly possesses . . . . .. Each case must be considered in accordance with its own facts and circumstances and a measure appropriate to the particular case."

But he then goes on to state -

"awarded in keeping with the well established principle - 'The bigger the man the bigger the libel' - and I should add, the bigger his quantum of damages."

With all due respect to Mr. Justice of Appeal Crane, I am not aware of such principle stated thus in any other reported case. In any case, I can only agree with it if he were to add, "provided the quantum is justified by the enormity of the libel and not just by the position in society the libelled person holds."

If the intention of the Court of Appeal of Guyana was to set a precedent that a Prime Minister is as of right entitled to be treated differently from any other citizen, I disagree. A Prime Minister of any State is primus inter pares not only amongst his Ministers constitutionally, but also primus inter pares with the rest of the population, but not apart.

If Jagan v Burnham is put forward for the proposition that a Prime Minister is entitled to more damages than any other person I do not agree. That might well be the law of Guyana, but I do not think that it is the law of England or the law of Belize. The Plaintiff's position and standing in society is a factor to be taken into account but not an overriding consideration.

It would appear that the case of Jagan v Burnham was brought to the attention of the Belize Court of Appeal in the case of Lawrence v Lightburn as Georges, J. A. at p. 10 had this to say:

"Finally the quantum of damages itself was attacked on the rather novel ground that it appeared out of line with awards in what could be termed comparable cases of political libels in Barbados and Guyana."

The Belize Court of Appeal did not fall into the temptation of dealing directly with Jagan v Burnham on the question of damages but disposed of it in the following words:

"In territories where there is a much greater commercial activity and newspapers have wider circulation larger sums may well be awarded."

It is for this reason that I have felt at liberty to give my own opinion on Jagan v Burnham.

I would withdraw from the jury the question of exemplary damages. They do not arise. I would, however, leave to them the question of aggravated damages on the ground that malice has been proved, directing them to the other derogatory statements published of the Plaintiff, including the unrepentant attitude taken by the Defendant as witnessed by the editorial published during the hearing of this Action, and the absence of an apology.

What damages would a jury properly directed award? Taking once more the reasonable man in Belize, that is the individual who crosses the Swing Bridge daily, I think that he would come to the conclusion that aggravated damages are not called for in this particular case. The jury would not feel justified in so doing in the absence of the Plaintiff not having gone into the witness-box. He is not bound to go, but as Gatley on Libel & Slander says at paragraph 921:

"A man who brings an action in defence of his reputation must be ready and willing to go into the witness-box and deny the charge made against him. If he fails to do so the jury may express their opinion by awarding him nominal or even contemptuous damages only - indeed, if the charge is serious the jury are justified in doing so."

But the jury would feel, notwithstanding the above quotation, that damages at large are called for.

I take everything into account including the direction of Mr. Justice Moe in Lightburn v Lawrence, which was approved by the Court of Appeal to the effect:

"I have considered all the circumstances of the case and took particularly into account the position and standing of the Plaintiff, that the incident in which it was imputed the Plaintiff was involved created a sensation in Belize City, the extent of circulation of the newspaper The Reporter, and the distress and suffering that the Plaintiff must have suffered as a result."

I am satisfied that the figure a Belizean jury would arrive at would be $5,000.00. They would feel that the libel is sufficiently serious to warrant such an award.

Accordingly, I give judgment for the Plaintiff against both Defendants in the sum of $5,000.00 and costs. In the circumstances of this particular case, I do not think there is any need for an injunction.

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