Court of Appeal
Civil Appeal No. 7 of 1993
8th September, 1994
KENNETH ST. L. HENRY, P.
SIR LASCELLES ROBOTHAM, J.A.
PROFESSOR TELFORD GEORGES, J.A.

Mr. V. H. Courtenay, S.C. for Appellants
Mr. Michael Young for Respondent

Tort - Defamation - Libel - How is one to approach the construction of an Article to ascertain whether it is defamatory or not - Defence of Fair Comment - When is Defence established - Distinctions between a fact and a comment - Circumstances where an injunction prohibiting further publication of defamatory article will be granted.

J U D G M E N T

The First Appellant is the proprietor, publisher and printer and the Second Appellant is the editor of "The Belize Times" a newspaper having a wide circulation in Belize. The Respondent is and was at all material times Prime Minister, Minister of Finance and a member of the House of Representatives of Belize.

In an issue of The Belize Times dated March 12, 1989 the following article appeared on the front page:

"PM HOLDS $300,000 SHARES
SECRETS OF THE BARRACKS
BELIZE CITY
WEDNESDAY, MARCH 8, 1989

A tip from a highly placed and reliable source led to a startling revelation of further impropriety in the Esquivel Regime. On the 7th December of 1988, the Prime Minister of Belize, Rt. Hon. Dr. 'Beloved' Esquivel became major shareholder in Belize Hotels Development Ltd.. Documents filed in the Companies Registry in Belize City, show Manuel Esquivel as the owner of 30,000 shares in the Belize Hotel Development Ltd., valued at $10.00 each, an investment of $300,000. (See reproduction of record on page C1).

Belize Hotels Development Limited is a company owned mostly by Guatemalans and Americans. One of the shareholders in the company, however, comes from Colombia and another is a Panamian company.
THE BELIZE TIMES was unable to check the Colombian and the owners of this Panamian company. In recent times Colombia and Panama have been under pressure from the U.S. government because of alleged drug smuggling.

Belize Hotels Development Ltd. is one of the companies involved in building the new hotel at Newtown Barracks. This raises serious questions which Esquivel must answer in public. Where did Esquivel get all this money to buy the shares- Before becoming our Beloved Prime Minister, he was a school teacher. After being elected to office the UDP voted themselves a massive pay increase. Can Esquivel buy $300,000 worth of shares on his present salary as Beloved Prime Minister- Hardly.

Recently the Beloved Prime Minister advised the nation that the Government of Belize would invest one million dollars in the hotel project at the Barracks.

It is general knowledge that if Government had not agreed to this investment, the whole project would not have commenced. But the Prime Minister assured the nation at a press conference in late February 1989 that the Government had not yet bought any shares in the hotel and would not do so until all the other shares were subscribed. Yet according to the Registry records Prime Minister Esquivel bought $300,000 worth of shares in December 1988. Why is he lying-

For a long time now the PUP has been reporting that there is widespread corruption and irregularities in the Beloved regime. The Auditor General's report proves the truth of the PUP allegations. Now we call upon the Beloved Prime Minister to explain the records at the government's General Registry about Belize Hotel Development Limited.

What else does he own- How much do his Ministers own-"

The Respondent brought an action for libel against the Appellants in respect of this publication, alleging that in their natural and ordinary meaning the words in the article meant and were understood to mean:

"(a) That the Plaintiff is dishonest;
(b) That the Plaintiff is untruthful;
(c) That the Plaintiff is deceitful;
(d) That the Plaintiff has used his office as Prime Minister and Minister of Finance to dishonestly enrich himself;
(e) That the Prime Minister has used his office as Prime Minister and Minister of Finance to enrich himself in breach of the Public trust;
(f) That the Plaintiff has bought for his own benefit $300,000 worth of shares in Belize Hotels Development Limited."

On October 19, 1993 following the trial of this action the Respondent obtained judgment for $25,000 and an injunction restraining the Appellants from further publishing the libel. This is an appeal against that judgment.

The first ground of appeal argued is "that the learned judge erred in law in that he failed to interpret the full text of the offending article and extracted only portions thereof and took the same out of context".

In support of this ground it was argued (as it had been before the trial judge) that the article only required answers to certain questions and imposed on the Prime Minister as a public official a duty to supply answers to those questions and to make full disclosure by himself and his Ministers.

The trial judge dealt with this argument at p. 107. He said:

"In submitting a defence, learned counsel for the defendants undertook an analysis of the impugned article, paragraph by paragraph. He attempted to show that each paragraph contained words which were innocuous, and in no way libellous of the Plaintiff. All the article was doing, he submits, is to state facts which appeared contradictory, and then ask the Prime Minister as Head of Government, to explain away the inconsistencies. The fallacy of this argument becomes readily obvious. Where a libel is alleged, it is the broad impression conveyed by the writing that has to be considered, and not the meaning of each word or phrase under analysis. No separate part of an article should be isolated from its context in order to determine the meaning of the article. The court is concerned with the effect which the totality of the article will have on the minds of reasonable readers of the newspaper. In United Printers Ltd. v Bernard (1967) W.I.R. 269 Duffus P. of the Court of Appeal of Jamaica cited with approval dicta of Fox J. in the court below, where he said (pg. 273), 'To determine whether these statements of fact are defamatory of the plaintiff, it is not sufficient to examine each phrase of the article in isolation. The offending words must be read as a whole and considered in the entire context in which they appear. In making this consideration the words are not to be construed in their most innocent sense, but must be given the fair and natural meaning which would be given to them by reasonable persons of ordinary intelligence'. And in Jagan v Burnham (1973) 20 W.I.R. 96 Luckhoo C. of the Court of Appeal of Guyana stated at pg. 102, 'It is settled law that there must be added to the implication which a court is prepared to make as a matter of construction all such insinuations as could reasonably be read into them by the ordinary man, and so one must consider not what the words are, but what conclusion could be reasonably drawn from them. A man who issues a document is answerable not only for the terms of it, but also for the conclusion and meaning which persons will draw from and put upon it'. What conclusion and meaning would ordinary and reasonable readers of the Belize Times put upon the totality of the article which forms the subject of this complaint-"

He then proceeded to consider whether the article as a whole bore the defamatory meanings alleged by the plaintiff in the statement of claim and concluded that it did.

I see no merit in this ground of appeal.

The next ground of appeal is "that the findings of fact of the learned trial judge are unreasonable having regard to the nature of all the evidence; that is to say (a) that no allegation of fact appearing in the newspaper article complained of has been proven to be false, and (b) every material statement of fact therein has been proven to be true or admitted, and (c) that he failed properly to distinguish facts from comments and so to consider them."

In my view the following relevant allegations of fact appear in the article:

1. Manuel Esquivel is the owner of 30,000 shares in Belize Hotel Developments Limited.

2. Documents filed in the Companies Registry in Belize show this.

3. At a press conference in February 1989 the Prime Minister said that Government had not bought any shares in the hotel and would not do so until all the other shares were subscribed.

4. After being elected to office the U.D.P. voted themselves a massive pay increase.

5. There is widespread corruption and irregularities in the Esquivel regime. Among the inferences sought to be drawn from these facts are:

   A. The 30,000 shares were paid for by Mr. Esquivel.
   B. Ownership of these shares constitutes a further impropriety in the Esquivel regime.

Fact 1 is on the face of it true and fact 2 would also on the face of it be true but the issue is somewhat clouded because the "record on page C1' referred to in the article is not a true reproduction of the Return of Allotments made under the Companies Act inasmuch as it introduces a potentially misleading heading "ESQUIVEL BUYS HOTEL SHARES". As regards fact 3, the evidence is that at a press conference on February 13, 1989 the Respondent was asked, "Is it true Sir, that there is a difference with the Government and the Ramada Reef, in the sense that they want you to allocate this million dollars immediately and you are delaying it until the project expands a little sir-' to which he replied, "No. The agreement that we have with that hotel development is that there are a number of shareholders, the Government of Belize being one of them, and we are simply saying to them that when all the shares are paid up, the Government will pay up its shares. That is, we are to be the last to pay up". Fact 3 is not therefore true. Fact 4 is not true since they pay increase voted was a modest one. No evidence was led to substantiate fact 5.

That the shares were paid for by Mr. Esquivel and that the necessary funds could only have been obtained by dubious means are to my mind inferences drawn or sought to be drawn from the "fact" of ownership. As such they are properly classified as comment rather than fact (vide Gatley on Libel and Slander 8th Edition paragraph 699). But the juxtaposition in the article of the statement "Yet according to the Registry records Prime Minister Esquivel bought $300,000 worth of shares in December 1988" to the statement "But the Prime Minister assured the nation .. that the Government had not yet bought any shares and the resulting question asked "Why is he lying-" make it clear that the author of the article believed that the shares were bought by Government, not by Mr. Esquivel personally, and that Mr. Esquivel was lying when, according to the article, he denied that Government had bought shares. The comment that the shares were paid for by Mr. Esquivel was not therefore the honest expression of the author's opinion and could not therefore be "fair comment". For the same reason the inferences that he obtained the money by dubious means and that ownership of the shares constituted a further impropriety are not honest expressions of the author's opinion and could not be "fair comment".

For these reasons this ground of appeal also fails.

The next ground of appeal is "that the learned trial judge wrongly found: (a) as mis-statements of fact the matters set out on page 117 of the record (lines 8 - 13); (b) that the first named Appellant said that the Respondent did not buy the shares on behalf of the Government or out of its funds - page 110 lines 13 - 14; and (c) that this allotment was made in the name of the Respondent for and on behalf of the Government of Belize - page 117 lines 4 - 6".

At lines 8 - 13 of page 117 the judge found:

"It stands to reason therefore that the statements appearing in the article to the effect that the plaintiff bought 30,000 shares in the company, or that he owns these shares outrightly, or the inference that he got the money from some nebulous source to purchase the shares, or that he used Government funds to unjustly enrich himself, are all mis-statements of fact."

In so far as he regarded inferences as statements of fact this would, as I have previously indicated, conflict with the statement at paragraph 699 of Gatley on Libel and Slander 8th Edition but does not invalidate his ultimate finding.

In my view the judge erred when he found at page 110 that the article suggested that the First Respondent had not bought the shares on behalf of the Government, but this error does not assist the Appellants because, as I have earlier indicated, the suggestion made in the article defeats the defence of fair comment.

As regards the judge's finding at page 117 lines 4 - 6 that the evidence shows that the allotment of 30,000 shares "was made in the name of the plaintiff Manuel Esquivel for and on behalf of the Government of Belize" there was in fact evidence to this effect in the minutes of a meeting of directors of Belize Hotel Developments Limited on Wednesday, 7th. December 1988. Those minutes record the following resolution:

"It was resolved in accordance with the agreement by the Government of Belize to subscribe 100,000 ordinary shares in the Company and pending the signing by or on behalf of the Government of a formal commitment letter and in the light of the payment by the Government of the sum of Bze. $300,000 representing a down payment of 30%, that 30,000 ordinary shares in the capital of the company of Bze. $10 each, numbered 75,997 to 105,996 inclusive be allotted to the Right Honourable Dr. Manuel Esquivel, Prime Minister of Belize to be held in trust for the Government of Belize." This ground of appeal therefore fails.

The next ground of appeal is "that the learned trial judge wrongly found that the Appellants imputed of the Respondent untruthfulness (p. 108 lines 10-12), dishonesty (p. 110 line 25), dishonest enrichment (p. 110 line 26); and deceitfulness (p. 110 line 30-32)".

In so far as the question of untruthfulness is concerned I can do no better than repeat the judge's finding:

"Untruth is a synonym for lie. In the article the defendants, after mentioning certain circumstances which they print as controversial facts, ask the question, "Why is he lying-". By he, they refer to the plaintiff. By asking this question, any reasonable reader would assume that the words preceding this question proved conclusively that the plaintiff was lying, and the only question that remains now is, why- To publish that a person is a liar is undoubtedly to cast averse imputations upon his character. I have no difficulty in finding that the article did in fact impute untruthfulness to the Plaintiff, and thus defamed him."

The imputations of dishonestly and dishonest enrichment are apparent from the suggestions of widespread corruption and irregularities, voting of massive pay increases and the purchase of shares in circumstances where the source of funds to pay for them was not apparent.

As regards deceitfulness the judge found:

"According to the Pocket Oxford Dictionary, to be deceitful means to conceal the truth in order to mislead. By suggesting that the plaintiff is lying, in concealing his source of funds, and deceiving the public as to the ownership of the shares, the article is certainly capable of that construction."

I can see no reason to interfere with those findings. This ground of appeal also fails.

The next ground of appeal is "that in assessing damages the learned trial judge erroneously took into account evidence of matters not in issue - page 126 lines 27-30".

In support of this ground counsel for the Appellants submitted - and counsel for the Respondent conceded - that the judge erred in saying that the article suggested corruption by the Prime Minister after his term of office expired. I do not, however, consider that this error by the judge should result in a reduction of the amount he awarded for damages.

The last ground of appeal is "that in granting an injunction the learned trial judge erroneously took into account matters which are inaccurate - Page 127 lines 17-24". Counsel for the Appellants stated that, contrary to what is stated in the judge's written judgment, no undertaking had been given that no further publication of the libel would be made pending the trial of the action. It seems to me that, whether or not such an undertaking had been given, the persistent publication of the libel by the Appellants both up to and indeed after the date of trial of the action would have justified the judge's order for an injunction.

I would dismiss the appeal with costs to the Respondent to be agreed or taxed and affirm the judgment below.

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