Supreme Court
Action No. 242 of 1983
7th June, 1984
Rajasingham, J.

Messrs. Pitts and Elrington, for the Plaintiff.
Messrs. Musa and Balderamos, for the Defendant.

Libel - Newspaper article in the Belize Sunday Times - Article alleging that Plaintiff, a man aged 68 years, had been arrested in a two million dollars marijuana haul - Plaintiff an upright man who had never been arrested in his life - Newspaper article defamatory per se - Defendants pleading article was published without actual malice or gross negligence but was published due to a bona fide error - What constitutes defence of bona fide error in defamatory publications.

J U D G M E N T

The Plaintiff's Action is for damages for a libel contained in the "Belize Sunday Times" of the 24th April, 1983 in an article entitled "Police Arrest 6 Men in $2 Million Marijuana Haul" and which was accompanied by a photograph of the Plaintiff.

The Plaintiff is a farmer aged 68 and has never been involved in anything the least bit dishonest in his life. He has only been to Court once before in his life to attend an inquest into the drowning death of his child. He says that people mentioned seeing the article purporting to report his arrest for possession of marijuana and ammunition. His daughter in the United States had also written to ask him about it. The article was "per se" defamatory of the Plaintiff. There was no evidence at all that anyone who knew the Plaintiff believed what the article said; his daughter and his friends asked him about it or merely mentioned seeing it.

The Defence admits publication of the article and pleads that the article was published without actual malice and without gross negligence. The pleadings do not disclose what facts are relied upon to support the lack of malice and gross negligence. It is desirable in cases such as this, in which the Defendants are saying that the article carried a bona fide error, that their pleadings should show their bona fides by accepting the "per se" defamatory effect of the article and setting out the circumstances that led to the error. The defence in this case does not even admit the defamatory effect of the article or that it embodies an error. Such evasiveness could reflect an insincerity in the apology.

The Defendant Hamid Musa gave evidence. He stated that he is the Manager and Finance Officer of the Belize Times Press Ltd. That position was accepted by Counsel for the Plaintiff when he amended his Statement of Claim by substituting "Manager" for "editor". Mr. Musa's evidence is that he received information from Orange Walk Police, by phone, of the arrest of six men for possession of marijuana and ammunition. He was given the names and when he asked for photographs, he was advised to try the Elections and Boundaries Commission. He went to the Elections and Boundaries Commission and gave someone there the six names and received four photographs of people known by those names. One of the photographs was that of the Plaintiff, Lynsford Dawson. Mr. Musa seems to have noted the name of the person arrested as Lynford Dawson and whoever found the photograph for him appears also to have failed to notice that the Plaintiff's first name has an "s" in it and is "Lynsford" and not "Lynford". Mr. Musa then took the photographs to the C.I.B. branch of the Police in Belize City, again on the advice of someone at the Police Station in Orange Walk. He showed it to someone at the C.I.B. Office in Belize City he took to be a Police Officer and that person told him they were the persons arrested. Mr. Musa then gave them to the editors and said the photos were correct and could be published.

After the paper was published on the 24th April, 1983, a man and woman came to Mr. Musa's office and protested about the picture saying Mr. Dawson was a sick man and could not be mixed up in anything like that. Mr. Musa then apologized to that couple and caused an apology to be published in the very next issue of the Belize Sunday Times. That apology was marked as "H.M.2". It is published on page 3 and carries a photograph of the Plaintiff. The accompanying article explains the error and offers an unqualified apology to the Plaintiff. Mr. Musa said he put the apology on page 3 because it was not as important as the news. That was a frank answer and, from the publishers' point of view, a reasonable conclusion.

This case produced two witnesses who gave their evidence well, and in my opinion, truthfully. This had made my task considerably easier. Mr. Dawson is the epitome of a law abiding and honest citizen. Mr. Musa took all such precautions as he possibly could to verify the truth of the information he received. The only negligence, if any, on his part was the failure to notice a possible error in the spelling of the name; but this could very easily have been an error he was unwittingly led into making by a mispronunciation of the name by the informant from Orange Walk. It could even be a printing error because it is being made even in the apology. There is absolutely no evidence of malice as the Plaintiff himself admits he has never had any dealings with the Belize Times and does not know anybody working there.

The Writ was filed three months after the publication of the apology. It is unfortunate that the Plaintiff did not confront the publishers of the Belize Sunday Times with his demand for compensation, for he may then have avoided the expenditure of this litigation.

I hold that I am satisfied that there was no malice and no gross negligence in the publication of the photograph of the Plaintiff along with an article reporting his arrest for possession of marijuana and ammunition. I further hold that the apology published was prompt and sufficient.

There is however, no denying that the Plaintiff was defamed even if it was entirely accidental. I accordingly award the Plaintiff a sum of $250.00 as damages. I give judgment for the Defendants. The Defendants will be entitled to costs of the Action incurred subsequent to the date of deposit of money in Court. The sum paid into Court by the Defendants shall not be paid out to the Plaintiff until the Defendants' claim for costs has been met.

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