Supreme Court
Action No. 270 of 1981
6th April, 1982
Alcantara, J.

Mr. Courtenay with Mr. Glenn D. Godfrey, for the Plaintiff.
Mr. Denys Barrow, for the Defendants.

Libel - Defendants publishing newspaper article allegedly linking Plaintiff to international drug trafficking - Whether newspaper article defamatory - How words in article are to be construed - Words to be given their natural and ordinary meaning - Defendants raising defences of fair comment and qualified privilege - Requirement for Defendants to give particulars stating statements of facts and matters relied on in support of the allegation that words in article were true - Order 82 Rule 3(2) of the English Rules of the Supreme Court - Meaning of public interest - Elements of the defences of fair comment and qualified privileges - Court finding evidence of express malice- Assessment of Damages - Plaintiff seeking exemplary and/or aggravated damages - Defendants failing to apologize - Mitigation of Damages - Effect of section 9 of the Libel and Defamation Ordinance on the quantum of damages.

J U D G M E N T

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

The first named Defendant is the editor and publisher. The Defendant makes no admission as to the second named Defendant being the printer of the newspaper called "Amandala".

The Plaintiff alleges that the Defendants wrote and published an article which was defamatory of him. The article is set out in Paragraph 3 of the Statement of Claim. For the sake of brevity I shall reproduce only such part of the article as refer to the Plaintiff, either directly or indirectly, but it must be borne in mind that the article must be read as a whole.

"Mex Magazine Says Dead (?) NARCOTICS
TRAFFICER (sic) CONNECTED TO BELIZE PREMIER

Today's issue of the Mexican Magazine PRESENCIA links a Mexican drug trafficer (sic) reportedly shot in Houston, Texas to Belize Premier George Price.

Jorge Diaz Barrera was Vice President of the Belize Air Cargo Co., and in Merida used an elegant Mercedes-Benz with Belize diplomatic license plates which 'shows the direct connection with Premier George Price and links with him in different special businesses'.

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. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Diaz Barrera boasted to his friends in Merida that the Belize Air Cargo Co. was the property of George Cadle Price, Prime Minister of Belize. Functionaries of the police and persons connected to the media, coincide in affirming that Jorge Diaz Barrera, and associates, are only a link in the chain of international drug traffic of South America and U.S.A. It is often repeated that Belize continues to be a refuge for 'contrabandistas' and gangsters of all kinds. The government of George Price has accused the opposition of being financed by the American Mafia.

Nevertheless, George Price himself has business in foreign countries but appears at home to be upright and pure. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..".

The Plaintiff alleged that by the said words in their natural and ordinary meaning the Defendants meant and were understood to mean:

(a) That the Plaintiff is involved in international drug trafficking.

(b) That the Plaintiff is an associate of a person who is involved in international drug trafficking.

(c) That there is evidence which links the Plaintiff with illegal activities.

(d) That the Plaintiff is the owner of an airline company which is connected with drug trafficking.

(e) That the Plaintiff permitted the unlawful use of Belize diplomatic license plates by a drug trafficker in Mexico.

(f) That the Plaintiff has permitted smugglers and gangsters of all kinds to use Belize as a refuge and haven.

(g) That the Plaintiff and a person connected with the traffic of narcotics are together involved in various unlawful enterprises.

(h) That the Plaintiff deceitfully pretends in Belize to be upright and pure while corruptly maintaining illegal businesses abroad.

The Defence denies that the words are capable of bearing the meanings alleged or that they were in any way defamatory. They have also pleaded the defense of fair comment in its rolled-up version. Paragraph 4 of the Defense is drafted thus:

"4. In so far as the said words consist of allegations of facts. They are true in substance and in fact; in so far as they consist of expressions of opinions, they are fair comment made in good faith and without malice upon the said facts, which are matters of public interest."

Pursuant to Order 82 Rule 3(2) of the English Rules of the Supreme Court, which is applicable to the Supreme Court of Belize, the Defendants must give particulars stating:

(1) which of the words complained of are alleged to be statements of facts; and

(2) the facts and matters relied on in support of the allegation that the words are true.

The defense purports to comply with this rule by giving the following particulars as to (1) :--

"Today's issues of the Mexican Magazine PRESENCIA links a Mexican drug trafficker (sic) reportedly shot in Houston, Texas to Belize Premier George Price.

Jorge Diaz Barrera was Vice President of the Belize Air Cargo Co., and in Merida used an elegant Mercedes-Benz with Belize diplomatic licence plates".

And the following facts and matters in support of the allegation that the said words are true:--

(a) The said issue of the said magazine referred to did in fact link a Mexican drug trafficker to Belize's Premier George Price.

(b) Jorge Diaz Barrera was in fact Vice-President of the Belize Air Cargo Co.

(c) In Merida he used an elegant Mercedes-Benz.

(d) The said Mercedes-Benz bore Belize diplomatic licence plates.

The Defence is further relying on defense of qualified privilege. At paragraph 4A of the Defence this is what they have to say:

"4A. The occasion of publication was an occasion of qualified privilege."

And in the Particulars given, paragraph 5 is of special interest. It states:

"(5) In the premises the Defendant Evan Hyde, as editor and publisher of a local newspaper, was under a moral duty to publish the said words to the general public and the general public had a like duty and/or interest to receive them."

It is obvious that the Defence is relying on moral duty. On the pleadings there are five main issues for the Court to decide:

A. Are the words complained of defamatory of the Plaintiff?

B. If so, can the Defendants avoid liability by their defence of fair comment as pleaded?

C. Even if so, can the Defendants rely on the defence of qualified privilege?

D. If not, what damages is the Plaintiff entitled to?

E. Is Cream Ltd. a proper party before the Court?

Dealing with the last issue first I would like to state that in their pleadings the Defence have traversed that the second Defendant was the printer. They have not admitted it. I think there is a shade of difference between a denial and a non-admission. However, suffice to say that it is for the Plaintiff to prove an issue which is not admitted. The Plaintiff purported to discharge this burden by calling as a witness the Secretary of the Company. At the end of his examination-in-chief there was evidence to support this allegation. However this evidence was nullified in cross-examination when the witness stated that according to the particulars required by law (the Newspaper Ordinance) the printer of the "Amandala" is Evan Hyde. The Plaintiff next sought to prove the point by getting the Defendant to admit in the witness box that Cream Ltd. was in fact the printer. The Defendant has made no admission and the newspaper produced dated 12th March, 1982 certainly discredits his evidence but does not prove that the printer of the "Amandala" is Cream Ltd.

On the basis that he who alleges must prove I am not satisfied that the Plaintiff has discharged his onus of satisfying the Court that Cream Ltd. was or is the printer.

Now I turn to the first issue A, libel or no libel. I have set out in a previous decision of this Court (No. 272 of 1981) concerning a libel action by the same Plaintiff against another newspaper which also made use of the article in the PRESENCIA Magazine, the approach to this issue. It must be a commonsense one. I direct my mind to the case of Lewis v Daily Telegraph (1964) A.C. 234 as to the test to be applied. The question to be answered is whether in their natural and ordinary meaning the words complained of were defamatory in themselves or were capable of bearing all or any of the meanings alleged by the Plaintiff. This is a question of the law for me to decide.

Then there is a question of fact as to whether a jury of reasonable men and women would find that the words complained of in their natural and ordinary meaning bear any or all the meanings alleged.

I find as a matter of law that the meanings alleged in paragraph (b), (d), (e) and (g) are capable of being sustained. I find that the sting of the libel is contained in the second paragraph of the article complained of and in the assertion in the said article that the Plaintiff is the owner of the Belize Air Cargo, and would so direct a jury. I find that a Belize jury would come to the conclusion that the words complained of in fact do bear all the four meanings alleged, to wit:

(b) That the Plaintiff is an associate of a person who is involved in international drug trafficking.

(d) That the Plaintiff is the owner of an airline company which is connected with drug trafficking.

(e) That the Plaintiff permitted the unlawful use of Belize diplomatic licence plates by a drug trafficker.

(g) That the Plaintiff and a person connected with the traffic of narcotics are together involved in various unlawful enterprises.

Consequently I so find.

The Defendant has informed the Court that they are withdrawing the defence of fair comment. As this was done at the eleventh hour (at the close of the case for the Defence but before the addresses) I think I should deal with the purely legal, and in this case academic, aspect of this Defence. I do this not withstanding that I have heard no legal argument on this point except in the opening addresses by Counsel for the Plaintiff and Defendants. But it appears to me that it might not be amiss if I were to give my views.

A good starting point is paragraph 751 of Gatley on Libel and Slander, 7th Edition:

" The rolled-up pleas raises two distinct issues, Viz: (1) the truth of the statements of fact, and (2) the fairness of the comment, and the parties are entitled to have these two issues submitted separately to the jury with a proper and adequate direction."

And at paragraph 717:

"At the trial it was accordingly incumbent on the Defendant to prove: (1) that each and every statement of fact in the words complained of was true; and (2) that the comment on the facts so proved was bona fide and fair comment on a matter of public interest. On these pleadings, if the Defendant failed to prove the truth of any of the statements of fact, he necessarily failed in his defence."

On my reading of the article complained of I find as a matter of law that the following are statements of facts:

1. That drug trafficker Diaz Barrera is connected with the Plaintiff, not only directly but in different special business.

2. That Diaz Barrera uses in Merida a car with Belize diplomatic licence plates.

3. That Belize Air Cargo Co. is the property of the Plaintiff.

4. That the Plaintiff has business in foreign countries.

These facts the Defence must prove before they can be heard to say that the comments on those facts are fair. I find that the particulars given by the Defendants to base their pleas of fair comment were insufficient. The insufficiency was really to their detriment in the sense that they cannot adduce evidence on facts other than those pleaded. On the other hand they have to prove the veracity of all the statement of facts which are apparent on the article regardless of whether they admit or not that they are statement of facts.

As this Defence is no longer relied on there is no need to make any findings.

Directing my mind to the defence of qualified privilege, I would like to refer to Halsbury's Laws of England Vol. 24 p.54 where the matter is treated thus: --

"On grounds of public policy or the general welfare of society, the law affords protection on certain occasions to persons who, acting in good faith and without indirect or improper motive, make statements about another which are in fact untrue and defamatory. Such occasions are called occasion of qualified privilege."

And at p.56:--

"An occasion is privileged where the person who makes a communication has an interest or a duty, legal, social or moral, to make it to the person whom it is made, and the person to whom it is so made has a corresponding interest or duty to receive it."

What is this moral duty, which the Defendant say he can rely on? There is no moral duty to repeat falsehoods from abroad. There is no moral duty to pillory a person without justification. There is no moral duty to repeat what a cheap foreign magazine has to say about your Premier. If the defamatory article has been based on, say, a United Nations Journal, a publication from the Organization of American States, a report of standings in a foreign court, or some such similar source, then I can understand the moral duty.

It has been pressed on me that the publication complained of was in the public interest. I must make it quite clear that public interest in the context of qualified privilege means pro bono publico not in the interest of a sector or the public who enjoy reading a person being vilified.

On reading the libel in the PRESENCIA the reaction of the Editor of this newspaper was to reprint part of it without checking its accuracy. My reaction as a very temporary 'Naturalized' Belizean (though not necessarily as a judge) might well have been somewhat different. I would be prepared to uphold the right of any of my fellow citizens to criticize my country, to derogate its institutions and to fustigate my representatives whenever an occasion arises. On the other hand, I would deny such right to, and condemn, any interfering outsider or any foreign do-gooder from belittling my country, my institutions and/or my elected leader (whomever he might be). 'Sassenachs' should put their own houses in order first.

The Defence whose duty it is to satisfy me that the occasion was privileged has referred me to a quotation by Mr. Justice Pearson in the case of Webb v Publishing Co. Ltd. (1960) 2 Q.B 537 which reads:

"The full liberty of public writers to comment on the conduct and motives of public men has only recently been recognized. Comments on government, on ministers and officers of state, on members of both houses of parliament, on judges and other public functionaries, are now made every day… Yet who can doubt that the public are gainers by the change, and that, though injustice may often be done, and though public men may often smart under the keen sense of wrong infliction by hostile criticism, the nation profits by public opinion being thus freely brought to bear in the discharge of public duties?"

This quotation is dealing with the meaning of public interest and is not to be taken as a carte blanche to libel anyone. In fact the case merely decided that a report of foreign judicial proceedings may in circumstances be privileged. Mr. Justice Pearson would have been astounded to learn that his obiter was going to be put forward to support the proposition that the reproduction of an unconfirmed report in another newspaper can be privileged.

I find that the article complained of was not protected by the defence of qualified privilege. In any case I would say that even if, by any stretch of the imagination, it could be said that there was a moral duty to publish, then I find that the Defence fails as I am satisfied that there is evidence of express malice. I shall deal with the question of damages.

Finally, I come to the question of damages. The Plaintiff is seeking exemplary and/or aggravated damages. For the reasons stated in Price v Lawrence (No. 272 of 1981) I would withdraw the issue of exemplary damages from the jury. In support of aggravated damages, the Plaintiff has given particulars and so has the Defendant in mitigation of damages. I find as a fact that the Defendant has written other derogatory things of the Plaintiff.

I also find that his Defence has been such as to evidence his malice towards the Plaintiff, in trying to prove the unprovable. There not only has been the absence of an apology but on his pleadings he continued to maintain up to very near the end of the case that what he published was true (fair comment). His editorial of the 5th March, 1982 is most damaging to him. So are certain insinuations made in the witness box by the Defendant even although under cross-examination? Similarly, his avowed purpose of having a court hearing.

Further, in mitigation, Counsel for the Defence has brought to the Court's attention section 9 of the Libel and Defamation Ordinance, which reads:

"At the trial of an action for a libel contained in any newspaper the Defendant shall be at liberty to give in evidence in mitigation of damages that the Plaintiff has already recovered (or has brought action for) damages or has received or agreed to receive compensation in respect of a libel or libels to the same purport or effect as the libel for which such action has been brought."

This section is similar to section 12 of the Defamation Act, 1952. Lord Reid in Lewis v Daily Telegraph (1964) A.C. at p.261 deals with how a jury should arrive at the correct figure. He says:

" They must do the best they can to ensure that the sum which they award will fully compensate the Plaintiffs for the damage caused by the libel with which they are concerned, but will not take into account that part of the total damage suffered by the Plaintiffs which ought to enter into the other jury's assessment."

In the case before me the Defence has adduced evidence that in a previous case the Court awarded $5000 damages. There is another Action pending. The sum to be awarded in that other Action may be the same, a lesser sum or a much higher one. Taking all those factors into consideration, what would they award in the present case taking into account that the Plaintiff should not be compensated twice or thrice for the same loss?

In view of the manner in which the Defence has been conducted I am doubtful as to whether the quotation in Gatley on Libel and Slander about the consequence of the Plaintiff not giving evidence is really applicable, in the sense of inhibiting the jury from awarding aggravated damages. Although the Defendant did not invent the original libel he readily adopted it. He has been unable to cast even a shadow of doubt on the integrity of the Plaintiff.

The ordinary and reasonable man or woman would feel quite justified in awarding damages commensurate not only with the libel but also with the manner in which the Defendant has conducted himself. I am satisfied that a properly directed jury would make an award of $10,000, even taking into account the provisions of section 9 of the Libel and Defamation Ordinance.

I am satisfied that in this case an injunction is more that justified in the terms the Plaintiff is seeking, but more specific. An injunction will be granted in the following terms:

"That apart from a fair and accurate report of these proceedings and the result in a single issue of the "Amandala", the Defendant Evan Hyde does not either by himself, his servants or agents write and/or publish anything in connection with the words complained of or in connection with the article in the magazine or in connection with the present proceedings which either or indirectly refers or reflects on the Plaintiff, until further order."

I enter judgment for the Plaintiff in the sum of $10,000 together with an injunction in the terms already stated against the first Defendant. First Defendant to pay the costs.

I dismiss the Action against the second Defendant with costs, payable by the Plaintiff.

In the course of these proceedings my attention was called to the taking of notes of evidence. I want to clarify this point for the future. Judge's notes of evidence are as comprehensive and extensive as possible, but they are not a verbatim record of either questions and answers or of all answers. Sometimes the same question is answered more than once; sometimes a previous answer is conclusive on a point. Counsel has to rely on a judge who through experience knows what should not be left out. If the parties require a full transcript of all the evidence then arrangements should be made for the attendance of shorthand writers. What Counsel wanted me to take down had already been recorded in a generic form and it was unnecessary to record it in detail. I however acceded to his request, as he gave an indication about the possibility of an appeal in this case.

This brings me to another point. I want to make it clear that a notice of appeal does not suspend the injunction ordered in this case.

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