By Linny Folau

A former Prime Minister, Feleti Sevele, (Lord Sevele) won his appeal against the dismissal of his defamation case against three defendants in a radio program back in 2022. 

The appeal was against a jury’s verdict dismissing his defamation case at the Supreme Court.

In a judgment on 20 November, in Nuku'alofa, the Appeal Court judges ordered the re-trial of the defamation case against three respondents. The first respondent, Kolio Tapueluelu, was a former police officer and commentator on a radio station called Kele’a Voice 91.5 FM; a second respondent, Kele’a Publication Ltd., owns and operates the radio station and a newspaper called Kele’a. The third respondent, Sione Ngalu, was a host of programs on the station.

The alleged defamation was on 18 October 2022, when Ngalu hosted a program on the station. During the program Mr. Tapueluelu made various statements about Mr. Sevele, who later claimed they were defamatory of him in the performance of his office as Prime Minister.

Sevele issued proceedings in the Supreme Court against Tapueluelu, the Kele’a, and Ngalu. The claim was then tried before Justice Cooper and a jury. Following 25 days of evidence and judicial directions the jury returned a verdict that Mr. Sevele’s claim was not proved against each defendant.

The judge dismissed Mr. Sevele’s claim without entering judgment for the defendants or ordering costs.

Sevele appealed, on the grounds that the jury’s verdict was perverse or unreasonable.

The court heard that the program, which was conducted in the Tongan language, included allegations concerning an alleged transaction concerning some gold, allegedly made while Sevele was Prime Minister.

Claim

The Appeal Court stated that Mr. Sevele pleaded that the words spoken by Mr. Tapueluelu amounted to accusations of corruption and theft committed by a Tongan Prime Minister, whilst in office and conveyed in their natural and ordinary meaning that he had committed a felony, an imprisonable offence.

“In particular, he pleaded that the words in their natural and ordinary meaning meant and were understood to mean that he was a cheat; obtained gold by a false pretense; falsely claimed that the gold was a fake; refused to return the gold to its owner; caused the arrest of the person who arranged for the gold to be brought to him; is evil, a liar, corrupt, untrustworthy and unreliable; and is a bad person against whom the police officers who worked with him will speak up.

“He then argued that Mr. Tapueluelu’s statements were defamatory of him by injuring his credit, character, reputation and business, held him up to hatred, ridicule and contempt, and caused him damage. He further pleaded that all three defendants were actuated by malice, and sought judgment for general damages of $130,000 and exemplary damages of $80,000.”

Meanwhile, Mr. Tapueluelu, who initially represented himself filed a brief notice of response essentially denying Mr. Sevele’s claim but expressly admitting some of the pleaded defamatory meanings, that was, that his words meant that Mr. Sevele obtained gold by a false pretence, falsely claimed that the gold was a fake, and refused to return the gold to the owner.

“He later filed an amended statement of defence with the benefit of legal representation. This document apparently withdrew his earlier admissions of some of the pleaded defamatory meanings but expressly pleaded the defence of justification or truth of his statements. 

“On the other hand, Kele’a’s defence was to the effect that the words were spoken without its knowledge or consent.”

Mr. Ngalu’s defence was that he did not participate in the publication of Mr. Tapueluelu’s statements. 

“In essence, he pleaded that Mr. Tapueluelu participated in the program for the express purpose of discussing the cancellation of the 2019 Pacific Games, which Tonga was to host, and the subsequent settlement of a dispute between the Tongan government and the interested sporting bodies in which Mr. Tapueluelu participated; that a fuller transcript shows that the interview was primarily devoted to this issue; and that Mr. Tapueluelu gratuitously deviated from the agreed subject matter to make the impugned statements about Mr. Sevele,” the Court stated.

Appeal allowed

The Appeal Court judges, after hearing the evidence, found that the Supreme Court judge did not ask the jury to answer all 11 questions.

“In fact, he directed the jury that if it answered Q1 by finding that the words spoken by Mr. Tapueluelu were not defamatory, then it need go no further and Mr. Sevele’s claim would fail.

"In any event, the trial miscarried. We accept that Mr. Sevele has not appealed on this specific ground. However, we are satisfied that the trial did indeed miscarry for a number of reasons. The perversity and uncertainty of the verdicts, and the nature and extent of the judge’s misdirections, to which we shall refer, were major contributors. Mr. Tapueluelu’s misconduct was another principal factor. We have already referred to some of its elements."

The Appeal Court found that Mr. Sevele’s appeal against the dismissal of his claim by the Supreme Court be allowed and the jury’s verdict set aside, with a new trial ordered on the terms that:

• that the jury is to be directed that the words spoken by Mr. Tapueluelu are defamatory of Mr. Sevele;
• the jury is to be directed that the defamatory words were published by Mr. Tapueluelu and Kele’a;
• the defence of qualified privilege is unavailable to any of the defendants;
• the defence of justification is to exclude any allegation that Mr Sevele arranged for the wrongful arrest of Mr Manu;
• Kele’a and Mr Ngalu are to replead their affirmative defences as directed above.

“We are confident that the judge who presides at the retrial will ensure that it is managed appropriately to avoid the repeated possibility of a miscarriage, and that evidence and argument is strictly limited to the issues which remain for the jury’s determination.”

The respondents were then ordered to pay Mr. Sevele one set of costs on appeal to be fixed by the Registrar together with reasonable disbursements. While, the costs in the Supreme Court, including the first trial are to be determined by the judge assigned to hear the re-trial.