Defamation lawsuit: Indian Chamber ordered to pay B$950,000 in damages

|     Hakim Hayat     |

THE High Court yesterday ordered a total of B$950,000 in damages to be paid to prominent businessmen Ramesh Jiwatram Bhawani and Abdul Hamid bin Abas, who jointly filed a defamation suit against the Indian Chamber of Commerce and 24 of its members, five years ago.

In the lawsuit filed in 2013, the plaintiffs sought damages from the first defendant, the Indian Chamber of Commerce and second defendant – 24 members of the chamber.

They are: Mohamed Zackiriah Nazeer Ahmad, Jamnu Punjabi, Abdul Malick Mohamed Batcha, Abdul Rahim Kamaldeen, Mohamed Zubair Hamim Basheer, Mohamed Abdulla Inamulla @ Yunus, Venugopal Jayakumar, Abdul Packir Maideen, Punjabi Vishnu Tarachand, Noorsa Ahmad Sultan Noor Mohamed, Dawoo Batcha Mohd Jafarullah, Shaikh Mohamed Saburdeen, Abdul Sheik Dawood Munaff, Muthiah Chettiarmani, Vadakoot Sankunni Azhutchan Ramesh Chandaran, Poondiyar Shaik Peer Mohamed Sheik Dawood, Asiqurahman bin Haji Abdul Haleem, Haji Badurudeen S/O Tn Mohamed Ismail, Ubayathullah Hamim Basheer, Hidhayatulla bin Tajudden, Mohamed Hussain Mohamed Ali, Sulaimanayub Khan, Haji Mohamed Ali and Haji Mohamed Asraf @ Abdul Kader Asraf Ali.

The first plaintiff, Ramesh Jiwatram Bhawani, represented by lawyers Pengiran Izad and Too Shu Vin of Messrs Pengiran Izad & Lee alleged libel by a letter dated April 5, 2010 that was addressed to the then Indian High Commissioner to Brunei Darussalam.

The first plaintiff alleged he was libelled by the defendants in another letter addressed to a subsequent Indian High Commissioner to Brunei Darussalam dated November 29, 2010.

The second plaintiff, Abdul Hamid bin Abas in his complaint alleged that defamatory matter was published about him in the first letter.

During court proceedings presided over by Justice James Kerr Findlay, Judicial Commissioner, the defendants, represented by Eric Siow and Jonathan Cheok of Messrs J Cheok Eric Partners, in their justification said that there was an absence of malice. In the defence, the defendants also admitted the authorship of the defamatory matter and causing it to be published, particularly admitting that the defamatory matter about the second plaintiff was published and that the words used were understood to refer to the second plaintiff.

The letter to the Indian High Commissioner dated April 5, 2010 stated that the first plaintiff “has recently been increasingly involved in various malicious activities which in our opinion warrants investigation by the appropriate body in India”, to which Justice Findlay, in his judgement yesterday said “the letter clearly seeks some action by the High Commissioner”. The letter was signed by the second defendant as president of the first defendant with the other defendants signing the document confirming their support.

In his judgement in favour of the plaintiffs yesterday, Justice Findlay said both letters make specific allegations regarding the first plaintiff of varying seriousness, including him being engaged in money laundering and was a “mafia style gangster”, his involvement in malicious activities, his involvement in extortion, and that he used the second plaintiff’s position wrongly.

The letter dated of November 29, 2010 was signed by the fourth defendant as general secretary of the Indian Chamber of Commerce, but purports to be written on behalf of the management and executive committee. The letter also urged “stern action” against the first plaintiff and a rigorous investigation that “we are pretty sure that something worthwhile will be unearthed”. Justice Findlay said the letter repeats the serious allegation that the first plaintiff’s businesses are in actual fact a sham to cover his illegal money-laundering operations.

The claim by the second plaintiff is based on allegations of the first letter that alleged he abused his position as an officer with the Ministry of Foreign Affairs and Trade. Although he was not identified in the allegation by name, he was identified as the brother of former director of a government department, to which Justice Findlay said he could be identified easily considering his position and the fact that Brunei is a small place.

The defendant’s lawyers conceded that the defendants could not justify these defamatory statements and they had no defence to a claim for defamation based on them. The defendant’s lawyer also said that the defendants would restrict their case to the extent of publication of the defamatory statements, the issue of malice and quantum of damages.

The plaintiffs also allege that contents of letters were published to officials in the government, which might have stemmed from a letter dated June 16, 2010 by the then Indian High Commissioner to Brunei Darussalam to the Ministry of Foreign Affairs and Trade which stated that the first plaintiff has been “blacklisted” and that he had been “a subject of scrutiny and investigation” for “incriminatory and questionable activities”. The letter was copied to a large number of Bruneian officials and was however retracted by a letter from the then Indian High Commissioner dated June 13, 2011.

In their defence, the defendants argued that the defamatory statements were published only to the then Indian High Commissioner but Judge Findlay in his judgement disputed this, saying that the defendants knew it was going public because the high commissioner told them that he would be in touch with Bruneian authorities, so the defendants must have anticipated that the high commissioner would not keep the information supplied by the defendants.

In his judgement, Justice Findlay said “Benjamin Franklin said that three can keep a secret, if two of them are dead,” adding that human nature is such that statements like those made by the defendants, especially when they contain juicy gossip are bound to be spread. He also said that they were spread because the second plaintiff, who was a credible witness, told him of people speaking to him of the statements in the letters, where one of them asked him why he was working for a money-launderer and a gangster.

“The defendants admit that they had no basis at all for making defamatory statements. The second defendant was totally unable to give any explanation for this vicious attack on the characters of the plaintiffs. Malice must be found where defendants make defamatory statements knowing well that there is no justification for making them. In spite of the protests by the second defendant, who was a very poor witness, unreliable and unworthy of belief, that he had no ill feeling towards the first plaintiff, I find as a fact that he was motivated by spite and malice and seeking to harm the plaintiffs. Apart from anything else, one only has to read the defamatory letters to detect that they reek of malice,” Judge Findlay added.

Justice Findlay concluded that the defendants are liable to the first plaintiff for the publication of the defamatory matter contained in the letter dated April 5, 2010 and the first defendant and the fourth defendant are liable to him for the publication of the defamatory matter contained in the letter dated November 29, 2010.

Judge Findlay also concluded that the defendants are liable to the second plaintiff for the defamatory matter contained in the letter dated April 5, 2010.

He regards this as a “serious case of defamation”, and said that the baseless allegations by the defendants were of the upmost gravity. “It is difficult to think of a case more serious than the statement that the first plaintiff, a prominent businessman in Brunei, was a professional criminal or that the second plaintiff, as a senior government official, was corrupt and prepared to abuse his powers. It cannot be otherwise than that the plaintiffs suffered a loss of reputation, anxiety and stress.

“An aggravating factor is that the defendants sought to present a case that the defamatory statements were true until the case was on trial and continued to argue that there was no malice.”

Justice Findlay has ordered the defendants to pay the first plaintiff B$650,000 in general, aggravated and exemplary damages while in favour of the second plaintiff, he is to be paid a total of B$300,00 also in general, aggravated and exemplary damages.

Justice Findlay also granted judgement in favour of the plaintiffs in these terms against all the defendants, jointly and severally, the one paying, the others to be absolved.

The plaintiffs are also entitled to their costs of the lawsuit, which is to be taxed if not agreed, Judge Findlay said, adding that he will also consider interest in respect of the awarded amount, following written submissions on the issue.