Peter Auguste Claimant v Cibc Caribbean Ltd Defendant [ECSC]

• Jurisdiction: St Lucia
• Judge: Hariprashad-Charles J
• Judgment Date: 14 June 2004
• Judgment citation (vLex): [2004] ECSC J0614-3
• Date: 14 June 2004
• Court: High Court (Saint Lucia)
• Docket Number: SLUHCV2000/0040

[2004] ECSC J0614-3

THE EASTERN CARIBBEAN SUPREME COURT

IN THE HIGH COURT OF JUSTICE

(CIVIL)

SLUHCV2000/0040

Between:

Peter Auguste

Claimant

and

Cibc Caribbean Limited

Defendant

DEFAMATION…SLANDER..WHETHER WORDS UTTERED ARE CAPABLE OF BEARING A DEFAMATORY MEANING…SLANDER ACTIONABLE PER SE…NOMINAL DAMAGES AWARDED

Hariprashad-Charles J

1 Mr. Peter Auguste brought these proceedings against CIBC (Caribbean) Limited (the Bank) claiming among other things, damages for breach of confidence and defamation of character.

The Facts

2 On or about August 1999, Mr. Auguste applied to the Bank for a loan of $47,000.00 to purchase a motor omnibus. After complying with all the requests and demands of the Bank through its employee, Ms. Avril Leonce, he was told that the loan would be processed and he should return sometime later to find out whether or not it had been approved.

3 Mr. Auguste made several unsuccessful trips to the Bank without any positive response. Then on 26^th November 1999, he went to the Bank and demanded his documents from Ms. Leonce. A heated exchange of words ensued in the presence of many customers and staff of the Bank. During the altercation, Ms. Leonce is alleged to have uttered the following words to Mr. Auguste: "Get out of my office, you are on drugs and that is the reason you will not get a loan from this bank or any other bank."

4 Mr. Auguste did not leave right away but sought an explanation from Ms. Leonce. In his attempt to do so, he became loud and aggressive. In order to prevent further unpleasantries, Mr. Sheldon Innocent, the then Head Teller (whom Mr. Auguste knew for many years) came over, appeased him and asked him to sit down. Shortly thereafter, Mr. Auguste left the Bank and headed straight for his lawyer's office.

5 His lawyer wrote a letter to the Bank demanding an apology and discussion towards an amicable settlement of the matter. The Bank did not budge. Instead, the then Manager, Mr. Wade Gbalajobi met Mr. Auguste one day by the Tapion School at La Toc and bitterly complained that he should have sorted out the matter with him rather than "going to a junior lawyer to write a crap letter." Mr. Gbalajobi also told Mr. Auguste that he had torn up the letter and threw it away and as such, he would allow the matter to take its normal course.

6 Two months after the alleged incident, Mr. Auguste instituted these proceedings against the Bank.

7 In its defence filed on 6^th April 2000, the Bank denied all of the allegations raised by Mr. Auguste. Specifically, the Bank denied the following:

• i. That Ms. Leonce caused the publication of the words complained of. ii. That the said words or any of them referred to or were understood to refer to Mr. Auguste.

• iii. That the said words bore or were understood to bear or were capable of bearing the meanings or any defamatory meaning of Mr. Auguste.

• iv. That it was in breach of its duty of confidence regarding the financial status or otherwise of Mr. Auguste.

• v. That Mr. Auguste's credit, character and/or reputation as alleged were damaged.

The Issues

8 In their well-documented and comprehensive written submissions, both Mr. Monplaisir QC and Mr. St. Clair identified the issues as follows:

• (1) Were the words complained of actually uttered?

• (2) Were the words capable of a defamatory meaning such that it lowered Mr. Auguste in the eyes of right-thinking members of the public?

• (3) Does the particular circumstance bring the case within the cases where slander is actionable per se?

• (4) Was Ms. Leonce acting as a servant of the Bank?

• (5) Damages, if any.

Were the words complained of actually uttered?

9 The question of whether the words were uttered is purely a question of fact to be determined based on the evidence adduced. Learned Queen's Counsel, Mr. Kenneth Monplaisir appearing for the Bank submitted that it is easy for the court to conclude that there was an exchange of words between the parties but that Ms. Leonce never uttered the words complained of. Instead, she was so overwhelmed by the threatening words used by Mr. Auguste that she shouted at him to get out of her office.

10 Mr. Alvin St. Clair appearing for Mr. Auguste argued that there is overwhelming evidence from at least two independent witnesses including Mr. Sheldon Innocent that Ms. Leonce did utter the words complained of. He substantiated his argument by calling both of those witnesses to testify at the trial. The first to give evidence was Mr.Jose Zimbanni. He was at the Bank on the day in question when he overheard a female voice saying "you are on drugs; that is the reason you will not get a loan from this Bank or any other bank. And I will see to it that you do not get a loan from this Bank or any other bank." He was cross-examined and he was unshakeable in his testimony.

11 Mr. Auguste next called Mr. Innocent to testify on his behalf. Mr. Innocent was unavailable to sign his witness statement but in giving oral testimony, he testified that its contents were true and correct. It is also significant to note that his witness statement was a verbatim transcript of a witness statement which he attested to before a Justice of the Peace on 8^th March 2004. At paragraph 3, he stated:

"I was approaching the office of loans officer Avril Leonce when I heard the outburst from the occupant of the office, Avril Leonce. 'Get out of my office, get out of my office, you are on drugs, that is why you will not get a loan from the bank. For that matter I will see to it that you do not get a loan from this Bank or any Bank."

12 Under cross-examination, Mr. Innocent, youthful and exuberant suddenly lost his powers of retention. He could not recall attesting to a witness statement before a Justice of the Peace three months ago. He was not sure of the contents of that witness statement nor was he sure what words was uttered on the day in question. Mr. Innocent became very selective in his responses. Needless to say, I found him to be an untruthful and evasive witness.

13 Based on the evidence as a whole, I came to the inescapable conclusion that Ms. Leonce did utter the words complained of and I so find.

Were the words capable of a defamatory meaning?

14 Mr....