Kongua v Sek [2002] PGDC 6; DC129 (7 June 2002)

DC129

PAPUA NEW GUINEA
[IN THE COURT OF JUSTICE]

CASE NO 159 OF 2001

BETWEEN

DAVID KONGUA

Complainant

AND

HENRY SEK
Defendant

Mt Hagen: Appa
30 April
17 May
7 June 2002

JUDGMENT

The complainant is a Police Prosecutor based at Mt. Hagen and he is suing the defendant who was a defendant in a criminal case and who said something personally against the complainant which was embarrassing and defamatory to his profession and character. It was alleged that before the defendant was sworn in to give his defence evidence, he said the following:-

"The Police Prosecutor is impartial and he has vested interest in the case because I have evidence and witnesses to confirm that he was given some money by Dick Hagon. The witness's name is Willie Bruno. The Prosecutor was seen together with the complainant. It is therefore my right that the prosecutor be disqualified and neutral prosecutors take over the case". Or words to that effect.

It was said in evidence that those words were uttered in a packed court room and the words used were capable of causing injury to his profession and personal character.

The complainant provided evidence through witness's affidavits that the allegation of bribery was not true. It was his duty as a prosecutor to talk to his witnesses such as Dick Hagon to facilitate conviction and it was the court which makes final decision. That there was no reason to be bribed as alleged.

The defendant failed to turn up to defend the proceeding since the process was served on him in November 2001. The case was heard ex parte after many adjournments made in favour of the defendant.

I have checked the defamation act and found that the words complained of were not for public interest or fair comments. It was more of a personal attack. In my view the defendant was not privilege to make such comments. If there was any truth in it, such objection should have been made at the earlier stage of the proceeding so that another prosecutor could take over the prosecution. The court before which such words were used also ruled that the prosecutor could not be changed with given reasons. (Refer to court depositions). A further observation was that, when the proceeding resumed, it was submitted that the defendant had the opportunity to cross examine Mr. Hagon in relation to the bribery allegation but he did not do so.

I therefore find from the above consideration that liability was established.

On the issue of quantum, complainant asked for K10,000.00 in damages to his profession and his standing in the community. However, there was no evidence provided to establish the extent of damages suffered. I belief the claim is based on general assumption. However, I have no doubt that such allegation of bribery made in packed court room and against a court official may have spread out and had the potential for people to think less about the complainant's reputation and that sort of thing should be discouraged. There should be a deterrent effect. One of the ways is to punish those who took the option. That is through compensation.

I am aware that the National Court's awards made in defamation cases did not exceed K6, 000.00 (cases to be cited if required). In the absence of particular on extent damages, I would think an award of K3, 000.00 would not be too unreasonable in the circumstance of the case.

I enter judgment for the complainant for a sum of K3, 000.00 in general damages plus cost of the proceeding. No interest allowed since same was not pleaded in the process. It is further ordered that the defendant satisfies the judgment debt within one month from the date of judgment was served on the defendant.

By the Court.

MR. RAPHAEL APPA

Principal Magistrate