Jaro v Sakimo [2005] PGDC 138; DC839 (25 October 2005)

DC839

PAPUPA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]
Grade V Civil Jurisdiction

GFCIV No. 55/05

SAMSON JARO

V

STANLEY SAKIMO

Lae: Pupaka, PM
2005: 24th August

Defamation case – Publication of prima facie defamatory statements – Statements published in writing as police complaints – Form 12(A) – Issue of publication not in contest – Publication of defamatory statements is prima facie unlawful unless the publication is protected, justified or excused by law – Section 5 of the Defamation Act.

Particular claim – Defamation case – Publication of prima facie defamatory statements – Libel suit – Defense of protection or justification or excuse under the Defamation Act not available and not applicable to the defendant given the level of malice & ill-will and lack of truth.

Cases Cited:

Frank Malara –v- Turiai & Ors (1998 Unreported) N1716

Counsel:

Mr. Daniels for the Complainant
Mr. Manu for the Defendant

25th October 2005

PUPAKA, PM: This case was reserved for disposal during the two-week circuit that commenced on 15th August 2005. However when the matter was first mentioned on 15th August during the call-over of all circuit cases it became apparent that it was far from being ready for trial. There were two reasons for this which I must state, together with the events that followed as the cases’ background to put matters in perspective.

The Background

First of all the cause of action was not pleaded and particularized properly as a suit of this nature ought to be. The nature and extend of the defamatory utterances, manner and circumstances of publication and the nature and extend of injuries suffered were not sufficiently pleaded and were not clear. Secondly the defendant had not sufficiently or at all traversed the whole allegation of defamation. He had only merely pleaded a general denial. He also did not seek particularization of the complainant’s claim in light of the ambiguous pleadings but instead opted to plead and file a cross-claim, which had no connection what so ever with the complainant’s action so as to possibly raise any valid defense to the latter’s claim. Rather the defendant’s cross-claim was based on other separate accusations of defamatory utterances and threats made against him by the complainant.

There is nothing on file to show that the defendant informed the complainant in writing of his intention to file a cross-claim or set-off against the complainant’s claim. Equally non existent is any proof of leave of the Court having been sought or obtained to file the cross-claim. A defendant’s right to file and serve a set-off is not automatic. A defendant may only do that in accordance with Section 153 of the District Courts Act, which is the pertinent provision. That section reads:

"Division 2.—Set-off.

153. Special defences to be notified to complainant.

(1) Without the permission of the Court, the defendant in a complaint for a debt recoverable before a Court shall not—

(a) set-off a debt or demand claimed or recoverable by him from the complainant; or

(b) set up by way of defence and claim and have the benefit of illegality, infancy, coverture, or a Statue of Limitations or of his discharge under a law relating to bankrupt or insolvent debtors,

unless, a reasonable time before the hearing of the complaint, written notice of his intention to so set-off or to set up that defence, as the case may be, has been given to the complainant personally or by post or by causing it to be delivered at his usual or last-known place of abode or business or at his address for service set out in the summons on the complaint.

(2) The defendant shall produce on the hearing a copy of the notice given under Subsection (1), and, unless it is admitted, shall prove that it was given in accordance with that subsection, and in default of that proof no set-off or defence specified in that subsection shall be set up except by consent."

For this reason alone the defendant’s cross-claim cannot form a part of his defensive pleadings against the complainant’s suit.

Further, at the 15th August call-over the defendant sought to stay this proceeding until a case he himself had commenced in the National Court, (W.S. No. 1257 /2005) was finalized. That National Court case seemed to be grounded essentially on the same facts pleaded in the cross-claim filed for the purposes of this instant matter. Having perused the application for stay documents I ruled against it. It is not overly necessary to fully set out the reasons for that ruling. Suffice to say for the record that I considered the National Court case to be a separate proceeding; just one more aspect of the cycle of accusations and counter accusations between these two men, which stem from an ongoing spite between them over a property dispute at the ‘Tent City’ area in Lae City. The National Court case seems to have no direct bearing on the issues raised by this suit; namely that of the utterance and publication of defamation statements impugning the complainant’s name and reputation. It also has no direct bearing on any possible defenses that could be lawfully raised herein; namely denial or privilege or justification or excuse. The defendant was advised then that he should prosecute his National Court case at his own leisure.

Consequently I ruled that the trial of this instant case ought to proceed. I also ruled, particularly in the light of the National Court case, that the cross-claim pleaded herein would not be progressed as the same issues and causes raised by the cross-claim are now necessarily sub judice in the court above.

This matter was therefore adjourned to the 22nd of August 2005 for hearing. However on that day (22nd of August 2005) it was clear that another set of directions needed to be given to limit the issues for trial, essentially complimenting the orders and directions of 15th August. I ruled that certain annexures in the complainant’s affidavit dated 23rd August 2004 would form the bases of his claim. These documents (annexures) had been filed with the Complaint & Summons, and since the complainant had not particularized his claim I considered it only proper to accept his affidavit (and the annexures) as serving the purposes of particularization adequately. It is only for the convenience of all concerned.

The defendant was therefore then advised that he defend the complainant’s case as outlined in the latter’s affidavit dated 23rd of August 2004. The case was thence adjourned to 24th August for hearing. Parties were directed to reduce their respective evidence into affidavit form and file them. They would cross-examine opposing witnesses if they so wished.

By 24th August the parties had filed their respective affidavits. The complainant filed one affidavit – his own – dated 23rd August 2005, which is a repetition of his earlier affidavit dated 23rd August 2004. He has adduced no other evidence. He has no other witness. His case rests on his two affidavits. He also opted not to cross-examine any of the defense witnesses.

The defendant has filed affidavits from four (4) witnesses including one of his own. The defendant also cross-examined the complainant on his affidavit evidence. The defendant then closed his case.

Thereafter both counsel indicated that they wish to file written submissions. I directed that they do so in time for the Court to hand down a decision on the 26th of September 2005. I also directed that a better and full copy of annexure ‘A’ of the complainant’s affidavit dated 23rd August 2005 be filed and served on the defendant before the latter prepares his submissions.

Parties may have filed submissions at the Lae District Court Registry but these were not made available to me before or on 26th September. Further parties were unavailable when I made myself available on 26th September at the Lae District Court.

Nevertheless the final submissions have been submitted (faxed to Hagen) on 4th October 2005. I have carefully perused them. Annexure ‘A’ of the complainant’s affidavit has been submitted separately by fax on 14th October 2005, which, I might add, has been done so at my further insistence. Consequently the following is the considered judgment of this Court.

The Complainant’s Case

The complainant had pleaded in his Complaint & Summons upon Complaint the following:

"Mr. Stanley Sakimo has made fauls (sic) allegations against Mr. Samson N. Jaro to police that has resulted in his removal as Commander of Buimo Correctional Institution.

As a result of these fauls (sic) allegations Mr. Jaro’s reputation as senior ranking officer has been tarnished and smeared.

He therefore claims K10, 000.00 in compensation."

As I alluded to already the complainant did not particularized his claim, and no particulars thereof were either requested or directed to be filed so I considered it just and necessary to rule that his affidavit together with the relevant annexure – which was filed at the same time he filed the Complainant & Summons Upon Complaint, obviously as further pleading – would serve the purpose of particulars adequately. In any case it was most convenient for all concerned. The defendant was advised that he would defend the case as so outlined in the complainant’s affidavit.

Defamatory Utterances

That affidavit (dated 23rd August 2004) contains a few assertions in relation to what the defendant allegedly said and did. However what seems, at the outset, to be serious and easily proved and for that matter easily defended; is the written statements filed by the defendant on a standard police witness statement form – Form 12(A) – which is, as I said, in the said affidavit as an annexure. This statement satisfies the apparent requirements for the purposes of a suit in the tort of defamation and the Defamation Act, namely prima facie defamatory utterance, publication, and capacity to injure.

It is not necessary to state fully the defendant’s statement made to the police on 12th March 2004 however a paraphrased summary of it, at least so much of which seems to be the defamatory aspects, needs to be set out.

As I alluded to above the statement is a standard police witness statement form – Form 12(A) – and it seems it was intended to be a complaint of sorts laid with the police. The defendant declared in that statement inter alia that the complainant had:

Abused his position as Commander of Buimo Corrective Institution in that he had unlawfully and improperly associated with prisoners and or a ex prisoner and engaged the latter in running his private business;

Abused his position as Commander of Buimo Corrective Institution by unlawfully or improperly obtaining prison rations from a friend or associate’s store;

Stolen State properties in and during the course of his employment as Commander of Buimo Corrective Institution;
Neglected his duties as Commander of Buimo Corrective Institution and was conducting his own private business and so he (complainant) must be transferred out of Buimo.

To be fair it must also be stated that the defendant also made mention in the statement that the complainant was using the ex prisoner to prevent him (defendant) from using and enjoying the peaceful use of his block of land at ‘Tent City’ in Lae, the ownership of which they are at logger heads over.

Are the Utterances Defamatory?

Section 2 of the Defamation Act defines defamation in the following way:

"(1) A imputation concerning a person, or a member of his family, whether living or dead, by which –

1. the reputation of that person is likely to be injure; or
   
2. he is likely to be injured in his profession or trade; or
   

100. other persons are likely to be induced to shun, avoid, ridicule or despise him,
     

is a defamatory imputation.

(2) An imputation may be expressed directly or by insinuation or irony.

(3) The question, whether any matter is or is not defamatory or is or is not capable of bearing a defamatory meaning, is a question of law.

The allegations made by the defendant go beyond being merely defamatory in the context of the Defamation Act. The allegations are, in the absence of any valid defence, quite serious and highly damaging. Needless to say in their ordinary meaning and context the allegations are highly defamatory.

I would also accept as a matter of course that the requirements of communication and publication pursuant to section 4 of the Defamation Act are met. The statements were communicated to others and are in written form so this is a libel suit and the publication aspect is not at issue.

Defence Case

By way of his formal defence and cross-claim the defendant denied making any defamatory remarks against the complainant. For the reasons already stated in the fore part of this judgment the issues raised in the cross-claim are no longer relevant or current and that is that.

Despite the initial plea of denial, the defendant has practically conceded making the allegations as contained in the police statement. Whilst it is not an acknowledgement of liability in any way, nevertheless the no contest narrows the issues down only to one of justification or excuse.

To set matters in proper perspective and set the stage for a fair consideration of the defendant’s defence I must state at this juncture that the publication of defamatory matter is prima facie unlawful unless the publication is protected, justified or excused by law; section 5 of the Defamation Act.

The defendant asserts all the defenses available under sections 8, 9, 10, 11, & 12 of the Defamation Act. Section 13, though asserted in the submissions as a defence, is not a defence per se. It is not overly necessary to restate these provisions in full. Suffice to say that these provisions afford protection to those who, after having published prima facie defamatory matter, plead justification or excuse. The defendant has not pleaded the defense of protection and privilege under sections 6 & 7 of the Defamation Act.

Section 8 – Publication for Public Interests, etc

The only relevant aspect of the report which warrants serious consideration, in light of the circumstances of the undisputed publication is the defendant’s plea that he was quite entitled to make a report to the police about the complainant’s conduct.

Under section 8 of the Defamation Act publications made to the police must pass two tests or conditions precedent in order to add up as a lawful defence. First the publication must be made "...at the request of a commissioned officer of the Police Force"; section 8 (e) (iii). Secondly the person making the publication must not be motivated or actuated by "...ill-will to the person defamed or by any other improper motive ..." – section 8 (3).

There is no evidence that a commissioned officer of the Police Force requested the defendant to publish the comments. Even if a commissioned police officer requested the written statement I fail to see how some or all of the comments contained in the statements, except perhaps the allegation of theft, had anything to do with the police in the first instance.

For instance the defendant alleged that the complainant abused his position as Commander of Buimo Corrective Institution by carrying on unlawful and improper association with an ex prisoner. During the brief trial the complainant was examined by defence counsel on this aspect and it turned out the ex prisoner was just that, an ex prisoner, who had served his time. It also turned out the ex prisoner was in fact the complainant’s nephew.

The defendant also alleged that the complainant abused his position as Commander of Buimo Corrective Institution by improperly obtaining prison rations from an associate’s store. Just how unlawful this conduct was is not clear. I certainly cannot identify anything improper in this unless there is evidence showing the unlawful or improper nature of it. The defendant’s call for the transfer of the complainant based on the latter’s alleged business activities is a matter that the police have no interests whatsoever over, and so the call should not have been put in the police statement.

Therefore, even if there was a request from a commissioned police officer, the defendant’ seeming lack of sincere reasons in reporting matters not in the first instance police business only goes to show the underlying malice and ill-will which motivated his conduct. There seems to have been no concerted effort to have the complainant arrested by the police, at least on the allegation of theft of State properties, so the motives for publishing the report are at best suspect.

Moreover the defendant has not tendered any evidence or otherwise proved the loss of any legitimate interests or suffered adverse effect including any measurable loss due to the alleged unlawful activities or misconduct of the complainant. In the circumstances it is an open conclusion that the two men’s animosity toward each other based on their tug of war over a block of land at ‘Tent City’ seems to be the real reason.

Section 9 – Fair Comment

The defendant claimed protection of the defence under section 8 of the Act, but things do not add up under that section as was alluded to above. Consequently an argument of fair comment under this section [section 9] is not available on the facts. There is already a finding of a motive other than good faith. In fact there is evidence of malice and ill-will. If as to whether a comment, i.e., prima facie defamatory comment, is fair or not is relative and is dependant on factors like absence of malice for instance, then certainly there was nothing fair about the defendant’s publication. Besides there was no need for the police to know about most of the allegations raised.

Section 10 – Truth

There was ultimately found to be no truth in the allegation of theft and other alleged misconduct by the complainant. The defendant accused the complainant of stealing State property, i.e., CS property. A CS team which investigated the complainant confirmed that the things suspected of being stolen, which were in the complainant’s possession in fact belonged to the complainant. The CS investigating team exonerated the complainant in relation to all allegations against the complainant, as evidenced by annexure "A" of his affidavit. So that puts paid to the defendant’s defence of truth.

Section 11 – Excuse

The defendant had or exercised no legitimate authority over the complainant at the time of publication to have been justified in publishing prima facie defamatory comments. Further, if the publication was for the good of the public, it is not said in what way it was good for the public. Certainly, as it turned out in the end, there was no substance to most of the allegations so the excuse of truth and fair comment available under this provision cannot be legitimately claimed by the defendant.

Section 12 – Good Faith

The already established findings alluded to above of underlying motives of malice and ill-will and similar findings of lack of truth can only mean good faith is absent. I am unable to say, due to the lack of facts on it, as to whether the parties’ dispute over a block of land was otherwise sub judice but in my view the defendant ought to have known that there are ways to resolve conflicts like theirs, particularly in the courts. To give oneself an edge by making speculative comments tinged with malicious intent is not the sort of ‘good faith’ the Defamation Act refers to. I say no further than that.

Consequently, for all the foregoing I would reject the defendant’s claim to the protection under sections 8, 9, 10, 11, 12 & 13 of the Defamation Act.

On Liability

I must find as a matter of course that the defendant is fully liable to the complainant for damages as a direct result of the publication of defamatory matters against him. I would repeat the words of section 5 of the Defamation Act which is that the publication of defamatory matter is prima facie unlawful unless the publication is protected, justified or excused by law, and injured persons like the complainant are entitled to damages.

On Quantum

Though the parties have made no submission on the aspect of loss and quantum of damages, nevertheless I must assess loss and damages. The complainant was investigated, among other matters, in relation to the allegations of the defendant. He was exonerated in all respects, as it seems, in relation to his conducts at work and as a professional person. However he was no doubt hurt and injured in his reputation by the allegations and consequential investigations. Further, there can still be a degree of odium attached to his name and loss of esteem as a result of what transpired.

In this suit the complainant has sought K10, 000.00, which is up to the limits of this Court’s jurisdiction. As I said the parties have provided no submissions on the damages range and comparative verdicts for the purposes of assessing a suitable amount of damages. Whereas the complainant’s assertion of K10, 000.00 is at least something to work with, the defendant has made no provision in his submissions to cater for a possible assessment of damages. It is particularly neglectful on the part of the parties, more so the defendant, because lawyers should know that every suit of this nature ends up with assessment of damages, I mean the complainant is not merely seeking declaratory orders here.

I am unable to delve thoroughly into the precedents within the constraints of the limited time available to this Court. Nevertheless I have read the case of Frank Malara –v- Turiai & Ors (1998 Unreported) N1716, which was cited by the complainant in his submissions, albeit for the purposes of liability only. Having done so, I am satisfied that the circumstances there were similar, if not close, to the circumstances in this case. For instance the complainant therein was a Provincial Treasurer, quite like the complainant here who is the Commander of one of the country’s major Correctional institutions. In the Frank Malara case (supra) Woods J, having found that the statements complained of went further than mere complaints about work performance (statements went to his basic qualifications and ability), and having also found that the publications were un authorized and defamatory and not privileged under Defamation Act, entered judgment for the complainant in the total sum of K25, 000.00.

I find in this instant case that there was a fair level of malicious intent that fueled the reports, and like in the precedent cited, the publications herein are not privileged or excused or justified under the Defamation Act. The K25, 000.00 damages award in the cited precedent was made over 7 years ago. Even allowing for any differences in the level of seriousness between the cited precedent and this instant matter (not that there is much difference between them) the K10, 000.00 sought herein is not excessive.

Consequently, I will assess a figure of K10, 000.00 as damages for such defamation as was made in this case and the effect this has had on the complainant’s life. I do not think a lesser figure would fully exonerate the complainant in the eyes of the people, including his colleagues.

Ergo I enter judgment for the complainant in the sum of K10, 000.00 and further order that costs shall follow the event, the same to be taxed if not agreed to between the parties.

_____________________________________

Habuka Lawyers for the Complainant
Manu & Associate Lawyers for the Defendant