Drepei v Mel [2005] PGDC 44; DC234 (2 March 2005)

DC234

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE 132 OF 2005

BETWEEN

Margaret Drepei
Complainant

V

Heisy Mel
Defendant

Port Moresby: Gauli, Magistrate
2005: 2nd March.

REASONS FOR DECISION OF THE COURT

Nature of the Complaint

The complainant sued the defendant for using abusive words at her without good reason and in the presence of the others. The abusive words or language used towards the complainant are:-

1. "You fucking arsehold, sinagagai, mother furcker.

2. Man bilong yu emi pamuk man, emi save kam na yu save kaikai kok bilong em na behain emi save go pamuk".

3. Your daughter looks like a monkey.

4. Taim yu go long haus sik, man bilong yu stap where? Emi kam givim yu pikinini tasol na emi go.

5. Yu ino save long lukautim pikinini yu save lon wokim tasol.

6. Man bilong yu save giaman na slip wantaim yu na go kwap raon.

7. Yu save wokabaut na samting blong yu save hangamap kam outside".

And the complainant claims damages in the sum of K1,000.00 and costs.

The defendant filed her Cross-Claim. In her Cross-Claim:-

1. She admitted using the abusive languages toward the Complainant.

2. She claimed that the Complainant unlawfully used abusive language at her in public.

3. And that the complainant’s boyfriend threatened to assault the defendant.

And the defendant claimed K1,000.00 in damages and costs.

Both parties filed affidavit evidence. And both parties asked the Court o make the decision based on their affidavit evidence and decided not to cross-examine the opponent and witnesses.

Upon reading and considering the affidavit evidence I find the defendant liable and order:-

(a) The defendant to pay the complainant K1,000.00 within 30 days.

(b) The defendant’s Cross-Claim dismissed.

Reasons

1. The defendant admitted using the abusive language towards the complainant. Defendant’s admission corroborated the complainants evidence. The abusive words used towards the complainant were very serious and damaging. The defendant gave or provided no evidence to establish any truth or proof based on all the abusive language she hailed at the complainant. For example there is no evidence that the complainant’s boyfriend, David, is a pamuk or a prostitute nor is there evidence that the complainant’s daughter looks like a monkey.

2. It is true that the complainant and her boyfriend first used the abusive language at the defendant and threatened her on the 17th December 2004 at about 4:30pm. The abusive words were made by David, the complainant’s boyfriend saying-

(a) "Fuck! Em we? Em we? Fuck!

(b) Yu no save mi gat ol lain blong mi? Yu pilai long mi?"

And while the complainant and her boyfriend were angrily shouting and screaming at the defendant, she heard these abuses.

(c) "Bitch" "Stupid idiot" and "Fuck"

but she could not figure out whether these were spoken by David or the complainant. According to the witness Perey Runawery, these abuses were used by David.

After this incident both parties dispursed. The complainant and David went to 7 Mile to pick up the complainant’s daughter, while the defendant went to attend a gathering at a friend’s house. Later that night the complainant and the defendant returned to their hostel at the University Campus namely Section F Lot 12 Hostel One. The defendant came home drunk. On seeing the complainant, the defendant shouted the abusive languages as stated above. This occurred after some good hours have lapsed after the first incident. At that point in time there was no provocation of some sort coming from the complainant. The defendant stated in her affidavit at paragraph 12"

"Just seeing her reminded me of what happened that afternoon with her and David. That is the time I unlawfully used abusive language at the complainant."

I find that there was no provocation exorted on the defendant by the complainant. However the defendant at the time was under influence of alcohol, but she knew what she was saying. She was not insane.

3. The abusive language used by the defendant were extremely serious and very damaging. The complainant was very much hurt both in her feelings, character, and personality. Her intergrity and reputation were lowered. The abusive languages used in themselves are defamatory in nature by virtue of Section 2(1) (a) of the Defamation Act. This provision sates that:

"An imputation concerning a person, or a member of his family, whether living or dead, by which the reputation of that person is likely to be injured .......... Is a defamatory matter."

And Section 3 of the Defamation Act says that: "A person who by spoken words ....... Publishes a defamatory imputation concerning a person defames that person....."

I find that the abusive languages used were defamatory. And I find the defendant liable.

Defendant’s Counter-Claim

The defendant filed a Counter-Claim against the complainant. The defendant claimed that she was called "Bitch", "Stupid Idiot" and "Fuck".

The defendant stated that these abusive words were used at the time the complainant and her boyfriend were angrily shouting at the defendant that she did not know who actually said those words. The evidence before this Court established that these abusive words were said by the complainant’s boyfriend and not by the complainant. The defendant therefore could not counter-claim against the complainant for the use of the abusive words by another person. The defendant’s counter-claim is therefore dismissed.

Awarding Damages against the Defendant

The complainant claims damages in the sum of K1,000.00. Award of damages or unliquidated claims is based on the Court best judgements depending on the circumstances and the merits of the case before the Court. It depends on the Court’s good judgement, on the quantum of the damage to be awarded. I considered that the nature of the abusive words used by the defendant are extremely serious indeed. And I considered that a sum of K1,000.00 in damages is sufficient compensation for the use of those very serious abusive languages.

Accordingly the Court ordered damages in the sum of K1,000.00 in favour of the complainant payable within 30 days.

Ordered accordingly