Kamtai v Likei [2007] PGDC 35; DC526 (18 May 2007)

DC526

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE
SITTING IN ITS GRADE FIVE CIVIL JURISDICTION]

GFCi 01 of 2007

BETWEEN

BEN KAMTAI
Complainant

AND

HOLM AMI LIKEI
Defendant

Goroka: M Gauli
2007: May 04, 11, 18

CIVIL - Defamation – Statements amounting to defamation – ordinary and natural meaning of – Damages – actual injury to reputation need to be proved – Serious the injuries higher the damages.

Cases Cited
Theresa Joan Baker –v- Lae Printing Pty Ltd [1979] PNGLR 16
Tei Abel –v- Anton Parau [1976] PNGLR 251
Griftin –v- ABC (No. 2) [1974] PNGLR 152

References
1. Defamation Act, chapter 293, ss. 2, 3, 4, 9-12

Counsel
Mr. B. Kamtai - In Person
Mr. H. A. Likei - In Person

18 May 2007

DECISION OF THE COURT

M Gauli, PM: The Complainant Mr. Ben Kamtai claims against the defendant Mr. Holm Ami Likei a sum of K10, 000.00 in damages for defamation. Mr. B. Kamtai alleged that on the 16 of January 2007 at the Peace Park in Goroka town of the Eastern Highlands Province of Papua New Guinea during a gathering for a peace mediation, the defendant Mr. H. A. Likei published at the hearing of other people saying to Mr. Kamtai in pidgin language –

“Yu rabis man, yu nogat bek graun blong yu, yu kam painim pipia long Goroka”, (which means in English “You rubbish man, you have no back ground, you came looking for rubbish in Goroka” or words to that effect).

2. The defendant Mr. Likei denied making the alleged defamatory statement towards Mr. Kamtai thereby proceeding into Trial.

3. The Issues that I need to consider are:-

i. Whether or not the defendant Mr. Likei said the said statement towards Mr. Kamtai.

ii. Whether the words complained of are defamatory.

iii. Whether the defamatory statement was published.

iv. Whether the defendant has any defences available to him.

4. Issue No. 1: Whether or not the defendant Mr. Likei said the said statements towards Mr. Kamtai.

The Complainant Mr. Kamtai, his wife Mrs. Inego Kamtai and witness Peter Kiak all gave evidence that defendant Mr. Holm A. Likei, while gathered at the Peace Park, said to Mr. Kamtai the words: “Yu rabis pipia man, yu nogat bek graun blong yu, yuk am painim pipia long Goroka”.

5. These words were spoken at the same time the crowd of people from Mr. Likei’s supporters were shouting at Mr. Kamtai. This happened soon after Mr. Kamtai was brought down to the Peace Park by the defendant Mr. Likei’s boys from the Post Office. Mr. Kamtai, his wife Mrs. I. Kamtai and Peter Kiak were standing not far from Mr. Likei, about four to eight metres away when Mr. Likei made the statement.

6. The defendant Mr. H. Likei and his witnesses Jerry Kara and Jerry Sipa admitted that when Mr. Kamtai was brought down to Peace Part by about four of the defendant’s boys the crowd shouted at him saying all sorts of words at him. However the defendant never uttered the words complained to Ben Kamtai.

7. The witness Jerry Kara gave evidence that he was present at that gathering to mediate the incident between Ben Kamtai and the defendant’s son Peter Holm. When Ben Kamtai was brought to that gathering at the Peace Partk, he Mr. J. Kara was the first person to speak to Ben Kamtai by saying: “Yu bin kilim man pinis em ino pik or dog. Na yu mas kam hariap na yumi stretim dispela hevi”. This is interpreted to mean: You have killed a man, he is not a pig or dog. So you must come quickly to resolve this problem. There was no killing of any person by Mr. Kamtai. This witness was referring to an incident where Mr. Kamatai assaulted Peter Holm

8. After saying this the crowd began shouting and saying a lot of things towards Mr. Kamtai. The defendant kept silent until crowd quietened down. Then the defendant Mr. Likei approached Mr. Kamtai and said:

“Yu gutpela naispela man. Law I untap long mitupela na yu raun raun tumas na ino laik kam stretim dispela hevi. Nau mi givim yu deman bilong mi long yu paitim pikini”.

9. The defendant Mr. Likei handed a brown envelop to Mr. Kamtai and said to Mr. B. Kamtai: “Mi bin painin yu long pela taim inap nau. So yu bai ridim dispela pas na yu toksave long mipela bihain long wanem taim bai yumi bung na diskas long dispela”. Then everybody left as it was getting late.

10. The evidence of both defendant Mr. Holm Likei and witness Jerry Sipa are the same or about the same. The witness Jerry Sipa was standing behind the crowd and trying to silent the rowdy crowd, while defendant and witness Jerry Kama were standing infront of the crowd. The complainant in his affidavit evidence (EXHIBIT ‘B’) also confirmed in paragraphs 48 and 50 that when he was led into the meeting arena by three young men from the defendant’s village, the crowd scolded and creamed at him. And within that moment defendant Likei shouted at him the words complained of by Mr. Kamtai.

11. I find on the balance of probabilities that since witness Jerry Sipa was standing behind the rowdy crowd and trying to calm them down, he was not in a better position to hear what defendant Holm Likei said before he approached Mr. Kamtai and handed him the envelop.

12. The witness Mr. Jerry Kara, a peace mediator was waiting at the Peace Park whole day until 3:00 pm that day. He was also frustrated due to the long waiting for Mr. Kamtai to turn up for mediation. When Mr. Kamtai turned up he shouted at him rather than to conduct the mediation there and then. His shouting at Mr. B. Kamtai no doubt attracted the crowd who joined in by screaming and scolding Mr. Kamtai. At that time defendant Mr. Likei was standing some distance behind Mr. Jerry Kara. I find on the balance of probabilities that witness Mr. J. Kara could not have heard defendant Mr. Likei to Mr. Kamtai the words complained off when he said those words while the crowd was screaming and scolding Mr. Kamtai. His attention was more towards Mr. Kamtai than to the defendant.

13. The complainant Mr. Kamtai and his two witnesses were facing both defendant Mr. Holm Likei and his witness Mr. Jerry Kara. They had no difficulties in hearing what defendant Holm Likei was saying to Mr. Kamtai as they were in a much better position to see who was talking. I am convinced by the evidence for and on behalf of the complainant Mr. Kamtai that defendant Holm Likei did say the words: “Yu rabis pipia man, yu nogat bek graun blong yu. Yu kam painim pipia long Goroka”.

14. Issue No. 2: Whether the words complained off are defamatory.

The word “defamation” is defined by Sections 2 and 3 of the Defamation Act, Chapter 293 in this way as follows:

“2 Definition of defamatory matter

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

(a) the reputation of that person is likely to be injured; or

(b) his is likely to be injured in his profession or trade; or

(c) other people are likely to be induced to shun, avoid, ridicule or despise him,

is a defamatory matter.

(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.”

“3 Definition of defamation

A person who –

(a) by spoken words, or audible sounds; or

(b) by words intended to be read by sight or touch; or

(c) by signs, signals, gestures or visible representations,

publishes a defamatory imputation concerning a person defames that person within the meaning of this Act.”

15. The words complained of namely: “Yu rabis pipia man, yu nogat bek graun blong yu. Yu kam painim pipia long Goroka” have not been given their ordinary or natural meaning by the parties. However these words or statement are understood to mean that Mr. Ben Kamtai is a “rubbis man, he has no back ground and he came to look for rubbish in Goroka.”

16. The word “rubbish” literally means, rubbish, garbage or waist. It is unwanted or unaccepted. When a person is called a “rubbish man” does he fall into this literal meaning of rubbish. No human being is a “rubbish” even though he may be a poor man. When one calls a person “rubbish man” it is quite degrading and therefore bears a defamatory imputation.

17. The words “you have no back ground” would mean many things. It could mean that: (a) He has no history of his origin, or (b) He is a poor man, he has no wealth or property; (c) He has no family or relatives and so forth. However this statement in my view means that Mr. Ben Kamtai has no standing in the community and therefore of no importance. He may not be a politician, or a leader. He may be unemployed or even uneducated nor owns properties. But that is not to say that he has no back ground. Every human being have their own back grounds however small and less important it may be. And so I find this statement does have a defamatory imputation in it.

18. The words “you came to look for rubbish in Goroka” literally means that Mr. B. Kamtai makes his living on rubbish or from collecting rubbish. There is no evidence that Mr. Kamtai makes his living by collecting rubbish. It is true that he is unemployed but he resides in his Ouna village in Kundiawa, Simbu Province. His wife Mrs. Inego Kamtai is from Ifiyufa village in Goroka, Eastern Highlands Province. She is employed by Goroka University as a secretary and she lives at the University. Mr. Kamtai does not live in one of the settlements in Goroka and so he cannot be said that he was living on rubbish. I find this statement to have defamatory imputation.

19. My answer to the Issue No. 2 is that the statement complained of concerning Mr. Kamtai which were made by defendant Mr. Likei are likely to injure Mr. Kamati’s reputation and character. However I am not satisfied that he is likely to be injured of his profession or trade nor other people are likely to be induced to shun, avoid, ridicule or despise him as there is no evidence to support that.

20. Issue No. 3: Whether the defamatory statement was published.

In an action in damages for defamation, the defamatory imputation complained of must be published. Unless the defamatory imputation is published, the person cannot be said to have been defamed by the other person – pursuant to Section 3 of the Defamation Act. For the purposes of publication of the words spoken Section 4 (a) of the Defamation Act requires that the speaking of those defamatory words have to be made in the presence and
the hearing of other persons apart from the person defamed. The evidence established before this Court is that Mr. B. Kamatai was in the company of his wife Mrs. Inego Kamtai and the other person Mr. Peter Kiake at the time the defendant spoke the defamatory words. And beside there was a crowd mostly the supporters of the defendant. I am satisfied that the defamatory words were published.

21. Issue No. 4: Whether the defendant has any defences available to him.

There are a number of defences available to the defendant as stipulated in the Defamation Act, particularly by Section 9 – 12. The Section 9 of the Act provides a defence of fair comment. It says that it is lawful to publish a fair comment. Section 10 of the Act provides a defence of truth. It states that it is lawful to publish a defamatory statement if the statement is of the benefit for the public. While Sections 11 and 12 provide a defence of good faith, that is to say that the defamatory words, if published on good faith then it is lawful.

22. The defendant Mr. Likei did not raise any of these defences though they are available to him. All that he said was that he did not say or publish the defamatory statement been complained of. Although the defendant denied publishing the defamatory statement, from the evidence as presented before this Court, I find that none of these defences are applicable to him. The statements he made were unfairly made, there was no truth about them and that he did not make those statements in good faith. That being the findings of this Court, I am satisfied that defendant Mr. H. Likei is liable for publishing the defamatory imputations concerning Mr. Ben Kamtai.

23. Having satisfied that defendant Mr. Likei did make and publish the defamatory statements of Mr. Ben Kamtai, I now consider the damage. Mr. Kamtai claims K10, 000.00 in damages for defamation. In the actions for damages in defamation the damages are awarded to compensate the complainant for injury to his personal reputation, feelings and injury to his business reputations. There is no yard stick to measure the amount of damages, however the damages are at large and they depend on the good judgments of the judge or the magistrate – Theresa Joan Baker –v- Lae Printing Pty Ltd [1979] PNGLR 16 referred to.

24. In claiming damages for defamation the complainant must establish that he suffered the injuries including his personal reputation and feelings. There is no doubt that Mr. Kamtai had suffered injuries but there is no evidence of how much he had suffered. There is no evidence that he suffered sleepless nights, he could not eat well for some days, or he could not openly walk around in public and so on. Such evidence will show how serious the injuries were like. Where the injuries are serious the damages should be higher.

25. The case of Tei Abel –v- Anton Parau [1976] PNGLR 251 is relevant to the present case. In that case the plaintiff was defamed by the defendant at a political gathering whilst the plaintiff himself was present. Mr. Parau told the gathering of the thousands of people that Mr. Abel was in the pay of the Europeans receiving K2, 000.00 to K3, 000.00 from them and that Mr. Abel was not fit to be a leader. The National Court found the words spoken were defamatory and awarded K1, 000.00 in damages.

26. In the case of Griffin –v- ABC (No. 2) [1974] PNGLR 152, the defendant in two news broadcasts published that the plaintiff was charged with having attempted to obstruct the course of justice. The plaintiff did not give evidence but the Court awarded him damages in the sum of K500.00 based on the evidence available in the pleadings.

27. In the present case the defamatory imputations complained of are no doubt quite serious in deed. However there is no evidence of the seriousness of the injuries suffered by Mr. Kamati. As I have said the more serious the injury, the higher the damage should also be. I consider that a sum of K1, 500.00 would appropriate as damages in the circumstances of the case. And I award a sum of K1, 500.00 in damages in favour of the complainant.

For the Complainant – In Person
For the Defendant – In Person