Assa v Sipa [2008] PGDC 14; DC658 (1 April 2008)

DC658

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

DCCi 359 of 2007

BETWEEN

JOHN COLLIN ASSA
Complainant

AND

PETER SIPA
Defendant

Goroka: F MANUE
2008: April 01

CIVIL - Defemation – Particular words used – made in front of others.
Defamation – Admitted – Made after having exhausted all legal avenues to re-coup – Judgment debt.
Whether in the given circumstances such accusations are excused by law.

Cases Cited
Nil

References
Sections 3, 6, 11 (1) (c), 11 (2), 9 (1) (d), 17 of the Defamation Act

Counsel
Complainant: In Person
Defendants: In Person

01 April 2008

REASONS FOR DECISION

F Manue: This is a claim by the Complainant Mr. John Collin Assa in the sum of K7, 000.00 against the defendant Mr. Peter Sipa. The particular words used by the defendant are “Yu conman, yu acting hero, yu smart tumas and yu are trying to stop the Police’s duty with your legs in the public.”

2. And that the words were made in a public place at Lumba Lumba Service Station on the 08 day of October 2007.

3. The defendant although has initially denied using the words against the complainant, after hearing evidence, he does not deny using them but that he had an excuse when the words were uttered.

4. The issue therefore is whether he is excused by law to have leveled the complainant such terms as alleged.

5. To appreciate why the Statements were made I will set out the facts as adduced in evidence.

6. The complainant is a proprietor conducting business as Offast Building and General Maintenance Construction Limited in Goroka. Likewise, the defendant conducts business as KK Farmers Hardware, also in Goroka.

7. The complainant on the 12 September 2006, applied for one month credit facility with the defendants business entity, the KK Farmers Hardware, which was approved. Further credit was given on the 07 October 2006.

8. That credit was not honoured, resulting in the defendant issuing several statements to the complainant of the over due credit. He even gave notice to sue the complainant by a “Demand Letter” from the District Court.

9. Those notices were not adhered to resulting in the defendant taking Court proceedings against the complainant for the outstanding debt he owed the defendant.

10. Judgment of K5, 000.00 was entered against the complainant.

11. The judgment debt was not satisfied so the defendant applied to the Court for a Warrant of Execution which was issued and while awaiting execution of the Warrant the defendant made the defamatory statements against the complainant.

12. Prior to making the defamatory statements the defendant said that the complainant had raised a K4, 000.00 cheque on the 15/02/06 to settle his debt but was found to be valueless, when it was deposited or presented at the bank.

13. Other events which occurred prior to the defamatory statements being made and after a judgment was entered against the complainant were that:-

• on more than 40 occasions the complainant had given as undertaking to settle his debt, but has never honoured his word.
• had no vehicles, and after the judgment was entered against him, he had two motor vehicles.
• had failed to keep an appointment with the defendant and Police Warrants and Summons Section to honour his debt.
  

14. All of these lead to frustration and as a result, the defendant confronted the complainant and told him off.

15. The Defamation Act provides for both Civil and Criminal defamation actions.

16. Section 3 of the Act defines defamation as:

A Person who –

(a) by spoken words or audible sound; 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.

17. I have stated that the defendant is not denying in speaking the words as alleged.

18. He has given some facts of why he had made the imputation, thus raising a defence.

19. The Act provides for defences which range from Absolute protection of petition to Parliament under Section 6 to protection of employers under Section 17 of the Defamation Act.

20. Section 11 of the Defamation Act gives qualified protection or excuse to those who impute defamatory matters and is in these terms:-

11. Qualified protection: excuse

(1) For the purpose of this Act, it is a lawful excuse for the publication of defamatory matter if the publication is made in good faith –

(a) by a person having lawful authority over another in the course of a censure passed by him on the conduct of the other person in matters to which the lawful authority relates; or
(b) for the purpose of seeking remedy or redress for some private or public wrong or grievance for a person who has, or whom the person making the publication believes on reasonable grounds to have, authority over the person defamed with respect to the subject-matter of the wrong or grievance; or
(c) for the protection of the interests of the person making the publication or of some other person, or for the public good; or
(d) in answer to an inquiry made of the person making the publication relating to a subject as to which the person by whom or on whose behalf the inquiry is made has, or is believed on reasonable grounds by the person making the publication to have, an interest in knowing the truth; or
(e) for the purpose of giving information to the person to whom it is made with respect to some subject as to which that person has, or is believed on reasonable grounds by the person making the publication to have, such an interest in knowing the truth as to make his conduct in making the publication reasonable under the circumstances; or
(f) on the invitation or challenge, express or implied, of the person defamed; or
(g) in order to answer or refute some other defamatory matter published by the person defamed concerning the person making the publication or some other person; or
(h) in the course of, or for the purposes of, the discussion of some subject of public interest, the public discussion of which is for the public benefit, and if, so far as the defamatory matter consists of comment, the comment is fair.
(i) in the course of, or for the purposes of, the discussion of some subject of public interest, the public discussion of which is for the public benefit, and if, so far as the defamatory matter consists of comment, the comment is fair.

(2) For the purposes of this section, a publication is made in good faith if –

• (a) the matter published is relevant to the matters the existence of which may excuse the publication in good faith of defamatory matter; and
• (b) if the manner and extent of the publication do not exceed what is reasonably sufficient for the occasion; and
• (c) if the person by whom it is made—
  

(i) is not actuated by ill-will to the person defamed, or by any other improper motive; and

(ii) does not believe the defamatory matter to be untrue.

21. I take particular note of Sections 11 (1) (c) and 11 (2) of the Act and give emphasis to them.

22. In this action, the complainant is a judgment debtor of the defendant. He has gone to the limits of the civil law to re-coup his debt and has been awaiting the complainant to honour a lawful order to satisfy a Court judgment since 7 July 2007. Since the order was issued, the complainant had made numerous commitments to satisfy the judgment, but every time he had failed. The defendant had witnessed the complainant gaining addition wealth by way of two (2) motor vehicles, since he (complainant) was entered as a judgment debtor.

23. In my view, given these events the defendant made the remarks in the interest of protecting his business to which the complainant owes a debt.

24. He was witnessing that the complainant was growing in wealth while his business interest was loosing out on what was rightfully his.

25. It is not a case where the complainant had done nothing at all to the defendant. The complainant had on numerous occasions mislead and misinformed the defendant that the judgment debt would be satisfied.

26. In my view these are reasons enough for the defendant to have branded the complainant as such as per the complaint as there is also truths to it and therefore the comments were fair and in good faith in the given circumstances.

27. I therefore hold on the balance of probability that although the defendant did make an imputation concerning the complainant which was defamatory, those imputations were excused under Section 11 (1) (c) and 11 (2) and 9 (1) (d) of the Defamation Act.

28. Therefore the case be dismissed with costs in the cause and the defendant discharged.

Complainant: In Person
Defendants: In Person