Yatefa v Kawage [2008] PGDC 55; DC749 (3 April 2008)

DC749

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

GFCi 339 of 2007 & GFCi 340 of 2007

BETWEEN:

WELLIS YATEFA
Complainant

AND:

SIUNE KAWAGE
Defendant

AND:

BETWEEN:

WELLIS YATEFA
Complainant

AND:

KEN LENDOWA
Defendant

Kundiawa: M. Gauli, PM
2008: March 31st, April 3rd

CIVIL - Claims damages for defamation – Falsely and maliciously published defamatory statement – calling him as “Enormous sex appetite” or as “Notorious in sex crime” – Defence of fair comment, truth and good faith – Joint hearing.

Cases Cited:
Nil

References:
Nil

Counsels:
Complainant, In person
Defendants, In person

03rd April 2008

DECISION OF THE COURT

M. Gauli; PM: The Complainant Wellis Yatefa took out separate actions against each defendant for defamations. For the cause of action against defendant Siune Kawage, Case No 339 of 2007, the Complainant alleged that on 2nd of January 2007 the defendant wrote a letter to the complainant’s supervisors namely the Provincial Police Commander (PPC) in Kundiawa and circulated copies to the OIC of the CID Kundiawa and to the Commissioner of Police at Police Headquarters in Konedobu, Port Moresby and stated that:

“The Complainant is enormous sex apetitle and appeared ten times at a mediation in Kundiawa Police Station over sex related matters”

And in the cause of action against defendant Ken Lendowa, Complainant No. 340 of 2007, the Complainant claims that on 2nd of January 2007, the defendant wrote a letter to the P.P.C and copies, circulated to the O.I.C. of C.I.D in Kundiawa and to the Police Commissioner at the Police Headquarters and state that:

“Constable Wellis Yatefa has a record in this town Kundiawa for sex related offences against married women and he is notorious in sex crime”.

And the complainant claims that these statements are very defamatory and they are in their ordinary and natural meaning understood to mean that the Complainant is:

(a) a person with very high moral and immoral sexual Instincts desires and activities.

(b) Cannot live without sex every day.

(c) And adulterer.

(d) The Rapist.

The defendants wrote separate letters and the copies circulated to the same person about the complainant alleging him to be involved in sex activities in Kundiawa. Since the nature of the complainants and the matters complained off are said to have been levelled at the same complainant, I have decided to dealt with both matters together.

The Complainant and the defendants have all filed affidavit evidence and written submissions. And they all decided to rely on their affidavits and their submission and they asked the Court to make its decision based on their affidavit evidence and their written submission without proceeding to Cross-examine the opponents. And I do so now.

In the Complaint No. 339/07 against defendant Siune Kawage, the Complainant Yatefa Wellis and his witnesses Bomai John, Jacinta Yatefa, and Senior Constable Himson Larmatam filed affidavit evidence. The complainant in his own affidavit sworn on 8th May 2007 claimed that he was accused of enticing Mrs. Margaret Ken on or about December 2006. That complaint went through mediation before Sergeant Joe Wagai and the complainant Yatefa Wellis was ordered to pay compensation to the defendant Ken Lendowa and his wife Margaret Ken and he paid K500.00 to them.

Complainant Wellis Yatefa never stated in his affidavit that he never sexually interfered with the wife of defendant Siune Kawage. However in his (Complainant’s) own written submission dated 22nd October 2007, he stated on paragraph 8 on page 2, and I Quote:

“The allegation of sexual behaviour, against the complainant witness defamation proceedings over Janet Siune’s case, is lawfully entertained by police and now before the National Court awaiting trial”

The defendant Siune Kawage in his affidavit sworn on 22nd May 2007 deposed that what he stated about the complainant Wellis Yatefa in his correspondence to the PPC, are based on truth and are not lies. And he deposed that on 27/03/04 Complainant Yatefa pushed his finger into Mrs. Jannet Siune’s genitals at Kundiawa Police Station toilet, attempted rape and that case is pending in the National Court. Defendant Siune Kawage also deposed and confirmed Wellis Yatefa paying K500.00 compensation for enticing Margaret Lendowa.

The witness Bomai John, a police reservist deposed in his affidavit sown on 8th May 2007 of the incident of the 7th February 2007 when he attempted to serve the summons on defendant Siune Kawage. In refusing to accept the summons, defendant Siune Kawage commented, and said “repim meri bilong mi ya” referring to the complainant.

The witness Senior Constable Himson Larmatam who is the O.I.C of the C.I.D Kundiawa Police Station deposed in his affidavit of the copy of the two letters sent to him that were written by both defendants. He confirms the defamatory statement in those two correspondences above mentioned.

In the complaint No. 340/07 against defendant Ken Lendowa, the Complainant Wellis Yatefa and his witnesses Mrs. Jannet Wellis Yatefa, Senior Constable Himson Larmatam deposed same or similar evidence in their affidavit as against defendant Siune Kawage.
The witness Reserve Sergent David Kale deposed in his affidavit of him being involved in resolving the complaint between Wellis Yatefa and Mr & Mrs Ken Lendowa where Wellis Yatefa paid K500.00 compensation. The witness Willie Kunauna in his affidavit also confirmed the mediation and the payment of K500.00 by Wellis Yatefa.

There is no dispute that the defendants wrote separate letters containing the alleged defamatory words of the complainant. The defendants have admitted writing or publishing the defamatory statements. However the issue to be decided is “whether or not the defendants have defence available to them.”

In the actions for defamation there are number of defences available under the Defamation Act particularly under s.9 (fair comment); s.10 (truth); and ss.11 & 12 (good faith). By these defences it is lawful for a person to publish a defamatory imputation if it is based on fair comment, truth and or on good faith. Are these defences available to the defendants then.

From the evidence as provided by both parties before this Court and considering the admissions by the complainant himself in his own affidavit and his written submissions of him paying K500.00 compensation for enticing Mrs. Margaret Ken and his criminal charge for attempted rape against Jannet Siune which case is pending before the National Court, I find that the publications by both defendants are based on fair comment, truth and good faith. I am satisfied on the balance of probabilities that defence of fair comments, truth and good faith under ss.9 to 12 of the Defamation Act are being established in favour of the defendants. I find that the defendants are not liable. And I make orders that the cases be dismissed and the defendants’ discharged.

Complainant, - In person
Defendants, - In person