Gitene v Rombuk [2008] PGDC 69; DC732 (21 July 2008)

DC732

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

GFCi 396 of 2007

BETWEEN

ROCKSY GITENE
Complainant

AND

QUINTINE ROMBUK
Defendant

Goroka: M Gauli, PM
2008: Feruary 27
April 11
May 01, 14
June 11
July 07, 21

CIVIL - Defamation – Defamatory words relayed by the Defendant made by a third person – The third person not been sued as a party in the proceedings – Key witness not called – Defendant not liable.

Cases Cited:
Nil

References:
Nil

Counsels:
For the Complainant – In Person
For the Defendant - Mr. M. Mukwesipu of Steven Davis Lawyers

DECISION OF THE COURT

M. GAULI, PM: The Complainant Rocksy Gitene claims K5,000.00 damages for defamation against the Defendant Quintine Rombuk. It is alleged that on the 28th of June 2007 when the Complainant’s son Royal went to pick up Mr. Gitene’s allowances at the Goroka Urban Local Level Government’s office, the Defendant made a defamatory statement of the Complainant by saying; “Papa bilong yu ino save wok, em isave kisim moni nating nating istap”

2. Undisputed Facts

The Complainant Mr. Rocksy Gintene is a police prosecutor. He was engaged by Goroka Urban Local Level Government (GULLG) as a retainer to prosecute the GULLG cases. He was paid on a fortnightly allowance of K100.00. His engagement was made on oral agreement. During the 2007 National Elections, the Complainant was engaged for the elections in the Southern Highlands Province. He allowed his son Royal to collect his unpaid allowances while he was away on election duties. A cheque of K300.00 of his allowance was collected by his son Royal. A few days later, Royal went back to collect another cheque for his father’s allowances, that was on 28th June 2007 when the Defendant is alleged to have make the said defamatory statement. The words complained of were defamatory and they were published.

The Defendant, Quintine Rombuk is an employee of GULLG as a Creditor’s Clerk.

3. Disputed facts

Defendant denied making the alleged defamatory statements as an individual person.

4. Evidence for the Complainant

1. The Complainant relied on his own evidence and the evidence of his wife, Ruth Gitene. His son Royal Gasuware had not been called to testify. He is teaching in one of the schools in New Ireland Province.

2. Mr. Rocksy Gitene gave evidence that he was one of the members of the troops from Eastern Highlands police who were assigned to the June 2007 National Election duties in the Southern Highlands. He left Goroka on the 27th of June 2007, in the afternoon. Before he left he spoke to Mr. Y. Uyassi, the Manager of the Goroka Town Authority about his unpaid retainer allowance and he was told that a cheque would be ready by 28th June 2008. And so Mr. R. Gitene told his son Royal Gasuware to collect the cheque when it is ready on his behalf.

3. After the election duties Mr. R. Gitene returned to Goroka on the 07th of July 2007. That evening while he was with his family having dinner, his wife told him what the Defendant said to her and their son Royal Gasuware; “Papa bilong yupela ino save wok, emi save kisim noni nating nating.” (Meaning “Your father or daddy does not work but gets money for nothing”).

4. Having heard this statement, Mr. R. Gitene left his food and he went to bed. He was sleepless that night. Next morning he woke up early and went to see his son, Royal Gasuware, at Goroka High School and Royal confirmed that alleged statement. Mr. R. Gitene could not control himself so he drove to Masi Village looking for the Defendant, but he was unable to find her there. He went looking for her at her place of work, but she was not at work. He then attend to his election duties in Goroka from the 9th – 16th of July 2007.

5. On the 17th of July, he went to the Defendant’s place of work at Goroka ULLG’s office. The Defendant was in the office. Mr. R. Gitene was so angry that he wanted to physically assault her but others stopped him.

6. The witness Mrs. Ruth Gitene is the wife of the Complainant. She deposed in her affidavit (EXHIBIT ‘B’) that on the 29th of June 2007, she went to see her son Royal Gasuware at Goroka Secondary School. Royal handed her the cheque for the Complainant and Royal told her of what the Defendant had said to Royal the following:- “Papa bilong yu ino save wok – emi save kisim moni nating nating.”

7. On hearing these words, Mrs R. Gitene became so furious that she went to the Defendant’s place of work, but she was stopped by one Namie to calm down. She then asked the Defendant when did Mr. Gitene not work and get money. To this Defendant replied; “Bos itok papa bilong yupela em ino save wok, na kisim moni nating, no ken givim moni.” (Meaning “Bos said that your daddy does not work but gets money (or pay) for nothing, don’t pay him money.”)

5. Evidence for the Defendant

1. For the Defendant’s case, Defendant Quintine Kombuk and Mr. Yauggao Uyassi gave evidence as follows:-Defendant Quintine Rombuk is employed by the Goroka Urban Local Level Government also known as Goroka Urban Town Authority as an Account’s Payable Clerk (or Creditor’s Clerk.) She gave evidence that Mr. R. Gitene’s son approached her at her office regarding Mr. Gitene’s cheque for his allowance. Upon the approval by Mr. Y. Uyassi, the Town Manager, the Defendant raised a cheque for K300.00 on a date in June 2007. Some days later , Mr. Gitene’s son approached the Defendant for another cheque payment for his father Mr. Gitene. This time the Manager, Mr. Y. Uyassi, instructed the Defendant not to raise a cheque as Mr. R. Gitene was not doing any work for the Goroka ULLG as he was away on election duties. The Defendant then conveyed that message to Mr. Gitene’s son. Earlier the Town Manager instructed the Defendant to raise another cheque for K200.00 and she did but on second instruction by the Manager, the Defendant withheld the cheque. Some days later Mr. Gitene’s Son went back to the Defendant to collect that cheque. He became furious and he argued with the Defendant and he left.

2. The Defendant’s witness Mr. Y. Uyassi gave evidence confirming that he orally engaged the Complainant as a retainer to prosecute cases for the Goroka Urban Local Level Government on a fortnightly allowance of K100.00. Over a time not many cases were to be prosecuted so the Town Authority decided to discontinue their earlier arrangement with the Complainant. In June 2007 National Election, the Complainant was engaged in that election and was not prosecuting cases for the Goroka ULLG. And so he instructed the Defendant not to release the K200.00 cheque raised to the Complainant. The Complainant was still entitled to the K100.00 allowance even if he was not prosecuting cases for them. There was no fixed period for this retainer arrangement.

3. The above are the evidence of both parties given before this Court.

6. Issues

There are only two issues for this Court to consider, and these issues are:

1. Whether the defamatory words complained of belongs to the Defendant.

2. If so, does the Defendant have any defence available to her under the Defamation Act?

Issue No. 1: Whether the defamatory word complained of belongs to the Defendant.

1. The defamatory words complained of were alleged to have been spoken by the Defendant on the 28th of June 2007, in the hearing of the Complainant’s son Royal. He has not been called to give evidence despite the Defendant’s intention to cross-examine him in Court. He is the only witness for the Complainant who would tell this Court what exact words the Defendant said to him about the Complainant.
The defamatory words the Defendant alleged to have said were; “Papa bilong yu ino save wok, emi save kisim moni nating nating”.

2. The Complainant’s witness Mrs. Ruth Gitene gave evidence that she was told by her son Royal on the 29th of June 2007, that Defendant said those defamatory remarks. And when Mrs. R. Gitene approached the Defendant on the 29th of June 2007, the Defendant said to her; “Bos itok, papa bilong yupela ino save wok na kisim moni nating, noken givim moni”.

3. The incident of the 29th of June did not form part of this cause of action. The Complainant’s evidence is mostly hearsay since he failed to call his key witness Royal.

4. The Defendant’s evidence is that, she was only relaying or informing Royal of what the Manager Mr. Y. Uyassi told the Defendant, that is the very words the Defendant said to Mrs. R. Gitene on the 29th of June 2007. And the Defendant’s witness Mr. Y. Uyassi gave evidence in court that the words the Defendant said to Royal were the very words Mr. Uyassi instructed the Defendant of in order to withhold the cheque of K200.00.

5. I find on the balance of probabilities that the alleged defamatory words spoken by the Defendant to Royal were not the Defendant’s own words. The Defendant was basically relaying to or informing Royal of what Mr. Y. Uyassi said to the Defendant. The defamatory words were spoken by a third person or those words were that of a third person. I have not been able to find any case laws where a person who relays the defamatory words spoken by a third person can be held liable for defamation. And my view is that in a situation such as this, a person could not be held liable for relaying a third person’s defamatory words where the third person has not been included as a party in the proceedings.

Issue No. 2. If so, does the Defendant have any defence available to her under the Defamation Act?

1. If the answer to Issue No. 1 above is that “yes the defamatory words complained of belongs to or were the actual words of the Defendant herself, then the court could proceeded to decide whether or not the Defendant has any defence available to her. Since the finding of this court to the Issue No. 1 (above) is that “No, they were the words of a third party,” it is not necessary for me to determine the Issue No. 2.

2. However in passing, I wish to say that since the Complainant was engaged on a retainer arrangement with the Goroka ULLG, he is only entitled for his fortnightly allowances upon providing the actual service to the Goroka ULLG. There was no agreement to pay allowance in advance. The Complainant was paid K300.00 for all his unpaid allowances for the work done. There is no evidence that the other cheque payment of K200.00 was also for the unpaid allowance for the work already done. It would appear that the second cheque was for the advance allowance for the period from 27th June onwards. And for that period the Complainant was engaged in the National Elections in the Southern Highlands Province. He was therefore not available to prosecute cases for the Goroka ULLG that period. And so he could not be entitled to that allowance. I find that the words spoken by the Defendant on behalf of her Manager Mr. Y. Uyassi were a fair comment pursuant to section 9 of the Defamation Act. The defence of fair comment is available for the Defendant.

3. From the evidence as alluded by both parties and from the reasonings and the findings of this court as above, I find the Defendant is not liable for the alleged defamatory words made by a third person of the Complainant. The Defendant simply relayed this information to the Complainant’s son the reason why the cheque could not be released. Accordingly this court orders that the case be dismissed with costs for the Defendant.

For the Complainant: In Person
For the Defendant : Mr. M. Mukewesipu of Steven Davis Lawyers