Benny v Yopo [2009] PGDC 27; DC863 (24 April 2009)

DC863

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

GFCi 02 of 2009

BETWEEN

LEONI BENNY
Complainant

AND

YAYA YOPO
Defendant

Goroka: F MANUE
2009: April 01, 24

CIVIL - Defamation claim – Defamation defined as per the Defamation Act.
Defamation is unlawful under the Defamation Act and the HIV/AIDS Management and Prevention Act 2003.

Cases Cited:

References:

Defamation Act 1962 Ss. 2, 3 & 5.
HIV/AIDS Management and Prevention Act 2003 Ss. 1.
Summary Offences Act 1977 S. 7.

Counsel:

Complainant: In Person
Defendant: In Person

REASONS FOR JUDGMENT

F Manue a/ Grade Five Magistrate: The complainant Ms Leoni Benny comes to court by way of summons. She has complaint of defamatory statements made by the defendant Yaya Yopo and that she is claiming K8,000.00 for defamation and for mental suffering, stress anguish, humiliation and embarrassment.

2. The matter was first mentioned on the 26th of February 2009, where the defendant denied liability.

3. It was adjourned on two other separate occasions where the defendant appeared and maintained her denial. On the trial date – 1st of April 2009, the defendant made no appearance so the court proceeded in hearing the complainant’s case in the absence of the defendant.

4. Complainant called two (2) witnesses inclusive of her own statement.

5. The particular words which the complainant relies on to be defamatory are:-.

“mi sori long yu wantaim man bilong yu long wanem, yutupela igat sik Aids so yutupela mas igo long hausik na sekim blut.”

6. The facts are that, the complainant is acquainted to the defendant who is the sister of her husband. On the 12th of June 2008, at the Goroka main market, the defendant is said to have made the defamatory statement. Following those stigmatising statement, the complainant had to corp with certain negative events that occurred.

7. Firstly, her husband divorced her or that they are now living separately.

8. Secondly, the family who share the house, they live with at Genoka settlement separated them, and moved them out of the house. In addition to that, she went into a voluntary, Counselling and Testing Centre at University of Goroka and did the HIV/ AIDS test. The centre gave a negative result.

9. Finally and not the least, when the defamatory remarks were made, the news circulated among people of Genoka and others which caused those people and close associates of the complainant to shun her and her husband and they kept their distance from them.

Whether a matter of imputation concerning a person is defamatory or not is a question of law and is governed by the Defamation Act.

10. The Summary Offences Act per Section 7, govern sany matter that is said to be an insult, offensive or abusive.

11. Recently, the HIV/ AIDS Management and Prevention Act 2003 restrict other people’s actions and words from discrimination and stigmatizing persons infected with the HIV/ AIDS Virus.

12. And so, what we say or do which are either offensive, abusive or insulting and unacceptable to those whom the words or actions are addressed to are very much governed by the various Acts of Parliament.

13. The issue at hand is not whether the words were defamatory, but rather whether the defendant has any defence.

14. I am not able to ascertain whether there is a defence, although a denial was entered. A denial may not necessarily mean that there is a defence, unless it is properly raised or that it comes out during the cause of the trial or that it is shown by evidence by the defence.

15. This is not possible because the defendant did not file any defence nor did the defendant produce evidence.

16. As it is the complainant’s case stands strong and unchallenged.

17. Defamation is defined under Sections 2 and 3 of the Defamation Act.

1. 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.

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

(c) other persons are likely to be induced to shun, avoid, ridicule or despise, is a defamatory imputation.

(2) An imputation may be expressed or by institution or irony.

(3) The question, whether any matter is or is not defamatory or is or is not capable of bearing a defamatory meaning, to a question of law.

2. 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 or person defences that person within the meaning of this Act.

18. Section 3 makes it very clear that any spoken or audible sounds in writing or by any mode of signs is defamatory and unlawful, unless it is excused by law as provided under the law in various circumstances and situations.

19. Section 5 of the Act declares the publication of defamatory matters to be prima facie and unlawful. The section shifts the burden of proofing that the defamatory matter published was lawful to the defendant or the person who published the defamatory matter.

20. The defamatory matter published has been stated earlier.

21. The publication was made in a public place, namely, Goroka main market, where there were quite a number of people.

22. From there words spread, and people and friends, evaded them and made their social life difficult. People shunned from the complainant and so forth.

23. The publication of the defamatory matter could certainly NOT HAVE BEEN TRUE, because the HIV/ AIDS test showed a negative result.

24. The defamatory matter as publicised was not only defamatory but it “stigmatised” the complainant and her husband.

25. Stigmatise is defined under Section 1 of the HIV/ AIDS Management and Prevention Act 2003 as:-

“stigmatise” means to vilify, or incite hatred, ridicule or contempt against a person, or group on the grounds of an attribute of the person or of members of the group by –

(a) the publication, distribution or discrimination to the public of any matter; or

(b) the making of any communication to the public, including any action or gesture, that is threatening, abusive, insulting, degrading, demeaning, defamatory, disrespectful, embarrassing, critical, provocative or offensive.”

The published defamatory matters are definitely ‘stigmatising.’

26. The complainant in my view has certainly been traumatized, ridiculed and has gone through a lot of hardship and suffering.

27. The amount, she is claiming, certainly cannot make up for what has been gone through and what she may go through after this case.

28. I consider, that what she is claiming for must be given as not only a form of compensation, but that it be a form of punitive and deterrent to others who may want to make wild allegations without bases and facts.

29. I therefore am awarding K8,000.00 to the complainant and costs of these proceedings to a total of K2.00. A total of K8,002.00 to be paid within 6 moths, in default redress.

_________________

Counsel:
Defendant/Applicant: In Person.
Complainant/Respondent: In Person.