Umben v Suku [2009] PGDC 55; DC872 (23 June 2009)

DC872

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

COMPLAINT NO 35 OF 2009

BETWEEN

CHRISTINE UMBEN
Complainant

AND

NALI SUKU
Defendant

LIHIR: B. TASIKUL
2009: JUNE, 23

TASIKUL, BRUCE: This matter came before me by way of summon upon complaint whereby the complainant is claiming K8000.00 compensation as damages for defamatory remarks made against her by the defendant.

This defamatory remarks were administer to one namely Anna Magoi who is also the complainants inlaw.This defamatory remarks as I quote: Yupela I mekim wanem longdispela meri hia, husat I go raun raun nabaut long Pogera, Mt Hagen, na Lae.na kisim sik nogut ikam na bai I givim yupela. [What are doing with this woman who went travelling at Pogera, MtHagen, and Lae and got this bad disease back which she might pass it on to you all?]What he was referring to was that the complainant had HIV AIDS.

Basically, the facts of this matter are as follows: Anna with her family members were returning home to their village. The defendant decided to drop them home as the defendant owned a vehicle. Anna with some of her sisters was sitting at the back of the vehicle, while her father was sitting inside the cabin with the defendant who was driving.

While approaching their village at Matakues the defendant stopped the vehicle to drop of Anna, as she was the first to be dropped off. While she was still sitting on the vehicle the defendant came out from the cabin and walked across to where she was sitting and then told her these remarks.

He then jumped on his vehicle and continued on dropping of others. Anna was very upset and embarrassed as the complainant was her inlaw.The next day she approached the complainant and told her about what the defendant had told her.

Because the complainant was very embarrassed about these remarks, she has to go for blood screening at the Lihir Medical Centre. This is because all her in-laws already heard what the defendant had told Anna about her. Upon medical check she was found negative. As the result she then took legal proceeding against the defendant for accusing her of having HIV AIDS.

The defendant however denies the allegation saying that he never said anything to Anna about the complainant. He admitted dropping of Anna with her father but he denies getting out of the vehicle and further denies speaking to Anna at any time during that particular day. He testified that when he dropped of Anna, he continued on dropping of the rest of the passengers and then drove back to town.

This was supported by his witness whom I observed as not very truthful.

The following issues now need to be answered:

(1) Whether or not the defendant or the complainant is telling the truth?

(2) Whether or not the word or words spoken were defamatory?

(3) Whether the word or words spoken of was understood by the third party to refer to the complainant?

I will address these issues separately.

The laws governing defamation are stated under the Defamation Act chap. 293. Relevant provisions are: ss.2, 3, &4 of the Act. Section 2 states: Definition of defamatory matter.

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

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

(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 him,

is a defamatory imputation.

Section 3 Definition of defamation:

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 Act.

Section 4 Publication:

For the purposes of this Act, publication is-

(a) In the case of spoken words or audible sound, the speaking of those words or making of those sounds in the presence and hearing of a person other than the person defamed; and

(b) In the case of signs signals or gestures, the making of those signs or signals or gestures so as to be seen or felt by, or otherwise come to the knowledge of, a person other than the person defamed; and

(c) In the case of other defamatory matter-

(i) Exhibiting it in public; or

(ii) Causing it to be read or seen; or

(iii) Showing or delivering it; or

(iv) Causing it to be shown or delivered,

With a view to its being read or seen by a person other than the person defamed.

Now to the first (1) issue: Whether or not the defendant or the complainant is telling the truth?

The defendant testified that he knew nothing about this matter. He never told Anna at any time about calling her in-law having HIV AIDS. He admitted dropping of Anna and her father of at their village, but he denies coming out of the vehicle. He testified that why should he say such a thing when he is not from the same province as the complainant.

He called his witness who testified that he was with him at that time when they dropped off Anna and her father and at no time did the defendant came out of the vehicle. However denies seeing the witness at that time. Those who were on the vehicle were her sisters and other relatives only.

From my observation I notice that the witness was not telling the truth as he was inconsistence in answering question from cross-exmination.He seem too been looking for what to say. I can tell that both the defendant and his witness tried to frame their evidence.

The question is why the complainant should take legal proceeding against the defendant for nothing. A person can’t be taken to court without doing wrong; he must have been something wrong that is why the complainant took him to court. If he denies talking to Anna, why should Anna told her in-law about all this matter? The reason why Anna told Christine was because she felt ashamed of what the defendant told her about her in-law.

She was not a distanced in-law but Christine was married to Anna’s real brother. I don’t believe the defendant was telling the truth. I am satisfied that the defendant was lying in his evidence.

To the second issue: Whether or not the word or words spoken of were defamatory?

The words he use as I quote in pidgin language: yupela I mekim wanem long dispel meri hia, husat I go raun raun na bout long Pogera, Mt Hagen, na Lae na kisim sik nogut I kam na bai givim yupela.This words can be translated to as: What are you doing with this woman who went around to Pogera, Mt Hagen and Lae and got this bad disease who will pass on to you all.

When the defendant administered these words to Anna, straight away she got the impressing that because her in-law just returned from her Province, she must have been infected with the HIV AIDS virus. When she told Christine, she was embarrassed about this so, to make sure that was not true she had to go for a blood test the Lihir Medical Centre which resulted negative.

As we all know this dreadful disease HIV AIDS has no cure and many people had died from it. The disease is spread through sexual intercourse, which is commonly known in Papua New Guinea. Therefore, such statements made by the defendant are very defamatory. These types of statement bring shame to the family of the complainant and her in-laws. As Anna has testified according to their custom this type of statement cannot be made in front of an in-law.

I am therefore satisfied that the word or words spoken by the defendant were highly defamatory in nature.

I will now touch on to the last issue which is: Whether the word or words spoken by the defendant was understood by the third party to refer to the complainant?

The complainant was not present at that time when these statements were administered to Anna. These statements were made in front of his sister in-law, which is a third party. The complainant knew nothing about this whole conversation. She only knew after, when her in-law make mentioned to her the next day.

She could not have told Christine about this, however, she was ashamed of the nature of that statement. The defendant knew that Christine was married to Anna’s brother. He knew their father well, because he often drove him to his village on several occasions. Apart from that there was on, one occasion the defendant brought home to Christine some pig meat which Christine refused to get. This may have had some bearing to this that’s why he made that comment about her. Therefore I am satisfied that the statements made by the defendant were referring to Christine.

The Defamation Act clearly spells out that any statement or words spoken must not made directly to the person who was defamed, but to another person hearing those word or words. I there for find that this word or words had defamed the complainants reputation as a person.

In assessing the quantum of damages I took into account that the complainant is a married woman with children. She is a mother, and she has been living with her husband here at L ihir. She normally earn her living through marketing .Such statement was made in the presence of her in-law which is customary embarrassing, especially in this society where custom plays a significant role.

The defendant on the other hand has strongly denies making such statement when he knew very well that he was lying .He tried to covered up by bring a witness who was not present that time . They tried to lie to the court.

In considering all these factors I entered judgment against the defendant in the sum of K2000.00.Payment be made within 30 days of this judgment.

__________________

COMPLAINANT IN PERSON
DEFENDANT IN PERSON