Momo v Wakeri [2009] PGDC 6; DC843 (7 May 2009)

DC843

PAPUA NEW GUINEA
[The District Court of Justice]

CASE NO. 78 OF 2009

LEONTINE MOMO
(Complainant)

v.

PRISCILLA WAKERI
(Defendant)

Tabubil: P. Monouluk, SM
2009: 07th May

DEFAMATION – Remarks spoken in pidgin language and repeated three times – "Dispela pikinini nogat papa mama blong em o?" (English: Does this child have its parents?) – Ordinary and natural meaning of – Child refer to as a bastard – Remarks also appears to question the paternity of the complainant’s unborn child – Meaning of remarks to an ordinary Papuan New Guinean – Remarks made during a Catholic church procession involving many other church faithful – Remarks defamatory per se – Remarks defamatory of the complainant – No apology offered

DEFAMATION – Defense/excuse of good faith – Circumstances of parties prior to incident shows lack of good faith by the defendant – Choice of words contrary to what the defendant wants court to believe – Defendant motivated by ill-will and malice – Defense/excuse not established

DEFAMATION – Assessment of damages – No apology offered – In following the 1976 case of Abal v. Parau assessment of damages must take into account the value of Kina compared to the value of US Dollar at that time – Aggravating damages – Defendant liable in the sum of K7000.00

Cases cited:

1. Theresa Joan Baker v. Lae Printing Pty Ltd [1979] PNGLR 16
2. Wama Bole v. Willie Imbel (1982) N354
3. Rimbink Pato v. Umbu Pupu [1986] PNGLR 310
4. Henzy Yakam & ords v. Stuart and Carol Merriam [1999] PNGLR 592
5. David Coyle v. Loani Henao (2000) SC655
6. Tei Abal v. Anton Parau [1976] PNGLR 251
7. Wayne Cross v. Wess Zuidema [1987] PNGLR 361
8. Pawa Kombea v. Semal Peke [1994] PNGLR 572
9. Wyatt Gallagher Bassett (PNG) Ltd v. Benny Diau (2002) N2277
10. Arlene Pitil v. Rutis Clytus (2003) N2422
11. Adam v. Ward [1916-17] All E.R. Rep 159
12. Andrew Lope v. Mark Seeto (2002) N2281

Counsel:
Complainant in person.
Defendant in person.

07th May, 2009.

1. P. Monouluk, SM: This is a claim of defamation of character made pursuant to s. 24 of the Defamation Act Chp. 293 of the revised laws. The complainant is seeking damages in the vicinity of K5, 000.00 against the defendant Priscilla Wakeri whom she claimed had defamed her on Good Friday the 10th of April 2009 during a Catholic Church ceremony called the Procession-of-the Cross in Tabubil, Western Province.

2. The remark complained of was allegedly made by the defendant in the presence of other Catholic faithful towards the complainant concerning her seven (7) year old niece who apparently has a lighter skin complexion and can be taken for albinism. The remarks complained of were repeated three times in this manner:

"Dispela albino ya nogat papa blong em?" (English: Does this albino child have a father?)

3. It is not denied by the defendant that she had made a certain remark. According to her the remarks she made were in these terms and not as what the complainant would like the court to believe:

"Dispela pikinini nogat papa mama blong em o?" (English: Does this child have its parents?)

4. The defendant insisted that those were the exact words she had used concerning the child and strenuously denied using the term ‘albino’. To avoid going to trial and with the acceptance of the complainant the court then proceeded to accepting the version offered by the defendant. The question the court must now ask is whether the remarks by the defendant were defamatory in nature?

5. Before I proceed to answering this question let me explain the background to this case. This is a vendetta that was allowed to run for about 10 years between the families of the parties the Momos and the Wakeris of Tabubil, WP. The families are members of our local Catholic faith and are here because their fathers are both employees of the Ok Tedi mining company. Their difference in opinion had gone on for a decade much longer than the World War I and II; when it will end no one knows.

6. The complainant is a young woman possibly in her early 20s while the defendant is older and is a mother. The problem started because of the boy/girl relationship between the complainant and the defendant’s younger brother Shey Wakeri. The complainant and Shey are very much in-love to the dismay of the defendant and her parents. While the complainant’s family accepts Shey as their son-in law, the defendant and her family had refused having anything to do with the complainant and her family, consequently Shey had to leave his parent’s home to reside with the complainant and her family. The parties have never been in good terms since then and this is the first time they are in court in this manner. At the time of the incident the complainant was seven months pregnant with their first child.

7. May I first look at the law that governs this cause of action. The Defamation Act (supra) defines under s. 3 what defamation is. Section 3 is in these terms:

"3. 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 a person defames that person within the meaning of the Act."

8. What is then a defamatory imputation? This is defined under s.2 of the Defamation Act. This law which had brought into statute form the English common law of defamation and further consolidates it in our jurisdiction by its inception had operated to remove the two distinct natures of defamation which we know as libel and slander. Under the Act, which this cause of action was formulated, slander and libel are now viewed simply as defamation irrespective of their exact nature and form and s. 2 of the Act reaffirms that in defining what a defamatory imputation/remark is in Papua New Guinea. Section 2 is in this manner:

"2. 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; 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."

9. For an imputation to be accepted as defamatory it must fall within the ambit of ss. 2 and 3. Moreover and importantly, it must be published in such a manner that it be seen, read, heard or touched by a third party other than the victim pursuant to s. 4 and when viewed by the court is capable of causing damage to the complainant in some form or manner.

10. It is not denied that the remarks were made by the defendant against the niece of the complainant during a church procession involving many people. It is not denied either that many of those people who were part of the march did hear or saw what had happened. The defendant however explained that her remarks were made because the child was causing nuisance during the march by running in- between the marchers and her intention was to get the attention of the complainant to restrain the child. To me the defendant is raising an excuse/defense of having made the remarks in good faith. Nevertheless, I will look at this aspect later. For now let me answer the question I had posed earlier whether the remarks complained of were defamatory per se.

11. In the case of Theresa Joan Baker v. Lae Printing Pty Ltd [1979] PNGLR 16 Justice Wilson sitting in the National Court in Rabaul, ENBP held that words complained of be given their ordinary and natural meaning so that when viewed by the court it be seen to impute to the complainant certain connotations or assumptions that has the tendency to lower his reputation in the estimation of others. This has been the approach since and there is no reason to deviate from it today.

12. In the case at hand the remarks used when seen in its ordinary and natural pidgin meaning as understood by an ordinary Papua New Guinean would appear to mean that the child was an illegitimate – a bastard. In our society we value and treasure a sense of belonging to families, clans and tribes. Through these relationships we assume our identity and our inheritance. To be branded a bastard is to imply that one is a hanger-on, an outcast, or a second class citizen who has no sense of belonging and cannot inherit anything particularly land and other cultural inheritance from its fathers and uncles. When this happens to a child it may subject him/her to stigmatisation and often is extended to its relatives particularly women as unsteady and promiscuous who has the tendency to bear children out of wedlock.

13. Although no names were mentioned by the defendant it would be reasonable to say that most of the marchers who were members of the church the parties attend would have had a fair idea who the remarks were directed at during the march. The remarks made must be understood by those present that they were meant for the complainant and the child. In any case the defendant had admitted directing the remarks at the child who apparently was in the custody of the complainant. It is immaterial whether others had believed the remarks or not; and is immaterial whether or not the complainant is affected by the remarks, Baker v. Lae Printing; Wama Bole v. Willie Imbel (1982) N354

14. In the case at hand there appears also to be a further implication into the remarks by the defendant. We know that the child was born out of wedlock by the complainant’s elder sister and by the defendant’s remarks it may be seen by others to mean that the complainant who was heavily pregnant at that time of the incident may also be following the footstep of her elder sister thus questioning the paternity of her unborn child.

15. Again in a PNG context such remarks are very offensive, especially of the complainant whom at that time was heavily pregnant and the remarks had the potential to subject her to further ridicule elsewhere. Remarks of such nature has in the past led to violence involving families and their extended members and often led to death and destructions in pursuit of protecting their family names and status. In fact that was exactly what had happened between the complainant and her family members against the defendant. Fortunately the police was on hand to quell the unrest.

16. We must understand that unless the defendant can offer justification under law, it is prima facie unlawful and as the person responsible for propagating such remarks she must be held accountable. The Defamation Act is available to protect both the complainant and defendant. The former is entitled to her good name/character and title and those of her relatives; dead or alive, and the latter who seeks to raise issue with the former must do so in manners allowed by law failing which can result in prosecution.

17. While words when seen in their ordinary and natural meaning may be of paramount consideration as was in the case of Baker v. Lae Printing, one must not be ignorant of factors surrounding a case particularly when their existence may explain an action or a reaction from either of the parties and when viewed objectively will be seen as pointers for the court to follow in its endeavour to establish liability. For instance, circumstances and situations the remarks were made in; where they were made; the status of the parties; their duties and responsibilities and their background are some considerations the courts do look at to establish or dismiss liability.

18. In the case of Rimbink Pato v. Umbu Pupu [1986] PNGLR 310 the appellant a first year law student at UPNG went to the Supreme Court after his case was thrown out by the National Court following its ruling that the respondent, a community leader and a Provincial Member of the Enga Provincial Government, had acted in good faith when he wrote a letter seeking termination of the appellant’s scholarship concerning a certain of the appellant’s conduct and copied various government bodies that had relationship of some sorts with the appellant.

19. The Supreme Court in dismissing the trial judge’s finding was able to look at the respondent’s actions prior to sending the letter when he publicly boasted about what he intended to do to the appellant and what will become of him when he gets terminated from school. The Court saw that as a community leader and a member of the Provincial Assembly the respondent was motivated more by offence and not good faith when he wrote and copied others of the letter soon after his ego was challenged by the appellant a first year law student.

20. The Court thereafter ruled that the trial court misconstrued the real intention of the respondent by placing emphasis on a wrong set of facts as having dominant effect, subsequently was blinded to the appellant’s claim that he was defamed. The Court in considering the past conduct of the respondent said that in actual fact the respondent by his letter desired to jeopardize the education of the appellant and therefore his action was motivated by ill-will. Consequently the respondent was found liable by the Supreme Court and the matter remitted to the National Court for the assessment of damages.

21. In the later case of Henzy Yakam & ords v. Stuart and Carol Merriam [1999] PNGLR 592 the appellants, a newspaper reporter and two Government Ministers (one a vice minister) went to the Supreme Court after they were found liable by the National Court and subsequently ordered to pay K40, 000.00. The Supreme Court found that the trial judge had overlooked certain important aspects of the appellants before holding them liable. By virtue of their duties and responsibilities as well as their role in the community and the society at large they were privileged to have published or cause to have published a newspaper report relating to respondent one. The Court basically placed prominence on their respective roles which accorded them the excuse to cause publication hence the article, although defamatory per se, was seen by the Supreme Court as published on an occasion deemed privileged thus excused by law.

22. In the Pato v. Pupu case the court having reviewed the actions of the respondent prior to writing the letter found him to have acted not in good faith and therefore was held liable. While in the Yakam v. Merriam case the court having reviewed the duties and responsibilities of the appellants found them not liable. It is fairly obvious from these cases that the conduct of the parties, their positions and roles do have bearing on liability. That was also the same in Baker v. Lae Printing case and many other similar cases and the courts will continue to review them to ascertain the real intentions of the parties at the time those remarks were published and not what they want us to believe now.

23. Similarly in the case at hand we know what had transpired between the parties leading up to the incident which is not denied by the defendant. With this type of backdrop concerning them a bystander no doubt will be able to say without much difficulty that the remarks by the defendant were biased and motivated by bad faith and in doing so had revealed her true motive. Although she explained that all she wanted to do was to control the misbehaving child, however her choice of words coupled with her turbulent relationship with the complainant proved to the contrary.

24. Had the defendant was genuine in her attempt to control the child she would have quietly spoken to the child in a motherly manner or politely approached the complainant for her to control the child rather then publicly uttering such remarks in the hearing of everyone, who I presumed had no business to hear or know. In fact there was no need for a raised voice because the procession was in prayer and the need for silence was observed at that particularly moment.

25. Bearing in mind the excuse so raised by the defendant of having acted in good faith and in light of the points I have mentioned I must say that that is not the case today. I believe the defendant was motivated by bad blood and had acted out of ill-will and malice when she repeatedly made those remarks on the 10th April 2009 despite her attempt to explain otherwise.

26. As I have pointed out, they have a running battle prior to the incident and the manner in which the remarks were worded and repeated not once or twice but three times go to paint a picture of malice on the part of the defendant. I see this as a deliberate attempt by the defendant to use the complainant’s niece to discredit the complainant in the presence of others. The defendant knew who her remark was meant for and in fact went on to admit that she knew the child as being the illegitimate daughter of the complainant’s elder sister.

27. I am satisfied on the balance of probabilities that not only were the remark defamatory per se but were defamatory of the complainant as a relative of the child. I view the defendant’s action as geared towards lowering the complainant’s character and reputation in the estimation of other church faithful so that she may possibly be avoided, despised or shunned.

Assessment of damages

28. I must admit that it is difficult trying to put a monetary value to the hurt suffered by the complainant. I say this because unlike claims under different cause of actions, damage suffered in defamation suits are not tangible and are therefore presumed. This is a principle of law and was highlighted in the Supreme Court case of David Coyle v. Loani Henao (2000) SC655, and in the same breath the Court also restated the purposes of damages which I affirm in pursuit of making my assessment:

"The law does not say that the person defamed must prove injuries before he can be compensated. Damages awarded in defamation serve three purposes, which overlap considerably in reality and ensure that "the amount of a verdict is the product of a mixture of inextricable considerations. The three purposes are (i) consolation for the personal distress and hurt caused to the appellant by the publication, (ii) reparation for the harm done to the appellant’s personal and (if relevant) business reputation and (iii) vindication of the appellant’s reputation."

29. Often such presumption on damages may not fully redress the complainant; however that is a matter entirely up to the court’s discretion which often see it awarding damages below or beyond what was initially sought.

30. The amount awarded in damages in defamation cases has significantly increased over the years since the first reported case of Tei Abal v. Anton Parau [1976] PNGLR 251 (K1,000.00); Baker v. Lae Printing case (1979 - K6,000.00); Wayne Cross v. Wess Zuidema [1987] PNGLR 361 (K5,000.00); Pawa Kombea v. Semal Peke [1994] PNGLR 572 (K10,000.00); Coyle v. Henao (2000 - K50,000.00); Wyatt Gallagher Bassett (PNG) Ltd v. Benny Diau (2002) N2277 (K90,500.00); Arlene Pitil v. Rutis Clytus (2003) N2422 (K50,000.00).

31. In the 1990s and on wards the courts began to award increased damages as a result of increasing calls by plaintiffs for the National Courts to be firm and decisive on character assassins. The courts are more responsive towards protecting those who have over a number of years build names, reputations, characters and status and have them being destroyed by those who usually were actuated by malice or ill-will.

32. I cannot agree any more than citing with approval what the Yakam v. Merriam case had cited of Lord Atkinson in the case of Adam v. Ward [1916-17] All E.R. Rep 159 who said:

"It takes a person years if not a lifetime to build up a reputation in society and or a good will for a business. But it takes only a careless stroke of a pen or a simple unguarded utterance of a word to destroy all of that in no time. Therefore, the law has developed in the way it has to protect a person’s reputation and the good will of a business so as to ensure nobody publishes anything adverse against another, unless it is true and made in good faith or is made without malice."

33. This was subsequently approved and followed by Justice Ambeng Kandakasi in the Bassett (PNG) Ltd v. Diau case and the Pitil v. Clytus case. His Honour then went on to award K90,500.00 and K50,000.00 respectively but one can appreciate the decisive approach by the courts to offer solace and vindication to those who have been unfairly dealt with as a result of malice and ill-will.

34. I believe that such value in damages should reflect the value and importance society places over names and reputation and the need to safeguard them from potentially harmful remarks against them, especially those motivated by ill-will and malice. From these we can understand why in the case of Coyle v. Henao case the Supreme Court in observing a principle of law in the book by Raymond E. Brown, Carswell, 1987, "The law of Defamation in Canada" reaffirmed that:

" A good name proverbially is rather to be chosen than great riches, but loss may require heavy financial solace."

35. To me this means that good name, character and reputation is deemed more valuable than gold and silver and therefore the Holy Bible urges us to treasure and preserve them over riches. In the event the former is being defamed then an appropriate monetary compensation must be awarded to reflect this importance and value society sees of them. Since then the courts began to order damages greater than what was originally imposed in the post Independence era.

36. In the case at hand I view the defendant’s conduct as a deliberate attempt to discredit the complainant before other Catholic faithful. Undisputed evidence shows that the defendant repeated the remarks three times. Credit must go to the complainant for showing restraint when the remarks were first made by continue to remain in prayer. Seeing no reaction from the complainant the defendant again repeated her remarks the second time. Once again the complainant held fast in prayer. This prompted the defendant to make her third attempt which by then had got the better of the complainant prompting a scuffle between them and others.

37. How else can I describe the defendant’s behaviour. It was a deliberate attempt by the defendant – a person of evil fame to discredit the complainant in the presence of other Catholic faithful. Not even the sacredness of the procession, which she was a part of, and the presence of others was able to deter her. This behaviour is unbecoming of a Christian and it makes one wonders as to whether people do still have respect and reverence of our God anymore.

38. My understanding of the procession the parties participated in at the time was for the faithful to make a public display of what Christ had done immediately before he was crucified. Christ who was sinless had to bore our crosses as a result of our sins and unrighteous yet the defendant used that sacred church activity to publicly promote sin and unrighteous. It was a bad exhibition by the defendant and I am sure those who were present will by now know the defendant as being an arrogant and disrespectful person who possesses no restraint.

39. We must not forget that God had given us free use of our tongues so that we may use them to promote positive living by speaking life onto others. Our tongues were never intended to bring condemnation and curses on others. Misuse and abuse of our tongues has seen countless people in court because they have no restraint and therefore offend another brother or sister. Justice Kandakasi made a similar sentiment in the case of Andrew Lope v. Mark Seeto (2002) N2281 where use of our mouths are concerned and I agree. He said:

" ... I stated that our country is built on the Christian principles by a deliberate act in our Constitution, which is noted in its preamble. One of the important principles all Christian Churches teach is to abstain from language that is abusive or that would otherwise amount to an injury of the other’s feeling or cause embarrassment. Christianity teaches brotherly love amongst all irrespective of who or what we are. Everyone of us are admonished to respect one another. Using abusive language to abuse another person, therefore, does not have any place in our society. It is common knowledge throughout the world and PNG is no exception, that bitter wars are fought as a result in most case over the use of abusive language, hence the wisdom of the teaching or the principle against the use of abusive language."

40. I am reminded that the defendant in pursuit of her evil intent had used an innocent child to attack the complainant. While her focus may have been the complainant the defendant’s action had caused the child to ask the complainant why the defendant had refer to her as an albino. To me the child appears to understand the word as referring to her however I am reminded that the accepted version of the remark was the one put forward by the defendant and agreed by all. Nevertheless the child’s behaviour after the remark does indicate that it had understood that the remarks were made of her consequently the complainant had to comfort her.

41. I would like to think also that the defendant by her conduct had abused an innocent child. I am reminded that the child was affected by the remarks, something she does not deserve by any measure. It is clear that the difference was between the adult members of their families and there was nothing to do with the child yet the defendant without restraint saw fit to use the child as a scapegoat.

42. It is imperative upon everyone including the defendant to endeavour to protect children who usually are caught in between conflicts and differences amongst adults. In this case it should have been a natural thing for the defendant, who was a mother herself, to use her motherly instinct to refrain from abusing the child bearing in mind that she has one of her own. Again that meant nothing to her.

43. I do accept that the complainant was affected emotionally by the remarks. Even in court she was still emotional when reliving how she and her niece were affected by the remarks. Her character and reputation in our small community and, of course, in the Catholic fellowship would have been adversely affected to some extent. No doubt such remarks would have caused those who were present to form a negative opinion of the complainant possibly on her pregnancy not because of her fault but because the defendant had acted out of jealousy, hatred and malice at the expense of her reputation and character.

44. We must not forget that at that time the complainant was heavily pregnant at seven months. The possibility of her pregnancy being affected was likely as a result of the emotional and mental stress she had to endure. Expectant mothers often suffer miscarriages or premature births as direct consequences of unstable mental health and therefore one can appreciate that emotions do play a significant part leading towards their delivery of babies.

45. It has always being the practice that mothers are at satisfactory health status; that is they are physically and mentally prepared to endure a normal labour delivery. I would imagine the actions by the defendant may have to some extent caused the complainant some form of stress and anxiety and may have caused her a mental interruption in her preparation towards delivery, bearing in mind that this would be her first baby.

46. Furthermore, there was no apology forthcoming from the defendant. This in turn will not help the defendant in her course to mitigate damages. The law realizes the importance of an apology and what it can do in such situations therefore it was incorporated into the Act (supra) under s. 25 for a defendant to avail himself of. This simple act of saying sorry is indeed an important consideration for the court to review when deciding on the quantum of damages.

47. Whether or not an apology was offered by the defendant would reveal her acceptance of her mistake and her desire to start a fresh. There was no indication that the defendant had made any apology to the complainant prior to the proceeding. Her denial of the use of the term ‘albino’ during hearing was indicative of her refusal to walk a part of reconciliation which can only be achieved with first offering a simple word of apology. Apparently this was too much for the defendant. By this inaction the defendant has further aggravated the complainant’s situation and is no solace at all to her, something I have difficulty ignoring.

48. I am incline to follow the case of Abal v. Parau case where a similar incident had happened in a political rally, however the defamatory words used were in the Engan vernacular language but defamatory all the same and the court went ahead to award damages in the sum of K1,000.00. In this case the publicity would have been limited to those who understood the Engan vernacular even though there may have been many people there at the time of the incident.

49. In the present case the words used were in pidgin which is widely used than English and Motu or the Engan vernacular in PNG and were made during a church procession with many people from different parts of the country that were present and would have heard and understood what the defendant had said of the complainant. With this scenario in place I would think that there is a slight difference to the Abal v. Parau case and so I would award damages far greater than what was awarded in that case.

50. In my assessment, I am satisfied with an amount of K2,000.00. However I am mindful that the amount awarded in the Abal v. Parau case at that time was when one PNG Kina had monetary strength equivalent to one US Dollar. That has changed around 1996 when the Kina was floated and since then it had lost its strength in a spiraling effect.

51. That was a point briefly highlighted in the Coyle v. Henao case when comparing the earnings of the parties to the buying power of the Kina. Nevertheless, one can appreciate the attempts by the court to get value for money, especially for the complainants. In this case for me to get the same type of Kina value in the amount awarded in the Abal v. Parau case I will have to multiply the amount I have decided upon.

52. The current value of one Kina to one US Dollar is at O.3319 at the BSP Exchange rate. This means that to get one PNG Kina to the strength of one US Dollar we have to multiply the rate by three (3) times which will come up to 0.9957 (rounded off to one PNG Kina). In this case since I have decided on an amount of K2,000.00 in damages I now must multiply it by three (3) which makes the defendant liable in the sum of K6,000.00. It is my belief that this amount will provide solace to the hurt and distress suffered by the complainant as a result of publication. Furthermore, I estimate this amount will provide reparation to the damage done to her person and vindicate her reputation.

53. Finally I make further order for the defendant to pay K1,000.00 as aggravated damages for the public humility and disgrace the complainant had to endure at the time of the incident. In the end the defendant is liable in the sum of K7,000.00 to be paid within seven days as suggested by the defendant.

Orders accordingly.