Kaupa v Ho [2009] PGDC 64; DC881 (29 August 2009)

DC881

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

GFCi 58 of 2008

BETWEEN

JULIE KAUPA
Complainant

AND

PETER HO
First Defendant

HELENA PETER
Second Defendant

A 1 FOOD COURT RESTAURANT
Third Defendant

Goroka: G Madu
2008: September 30
October 13
November 12, 19
December 11.
2009: February 16
March 19
April 9
May19
June 22
July15
August 19

CIVIL - Defamation – Accused of being a thief – No charge laid for stealing – Evidence failed to disclosed actual words spoken – Relied on assertion – No publication – Character not defamed. Complaint dismissed

CIVIL- False Imprisonment – unlawfully detained - breach of constitutional rights – National Court has jurisdiction to enforce the rights under the constitution – District Court no jurisdiction – No action for false imprisonment – Complaint dismissed.

CIVIL- Unlawful search - Alleged physical search made – Ordinary citizens no power to search under Search Act – Evidence failed to prove that search conducted in compliance of the act – Complaint dismissed.

Cases Cited:

Mc Kenzi –v- The State [1998] PGSC 16, SC 596 (30th April 1998)
Allsop –v- Church of England Newspaper Limited [1977] All ER 21
DDSA Pharmaceutical Limited –v-The Times Newspaper Limited [1977] WB 21

Reference:

Defamation Act 1962 Ss.2&3.
District Courts Act 1963 Ss. 21 (4) (f).
Search Act 1977 Ss.3,4&5.

Counsel:

Julie Kaupa, for the Complainant
Barbrah Samuga, for the Defendant

29th August 2009

JUDGEMENT

G Madu PM .:The complainant filed a suit against the defendants seeking for damages for defamation, false imprisonment and unlawful search. The laws that the complainant relies on to take this action are: Defamation Act, Constitution and the Search Act.

2. Papua New Guinea has a Defamation Act and consolidates the Common Law definition. Section 2(1) states Defamatory matter is an imputation concerning a person or a member of his family whether living or dead, by which:

(a) the imputation 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 induces to shun, avoid, redicule or despise him.”

3. Claim for unlawful search can be taken under the Search Act (Chapter 341). Section 4 provides powers and duties relating to search of persons:

(1) ...........

(2) search of a person shall be conducted with due regard to decency.

(3) a person conducting a search of another person shall not use any greater force than is reasonable in the circumstances.

(4) subject to subsection 5, a search of a female shall only be carried out by or in the presence of an adult female.

(5) ......

4. False imprisonment would amount to breach of a constitutional right and is enforceable in the National Court. Pursuant to Section 21 (4) (d) of the District Court Act, the District Court has no jurisdiction in an action for false imprisonment.

Section 21 (4) (d) of the District Court Act states:

“A Court has no jurisdiction in the following cases:

(a)........

(d) an action for illegal arrest, false imprisonment, or malicious prosecution ......”

5. Briefly the facts are on 27th September 2008, K450.00 went missing from the cash register operated by the complainant when the days takings were counted between 4.00 pm and 6.00 pm. Other workers including the complainant were questioned by the manager in relation to the missing money. The complainant claims that the defendant’s accused her of stealing the money in the presence of the customers and co-workers

6. The defendants denied accusing the complainant of stealing in public and further denied the allegation of unlawful search and false imprisonment of the complainant.

7. The issues are:

(i). whether by accusing the complainant for stealing the money amounts to publication hence defamed the complainants character.

(ii). whether defendants action in not allowing complainant to go home early amounts to false imprisonment.

(iii). whether the search conducted by the defendant on the complainant was unlawful.

COMPLAINANT’S EVIDENCE

8. Complainants evidence came from five witnesses who deposed their affidavits. The witnesses were not cross examined as both parties agreed not to and asked the court to decide the case on what evidence was available.

9. The evidence presented by the complainant was that on 22nd August 2008, she collected more than K1900.00 and when stock take was made she over collected by 0.90 toea. In such situation complainant would have been allowed to go home early. This was not the case as the defendants accused her of stealing K450.00 cash from sale of mobile phones flex cards. The complainant denied taking the amount stipulated but the defendants continued to insist that she had some information on the missing cash as she was the only person who was operating the cash register.

10. The second defendant then joined her husband in the presence of fellow workmates, security guards and other customers said in pidgin and I quote: “ Yu kisim mani ya, mi les long toktok, nau tasol kisim bek.”

11. The second defendants without complainant’s consent search her physically and found no cash in her possession. She was also kept for questioning and detained for two hours and later was released and walked home late in the evening.

12. The next day she was picked up by police and taken to the police station for questioning for more than three hours and released when the allegation of stealing by defendants could not be established.

13. The defendant terminated the complainant’s employment as a result of this accusation. A week later one of the male staffs was terminated for stealing the money. The complainant claims that she became a scapegoat for someone else “theft ” and was subject to public ridicule, shunned and her reputation defamed and tarnished by the very wild accusation.

14. The two other witnesses who were also employed by the defendants stated that on 27th September 2008 between 4.00pm and 6.00pm when the shop was closing for business, the defendants started to accuse the complainant for stealing K450.00 from the cash register she operated and had no proof for the accusation. The defendants accused the complainant in the presence of the customers and co-workers, securities and customers. The complainant was detained whilst other co-workers including the witnesses were allowed to leave at 5.00pm.

15. The complainant’s father’s evidence basically is that he was on duty on 27th August 2008 and when he went to see his daughter the first and second defendants were questioning the complainant about the missing of K450.00 cash. He also saw his daughter taken away into the office and she arrived at the house at 8.00pm.

16. The father said that the complainant was picked up by the police next morning and taken to police station and questioned for two hours and released without being charged.

DEFENDANT’S EVIDENCE

17. Defendant’s evidence came from four witnesses who deposed their affidavits and no cross-examination was conducted as both parties consented not to and the court to decide based on the evidence available.

18. The first defendant in his evidence stated that Julie Kaupa was employed as a cashier with the Third Defendant. Each morning a cash of K450.00 is left as a cash flow for each day.

19. Her normal routine for each morning she counts the cash flow to ensure that the manager leaves correct amount of cash in the till. At times when the cash is short the complainant would inform the second defendant to balance the amount by adding the amount that is required to make up the K450.00.

20. Before the incident approximately K22.00 was short from the takings.

21. The First Defendant queried with the Complainant about the K450.00 shortage and did not say that she stole the money. She said she knew nothing about the missing money and asked to enquire with the second defendant because she assisted her for a while.

22. The First Defendant continued to query the complainant about the missing money and replied saying Boss I took the money and that I am sorry and then quickly said I don’t know about the money. She asked why other workers cannot be asked.

23. The Complainant tried to shift the blame to Second Defendant to replace the money.

24. The Complainant’s uncle who is also a security guard at the restaurant was present when conversation was taking place. Her father came to pick her whilst we were inside.

25. After other workers left, her father was still waiting and eventually left with her father.

26. The first defendant said that at no time she was physically checked and detained for two hours. All the workers were present at that time making it difficult to do any search on her even when her uncle was present. She insisted that she be searched physically and even the uncle suggested the same but I refused.

27. The second defendant’s evidence is similar to the first defendant’s evidence except that she stood in for the complainant when she was mobbing the floor and served only 2 or 3 customers. When the Boss questioned both the complainant and the second defendant, the complainant was putting blame on the first defendant so I was agitated by her and told her that she has stolen the money.

28. Daisy Kaiya who deposed an affidavit for the defence stated that on 27th June 2008, the cash amount of K450.00 went missing from the cash register operated by the complainant and she was present when the manager questioned all the workers including the witness ant the complainant.

29. During that time Julie’s father shouted for her to be released to go home as she had a 3 months old baby to attend to. She said all other workers left only leaving those workers who were sleeping there and Julie also left.

30. John Siran deposing the affidavit for the defence is similar to Daisy’s affidavit except that he told the complainant that she was answerable for the loss of the money because she was the operator of the cash register and also she was holding the key to the register. He told her if she got the money then she should throw it into his room or give it to one of the worker to return it or just leave it somewhere for the workers to find it and return it.

31. After the manager had questioned all the workers those who were no residing at the work place left including Julie. Those who remained were the manager and his wife and those staff who were living in the company premises.

CONSIDERATION OF EVIDENCE AND ISSUES

32. Issue No.2: Whether the defendant’s in not allowing the complainant to go home early amounts to false imprisonment.

I prefer to deal with the issue of false imprisonment because it raise serious allegation of constitutional rights of an individual. To enforce these rights that are guaranteed by the constitution, the appropriate court would be the National Court. Further Section 21 (4) (d) of the District Courts Act specifically states that the District Court has no jurisdiction to deal with a claim for false imprisonment. For the above reasons the claim for false imprisonment cannot be entertained.

33. Issue No.1: Whether by accusing the complainant for stealing the amount of K450.00 amounts to publication hence defamed the complainant’s character.

The complainant in her evidence stated the words said by the second defendant in pidgin and is quoted “yu kisim mani ya, mi les long toktok, nau tasol kisim bek” The witnesses either for the complainant or the defendants in their evidence did not tell the court the words the defendant used when the manager was questioning the complainant. This shows that either the witnesses were busy and could not possibly hear the statement made by the second defendant to the complainant. It could be possible that when the words were uttered by the second defendant, the witnesses were not present at that time and for this reason could not state the words said. It is crucial that for a claim of defamation to stand, the words uttered to another person must have a defamatory imputation and must be supported by evidence of the actual words spoken otherwise it is a mere allegation only.

34. The complainant in her evidence stated that the customers were present during that time when the second defendant accused her of stealing the money and this is supported by her witnesses. I do agree that the business is customer orientated and as such the customers are more likely to be around at that material time when the incident took place. However the complainant’s case could have been proven on the balance of probability only if evidence of customers was adduced to court. There is no such evidence in court which the complainant has failed to submit. Further the defendants are entitled to enquire into the missing monies and rightly are duty bound to questions the workers including the complainant because the money went missing from the cash operator she was operating.

35. The complainant’s evidence and that of his witnesses are not consistent especially in relation to the actual words spoken or uttered. If the witnesses in their evidence have testified that the second defendant accused her of stealing then they must tell the court what words were said. The witnesses have not mentioned to the court the actual words spoken in pidgin. They only said that they heard complainant being accused of stealing but this is too general and lacks substance. The inference is that the witnesses are only asserting that the complainant was being accused and are not sure what words were spoken.

36. In the case of Allsop-v-Church of England Newspaper Limited [1977] All ER 21 and DDSA Pharmaceutical Limited –v-The Times Newspaper Limited [1977] WB 21 the court ruled that in order to enable the Judge to rule as to whether the words are capable in law of bearing the defamatory meaning alleged, the plaintiff must give adequate particulars. Adequate particular would mean that the evidence must show that the words spoken did injure the complainant’s reputation.

37. In this case there is inconsistency in the evidence of the complainant and his witnesses. Evidence given by the complainant has failed to provide adequate particulars and failed to show in her evidence the actual words spoken. Therefore one would conclude that no defamatory remarks were made.

To determine whether the statement is capable of being defamatory, one looks not to the intention of the author but rather the effect of it upon a person by what is heard or seen. In this case the onus is on the complainant to show that the words uttered by the second defendant was defamatory in nature. The evidence will have to show that the people were present at that time and heard what was said and formed their opinion about the complainant. However the evidence given by complainant did not show such evidence and for that reason I find that the complainant’s character was not defamed.

38. Issue No.3: Whether the search conducted by the defendants on the complainant was unlawful.

The complainant in her evidence said that she was searched. The reason obviously was to check if the missing money of K450.00 was in her possession. She also claimed that the search was done by the second defendant. Again her evidence must be supported and corroborated by others who were present and witness the incident.

39. The complainant alleges that she was unlawfully search and this is a serious allegation because it breaches the Search Act (Chapter 341). Section 4 of the act sets out the method and manner of conducting searches of persons and properties and the onus is on the complainant to show to the court that the second defendant conducted the search in a manner that is contrary to the law. Under the Search Act section 4 the complainant is required to show by evidence that alleged unlawful search was conducted under the following circumstances -:

1. search was conducted without due regard to decency.

2. search was conducted with the application of unreasonable force.

3. search was conducted without the presence of a female.

40. The complainant in her evidence said that she was physically search by the second defendant but she failed to tell the court how was the search done and whether reasonable force was applied during the search. The evidence of witnesses also failed to show the circumstances shown by section 4 of the Search Act.

41. The constitution guarantees a citizen freedom from arbitrary search and seizure of the persons and properties S.44 and right to privacy S.49. However these rights are regulated by the Search Act (Chapter 341). The Search Act exclusively provides for search of persons and properties in Papua New Guinea. Policemen duties are set out in section 3-5 of the Arrest Act. By carefully reading this Act it shows that section 3 and 5gives powers only to the policemen, correctional officers or an owner or a person in control of a craft or a person authorised by him to conduct searches. This means that ordinary citizens are no given any powers by the Search Act to search the person or properties without a search warrant even the securities employed in the supermarkets see Mc Kenzi –v-The State [1998] PGSC 16, SC596 ( 30th April 1998).

If the citizens wants the person to be searched they should go through the policemen to get a search warrant to legalise the search otherwise the search would be illegal.

42. In conclusion the complainant has again failed to prove on the balance of probability that she was unlawfully searched on the basis that evidence did not show how the search was conducted. That being the case the action against the defendants for unlawful search is not proven. Accordingly I find that defendants are not liable for defamation of character, false imprisonment and unlawful search and dismiss the complaint forthwith.

Orders accordingly.

____________________

Lawyer for the Complainant: In Person
Lawyer for the Defendant: Stevens Lawyers