Atua v Abui [2009] PGDC 81; DC1004 (23 January 2009)

DC1004

PAPUA NEW GUINEA
IN THE GRADE V COURT OF CIVIL JURISDICTION

Case Number DCC 349 of 2007

BETWEEN:

HENRICA ATUA
(Complainant)

AND:

DABUNG ABUI & GIVI ABUI
(Defendants)

MADANG: M SELEFKARIU, PM
2007: 22 October
2008: 10 June-17 December
2009: 23 January

Defamation-Defendants by spoken words in pidgin language published imputations about complainant within the hearing and presence of others in public at several occasions and locations, ss. 2, 3 & 4 of Defamation Act.

Defamation- Complainant’s reputation under the circumstance likely to be tarnished and injured and members of the community, professional colleagues, friends and members of her family were induced to shun, avoid, ridicule or despise her, ss. 2 & 14 of Defamation Act.

Defamation- Defences- Defendants fail to file defences to show publication is fair, true, made in good faith or under the circumstance the complainant is not likely to be injured- Defendants also fail to mount a case in rebuttal- Defence not established, ss. 9, 10, 11 & 14 of Defamation Act.

Defamation- Complainant claims damages for physical and psychological assault, harassments and abuses to her person and her children.

CASES:

Tei Abal v Anton Parau [1976] PNGLR 251
Theresa Joan Baker v Lae Printing Pty Ltd [1979] PNGLR16
Deborah Niale v Joan Bowindu (unreported District Court judgement) (20 February 2006) DCC 290 of 2005.

Counsel:

Mr. J Lai for Complainant
Mr. B Tabai for the Defendants

23 January 2009

SELEFKARIU, PM: The complainant is a teacher by profession and teaches at Lutheran Day Primary School here in the Township of Madang but has been transferred to a new school as a result of the defendants’ violent behaviours.

Before she was transferred she was the coordinator of Lutheran Day Primary School. She is a married widow with five children.

The first defendant, Dabung is a teacher and teaches at Lutheran Day Primary School. Dabung’s husband, Awak Abui is also a teacher and is the school’s headmaster.

The second defendant, Givi is the eldest daughter of Dabung and Awak.

The complainant alleges that Dabung is jealous over her position as the coordinator. She said Dabung is also suspicious about her over her husband and accuses her for having an affair with Awak, the headmaster.

This problem has been going on for sometime and the parties have been counselled several times by a number of Lutheran Church pastors. As a result a reconciliation ceremony was held where food and pigs were exchanged amongst the two sides.

After reconciliation the problem started again and the complainant including her children were subjected to abuses, threats and physical assault.

On 16 June 2007, Givi accused the complainant and Awak for planning to meet secretly at the Madang Provincial headquarters’ park.

As a result the complainant said she was subjected to verbal and physical abuses and assault by the defendants.

The words she complained of were made in pidgin language translated to mean that, the complainant and Awak were having sex in secret and were acting like prostitutes.

The complainant said the defendants mobilised a group of youths and someone amongst them punched her on her jaw.

She said Givi abused her and told everyone present that the complainant and Awak were having sexual relationship.

On 17 June 2007, the next day, the defendants led a mob of youths and again abused, harassed and threatened the complainant at her premises.

The mob was aggressive and used threats to force the complainant out of her house and to go with them to the Police Station. The complainant’s son became apprehensive of his mother’s safety and accompanied her. Along the way one of the youths in the mob punched the complainant’s son when he tried to protect his mother from the mob’s aggression.

The defendants continued to abuse the complainant all the way to the Police Station.

On 25 July 2007 in presence of the deputy headmaster of the school the defendants confronted the complainant inside the office and abused her again. Dabung grabbed a water bottle and tried to hit the complainant which attracted the attention of all the students and teachers as it was recess time.

When the complainant and her daughter, Georgina left for home one of Dabung’s son namely Jonathan Abui tried to assault the complainant.

At the Modilon General Hospital bus stop, Givi assaulted the complainant on her head and tore her clothes.

On 3 August 2007, Givi threatened to assault Magdalene Atua one of the complainant’s daughters at the Town market.

The complainant said as a result of the above she fears for her own safety and the safety of her children. She is the only bread winner for her family and because she was forced to stay away from work has affected her family.

Including the children they are all mentally disturbed and in the case of the complainant she has lost trust and respect of her children, her pupils, teachers and the staff at the school.

The complainant said the problem has caused friction and division amongst everyone at the school.

She said she was shamed, embarrassed and humiliated in public, at the Police Station and at the school.

She said her personal dignity and integrity has been shattered and lowered as the defendants’ actions have caused others to shun, avoid, despise and ridicule her. She said her privacy was exposed and made a spectacle of in public.

She said her personal and professional reputation as a member of the community and as a teacher has been tarnished in front of the community, her family, her friends and work colleagues.

As a result the complainant claims general damages for K7, 500.00 and exemplary damages for K1, 500.00.

In relation to the defendants’ case they filed a notice of their intention to defend on 12 October 2007 but to date have not filed any defences or mount a case to rebut the complaint.

Furthermore they fail to submit written submissions as directed by court.

On that basis and based on the complainant’s evidence I think the issues are:

1. Are the imputations made by the defendants defamatory?
   
2. Are the publications fair; true, excused by law or made in good faith and under the circumstance are they likely to injure the complainant?
   
3. Is the complainant entitled to the amount of damages pleaded in her statement of claim?
   
4. Should the complainant be entitled to damages, how much?
   

The evidence before court shows that the imputations were by spoken words and were published in pidgin language and their literal translation are quite revolting and odious.

Without any rebuttal evidence I find the publications to be defamatory within the meaning of the Defamation Act, hence I answer issue 1 in the affirmative.

In relation to issue 2, the complainant said the problem started because Dabung was jealous of her over her appointment to the position of coordinator the same position Dabung held earlier on.

The other reason is the allegation about the complainant and Awak, the headmaster having sexual relationship.

I think the allegation of sexual relationship is the real cause of the problem because the words complained of appear most probable to make reference to the alleged sexual relationship than the first reason.

As the defendants did not provide any evidence to court at all, there is no proof that the allegation is true.

According to the complainant and her witness, Rose Mariwafi they went to visit Rose Mariwafi’s sister and her husband at Modilon General Hospital on 16 June 2007 about 7.00pm that night.

On their way they met Awak, the headmaster who was then drunk at the Madang Provincial headquarters’ park. Awak waved them over to him and when they got closer he greeted them both by hugging them.

They all then sat on a bench in the park with the complainant seated between Rose and Awak. Rose rolled up a smoke and was smoking it so she decided to sit furthest away from the two to avoid blowing smoke in their faces.
Whilst they were seated Givi approached them from the dark and verbally abused them.

This seems to be the only material evidence about the alleged sexual relationship between the complainant and Awak.

On this evidence I find that it is insufficient to prove the alleged sexual relationship between the complainant and Awak.

In my view such an allegation without evidence can not justify or excuse the defendants’ actions and the actions of their cohorts as found on the evidence for harassing, abusing, threatening and physically assaulting the complainant and her children. Indeed I find such behaviour quite unacceptable and revolting under the circumstance. The imputations themselves are defamatory and defame the complainant within the meaning of the Defamation Act.

On the basis of the above findings I can not see the imputations having any justifications under sections 9, 10, 11, and 14 of the Defamation Act as they are false, unfair, not excused by law and made in bad faith.

I further find that the circumstances in which the imputations were made coupled with the physical assault, the abuses, the threats and the harassments made by the defendants and their cohorts upon the complainant and her children have injured them both physically and mentally.

They are all entitled to damages especially the complainant who has come to court for such a relief or remedy.

In relation to issue 4 the complainant’s counsel has submitted a number of case laws. For example the case of Tei Abal v Anton Parau [1976] PNGLR 251 and the case of Theresa Joan Baker v Lae Printing Pty Ltd [1979] PNGLR16.

These cases concern the action for defamation but their facts are quite distinguished from the present case.

However, like the case of Tei Abal the defamatory words were spoken in vernacular as in the present case which was spoken in pidgin language, one of the national languages but not the language of the court.

In the case of Tei Abal the court considered a common law rule which requires the complainant to prove the actual words published and literally translate them from their vernacular exactly of the same meaning into the English language, the official language of the court, was inappropriate to the circumstances of Papua New Guinea, as cases of alleged defamation by spoken words in Papua New Guinea could take the form of pidgin language, motu language or other vernacular of the seven hundred languages which is insurmountable.

In my court I have dealt with a number of cases for defamation not so long ago. One of such case is the case of Deborah Niale v Joan Bowindu (unreported District Court judgement) (20 February 2006) DCC 290 of 2005.

In that case which I presided the defendant by spoken words defamed the complainant at a public gathering of the independence celebration being staged at the Laiwadan oval here in the Township of Madang.

The words complained of were made in pidgin language to this effect: ‘kay mams bilong Wewak Town ya, karim pikinini lusim na kam raun long Madang.’

From the evidence I found the defamation unlawful as it was false, unjust, reckless, outrageous and criminally malicious.

Using Baker’s case I found the type of publication in Niale not as wide a circulation as in Baker which was published in a daily newspaper in the New Guinea Islands region.

I do find the publication in the present case not as wide as Baker either.

In Niale however the occasion of the imputation was made only once which is different from the present case which took place a number of times and at various locations. Furthermore the abuses, threats and assaults were extended to the complainant’s children as well. This in my view added more pressure and stresses on the complainant, not to mention her professional office.

In the case of Niale I awarded general damages for K1, 500.00 because even though she said she was a member of the Assemblies of God Church and a student of Papua new Guinea University of Technology she did not provide evidence to support her claim.

In the present case the complainant said her reputation, integrity, dignity as a private person and her profession as a teacher was tarnished and she was shamed, embarrassed, humiliated, lost trust and respect from her children, the public, her pupils and her work colleagues.

The evidence of Rose Mariwafi identifies the complainant’s profession as a teacher but does not go on to describe how the students and teachers of the school or others in the profession feel about the actions of the defendants and the effects on the complainant and themselves.

The same can be said about the evidence of Gena Miva, a member of the community from where the complainant resides. She apparently fails to give evidence about how the community feels towards the complainant after the incidents as described in the evidence.

As in Baker for which I reiterated in Niale, I said damages in cases of defamation is considered to be "at large" as they are mainly to compensate the complainant for injury to personal reputation, feelings, health and any special reputation like business or office.

Because of the globalness of the damages it is incumbent on the complainant to provide credible evidence to support her special reputation so as to be considered in the assessment of damages.

Even though the complainant’s evidence is not rebutted at all I think the evidence of Rose and Gena if they were given in some detail as in relation to what I alluded to would in my opinion give more weight and done justice it deserved.

Having considered all the evidence and principles of law I have decided to award to the complainant as general damages the sum of K3, 000.00.

I notice from the submission the complainant ask for exemplary damages as well.

According to evidence the defendants’ actions were reckless, outrageous and revolting to say the least.

In my view they went on a destructive path to harm the complainant including her innocent children with the purpose to damage and injure her reputation as much as they could without regard to other innocent persons that may be affected as a result.
For example the students and teachers of Lutheran Day Primary School and the paying parents whose children’s schooling were affected by the actions of the defendants.

I conclude that such behaviour deserves punishment in order to show the court’s indignation of such and for this reason I accept the complainant’s submission and further award K1, 500.00 as exemplary damages.

COURT ORDER: I award general damages to the complainant in the sum of K3, 000.00 including exemplary damages of K1, 500.00.

I also award cost to the complainant.

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Lawyers for Complainant: Thomas More Ilaisa Lawyers & Attorneys
Lawyers for Defendants: Building Tabai Lawyers