Mowe v Wau [2011] PGDC 15; DC1065 (24 February 2011)

1065

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]
DC 88 of 2010

BETWEEN

DICKSON MOWE
Complainant

AND

GABRIEL WAU
First Defendant

WAUTI PETER
Second Defendant

SILAS LUBUWE
Third Defendant

Goroka: G. Madu

2010 : August 30 September 21
: October 14 November 8
: December 1
2011 : January 13, 18, 26
: February 24

DEFAMATION – Defamatory words – defamatory imputation - statement published – no defences available - general damages awarded – exemplary damages - Punitive and deterrence measure.

Cases Cited

Wayne Cross –v- Wess Zuidema [1987] PNGLR 361
Theresa Joan Baker –v- Lae Printing Pty Ltd [1979] PNGLR 16
Tei Abal –v- Anton Parau [1976] PNGLR 251

References

Defamation Act s.2(1)(a)-(c), 4, 8, 9, 10, 11, 12

Counsel
Dickson Mowe - For the complainant
Gabriel Wau - For the defendants

24 February 2011

REASONS FOR DECISION

G. Madu: PM The complainant claims that the defendant made a defamatory remarks thereby defaming his reputation.

THE LAW

2. The complainant instituted this proceeding pursuant to Section 2 of the Defamation Act. 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.

is a defamatory matter”.

BRIEF FACTS

3. The brief facts are on 17th June 2010 at Unggai-Bena District Office West Goroka in the morning there was a land mediation conducted by the local Land Mediators and Government Officers and the complainant being a respected leader was asked to speak and give his views during that mediation.

When complainant stood up to speak the first defendant pointed at the complainant in a threatening manner and repeatedly shouted at him saying “You stupid”. Almost instantly the second defendant threatened the complainant and shouted “You fucking asshole”. The third defendant followed suit what both first and second defendants did and shouted at the complainant saying “You fucking shut up, yu passim hul blong yu”

The complainant claims that these vulgar languages or remarks made publicly against him implies or interprets that:-

➢ The complainant was a dumb or idiotically stupid and a fool who knew nothing about what he was trying to say or doing or saying.
➢ The complainant was a sex object and had a gaping hole in his anus.
➢ The complainant has a hole in his anus that was a sex object and that he has to shut his hole up, all despite the fact that he could speak as a leader.

The complainant claims that the words in their respective meanings or interpretations are defamatory and offending to him as a person, his community standing and reputation. He was publicly shunned, humiliated and discriminated by the remarks spoken as well as being felt threatened before a large gathering of people.

As a result of each of the three defendants actions, the complainant claims he suffered from emotional stress, psychological trauma and anxiety and therefore sues the defendants for damages in the sum of K9,000.00. Each of the three defendants to pay K3,000.00.
Issues:

8. There are three (3) issues for this court to consider and these are:

i. Whether the words had defamatory imputation or meaning?

ii. Whether the words were published?

iii. Whether there are any defences?

Issue No.1- Whether the words had defamatory imputation or meaning?

9. The defendants denied making defamatory statements alleged by the complainant. In their respective affidavit they said that the complainant was not invited to speak nor was he one of the parties to the disputed land namely Lonarato. The first defendant with another man William Kavo from the same tribe came to the mediation uninvited and made bias statements so he was advice to shut his mouth. His clan or sub clan was not involved in the land dispute and therefore should not have spoke at that meeting.

The complainant denied the statement alleged by the defendant but he said the following in pidgin “yu passim maus bilong yu”, wantok biling yu William Kavo mekim stupid toktok ate”. He said defamatory remarks such as “yu fucking asshole”, “yu stupid idiot” and even “yu passim hul bilong yu” were never said by the defendants as the seriousness of land is matter of life or death. The complainant regardless of his status as respected tribal leader and former councillor has no right to interfere with other people’s problems. His claim for K3000.00 from the three defendants is senseless when the complainant is not a party to the dispute or a member of the mediation team.

The complainant in his affidavit deposed that he attended the land dispute mediation conducted outside the Unggai Bena District Office at West Goroka on 17th June 2010. The mediation was chaired by Mr. Donald Korofe and other mediators were Lily Moiye and a Government Lands Officer Mr. George Moliki.

The complainant stated that the mediation was between three defendants and their people and another party regarding a portion of customary land in Unggai. He said that during such land dispute mediation, local leaders are allowed to talk and give views, assessments or advices as to how the mediation can be settled amicably and peacefully. Being the leader, the Mediation Chairman during mediation allowed the complainant to talk and present his views regarding the land in dispute.

The complainant stood up and hardly said a word when the first defendant pointed to him in a threatening manner and repeatedly shouted the defamatory words at him saying “you stupid idiot”. Almost instantly the second defendant Wauti Peter stood up and in a similar threatening manner shouted these words “you fucking asshole”. The third defendant followed suite of what first and second defendants did and shouted saying “You fucking shut up, yu passim hul bilong yu”.

The complainant stated that the land mediation was witnesses by other senior citizens and many people were present during the mediation. The two witnesses George Lowari and Wesley Singoro were present at that material time and heard the words said by the defendants. He argued that did not stand up on his own wish to say his view about the dispute but was asked by the Chairman Donald Korofe to say something. He was initially asked by the mediators and kiaps to come into the mediation.

The defendants do not deny that the complainant is a traditional leader and a two terms ward councillor but they believe that words alleged to have been uttered or used were never spoken. The complainant claims that his two witnesses were observant and present at that material time and therefore heard the words spoken.

I am satisfied on the balance of probability that the words uttered by the defendants are defamatory and therefore tarnished complainant’s character and reputation. I am convinced that because of his many years of leadership roles he played in his community, the chairman of the mediation and the Kiaps requested his guidance and advice to give his views on the land dispute.

The words stated by defendants ,”you stupid idiot”, “you fucking asshole” and “you fucking shut up, yu passim hul blong yu” by the three defendants, in their natural meaning would be understood to mean that the complainant is a dumb or idiotically stupid and a fool who knew nothing about what he was trying to say or doing or saying, further the complainant was a sex object and has a gaping hole in his anus and that the complainant has a hole in his anus that was a sex object and that he has to shut his hole up, all despite the fact that he could speak as a leader. I find that the words uttered “ you stupid idiot”, “you fucking asshole” and “you fucking shut up, yu passim hul blong yu” in its natural and ordinary meaning does amount to defamatory imputation. I also find that that such words uttered is likely to injure the complainant in his personal reputation and in his role as a leader in his community, District and the Province.

The above findings is base on the two case authorities in Wayne Cross –v- Wess Zuidema [1987] PNGLR 361, the defendant wrote a letter and used the word “Mafia Tatics” in requesting for assistance. In another case Theresa Joan Baker –v- Lae Printing Pty Ltd [1979] PNGLR 16, the defendant published in the national newspaper in which it described the plaintiff as “ a most odious, revolting creature”. In both these cases the National Court held the words to be defamatory.

I find that the words uttered by the defendants were defamatory and were likely to injure the complainant’s reputation as an individual and as a leader of a community.

Issue No.2 – Whether the words were published?

There is an admission by both the complainant and the defendants that they attended the land dispute mediation meeting organised by the Mediators and the Kiaps at the Unggai – Bena District Office at West Goroka on17th June 2010. The mediation was attended by some respected people and also members of the public who were interested to listen to the disputing parties and mediators.

The complainant testified that he was asked by the Chairman to speak so he stood up to say his views when the first defendant pointed at him and threatened and shouted at him to sit down and said “you stupid idiot”. Almost simultaneously the second defendant stood up and threatened the complainant and shouted repeatedly saying “you fucking asshole” and the third defendant followed the first and second defendants by threatening and shouted “you fucking shut up, yu passim hul blong yu”.

Complainant’s two witnesses were part of the crowd who were at the gathering at the Unggai- Bena District Office and heard what the defendants said. The two witnesses said that the words they heard did not go down well with both of them and were trying to retaliate but were stopped by other people among the crowd. The witnesses said that the words the defendants said to the complainant were defamatory and were said in the gathering attended by many people. The instant case is similar to the case of Tei Abal –v- Anton Parau [1976] PNGLR 251 where in a political gathering of thousands of people in Mt. Hagen,and in the presence of Mr. Tei Abal, the defendant Anton Parau made defamatory statement about Mr. Tei Abal. The Court held that there was publication of the matter.

Section 4 of the Defamation Act requires defamatory statement to be published and these provisions defines publication to mean that a defamatory statement, if spoken by words, must be made in the hearing and or in the presence of at least one other person apart from the person been defamed. In the present case the defamatory words were made in the presence of respected leaders and the disputing parties and members of the public of whom the two witnesses of the complainant. I am satisfied that the words spoken by the defendants were published.

Issue No.3 – Whether there are any defences?

Under the Defamation Act there are number of defences that the defendant can rely and these defences are :- (a) defence of publication in good faith (s.8); (b) defence of fair comment (s.9); (c) defence of truth (s.10); (d) defence of excuse (s.11) and (e) the defence of good faith (s.12) of the Act.

The evidence of the defendants failed to establish that the complainant is a dumb or idiotically stupid and a fool who knew nothing about what he was trying or about to say, doing or saying before mediation. The defence evidence failed to establish that he was a sex object and that he had a gaping hole in his anus. And that he have a hole in the anus that was a sex object and that he has to shut that hole up.

The defendant in raising their defence argued that the complainant was not a party in the land dispute nor was he invited to the mediation and therefore should not have spoken. This is not denied however the complainant was asked by the Chairman of the mediators to speak. He even did not speak any words when the three defendants bombarded him with defamatory words. There was no reason the defendant’s to use defamatory remarks because the complainant had not spoken and therefore his speech did not have any effect on the defendants to respond in such a manner. The complainant was at that meeting as part of the crowd to listen to the mediation between the disputing parties and mediators when he was asked by the Chairman to speak. I find that none of the defences under the Defamation Act are available to the defendants. I find that the three defendants are liable for publishing defamatory imputation of Dickson Mowe and therefore award damages in his favour.

Damages:

The complainant claims K10,000.00 in damages for defamation and this amount is within the District Courts jurisdiction. There are no guide lines to assist the court in assessing damages for defamation. However there are some cases that could be used as guide. The case similar to the instant case is Tei Abel –v- Anton Parau, the National Court awarded a sum of $1,000.00. In Wayne Cross –v- Wass Zuidema the court awarded damages in the sum of K4,000.00.

In considering the quantum of damages the fore most consideration is the complainant. From the evidence presented the complainant is a tribal and a community and was a ward councillor and therefore has a standing in the community and therefore must be compensated for personal injuries as well for his status as a leader.

The first defendant Gabriel Wau is a Senior Public Servant whilst the second defendant Wauti Peter and third defendant Silas Lubuwe are village man. However there are many incidents that are happening where the people are using words that are tarnishing reputation of other people. The courts have the obligation to stop this tort being committed. These can only be done by award exemplary damages against the defendants as a deterrence measure and general damage as compensation.

In all that I have said, the following damages are awarded in complainant’s favour: general damages in the sum of K6000.00 and exemplary damages in the sum of K1,500.00. The amount to be further apportioned between the three (3) defendants as follows: general damages K2,000.00 each and exemplary damages of K500.00 each.

Orders accordingly.

__________________________
Lawyer for Complainant – Dickson In Person
Lawyer for Defendants- Gabriel Wau In Person