Kayho v Endeavour Printing Ltd [2011] PGDC 17; DC1058 (28 February 2011)

1058

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]
DC 32 of 2009

BETWEEN

BRYAN KAYHO
Complainant

AND

ENDEAVOUR PRINTING LTD
First Defendant

JOHN SINE KAUPA
Second Defendant

Goroka: G. Madu

2009 : June 16 July 13, 16, 20
: August 6, 24 September 8, 28
: October 19, 22 November 16
: December 9
2010 : March 25 April 8 May 10
: June 17 July 14 August 18
: September 8, 20 October 13
: November 4, 30 December 15
2011 : January 26 February 28

DEFAMATION – Publishing election poster – advertising an image - face covered with traditional dress and dark glass
Evidence – identity not proven – leadership in church not proven – damages not awarded – case dismissed with cost

Cases Cited

Post Telecommunication –v- MVIL (2003) N2479

References

Counsel

Bryan Kayho - For the complainant
Dennis Umba - For the defendant
28 February 2011

REASONS FOR DECISION

G. Madu: PM This civil action is taken by the complainant claiming that the defendant’s used his image and photograph without his consent or approval to do business and promote the sales of their campaign posters during the 2007 National Election. The complainant claims he suffered distress, shame and suffered loss and damages.

BRIEF FACTS

2. The brief facts are the First Defendant is a printing and stationary company based in Goroka whilst the Second Defendant is the Managing Director of the First Defendant.

3. Prior to and during the 2007 National General elections, the defendants printed and advertised and sold election posters to candidates from various and numerous Open and Regional Electorates in Papua New Guinea from their premises in Goroka.

4. In order to advertise their company’s quality printing samples, with campaign posters sales, the defendants used A3 sized coloured posters containing the image of the Complainant in traditional dress.

5. The complainant stated he was approached by many people and questioned whether or not he was contesting the 2007 elections after seen his poster sized photographs advertised by the defendant.

6. The complainant claims he has suffered distress, shame and humiliation over use of his image as an election campaign poster and claims damages.

7. The defendant in his defence said that the complainant’s photograph was converted into a poster and put up on the defendant’s shop as a sample together with the other similar posters as sample posters but without the actual names of persons on the posters. The defendant further said that the complainant was dressed up in a way that it was difficult of any member of the public to recognize him.

ISSUES

8. There are only two issues and these are:

(i)Whether the campaign poster printed referred to the complainant?

(ii) Whether the complainant suffered damages?

EVIDENCE ADDUCED BY COMPLAINANT

9. Complainant did not submit any witness’s affidavits besides his which was cross-examined. In his affidavit the complainant deposed that he is a married man and well known church leader in the Goroka Church District of the Lutheran Church. He is currently Vice President of the Asaroka Circuit which covers the North and Western half of Goroka District, all of Daulo District and parts of Ramu in Madang Province. He is also member of SIL Bible Translation team in Gahuku tokples as well as member of other NGO and Community Groups.

10. Prior to and during the 2007 National General Elections the defendant advertised and printed and sold Election Posters to candidates from various and numerous Open and Regional electorates in Papua New Guinea from their premises in Goroka.

11. In order to advertise their company’s quality printing samples, with campaign poster sales, the defendants used A3 sized coloured posters containing the image of the complainant in traditional Gahuku dress. A copy is annexed and marked “A”.

12. The complainant stated as a Church Leader he never stood to contest National Elections and the coloured photograph which is referred to as annexure “A” was taken elsewhere at a non-political activity without notice.

13. The defendants used the complainant’s image to advertise their sales of campaign poster and considering the big numbers candidate contesting the various Open and Regional electorates in PNG during the 2007 elections, the defendants have made substantial amount of money from their campaign poster sales.

14. The complainant was approached by many people and questioned whether or not he was contesting the 2007 election, after seeing his poster sized photographs advertised by the defendants.

15. The complainant stated that he approached the second defendant personally and asked for compensation for the following reasons:

(a) for doing business with the complainant’s image without permission or consent.

(b) publishing of the image had negative impact as a Church Leader.

16. The first defendant indicated initially that payment would be made if a demand was put to them in writing and that settlement would be made. The demand in writing was given to the defendant’s on that understanding however they refused to settle the matter and ended up in court.

17. The complainant claims that his image was used to make money and therefore suffered distress, shame and humiliation and should be compensated for damages caused.

EVIDENCE ADDUCED BY DEFENCE

18. The defendant filed his affidavit which was cross-examined but did not called other witnesses. He stated in his affidavit that he purchased a color printing machine in early 2006, purposely to lower costs for small customers who are not able to pay high prices for color work. He employed a good Graphic Artist in 2007.He also purchased new computer programmes to go along with the color printer. At the same time the 2007 National Election was on.

19. About 2005 or 2006 one of the defendant’s major clients went to Goroka Show and took almost 100 photos during the show. The client used these photos to insert in the calender and other works. The photos were in the defendants computer, so when the Graphic Artist did test prints, complainant’s photo was among the prints. Unintentionally the photo of complainant was printed without his consent as “APO GOROAVE”. His friends informed him of the poster.

20. The complainant approached him and said he admired the poster and requested a copy as a souvenir. Some weeks later the complainant demanded K10,000.00 and after negotiating the amount was reduced to K5,000.00 then to K2,0000.00 but the defendant refused the amount. The defendant told the complainant that since they were charging K5.00 per A3 print, he was offering K66.00 for eleven prints which complainant refused.

21. The defendant said that the companies advertise products with the name of product and with most popular people with the intention to sell. In this particular case the machine name and brand were not inserted in this poster, so as his name.

Issue No.1- Whether the campaign poster advertised by the defendants referred to the complainant?

22. There is no dispute that an election poster of an image of a traditionally dressed man was advertised in a coloured A3 size photograph which was tendered to court as exhibit “A”. The complainant claimed that the image was his because many people who had seen the poster came and asked if he was standing for 2007 National Election.

23. There is no denial by defendant’s of using or producing the photograph which shows complainant’s image but have tried to mitigate the loss or damages caused to the complainant by their actions.

24. As the evidence shows it is clear that the complainant has not produced any evidence from the many people he claimed had questioned him if he was standing for 2007 National Election after they had seen the campaign poster of his image. Such evidence is crucial for the complainant’s case and without it the statement is only an assumption.

25. I agree that one of the most important issues is the identity of the complainant. The complainant’s face was very much covered up with traditional dress of 2 pig teeth, shells and the dressing covered the forehead and he wore big dark glasses, which made it difficult for general public to point out clearly without shadow of doubt that the photograph contained image of Bryan Kayho because his face was about 98% covered except up to his cheeks. The complainant has failed to prove his case on balance of probability.

26. In the case of Post Telecommunications –v- MVIL (2003) N2479 (Unreported Judgement) His Honour Justice Gavera Nanu said “It is trite law that, whether the claim is for a special or general damages, in either case, the plaintiff has to prove its claims. Hence, it has not adduced any evidence to substantiate it’s claim. That is fatal to its case. The denial by the defendant of all of plaintiff’s claims means that the plaintiff has to prove all its case on the balance of probability.

27. I am satisfied that the complainant has not produced any evidence to show that the image printed and advertised by the defendant was complainant’s image and therefore failed to prove his identity.

Issue No.2 – Whether the complainant suffered damages?

28. Evidence has shown that the complainant is a leader in the community and also in the Lutheran Church in Goroka. When the defendants printed the posters with image of complainant, this had a very negative impact on him however this cannot be proven unless there is evidence to show that the complainant did suffer damages. His standing in the church in his leadership role was being questioned when he was being asked by many people if he was or he was not contesting 2007 National Election.

29. The complainant failed to call witnesses from the Lutheran Church to testify the length of time he has been with the church his roles and responsibilities he played in the church and what was the Church’s position in relations to his involvement in politics. This question should have been clarified but where such evidence is not available it would only be an assumption that this is the position of the Church as it is not supported by evidence. It is my view that it is probable the complainant did not suffer any damages.

On the basis of what has been discussed I conclude that the case had not been proven and dismiss the complaint with cost.

Orders accordingly.

_________________________________
Lawyer for Complainant – Bryan Kahyo
Lawyer for Defendant- Umba Lawyers.