Avefa v Tupis [2011] PGDC 29; DC1067 (26 April 2011)

1067

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]
DC 70 of 2010

BETWEEN

SAIO AVEPA
Complainant

AND

TUPIS ENI
Defendant

Goroka: G.Madu

2010 : July 26 August 11 September 8, 29
: October 6, 12, 22 November 15
: December 15
2011 : January 26 February 23
: April 7, 26

DEFAMATION – Defamatory words – defamatory imputation – statement published – no defence available - awarded general damages and exemplary damages

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.5

Counsel
Saio Avepa - For the complainant
Tupis Eni - For the defendants

26 April 2011

REASONS FOR DECISION

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

BRIEF FACTS

2. The brief facts are on 20th May 2010 at a market place along the main Okuk Highway at Kamaliki, the defendant said the following words “ Saio Avepa misusim moni bilong Kommunity” These words were said by the defendant in front of lot of people in pidgin language.

3. The complainant claimed that the publication of the words as stated above were defamatory and is contrary to Section 5 of the Defamation act. It is alleged that when the words spoken by the defendant are interpreted in their ordinary sense would mean that the complainant is a dishonest person, not trustworthy, a thief and not a fit and proper person to hold the position of Lutheran Church Parish President and a community leader.

4. The complainant alleged that as a result of publication of the above defamatory words by the defendant, his character, standing and reputation in the Kamaliki Community and the Lutheran Church has been tarnished and destroyed and suffered loss and damages

ISSUES:

5. 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?

6. The defendant in his affidavit deposed that he did not make a statement which is quoted “ Saio Avefa misusim moni blon kominiuti” but he said the following “ ino olsem kominiuti moni blo wara project K5,000.00 stap wantaim Saio” The complainants two witnesses have testified that they were present and both heard the defendant made the statement. After hearing the statement they told the complainant what the defendant said about him.

7. On the other hand the defendant supported by his two witness said that he did not make the statement alleged by the complainant but he said the words to this effect and quoted “ino olsem kominiuti moni blo wara project K5,000.00 stap wantaim Saio” The question is, who is telling the truth? The defendant has denied making the statement direct to the complainant however he admits that he did make a statement to the defendant’s brother. This indicated that the complainant was not physically present when the alleged defamatory words were spoken. The defendant’s intention was not to defame the complainant’s reputation and character because the money given by the Health Department was specifically to Saio Avefa and not to the community.

8. I am not at all convinced by the defendant’s explanation as the money was given for a project within a community and therefore on the balance of probability I am satisfied that the defendant did make the statement quoted “Saio Avefa misusim moni blon Kominiuti”. I find that the statement made did have defamatory meaning and defame the reputation and character of the complainant.

Issue No.2 – Whether the words were published?

9. The complainant witnesses have testified that there was gathering of people at Gas Block at Kamaliki when the defendant made the defamatory statement. The defendant in his rebuttal said that there were not many people at that gathering. The evidence stated that the complainant was not physically present when the statement was made about him. The defendant made the statement to the complainant’s brother Negiso Avepa in the presence of other people who eventually relayed it to the complainant.

10. Action for defamation will lie where the defamatory statement was communicated to some other person other than the person defamed. The evidence is clear that the defendant made a statement about the complainant to other persons whilst the complainant was not present in my view amounts to publication. This statement was later communicated to the complainant resulting in this civil suit. The defence has also confirmed that the statement was made without complainant presence.

11. On the balance of probability I find that the statement made by the defendant about the complainant was communicated to other people who were present during the gathering at Kamaliki which amount to publication.

Issue No.3 – Whether there are any defences?

12, Under the Defamation Act there are number of defences that are available however the defendant did not specifically plead any of the defences under the said Act.

13. Further the defence evidence failed to establish that the complainant is a dishonest person, not trustworthy, a thief and not a fit and proper person to hold the position of Lutheran Parish President and Community Leader. I find the defendant liable for publishing defamatory statement of Saio Avefa and award damages in his favour.

DAMAGES

14. The complainant claimed K10,000.00 in damages for defamation. There are no guide lines to assist the court in assessing damages for defamation as there are not many cases. However there are few cases that could be used as guide. In the case of Tei Abel –v- Anton Parau, the National Court awarded a sum of $1,000.00 for making a defamatory statement at the political rally. In Wayne Cross –v- Wass Zuidema the court awarded damages in the sum of K4,000.00 and Theresa Joan Baker –v- Lae Printing Pty Ltd the court awarded K6,000.00 for damages. In both cases the defendant’s published defamatory words in the daily newspaper.

15. In the instant case the evidence show that the complainant was a very senior public servant who once held the position as a Director of Raun Raun Theatre Company in Goroka for some 18 years and contested in the 1992 National Elections and therefore built up his reputation in his career life in both public and private sectors. Further his involvement in the Lutheran Church as a President of Siviri Parish earned him respect in his leadership and the community at large. By making a defamatory statement about the complainant caused personal injuries and therefore he is entitled to damages.

16. In all that I have said, the following damages are awarded in complainant’s favour: general damages in the sum of K4000.00 and exemplary damages in the sum of K500.00

Orders accordingly.

_____________________
Lawyer for Complainant – Saio Avefa In Person
Lawyer for Defendants- Tupis Eni In Person