Kamuru v Nombe [2011] PGDC 6; DC1064 (25 January 2011)

1064

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]
DC 92 of 2010

BETWEEN

NEWTON KAMURU
Complainant

AND

WALTER NOMBE
Defendant

Goroka: G. Madu

2010 : November 15 December 20
2011 : January 11, 21, 25

DEFAMATION – Defamatory statement – no defamatory imputation - Statement published – no defences available - Case dismissed

Cases Cited

Wenman –v- Ash [1853]13 C.B.836

References

Defamation Act s.2(1)(a)-(c)

Counsel
Newton Kamuru - For the complainant
Walter Nombe - For the defendant

25 January 2011

REASONS FOR DECISION

G. Madu: PM This is a civil action for defamation by the complainant claiming that he suffered shame, embarrassment and humiliation when the defendant made the following statement in pidgin “ Dispela pipia kaunsel bilong Ward 3 hariap long kisim moni igo baim ol women.”

THE LAW

2. The law the complainant relied on is the Defamation Act. In Papua New Guinea the Defamation Act 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.

is a defamatory matter”.

BRIEF FACTS

3. The brief facts are on 9th July 2010 at about 9.00am the complainant went into Governors office at Yanepa Haus to collect money to pay the people who had worked on the roads in Unggai.

4. Whilst waiting to collect the money the defendant came in and said the following words about the complainant “ Dispela pipia kaunsel bilong Ward 3 hariap long kisim moni igo baim ol women.” The defendant said these words in front of some prominent people of Eastern Highlands including other people who had gone to the Governor’s office. As a result of these words being used by the defendant, the complainant suffered shame, embarrassment and humiliation.

5. The complainant states that the defendant had no respect for him as a Ward 3 councillor and the Vice President of Unggai Local Level Government Council and also had no respect for the mandate the Unggai people gave him as a ward 3 Councillor. He further said the defendant had no respect for the complainant when he was performing his function and duties as a councillor and vice president. In view of the words uttered, the complainant suffered damages to his character.

6. The complainant claims that the Unggai people voted him as their elected representative and as leader and voted him into the office as a Ward 3 councillor. If he was a pipia man, the 8,000 people of Unggai would not have voted for him as their Ward 3 councillor.

7. The defendant in his response stated that he did uttered the words in pidgin and is quoted “ Dispela pipia kaunsel bilong Ward 3 hariap long kisim moni igo baim ol wonem” but said those words were said in a context not intended to humiliate or embarrass the complainant and that the only prominent persons present were Mr. Gideon Korarome and Mr. Robin Oruda, a junior officer from the Governor’s Office. He argues that the complainant could not possibly have been humiliated or embarrassed in their presence because of the circumstances and the subject matter under consideration at the material time the words were uttered.

Issues:

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

i. Whether the statement uttered is defamatory.

ii. Whether the statement was published.

iii. Whether there are any defences the defendant can claim.

Issue No.1- Whether the statement uttered is defamatory.

9. Sir Walter Nombe admitted making the statement complained of. In his defence, the defendant said that the complainant had miserably taken the whole issue of the reference pipia man out of its context. He further said that the statement was not even meant for the complainant to hear. The statement was not made in any public arena to belittle or disgrace the complainant.

10. The statement was not made in direct confrontation with the complainant but was uttered during the course of discussing the blunder of the complainant with another colleague.

11. The defendant stated he made the statement in frustration of the complainant’s disobedience of his explicit instruction to have the payment made at the convenience of the Governor’s Office.

12. There were no other prominent people in that meeting or within the earshot of that meeting between the defendant and Mr. Gideon Korareme until the complainant and Robin Oruda walked in unnoticed to catch part of that conversation. The defence two witnesses evidence very much support the defendant’s line of argument that the statement uttered was not intended to defame the complainant character but were made out of frustration because the defendant did not heed to the instructions given.

13. However the view advanced by the defendant is immaterial because to prove defamation the test is not the nature of the defendant’s intention but the meaning which would be imputed by reasonable persons. The only means by which the court could establish imputation by a reasonable person is evidence from the persons who were present at the time and heard the words were uttered.

14. The complainant testified that he was with one of the junior officers Robin Oruda when the defendant made the statement but the officer did not produce any evidence as to what he thought of the statement made about the complainant. No evidence was disclosed to the court if there were other people around at that time who could have heard the words being spoken.

15. On the basis of the evidence adduced to the court I conclude that the statement said by the defendant was not defamatory in nature.

Issue No.2 – Whether the statement was published.

16. The complainant in his evidence stated that the defendant made statement to Gideon Korareme when the complainant and one of the officers by the name of Robin Oruda walked in the corridor and heard part of the statement.

17. The defence evidence was that the words were spoken in the presence of only two prominent persons and those persons are Gideon Korareme and Robin Oruda. The issue is whether hearing of the defamatory statement by two persons amounts to publishing? In a case of Wenman –v- Ash [1853] EngR 692; [1853] 13 C.B. 836 held that a statement by a third person to one spouse about the other is publication.

18. I find that the defendant did publish the statement and I quote “ dispel pipia counsel bilong ward 3 hariap long kisim moni igo baim ol wanem” when he made this statement in the presence of Gideon Korareme and Robin Oruda.

Issue No.3 – Whether there are any defences the defendant can rely on?

19. There are number of defences under the Defamation Act that the defendant could rely on and they are (i) defence of publication in good faith s.8; (ii) defence of fair comment s.9; (iii) defence of truth s.10; (iv) defence of excuse s.11 and (v) defence of good faith s. 12.

20. The defence evidence failed to establish any of the defences mentioned and therefore none of the defences are available to the defendant. I find that the defendant Sir Walter Nombe is not liable for uttering the defamatory statement and accordingly dismiss the complaint.

Orders accordingly.

____________________________
Lawyer for Complainant – Newton Kamuru
Lawyer for Defendant- Walter Nombe.