Yuai v David [2017] PGDC 15; DC3053 (8 September 2017)

DC3053
PAPUA NEW GUINEA

[IN THE DISTRICT COURT OF JUSTICE

SITTING IN ITS GRADE FOUR CIVIL COURT JURISDICTION]

DCCi: 76 of 2016

BETWEEN

EMILY YUAI

Complainant

AND

LINETH DAVID & 1 OR

Defendants

Goroka: P. Kaumba, Magistrate

2017: August 09
September 08

CIVIL – Compensation claim for defamation under the Defamation Act.

Cases Cited:
Nil

References:
Nil

Counsels:

Lawyer for the Complainant, In Person
Lawyer for the Defendant, In Person

-2-

08^th September, 2017

DECISIONOF THE COURT

P. KAUMBA, Magistrate: The complaint was filed in court on the 22^nd of May 2017 alleging that the first and second Defendants without reasonable excuse made defamatory remarks namely; “Yu poisin – sangumamerinayutokraun long bagarapimmitupela long poisin, black pawanasanguma’ You are woman who uses poisonous things to harm persons and you practice sorcery and you go around trying to injure us with poison and sorcery and brought her to the Lower No 2 village court. The village court heard it and ordered the complainant and second defendant to pay K100.00 compensation to the first Defendant. It also ordered that they pay K30.00 court fine be reimbursed by the Village Court to the complainant. On appeal by the complainant the appeal was upheld by His Worship Gerard Vetunawa on the 13^th of May 2017 and ordered the complainant not to pay the village court ordered compensation and a reimbursement of the defendant’s court fine. The complainant is now suing the defendants alleging that the whole court case and words used by the defendants were defamatory in nature and it has caused damages to her reputation and standing in the community and complainant claims damages to the tune of K6000.00 interest pursuant to statute, costs and such other or further orders as the court deems fit.

2. The case came before me for mention on the 1^st of June 2017. The complainant and the first Defendant appeared in court but the second defendant did not appear. There was no affidavit of service was on file so the case was adjourned to the 14^th of June 2017 for further mention.

3. On the 14^th of June 2017 there was no appearance of the parties so case was adjourned to the 29^th of June 2017 for further mention and Clerk of Court was directed to give notice of mention date to the parties.

4. On the 29^th of June 2017 all parties appeared in court and the complaint was read to the defendants and asked to state their position and they both denied the complainants complaint and claim.

5. The case was adjourned to the 26^th of July 2017 for hearing and parties were directed to file their affidavits in support of their respective positions and serve them on each other before the hearing date.

6. On the 26^th of July 2017 the complainant and the first Defendant appeared in court but the second defendant was not in court and parties were not ready for hearing so the case was adjourned to the 9^th of August 2017 for hearing and the second defendant was directed to file her affidavit in court and serve on the complainant within 7 days of the date of court order.

7. Issues for courts consideration:
-3-

(1)Whether District Court can hear a matter already heard by a village Court?

(2) Whether the complainant has a cause of action in defamation?

(3) If the complainant has a cause of action in law then what would be the adequate amount

of compensation to be paid to the complainant?

8. THE LAW.

(1) Village Courts Act.

The village court has jurisdiction to hear all matters arising out of custom.

Defamation cases can be heard by the Village Court because there is customary

practices or traditions where customs of Papua New Guinea and especially in the

caseof Eastern Highlands Province where persons can claim compensation for words

or actions or behaviour of defamatory nature done in public or communicated to persons other than the person to be affected by the defamatory words and acts.

(2) Defamation.

The Law on defamation is the Defamation Act C293 and the common law where

applicable.

Section 3 of the Defamation Act defines defamation as ‘A person who-
(a) By spoken words or audible sounds or

(b) By words intended to be read by sight or touch; or

(c) By signs, signals, gestures or visible representations publishes a defamatory

imputation concerning a person defames that person within the meaning of this

Act’.

Section 2 defines a defamatory matter as (1) An imputation concerning a person or
a member of a family, whether living or dead by which- (a) the reputation of that
Personis likely to be injured; or (b) he is likely to be injured in his profession or
tradeor(c) other persons are likely to be induced to shun, avoid, ridicule or despise him
is adefamatory imputation. (2) An imputation may be expressed directly or by
insinuation or irony. (3) The question. Whether any matter is or is not a defamatory or
is or isnot capable of bearing a defamatory meaning is a question of law.

Section 4 defines publication as ‘For the purposes of this Act, publication is- (a) in

the case of spoken words or audible sounds, the speaking of those words or making

-4-

of thissounds in the presence and hearing of a person other that the person defamed;

and (b)in case of signs, signals or gestures, the making of those signs or gestures

so as to be seen or felt by, or otherwise come to the knowledge of a person other

than the person defamed; and (c) in the case of other defamatory matter-(i)

exhibiting in public or (ii) causing it to be read or seen or(iii)showing it or delivered ,

with the view of it being read or seen by a person other than the defamed.

Section 5 and 24 of the Defamation act says that it is unlawful to publish a

defamatory matter unless the publication is protected or excused by law and the

publication ofdefamatory matter is an actionable wrong. The complainant did not state

in her complaint the section under which she is coming to this court and this court

assumes thatshe is coming to court under section 24 of the Defamation Act and will

deal with her complaint on that basis.

Common law principle Res judicata.

This doctrine means that once a matter is dealt with by a court of competent jurisdiction. The same parties cannot go to another court with the same issues for determination. To do so is an abuse of process.

9. HEARING.

The complainant filed her affidavit and called one witness who filed his affidavit too. The defendants filed their affidavit and called one witness who gave oral testimony. The complainant and her witness were cross-examined on their affidavits by the first Defendant. The defendants were also cross-examined by the complainant. The court also asked several questions to the parties and their witnesses.

10. FINDINGS AND APPLICATION OF LAW.

The complainant and the First Defendant were at one time married to one man who has since passed away. The First Defendant has taken over their late husband’s properties in Goroka while the Complainant was in mourning the death of her husband and their first born son in Jiwaka Province. After the morning the complainant came back. She started proceedings to reclaim part of the properties left behind by their late husband and her claim for redistribution of their late husband is before the National Court.

-5-

Due to the above the complainant and the first defendant have an on going dispute between them and the parties have argued a few times and are not on good and in one such incident resulted in serious injury to the complainant. The dispute came to the attention of police and the First Defendant was directed by police to K500.00 to the complainant and first defendant paid the said amount to the complainant.

The second defendant is the first wife of the First Defendant’s current husband and she has several children.

In 2014 and 2015 at a couple locations in Goroka, told the second defendant that she will organize sorcerers to make black pawa to cause injury to the first Defendant and her
husband or words to that effect and the second defendant relayed the statement to the First Defendant and various members of her family.

The First Defendant was aggrieved by the statement made by the complainant and she took the matter to the Asaroufa Village Court and the Village Court heard the complaint and ordered the Complainant and the second defendant in this case to pay K100.00 each to the First Defendant. It further ordered that they pay K30.00 fine.

The Second Defendant paid K100.00 to the First Defendant and the village Court fine.

The Complainant was aggrieved by the decision and filed a review in the District Court.

The complainants appeal was heard ex parte and upheld the Village Court decision and ordered that the complainant shall not pay the K100.00 compensation and ordered that court fine of K30.00 be refunded by the village court to the complainant. These facts are not disputed by the parties.

The words Poison, sorcery and black pawa emanated from the complainant herself on one occasion in 2014 and another occasion in 2015 and those facts were not disputed by the complainant and this court is of the view that she made up the idea and communicated the same to the second defendant that led to accusations and counter accusations and disputes between the parties and ended up in the village court. The village Court ordered her to pay compensation to the first Defendant but she appealed against the decision and she won the appeal on technicality that is the appeal was determined ex parte. After the village court case the parties continue to have disputes and differences and they are now before this court.
-6-

Since the complainant started the talk about using sorcery and poison against the defendants which led to counter accusations etc. and the parties are not in good terms. This court is of the view that she cannot claim compensation for what she herself started. She has destroyed her reputation herself by coming up with the idea to use sorcerers to cause mishap and/ or injuries to the first Defendant and her current husband.

11. Hence the court’s answer to the issues before it in this case are as follows:

Issue 1: The Village Court is a court of competent jurisdiction and once a matter is heard by it, the parties can file for review/appeal in the District Court. The complainant has exercised that option and the review was determined by the District Court. The parties cannot re litigate the same matter or issues before the village court in the District Court again. The common law principle of res judicata applies here. Hence the District Court has no jurisdiction to hear this complaint.

Issue2. The complainant started the whole process of defamatory statements by coming up with the idea that she will arrange sorcerers to make black pawa and injure the First Defendant and her husband which is wrong and illegal. She has destroyed herself and her reputation by coming up with this devious and illegal plan which she communicated to the Second Defendant in 2014 and 2015 and she cannot now turn around and claim compensation from the defendants for what she herself started. She has no cause of action in law.

Issue 3. This issue is not necessary to be considered here firstly because District Court cannot hear a matter that has already being heard by a court of competent jurisdiction as stated above. Secondly because of the courts finding under issue 2 above.Thirdly if the District Court for some reason wishes to hear these allegations of defamation again then it would be unfair to the second defendant who has complied with the village court decision. If this court orders the second defendant to pay compensation to the complainant then that would amount to double punishment for her. Hence this is a course of action cannot be facilitated by this court.

12. Cost is a discretionary matter for the court and court is of the view that parties shall bear their own costs because this matter arose from a domestic argument between widows of a deceased person and this court does not want to burden the complainant with more problem since the first defendant has taken over all assets of their late husband. It may be argued that
-7-

the second defendant should have her costs because she was not the main cause of this problem but this court is of the view that once illegal plan to use sorcery against the first defendant was communicated to her by the complainant. She should have referred the matter to police. She failed to do that. Hence she cannot have her costs.

13. The courts formal orders are:

1. The complaint is dismissed and.

2. All parties bear their own costs.

Counsels:

Lawyer for the Complainant, In Person

Lawyer for the Defendant, In Person