Apo v Kenis [2018] PGDC 28; DC4010 (29 May 2018)

DC4010

PAPUA NEW GUINEA

IN THE DISTRICT COURT OF JUSTICE AT GOROKA.

COMP NO DC 50 of 2018.
BETWEEN :

Enna Apo
Complainant.

AND,

Konda Kenis
Defendant.
CORAM: P KAUMBA LLB(PNG).

2018 March 29^th, April 18^th, 25^th, May 4^th, 25^th& 29^th.

Counsels:
Complainants: In person.
Defendant: In person.

DECISION.

BY THE COURT:

1. The complaint was filed on the 16^th of March 2018 alleging that on or about the22^nd of January 2018 theDefendant made defamatory remark in public that the complainant and her adopted son Kenis Apo were having sexual affairs. The complainant being the wife of and mother of 6 children to her husband Mr Apo who is a respected person and leader having good status in his community. As being the wife of a respected person such remarks caused the complainant shame, embarrassment and spoiled her reputation and standing in the community. Therefore the complainant sues the defendant and claims compensation pursuant to section 2 and 4 of the Defamation Act and claims:
   • (a) Defendant to pay compensation of K8000.00.
   • (b) Costs of this proceeding
   • (c) And other orders the court deems meet.
     

ISSUE(S)

2. Issues for courts consideration are:

(1).Can the complainant issue proceedings under section 2 and 4 of the Defamation Act?

(2). Has the complainant proved her claim on the balance of probabilities?

(3). Can a dispute resolved by mediation at community level be re litigated again in the District Court?

(4). Can a dispute resolved by a Village Court be heard again by the District Court?

THE RELEVANT LAW.

3. The relevant laws are:
   • (A) Constitution

The constitution sets out the hierarchy of courts in Papua New Guinea and the District Court and Village Courts are formally provided for in section 172 of the Constitution.

(B) Common law doctrine of res judicata.

The res judicata principle stands for the principle that once a matter is litigated in a competent court. It cannot be litigated again in another court of competent jurisdiction.

(C) Defamation Act.

The Law on defamation is the Defamation Act C293.

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 person is likely to be injured; or (b) he is likely to be injured in
hisprofession or trade or(c) other persons are likely to be induced to shun, avoid, ridicule or despise him is a
defamatory 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 is not 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 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 of defamatory matter is an actionable wrong.

FACTS.

4. The brief facts of the case are:

(1). The complainant is the Step mother of Kenis Apo the husband of the defendant and they live at Faniufa Goroka Eastern Highlands Province.

(2). The complainant alleges that on or about 22^nd of January 2018 the defendant made defamatory statements in the public accusing the complainant and her adopted son Kenis

Apo of having sexual affairs thereby destroying her reputation and standing in her community and exposing her to ridicule and shame.

(3).The complainant and her relatives accused the Defendant of obtaining restraining orders against the Defendant from the Village Court and they fronted up at her residence

andargued with her and a confrontation took place.
(4).The dispute was mediated at the family and community level and k1200.00 cash was exchanged between the parties to settle the dispute.
(5). The dispute did not end there, it was brought before the Asaroufa Village Court and the Village Court heard the dispute and found the complainant and Kenis Apo liable and
orderedthem to pay K150.00 each as compensation to the defendant.

TRIAL

5. At trial the complainant gave evidence and called two witnesses and closed her case.
6. The Defendant gave evidence and called two witnesses only (out of five she indicated she would call earlier) to give evidence saying most of her witnesses were interfered with by the complainant and they are unable to attend and give evidence even though they filed their affidavits in court already.
7. The parties were allowed to cross-examine each other and their witnesses.
   

FINDINGS ON FACTS,LAW AND ISSUES.

8. My findings are:
   • (1) The complainantand defendant are members of the Apo family and they have a PMV business at Faniufa, Goroka Eastern Highlands Province.
   • (2) This dispute seems to have arisen from jealousy and complaints over who should have control over Mr Kenis Apo and the business.
   • (3) The complainant alleges that the defendant accused her of having an sexual affairs with her adopted son KenisApo(defendants husband) on or about 22^nd of January 2018.
   • (4) The Defendant has denied the claim and the complainant has not produced any evidence to prove her claim that the defendant uttered the words complained of on or about 22^nd of January 2018 and who witnessed the accusation allegedly uttered where and when etc.
   • (5) The complainants witnesses said the defendant made the statements during the mediations but failed to confirm the exact words spoken.
   • (6) Did the mediation take place on the 22^nd of January 2018 or not is not clear from evidence produced in court.
   • (7) The complainant alleged that the defendant obtained a restraining order restraining the complainant from accompanying Mr Kenis Apo and started arguing with the Defendant and her relatives at her residence which resulted in confrontation between the two parties relatives and mediation was done to settle the dispute but she did not produce a copy of the restraining order (which she alleged the Defendant obtained from Village Court to restrain her from going around with Kenis Apo) into court as evidence.
   • (8) The complainant’s witnesses in my view were unreliable and not trustworthy.
   • (9) They said the defendant said the complainant went around with her husband for I year and she admitted that at mediation but the defendant rebutted it by sayingthat going around did not imply sexual affair.
   • (10) She further explained that by saying the complainant raunwantaim man blongmi 1 year, shemeant that the complainant and her husband Kenis Apo were going around on business and/or family trips as mother and son and not having sexual affair.
   • (11) The Defendant and her witnesses were reliable and trustworthy in that their evidence corroborated the defendant’s evidence that she never uttered any defamatory words complained of by the complainant.
   • (12) The complainant has not rebutted the defendant’s evidence via cross-examination.
   • (13) Hence I am of the view that complainant has not proven her claim on the balance of probabilities.
   • (14) Furthermore the complainant and the Defendant submitted their dispute to a mediation team made up of family members and leaders of their community and the dispute was mediated and settled with exchange of cash and why is the complainant coming to this court again.
   • (15) Once she submitted to mediation team’s jurisdiction and accepted the mediated settlement she cannot come to court again and have a second bite at the same apple.
   • (16) Even though the mediation is informal, it is a process of dispute settlement and I don’t see any good and/or valid reason why District Courts cannot recognise the mediation and give effect to it and respect a mediated settlement.
   • (17) Every day many disputes arise in our society and if the courts don’t recognize informal means of settlement of disputes by parties then the courts will be doing disservice to themselves and the public because the courts will be clogged up with so many cases and that will not be good for dispensation of justice in a timely and efficient manner.
   • (18) Furthermore disputes will be pro-longed and that is not good for good and orderly society.
   • (19) Hence it is the public interest that informal means of settling disputes should be recognised and settlements reached must be given respect, recognition and effect unless it can be shown by one of the parties or interested persons and authorities that the settlement was obtained by fraud or use of undue influence or use of force or any combination of the three scenarios.
   • (20) Here the dispute did not stop at the mediation. It spilled over to the Asaroufa Village Court and the Village Court heard the case and the complainant and Mr Kenis Apo were ordered to pay K150.00 each to the Defendant.
   • (21) The Defendant says in her evidence in court that the complainant and Mr Kenis Apo admitted to the adulterous affair and that was not rebutted by the Complainant in cross-examination and it remains unchallenged.
   • (22) The Defendant also said in her evidence that the Village Court case was in relation to the complainant breaching an undertaking she made at the mediation referred to above that is she will not to go around with Kenis Apo but that was not rebutted by the complainant in cross-examination and it is unclear whether the dispute at the Village Court is the samedispute that was mediated at the Community level or different.
   • (23) I believe the defendant and assume that it is the same dispute and the common law principle of res judicata will apply here that is a person cannot bring a dispute dealt with by a competent court to another courts to deal with it again.
   • (24) Here a Village Court is competent court and it has heard the dispute and the complainant should have appealed the decision of the Village Court to the District Court if she was aggrieved instead of taking the case to this courtin the way she did and her complaint and summons in this court is an abuse of process.
   • (25) The complainants complaint is brought under section 2 and 4 of the Defamation Act and it is wrong because these sections define defamatory matters and donot provide for a cause of action for an aggrieved person.
   • (26) The parties especially the Defendant did not raise the issue of whether the complainant can bring proceedings under section 2 and 4 of the Defamation Act so I allowed the case to proceed because I am a believer in delivering justice on the merits of the case and not on procedure or technicalities. Furthermore our system of justice is adversarial and I cannot raise issues on behalf of a party or parties.
   • (27) If the defendant had raised the issue I would have used my powers under section 138 of the District Court Act to allow the complainant to amend her complaint and summons.
   • (28) Since the complainant has failed to prove her claim so I have no option but to be strict with the interpretation of Defamation Actand relook at the issue of whether the complainant can issue proceeding under the section 2 and 4 of the Defamation Act or not.
   • (29) Section 2 and 4 of the Defamation Act are definition sections as noted hereinabove.
   • (30) The complainant should have brought this action under section 24 of the Defamation Act which provides for persons defamed to bring their actions to court.
   • (31) Hence the complainants complaint and summons is misconceived and it is defective
   • (32) Based on the foregoing findings I would dismiss the complainant’s complaint.
     

ANSWER TO ISSUES.

9. My answers to issue before the court are:

(1).Yes.

(2). No.

(3).No.

(4). No.

COSTS.

10. Cost is a discretionary matter for the judge. Parties to bear their own costs.
    

ORDER.

11. The Courts formal orders are:
    1. The Complaint is dismissed forthwith.
    2. Parties to bear their own costs

Lawyer:

Complainant : Nil.
Defendant : Nil.