Willie v Jokate [2021] PGDC 242; DC8025 (6 May 2021)

DC8025

PAPUA NEW GUINEA

[IN THE DISTRICT COURT OF JUSTICE]

CIVIL JURISDICTION

DC. NO. 12 OF 2021
ANNA WILLIE

Complainant

V
ROLE JOKATE
First defendant

ROSE JOKATE
Second defendant

GOROKA: B GORE, Magistrate

2021: 29^th of April & 4^th & 6^th of May 2021

CIVIL-cause of action - defamation, sorcery allegations made in a village in view of people- whether or not that publication amounts to defamation pursuant to s.5 of the Defamation Act 1962 - the publications herein are not privileged or excused or justified under the Defamation Act. –utterance made amounted to defamation general damages awarded.
CASE 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
Samson Jaro v.Stanley Sakimo DC839

LEGISLATIONS:

Defamation Act 1962 ss.2, 3, 4 & 5

COUNSEL

Parties appeared in person

BACKGROUND

1. On the 29^th of March 2021, the complainant filed a complaint and summons upon complaint claiming that on the 22^nd, 23^rd of February and 1^st of March 2021, the defendants made defamatory publication of her of being a ‘sanguma’ in their village in front of a lot of people without any evidence or proof and hence that publication caused shame, embarrassment and spoiled her reputation and her standing in the community.
2. She sues for defamation under s.5 Defamation Act 1962 and claims compensation in the sum of K8000. The defendants appeared in court after being served; both defendants are villagers who were not able to file any defence hence oral trial was conducted.

COMPLAINANTS CASE

3. The complainant gave evidence stating that the both defendants are her father and mother in law, they all live in the same Somogo Village in Bena. Their houses are close to each other, at around 9am on the 22^nd day of February 2021; she heard the second defendant Rose Jokate’s voice along the road in the village and came out to see what was happening. She passed though some mandarin trees to come through the road to meet them, the accused Rose Jokate stopped the complainant saying ‘she already saw what happened so must not come close to her sick child as they were on their way to pastor to pray over him’.
4. The complainant got shocked and lost for words. Both defendants repeatedly told her they saw a flying fox flying out under the mandarin tress where she stood and that was something unusual. She stood there helpless because in custom the defendants are implying that she was witchcraft possessing a flying fox as a spirit.
5. The complainant followed them to pastor’s house which was not too far from their area and argued with them why they brand her as ‘sanguma’, both defendants said they will talk about this issue at their area after the pastor prayed over the sick child. The parties returned to their village and had an argument. The defendants said they saw flying fox flying out where she was standing and that was something unusual and the defendant Role Jokate continue to call her ‘sanguma’ four times in front of the whole village and everyone heard and witnessed the argument.
6. Both defendants raised the same issue of flying fox and ‘sanguma’ the next day in the village and continuously cause shame, humiliation, trauma and suffering to the complainant and her standing in the community. On the following day, the defendants left the village and went to the second defendant village saying they fear living in the village with the complainant.
7. Complainant’s second witness Cathy Robin gave eye witness evidence of what happened at the village when parties returned from the pastor’s house, there was a big argument in the village and the complainant Role Jokate called the complainant sanguma four times in front of a lot of people. Both defendants also said they saw flying fox flying right out of her and that was something unusual. That allegation has caused great shame, trauma and suffering to the complainant in the village, she basically corroborated the complainant’s evidence.

DEFENDANT’S CASE

8. Both defendants gave very short and uniform evidence, they maintained that when they saw the flying fox flying out of the complainant under the orange trees, they stopped her from coming close to the sick child. The complainant followed them to pastors house and argued with them as to why they accused her, both parties said they return to their village after the pastors prayed for their sick son and there was an arguments at their village, they insisted that they didn’t called her ‘sanguma’, they only admitted talking about seeing a flying fox flying out from where she was standing hence stopped her from coming close to the sick child. Both defendants maintain that it was an unusual thing for a flying fox to fly out from where complainant was standing.

LAWS ON DEFAMATION OF CHARACTER

Sections 2 to 5 of the Defamation Act 1962 are of relevance here.

S.2. DEFINITION OF DEFAMATORY MATTER.

9. (1) An imputation concerning a person, or a member of his 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 his profession 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 defamatory or is or is not capable of bearing a defamatory meaning, is a question of law.

S.3. DEFINITION OF DEFAMATION.

10. 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.

S.4. PUBLICATION.

11. 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 those sounds in the presence and hearing of a person other than the person defamed; and (b) in the case of signs, signals or gestures, the making of those signs, signals 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 it in public; or (ii) causing it to be read or seen; or (iii) showing or delivering it; or (iv) causing it to be shown or delivered, with a view to its being read or seen by a person other than the person defamed.

S.5.PUBLICATION OF DEFAMATORY MATTER PRIMA FACIE UNLAWFUL.

12. It is unlawful to publish defamatory matter unless the publication is protected, justified or excused by law.
13. The Act also provides for defenses which the defendant can raised to exonerate him/herself from liability. However defendants have not raised any of the defenses under the Defamation Act.

ASSESSMENT ON EVDEINCE & LAW

14. The first question that comes to my mind is whether or not the words had defamatory imputation or meaning? After considering all the evidence before me it does have because the defendants had called the complainant a sorcerer in view of people, sorcery is a belief that existed in our society but it cannot be proved, it’s purely based on their own malice and ill will hence capable of causing injury to the complainant’s reputation..
15. Second issue to look at is whether the words were published? By virtue of section 4 of the Defamation Act, the words were said in the public hence that is publication. Then we go further to find see if the utterance were not privileged or excused or justified under the Defamation Act. The utterance did not fall under any of the above defences under the Act.
16. I find that the defendants did not denied saying flying fox was flying out from where the complainant was, what they are simply saying is that they did not say the complainant was a ‘sanguma’. Both defendants maintain that flying fox flying out under the orange tree where the complainant was standing was an unusual thing.
17. What would that imply? In all Papua New Guinea societies, there is some kind of believe in sorcery but the nature of believe and its form of existence differs from place to place. For example in Simbu and EHP, they call it sanguma and they generally believe the ‘sanguma spirit’ can take the form of animals or insects and can kill people.
18. Applying this customary practice to this scenario, obviously the defendants are implying that the flying fox was a ‘sanguma’ spirit possessed by her. Simple as that, if they don’t mean to call her sanguma, why could the defendants reacted in the manner they did. However I need not to go further on that because those believe cannot be proven in a court of law. They will only remain as beliefs in our societies.
19. Further to that there is evidence before this court from both complainant and her eye witness that the defendants mentioned ‘sanguma’ four times to the complainant in a public place. The defendants attempts in isolating the issue of flying fox flying from the complainant and her being branded as ‘sanguma’ is not logical. By saying flying fox coming from the complainant simply mean ‘a sanguma spirit possessed by the complainant “.After considering the whole scenario of the case and evidence presented by both parties, I am satisfied that the publication amounts to defamation.

DAMAGES

20. The complainant claimed K8, 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.
    
21. In the case of Samson Jaro v.Stanley Sakimo DC 839, defamatory publication was made by the defendant Sakimo by way of a complainant laid with the police in Form 12(A). The defendant declared in that statement inter alia that the complainant had:
    1. Abused his position as Commander of Buimo Corrective Institution in that he had unlawfully and improperly associated with prisoners and or an ex prisoner and engaged the latter in running his private business,
    2. Abused his position as Commander of Buimo by unlawfully or improperly obtaining prison rations from a friend or associate’s store; Stolen State properties in and during the course of his employment as Commander of Buimo Corrective Institution;
    3. Neglected his duties as Commander of Buimo Corrective Institution and was conducting his own private business hence must be transferred out.
       
22. The complaint was investigated by the police however there were no evidence to prove the allegation hence the case fell through. The complainant sues the defendant for defamatory imputation and asks for compensation in the sum of K10, 000 for damages. The court in that case awarded K10, 000 compensation claimed by the complainant.
    
23. In the instant case the evidence show that the complainant is an elder woman in the community married for 17 years with three grown up kids. She is a faithful member of the SDA and had built her own reputation in the village over time. By making such defamatory publication about the complainant caused personal injuries and therefore she is entitled to damages.
    

1. In all that I have said, the following damages are awarded in complainant’s favour: general damages in the sum of K3000.00 to be paid within 3 months.
2. No order on cost are made.
   

Plaintiffs Counsel: In Person
Defendants Counsel: In Person