Wawae v Auwowe [2021] PGDC 243; DC8026 (11 May 2021)

DC8026

PAPUA NEW GUINEA

[IN THE DISTRICT COURT OF JUSTICE]

CIVIL JURISDICTION

DC. NO. 12 OF 2021

ROLLIE WAWAE

Complainant

V
IZAHO AUWOWE, RONEL MANIHA,
JIM SIMON GASIMO, DAKUS
WAWE, IZERO KOVE HETARO,
JERRY IZAHO & SON RONEL
Defendants

GOROKA: B GORE, Magistrate

2021: 27^th April & 11^th of May

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
Anna Willie v.Role Jokate & Rose Jokate Dc.12/2021

LEGISLATIONS:

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

COUNSEL

Parties appeared in person

BACKGROUND

1. The complainant’s cousin brother Raisi Hataro passed away on the 11^th of September 2020 at his Ufeto Village, Goroka. The uncles from his mother’s side came to the house cry on the evening of the same day. When they arrived at the village, a child named Georgina who was among them started behaving abnormal then fell to the ground and talked about cause of the deceased death, A custom that is practiced in Eastern Highlands Province. In the process, the child named the complainant and the deceased wife Nancy Raisi as the one who caused the dead.
   
2. On the 12^th day of September 2020 at around 9am, all the accused persons lead by Izaho Auwowo, the current Village Court Chairman of Ufeto Village Court went into the widow Nancy Raisi’s House and forced her to say that the complainant and herself killed the deceased through sorcery. After one and half hour of continuous threats, force and interrogation, she feared for her life and admitted to killing the deceased with the complainant.
   
3. On the 15^th of September 2020, a mediation was conducted at Ufeto Village Court regarding this sorcery accusation, mediation team were composed of court officials from Asaroufa Village Court, police officers from Goroka and Ufeto Village court officers. After the mediation the complainant was ordered to pay K2000 as compensation for killing the deceased.
   
4. The complainant aggrieved by this and knowing that this was a false allegation to defame his character and standing in his community, appealed to the Goroka District Court where the decision of the Ufeto Village Court was quashed.
   
5. On the 18^th of March 2021, the complainant filed a complaint and summons upon complaint supported with affidavit sues for defamation of character. Although no specific law was stated as the basis for the claim, the assertion in the claims satisfies the apparent requirements for the purposes of a suit in the tort of defamation under the Defamation Act, namely prima facie defamatory utterance, publication, and capacity to injure under the Defamation Act 1962 and claims compensation in the sum of K5000.
   
6. The defendants appeared in court after being served; they filed their defence basically denying making any defamatory allegation against the complainant, they did not raise any defences available under sections 8, 9, 10, 11, & 12 of the Defamation Act. Thereafter a trial was conducted.

COMPLAINANT’S CASE

7. The complainant claims that the sorcery allegation made against him were communicated in the village in the view of a lot of people. This is prima facie evidence of defamation. Defence of protection or justification or excuse under the Defamation Act are not available and not applicable to the defendant given the level of malice and ill-will and lack of truth.
   
8. The utterance has caused shame, humiliation, trauma and suffering to the complainant and his standing in the community and his workplace. He said he served PNG –IMR as a Liaison officer for a long time and that publication had really defamed his name and reputation, further to that he said he has two adopted sons whom he had raised and educate, one is a solider with PNGDF and one is a business man in Port Moresby, after that publication, both sons had ignored him and no longer treats him like a father.
   
9. He further said the defendants’ had forced the widow to say he was involved in the killing of the deceased, something which cannot be proved. The defendants had ill will and had brought about something that totally destroyed and injure his personal reputation hence must be compensated for the shame and suffering he sustained.
   
10. In support of the complainant’s claim, the widow Nancy Raisy and her son Samuel Raisi both gave evidence. Nancy said on the 12^th day of September 2020 whilst in her house mourning for the husband, all the accused lead by Izaho Auwowe and Ronel Maniha went into her house and forced her to say that the complainant and she killed the deceased through sorcery.
    
11. She said Izaho sent Ronel Maniha to her to force her to admit that she killed her husband so Izaho and his team will say sorry to her later meaning they will pay for her lies. Some of these accused who entered the house were armed .They repeatedly told her to admit to this, she bluntly told them she cannot lie, pressure was mounting among the group, Jerry Izaho, Son Ronel and Dakua Wauwe threaten to break her skull. Jim Simon Gasimo who was armed with a bush knife told the complainant to agree or her head will go up the avocado tree.
    
12. They have interrogated her for about one hour and thirty minutes. The widow fearing her own life admitted that complainant injected poison substance into the deceased due to land issue between them and she took part in the killing due to deceased not giving her any money from his finish pay. Having heard that the defendants left her house.
    
13. Witness Samuel Raisi said at the relevant time, he was outside the mother’s house when the named accused persons, some of which were armed entered her mother’s house and started forcing her to admit she and complainant killed their father, he said they forced her for a long time until she admitted to it .He said he was scared to intervene and stopped them because he was over powered. He said after the accusation the mother and the complainant suffered great shame in the community.

DEFENDANT’S CASE

14. All the defendants’ gave very short stories, their evidence are as follows, all admitted they went to the widow’s house at the relevant time as representative of the community to find out who actually killed the deceased. Nancy Raisi /deceased wife was not forced or threatened in anyway; she voluntarily admitted that complainant and she killed the deceased using sorcery.
    
15. Their attempt was basically to confirm what the small girl Georgina said when the spirit of the dead went into her, a customary practice that is common in Gororka. They all said they were neither armed, nor using force and coerced her in any way to obtain her admissions. They denied making any publication to defame the character of the complainant.

LAWS ON DEFAMATION OF CHARACTER

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

S.2. DEFINITION OF DEFAMATORY MATTER.

17. (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.

18. 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.

19. 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.

20. It is unlawful to publish defamatory matter unless the publication is protected, justified or excused by law.
21. The Act also provides for defenses which the defendant can raised to exonerate him/herself from liability however those defenses were not raised by the defendant neither applicable in this case.

ASSESSMENT ON EVIDENCE & LAW

22. 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.
    
23. Second issue to look at is whether the words were published? By virtue of section 4 of the Defamation Act, the words were uttered in the public hence that is publication. Then we go further 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.
24. An additional issue to look at is whether or not the admissions were made voluntarily as alleged by the defendants or obtained though force or threats. I take special note of the following factors to determine the above issue.

1. The manner in which defendants’ presented themselves in the widow’s house excluding her sons or relatives.
2. There were no other mourners in her house.
3. the fact that all the defendants, all males present themselves in the widows house,
4. some of the defendants’ were armed and
5. The length of time they took to get the widow to admit their involvement in the killing.
   

25. The above factors show or rather I can safely infer that some form of force and threats were issued, From a reasonable man’s perspective, seven men arrived in a house where a woman is all alone interrogating her over sorcery allegation, she would obviously feel threaten. Besides that there is evidence of force and threats as per the witnesses. Voluntarily admission should not have taken that long. The issue of sorcery cannot be proved in a court of law. Either way I am satisfied that force or threats were used to obtain the admissions.
    
26. The effect of the information they forcefully obtained from the widow had caused much shame, suffering and injuring to the complainant’s reputation.

DAMAGES

27. The complainant claimed K5, 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 K1,000.00 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.
    
28. 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:
29. Abused his position as Commander of Buimo Corrective Institution in that he had unlawfully and improperly associated with prisoners and or a ex prisoner and engaged the latter in running his private business,
30. 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;
31. Neglected his duties as Commander of Buimo Corrective Institution and was conducting his own private business hence must be transferred out.
    
32. 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. In recent case of Anna Willie v. Role Jokate & Rose Jokate Dc.12/2021, the defendants accused the complainant of being a sorcerer, the words were uttered in front of a lot of people in the village, and this court ordered the defendants to pay K3000.00 to the complainant for damages.
    
33. In the instant case the evidence shows that the complainant is an elder man in the community with grown up kids. He is also the Liaison Officer at PNG-Institute of Medical Research for a good number of years and has built his own reputation both in the village and at work over time. Such defamatory publication has caused personal injuries to the complainant and therefore he is entitled to damages.
    

CONCLUSION / COURT ORDER

34. In all that I have said, the following damages are awarded in complainant’s favour: general damages in the sum of K5000.00 to be apportioned as follows.
    

1: Izaho Auwowo to pay K2000 as compensation for the following reasons:

1. For leading the defendants.
2. Being the Current chairman of Ufeta Village Court has brought the job he holds into disrepute hence he must pay more than the others for the role he plays.

2: The rest of the defendants to pay K500 each, a total sum of K5000.00 must be paid to the complainant within one month.

3: No orders on cost are made.

Plaintiffs’ Counsel: In Person
Defendants Counsel: In Person