Savarimeiko v Kerahu [2022] PGDC 90; DC9029 (1 February 2022)

DC9029
PAPUA NEW GUINEA.

CIVIL JURISDICTION.
DC NO: 147/2021,
and
DC No: 18/2021.

IN THE MATTER BETWEEN:

1. HENRY SAVARIMEIKO
2. JAIRUS SAVARIMEIKO

Complainant.

AND:

1. BENFORD KERAHU.
2. RODNEY PARAI.
3. STEVEN ORIRI.
4. JOEL KERAHU.
5. CECILIA ORIRI.
6. SALI BAUPO.
7. JADIN ALLANSON.
8. JANICE HANGOPA ORIRI.
9. ANNA KISO

Defendants

Popondetta: Michael W. Apie’e

2022: January 21^ST, February 01^st.

CIVIL PROCEEDINGS.
-Claim for damages for Defamation of Character of the Complainants by the Defendants.
- The Complainants were allegedly Slandered by the Defendants allegedly through
- ‘Aggressively spreading false Reports that Both Henry and Jairus Savarimeiko were Sorcerers.’

CIVIL PROCEEDINGS.
-Claim for Damages for injuries sustained as a result of assaults inflicted on Complainant Henry Savarimeiko, including Potentially Permanent Damages to his eyes allegedly due to a ‘Splinter’ entering his eye.

Claims are contested by the Defendants.
EVIDENCE-
Both sides called witnesses- and Filings Relied on.
Held:

1. Claim under DC NO: 147/2021, claim for K2500.00 for Defamation, this claim is not proven and so is refused in its entirety.
   
2. The claim under DC NO: 18/2021, claim for K10,000.00 Compensation for Injuries inflicted is only partially Proven that various assaults were occasioned on the person of Henry Savarimeiko and so the Defendants are order to compensate the said Henry Savarimeiko with K2000.00 for the pain, humiliation and fear he was subjected to.
   
3. The Defendants are allowed 31 days until the Monday the 13/06/22 to pay this K2000.00 in compensation to the said Henry Savarimeiko.
   
4. In default, Enforcement to ensue against the Defendants.

Cases Cited:

References:
District Court Act.
Defamation Act.

Representation:
Complainants each appear for themselves.
Benford Kerahu appears for all the Defendants.

JUDGEMENT ON TRIAL.
Background.

1. The Complainants filed their various summons on the 09/09/21 and claimed as follows;
   
   1. In DC No: 147 of 2021, they claimed for damages in the sum of K2,500.00 total from the Defendants for allegedly Defaming their Character by ‘Aggressively spreading false Reports that Both Henry and Jairus Savarimeiko were Sorcerers.’
      
   2. The Complainants claimed that the Defendants by doing this had caused Defamation and Damage to their reputation and character and so claim the following;
      
      1. Spoiling of Personnel (Personal) integrity =K500.00.
      2. Degrading Status and position =K1000.00
      3. Shame and Suffering Inflicted =K1000.00K
         

They claim a total of K2500.00 damages from the Defendants.

100. In DC No: 18 of 2021, the Complainants Jointly claimed for damages and injuries sustained by Complainant Henry Savarimeiko on the 21/06/21 at the hands of named the Defendants, including a potential Permanent Eye injury by what is alleged as a ‘Splinter’ entering Henry’s right eye, causing life altering and permanent injuries. They claim a total of K10,000.00 in this particular Action of DC No: 18/21.
     

2. These Two Different Actions is Litigated by the Complainants jointly at the same time relying on the same Evidence and also the Defendants responded to this separate claims at the same time relying on the same two witnesses hence this one Judgement in respect of both Action DC No: 147 of 2021 and DC No: 18 of 2021.
   

Complainants case.

3. The Complainants Litigated this Claim of Defamation in the same trial with their other Claim for Damages/Compensation for Injuries allegedly inflicted on the First Complainant by some of the Defendants in this claim as well as other people.
   
4. This matter came before this court on the 23/09/21 and the Complainants appeared in Person while Counsel Ms. Emily Daroa appeared for the Defendants and indicated that the claims would be contested.
   
5. Pleadings and various filings by the Parties commenced up until the 25/01/22 when trial commenced and trial was adjourned from time to time until final Submissions and Rebuttals were received from the Parties on the 10/03/22.
   
6. The Trial and Evidence was expected by the Court and presented by both sides for this Claim under DC No: 147 0f 2021 and also Claim for Damages and Compensation for injuries sustained to his Right eye.
   
7. The Medical Report appended to the claim dated the 09/09/21 by Dr. Tom Philimon, the Opthalmic Physician at the Northern Provincial Health Authority, states that “Visual Tests show that right eye had severe ocular neuropathy (Spinster iris muscle dysfunction) after the Injury. He will develop complications in the right eye in the future.”
   
8. Dr. Philimon however stated further that “he (Henry) was commenced on antibiotics and referred for eye check, he was advised for weekly eye check.” He further added that “...His Vision will not be restored until the completion of necessary treatment.”
   
9. From the 09/07/21 to the start of this trial on the 25/01/22 was about Four(4) months and to this date is about Eight (8) months and whether a final Review in the victims eye condition is not made known to this court.
   
10. The Complainants case is based primarily on the verbal testimony of both Henry Savarimeiko and Jairus Savarimeiko delivered on the 25/01/22 at 1.30pm onwards, and the Essence of their Claim is that as told by Henry Savarimeiko is that;
    
    1. On the 21/06/21, the Complainant Henry Savarimeiko who normally lives at the Defendant Benford Kerahu’s Residence at Girua as Benfords wife is his Wife’s niece, had travelled to the village at Oeki for attended to some family related Land discussions.
       
    2. The next day on the 22/06/21 he returned back and came all the way to Popondetta Post Office to pick up the Defendant Benford Kerahu’s vehicle that he normally drives to drop off and pick up his children from school.
       
    3. At about 10.30am, Benford and his Wife and son picked up Henry at the Post Office and drove down to Girua Airport way where they drove into Benford Kerahu’s residence.
       
    4. It is alleged that at that time, they locked both gates to the Residence and the Defendant Benford Kerahu is reported to have said to the boys gathered there, ‘I have brought your pig.’
       
    5. At the same time, he claims that Defendant Benford Kerahu opened the door of his vehicle and came out with a stern face and said ‘Asshole, Kok-Pekpek, kam daun, yu poisin man!’

(In English, Asshole/Asshole or Anus, Kok Pekpek / Dirty Penis or Penis with Excrement or Faeces on it, Kam Daun/ Come down (From vehicle) Yu Poisin man /You Sorcerer or Practitioner of Sorcery)

6. At the time, Henry descended from the vehicle and he claims that the Defendant Benford then went to the offside of the vehicle and took out his shot gun and point it at him (Henry) and ordered him to sit on a provided chair and Henry went and sat down.
   
7. At that time, it is alleged that the Defendants boys (other Defendants) also came with knives and sticks, and Cecilia Oriri (Defendant Benford Kerahu’s wife) was the first with a Kitchen knife trying to stab Henry in the stomach and she said to him “Kok pekpek poisin man!”
   
8. At the time Henry fell to the floor with the chair and he picked himself up, and at the time one Joel Kerahu came and whipped him on the back with the Flat side of a long Tramontina Machete/Bush-knife, resulting in a lot of pain felt by Henry.
   
9. Rodney Parai, held a Stick in one hand and a grass knife in the other hand and also use both the grass-knife and stick to hit Henry in the back.
   
10. Steven Oriri came with a long stick and said to Henry “Kok pekpek, asshole poisin man” and also hit Henry in the back with the Stick.
    
11. Sali Baupo is also alleged to have hit Henry at his back with a grass knife.
    
12. Henry also alleged that one Jadin Allanson also used a grass knife to hit him in the back.
    
13. He then accused Benford Kerahu of hitting him in the back with a long Bamboo pole and it broke over Henry’s head and a ‘SPLINTER’ from that bamboo shot into his eye and has now damaged his eyes. I will address on this point Later.
    
14. Henry further alleged that Jairus Oriri called him a ‘Poisin man’ to his face as well as Annie Kiso who called him ‘Poisin man’ in his face and then they came and locked him up at the police Cells.
    
15. Jairus Savarimeiko was never present during the Incidents leading up to this case but his evidence was from the stand point of a brother standing up to support his brother in the case and he merely gave supportive evidence confirming that Henry was assaulted and locked up and later released and also that he sustained some injuries including Potentially Permanent eye damage.

11. The Complainant Henry Savarimeiko is thus Jointly aggrieved with his brother Jairus Savarimeiko by the Defendants actions and therefore seeks the following Orders;
    
    1. Under Complaint DC No: 147 of 2021, Damages for Defamation of Character wherein it is claimed that the Defendants ‘Aggressively spreading false Reports that Both Henry and Jairus Savarimeiko were Sorcerers.’
       
    2. In Complaint Dc No: 18 of 2021, the Complainants again jointly claimed damages for the Alleged injuries and damages caused to Henry Savarimeiko’s eyes as per the Interim medical report appended to the Claim, as recited in paragraph # 8 and 9 above.
       
12. The defendants on the other hand also called Two Witnesses namely first Witness Stafford Oriri on the 27/01/22, and Benford Kerahu himself on the 02/02/22 and Steven Oriri on the 22/02/22. The Defendants Contention is that;
    
13. Benford Kerahu:
    1. The Complainant Henry Savarimeiko was kept close by Defendant Benford Kerahu as he was Benfords Wife Cecilia’s younger Aunty Gladys husband and also Benford used him as a driver to Drop off and pick up his children from school.
       
    2. However, Benfords eldest child and daughter, 15year old Amau, became sick to the point of loosing her mind and becoming ‘Longlong’ or Insane after an interaction with Henry wherein it is alleged Henry gave her a Mustard to chew so as to prevent her from getting pregnant later in life.
       
    3. The Defendant engaged a person Labelled as a ‘Herbalist’ from the Sandaun Province, and that person came and applied Treatment and gave Amau some herbal concoction causing Amau to vomit out whatever was ailing her and she recovered and regained her mind on the 20/06/21.
       
    4. She then tells her parents and the ‘Herbalist’ that Henry gave her a Mustard to chew through his wife Gladys, and that was the start of her ill health and mental breakdown.
       
    5. So on the 22/06/21, the Defendants in sought to have this issue mediated within the family and so they picked up Henry after he came back to Town from Oeki village and took him to Girau, then they brought in Stafford Oriri and Rodney Parai as family leaders and they asked Henry about the reports from Amau Kerahu about the Mustard he gave to her.
       
    6. At that time Defendant Benford claims that Henry smiled at Benford and that provoked the Defendant to punch Henry, given the Trauma that Amau had to go through with her ailment because of that mustard.
       
    7. At the time only Steven Oriri also stepped up in frustration and also hit Henry but Stafford Oriri stopped the Defendants from further assaulting Henry and that was that.
       
    8. Mrs. Cecilia Kerahu and others were seated there and told Henry to Admit what he was doing with the Mustard and other such activities, as he had lived over 8 years with the Defendant and they all knew his track record in sexual misconduct even among their own family.
       
    9. Henry denied all the allegations and so the Defendant Benford called the police to go down to Girua and bring Henry in, and police went down.
       
    10. As soon as Police Arrived, Henry then told them that ‘It is not a bad thing that I gave Amau mustard to close her womb up, and he admitted to burying other items at the back of house.’
        
    11. At that time Joel Kerahu was frustrated and slapped Henry over his face.
        
    12. Cecilia Kerahu was seated at the time near Henry with a Kitchen knife but did not do anything to him as was alleged.
        
14. Stafford Oriri:
    1. On the 20/06/22 the case of Benford’s daughter Amau getting very sick and an Herbalist or Alternate Medicine Practitioner

Came and consulted her and claimed that Henry Savarimeiko caused her to be sick.

2. The Defendants Benford and his wife Cecilia Oriri-Kerahu were frustrated and they burnt down their spare house at their block that Henry and his wife live and after telling his wife to remove their personal items.
   
3. On the 21/06/21, Henry was taken back to the Block at Girua and this witness (Stafford Oriri) was also asked and taken into the block to witness the mediation/ questioning of Henry Savarimeiko.
   
4. When Henry was asked about the mustard that he allegedly gave to the young girl Amau Kerahu, he answered that ‘I gave her the mustard to stop her from getting pregnant.
   
5. When he said that, the family was frustrated and they slapped him about, and this witness stopped them from doing anything further after that.
   
6. He also stated that none of the Defendants especially Benford, Cecilia, Steven and Rodney Parai used any weapons against Henry but used their hands only whilst Joel Kerahu, Sali Baupo and Jaden Asari never lifted a finger against him.
   
7. Later he added that Jaden Asari or Allanson and Sali Baupo were never present at the Defendants Block that time and ought not to be named in this case, even.
   
8. After this witness stopped the Defendants from further assaults on Henry, they called the Police and Police came and escorted the Defendant up to Town.
   

15. Steven Oriri:

Steven Oriri gave his testimony on the 22/02/22 and he stated as follows that;

1. On the 21/06/21 Benford Kerahu and Cecilia kerahu took Henry Savarimeiko to their block at Tokuhambo near Girua airport and so they asked him to attend also at their block with their clan leader Mr. Stafford Oriri.
2. They were there to resolve the issued between said Henry Savarimeiko and the young Girl Amau Kerahu.
   
3. The young girl Amau Kerahu had revealed what Henry Savarimeiko had done to her, and since Henry is like a father to them, Steven himself, Cecilia Kerahu and Rodney Parai, they also know of his Sexual habits allegedly of Rape and Sexual Assaults against nieces, granddaughters and even adopted daughters previously.
   
4. And now he had dealt inappropriately with Amau Kerahu a ‘granddaughter’ by allegedly fondling her breasts and touching her buttocks and giving her the mustard to chew for sexual purposes.
   
5. Steven Oriri also stated that in these previous cases of Sexual misconduct Henry was never taken to court of referred to Police because of the family ties with the victims, however in Amau Kerahu’s case these things that had being building up boiled over and so Henry was assaulted and referred to Police.
   
6. However, his Police Case was struck out on a technicality, and Henry Thinks that he has won the case and so is issuing this summons against us.
   

Observations/Assessment.

16. The Court make the following Observations;
    
    1. As stated in Paragraphs 1 and 2 above, these Judgment covers the Complainants claims in Both DC No: 147 of 2021 and DC No: 18 of 2021 and it is this Court intention to answer both claims in this one Judgement.
       
    2. Regarding DC No: 147 of 2021, the Claim of K2,500.00 from the Defendants Benford Kerahu, rodney Parai, Steven Oriri, Joel Kerahu, Cecilia Oriri/Kerahu, Sali Baupo, Jadin Allanson, Jennis Oriri and Anna Kiso as damages for Defamation of Character by Aggressively spreading False reports that the Complainants were practicing Sorcery to kill them’, this court makes the following observations;
       
       1. The Defamation Act 1962 sets out the definitions and Application of Defamation in Section 2 and 3 wherein Section 2 (1) (a) to (c) describes the Defamatory matter any Imputations that is calculated to defame or degrade the character or any person living or dead and subsection (2) such imputations could be either directly expressed or indirectly though insinuation and Irony or Innuendo, and (3) whether such matter are Defamatory or a capable of bearing Defamatory meaning is a question of Law.
          
       2. Section 3 (a) on the other hand for the Purposes of this Judgment reads ‘A person who– (a) by spoken words or audible sounds;... publishes a defamatory imputation concerning a person defames that person within the meaning of this Act.
          
       3. Section 4 of the Act relates to Publication, an important requirement for a claim to be founded under the Defamation Act, it reads in it relevant parts to this case;
          

Section 4. Publication.

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.

4. Telling someone to his face that he is such and such a person example ‘You Poisin Man’ or ‘Rapist’ or ‘Murderer’ can be deemed as Insulting under Section 7 (b) of the Summary offences, but cannot amount to Defamation, as the requirement that such comments must be Published under section 4 of the Defamation Act requires some other person or persons to hear these comments.
   
5. The Complainants accused the Defendants of ‘Aggressively spreading false Reports that Both Henry and Jairus Savarimeiko were Sorcerers’ but no other person came to this court to evidence that allegation.
   
6. Therefore, there is no Proof of Publication to others of the ‘Sorcerer Claims’ to complete the Claim of Defamation under the Defamation Act.
   
100. DC No: 18 of 2021 is levelled against, Benford Kerahu, Rodney Parai, Steven Oriri, Joel Kerahu, Cecilia Kerahu, Sali Baupo and Jadin Allanson. This is a Claim of K10,000.00 for injuries sustained at the hands of the Defendants especially a Potentially Permanent Right Eye injury wherein it is alleged that a ‘Splinter’ entered Henry’s eyes and has caused permanent Injuries, the court observes as follows;
     
     1. The Dr. Philimon wrote ‘Spinster iris muscle dysfunction’ not ‘Splinter’ in his report **(Upon my own Search in Wikipedia on that Phrase, the closest this to what the Doctor Wrote that came up is the ‘Iris Sphincter muscle’ which is the circular muscle fiber(s) in the Pupil/Iris that constricts to minimize light entering the Pupils and dilates to let in light to the Retinae to aid in Visualization and observations by human being and other animals.
        
     2. What the Doctor was suggesting was that (maybe) due to the assaults, Henry’s Iris Sphincter Muscles were somehow affected and therefore Dysfunctional thereby maybe not constricting well during the day time causing Henry not to see well or facing difficulties in seeing things during daytime.
        
     3. Therefore the good Doctor prescribed a regime of medication which if kept up faithfully might restore his eyes ultimately by writing ‘His Vision will not be restored until the completion of necessary treatment.”
        
     4. I would in that vein also surmise that if a Foreign Body such as a ‘SPLINTER’ from a bamboo or wood or other foreign material had puncture and enter Henry’s eyes of Iris/Pupil for that matter, there would not be any chance of Recovery from his eye problems no matter what type of Medication or whatever type of Regime he was put on.
        
     5. No Up-dated Medical Report or review on Henrys right eye had being tendered to the Court up to now, so this court is at a disadvantage as to the current prognosis of Henrys Right eye to finalize its Assessment on this matter.
        
     6. *The Court is mindful of the Defendants contending that Henry had a pre-existing eye problem well before the incident of 22/06/21 and their interactions with him on the 22/06/21 had nothing to do with his eye problems.
        
     7. This is an area that a Recent and more detail medical Report would have been helpful to the Complainant claims.
        
     8. This Court is at a Disadvantage to Rule on the Claims of Eye damage.
        
     9. However, the Defendant’s do Concede to variously assaulting the Complainant Henry Savarimeiko out of Frustration and Provocation given his admitted interactions with Amau Kerahu, who was 15 years old at the time.

Issues:

10. The Question that arise is whether the Provocation/Frustration the defendants obviously felt over Amau Kerahu would avail them of a Defense and totally remove their liability for the Assaults on the Complainant?
    
11. This Court will rule that the Raising of Provocation doesn’t avail the Defendants with full exoneration or liabilities as;
    
    1. A day had passed after they discovered that Henry had had this interaction with Amau Kerahu.
       
    2. When they took Henry from town to their house, there was passage of time during which tempers would have cooled and they ought not to have resorted to violence against him.
       
    100. When Henry was taken to the Defendants camp at Girua, he was more or less at their mercy and if Stafford Oriri was not present, this Court shudders to think of the possible outcome of this meeting.
         
    4. This Court therefore, Rules that the Claim of Frustration /Provocation does not avail the Defendants with full exoneration, and they are still liable for laying their hands on his person though somewhat to a mitigated level.
       
    5. The Complainant Henry accused most, if not, all the Defendants named above of assaulting him one way or another mostly on his back.
       
    6. However, the Defendants Benford Kerahu who admitted assaulting Henry himself out of frustration when Henry smiled when asked about giving a ‘Mustard to Amau kerahu’ spoke out and cleared Cecilia Oriri Kerahu, Sali Baupo and Jadin Allanson of laying hands on Henry or even of being there.
       
    7. Given the manner in which Henry would have being surrounded and hemmed in he could have made a mistake on who was there and who did what to him.
       
    8. However, the fact remains that he was there at the Defendant Benford Kerahus Residence at Girua and that he was variously subjected to assaults before being handed over to Police.
       
    9. He could have easily been handed over to Police without the Assaults, or even after the first assault.
       
    10. When other people joined in assaulting Henry, Provocation/Frustration can no longer apply in the opinion of this Court.
        
    11. Henry is therefore entitled to Compensation for these assaults.
        
    50. With the Medical Report on the Eye injuries still pending and therefore inconclusive at this stage, the claim of K10,000.00 is not made out.
        
    13. Instead a lesser amount for the various assaults occasionrd on Henry is deemed as appropriate.
        
    14. If further medical reports reveal the true condition of Henry’s eye problems, he can sue the Defendants again even for more than K10,000.00 so long as he can establish and prove the ‘Chain of Causation’ that the Defendants are directly Responsible for his Eye problems.
        

17. In the final Analysis, the Court finds and Rules as follows that;
    
    1. Regarding DC NO: 147/2021, claim for K2500.00 for Defamation, this claim is not proven.
       
    2. Regarding DC NO: 18/2021, claim for K10.000.00 Compensation for Injuries inflicted, this claim is only partially Proven that,
       
       1. The Claim of a ‘Splinter’ entering Henry’s eyes and damaging his eye is not established on the evidence and so is rejected.
          
       2. The Defendants Steven Oriri and Benford Kerahu admitted to variously assaulting him out of Frustration and so are the Complainants claims are founded to an extent on the admissions of the defendants.
          
       18. Accordingly, the Court will order as follows;
           
           1. Claim under DC NO: 147/2021, claim for K2500.00 for Defamation, this claim is not proven and so is refused in its entirety.
              
           2. The claim under DC NO: 18/2021, claim for K10,000.00 Compensation for Injuries inflicted is only partially Proven that various assaults wee occasioned on the person of Henry Savarimeiko and so the Defendants are order to compensate the said Henry Savarimeiko with K2000.00 for the pain, humiliation and fear he was subjected to.
              
           3. The Defendants are allowed 31 days until the Monday the 13/06/22 to pay this K2000.00 in compensation to the said Henry Savarimeiko.
              
           4. In default, Enforcement to ensue against the Defendants.

Complainants each appear in person
Mr. Benford Kerahu for the Defendants.