Pilipo v Angula [2000] PGNC 50; N1995 (10 October 2000)

N1995

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

APPEAL NO. 328 of 1995

BETWEEN:

AWILIAMBO PILIPO
Appellant

AND:

PAUL ANGULA

Respondent

Mt. Hagen: Jalina J

10 October 2000

DISTRICT COURT¾ Practice and Procedure ¾Calling of Witnesses ¾ Defendant calling only one of two witnesses she indicated she would call¾ Role of Court in calling witnesses.

DISTRICT COURT ¾ Damages ¾ in action for defamation ¾award of K400.00 from claim for K1000 ¾ award not excessive.

M. Tamutai for Appellant

P. Yerr for Respondent

10 October, 2000

JALINA J: This is an appeal against an order the Ialibu District Court whereby the Appellant was ordered to pay K400.00 in damages to the Respondent within two (2) months. The Respondent had filed a complaint in the District Court claiming damages of K1,000.00 for alleged defamatory words or statements made by the Appellant to the Respondent which were alleged to be false. The defamatory statement or words were in the pidgin language as follows:

"Paul Angula, Yu stupid man. Yu gat K300.00 nau long poket bilong yu ah. Yu stilim moni bilong mi."

On the day in question the Respondent was performing his duty as a security guard at the Court House at Ialibu in the Southern Highlands Province. The Appellant went to the Court house to give evidence in a matter before the Court. When she went into Court the Respondent checked people’s bags as a normal security measure. He took the appellant’s string bag and kept it near the entrance to the court room. After she had completed her evidence, the appellant went out of the court room, looked into her string bag and then started accusing the Respondent of stealing her K300.00. She used the above defamatory words during the argument.

Evidence was adduced by the Respondent during the hearing in the District Court that he was embarrassed by the words used as it was the first time that anyone has accused him of stealing during his 10 or so years as a security officer at the Court House. He gave evidence that at the time there were many people present at the Court House. He further stated that the Appellant did not tell him when she left her string bag that there was money in her string bag.

Two other witnesses including another security officer gave evidence for the Respondent and confirmed the words used and that many people were present at the Court house at the time the above defamatory words were used against the Respondent.

The Appellant gave evidence on her own behalf and said that she had K300.00 inside her purse which she put in a small string bag and then placed it inside a bigger string bag. The bigger string bag was then left with the Respondent. She said that she told him she had money inside.

At the time of the hearing the Appellant indicated that she would give evidence herself and call two other witnesses. But only one other witnesses gave evidence in support of the Appellant. She did not call the other witness.

The witnesses the Appellant called gave evidence on the matters pertaining to the Appellant appearing in Court to give evidence on the day of the incident as well as the evidence about the argument between the Appellant and the Respondent but on the issue of whether the Appellant informed the Respondent that she had money in her string bag before handing the string bag over to the Respondent, she said that she did not hear the appellant tell the Respondent about it (See p. 30 of Appeal Book).

At the hearing of this appeal this morning Mr. Tamutai for the Appellant withdrew ground 2 of the Notice of Appeal thus leaving only two grounds.

The first ground of appeal is that "Witnesses were not called during the Court session."

Mr. Tamutai for the Appellant has submitted that the Appellant was denied the right to call two witnesses because she did indicate as is clear from page 8 of the Appeal Book that she would do that but only called one witness.

With respect, this submission is untenable. It is clear from this that the requirement as to who has the right to call a witness has been misconceived or misunderstood. From my understanding of the law and practice relating to calling of witnesses, the court has no interest in a witness. It does not decide which witness to call and which witness not to call. The decision as to who should be called to give evidence remains with the party seeking to call the witness. If a party decides not to call a witness then it is a discretionary matter for that party. The situation would be different if a party wants to call a witnesses and the court rules against the calling of that witnesses by that party. In the matter before me, there is nothing in the depositions to show that the magistrate refused to allow the Appellant to call her second witness.

I find that ground one has no merit. Consequently I dismiss it.

Ground 3 of the Notice of Appeal is in the following terms:

"The amount of K400.00 as Court order is too excessive."

As I intimated to Counsel during argument, this ground relates more to quantum than liability.

Mr. Tamutai for the Appellant has submitted that whilst the Appellant did not dispute that the Respondent was a security officer at the Ialibu Court House, and that the comments made were likely to injure his reputation in his professional duty as a security officer, the comments were made in the heat of the moment when the Appellant discovered she had just lost some money. He further submitted that there were not many people around the court house that time so the damage to the Respondent was not as great as if there was a large number of people. So the amount of damages should have been a nominal amount of between K1.00 and K10.00 and not K400.00. He referred me to the case of Sir Tei Abal -v- Anton Parao where Sir Tei Abal who was a prominent politician and against whom defamatory words were used was during an election campaign was awarded K1,000.00. Mr. Tamutai has not given me the citation of this case for me to verify the decision so I am not prepared to rely on it.

In the present case, I am not convinced by Mr. Tamutai’s submissions. Firstly there is evidence of a lot of people being present at the time the words were used and being a security officer at the Court House, the Respondent gave evidence that he was embarrassed by it. Secondly, the claim was for K1,000.00 and the Respondent has not been awarded what he sought. He was also not even awarded K500.00 which would have been half of what he claimed but only K400.00. I consider in the circumstances that the award of K400.00 by the District Court was not excessive.

I accordingly dismiss this ground also. The effect of this is that the decision of the Ialibu District Court is confirmed. I order that the Respondent’s costs be paid by the Appellant to be taxed if not agreed.
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Lawyer for the Appellant: Tamutai Lawyers
Lawyer for the Respondent: Kopunye Lawyers.