Samiano v Dekuku [2001] PGNC 137; N2057 (9 March 2001)

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DEFAMATION – Damages – Describing fellow expatriate Contract officer as inefficient, manipulative of other staff to lie and conspiracy - Plaintiff’s contract of employment renewed notwithstanding publication – Poor reputation of plaintiff at workplace - Contract of Employment subsequently terminated – Minimal Damage to reputation – Nominal damages – K2,000.00.
Cases cited:

INJIA, J.: On 13 November 1998, the plaintiff obtained default judgment for damages for defamation to be assessed. On 28 September 2000, the defendant failed to appear in Court after he was served with Notice of Trial. As a result, the plaintiff was granted leave to proceed ex parte.

The plaintiff is an expatriate Phillipino and he was at the material time employed by the Department of Primary Industry (DPI) as an Extension and Development Co-Ordinator at its Agriculture Research Station at Erap in the Markham Valley. The defendant is also an expatriate Ghanian employed by DPI as a Co-Ordinator at Erap. The plaintiff was employed on a "further three (3) years contract commencing on the 5th day of May 1999".

The defamatory publication in the form of two letters complained of were written by the defendant on two occasions. The date of these two letters as pleaded in the Statement of Claim endorsed on the Writ are on 19/3/96 and 10/3/98.

The first letter dated 19/3/96 is "Annexure "C" to the plaintiff’s affidavit sworn 14/10/99. In para 6 of the Statement of Claim, the same date, 19/3/96, is pleaded. In his affidavit, in para 10, the plaintiff maintains this same date. However, on 9/10/00, he swore an affidavit saying the date in his affidavit of 14/10/99 was incorrect, the correct date should be 19/3/98. Upon application, I ordered that the plaintiff amend his affidavit of 14/10/99 accordingly, for the date to read "19/3/98" instead of 19/3/96. But the date shown in annexure "C" of the plaintiff’s affidavit of 14/10/99, clearly reads "19/3/96" and the relevant defamatory statement pleaded in the Statement of Claim appears in that letter. In my view, plaintiff is obviously confused as to the letter’s date. Pleadings of the precise defamatory matter, the date and the persons to whom the defamatory publication was made to, is essential. The date pleaded in the Writ also does not accord with the evidence. There is apparent conflict in the pleadings and the evidence in this case. In the circumstances, I would strike out the evidence relating to this particular letter and the pleadings in para 6 – 8 inclusive as amounting to abuse of process of the Court.

That leaves the defamatory publication of 10/3/98 to be considered. In the Statement of Claim, the following Statement is complained of:

"...certain staff (meaning the Plaintiff and others) are not doing their work, but using most of their time and energy to discredit me, show hatred and manipulate staff to disobey my authority, I think it is high time to let you know of this systematic sabotage going on at Erap.

When you came to Erap last year, you indicated you couldn’t feel the rice in the valley, that was true. This is because staff (meaning the Plaintiff and the others) that should be doing development work in the valley then were not pulling their weight or doing their job. They (meaning the Plaintiff and others) appointed themselves seed producers, while in actual fact they were producing grain not seed. Others are supposed to do mix farm work and improve pastures. In fact, we purchased over A$1,000 of pasture seeds, yet we see no development on farm or on station.

The Officers (meaning the Plaintiff and others) involved are the ones who always call you and complain that the station is not managed well. This is because they couldn’t lay hands on Project funds and misuse or divert them as they wanted, because we have in place a good accountability process [I recommend all genuine fund requests and Director approves it]. This Expatriate (meaning the Plaintiff) always gets into fund misuse problems each time he is put in position of responsibility. For example, he requested clients that purchased things from us to give two checks one in his name and the other for the project, so that he could pocket some of the funds. On the last vacation leave, he took air tickets [behind my back] for his family even though they are not here in PNG. He with others also contributed to the bankruptcy of the DAL Pato Company by taking funds from there, even though they are not members of that company. [I can give you details of these and others].

This Expatriate (meaning the Plaintiff) is the most antagonistic and the main person manipulating people to discredit me. He and the Local Officer concerned are interested in my post and have been doing everything in their power to smear my name and incite staff to disobey or not work to their potential. For they tell staff that any success of work goes to my credit. [They forget that success of work goes to the farmer and the DAL].

This smear propaganda begun with an anonymous letter to management, which I strongly reacted to since I know who wrote it (meaning the Plaintiff was the author). This was followed by the letter written during Mr. Sajjad’s Contract renewal period. This expatriate (meaning the Plaintiff) was the key operator. He contacted some of the staff to sign, but they refused. So he took his name off and gave it to the four stooges that signed it. [These four do not even know rice from grass, how could they judge a rice expert?]. Other letters in your possession calling the FAO Food Security and mixed farm approach as a white elephant or black rhinoceros are also some of the propaganda.

My detractors have gone to all lengths, at any given opportunity to lie about me to the provincial and extension staff as well as private individuals. They (meaning the Plaintiff and others) devote a considerable portion of their time to smear propaganda and are hardly doing any serious work within our Project. Thus very few of us are the ones doing the actual job, while others get paid for relatively little.

These are the people (meaning the Plaintiff and others) who keep on calling you and other DAL Managers to complain that Erap Station is not managed well, and surprisingly some DAL Management staff listen and believes in them, without any verification of the issued. And those DAL Management staff that know them well normally asked them to put their complaints into writing, for which they normally refuse because they know they were telling lies.

The attached letter, written to coincide with the Minister’s visit to Erap, and given to the Minister is one example of the same senior staff (meaning the Plaintiff), manipulating labourers to tell lies for them. Labourers were manipulated to sign things they do not understand themselves..."

"...People in a project are supposed to work together, to promote the same ideas, but at Erap, certain senior staff (meaning the Plaintiff and others) believe people in a project should go in the opposite direction, undue what others are achieving. This is the only station I have encountered this divisive attitude in my 22 years of professional team working [in my country as well as with international institutes such as IRRI, IITA, WARDA, CIRAD and GTZ]. No doubt, Erap station isn’t making as much progress as expected, for only very few of us are really working.

I will be most grateful, if a committee is set up to investigate all that I am saying. This viscous conspiracy by non-performing staff (meaning the Plaintiff and others) should cease, so that we can have time to do the job, we are here for. The productivity of each staff should also be measured..."

It is alleged that the letter was written by the defendant and addressed to the Secretary of DPI and copied to the Minister for DPI, Deputy Secretary DPI, (General Services), the Director of FMD, DPI and the Senior Staff of Grain and Rice at Erap. A copy of the letter is annexed to the plaintiff’s affidavit of 14/10/00. (Annexure "A").

The plaintiff alleges in para 5 of the Statement of Claim that the above publication were understood to bearing the following meanings which are the natural and ordinary meaning thereof:

The plaintiff seeks to substantiate these claims of defamation of character in his affidavit of 14/10/99, in para 4 – 9. As a result of the publication, he says in para 9 of the Statement of Claim that he "was greatly injured in his credit and reputation in his profession". In para 15 of his affidavit of 14/10/99, the plaintiff says, as a result of the defamatory remarks, which were not retracted by the defendant, when requested by the plaintiff to do so, the DPI "has now decided to terminate my services". Annexure "A" to his affidavit of 14/10/99 is a copy of a letter by the Acting Secretary of DPI, Ted Sitapai, which recommended that "his contract be terminated immediately". The full extract of the letter reads:

Mr Samiano has been charged under Section 50(a), (c) and (e) of the Public Services Management Act, namely:

Having received and considered his reply, I am of the opinion that he has committed those offences. Furthermore his professional conduct and behaviour is poor.

The plaintiff is supported by the affidavits of fellow workers Mr. Martin Siune and Mr. Aregina Mengge-Nang. None of the recipients of the letter to whom the defamatory letter was published to have given evidence in support of the plaintiff. Also it is important to note that although the defamatory matter was published on 10/3/98, Acting Secretary Ted Sitapai’s termination letter does not show any date. Also the letter does say the plaintiff was dealt with on disciplinary grounds, that he was charged under Section 50(a), (c) and (e) of the Public Service Management Act, that he was given a chance to reply to the charge which he did, and that he was found guilty. It is also noted in the letter that "his professional conduct and behaviour are poor". For these reasons, his contract of employment was recommended for termination. Full documentations were attached to this letter but those documentations have not been disclosed to this Court. Therefore, I am unable to tell if the disciplinary proceedings had anything to do with the defendant’s publications of 10/3/98.

The defamatory nature of the publication is not in issue. In assessing damages for defamation of character, when the defamatory publication is in written form (libel) injury to reputation is presumed. Further proof is necessary as circumstances of aggravated injury to reputation. Aggravation of injury of course will depend on a number of factors which are adequately set out by Sheehan J. in PNG Aviation Ltd v. Somare N1493 at p.51 and which Mr. Ousi in his submissions has pointed out on pages 4 of his submissions. I adopt them but subject to the qualification which follows:

*"(b)*	*The Plaintiff’s Own Conduct* The Plaintiff was wrongfully and maliciously accused of the things the Defendant alleges him to have done. The Plaintiff is in no way responsible or contributed to th e defamatory matter against him. The Plaintiff as a professional person through his Lawyers gave an opportunity to the Defendant to apologise and not to make any further defamatory matters against him but the Defendant failed to adhere to such request.
*(c)*	*The nature of the Defamatory matter and Extent of Same* The nature of the defamatory matter was damaging to the Plaintiff’s career and employment opportunity not only at the Department but also in Papua New Guinea. The defamatory matters were widely published to various prominent persons some of whom are in high authority then the Plaintiff and have acted on the defamatory matter believing them to be true.
*"(d)*	*Absence of Apology and Retraction* The Defendant was given ample opportunity to apologise to the Plaintiff or to retract his defamatory remarks including the allegation in respect of the complaint to the Ombudsman Commission. The Defendant's attitude shows a no-care attitude and he had every intention to destroy the reputation and career of the Plaintiff. He even failed to make any appearance in Court.
*(e)*	*Conduct of the Defendant from Libel Published down to Verdict* The defendant has not apologised nor retracted the defamatory publication and also had not defended the proceedings to justify the defamatory matter. If the matters he published were not defamatory then he would have definitely defended himself or the proceedings. We submit you Honour to find the Defendant made the defamatory publication with ill will and malice.
	*It is my submission that the Defendant saw the Plaintiff as a threat to his position and had concocted the stories to get rid of the Plaintiff.* *The Defendant even went to the extent of avoiding service of the Notice of Trial (see Plaintiff’s Affidavit of 27th September, 2000".*

But these circumstances have to be balanced against other evidence which mitigates the injury. First, the statements which were published to the plaintiff’s superiors were made on 10/3/98 and were made before the plaintiff’s contract was renewed on 5/5/99, notwithstanding the defendant’s publication concerning the plaintiff. I would think that the letter did not damage the plaintiff’s standing before the plaintiff’s superiors because they decided to renew his contract for a further 3 years commencing on 5/5/99.

Secondly, there is no evidence that the people to whom the matters were published to acted on those publications to the detriment of the plaintiff.

Thirdly, the plaintiff’s termination of his contract of employment was lawfully carried out under a Statute; the validity of which the plaintiff has not questioned or challenged.

Fourthly, his professional standing and conduct with his employer is rated poor by his employer, so any adverse publication by the defendant of the plaintiff has some degree of justification.

Fifthly, the plaintiff has other causes of action open to him to seek redress, if he considered his termination to be unlawful, say in an action in damages for breach of contract, etc.

Balancing all these factors, it is fair to say that the injury to the plaintiff’s reputation, as shown on the evidence, is minimal. It is submitted for the plaintiff that K50,000 in damages would be reasonable. But I consider this amount to be grossly excessive. I therefore wish to award nominal damages only. Nominal damages awarded for defamation of character of a non-citizen by another non-citizen concerning the former’s professional conduct ranges between say K2,000.00 – K6000.00: see Wyne Cross v. Wess Zuldem [1987] PNGLR 361. (K4,000.00 for describing another as using "mafia tactics" and were no apology was made).

In all the circumstances, I consider the sum of K2,000.00 to be fair in damages and I award the same. The Plaintiff shall have his costs.
_____________________________________________________________________
Lawyer for the appellant : Warner Shand

*(i)*	*That the Plaintiff was a cheat;*
*(ii)*	*That the Plaintiff was a promiscuous person;*
*(iii)*	*That the Plaintiff was a rebellious person;*
*(iv)*	*That the Plaintiff was liar;*
*(v)*	*That the Plaintiff was a dishonest person;*
*(vi)*	*That the Plaintiff was a thief;*
*(vii)*	*That the Plaintiff was a corrupt person.*

1.	*He failed to obey instructions from the former Secretary to transfer to Maprik.* *He deposited 2KR funds into his account with intent to defraud the State.*
2.
3.	*He threatened the Acting Director Food Security to be reported to Prime Minister.*

National Court of Papua New Guinea

Samiano v Dekuku [2001] PGNC 137; N2057 (9 March 2001)