Nalau v Forepe [2021] PGNC 345; N9188 (11 May 2021)

N9188

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 944 OF 2015

BETWEEN:
SIR JERRY KASIP NALAU, KBE
Plaintiff

AND:
MANNING FOREPE
Defendant

Lae: Dowa J

2020: 17^th, 30^th November
2021: 11^th May

DEFAMATION – an attack on reputation and integrity by use of Facebook a social network – a retired politician and statesman – actionable per se – presumption of damage – appropriate damages.

Cases Cited:

Bangkok & Simon Kauba v GH Wee (2016)
Henao v Coyle et al (1999) N1918
Kanea Gobe v Jack Clua
Lambu v. Dugube (2006) N3082
PNG Aviation Service -v- Michael Thomas Somare [1997] PNGLR 515
Pitil v. Clytus (2003) N2422
Tei Abel v Anton Parao [1979] PNGLR 25
Theresa Joan Baker v Lae Printing Pty Ltd [1979] PNGLR 16
Wayne Cross v Weszudeima [1987] PNGLR 361
Wyatt Gallagher Bassett (PNG) Ltd v. Dau (2002) N2277

Counsel:

C. Ninawale & T.Davidi, for the Plaintiff
M. Forepe, the Defendant, in person

RULING

11^th May, 2021

1. DOWA J: This is a judgment on assessment of damages on defamatory publication.

Facts

2. The Plaintiff, Sir Jerry Kasip Nalau, is an 83 years old, retired politician. He is a Senior Statesman of Papua New Guinea and comes from Finschaffen District of Morobe Province. After retiring from active political life, he has since been an active member of the Finschaffen community, especially serving as the Chairman of Board of Governors of Dregerhaffen Technical Secondary School.

3. The Defendant, Manning Forepe, is a former Secondary School Teacher, is currently managing his own SME Business known as Paradigm Clothing. He also comes from Finschaffen District in the Morobe Province.

4. The Defendant was on 3^rd February 2015 and at all material times, a member of Facebook social media group called “Finschaffen (Kande)” on the internet.

5. It is alleged, on 3^rd February 2015, the Defendant and one David Kitchnoge published and disseminated to individuals on Facebook defamatory material against the Plaintiff. The full contents of the defamatory material are contained in paragraphs 6 to 14 of the statement of claim. Basically, the defendants are alleged to comment repeatedly that the Plaintiff as Chairman of the Board of Governors was not managing the school well and was using the resources and finances of the school for his own personal gain.

6. The main damaging comment is at paragraph 6 of the statement of claim which reads:

“On the 3^rd February 2015, the First Defendant published and disseminated to a number of individuals on Facebook, a comment stating:

“Folks all is not that well as we get ourselves organised. The School’s administration building remains shut because people who have been milking the school dry for their beer and pleasure want one of their man, failed administrator and unqualified to be a principal at a level 9 school. Can someone speak old sir JN to grow up and stop meddling with the affairs of Dreger? As a young schoolteacher back in the early 90’s, I remember the then governor/regional mp for Morobe would hire Chopper trips almost every Govt pay Thursday for drinking party on the light island off Dreger point. Dreger did not know a landowner of Dreger was the regional member for Morobe then. The then HM Mr Gau had to get local chain saw operators to saw timber from the tree on the school ground to build a two in one staff house. Such was the blind eye and such was our situation then. I am bickering like an old lady so I stop here. A special PEB meeting will be held before this week ends to resolve this matter. Sir’s Man has been rejected by the TSC (Teachers’ Employer) because he does not have the necessary substantive level to occupy the principal’s position. My fear is they may try to neutralise the situation by bringing in a third person. So, pray with us or lobby your support for Mr Kosieng by ringing the PA (Chairman PEB) on 473 1522/7225840”.

7. Initially, the proceedings were instituted against both men. The Plaintiff and Mr Kitchnoge settled out of court and the action against him were discontinued by leave of Court on 29^th January 2020.

8. Due to the Defendant’s failure in complying with directions of Court, judgment was entered for the Plaintiff against the Defendant in damages to be assessed.

9. The trial on assessment of damages was conducted on 17^th November 2020, where both parties tendered their respective Affidavits by consent subject to cross examination. I reserved my decision which I now deliver.

Issues

10. The issues for consideration are:
    
    1. Whether the statements made by the Defendant are defamatory.
       
    2. If so, what is the appropriate compensation to be awarded to the Plaintiff.
       

Law

11. The relevant law is the Defamation Act Chapter 293. Section 21 provides that the unlawful publication of defamatory matters is an actionable wrong.

12. It is a defence to an action in defamation if the publication was true (section 8) a fair comment (Section 9), or the publication is made in good faith for the public interest and benefit (Section 10) and with good faith (Section 11).

13. Under Section 24 of the Defamation Act, a Defendant may plead and offer evidence in mitigation of damages that he made or offered an apology to the Plaintiff before the commencement of proceedings or if the proceedings are commenced, at the first opportunity after becoming aware of the proceedings.

14. Where proceedings are commenced for libel, that is publication of defamatory matters is writing, as opposed to “spoken words”, damages are awarded as a matter of course, without proof of actual injury. Re: (John Bangkok & Simon Kauba v Melvin Ghwee) (2016) WS 1569/2005.

Evidence

15. The Plaintiff relies on the following Affidavits:

1. Affidavit of Jerry Nalau sworn 19/04/2016, filed 15/11/2016

2. Affidavit of Jerry Nalau sworn 02/07/2020, filed 3/07/2020.

3. Affidavit of Terrance Angori sworn 26/09/2018 and filed 27/09/2018

16. The defendant relies on the following affidavits:

1. Affidavit of Manning Forepe sworn 31/07/2016, filed 03/08/2020.

2. Affidavit of Manning Forepe sworn 12/11/2020, filed 13/11/2020.

Summary of The Plaintiffs Evidence

17. This is a summary of Plaintiffs evidence. He says, he comes from Finschaffen District in the Morobe Province. He is a Senior Statesman, having served the nation as a Senior Public Servant, as a Patrol Officer in the early 1960s to 1970s. He then became a National Parliamentarian and Governor of Morobe Province in the mid-1990s. He was bestowed knighthood by Her Majesty Queen Elizabeth the Second, for dedicated service to the Public Administration, Politics, and the Community in 2008. His personal integrity and reputation built over the years is widely applauded and known by most Senior Statesmen including Sir Julias Chan, Sir Paulus Matane, and other National and Provincial leaders throughout PNG.

18. The Plaintiff says, he was greatly aggrieved by the defamatory remarks posted by the Defendant against him in the Facebook, a mass social media outlet for public viewing, tarnished his reputation and brought into disrepute his personal integrity.

19. The defamatory material contains innuendos against the Plaintiff which were or would be reasonably understood to mean that the Plaintiff was milking the school account for his own gain, that he was a corrupt leader, only interested in his personal gain rather than for the public interest of the school he was highly esteemed to serve.

20. The Plaintiff says, because of the publication, or comments on the Facebook, he has suffered considerable embarrassment, distress, anguish, and hurt/injury to his reputation as a community leader in Finschaffen and a Senior Statesman in Papua New Guinea.

21. The Plaintiff called one Terence Angori, who gave evidence for the Plaintiff. Mr Angori said the Defendant did not publish the defamatory material as a fair comment for the public interest in good faith. He said, the Defendant had a business interest in that he was supplying school uniforms to Dregerhaffen Secondary School. The supply of the uniforms was arranged through or facilitated by the incumbent school principal, Mr Dagi Kosieng. The defendant made the comments when the Plaintiff and the school governing board were taking steps to remove the principal. The Defendant therefore had an ulterior motive in posting defamatory material against the Plaintiff, lobbying support for the retention of the principal.

Summary of the Defendants Evidence

22. The Defendant says he comes from Finschaffen District in Morobe District. He is a former schoolteacher, having taught in Dregerhaffen Secondary School for five (5) years. Even though he left school, he has a strong concern for and connection with Dregerhaffen Secondary School as a Finsch citizen. He has over the years along with other like-minded people given invaluable service and assistance to the school and community,

23. He says, around 2014, the Dregerffen school was under a school principal Mr Dagi Kosieng. Mr Kosieng was doing a good job in improving the Secondary School. There were moves to remove Mr Kosieng to be replaced by another person. At the relevant time, the Plaintiff was the chairman of the board of governors. It was in this context he joined the Facebook group in the social media to gain support for the retention of Mr Kosieng as principal of the school.

24. The Defendant says, he had no intention to defame the Plaintiff. He says, his comments were addressed to a group of people within the Finschaffen Kande group who volunteered to help Dregerhaffen Secondary School to upgrade its status in terms of Student Discipline, yearly graduations, and to generally improve the school. His comments were fair for the public interest and made in good faith.

25. He says he is a good person, a practicing Christian, and has written to the Plaintiff in September 2020 apologising and offering to settle.

Submissions of Counsel

26. Counsel for Plaintiff submits, the Plaintiff is a former Patrol Officer (Kiaps), Politician, Premier and Governor of Morobe Province, a Senior Statesman, respected community leader, a man of high standing. He has been bestowed knighthood by her Majesty Queen Elizabeth he said. That the false and untrue allegations made against him in a publication on Facebook by the Defendant were made with malicious intent. The defamatory material was widely published and spread, amongst the readers.

27. As a result of the defamatory publication, the Plaintiff has suffered and will continue to suffer ridicule in the eyes of the community with psychological stress, and embarrassment.

28. The Plaintiff submits, that the Defendant has not provided evidence of mitigation, in terms of apology either prior to the commencement of proceedings, or as soon as practicable after learning of the proceedings. He has not shown any good faith in the bad publications.

29. The Defendant in response submits that he published those statements as fair comment and in good faith, and without ill will, or improper motive against the Plaintiff. That the Plaintiff was holding a public position as chairman of Board of Directors, whose performance was subject to public criticism and his comments were fair in the circumstances. He submits that, the comments he made was one out of the 61 previous comments made for the welfare of the school. That he did not start the comments.

Reasons for Decision

30. The first issue is whether, the Defendant is liable for publishing defamatory material against the Plaintiff.

31. Firstly, the issue of liability was resolved by an order of Court given by his Honour, Kandakasi DCJ on 29^th January 2020. Judgment was entered for the Plaintiff against the Defendant in damages to be assessed pursuant to Order10 Rule 9A (15) for failure to comply with directions of Court.
    
32. Despite the orders, the Defendant is again raising the issue of liability in his evidence and submissions. I am of the view that the orders of his Honour have effectively determined the issue of liability. If he is not happy, he should have appealed the decision which he did not do, and the orders are in force.
    
33. On my part, I have also considered the pleadings, evidence and submissions of the parties and find that the Defendant is liable on the merits of the case, as well.
    
34. The evidence shows, on 3^rd February 2015 and at all material times, the Plaintiff was the Chairman of Board of Governors for Dregerhaffen Secondary School. At the material time, the Defendant was a member of a social media group known as Finschaffen Kande group, mainly of Finschaffen and Morobe origin. On 3^rd February 2015, the Defendant participated in a social media discussion, where he made commentaries centred around the running and management of the Dregerhaffen Secondary School. The main thrust of the comments made by the Defendant clearly show or interpreted to mean that Sir Jerry Nalau, who being the Chairman of the School was not running the affairs of the school well. Sir Jerry Nalau was only interested in what he could get out of the school, rather than contribute meaningfully to good governance and improvement of the school. That the Plaintiff was a corrupt person and not working in the best interest of the school. I find the words used by the Defendant were defamatory and were widely published as it was viewed or read by not just the members of the Facebook social media group but the wider community.
    
35. The Defendant submitted that he contributed the comments as a concerned citizen of Finschaffen community and a former teacher at the school. His comments were genuine, fair, and made in good faith.
    
36. At the time of the publication of the defamatory material, the Plaintiff was holding a public office, as chairman of Dregerhaffen Secondary. It is expected that he would be subject to public scrutiny and criticism in the performance of his duties. If the comments are true, fair, and made in good faith and for the public interest, the defendant would be justified or excused under sections 8, 9, 10 and 11 of the Defamation Act. An apology made within a reasonable time can also mitigate a claim for damages.
    
37. An analysis of the evidence shows there is little justification for those comments. Firstly, there is no evidence of truth in the comments or allegations made by the Defendant. Secondly, although the comments were said to be made for the public interest, the evidence does not show that the comments were fair and made in good faith. On the contrary, the evidence shows, the Defendant had ulterior motives in airing his views. The Defendant was supplying school uniforms. The business arrangements were made between the incumbent principal, Mr Dadi Kosieng and the Defendant. When the Board chaired by the Plaintiff made moves to replace the principal, the Defendant made comments giving the appearance that he was lobbying support for the retention of Mr Kosieng to remain as principal for the good of the school. It could be true that Mr. Kosieng was a performing principal. However, the defendant’s business relationship with the school through the incumbent principal has reduced the probative value of his comments as fair and made in good faith. The Plaintiff has successfully proved that the comments were not made in good faith. For the foregoing, I find, the Defendant is liable to the Plaintiff for publishing defamatory material on the Facebook social media network.
    

Damages

38. The second issue is what is the appropriate damages to be awarded to the Plaintiff. The amount of compensation to be awarded for defamation of character, depends on the facts and circumstances of each case.
    
39. The Supreme Court in David Coyle v Loani Henao stated that the purposes of compensation for publication of defamatory material are:
    
    1. Consolation for the personal distress and hurt caused to the injured.
    2. Reparation for harm done to the victim.
    100. Vindication of the Plaintiff reputation.
         
40. In PNG Aviation Service -v- Michael Thomas Somare (1997) PNGLR 515, The Supreme Court listed several factors to be considered when determining the appropriate amount of compensation and they are:
    
    1. the Plaintiff, the injury to his reputation
    2. the Plaintiff’s own conduct.
    100. the nature of the defamatory allegations made
    4. The extent of publication.
    5. the absence of retraction or apology by the Defendant.
    6. the whole conduct of the Defendant from the time the defamatory material was published down to verdict.
       
41. I will apply the above principles in assessing damages.
    
42. The Plaintiff submitted that the trend of awards made for defamation has increased over the years from K40,000 to K250,000.00 being the most recent case. Counsel submitted that a sum of K200,000 be awarded for general damages in line with the recent case of Salika v Pacific Star Ltd (2014) N5699, and K50,000 for exemplary damages following the case of SMY Luluaki Limited v Pacific Star Ltd.
    
43. The Defendant on the other hand submitted, an award of K10,000 be sufficient compensation following awards made in the cases, Tei Abal v Anton Parao (1979) PNGLR 25, (award was K1,000.00), Theresa Joan Baker v Lae Printing Pty Ltd (1979) PNGLR 16, (K6,000.00) Wayne Cross v Wes Zudeima (1987) PNGLR 361, (the award was K4,000).
    
44. In my view, the cases referred to by the parties to advance their respective cases are miles apart. The awards referred to by the Defendant were made more than 35 years ago and the awards have since increased.
    
45. On the other hand, the award made in the Salika case at the upper extreme due to its own peculiar circumstances.
    
46. In the present case, the Plaintiff is a seasoned public servant, senior politician, and statesman. He served the nation as a senior public servant and National Politician, his province as governor and his District and community in various capacities. At the time of the publication of the defamatory material, he was holding a public office, as chairman of board of Governors for Dregerhaffen Secondary School. He was respected by all whom he served. He built his reputation over a long period of time. He is the Knight of the Realm as recognized by Her Majesty Queen Elizabeth the Second of England and the Commonwealth. The comments made by the defendant attacked the personal integrity of the Plaintiff. The evidence shows he was deeply hurt by the comments made by the Defendant. His good name and reputation built over many years was tarnished. How should he be vindicated in terms of compensation, and by how much.
    
47. It is difficult to fix an amount that can adequately compensate injury to a good name and reputation. In Lambu v Gugube, Kandakasi J (as he then was) said this at paragraph 50 of his judgment:
    

“50. In Arlene Pitil v. Rutis Clytus & 3 Ors,[30] I noted that once a plaintiff establishes by appropriate evidence liability against a defendant in a defamation case, the plaintiff is entitled to damages. Damages are recoverable for injury to one''s reputation and or injury to his or her feelings. The Supreme Court judgment in David Coyle & Ors v. Loani Henao[31] adopted from The Law of Defamation in Canada by Raymond E. Brown, Carswell, 1987, the following principles of law governing the assessment of damages in defamation cases:

""A good name proverbially is rather to be chosen than great riches, but loss may require heavy financial solace. Actions for libel and slander are maintained principally for the purpose of protecting and vindicating the personal reputation of the defamed plaintiff. An award of damages may partially compensate him for the decline in his esteem in which he may be held by others, and provide solace for his wounded feelings, grief and annoyance. However, the reputation of any person is necessarily an evanescent thing, and it is difficult to calculate an appropriate financial equivalent for its loss. An award must have regard for both probable past and prospective damages.""”

48. I compare the present case with the following cases:
    
    1. a) In Henao v Coyle & others (1999) N1918, the Plaintiff, a very senior lawyer and former president of PNG Law Society, brought an action against the Defendants, also Lawyers for publishing a letter which was found to be defamatory. The defamation letter is understood to mean that the Plaintiff was prepared to engage in improper conduct, was unethical, was dishonest and was prepared to engage in unprofessional conduct. The Defendant did not offer an apology. In the circumstances and considering the very high status of the Plaintiff in the legal community, the nature of the attack on his very position and integrity as a Lawyer and an officer of the Court, the Court assessed a figure of K50,000.00 for damages for the defamation.
       
    2. In Wyatt Gallagher Bassett (PNG) Ltd v. Dau (2002) N2277, the Plaintiff, brought an action against the Defendant, who had written a letter to the Insurance Commissioner. The Plaintiff was a competitor to the Defendants in the insurance industry. The defamatory letter stated that the Plaintiff was responsible for manipulating the insurance Adjusters industry through unfair practices, secret commissions and collaborating with others to force the Defendant out of business. The Court found the publication to be defamatory. The court ordered judgment for the Plaintiff in the sum of K40,500.00 for damages incurred, and a further K50,000.00 for injury to the Plaintiff’s reputation and goodwill, giving a total of K90,500.00.
       
    100. The case of Lambu v. Dugube (2006) N3082, the court on finding a letter to be defamatory, ordered damages against the Defendant. In this case, the Plaintiff was a senior lawyer. The Defendant was also a senior public servant. He wrote a letter alleging the Plaintiff was supplying guns to his relatives for a tribal fight. It meant the Plaintiff being a lawyer, was prepared to engage in and support criminal activity, especially tribal fighting and not upholding the law as a professional lawyer. The Court found in his favour and awarded the sum of K100,000.00 for general damages.
         
    4. In Pitil v. Clytus [2003] N2422, the Defendants published a letter which defamed the Plaintiff, who was of Philipino origin but married to a PNG national for more than 27 years, working and raising children locally. The letter seemed to suggest that the Plaintiff was an unscrupulous person, a foreigner working illegally in the Country. The Court found in her favour and awarded the sum of K50,000.00 for general damages for damage to goodwill and business name.
       
    5. In the Supreme Court case of PNG Aviation Services, Proprietary Ltd v. Michael Thomas Somare (2000) SC 658, on an appeal from an award of K50,000.00. In general damages, the Supreme Court considered such an award to be too low and increased the general damages to K100,000.00.
       
    6. In John Bangkok & Simon Kauba v Melvin Ghwee, (2016) WS 1526/2005 the Court awarded K40,000.00 to the first Plaintiff, for a defamatory letter sent to the Ombudsman Commission by the Defendant.
       
49. The awards made in the above cases range from K40,000 to K100,000.00. In my view, a sum of K60,000 is reasonable compensation for the injury caused to the Plaintiff in the present case.
    
50. The Plaintiff is also claiming K50,000.00 for exemplary damages. I find the Defendant has been defiant. He attempted to offer an apology in September 2020, but it does not appear to be a genuine unconditional apology. He failed to offer an apology when he had the opportunity to do so. He kept on defending the proceedings, and repeatedly attempted to justify his actions. In the circumstances, it is an appropriate case to award exemplary damages. I award K10,000.00 in exemplary damages.
    
51. The total award is K70,000.00.
    

Interest

52. The Plaintiff is entitled to interest at 8% to commence from date of filing of the proceedings to date of judgment which amount to K33,078.36
    

Cost

53. The Plaintiff is entitled to cost, which cost shall be taxed, if not agreed.
    

Orders

1. Judgment be entered for the Plaintiff in the sum of K 103,078.36 inclusive of interest.
   
2. Post judgment interest on the Judgment debt shall accrue after 30 days from date of judgment at the rate of 8% until settlement.
   
3. The Defendant shall pay the cost of the proceedings to be taxed, if not agreed.
   
4. Time for entry of judgment be abridged.

----------------------________________________________________________________________
Regeau Manua & Kikira Lawyers: Lawyers for the Plaintiff
Manning Forepe: Defendant In Person