DC110

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 142 & 143 OF 2004

BETWEEN

JOE TALUO POEMA
Complainant

AND

MARK PALMER
First Defendant

AND

NAZILA YALAMBING
Second Defendant

3 May 2005

REASONS FOR DECISION

KORONAI, PM: his is an action in defamation by the complainant, against the defendants, in which he is seeking compensation in the sum of K6, 000.00.

HISTORY

The complainant's original complaint is as follows:-

"On 21st and 22nd of July, 2004, at Sandaun Governor's Office, (1) Mark Palmer (1st defendant) 2. Nazila Yalambing (2nd defendant) of IRC Office, Port Moresby did publish a defamatory statement against the complainant by using words to the effect that "You are involved in smuggling, your car is involved",

which has the effect of injuring the reputation of the complainant by its tendency to lower him in the estimation of right thinking members of society to shun, avoid or ridicule him in his capacity as a person and as being a Provincial Police Commander of Sandaun Province.

The complainant is therefore seeking compensatory damages in the sum of six thousand kina (K6,000.00).

This complaint was filed on the 2nd day of August, 2004. Then on the same date, the complainant filed an amended complaint against the defendants, which reads:

"On the 21st and 25th day of August, 2004, at Dali beach front and Sandaun Governor's Office, 1. Mark Palmer (1st defendant) and Nazila Yalambing (2nd defendant) of IRC Office, Port Moresby".

On 21st of July, 2004 at Dali beachfront you did publish a defamatory statement against the complainant by using the words to the effect that "You are involved in smuggling, your car is involved," which has the effect of injuring the reputation of the complainant by its tendency to lower him in his capacity as a person and as being the Provincial Police Commander of Sandaun Province.

The said words in their ordinary sense and meaning meant that the complainant who is the Provincial Police Commander had involved in an illegal smuggling deal, a bad person and someone who is not to be trusted.

'On the 28th day of July, 2004, the defendants further went into the office of the Governor of Sandaun Province and reported to the Governor of Sandaun Province that the Provincial Police Commander and his vehicle had been caught which the following words came out of the Governor's mouth to Mr Philip Tiong and Mr Jeffery Ling and quote:

"the two IRC Officers (Palmer and Yalambing) had just reported that PPC was caught trying to smuggle out 400 kilograms of Vanilla using his official vehicle."

As a result of such publication and reporting by the defendants the information went out to the public and to the ears of other persons that PPC was involved in smuggling of Vanilla.

By the actions of the defendants without any lawful notification or proof that the complainant was involved, they made those publications and spread false rumours thus affecting his feelings, demeaning his reputation, profession on career and thus put his stature to the lowest sense and he was very hurt.

The complainant is therefore seeking compensatory damages in the sum of six thousand kina (K6,000.00) and costs for these proceedings.

These matters were set initially for 9:30am on Friday 6th August, 2004 when Mr. August who adjourned them to 9:30am on 11th August, 2004, he further adjourned them to 30th August, 2004 at 9:30am for mention, when an application was made by the defendants to have the second defendant's name struck out as a defendant as witnesses affidavits do not disclose his name. Matters were adjourned to 31st August, 2004 at 1:30 pm for mention and the Court ordered a motion to have second defendant's name struck out, to be filed and served on the complainant or his lawyer in order to enable them to respond.

On the 3rd of September, 2004, at 9:30 am Ignas Mambei of Mambei Lawyers appeared for the complainant and made a verbal response to the defendants application/motion while Miss Bre for the defendants made a reply and matters were adjourned to 1:30pm on that date for a ruling on the defendants motion. At 1:40pm on that date, the Court granted the defendants motion and ordered that the second defendant's name be struck off these proceedings and adjourned them for trial before His Worship, Principal Magistrate Martin Loi.

On 27th of September, 2004, these matters came before Mr. Loi and Mr. Mambei appeared for the complainant and Miss Bre for defendants and matter was adjourned to 6th of October, 2004 for hearing when Mr. Mambei appeared for the complainant but Miss Bre failed but faxed requesting an adjournment, which was agreed to by Mr. Mambei and matters were adjourned to 8th of October, 2004 for mention with costs in favour of complainant. When these matters came on 8th October, 2004, Mr. Mambei appeared for the complainant but Miss Bre for the defendants failed to appear so these matters were adjourned to the next sittings of the Grade Five Court to be held in Vanimo. Then on 2nd of February, 2005, matters came before me and complainant appeared in person while there were none by the defendants or their lawyer. Matters were then set for hearing at 9:00am on 3rd May, 2005 and notices were sent out to parties by Clerk of Court on 4th of March, 2005.

On the 3rd of May, 2005 the complainant appeared in person while the defendants appeared with their lawyer, Miss Leka Nablu of the Internal Revenue Commission Legal Services.

Miss Nablu, on behalf of the defendants, raised the following preliminary matters namely:-

Defendants objected to amendments of claim and summonses on grounds of abuse of process, in that the complaint had inappropriately been amended at the stage which all the pleading had been closed after all the evidences and defence were filed and served on each other. Complainant served his complaint and affidavits he filed, on or about 4th August, 2004 and the defendants filed and served their defence and affidavits on 31st August, 2004 and that was when pleadings and joinder of issues closed and defendants referred to order 8 of National Court Orders. Defendant further submitted that by order of this Court of 3rd September, 2004, matter was set for trial and pleadings and pleadings had closed but recognized that this court can make amendments under Section 138 of District Courts Act. However they argued that the amended statement of claim were served on them at IRC Office by fax on 23rd September, 2004 and submitted that the matters should proceed on the original complaint and statement of claim, for they would be disadvantaged for they had no time to respond and file amended defence and affidavits and therefore the amended complaint and statement of claim are therefore inappropriate.

Defendants have given notice of their intention to cross-examine the complainant's deponents of affidavits filed in support of his claim and he has not produced them today, the date set for trial and therefore their affidavits should be rejected by the Court and not received into evidence. They rely on Section 36 of Evidence Act and the decision by KANDAKASI, J in RIMBINK PATO v KAIULO, an reported National Court Judgement of 29th August, 2003 which ruled that notice of cross-examine deponents of affidavits cannot be given or made at the time of or during the trial.

Complainant then responded in the following manner:-

Case has been handled by my lawyer Mr. Mambei and he is not here at the moment. I made several attempts to get in touch with him but can't. I have not been handling the case myself. Not in my interest to pursue matter myself. I can contact my lawyer to respond to defendants submissions.

Miss Nablu for defendants then countered by submitting that on 4th March, 2005, a letter was sent to the defendants and complainant, advising of today's date for trial. If matter was to be adjourned to another date, it would not be in our interests as it was costly for us to travel here today for this trial. We were all given at least a month's notice of today's date of trial and therefore we object to further adjournments and failing that we would apply for dismissal for want of prosecution. 

The complainant then advised that he has nothing further to add and matter was adjourned to 1:30 pm today for a ruling on these submissions.

ISSUES

1.	Whether at the close of pleadings, could an amended statement of claim and complaint, still be filed.

2.	Whether the defendants are entitled to have the complainant's claim dismissed over his failure to prosecute it on date set for its trial.

3.	Whether at the time or during the day of hearing, the complainant is entitled to file notice of his intention to cross-examine deponents of affidavits filed in support of defendants' case.

4.	Whether the failure by the complainant to produce deponents of affidavits in support of his case, after being served with the notice for cross-examination, entitles this Court to reject these affidavits in support of his case and not introduce them into evidence on his behalf.

THE LAW

National Court Rules, Order 8, and District Courts Act Chapter 40, Section 138 apply in respect of issues numbers (1) and (2) and Evidence Act Chapter 48 in respect of issues numbers (3) and (4).

The facts of this case show that all pleadings were closed on 31st of August, 2004 and by then the matter of the complainant's claim was ready for trial. After accepting the defendants' motion to strike out second defendant's name from the complainant's complaint, matter was set for trial before Mr. Loi, who on the 27th of September, 2004, set hearing of this matter to 8th October, 204, when Mr. Mambei for complainant appeared but there were not appearances by the defendants and matter was then adjourned to the next sittings of a Grade Five Magistrate. Matter came before me on 2nd February, 2004 when the complainant appeared while the defendants and their lawyer did not and I set these matters for hearing at 9:00am on 3rd May, 2005 and the complainant was personally advised, in Court, and by the Clerk of Courts' letter of 4th March, 2005, to him and the defendants. So, the complainant has had well over three months notice of date set for trial of this matter, while the defendants had close to two months notice. If for some reasons such as none availably of his lawyer on or by date of trial is expected then he should've contact the defendants earlier and advised them so they're not put to unnecessary expenses in appearing on date set for trial on 3rd May, 2005 and a new date would be set and practice of seeking adjournments on date of trial should not be encouraged unless for valid reasons only.

On the date of trial the defendants and their lawyer had travelled in from Port Moresby and were ready for trial but the complainant was not as all their pleadings had closed on 31st of August, 2004 and issues in dispute were identified for trial and determination by this Court. Even after the pleadings were closed and issues in dispute identified, the complainant filed yet a new complaint, statement of claim and summons but failed to have the original withdrawn so, he in fact has two sets of complaints over the same matter in this Court and has not elected which he would proceed on with. This is clearly forbidden by National Court Rules Order 8. Section 138 of District Courts Act, in my view, allows for minor amendments to a complaint or statement of claim and summons, such as date of occurrence of cause of action, correction of name of defendants etc, etc, but not filing of a new complaint, statement of claim and summonses over the same matter. What the complainant should've done was to withdraw his original complaint or statement of claim and summons and file the new one which he mistakenly stated as amended complaint and summons. For this reason he is not ready to proceed to trial today and they should be dismissed because the defendants are entitled to a trial today and defend themselves against his claim. He has had enough notice and time to contact his lawyer to appear on his behalf today.

In respect of issues number (3) and (4) the facts show that before the time of hearing the complainant had not filed and served a notice to cross-examine the deponent of affidavits in support of the defendants' case and he cannot now do so either at time set for hearing today or during the course of hearing of his claim because of Section 36 of Evidence Act Chapter 48 and the decision by KANDAKASI, J in an unreported National Court decision in RIMBINK PATO v REUBEN KAIULO of 29th August, 2003, N2455 where at pages 13 to 17 where it was held that where a party wishing to cross-examine deponents must give prior notice before the date of hearing and that Section 35 of the said Act obliges the party to serve his notice of objection or requirement to cross-examine unless that party was not opposed to the use of the affidavits and its consequential use. Failure to give notice of objection, in my view amounts to a consent by the failing party to the use of and reception of affidavits into Court as evidence of the party relying on it.

In this case the complainant has not given notice to cross-examine the deponents of affidavits in support of defendants' case and therefore he has consented to their use and admittance as evidence before this Court. He has also failed to produce, after receiving notice, the deponents of affidavits in support of his case and therefore their affidavits could not be admitted into evidence. He therefore has little evidence to support his claim and he has not proven it on the required standard and it should be dismissed, for this reason as well.

CONCLUSION

From the above reasoning, the complainant's claim should be dismissed for his failure to prosecute it today, the date set for trial of his claim against the defendants. He should also pay for their costs up to today's hearing.

FORMAL ORDERS

IT IS HEREBY ORDERED THAT:-

1.	COMPLAINTS NO'S DC: 142 AND 143 OF 2004 ARE DISMISSED FOR FAILURE TO PROSECUTE THEM; AND

2.	COMPLAINANT TO PAY FOR THE DEFENDANTS COSTS, SUCH IS TO BE AGREED UPON, IF NOT TAXED.

3.	PARTIES HAVE 30 DAYS FROM 04/05/2005 IN WHICH TO APPEAL AGAINST THIS DECISION TO THE NATIONAL COURT IF THEY'RE AGGRIEVED BY IT.

Defendant: IRC Legal Services
Complainant: In Person