DC616

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE
SITTING IN ITS GRADE FIVE CIVIL JURISDICTION]

GFCi 62 of 2006

BETWEEN

JOHN SIMON GLANVILLE
Complainant

AND

APOL CRUZ
First Defendant

AND

AMELIA AYAMISEMBA
Second Defendant

AND

SUPPER VALUE STORE LIMITED
Third Defendant

Goroka: M Gauli
2007: May 17, 25; June 07, 25

CIVIL - Defamation – Statement bearing defamatory imputation – Publication – No defences raised – Apology not a defence – Apology as mitigating factor in damages – Damages – Vicarious liability. 

Cases Cited
Theresa Joan Baker –v- Lae Printing Ltd [1979] PNGLR 16
Tei Abal –v- Anton Parau [1976] PNGLR 251
PNG Aviation Services Ltd –v- Michael Thomas Somare [1997] PNGLR 515
Roka Coffee Estate Pty Ltd –v- Largo Gerebi [1973] PNGLR 486

References
1. Defamation Act Ch. 293, Ss. 2, 3, 4, 25

Counsel
Mr. R. Yambong - For the Complainant
Mr. J. Kilipi 	 - For the Defendants 

25 June 2007

DECISION OF THE COURT

M Gauli, PM: The Complainant John Simon Glanville claims against the defendants a sum of K10, 000.00 in damages for defamation. The complainant claims that on the 12 of September 2006 about 5:00 o’clock in the afternoon while he was inside the Super Value Store (SVS) in Goroka the first defendant Mr. Apol Cruze held him and falsely accused him in front of a large crowd of passing valueless cheques to the SVS in payments of goods he purchased. And that Mr. Apol Cruz falsely described him as a teacher. The alleged words said by the defendant Apol Cruz which were said in Eglish are: “You are the fellow cashing rubber cheques here, your cheques are bouncing all over the place, one two and three, are you the teacher”. Defendant Mr. Apol Cruz denied making and publishing the alleged statement in the terms as stated.

2. There are four issues to be considered which are as follows:

i.	Whether or not the First Defendant Apol Cruz made the statement complained of.
ii.	Whether or not the statement complained of is defamatory.
iii.	Whether or not the defamation statement was published.
iv.	Whether or not the apology offered by the First Defendant was sufficient.

3. Issue No 1: Whether or not the First Defendant Apol Cruz made the statement complained of.

The complainant Mr. John S. Glanville gave evidence that on the 12 of September 2006 while inside the Super Value Store in Goroka at about 5:00 pm, the first defendant Mr. Apol Cruze approached him and held him by his arm and said in a loud voice and said to him: “You are the fellow cashing rubber cheques here”. The Complainant told him that he is the wrong person. Then Mr. Apol Cruz said to him: “Your cheques are bouncing all over the place – one, two, three, bouncing everywhere. You are the teacher”. The Complainant told him that he is not the teacher and told him that he is John Glanville and he only use cash not cheques. He told that he got a wrong guy.

4. The Complainant’s witness Mr. Ian Harold Glanville, his father, came into the scene few minutes after Mr. A. Cruz had spoken to the complainant. He did not personally hear what was said to the complainant by Mr. A. Cruz.

5. The third witness Mr. Daniel Mehuwo, an illiterate, had filed his affidavit evidence in English language. He was with the Complainant in the SVS store at the time the First Defendant spoke to the Complainant saying in a loud voice: “You are the fellow cashing rubber cheques in our store here”. And when the complainant denied it, the First Defendant insisted saying: “Your cheques are bouncing all over the place – one, two, three – bouncing everywhere. You are the teacher”. The complainant said to him: “You got a wrong person. I am not a teacher and I don’t use cheques – I only use cash”.

6. The First Defendant in denying the statement complained of, has filed his affidavit sworn on 28 December 2006. However his affidavit was not tendered in Court as his evidence. In his oral evidence he said he only asked the Complainant by asking the following questions:

“Did you cash your cheques here?” 
He replied “No”. 
I asked him again – “Are you a teacher?”
He replied “No”.
So I said to John “I am just asking because there were one or two cheques been
cashed here which bounced”.
He said “No I’m not a teacher”.

7. From Mr. A. Cruz’s evidence it appears that he only made an inquiry and not an accusation as claimed by the Complainant.

8. The Second Defendant Amelia Ayamisemba in her affidavit evidence sworn on 28 December 2006 and Marked as EXHIBIT ‘D’ by consent, gave evidence she was approached by the complainant and was explaining to her what Mr. A. Cruz said to him. While the complainant was explaining to her, the Complainant’s father Mr. Ian Harold Glanville went over to them eager to know what the matter was all about. The witness Mrs. Amelia Ayamisemba made no mention if she heard or did not hear Mr. A. Cruz talking to the complainant. She did not state the exact words the Complainant was saying to her. 

9. By consent of the counsel for the complainant the defendants also filed the affidavits of PASTOR ROPRA, PETER NAMAE and HENRY KAUPA and marked as EXHIBIT ‘E’, ‘F’ and ‘G’ respectively. None of these witnesses ever stated in their affidavit evidence of hearing what was said by Mr. A. Cruz to the complainant at the material time. These witnesses were standing not far from where Mr. A. Cruz was talking to the complainant. The witness Senior Pastor Ropra of AOG church, was only about two metres from the alleged incident but he did not say if he heard what was said to the complainant by the First Defendant.

10. The second defendant Amelia Ayamisemba and the witness Peter Namae and Henry Kaupa are all employees of the Third Defendant, the Super Value Store in Goroka. Defendant Mr. A. Cruz is the manager of the Third Defendant, the SVS Store. Witness Senior Pastor Ropra is the pastor of the A.O.G Church in Goroka to which Mr. A. Cruz is the member. These witnesses have a special relation with Mr. A. Cruz through work or church activities. I find that due to such special relationship existing, the defendant’s witnesses may not be truthful in their affidavit evidence.

11. I find on the balance of probabilities that the evidence of the Complainant and his witness Daniel Mehuwo to be strong. I am satisfied that defendant Mr. A. Cruz did make the following statement to the complainant Mr. John S. Glanville, or words to the effect: “You are the fellow cashing rubber cheques here. Your cheques are bouncing all over the place – one, two, three, bouncing everywhere. You are a teacher”.

12. Issue No. 2: Whether or not the statement complained of is defamatory.

The law applicable in the actions for defamation is the Defamation Act, Chapter 293. The Section 2 of the Act defines what defamation is. That provision states and I quote:

(1)	An imputation concerning a person, or a member of his family, whether living or dead, by which – 
(a)	the reputation of that person is likely to be injured; or
(b)	he is likely to be injured in his profession or trade; or
(c)	other persons are likely to be induced to shun, avoid, ridicule or despise him,
is a defamatory imputation.

(2)	An imputation may be expressed directly or by insinuation or irony.

(3)	The question, whether any matter is or is not defamatory, or is or is not capable of bearing defamatory meaning, is a question of law.”

13. A defamatory word may be by spoken words or audible sounds, it may be in writing or by signals, signs or gestures pursuant to Section 3 of the Act. The statement or the words complained of were spoken by defendant Mr. A. Cruz. The Complainant did not give an interpretation of statement he complained off to this Court. Nor did the Counsels in their submission gave its interpretations. However the statement complained of in my view could be interpreted to mean: (a) Mr. John S. Glanville wrote three cheques to the SVS Store; (b) Those cheques were valueless as they bounced on presentation; (c) He was the teacher who wrote these cheques. There is no truth or connection when defendant Mr. A. Cruz related him to some valueless cheques signed by a teacher.

14. Mr. John Simon Glanville is the director of the Funeral Home in Goroka and the co-owner of that business as well. He never used cheques, only cash when he goes shopping. Being a director and co-owner of the Funeral Home, he would have been well known by many people who live in and around Goroka, Eastern Highlands Province. For one to say that Mr. John Glanville was cashing rubber cheques or valueless cheques and that he was a teacher, no doubt have a defamatory imputation. Mr. A. Cruz did not personally know Mr. John S. Glanville nor did Mr. J. Glanville personally sign the cheques before Mr. A. Cruz, particularly those cheques that bounced. Mr. A. Cruz could not just front up to someone, for that matter to Mr. J. Glanville and say to him that he was the person cashing rubber cheques at SVS store. I am satisfied that the statement complained of were likely to injure Mr. J. S. Glanville’s personal reputation and his profession or trade. Others will look at him as a person who could not be trusted. I find that the statement complained of are capable of bearing defamatory imputation.

15. Issue No 3: Whether or not the defamatory statement was published.

The Complainant and his witness Daniel Mehuvo gave evidence that there was a crowd present at the time defendant Mr. A. Cruz made that statement to Mr. John S. Glanville. Defendant Mr. A. Cruz denied there was a crowd. He said the crowd was only drawn when the complainant’s father Mr. Ian H. Glanville shouted at Mr. A. Cruz. Whether or not there was a crowd at the time is irrelevant. So long as the statement or the words spoken were made in the present and the hearing of one other person apart from the person defamed. Witness Daniel Mehuvo gave evidence that he was standing beside Mr. John S. Glanville when defendant Mr. A. Cruz made the statement.

16. The Sections 3 and 4 of the Defamation Act are relevant to this point. These provisions states and I quote:

3.	Definition of defamation.
A person who –
(a) by spoken word or audible sounds; or
(b) by words intended to be read by sight or touch; or
(c) by signs, signals, gestures or visible representations,
publishes a defamatory imputation concerning a person defames that person within the meaning of this Act.

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 (b) making of those sounds in the presence and hearing of a  person other than the person defamed; and
(c) _ _ _ _ _
(d) _ _ _ _ _ 

17. By these provisions, (Ss. 3 and 4 of the Act), the defamatory imputation must be published in the presence and the hearing of some other person beside the person been defamed. The words were spoken inside the SVS store at about 5:00 pm. The shop was about to close business for the day but there were few shoppers still around including Mr. Daniel Mehuvo and Pastor Roper and those employees of the SVS store. Witness Daniel Mehuvo was close besides Mr. John S. Glanville at the time defendant Mr. A. Cruz spoke the words to Mr. J. S. Glanville. Mr. A. Cruz is not familiar with Daniel Mehuvo and so he could not deny his presence at the relevant time. I am satisfied that witness Daniel Mehuvo was present and standing beside Mr. John Glanville and he heard defendant Mr. A. Cruz made the statement complained of to Mr. John Glanville. And I do find that there was a publication of the defamatory words by Mr. A. Cruz.

18. Issue No. 4: Whether or not the apology offered by the First Defendant was sufficient.

In the actions for defamation there are number of defences available under the Defamation Act particularly the Section 9 – Fair Comment; Section 10 – Truth; Section 11 – Excuse and Section 12 – Good Faith. Defendant Mr. A. Cruz raised none of these defences. All he said was that he mistook the complainant as a teacher who wrote valueless cheques and that he has apologized to the complainant almost immediately after he made the defamatory imputation, which Mr. J. S. Glanville accepted his apology. However the complainant denied any offer of apology been made. The complainant said that defendant did apologize but out of frustration he did not accept his apology and he walked away from the defendant. I am satisfied that Mr. A. Cruz did apologize to Mr. J. S. Glanville.

19. The next day the complainant sent a demand letter requesting the defendant to make his apology in public by exhibiting his apology in front of the SVS store. The defendant failed to do so. Instead the defendant drove to the complainants residence or place of business to apologize but complainants father Mr. Ian R. Glanville refused the defendant. The demand by the complainant had not been satisfied thus this proceedings been commenced.

20. Apology is not a defence in the actions for defamation. Apology can only be considered in mitigating of damages pursuant to Section 25 of the Act. This provision states and I quote: “In an action for defamation the defendant may plead and prove in mitigation of damages that he made or offered an apology to the plaintiff for the defamation before the commencement of the action or, if the action was commenced before there was an opportunity of making or offering the apology, as soon as he had an opportunity to do so.” And it matters not if the person defamed has refused to accept the apology.

21. Mr. R. Yambong, the counsel for the complainant submitted that the attempted apology offered by Mr. A. Cruz was not sufficient. The complainant has demanded the apology to be published and exhibited on the notice board or in front of the SVS store. There was no such publication of an apology. Counsel referred to the case of Theresa Joan Baker –v- Lae Printing Ltd [1979] PNGLR 16. In that case the plaintiff had demanded and requested the defendant an apology and all copies of the editions withdrawn from the sale since the defamatory imputations were published in the news media. There was no such withdrawal and no apology appeared in the edition on the dates specifically demanded by the plaintiff. The apology was however published at some later date. The Court held that:

“An apology to the plaintiff for the defamation, sufficient to mitigate damages - - - should be a full apology, one sufficient both in substance and time.”

22. In the present case now before this Court the defamatory words were spoken in the presence of the complainant. And immediately after making the defamatory words, the defendant Mr. A. Cruz made oral apology to the complainant. He was quite apologetic for mistaken the complainant to a teacher who cashed the valueless cheques. I find that defendant made or offered the apology in full one sufficient both in substance and time. The complainant’s demand a day after the defendant to make an apology could not be substantiated.

23. The Section 25 of the Defamation Act is silent about the acceptance by the person defamed of an apology. It is sufficient so long as the person making the defamatory imputation has made or offered an apology both in substance and time. And I am satisfied that the defendant has sufficiently made the apology by words of mouth since the defamatory statements were spoken by mouth and that the apology was made immediately.

24. The complainant is seeking damages to the amount of K10, 000.00 for defamation. The offer of an apology is a mitigating factor for damages. In the case of Theresa Joan Baker –v- Lae Printing Ltd, above, the National Court has awarded K6, 000.00 in damages since the apology was not made in full and sufficient both in time and substance. His Honor Justice Witson further held that: “Damages for defamation are at large and are to compensate the plaintiff for injury to personal reputations feelings and injury to reputation in business.”

25. In the case of Tei Abal –v- Anton Parau [1976] PNGLR 251, where the defendant during a political gathering by spoken words published defamatory statement of the plaintiff, the National Court awarded damages of K1, 000.00. There was no apology offered and the publication was made in the presence of a crowd of over thousands of people. In defamation the damages are at large, it cannot be measured or ascertained but it depends on the good judgment of the judge or the magistrate. In the case of PNG Aviation Services Ltd –v- Michael Thomas Somare [1997] PNGLR 515 the National Court said:

“No proof of actual injury is necessary in an action of defamation. The extend of injury to reputation is next to impossible to assertion; to obtain an exact measure of adequate compensation is equally difficult. Damages are therefore said to be at large. A fair and appropriate award must be based on all the circumstances.”

26. In the present case defendant Mr. A. Cruz had mistaken the complainant Mr. John S. Glanville for a teacher who had cashed valueless cheques at the SVS store for goods purchased. He then immediately apologized when he realized his mistaken believe. The statement complained of were not intended to defame Mr. John Glanville personally but were in a form of questions if the complainant was the teacher who cashed number of valueless cheques. However in my view the statement complained of did defame the complainant. Taking the circumstances in which the statement were made I consider the damage to be within the vicinity of K2, 000.00 in favour of the complainant.

27. The second defendant Mrs. Amelia Ayamisemba is the Manageress of the SVS branch in Goroka. She is not the owner of the SVS store. There is no evidence that she defamed the complainant in any way. Being a manageress of the SVS store, she could not be held. Vicariously liable for the actions of the first defendant.

28. The Third Defendant, Super Value Store Ltd is the company that employed the first defendant Mr. A. Cruz. He in the course of his employment and for the benefit of the Third Defendant defamed the complainant. The Super Value Store Ltd is therefore vicariously liable for the wrongs done by its employee, Mr. A. Cruz. At common law the master is liable for any torts committed by the servants within the scope of his employment. In the case of Roka Coffee Estate Pty Ltd –v- Largo Genegi [1973] PNGLR 486, Chief Justice Minogue said at page:

“_ _ _ The traditional view is that the master is liable for the servant’s torts committed within the scope of his employment _ _ _ “

29. I find that the First and the Third Defendant is vicariously liable for the torts committed by the employee Mr. A. Cruz. I enter a judgment of K2, 000.00 in favour of the complainant Mr. John S. Glanville. And that there will be costs for the complainant. And I order that the judgment order be paid by the Third Defendant, the SVS Ltd.

For the Complainant – Mr. R. Yambong of Paul Paraka Lawyers
For the Defendants – Mr. J. Kilipi