DC694

PAPUA NEW GUINEA
IN THE DISTRICT COURT AT VANIMO

CI NO: 91-92/2008

BETWEEN:

BATA MANO
Complainant

AND:

KONG JOSEPH
First Defendant

LAZARUS PENISA
Second Defendant

Vanimo: A. Arua
2008: 26 May

Defamation of character – Claim based on allegation that defendants spread false reports that complainant ‘stole’ money – Complainant given money by the first defendant upon his request – Evidence – Other employees told by defendants that complainant given money, received money or got money from first defendant – Received money, given money or got money not the same as ‘stole money’ – Claim dismissed

DECISION

26, May, 2008.

This is a claim for damages for defamation of character due to certain oral imputations made about the complainant by the defendants.

The complainant is a trainee prosecutor attached to the prosecution section of Vanimo Police Station while the defendants are employees of Border International Timbers Limited. 

The first defendant is a Malaysian expatriate who was the camp manager at the company logging camp when he is alleged to have made the defamatory remarks. Since the commencement of this case he had left for Malaysia and could not return, probably due to non renewal of his work permit and visa. This case therefore proceeded in his absence. The second defendant is a Papua New Guinean citizen.

The complainant’s claim is that on Friday 13th June, 2008, he had met Mr. Kong (first defendant) and a Mr. Noel at around 2.00 pm at Vanimo Police Station to make arrangement with Mr. Kong for financial assistance. This was after Mr. Noel had told him that a Mr. Nuh, with whom the complainant had made earlier arrangement for financial assistance had left for Kimbe, West New Britain Province.

It just happened that Mr. Kong Joseph and Mr. Noel were at the police station at that time to attend to three of their company employees who were locked up in the police cells.

Following his request on June 13th, the complainant again approached Mr. Kong Joseph at Vanimo Beach Hotel on Tuesday June 17, at about 12.00 noon and was given K400. 00 cash money as per his request for assistance. At the time when the complainant was given money by Mr. Kong the second defendant was in their company vehicle.

Around 1.30 pm the same afternoon the complainant was demanded by the second defendant to report to the police station where he claimed that he was treated like a thief or a criminal. He was taken into the OIC Prosecutions office and questioned about the money, where he explained in detail to all who were present which included the defendants, OIC Prosecutions and Mr. Steven Soga as to why he had received the money. After the questioning he was instructed by the second defendant to refund the money by the end of the week.

The complainant further claimed that the defendants had told a lot of people that he had stolen money from the first defendant. Such allegations were told or preached to all the policemen at the police station and the civilians who were present at that time. The first defendant had also told all the company employees about the incident and they were all making fun of him. The complainant was informed by auxiliary constable John Welly who was providing security at the company camp. Apart from that he was also being asked by most of his friends about the allegations every time he met them.

Due to the publication of the false allegations about him the complainant claimed that his character and profession as a policeman, trainee prosecutor and a good citizen of West Sepik Province had been totally destroyed. Even his wife was ashamed to go shopping and his children could not go to school because of the allegation.

In support of his claim the complainant filed two affidavits dated 30/06/08 and a third one dated 29/07/08. He also called two witnesses, auxiliary constable John Welly and Mathew Sangu.

Auxiliary constable John Welly told the court tat the second defendant had told him that they had given K400.00 cash money to the complainant. When asked in cross examination by the complainant whether he told anyone about him (complainant) taking money from the first defendant, he replied; "I was only acting as a mediator. I tried about 5 to 6 times". However, when asked further by the court what he was actually told by the second defendant, he said; "He said that Mr. Kong gave some money to Mano". He further confirmed meeting Mathew Sangu, the second complainant witness and telling him about the same thing.

The second complainant witness Mathew Sangu filed a sworn affidavit stating that he was at Silung club with a friend of his drinking beer on the night of Thursday 19/06/08 when he overhead two boys from Lido village say that the second defendant had told them that the complainant had conned the defendants and stole some big money. Then on Saturday 21/06/08 he was standing inside Vanimo Supermarket with an elderly man when auxiliary constable John Welly met them and told by them that the defendants had alleged that the complainant had stolen some money from the first defendant.

The second defendant in rebuttal stated that he only told auxiliary constable John Welly at the camp about the first defendant giving money to the complainant. Though the money was not given in his view he was told about it by the first defendant. He also said that he was not aware of any arrangements between the complainant and the first defendant for financial assistance. All he knew was that the money was given as an appreciation to the complainant for preparing paper work to reduce fine or penalty for three Malaysian employees who were in police custody for alleged breach of visa and work permit conditions.

The second defendant called only one witness, Lucas Dambui who testified about being asked by the complainant and Mathew Sangu to witness them. He told the court that he refused their request because he didn’t know anything about their claim.

Having considered the evidence of both parties I find that there is no dispute that the complainant did receive K400.00 cash from the first defendant on Tuesday 17/06/08 between 12.00 noon and 12.45 pm at Vanimo Beach Hotel. There is however, differing views from both sides regarding the reason why the money was given

The complainant claimed that it was given as per his request for financial assistance made to Mr. Nuh earlier on and the first defendant later, after he was told that Mr. Nuh had left for Kimbe. The defendants however, claimed that the money was given for the complainant’s part in preparing documentation to reduce the fine or penalty for three Malaysian employees held in police custody.

While the parties based their cases mainly on the issue of why the money was given, I think that the reason why the money was given does not affect the question of whether the defendants did defame the complainant by spreading false allegations that he had stolen money from the first defendant. If the money was given as a financial assistance to the complainant, then there was no need for the defendants, especially Mr. Kong to tell Lazarus Penisa and others that the complainant had stolen money from him. 

Likewise, if the money was given as appreciation to the complainant for his part in preparing documentation to reduce the fine or penalty for the three Malaysians held in police custody, it was not necessary for the first defendant to tell the second defendant and others that the complainant had stolen money from him.

After all, for an act to amount to stealing, an item capable of being stolen and belonging to another person must be taken by the offender without the consent and authority of the owner. In this case, the complainant could not have stolen the money because it was given to him by the first defendant on his free will, either as financial assistance or, in appreciation for the complainant’s assistance. 

Therefore, for the defendants to go and tell others at the company camp and around Vanimo that the complainant had stolen K400.00 from the first defendant was wrong and, therefore could have amounted to defamation.

The issue before the court is; 

Did the defendants spread false statements about the complainant saying that he stole K400.00 from the first defendant and thereby defame his character?

For an utterance to amount to defamation it must be false and must be published to the hearing and knowledge of other persons other that the person defamed. In this jurisdiction the Defamation Act chapter 293, consolidates the common law of defamation. 

Defamation is defined in S. 2 of the Act as:

"(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".

In this case the complainant claimed in his complaint that the defendants; 

"You did make (sic) false allegation against me saying that I stole K400.00 from Mr. Kong Joseph for the purpose of releasing your countrymen who were under police custody.

Through this false information, I was summons(sic) by my OIC and I was also address(sic) a con artist and a thief by a lot of people in Vanimo town and also at the base camp. They all make (sic) fun of me too (sic) whereby my profession and good character was spoil (sic) or defamate (sic)

Since the complainant is alleging defamation of his character and reputation by the defendants by publishing that he stole from the first defendant, he must prove on the balance of probabilities his claim.

The testimony from witness John Welly doesn’t disclose evidence about him hearing from the second defendant that the complainant stole money from Kong Joseph, the first defendant. There is however, evidence that the second defendant told him that Kong Joseph gave K400.00 to the complainant. John Welly also told the same to Mathew Sangu on Saturday 21/06/08 at Vanimo Supermarket.

The evidence of Mathew Sangu was contradictory. In his affidavit he mentioned about John Welly telling him that; "Joseph Kong and Lazarus Penisa alleged that Mano stole some money from Joseph Kong". However, when asked by the second defendant during cross examination:

Q. "What did John Welly actually tell you?"
A. "He told me that Mr. Kong wantaim ol man long peles said that Mano got K400.00 from Mr. Kong".

Mathew Sangu in his answer didn’t mention that Mano stole from Kong Joseph. Instead he said that Mano got K400.00 from Kong Joseph. "Got money" is not the same as "stole money".

The evidence about him hearing from two Lido boys talking about the allegation at Silung club is also hearsay and cannot be allowed. He could have identified the two boys and the complainant could have called them as witnesses.

In conclusion, I find that it was true and correct that the complainant was given K400.00 cash money by the first defendant. The first defendant also told the second defendant the truth when he said that he had given money to the complainant.

The complainant has failed to prove on the balance of probabilities that the defendants made, spread or published false and misleading statements or allegation about him stealing K400.00 from the first defendant for the purpose of releasing the three Malaysians held under police custody.

Accordingly, his claim hereby dismissed.

Orders accordingly.

Complainant: In person
Defendants: Kong Joseph (Ex parte)
 : Lazarus Penisa (In person)