DC733

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

GFCi 56 of 2007

BETWEEN

MICHAEL AGLUA ANDE
Complainant

AND

JAMES KIMIN PIKIP
Defendant

Kundiawa: M. GAULI, PM
2008: April 09th

CIVIL - Defamation – Served with informal copy of the summons containing defamatory words - Summons served directly on the Complainant – No publication of the informal summons.

Cases Cited:
1. Wayne Cross –v- Wess Zuidema [1987] PNGLR 361

References:
Nil 

Counsels:
For the Complainant - In person
For the Defendant - No Appearance

09 April 2008

DECISION OF THE COURT

M. GAULI: The complainant Mr. Michael Aglua Ande is a Deputy Headmaster of Kundiawa Lutheran Day High School. He sued the defendant James Kimin Pikip for serving him a informal copy of summons in which it stated the following statement: “ --- that you are liable to the complainant for the sum of K10,000.00, that on 18th January 2008 at Konmugl village in Kup Sub District in Chimbu, the second defendant facilitated the First Defendant publicly make defamatory remarks about the Complainant and as such the Complainant is seeking compensation to the sum of K10,000.00”.

This was an alleged cause of action between James Kimin Pikip (Complainant) –V- Michael Aglua Ande (First Defendant) and Gabriel Auna Kawage (Second Defendant) on D/C No _____ 2008. This summons did not have a District case register number, did not have a return date of summons and it did not have the signature of the Magistrate and or the seal of the District Court. And so it is called as an informal summons. It appears that this was a draft summons which had not been filed and registered at Kundiawa District Court as yet. In that informal summons James Kimin Pikip (now defendant in the present proceeding) was saying that Michael Aglua Ande (now the Complainant) made public defamatory remarks of James Kimin Pikip and so James was seeking compensation for defamation against Michael Aglua Ande.

Since that informal summons did not have the District Court case register number unsigned and sealed, it can be treated as a letter written to Michael Aglua Ande and Gabriel Auna Kawage. And if the allegations contained in that informal summons do not have any truth in it then there is defamatory imputation in it.

Issue: “Was there publication of the alleged defamatory imputation”.

The ss.3 and 4 of the Defamation Act requires that there need to be a publication of the defamatory imputation. And that publication had to be made to a person who is not the person defamed. In the present case for the public of the informal summons, under s.4(c) of the Defamation Act, there must be proof by the Complainant that the informal summons was either (i) exhibited in public; or (ii) caused to be read or seen; or (iii) shown or delivered; or (iv) caused to be shown and delivered, with a view of it being read of seen by a person other than the person defamed. The term “a person other than a person defamed” means that it is seen or read by a person who is not the person defamed. If the informal summons was see or read first by one of the person defamed then it can be said that the informal summons had been published within the definition of publication under s.4(c) of the Defamation Act.

In the present case the Complainant had no witnesses except himself who gave evidence. In his evidence he stated that the informal summons containing defamatory summons was served to him personally by the defendant James Kimin Pikip. He did not say that the said document was served to him by someone else or that it was given to another person who then gave it to the Complainant. Under this circumstance where the defendant directly and personally served the informal document on the complainant, I find that there is no evidence of publishing the defamatory matter in this informal summons to other person – Wayne Cross –v- Wess Zuidema [1987] PNGLR 361 referred to. The evidence is insufficient to prove publication. And I find that the defendant not liable for the alleged defamatory imputation. And I order that the case be dismissed and the defendant discharged.

For the Complainant, - In person
For the Defendant, - No Appearance