DC992

PAPUA NEW GUINEA
IN THE DISTRICT COURT OF JUSTICE SITTING IN ITS CIVIL JURISDICTION

DCCi 316 of 2008

BETWEEN:

WASI MINJUKU
Complainant

AND:

MR CHU
1st Defendant

AND:

HOWARD CHAN
2nd Defendant

AND:

OCEAN RESTURANT
3rd Defendant

Madang: E Wilmot

2009: 9 June 2009

CIVIL - Defamation proceedings 

Cases Cited
List Cases Chronologically

References
List Legislation In Alphabetical Order

Counsel
In Person, for the Complainant
Mr Kembu, for the Defendant

9 June 2009

E Wilmot DCM: This matter was commenced by way of a complainant filed on 15 October 2008. it is supported by affidavits on support of the complainant deposed by the complainant Wasi Minjuku and the complainant seeks damages for statements that the defendant said to him in a public area before a crowd. He is seeking the following order:

1.	Damaged for defamatory comments made by the defendant not exceeding K5000

2.	Exemplary damages which he is not stated

3.	Interest

4.	And cost.

The complainant has further filed affidavits from Millie Belle sworn and file on 27 November 2008; Nickson Aret also file and sworn on the 27 November 2008; Larsen Buakas sworn and filed on 2 November 2008.

And max Phyui Chu say that’s the thief that got my beer from the restaurant.

Belle states she heard Mr Chu state that “stil man yu haitim beer bilong mi we?” these to heard the defendant accuse the complainant of being a thief but as to what he said... they differ. Belle evidence somewhat supports what Mr. Minjuku alleges what was said.

Larson Buko on the other hand was witness to another incident in which the defendant in a load voice told the complainant that he had already called the police.

The other affidavit has been question because there is a later affidavit saying that he did not understand what he was signing. I place no weight on this evidence.

Mr Kembu for the defendant has also file affidavits for and on behalf of his friend Mr Chu.
he relies on affidavit if Mr Soe (Chu( filed on 31 October 2008 that of Mr. Chan also filed on 31 October 2008 and the affidavit of Philomina Raka filed on 25 November 2008 and that of Serah Gaul filed on 24 November 2008.

All the evidence brought is in relation to the incident at the restaurant. There appears to be two instances where it is alleged that defamatory comments were made. The first was outside the Ela motors office in Madang town itself while the second was at the restaurant where they were to meet and resolve the matter.

To raise a claim of defamation you must establish the following that a person spoke word or audible sound that was published and its imputation are to defame the person the word are intending to defame. The definition of publishing is in the case of spoken words or audible sounds, the speaking of those words or making of those sounds in the presence and hearing of a person other than the person defamed.

The law is stated in the defamation act sections 3 and 4.

I state the law below and highlight the relevant clause:

3. DEFINITION OF DEFAMATION.

A person who–

(a) by spoken words 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 making of those sounds in the presence and hearing of a person other than the person defamed; and

(b) in the case of signs, signals or gestures, the making of those signs, signals or gestures so as to be seen or felt by, or otherwise come to the knowledge of, a person other than the person defamed; and

(c) in the case of other defamatory matter–

(i) exhibiting it in public; or

(ii) causing it to be read or seen; or 

(iii) showing or delivering it; or

(iv) causing it to be shown or delivered,

The words to which the complainant alleged were defamatorily were “You stil man, you stilim beer worth K280 from Ocean restaurant” this was made in front of his worker at Madang clothing limited.

The words were again made on the 2nd of October in the public in form of Ela Motor junction which was witnessed by the public.

The complainant alleges that these comments were uttered in front of other people. this is supported by and it caused him. 

In defence the defendants have brought in affidavits that show that a bottle of whisky went missing and, that the complainant was the last to hold it. That as such the words were inquisitive in an attempt to find the missing bottle. The only witness that could have proved or denied the alleged statements has left the country, he is Max Phyui. I place little weight on his evidence.

The defendant went on to state that it is not defamation if the alleged statement is true or if the statement is not intended to be defamatory in nature. Both contentions are related.

On there first accretion the defendant is alluding to the fact the due to the circumstance that the complainant holding the bottle of whisky last he is the likely person to have taken it. This contention puts the complainant in the area and time the bottle went missing. Did he take it? There is insufficient evidence to conclude this. We do not know if the place was empty thus the complainant is the most likely person to take the whisky. We don’t know how many people were at the bar, was the defendant the only person at the bar. Did he leave straight after take his plastic bag of beer? All we know is the bottle was taken and it was found missing at the end of the night when the stock-take was made. We do not know how long after the bottle went missing and how long afterwards the stock take was made, was it a short period of time.

The second contention raised was because the complainant was the last person to hold the bottle the comments made were inquisitive in nature, therefore not defamatory in nature.

In such cases we must look how the statement was delivered and the perception these statements are taken. This can only be gauged from those who were there at the time. The defendants bring two witnesses. One of Max Phyui and the other of Mr Chu, both affidavits give little to assist the court.

The complainant submits that he was injured by the comments made. That in both instances the comments were made, they were heard by other. That as a result he was injured because the comments cause him to loose face in front of his co workers and the public. the two affidavits that the court relies on is that of Nickson Aret a co-worker who heard the comments on the 1st of October 2008 and Miller Belle a passerby who heard the same comments on the 2nd of October 2008.

Both these affidavit conform that the comments were advertise. A qualification in defamation case. They both also go toward proving that works were said. In fact we know works were said because both parties admit to this fact alone. as to the exact works.

How was the statement delivered? I have read the claim. I have also read the witness statement. The statement was delivered loud, and it was received or advertised before the complainant’s co-workers and the public at large.

The statement was made orally. It was made in front of his peers and made loudly. I disagree with Mr Kembu.

The evidence of Nickson Aret a co-worker who heard the comments on the 1st of October 2008 and Miller Belle both show that the statement was made and it was made in front of a large number of people. They both state that the phase “yu stil man” was used. How would a person observing this read such a statement. 

One would need to look at this objectively and see how a reasonable man would perceive the statements. The phrase “stil man” refers top a thief a crook a person who steals. How would one feel if he was called that? 

A reasonable man, somewhat educated, a manager, would feel embarrassed ashamed angry. Mr chu and the complainant were not friends or persons who had a close relationship. Mr chu is the duty manager at Ocean restaurant. The complainant is a paying customer. 

On both occasions Mr. chu went looking for the complainant to establish if he took the bottle of teachers, whisky. Mr. chu had to account for the missing whisky. He went as the duty manager of ocean restaurant.

I find that the defendant did utter word that they were enough to cause anxiety and distress on the complainant and defamed the complainant.

In finding so I must make an assessment of what is just in such a circumstance.

The complainant s seeking damages as follows:

Damages not exceeding K5000.00

Aggravated or exemply damages

Interest and cost.

In assessing general damages I find a figure to the amount of K1500.

I further assess exemplary damages at K500.00.

I order interest be calculated per statute.

Cost awarded be in the cause.

_______________________________________
Lawyer for the Complainant In Person
Lawyer for the Defendant Next of Friend Mr Kembu