DC3007

PAPUA NEW GUINEA
[In the District Court of Justice sitting in its Grade V civil Jurisdiction]

Complaint No: 01,02  of 2015

BETWEEN

JENNY NAKUMIRA
Complainant

AND
THOMAS NAKUMIRA
First Defendant
AND
MARIA HASOMI
Second Defendant

 BUKA: B.TASIKUL
2015: 26th May

CIVIL LAW:

CASES CITED:

COUNSEL:
Appearing for Complainant: In person
Appearing for Defendants: In persons

                                                         JUDGEMENT

1.	BTASIKUL: Jenny Nakumira is claiming damages against the two defendants namely; Thomas Nakumira and Maria Hasomi for defamation.

2.	It is alleged that the two defendants published false allegation against her alleging that she was having an extra sexual affair with her cousin brother Glen Gani resulting her baby’s death.

3.	To appreciate the facts of the matter let me briefly state here as follows, the first defendant is the wife or former wife of the complainant, whereas the second defendant is her in-law. On the 21st of September, 2013 the complainant gave birth to their child at Buin Health Centre. However, the baby died upon delivery.

4.	The first defendant got suspicious why their baby died during her wife’s delivery. In doing so he approached the second defendant, as he knows that the second defendant possess a gift of healing and also she has a gift of seeing things through vision.

5.	After consulting the second defendant, through her vision saw that the complainant was having an affair with her cousin brother, resulting the death of their baby. This allegation was than published to other family members and friends.

6.	It was not disputed by both defendants that they did published the allegation against the complainant.

7.	In admitting to the allegation both defendants maintain that the cause of the baby’s death was the result of the complainant sexual affair with her cousin brother.

8.	The following issues that this court need to address are;

i.	Whether or not the statement or words complained of are defamatory?
ii.	Whether or not the defendants have the defence under s. 10 of the Defamation Act

9.	The relevant law covering defamation is theDefamation Act, chp 293. The relevant provisions are; section 2, 3 and 10 of the Act.

10.	The first issue is whether or not the statement complained of is defamatory?

11.	The relevant provisions are; section 2 and 3 of the Act. Section 2 states ;) 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 a defamatory meaning, is a question of law.
 Section 3 states;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.

12.	 The words or statement published by the defendants is that, “the reason why the baby died during birth delivery was due to the complainant’s having sexualaffair with her cousin brother.”That statement in itself has defamatory imputation against the complainant. The publication of that statement falls within the meaning under s.2 of the Act. Such statement is likely to injure the defendant reputation as a person.

13.	I am there of the view that this statement are defamatory in nature.

14.	The next issue is whether or not the defendants have the defence under s. 10 of the Defamation Act

15.	 Section 10 provides a defence of truth. It is lawful to publish defamatory matter if is true, and if is for the public benefit that the publication complained of should be made. This defence has two components, firstly the publication of defamatory matter must be true, and secondly it must be for public interest.

16.	I will firstly discuss the first part of this defence which is the truth of the matter.

17.	 The first defendant Thomas Nakumira works at Tabubil, Western Province. When the complainant informs him that their baby died during birth delivery.hegot suspicious why their baby died. The complainant told him that there was nothing wrong with her, but he still insisted they to visit a witch doctor.So they visited a witch doctor from Buin.

18.	The witch doctor told them that the reasons for their baby’s death is because people jealous of them. Not being satisfied Thomas rang Maria the second defendant whom he had known before and told her about their baby’s death and he wanted to know why such thing happen. 

19.	After performing her visionary activity she informs Thomas that she saw her wife through her vision that she had an affair with her cousin brother three times.

20.	 This makes Thomas to belief that because at one stage before this incident, Thomas rang Maria to find out who stole the tyres of their vehicle earlier when his brother was travelling to Buin. Maria through her vision told him exactly where the location of the stolen. His brother went and recovered the stolen tryes. 

21.	This was confirmed by his brother Edward Mautu in his evidence. 

22.	The defendants also called Jenny Karikua and Francesca Newman who testified to confirm that the second defendant Maria is a visionary woman. She had the gift to see visions and to heal people. At one stage when Jenny and Francesca had martial problem with their husband they consulted Maria who inform them that their husband were having extra marital affair.

23.	However, during cross examination Jenny ask both of them this question as I quote;“Before you consulted Maria to see your husbands did you heard any rumors that your husbands were having extra marital affairs”? Both of them answer’ yes.”

24.	It now raises the question of whether their evidence is credible. This is because both of them already knew through rumors that their husbands were having other marital relationship with other women. And when they ask Maria to see the husband through her visionary gift was only a formality to confirm their suspicious.

25.	Yes, if the witch doctor from Buin who first saw Jenny and told her that their baby died because people were jealous of them.Why then  Maria didn’t see the same, likewise if Maria saw Jenny having an affair with her cousin brother, why not the Buin witch doctor saw the same.

26.	It is customary in our society that people have different believes, so we cannot say whether it is true or not. The defendant Maria may have that gift, but how can she prove that before a court of law.

27.	I now turn to the central issue that Jenny had an affair with her cousin brother three times. Two times in Buin and one time at Hahalis.

28.	In trying to establish the truth about these sexual affairs, witness Vincent Kevau testified that he never saw Jenny and his cousin Gani went he went to Thomas house at Buin. He only saw Jenny’s family members. His evidence does not tell the court anything. The witness is only assuming that both Jenny and Gani did have sex during their stay at Buin.

29.	The witness Erick Ambrose testified that still at Buin he saw Jenny and Gani holding hand during a singing. What does this evidence mean? If both of them were seen holding hands does that mean that they were having sexual affair. This is just another assumption. The complainant totally denies that.

30.	I think this is a conspiracy between the two defendants and their witness. The defendant Thomas had other reasons or motive because he continued insisted Jenny to tell her why their baby died. It is very suspicious just before their baby’s death Thomas rang Jenny and told her that he had a sexual affair with Jenny’s sister, when she was still mourning her baby’s death.

31.	The death of the baby was the result of complication duringdelivery. The medical report tendered as evidence by Jenny spells it out clearly that the death was the result of complication and baby’s umbilicus cord tight around his shoulder resulting the delay of his delivery. 

32.	I therefore find that there is no truth in this statements published by the defendants.

33.	I will now address the second component of s.10 defence which states that it must be for public interest. If that defamatory statement was true, that Jenny did actually had sexual affair with her cousin brother Gani three times. I ask myself what it that the public should know about it. If it is for criminal proceeding where they were charge for incest then it would be fair. There is no evidence about the matter been reported to police for prosecution under any criminal offence.

34.	I find that both defendants have no defence under s.10 of the Defamation Act.

35.	The defendants are therefore liable to pay damages to the complainant. 

36.	The complainant is seeking damages to the amount of K5, 000.00.

37.	 For defamationthe 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 Wilson 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 TeiAbal –v- Anton Parau1976 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- MichaelThomas Somare1977 PNGLR 515 the National Court said:

“No proof of actual injury is necessary in an action of defamationThe 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.”

38. In the present case defendants had not apologized to the complainant and the publication of those words or statements were not only painted bad pictures on the complainant, but her family were also implicated, especially her cousin brother. This has brought same to the family.

I therefore ordered that the first defendant Thomas Nakumira pay K2000.00 and Maria Hasomi pay K1000.00 a total of K3000.00.Both payment be made within two months.