N7116
      PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS 478 OF 2017

BETWEEN:
MICHAEL HOMINGU
Plaintiff

AND:
IGNATIUS PAPPA
Defendant

Mt Hagen: Frank, J
2017: 24 November 
2018: 9 February 

DEFAMATION — Slander — Pleading of — National Court Rules Order 8 r. 84

PRACTICE & PROCEDURE – Default judgment – requirement of a forewarning notice where no notice of intention to defend has been filed – National Court Rules O 4 r. 49 (19) (3) (a) (i) (4). 

PRACTICE & PROCEDURE – Summary judgment – availability in defamation claims  – National Court Rules O 12 r. 37 (a). 

Cases cited:

Bruce Tsang v. Credit Corporation (PNG) Ltd [1993] PNGLR 112
David Lambu v Paul Paken Torato (2008) SC953
Lina Kewakali v The State (2011) SC1091
Singat v Commissioner of Police (2008) SC910
South Pacific Post v Nwokolo [1984] PNGLR 38

Texts referred to:

Atkin’s Court Forms, Second Edn., 1998 Issue, Vol. 25
Halsburys Laws of England, Fourth Edn. Vol. 28
Counsel

H. Pora, for the Plaintiff
No appearance, for the Defendant

9th February, 2018

1.    FRANK J:   By notice of motion filed on 12 September 2017, the plaintiff seeks judgment by default for the sum K120, 000.00 pursuant to Order 12 rr. 25, 26, and 32 (1), and, in the alternative, summary judgment for that amount pursuant to Order 12 r 38 (1) of the National Court Rules.

2.   The motion is supported by 12 affidavits, 9 of which are as follows:

2. 1.	Affidavit of Service of Senior Sergeant Robin Angopa sworn and filed 13 June 2017;
2. 2.	Affidavit of Search of Kelly Teka sworn 16 and filed 24 August 2017;
2. 3.	Affidavit of Service of Senior Sergeant Robin Angopa sworn 20 and filed 30 August 2017;
2. 4.	Affidavit of Recent Search of Kelly Teka sworn 11 and filed 12 September 2017;
2. 5.	 Affidavit of Walter Turuk sworn 6 September and filed 17 October 2017;
2. 6.	Affidavit of Jacqueline Gemmel sworn 6 September and filed 17 October 2017;
2. 7.	Affidavit of Francesca Maigu sworn 6 September and filed 17 October 2017;
2. 8.	Affidavit of Michael Homingu, the plaintiff, sworn 3 and filed 8 November 2017; and
2. 9.	Affidavit of Further Search of Alo Tukun sworn and filed 21 November 2017.

3.  The other affidavits depose to service of the motion and a forewarning notice for the defendant to file and serve his defence, the latter of which is relevant in a default judgment application where a defendant has filed and served a notice of intention to defend: See Order 
4 r. 49 (19) (3) (a) (i) (4) & Singat v Commissioner of Police (2008) SC910, para. 39.
	
4.  The plaintiff alleges that on 1 May 2017, at a staff meeting of the Enga Teachers College and subsequently outside the college at the Irelya market, the defendant defamed him.

5.   Through the affidavits he relies on, the plaintiff says that:

(a)	On 2 June 2017, the defendant was served with the writ of summons endorsed with the statement of claim (“Writ”); and
(b)	On 8 August, 8 September, and 20 November 2017, searches of the court file were conducted which show that the defendant has not filed a notice of intention to defend or defence.

6.    With respect to the motion for summary judgment, Order 12 rule 38 provides –
38.    Summary judgement. (13/2)
(1)     Where, on application by the plaintiff in relation to any claim for relief or any part of any claim for relief of the plaintiff—
(a)  	there is evidence of the facts on which the claim or part is based; and
(b) 	there is evidence given by the plaintiff or by some responsible person that, in the belief of the person giving the evidence, the defendant has no defence to the claim or part, or no defence except as to the amount of any damages claimed,
the Court may, by order, direct the entry of such judgement for the plaintiff on that claim or part, as the nature of the case requires.
(2)     Without limiting Sub-rule (1), the Court may under that Sub-rule direct the entry of judgement for the plaintiff for damages to be assessed.

7.    The Supreme Court in Bruce Tsang v. Credit Corporation (PNG) Ltd [1993] PNGLR 112, settled the law in relation to summary judgment where it, at pages 117 and 118, said:

There are two elements involved in this rule;

(a)	evidence of the facts proving the essential elements of the claim;
(b)	that the plaintiff or some responsible person gives evidence that in his belief, there is no defence.
As to the second element, the plaintiff must show in absence of any defence or evidence from the defendant that in his belief, the defendant has no defence.

8.   The plaintiff does not dispose to a belief that the defendant has no defence to the claim or part or no defence except as to the amount of any damages claimed.

9.  Next, even if he had done so, Order 12 r 37 (a) provides that summary judgment is not available to a claim for libel or slander. That rule provides –
		Division 4.—Summary Disposal.

37.    Application of Division 4. (13/1)
This Division applies to all proceedings except proceedings which include
(a)  a claim by the plaintiff for libel, slander, malicious prosecution, false imprisonment, seduction or breach of promise of marriage; or
(b) 	…
(c) 	…

10.    The Supreme Court in David Lambu v Paul Paken Torato (2008) SC953 noted this when considering the issue as to the availability of the default judgment procedure to claims for libel and slander. For these reasons, I refuse this relief.

11.    With respect to the motion for default judgment, the defendant has not filed a notice of intention to defend. Subject to the plaintiff having personally served the Writ, on the facts deposed to and outlined in paragraph 5 hereof, and pursuant to Order 4 rr. 9 (1) and (2), 11 (b) (i) and Order 8 r. 4 (1) (a), the defendant is, for the purpose of Order 12 Division 3, in default. 

12.    In paragraphs 3 and 4 of his affidavit of service, Senior Sergeant Angopa says:

3.	On 2nd June 2017, at about 5:00pm I went to Enga Teachers College premises with three (3) other police officers and to the Defendant’s house where we located the Defendant and personally served on him the sealed copy of the Writ of Summons.
4.	The Defendant refused to accept the Writ of Summons so we read to him all paragraphs of the Statement of Claim and left the Writ of Summons in front of him and we left.

13.   He does not identify who, amongst the 4 of them, effected service of the Writ.

14.   Next, the statement of claim pleads:

1.	At all material times to this action;
(a)	The Plaintiff is an adult male capable of suing and being sued in his own name and style.  He is the Principal of Enga Teachers College.
(b)	The Defendant is also an adult male who can sue and being sued in his own name and style.  He is a Senior Lecturer at Enga Teachers College.
2.	On Monday 1st May 2017 at about 3:30pm, all of the Lecturers of Enga Teachers College had a Staff Meeting.  Before the meeting the Defendant started to act extremely violent and insulted the Plaintiff and his two deputies, Deputy Principal Administration and Deputy Principal Academic.
3.	The Defendant continued to use insulting and abusive words in the staff room which were extremely defamatory and threatening to the Plaintiff and his two deputies.
4.	The Defendant’s persistence use of insulting and abusive words against the Plaintiff and his two deputies in the staff room appeared to be unprofessional and humiliating so he was removed from the staff room by some male staff members using reasonable force.
5.	The Defendant then forcefully went outside of the college premises and teamed up with the local boys at the market place which is just close to the college gate and continued to utter insults and abusive words which were extremely defamatory to the Plaintiff.
6.	The Defendant accused the Plaintiff that he had without reasonable cause pushed for the termination of his wife who was a student at Enga Teachers College by the College Governing Council.  In fact the Plaintiff has nothing to do with the termination of the Defendant’s wife.
7.	The Defendant’s wife while a student at the Enga Teachers College secured scholarship funding through the European Union and the European Union has been paying her college fees until her termination by the College Governing Council.
8.	The termination of the Defendant’s wife from the College by the College Governing Council came as a result of recommendation by her sponsor, European Union upon citing that the education transcripts and certificates she submitted were fake, fraudulent and fabricated.
9.	The Enga Teachers College Governing Council terminated the Defendant’s wife based on the recommendation that came from European Union to terminate and criminally charge her for fabricating and falsifying educational documents and fraudulent use of same to secure scholarship funding of more than K9,000.00.
10.	The Defendant accused the Plaintiff without reasonable cause and the Plaintiff suffered irreparable damages to his reputation, his professional and community standing as the Principal of Enga Teachers College for many years and a longtime senior public servant.

PARTICULARS OF DEFAMATION

(a)	The Defendant without reasonable cause used the following words to insult and describe the Plaintiff in a public place, at the Irelya market, in front of a big crowd. (The market is just in front of the College gate).
(i)	“Michael Homingu practices witchcraft and he is a sorcerer.  He caused my daughter to break her arm” (yelling and screaming repeatedly say the same words many times at the market place).
(ii)	“Michael Homingu is a womanizer.  He is a pamuk”, (yelling and screaming repeatedly saying the same words many times).
(iii)	“He is an asshole and small boy.  He is bringing down the college.  He is a womanizer Principal and he is a bad Principal”, (yelling and screaming repeatedly saying the same words many times).
(iv)	“Michael Homingu is a bloody useless pekpek man, he is braining washing the lecturers,” (he used the “Fuck” word throughout his insults and abusive words on the Plaintiff).  Saying, “Principal you fuck, principal you fuck sorcerer, you pamuk womanizer,” (repeatedly saying the same words many times).
(b)	The crowd who heard the Defendant saying the insulting words and describing the Plaintiff were rather confounded and felt ashamed and many said he is a real monster who should not occupy the Principal’s position at the Enga Teachers College.
(c)	The Defendant even used threats against the Plaintiff when he said the following;
(i)	“You go to Hagen and Moresby, you are dead meat.  I will tell my Birip people to come to the college and kill you”.
(d)	The above statements were made at the Iralya market place in front of a big crowd.  The Plaintiff was severely traumatized by the highly charged offensive and humiliating language used by the Defendant and public insults against him in front of the entire community.
(e)	The Defendant’s statements were extremely defamatory on the Plaintiff in that the Plaintiff’s reputation was severely tarnished, his standing in the community and his professional standing as the Principal of Enga Teachers College was demeaned and degraded to level zero.
(f)	The Defendant’s statements have severely injured the Plaintiff’s good reputation which he has taken many years to build and accomplish and put into question his good character and totally dumped into rubbish bin everything good about the Plaintiff.

PARTICULARS OF LOSS

(a)	As a result of the Defendant’s baseless accusations, public insults and abusive language on the Plaintiff his reputation was severely tarnished.
(b)	The Plaintiff continues to live with the stigma concerning these false accusations, insults and abusive and defamatory statements against him.
(c)	The baseless statements by the Defendant have affected the Plaintiff in his professional life, his conduct and his overall performance as the Principal of Enga Teachers College.
(d)	The defamatory statements by the Defendant have highly humiliated and demeaned the Plaintiff as a longtime senior public servant and the Principal of Enga Teachers College, in which his reputation and standing cannot be easily repaired and restored.
(e)	The Plaintiff is severely traumatized by the highly charged public insults, abusive language and defamatory statements which he continues to live with it despite he continues to feel humiliated and not satisfied in terms of psychologically and emotionally.

15.   Generally, the statement of claim should plead the:

(a)	allegation of publication;
(b)	words complained of;
(c)	reference to the plaintiff;
(d)	defamatory meaning; and
(e)	allegation of damage: Atkin’s Court Forms, Second Edn., 1994 Issue, Vol. 25, para. 6, p. 93

16.   With respect to publication, the plaintiff must set out sufficient details to enable the defendant to know what the publication complained of is, and where it occurred. Thus he must plead, if possible, the date and, where appropriate, the place of publication, the words used and identify the person to whom the words were published: Atkins, para. 8, p.66. Order 8 r. 84 (a) provides –

84.    Particulars; Publications and innuendo. (67/2)
The particulars required by Rule 29 in relation to a statement of claim shall include—
(a)  sufficient particulars of the publications in respect of which the proceedings are brought to enable the publications to be identified; and
(b) ….

17.    With respect to the words complained of, the precise words alleged should be set out verbatim and in direct speech: Atkins, para.9, pp. 96-97

18.    With respect to a reference to the plaintiff, the statement of claim must allege that the words published and complained of were of the plaintiff. If the words do not expressly refer to or identify the plaintiff, the plaintiff must plead (1) the facts and matters upon which he relies as showing that the words were understood to refer to him; and (2) the identity of the persons to whom the words were published who knew those facts and matters at the time of the publication: Atkins, para.10, p. 70.

19.    With respect to the defamatory meaning, the plaintiff must plead the defamatory meanings which he alleges were borne by the words of which he complains whether those meanings are the natural and ordinary or the innuendo meanings. And, where such words are alleged to have both a natural and ordinary and innuendo meanings, such meanings should be pleaded in the alternative in separate paragraphs: Atkins, para.11, p. 71. 

20.   In South Pacific Post v Nwokolo [1984] PNGLR 38, the Supreme Court, at p.43, said:

In a defamation action based on direct defamatory imputation the plaintiff only has to set out in his/her statement of claim the words etcetera he/she relies upon and ascribe to them what natural and ordinary meaning is placed upon them.

21.   With respect to legal innuendos, Order 8 r. 84 (b) provides –

The particulars required by Rule 29 in relation to a statement of claim shall include—
(a)  …; and
(b) where the plaintiff alleges that the matter complained of was used in a defamatory sense other than its ordinary meaning—particulars of the facts and matters on which he relies in support of that sense.

22.    In this regard, the Supreme Court, in South Pacific Post v Nwokolo (supra), at p.50, said:

…where a legal innuendo is relied upon, then the relevance of extrinsic facts pre-1949 was a matter of evidence, whilst after 1949 it is a matter of both evidence and pleading. (Underlining added)

23.   That is, where a plaintiff alleges that the words he complains of bears a meaning other than its ordinary meaning which he says is defamatory, he must plead that meaning (legal innuendo) and the facts and matters which support it.

24.   Halsburys Laws of England, Fourth Edn. Vol. 28, (paras. 175 to 184 at pp. 93-98), and Bullen & Leake and Jacob’s Precedent of Pleadings, Eighteenth Edn., Sweet & Maxwell, (2016) Vol. 1 para. 37-14 to 37-19, pp. 699-701, also discuss these requirements. A form of the pleading, which brings these requirements together may be found in Atkins Form 44 at 162-163.

25.  As to the words complained of, in respect of being allegedly defamed in the staff room, the plaintiff does not plead the words which the defendant uttered in the staff room and ascribe to them the meanings which he alleges are defamatory.

26.    As to publication, of the alleged incident at the Irelya market, the plaintiff does not plead the name of the persons to whom the words were published. Each of Ms. Gemmel and Messrs. Turuk and Maigu, whose affidavits were relied on in support of the motion, appears to suggest -  but did not expressly say - that she or he heard the words allegedly uttered by the defendant. If the words complained of were published to each of these individuals, none of them was identified in the statement of claim.

27.    As to a reference to the plaintiff, of the alleged incident in the staff room, there is none as the words allegedly uttered and the defamatory meaning the plaintiff ascribes to them have not been pleaded.

28.    In applications for default judgment, the applicant is saying that the defendant has not complied with the Rules of Court and that therefore, the plaintiff is, as of right, entitled to default judgment. A Court hearing an application for default judgment, should not just ‘tick the boxes’ so to speak but must also review the Statement of Claim to see if the action is one where default judgment can be entered. … Even when proof of due service or process on a defendant or proof of the default is established by the plaintiff/applicant, the Court still has a discretion to refuse to enter default judgment in cases where, for instance, the effect of the default judgment would affect the rights of other co-defendants or do not disclose a reasonable cause of action or that the default judgment cannot be sustained in law: Lina Kewakali v The State (2011) SC1091, para. 23. See also Lambu v Torato (supra) per Davani, J & Cannings, J

29.   From the particulars set out under paragraph 10 of the statement of claim, it is clear that the claim is based on the alleged incident at the Irelya market. In respect of it, the evidence as to service of the Writ is vague, and the element of publication has not been sufficiently pleaded. For these reasons, I refuse the motion for default judgment.

30.   If, however, the plaintiff also relies on the alleged incident in the staff room to which paragraphs 2 and 3 of the statement of claim refer, the statement of claim does not plead the cause of action. For this reason also, I would refuse this relief.

31.    In the result, I dismiss the notice of motion filed on 12 September 2017 and, as it was heard ex parte, I make no order as to costs in respect of it. 

_____________________________________________________
Yobone & Co. Lawyers:  Lawyers for the Plaintiff  
 No Representation for the Defendant