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Gombura v Tupota [2021] PGDC 210; DC7069 (11 November 2021)

DC7069

PAPUA NEW GUINEA.

[IN THE DISTRICT COURTS OF JUSTICE

SITTING IN ITS CIVIL JURISDICTION]
DCC NO: 116/2021


IN THE MATTER BETWEEN:


  1. ALBERT GOMBURA.
  2. EZEKIEL GOMBURA.
  3. ANDREW GOMBURA.
  4. JOHN GOMBURA.
  5. JONNAH GOMBURA
  6. NICK TINGASIPA.
  7. ROGER KIVIGI
  8. JOSEPHINE AIKO

Complainants


AND:


  1. ELMA TUPOTA.
  2. ROBERT TUPOTA.
  3. DANIEL JAVIRIPA.

Popondetta: Michael W. Apie’e


2021: November 11th.


CIVIL PROCEEDINGS. Claim compensation for defamation of Character by imputation of practicing sorcery


Cases Cited:


References:
District Court Act.
Defamation act


Representation:
Nick Tinagasipa for the Complainants.
Elina tupota for the Defendants.


JUDGEMENT ON TRIAL.
Background.
Complainants case.

  1. The Complainants filed a claim of defamation against the Defendants and through their affidavit by Nick Tingasipa dated 04/03/21 stated as follows that;
    1. When the late Aubrey Tupota of Soputa Village in Popondetta Northern Province was taken ill, the Defendants consulted a Soothsayer’or ‘Glass-man’ ‘named Mr. Francis in Bulolo Mrobe Province through Mobile telephone and he began to give all manner of instructions to the Defendants about what had happened to their brother, including calling his spirit back and giving a String bag ‘Bilum’ of food buai and Smoke to something or someone.
    2. When Aubrey Tupota’s Condition did not improve the said Glass-man named Mr. Francis then called out the first Complainants names as the suspects Responsible for the condition, and they were brought in to lay hands on him as instructed by the Glass-man but to no avail.
    3. When the Condition still did not improve, the same glassman then called the also called the 6th, 7th and 8th Complainants name as also responsible, alleging that the 7th Complainant was having sex with the 8th Complainant who was Aubrey’s Wife who had passed on some pieces of Clothing to the late Aubrey that led to his conditions.
    4. The matter was referred to the Zone 3 Village Court to mediate, but while mediation was still going on the Defendants line went and destroyed food gardens and broke and entered premises belonging to Complainants Albert Gombura and Roger Kivigi.
  2. All these things came about because the Defendant solicited and requested information from a Glass-man named Mr. Francis who fingered the Complainants.

Defendants case.

  1. The Defendants on the other hand through the Affidavit of Elma Tupota state as follows that;
    1. In 2019 when Aubrey Tupota got sick they brought him to the hospital but even the hospital could not help him so their family suspecting that his condition was sorcery related they resorted to seeking non-conventional help through customary practices.
    2. During that time, they consulted with the said ‘Glass-man’ Mr. Francis in Bulolo via mobile phone and within earshot of the gathered people through Phone Speaker, Mr. Francis called out the Gombura Family and also Roger Kivigi.
    3. The Defendant claim they only heard this and did not do anything, but somehow the Complainants got wind of this conversation with Mr. Francis and started arguing with the Defendants family.
    4. On Friday 18/06/21 at around 5pm, Jonah Gombura entered the Defendants premises whilst under the influence of Alcohol and issued threats and started arguments with the Defendants family which ultimately resulted in a Fight involving both sides which led to the death of the said Jonah Gombura, and also one Tony Tupota Junior.
    5. The Court Takes Judicial Notice that the suspects in the Killing of Tony Tupota Junior have being committed to the National court and the Suspect in the killing of Jonah Gombura is are still undergoing Committal Process before the District Court here in Popondetta.
    6. As a result of all this ‘Glass-man’ named Mr. Francis, Lives and Properties have been lost by both sides.
    7. The Defendants also claimed that they never did anything to defame the Complainants but only heard the Mr. Francis name them as suspects in Aubrey Tupota’s death.
    8. The Complainants over reacted to their names being called and did all these Damages.

Observations:

  1. The Defamation Act describe Defamation in Section 3 as follows
    1. 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.


  1. The naming of the Complainants and attributing of Specific Acts to them was done by this so called Soothsayer or Glass-man named Mr. Francis in Bulolo Morobe Province.
  2. Even the Complainants state in their Claim that it was this Mr. Francis from Bulolo that called out their names in respect of the death of Aubrey Tupota, not the Defendants.
  3. Did the Defendants Publicize the Allegations of Sorcery as required under section 4 of the Defamation Act? This is not clear but the most gather from the Affidavits relied on, it seems some people over heard the mobile phone conversations and then told the Complainants about it.
  4. So as per the requirement under Section 4 of the Defamation Act, it was the people that took this report to the Complainants that publicized these Defamatory utterings by Mr. Francis, not the Defendants.
  5. Also, the Alleged Defamatory statements are made by this Glass-man Mr. Francis in Bulolo and if anything he should by the subject of this suit rather than the Defendants.
  6. The most the Defendants did in this instance was being gullible enough to listen to this Soothsaying Conman and taking his nonsense to heart.
  7. If the Defendants had realized, when he told them that Late Aubrey Tupota’s Spirit could be called back or that they had to give a string bag of Beetle-nut and smoke with food, that he was probably having them on, then none of these would have happened.
  8. The Complainants filed their claim against the Defendants on Monday the 07/09/20 and were attending court faithfully, but then on the 18/06/21 at 5.00pm one Jonah Gombura who was possibly a Complainant in this case went to the Defendants and started an argument that ultimately led to a fight ensuing in which he lost his life with one Tony Tupota Junior also being killed.
  9. Suspects in the Killing of Tony Tupota Jr. have been committed to the National Court whilst the suspect in the killing of Jonah Gombura is still undergoing his Committal process.
  10. What is troubling to me in this circumstances is that the Complainants have filed suit before the District Court on 07/09/20, then one of the Complainants himself instigates a fight later on the 18/06/21 that leads to his own death and also that of another person.
  11. Talk about ‘taking the Law into your own hands.’
  12. The Complainants or at least one of them not only took the Law into his hand, but by doing so it has brought disrespect to the Processes of the Court and has compounded this matter to a degree wherein their initial grievances filed in this court is now super-ceded by deaths and destruction.
  13. The Complainants through Nick Tinagasipa still want to pursue this matter to the end seeking compensation for Defamation.
  14. Talk about ‘Having your cake and eating it too’, the Complainants have not only taken the Law into their own hands, but they also want the same law that they chose to disrespect to give then redress for a claim of Defamation that cannot be sustained under the Defamation Act in this court.
  15. Additionally, the Village Court Proceedings in this matter was still pending before the Zone 3 Village Court when the matter was filed in the District Court on the 07/09/20.
  16. In the Final Analysis the court will rules as follows that;
    1. The Complainants Claims of Defamation against the Defendants cannot be sustained as the Defendants did not Defamed the Complainants themselves in the strict definition of the Defamation Act in Section 3 as the Defamatory matters were primarily uttered by the Glass-man named Mr. Francis from Bulolo via mobile phone.
    2. Publication of these defamatory matters was in turn done by those that reported to the Complainants and not the Defendants themselves as per section 4 of the Act.
    3. Also, any claim of defamation or civil redress potentially available for the Complainants has being over shadowed and over taken by one of them taking the law into his own hands and starting a fight in which he lost his life as well another life being lost on the other side and properties destroyed and lost also by both sides.
    4. This matter was before the Village Court, when the Complainants brought it up to the District Court on the 07/09/20, then on the 18/06/21 the trouble erupted in which lives and property is lost.
    5. In relation to outstanding civil issues emanating from the history of this case, the parties ought to go back to the Village Court to resolve this matter, as this court considers that this matter has progressed far beyond the scope of the Civil Redress for Defamation.
    6. Whether this Glass-Man Mr. Francis will come from Lae to explain himself, which I doubt, remains to be seen given that his idiotic utterings as resulted in death and destruction.
  17. Accordingly, the Court Adjudges and will Order as follows;
  1. Complainants claims against the Defendants is refused.
  2. Parties to return their various issues back to the Zone 3 Village court to deliberate on.
  3. No orders on costs.


Nick Tinagasipa for the Complainants.
Elina tupota for the Defendants.


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