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Papua New Guinea District Court |
PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]
CIV. 59 of 2020
ISIDOR SO-OR
(Complainant/Applicant)
-v-
BRUNO KIM, PETRUS KASIMER, JIM APEIT & SEBBY ASI PARINO
(Defendants/Respondents)
VANIMO: B. Fehi
CIVIL CAUSES OF ACTIONS – Claim pursuant to Defamation Act Section 3, Section 4, Section 5 and Section 24 – Claim pursuant to Section 209 of the District Courts Act – Orders under Section 22 of the District Courts Act – Allegation of Practicing Sorcery – Oral imputation – Physical confrontations – threats to do bodily harm or injuries – use of language indicating an intention to cause a breach of the peace – Defence of General denial.
PRACTICE AND PROCEDURE – Joinder of causes of action – Section 37 of the District Courts Act – Ancillary Orders pursuant to Section 22 of the District Courts Act – Relevant originating process – Complaint or Information or both - whether mandatory and requiring strict application Section 28 and Section 209 of the District Courts Act. Standard of Proof whether Criminal standard or Civil standard Section 213 of the District Courts Act
Statutes:
a) Defamation Act, Chapter293, 1962;
b) District Courts’ Act, Chapter 40, 1963;
c) National Court Rules;
d) Magistrate Manual of Papua New Guinea;
e) Constitution of the Independent State of Papua New Guinea.
Case law cited.
Representations:
Complainant/Applicant in person
Defendants/Respondents in person
26th January 2021
1. FEHI. B. DCM: This proceeding is commenced by way of a Complaint filed on 06th November 2020. The causes of actions appear in the complaint as follows:
“That on the 28th September 2019, 04th April 2020 and 24th June 2020 at Pewi Settlement Community, the first, second, third and fourth defendants had suspected, accusing, threatening and attacking the Complainant and his family members of practicing sorcery killing many lives back in the village and at Pewi Settlement. There were a continuous allegations and accusations against the Complainant and his family members.
Thereby, you had maliciously caused defamation to his character which affects him and his family members very much and as a Village Court Magistrate from his Village. He now seeks this court for you to compensate him for tarnishing and injuring his reputation again, personal character and his intimate relationship in the sum of K10, 000.00 in full under the Defamation Act 1962 and other related Laws.
AND: the Complainant being aggrieved and pursuant to Sections 209 and Section 22 of the District Courts Act prays for the following orders.........”
RECORD OF PROCEEDINGS
2. This matter was first mentioned before Senior Provincial Magistrate (SPM) S. Inkung on 26th November 2020. All the Defendants/ Respondents (D/R) denied the claim and direction issued for them to file their respective affidavits. Matter was next mentioned on 15th December 2020; D/R did not file their affidavits resulting in further adjournment to 12th January 2021. Matter was first mentioned before me and nature of complaint re-put to the D/R. All maintained their respective denials and further direction issued for filing of affidavits. Matter was then adjourned to 14th January 2021. All parties appeared and confirmed filing and service of affidavits on the Complainant/Applicant (C/A), thereafter, parties consented to have the matter set down for trial. Matter adjourned to and trial commenced on the 19th of January 2021. C/A opened his case, called his witnesses and all gave evidence on oath. Matter was then adjourned to 21st January 2021 were D/R responded through calling of their witnesses whom all gave evidences on oath. Parties closed their respective cases through their final statements.
3. Matter adjourned to 26th January 2021 for decision.
BACKGROUND
4. This complaint is connected to events that took place around the year 2013. The C/A a Village Court Magistrate (as he claimed himself to be) of the Sissano area was accused of practicing sorcery and blamed for the deaths in his village and the surrounding villages. This was to do with his status as a sole beneficiary to proceeds of forestry operations taking place (in the Sissano area) around that period of time. The accusation was made by one namely Fabien Savi, a person who claimed to have competing interest to the benefits with the C/A.
5. C/A and his family were subjected to accusations, threats, assaults and violent confrontations from their fellow villagers and those from the surrounding villages. This continued on for some time, they lost properties and received injuries at the hands of their accusers. Several attempts by authorities in Aitape to resolve this fell on deaf ears.
6. With no end in sight, the C/A moved with his family to Pewi Settlement, Vanimo Urban in the year 2019. The D/R are all permanent residents of Pewi Settlement. They were already there when C/A moved over with his family to settle.
7. The C/A and the D/R have prior existing relationships connected to their origins. All of them are from the villages around the Sissano area. This explains why they all resided at Pewi Settlement, an area predominantly populated by people from that part of Sandaun Province (Aitape West, Sissano Area).
8. Given the history surrounding the C/A, and the fact that he left the villages because of sorcery allegations, rumors were spreading around Pewi Settlement community. C/A claims the D/R through their respective actions were responsible for this. As such, he brings this proceeding before me against respective D/R.
PRELIMINARY ISSUE ON PRACTICE AND PROCEDURE
9. C/A in his originating process makes two (2) separate claims, one (1) for defamatory publications and the other for protective orders under Section 209 of the District Courts Act. I pose this question, whether it’s proper for me to deal with two (2) separate cause of action contained in one (1) complaint document. In my view Section 37 of the District Courts Act is relevant to such a proceeding. Section 37 is worded in these terms:
37. Complaint may be for one or more matter.
“A complaint may be for one or more matters of complaint.”
10. To avoid any ambiguity on its application, Order 5, Rule 1 (a) of the National Court Rules can be invoked to give more clarity to its applicability.
Order 5 – PARTIES AND CAUSES OF ACTION
1. Joinder of causes of action. (8/1)
A plaintiff may, in any proceedings, claim relief against the same defendant in respect of more than one cause of action –
(a) where the plaintiff claims, and the defendant is alleged to be liable in the same capacity in respect of all the causes of action; or
11. I am of the view that it is proper to accept the C/A complaint document containing two (2) cause of action subject to the above provisions.
12. C/A also invoked Section 22 of the District Courts Act. In my view, this provision enables parties to apply to the court seeking orders which are not specifically prescribed under acts of parliament or through any available cause of actions, it gives the courts (to a certain extent) discretion in its power to issue orders without unnecessary restrictions. Orders issued under this section operate in support of main orders following the determination of a substantive matter.
APPLICABLE LAW
13. C/A did not specifically make his claim under the relevant provisions of the Defamation Act. What appears on paper is a general defamation claim. Such oversights are common where parties’ appear in person without the assistance of a lawyer. Putting the claim into its correct perspective, Section 3, Section 4, Section 5 and Section 24 of the Defamation Act applies.
Section 3 states:
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, gesture or visible representations,
Publishes a defamatory imputation concerning a person defames that person within the meaning of this Act.
Section 4 states:
4. PUBLICATIONS
For the purpose 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,
With a view of its being read or seen by a person other than the person defamed.
Section 5 states:
5. PUBLICATION OF DEFAMATORY MATTER PRIMA FACIE UNLAWFUL
It is unlawful to publish defamatory matter unless the publication is protected, justified or excused by law.
Section 24 states:
24. DEFAMATION ACTIONABLE
The unlawful publication of defamatory matter is an actionable wrong.
14. Also C/A brings an action under Section 209 of the District Courts Act seeking protective orders. This section provides as follows:
209. INFORMATION PRAYING FOR SURETY OF THE PEACE
Where a written information is laid before a Magistrate that a person has-
(a) threatened-
(i) to do to the complainant or to his wife or child, or a person under his care or charge, bodily injury; or
(ii) to burn or injure his house; or
(iii) to commit a breach of the peace towards him or his wife or child or that other person, or to procure others to commit any such injury; or
(b) used language indicating an intention to commit any such breach of the peace or to do any such injury or procure it to be committed or done,
and that the complainant is in fear of the defendant, and the complainant prays that the defendant may be required to find sufficient sureties to keep the peace, proceedings may be heard under this part.
15. Other relevant sections of the District Courts’ Act supplementary to Section 209 are Section 211, Section 213, Section 214 and Section 215. Section 213 stands out as most relevant for actions brought under Section 209.
Section 213 states:
213. PROCEEDINGS ON APPEARANCE OF DEFENDANT
Subject to this Part, where a person appears or is brought before a Court under this Part the procedure and the powers of the Court are the same, and the provisions of this Act, with the necessary modifications, apply as on an information of a simple offence.
16. Section 213, in my view, lays out the process and procedure required to deal with actions under section 209. This provision is quite vague as it falls short of placing emphasis on which standard of proof to employ, be it beyond reasonable doubt or on the balance of probabilities. With reference to Section 209, the prescribed form is through an Information as opposed to a Complaint.
17. The C/A brings this action through a Complaint and not an Information as prescribed by Section 209 of the District Courts’ Act. I pose this question to find some form of clarity, that is, what originating process is proper for this action to be brought before the courts, is it strictly by way of an Information or by way of both Information and Complaint. Section 1 of the District Courts Act provides definitions for both the terms Complaint and Information.
Section 1 states:
1. INTERPRETATION.
“complaint” means a complaint other than a complaint for an offence, and includes an application and notice of set-off;
“information” includes a complaint for an offence but not any other complaint and does not include a traffic infringement Summons;
18. The definition of “Offence” provided by Australian Pocket Oxford Dictionary, 07th Edition is as stated
“Offence - 1. Illegal act; crime. 2.....................”
19. In my view, the above two (2) terms represent the mode of bringing actions to the District Courts. Parties before the courts used these pathways to pursue grievances; Section 28 of the District Court Act provides for this.
Section 28 states:
28. INFORMATION AND COMPLAINTS
Proceedings before a Court shall be commenced-
(a) by an information or a complaint, which may be laid by the complainant in person, or by his legal representative or other person authorized for the purpose; or
(b) by a Traffic Infringement Summons.
20. Respective provisions under Division 2 and Division 3 of the District Courts Act provides the distinction between this two (2) originating process. I accept that Complaint is more relevant for civil cause of actions and Information is relevant for criminal complaint.
21. Practice wise, all criminal complaints are prosecuted by the police. This power is clearly provided under Section 197 of the Constitution. They initiate the criminal process through filing Information before the District Courts. Information under Section 209 of the District Courts Act is for civilian prosecution, I am unable to locate within the District Courts Act any basis for use of Information other than that for criminal complaint accept Section 213 of the District Courts Act.
22. Section 213 attempts to link these two (2) modes (Complaint & Information); however, it appears to be ambiguous in practical application, vague in form and relevance. In my opinion, this process provided under the District Courts Act lacks clarity and because of this, I will accept that actions brought under section 209 can be instituted by a Complaint and not strictly through an Information alone. I make reference to and note Section 19C.2 (Grounds for invoking the Courts Jurisdiction) of the Magistrate Manual of Papua New Guinea, with respect I beg to differ from this accepted view, Police have the Constitutional function of prosecuting criminal complaints, they do this through the only mode available to them, that is, through an “Information”. Any use of the information apart from police prosecution must be clearly outlined procedurally free from confusion. As it is, I cannot be too sure on this.
23. It follows from the above that the required standard of proof will be a civil standard of proof on the “Balance of Probabilities”. I make reference to and note Section 19C.4.2 (Standard of Proof) of the Magistrate Manual of Papua New Guinea, with respect I also beg to differ from this accepted view, any standard less than, beyond reasonable doubt in my humble opinion falls into the category of the civil standard. There is no middle position between the two (2) standards. Criminal bearing a higher emphasis on evidence while civil is anything less than that standard.
EVIDENCE BEFORE THE COURT
A) COMPLAINANT/APPLICANT
Evidence of Applicant Isidor So-or
24. The C/A relied on his affidavit filed and dated the 04th of November 2020. He also gave oral testimony on 19th February 2021. The relevant paragraphs for my consideration are:
Paragraph #2: I am making this application in court as an emergency on the cause that my family members I have been continuously receiving threats, abusive and insulting words, attacks from dangerous weapons from the first, second, third and fourth defendants including their agents and servants from sorcery accusations since 2013 to this date.
Paragraph #7: The accusations of these sorcery allegations against me started in the year 2013 upon an ill feeling from one Fabian Savin from the same village on the cause that the Vanimo Jaya Company had been operating on my customary land in which my family members and I had been receiving good benefits out from the company rather than the rest of the villagers.
Paragraph #8: He started spreading the rumors around the village telling everybody that all the people that died in our village are being killed by me through my sorcery activities and that everyone must be aware of it that I am sorcerer.
Paragraph #19: In the year 2019, my family and I leave Sissano Village to resettle at Pewi Settlement, Ward 5 at Vanimo Urban LLG, Vanimo/Green District West Sepik Province.
Paragraph #20: Even after resettling here in Vanimo we than started receiving threats, attacks and abusive language again from this community of Pewi Settlement.
Paragraph #22: On the 28th September 2019 the first defendant at Pewi Settlement was under the influence of liquor, he came running to the house with his one (1) meter bush knife, but his knife was remove from him by his wife, but he used abusive and slang languages as quoted “KAN HUL! Ol Satan Sanguma lain, bai mi kilim ol”.
Paragraph #24: And at that same time, the second defendant supported the first defendant saying as quoted, “Em ol Sanguma lain yah, ol ronim ol na ol kam stap hia”.
Paragraph #27: Again on the 04th April 2020, I met the third defendant along the beach of Pewi Settlement, he warned me with his quoted remarks as, “whenever Noel Esai (Chairman of the Village Court) and I see him (third defendant) we must not kill him with the sorcery”.
Paragraph #28: And lastly on the 24th June 2020, the fourth defendant approached me at my resident at Pewi Settlement and told me whilst holding a manmade knife saying as quoted, “Yu noken raun long hap, sapos mi lukim yu wantaim ol pikinini bilon yu, bai mi katim yupla lon knife”.
25. The relevant segments of his oral testimony are as follows:
➢ “Lon eye blon Polis em tokim al polis alsem displa man Issidor wantaim family al lain lon ples ronim al na al kam stap lon Pewi”
➢ “mipla stap lon station, tuple admitim wanem wrong tuple I mekim. Al polis I advisim mi alsem mi mas kisim tuple kam lon kot lon bagarapim gut nem blon mi wantaim family, nau mi stap lon kot.”
➢ “Narapla toktok gen lon position blon mi alsem vilis kot Magistrate mi ken tok alsem mi Gazzetted Vilis Kot Magistrate.”
➢ “Blon narapla tupla Defendant nemli Jim Apeit em tok alsem lon period blon COVID19 em stap lon school lon Leitre displa em giaman toktok, em no tru. Lon 04th April 2020 Jim Apeit wokabout igo lon toilet lon Pewi em harem nois kamap lon baret klostu lon toilet blon em, ol pikininiblo mi sapim kanu klostu lon toilet blon Jim Apeit. Ol lukim em kam go insite lon toilet. Mi tu wokabout igo lon lukim ol pikinini sapim kanu. Distan em alsem les den 10 mitas. Em tokim mi alsem Isidor yutupla lukim mi noken kilim mi lon poisin sanguma. Ol pikinini blon mi taim ol harem alsem ol lukluk lon mi. Olgeta apidevit blon Jim Apeit em ino tru.”
➢ “Blo Sebby em alsem lon displa taim mi na chairman go lukim mi lon stretim pay blon mi. Lon avinun em tokim mi lon mitupla go lukim ol lain wokim wall lon runwei. Taim mitupla kam bek antap lon rot sebby em tu wokabout laik go lon nite sif alsem security. Mitupla tokim em “avinun tambu” na mitupla wokabout igo, em go sanap lon eria em ba kisim boat igo lon tambu blon em. Mi tokim Noel aslem displa hap bipo mi sa daip lone m, em rip yu noken daip alsem yu kam alsem. Ino lon taim mitupla lukim sebby ron wantaim tuat ikam bek igo lon haus blon em. Noel askim em, “tambu sumpla sumtin ron ah,” em kirap na em bekim alsem, “nogat mi lusim mobile pon”. Mi tokim Noel alsem mi ba lusim em na go bek lon haus blon mi lon Pewi. Mi kirap nogut lon monin, em kam na em singaut, em holim homemade busnaip na makim alsem lon solda mak blon em, em wokim displa taim mi na family sindaun toktok lon wok blon putim sak lain autsait lon solwara. Em holim naip na em makim lon mi na em tok, “yu noken raun lon hap, ba mi katim yu na al pikinini blon yu”. Ok mi kirap na pikinini kirap, em lukim na em ranawe. Taim mi go layim komplen lon polis stesen, ol polis tokim em alsem em ron lon kisim lo lon han blon em yet, em mas kotim mi sapos em lukim me ron. Em tokim ol polis alsem, “displa man, nem blon em nogut alsem na mi toktok lon katim em”.”
26. The C/A evidences were challenged by Jim Apeit on behalf of the others through cross- examination. The relevant exchange appears in the answer to question 3 of his line of questioning.
Q. 3: “Em tok continuous allegations, hamaspla taim mipla mekim ol pasin lon em, inap em givim record lon al pasin mipla mekim?
Ans: “Mi tok pinis, ol displa lain mi ba kotim ol stap lon wer. Lon algeta em wanpla taim tasol, Jim Apeit em lon 04th April 2020 em kolim mi alsem sanguma man. Displa hevi, pes man statim em Fabien, al kisim infomasen lon displa man, Bruno kim em bin drin na kam lon haus na paitim al pikinini blon mi. Sebby em tu wanpla taim, em kam approachim mi wantaim naip na tretenim mi wantaim family. Alsem na mi tok displa problem lon ples ol wokim lon hia, em alsem na mi tok, “continuous” minim. Toktok blon ples ol continue lon hia.”
27. The above are the evidences C/A gave in support of his cause of actions. Witnesses who appear in support of the C/A gave the following evidences:
Evidence of Witness Alphonse Sor-or
28. He only gave evidence through his oral testimony on 19th January 2021. The relevant segments of his testimony are as follows:
➢ “Lon 28th September 2020 mipla papa ol kam lon taun. Papa checkim account blon em, moni no kam na mipla go bek ken. Mipla go bek ken Bruno spark wantaim John Aio. Mipla go rausim ol sumtin na mipla sindaun lon arere blon haus stap. Bruno tok, “kaikai kan hul, Isidor poisin sanguma man.” Pinis em go antap kisim busnaip, karim kam daun, meri blon em pulim lone m. pinis em pulim palan, em ron kam em pulim skin saksak lon uncle Daniel. Em kam hapim tuple han em swin yah mipla kalap. Mi kalap lon sait, em lukim Selestine, em hapim Selestine blockim na em putim wanpla punch lon nose blon em.”
29. Witness evidences were challenged by Bruno Kim through cross-examination. The relevant exchange appears in the answer to question 3 of his line of questioning.
Q. 3: “Em tok mi karim bushnaip, haus blon mi, mi nogut lonpla busnaip, mi gat sotpla wuden hendel busnaip, sapos yu tok mi karim busnaip, wanem hendel blon em, plastic or wuden na kala blon busnaip tu?”
Ans: “Naip em holim na nau em laik dinaihim.”
30. That was all the witness gave in support of C/A.
Evidence of Witness Selestine Noku
31. He only gave evidence through his oral testimony on 19th January 2021. The relevant segments of his testimony are as follows:
➢ “Mi blockim skin saksak na mi givim wan punch lon pes blon em stret”
32. Witness evidences were challenged by Bruno Kim through cross-examination. All exchanges bear no relevance to respective parties position, therefore, unnecessary for me to re-state.
Evidence of Witness Martin Sor-or
33. He only gave evidence through his oral testimony on 19th January 2021. The relevant segments of his testimony are as follows:
➢ “Mipla sapim kanu stap, mipla lukim Jim Apeit kam go lon toilet. Papa kam behind lon mipla. Em kam Jim Apeit tokim em, “Yu wantaim Noel noken kilim mi lon Sanguma”.”
34. The Witness evidences were challenged by Jim Apeit on behalf of the others through cross- examination. The relevant exchange appears in the answer to question 2 and question 4 of his line of questioning.
Q.2: “Inap lon em tokim kot lon presense blon em, em sanap lon wanem hap stret na all lain husait isanap wantaim mi na papa blon em, taim mi mekim displa toktok lon papa blon em, em mas tokim nem blon ol?”
Ans: “Em wanpla em kam go lon toilet na mi witness blon mi em Carlos, Alphonse yet na Martha. Martha wokabout kam beksait lon papa na em harem.”
Q.4: “Lon statement blon Isidor em tok em bungim mi arere lon nambis, mi askim yu Martin, lon wanem actual location papa blon yu bin bungim mi na wokim displa statement?”
Ans: “Em lon rot igo lon toilet mipla algeta sa yusim, nambis istap tamblo, em lon hauslain mipla sa stap.”
35. That was all the witness gave in support of C/A.
36. C/A provided several documentary evidences without objections from the D/R, all of which in my view bear no weight to his cause of actions and to that extent are unnecessary for further deliberation. This concludes the evidence of the C/A.
B) DEFENDANTS/RESPONDENTS
Evidence of D/R Bruno Kim
37. Bruno Kim relied on his affidavit dated and filed on 11th January 2021. He also gave oral testimony on 21st January 2021. The relevant paragraphs for my consideration are:
Paragraph #1: That I did not and have not defamed him in any way unless he has his evidences to prove as to how, when and why and to what extent.
Paragraph #2: that the motive of his accusation is questionable in nature to me and rest of the others in summons because, first, he forgot to include the rest of the others who may have really fought, destroyed his properties and chased him out of the community from one village to the other since 2013 up to 2019 so I ask the Honorable Court and the Complainant Mr. So-or why implicate four (4) of us here and not the rest of those back in the village of Nimas, Amsor, Mainar and Manroin as they were the ones who tarnished his name and credibility as a person?
Paragraph #13: To wind off, neither I nor my wife or any of our family members or relatives had the chance to threaten, insult, harass the complainant or any of his family members and agents or destroyed any of his properties or materials either at Pewi Settlement or in town from 2019 up to to-date, your Worship.
38. The relevant segments of his oral testimony are as follows:
➢ “Mi behainaim stori blon affidavit blon me. Stori blon mi lon 28th September 2020. Em lon 3pm, mi na misis kros lon haus. Isidor em stare lon mi lon haus blon em lon nambis. Displa em mekim mi belhat so mi kisim meri blon m na tait lon em. Pikinini man blon em Alphonse, mi paitim Alphonse, mi holim nek blon em antap. Selestine kam na punchim mi lon pes. Al narapla brata blon em kam wantaim naip, tamiyok, banara, em nau mi lukim ol planti wantaim weapon na mi sarenda, mi sanap tasol. Laki ol lain stap lon aria na ol stopim mipla. Mi sanap stap na papa kam kisim mi go lon haus. Lon 30th June 2020, mipla putim komplen go lon polis station.”
39. The evidences were challenged by Isidor So-or through cross-examination. The relevant exchanges appear in the answers to question 3, question 4 and question 5 of his line of questioning.
Q.3: “Yu tok yu holim Alphonse lon nek blon em, mi sanap lon wanem hap tru?”
Ans: “Yu bin sindaun undinit lon lonpla post haus blon pikinini man blon yu Douglas na yu lukluk kam alsem lon mipla.”
Q.4: “Sapos yu no drin ba yu nonup kam pait alsem?”
Ans: “Displa taim mi no bin spark”
Q.5: “Blo wanem, taim mi lukluk stron lon yu alsem yu tok, yu no laik ripotim na why yu kam lon pait lon mi, lon wanem?”
Ans: “Lon displa, frustration mekim na mi go daun.”
40. This concludes what the D/R had to say in his defence.
Evidence of D/R Petrus Kasimer
41. He relied on his affidavit dated and filed on 11th January 2021. He also gave oral testimony on 21st January 2021. The relevant paragraphs for my consideration are:
Paragraph #4: That I only accused of saying the words put in pointer #24 which I did not say.
Paragraph #5: I only followed Bruno Kim to the Police Station to witness what the complainant’s sons did to him on the 29th of September 2020 at Pewi nambis Settlement with armed tools and supported Bruno when complainant and his sons talked over Bruno covering the truth of their armed presence around Bruno on Saturday 29th September, Your Worship.
42. The relevant segments of his oral testimony are as follows:
➢ “Brata Isidor em salim pikinini meri blon mi Miriam lon kam kisim mi go lukim em. Mipla sindaun em toksave lon mi. Em tokim mi lon summons na apidavit blon mipla, em tok sapos yu wanbel me ba cancellim case blon yu. Mi tokim em nogat bicos apidavit blon mi stap pinis lon kot na mi mas sanap lon kot, mi ba nonup cancelim displa. Ol pikinini blon em tu tokim mi lon witdro lon kes na mi to nogut na mi stil sanap lon toktok nogat blon mi.”
43. Witness evidences were challenged by the C/A through cross-examination. All exchanges bear no relevance to respective parties position, therefore, unnecessary for me to re-state.
44. This concludes what the D/R had to say in his defence.
Evidence of D/R Jim Apeit
45. He relied on his affidavit dated and filed on 11th January 2021. He also gave oral testimony on 21st January 2021. The relevant paragraphs for my consideration are:
Paragraph #9: That at the time of his arrival at Pewi (complainant’s affidavit pointers # 19 in the summons document), I was at Leitre Primary School although I have a residential property at Pewi.
Paragraph #11: That I was not present at the time – 04th April 2020 as I was at Leitre Primary School (refer to two statements attached herewith – students reps and school Board of Leitre).
Paragraph #12: That, that moment was an imposition of “First COVID19 lock down” in West Sepik and I was not in Vanimo or Pewi as he claimed in his (complainant) affidavit point #27.
Paragraph #13: His timing and his quoted remarks at point #27 is false, untrue and self-made against me for unknown reasons in-dignifying me and my profession, and instead this court MUST DO JUSTICE on my behalf against him for tarnishing my character.
Paragraph #14: That the time I came over to Vanimo town which I am 100% sure of is on 24th June 2020, and I went back to Leitre on the 26th day of June 2020.
Paragraph #15: That the only time I saw and met face to face with the complainant at Pewi was on 26th June 2020, when I was on my way to our house at Pewi from town before getting a boat back to Leitre.
Paragraph #16: And Your Worship, the only MOMENT I talked with him was at the time I met him on my way to the house as mentioned above, my talk to him was a friendly and frank remainder that “Sapos yu save alsem yu brata blon mi na yu gat bel- hevi, yu kam kamap lon mi na autim bel-hevi o wanem tintin yu gat long en. Me yet mi nogat kros or hevi wantaim yu. Mi no laik yu lukim mi alsem enemi bilon yu na yu alsem enemi bilong mi”.”
46. The relevant segments of his oral testimony are as follows:
➢ “Lon date 26th June 2020, em date wer mi toktok wantaim Isidor arere lon haus blon mi. mi no lukim wanpla pikinini man sanap. Dolly ibin stap wantaim ol pikinini blon mi yet. Ol stori Martin givim lon Tuesday em ol giaman stori.”
➢ “Toktok stap lon apidevit #16. Toktok mi mekim em blon halivim em alsem lida na magistrate lon stretim hevi alsem mi statim lon apidevit blon mi. mi tinim alsem em brata blon mi na lida tu so em ken stretim lon gutpla wei. Mi yet me nogut kros or hevi wantaim em, mi mekim displa toktok lon ai blon Dolly.”
➢ “Lon Provincial Restriction Order, COVID19, after upliftim displa restriction, ol bin allowim general public lon normal business blon all em lon Monday, Wednesday na Friday. Alsem na behainim displa oda mi kam lon 24th June 2020. Thursday mi stap na Friday 26th June 2020 mi toktok wantaim Isidor na mi go.”
47. The evidences were challenged by Isidor So-or through cross-examination. The relevant exchange appears in the answer to question 2 of his line of questioning.
Q.2: “Displa meri yu kisim wer na putim em lon hia, mi no lukim Dolly lon displa taim?”
Ans: “Taim Isidor kamap mi bungim em arere lon haus blon mi, pes meri lon kamap em Dolly, second em ol pikinini blon mi na ol tambu blon mi.”
48. This concludes what the D/R had to say in his defence.
Evidence of D/R Sebby Asi Parino
49. He relied on his affidavit dated and filed on 11th January 2021. No oral Testimony provided by him. The relevant paragraphs for my consideration are:
Paragraph #1: The complainant’s allegation statement (pointer #28) happened not on 24th June 2020 as state therein rather on 30th June 2020 (Sunday) and it was because he and Noel Lissai did something to me and I have to approach him and confront him face to face at his residential area.
Paragraph #2: Though I took with me a short homemade bush knife, with me, I did not use it to threaten him but told him as quoted, “Mi lukim yu lon hap, bai mi katim yu lon naip.” This was my true statement to him alone, excluding his family and children and Noel Lissai, only him.
Paragraph #3: The aggravating factor was that the complainant and his colleague Noel Lissai, in the afternoon around 4:00pm to 5:00pm jumped across my walk way along Airport drainage near Pewi blocking me for unknown purposes while I was on my way to night shift duties as security personnel with Vanimo Forest Company.
50. Witness Affidavit evidences were challenged by the C/A through cross-examination. All exchanges bear no relevance to respective parties position, therefore, unnecessary for me to re- state.
51. This concludes what the D/R had to say in his defence
Evidence of Witness Dolly (Mary Sino)
52. She only gave evidence through her oral testimony on 21st January 2021. The relevant segments of her testimony are as follows:
➢ “Em alsem tuple brata yet, tuple no kros bikpla. Tuple stori liklik. Brata Jim tokim brata Isidor alsem yu gat hevi, yu stretim isi. Brata Isidor nogat pikinini blon em sanap. Tupla yet. Brata Jim go lon haus na brata Isidor go lon toilet.”
53. The evidences were challenged by Isidor So-or through cross-examination. The relevant exchanges appear in the answers to question 1, question 2 and question 4 of his line of questioning.
Q.1: “Taim mitupla Jim toktok yumi stap lon wer?”
Ans: “Haus blon uncle Kevin, lon hul wara blon em, mi sanap klostu lon yu nay u lukim mi.”
Q.2: “Em stret yu sanap namel lon mitupla?”
Ans: “Mi sanap sait lon yu.”
Q.4: “Em stret, yu tok em go lon haus na kam go toilet?”
Ans: “Yu go lon toilet na em go lon haus.”
54. This concludes what she had to say in support of the defendants.
Evidence of Witness Thomas Apeit
55. He only gave evidence through his oral testimony on 21st January 2021. The relevant segments of his testimony are as follows:
➢ “Lon displa time mi yet alsem bikpla pikinini man blon em, ol liklik blon mi stap lon kitchen stap arere lon rot. Mipla olgeta lusim kitchen na go sanap sait lon Dolly. Dolly em pes meri lon sanap na mipla putim ear lon conversation blon tuple. Taim mipla sanap, nogat mor narapla lain sanap lon sait lon putim ear tu lon conversation. Ol pikinini blon Isidor tu ino bin present lon displa taim. Lon toktok ikam aut lon maus blon Jim “supos yu lukim mi alsem mi brata blon yu na yu gat wanem belhevi wantaim mi, yu kam facim mi lon haus na mitupla toktok na stretim.” Displa toktok kamap lon avinun bipo lon Mr. Apeit igo bek ken lon school.”
56. Witness evidences were challenged by the C/A through cross-examination. All exchanges bear no relevance to respective parties position, therefore, unnecessary for me to re-state.
57. This concludes what he had to say in support of the defendants.
Evidence of Witness John Aiyew
58. He only gave general statements through his oral testimony, not necessary for my consideration.
Evidence of Witness Anna Kasimer
59. She only gave general statements through her oral testimony, not necessary for my consideration.
60. Several documentary evidences tendered by the D/R with consent lack convincing information on contentious issues. Therefore it is unnecessary for me to deliberate further on their respective contents. I accept these evidences as they appear without emphasis.
FACTS NOT IN CONTENTION
61. Listed hereunder are facts which both parties agree on. These facts are not relevant to respective parties conflicting positions.
IRRELEVANT ARGUMENTS
62. Parties have raised several arguments which in my view have nothing to do with the cause of action and available defences. These arguments involved contesting of issues too remote to require my attention. The arguments are as follows:
RELEVANT ISSUES
ASSESSMENT OF EVIDENCE
A. Whether the Respondents’ published defamatory remarks against the Applicant?
63. This cause of action is brought pursuant to the Defamation Act. The C/A must prove on the balance of probabilities acts of defamation complained of. Courts over the years have developed assessment criterion for dealing with defamation claims. Case laws developed by the Courts identified and established, inter alia, elements of defamation. I consider it necessary to layout the elements before applying the evidence to assess the claim. In doing so, I make reference to and adopt the observation by His Honor Cannings in the case of Chilelle v. Mafu [2015] N5942. His Honor laid out in paragraph 5 of his judgment the following:
5. “The elements of a cause of action in defamation are that:
64. His Honor in that case dealt with issues surrounding publications of two (2) documents. In this matter before me, the claim concerns verbal publication. The C/A claimed the D/R each and severally made defamatory imputations against him. I pose these questions to better deal with the elements:
C/A in paragraph 22 of his affidavit depose to Bruno saying, “KAN HUL! ol Satan Sanguma lain, bai mi kilim ol”. Witness Alphonse in his oral testimony said this in support, “Bruno tok, kaikai kan hul, Isidor poisin sanguma man”. These were the only evidence provided by the C/A implicating Bruno.
Bruno denied making these statements and instead referred this court to prior incidents of similar nature perpetrated by members of C/A village and those of the surrounding villages. C/A in his attempt to disclose to this court his prior predicament corroborates Bruno’s evidence, if it weren’t so, such would be considered hearsay. C/A in paragraph 2, paragraph 7, paragraph 8 and paragraph 19, gave detailed version of how and who made those defamatory statements against him. It is clear from his evidence that Fabien Savin was the one who spread rumors alleging C/A engaging in the practice of sorcery and responsible for the deaths of persons in his own village and those of the surrounding villages.
There is high probability that Fabian Savin was the maker and source of this sorcery allegation concerning the C/A. He is somewhat responsible for making defamatory imputations against the C/A, he is also the one to whom inference can be drawn, to have published this defamatory imputation. If there is any claim on the premise of defamation, it would be proper for the C/A to bring proceedings against Fabian Savin and not Bruno Kim.
b) Did Petrus Kasimer made defamatory imputations against the C/A?
I adopt the position taken in addressing C/A claim against Bruno to answer in the
negative.
c) Did Jim Apeit made defamatory imputations against the C/A?
Complainant in paragraph 27 of his affidavit deposes to Jim saying, “Whenever I and Noel Esai see him, we must not kill him with sorcery”. This evidence does not amount to an imputation that would be deemed defamatory in its form and content. All other evidences provided by the C/A to that extent, disclosed nothing to further implicate D/R Jim.
d) Did Sebby Asi Parino made defamatory imputation against the Complainant?
Complainant in paragraph 28 of his affidavit depose to Sebby saying, “Yu noken raun lon hap, sapos me lukim yu wantaim ol pikinini bilon yu, by mi katim yupla lon naip”.He also testify in court to Sebby saying, “displa man, nem blon em nogut alsem na mi toktok lon katim em”. This evidence does not amount to an imputation that would be deemed defamatory in its form and content. All other evidences provided by the C/A to that extent, disclosed nothing to further implicate D/R Sebby.
65. In line with the above assessment, it is unnecessary for me to address the other elements of Defamation as per Chilelle v. Mafu (supra).
B. Whether the D/R each and severally threatened or indicated an intention to, cause a breach of the peace to C/A and his family?
66. This cause of action is brought pursuant to Section 209 of the District Courts Act. Onus is on the C/A to provide evidence and prove his claim on the balance of probabilities. I am interested in evidence that discloses remarks indicative of an intention to incite trouble leading to verbal or physical confrontations. Provided that, all these acts are intended for the C/A, his wife, children or to those persons under his care or charge. Any evidence other than that, are irrelevant for my consideration. I pose these questions to better deal with the respective claims against each D/R.
C/A in paragraph 22 of his affidavit deposed that Bruno’s behavior at all material times on the 28th September 2019 caused reasonable apprehension of fear towards him and his family. That is, Bruno was armed with a bush knife, while intoxicated and saying that he would kill them all. C/A description of the events on that day were corroborated by oral testimonies of Alphonse Sor-or and Selestine Noku.
In response Bruno only gave evidences futher corroborating the events as described by C/A and his witnesses.
ii. What evidences provided by the C/A implicates D/R Petrus Kasimer?
C/A in paragraphs 24 of his affidavit deposed to Petrus making provocative remarks indicating an intention to commit breach of the peace. He also testify to same, in court. His evidences were the only ones implicating Petrus.
iii. What evidences provided by the C/A implicates D/R Jim Apeit?
C/A in pargraph 27 of his affidavit deposed to Jim making provocative remarks indicating an intention to commit breach of the peace. He also testify to same, in court. Witness Martin Isidor testify corroborating the C/A. their evidences were the only ones implicating the D/R Jim.
In response, jim through his affidavit and testimony gave a different version of events. Paragraphs 9, 11, 12, 13, 14, 15 and 16 of his affidavit described in detail his whereabouts at all material times. Annexed also are standard official documents and statements from authorized statutory bodies to that effect. He claimed to have met C/A on the 26th June 2020 and not the date C/A mentioned. His response to what was mentioned during the meeting was clear and sensible, unlike the version provided by the C/A. witnesses Dolly and Thomas Apeit corroborated D/R version through their respective testimonies.
iv. What evidences provided by the C/A implicates D/R Sebby Asi Parino?
C/A in paragraph 28 of his affidavit deposed that Sebby’s behavior at all material times, caused reasonable apprehension of fear towards him and his family. That is, Sebby was armed with a bush knife and saying that he would cut them if he sees them around. His evidences were the only evidences implicating Sebby.
Sebby in response only provided evidence corroborating the C/A version.
FINDINGS:
67. I make my findings after taking into consideration all the evidences provided before me and addressing the identified issues by conducting assessment of respective party’s position based on the relevant laws.
68. On the issue of whether the D/R published defamatory remarks against the Applicant, I find his claim to be absurd in its entirety. C/A relied on flimsy evidences against respective D/R. He failed to produce before me quality evidences, all his evidences lacked clarity, in so far as the elements of defamation are applicable. All his arguments are vague in the context of this cause of action and therefore his claim must fail.
69. Secondly, the issue of whether the D/R , each and severally, threatened or indicated an intention to, cause a breach of peace towards the C/A and his family. I find this cause of action to be relevant under the circumstances. There appears to be a mixture of evidence with varying degree of credibility for and against each D/R subject to their respective part as claimed by the C/A.
70. I find in favor of the C/A and accept all his evidence as truthful and coherent establishing respective claims against D/R Bruno Kim and Sebby Asi Parino. Despite some minor inconsistencies concerning the dates, the rest of his evidences were corroborated by the D/R. I accept the C/A version of events to be truthful in all its description.
71. However, I find no credible evidence against D/R Jim Apeit and Petrus Kasimer. C/A failed to provide sufficient evidence to establish his claim against both.
72. On a general note, I would like to make mention of the belief in the practice of sorcery. Throughout the course of this proceeding, I find there to exist, a deep rooted belief in this practice amongst the parties, more so, on the D/R, their respective extended families, and the community at large of Pewi Settlement. Suspicion is rife and the residents are very sensitive to rumors of that nature. In my view members of the community have high tendency to react unpleasantly to those rumored of practicing sorcery. Therefore, to do justice under the circumstance, I consider it appropriate to include as part of my orders warnings in the form of Court Orders to members of Pewi Settlement Community, those who intend to part-take in future provocative behavior, that is, spreading of rumors and implicating C/A and his family in allegations of practicing sorcery.
CONCLUSION
73. In conclusion, it is important for Clerk of Courts together with the endorsing Brother or Sister Magistrates to ensure originating documents are in their correct form containing appropriate cause of actions before signing and registering them. This court is popularly known as the “Court of the People”, ordinary people use our services and such is our duty to ensure this is done.
74. Section 37 of the District Courts Act allows for two (2) separate causes of actions in one (1) Complaint document, therefore, I accept this position as proper and without irregularities.
75. The use of an Information for civilian prosecution pursuant to Section 209 and Section 213 of the District Courts Act is ambiguous in form and application. Therefore, I accept complaints for surety to keep the peace and be of good behavior through a Complaint Document. In my humble view, the requirement of an Information is not a strict requirement.
76. C/A claim pursuant to the Defamation Act fails in its entirety for being absurd and baseless.
77. D/R Bruno Kim and Sebby Asi Parino, have both threatened the C/A and his family and also they both indicated an intention to cause breach of the peace towards them. C/A has conclusively proven his claim against both D/R on the balance of probabilities.
78. C/A claims against D/R Petrus Kasimer and Jim Apeit lack convincing evidence and therefore must fail.
79. Belief in the practice of sorcery is deeply rooted in the community of Pewi Settlement, an area in Vanimo Urban predominantly populated by people from Sissano, Aitape West Coast. Members of the community have a high tendency to react unpleasantly to persons rumored of practicing sorcery. C/A and his family are vulnerable to that kind of behavior, as such; it is necessary and just for orders in the nature of general warning to be issued to prevent a repeat of what happened from 2013 to 2019.
80. I hereby issue the following orders to bring this matter to its end:
COURT ORDER:
1. Judgment order made against defendant Bruno Kim and Sebby Asi Parino;
2. Pursuant to Section 22 of the District Courts Act, Judgment order made to the members of Pewi Settlement Community, warning against any provocative behavior through spreading of rumors implicating Complainant/Applicant and his family practicing of sorcery;
3. Defendants Bruno Kim and Sebby Parino are persons with tendency to cause to the Complainant/Applicant and his family bodily harm and injuries amounting to a breach of the peace;
4. All residents of Pewi Settlement Community between the ages of 16 years to 60 years and living without any form of physical disability are required to ensure order 2 above is observed and complied with;
5. Defendants Bruno Kim and Sebby Parino pursuant to Section 214 (b) of the District Courts Act are required to enter into oral recognizance without cash sureties and to keep the peace and be of good behavior bond for a period of 2 years towards the Complainant/Applicant and his family;
6. Within that period Defendants Bruno Kim and Sebby Asi Parino are restrained from assaulting, insulting, abusing, intimidating or harassing the Complainant/Applicant and his family at any place, anywhere and anytime during the aforesaid period;
7. Ward Member responsible for Pewi Settlement is required under my direction to ensure Orders 2 and 4 are observed practically. In the event of a complaint by any member of Pewi Settlement Community regarding Complainant/Applicant and his family’s suspicious behavior, the complaint must be dealt with through mediation, to be organized by him;
8. Any breach by defendants Bruno Kim and Defendant Sebby Asi Parino to be brought before the Court , to be further dealt with according to law supported by an affidavit and moved by way of a motion; and
9. Any ignorance by members of Pewi Settlement Community to be brought to the Police Station for possible criminal charges to be laid with these orders as admissible evidence before the Court.
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