Kongum v Kaku [2000] PGDC 14; DC126 (25 April 2000)

DC126

PAPUA NEW GUINEA

[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 2124 OF 99

BETWEEN

DANIEL KONGUM
Complainant

AND

MOSES KAKU
Defendant

Mr. Iova S. Geita
27 January
29 February
7, 28 March
24 April 2000

COUNSEL
Complainant in Person
Defendant in Person

REASONS FOR DECISION

GEITA. I. S. - The complainant is suing the defendant for unlawful assault and subsequent loss of one tooth. I am satisfied that there is ample evidence from the complainant and his witnesses to show that the defendant did assault the complainant who lost one tooth. This is also evidenced by the defendant himself who admitted in cross-examination that he assaulted the complainant.

The defendant has denied in his statement of any assault on the complainant. The defendant's demeanour is observed and I am not convinced that he is a witness of truth. His evidence is contradictory.

The defendant however has also failed to neither produce witnesses nor witness affidavits in court. He claims his key witnesses are policemen and have been posted out of Port Moresby.

On the evidence before me I find there is sufficient evidence to show that the defendant assaulted the complainant. The complainant's father in law witnessed the beating in the house and told court what he saw in cross-examination by the defendant. He saw defendant hit the complainant. The complainant's wife also told the court about seeing complainant in blood at the back of a police van on their way to Badili Police Station.

Although the defendant has tried vigorously to deny assaulting the complainant his version cannot be believed. His version is not supported by evidence. I say this because during cross- examination at question No .4 (Defendant to Complainant) I quote: -

"When I came with Police I punched you, what do you say and broke your teeth?

Answer:

"On 12 January 1999 I was charged and was in court. Because I was in court I did not take him to court. That is why the delay was."

Question 5

"When I broke your tooth, can you show court?

Answer:

"I swallowed tooth during the fight as two policeman were harassing me"

During re-examination at question No. 1 (Complainant to Defendant) I quote: -

"You know that I live in your house. I was summonsed why did you hit me in front of Police?

Answer:

"You stole my wife."

Question 6:

Where are your Police witnesses?

Answer:

"Mi no save."

With regards to the defendants police or state witnesses not being called or given an opportunity to give evidence, Court minutes of 28 March 2000 is self-explanatory in that every opportunity was given to both parties to give affidavit evidence or call witnesses. I quote defendant: -

"I am satisfied. I have witnesses in Court. "During re-examination Moses Kaku said I quote: "No more witnesses to cross-examine as they are not available."

Court minutes of 7th March 2000 and File minutes of 31 January 2000 will clearly show that every possible opportunity was afforded to the defendant to give evidence or call witnesses. In fact the court has been too generous here in that it vacated set date for decision on 7 March 2000 to 28 March 2000 and instead invited both parties to bring along their key witnesses to give evidence and for court to be given an opportunity to question and satisfy itself prior to make a ruling on the complaint.

For the defendant to come back and point fingers at the court for denying him justice is considered an act of falsehood.

I am mindful of the fact that the doctor's report was prepared almost 5 weeks after the incident (12-1-99). In any event there is no doubt that some form of assault occurred and the defendant in the company of some policemen carried out that assault. There however is evidence that police nit not assault the complainant. The end result is that it was the defendant who assaulted the complainant in the presence of police personnel. I therefore find for the complainant.

Since the assault and damages is not quantified I am unable to give an accurate assessment of damages suffered. However under the circumstances and in given situations I am satisfied that the complainant suffered greatly under the hands of the complainant. He also suffered great humiliation as the assault was inflicted in the presence of police personnel who happen to be the defendant's tribesman and who attended the scene in the guise of their police duties.

I therefore assess damages in the following:

1. Loss of one tooth K200.00

Shame, suffering and humiliation K400.00

K600.00

ORDER

I order that the defendant pay K600.00 to the complainant forthwith for damages, for pain suffering and humiliation caused to the complainant.

This payment is to be made within 3 weeks from today in default warrant of executing be issued.

In Person: Complainant
In Person: Defendant

(Signed)
IOVA S GEITA

25-4-2000