Hape v Tima [2002] PGDC 19; DC271 (6 June 2002)

DC271

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 157 OF 2001

BETWEEN

Paul Hape
Complainant

V

Cathy Timothy Tima
First Defendant

Kelly Tela
Second Defendant

Mt. Hagen: Appa, P.M
2002: 25th March, 6th JUNE

JUDGMENT

The complainant alleged in his summons that he customarily married the first defendant for the last six years and they have a daughter named Telita who is now 3 1/2 years old. While they were still living together, sometimes in December 2000, the first defendant took the second defendant to complainant’s house and introduced him as her uncle. The complainant allowed him to stay with them for sometimes. Then one day in February 2001, the first defendant packed up her belongings and ran away to live with the second defendant at Baisu. The first defendant took their only daughter with them. It was claimed that they stayed at Baisu for sometimes before the second defendant returned to Porgera. Sometimes later they lived at Porgera. All these times of secret movement, complainant said he had been searching for them in Simbu, Hagen, Goroka, Lae, Enga and Mendi using his working time and own expenses.

Complainant claims that information came to him about their where about in June 2001. He sent his brother Edward Dilabe to Porgera with a search warrant to be executed by Porgera Police. Edward went to Porgera and with the help of Porgera Police they located the defendant living together at second defendant’s uncle’s house. They were brought to Porgera Police Station and were questioned but were later released because they wanted the complainant himself to present the complaint. Complainant went to Porgera on the 3rd July, 2001, only to find that the first defendant came to Wabag. Since then there are documents produced to show that first defendant took out summons at Wabag District court against the complainant claiming compensation. The complainant also took out a village court summons against her but in both cases nothing eventuated.

The complainant is now suing the first defendant for being unfaithful to him and the second defendant for causing the marriage breakup through cheating. He is also claiming reimbursement on his expenses in looking for the defendants which covered a period of six months.

In defense both defendants denied all the above allegations. The first defendant said in her affidavit that the reason for living the complainant was because he took another woman. The second defendant said he did not take the woman away and live with her. He tendered his defence affidavit but was not signed/sworn before a commissioner for oaths so cannot be given much weight.

The complainant called three witnesses – Paul Pawi, Peter Sakaro (Policeman) and Edward Dilape. Witness Paul said he was at Porgera in June 2001 and saw both defendants in second defendant’s car – (details given). Peter Sakaro, a Policeman said he located both defendants and executed the search warrant. Edward Dilape said he was sent by the complainant with the search warrant to Porgera Police and located the defendants. Both defendants did not call any defence witnesses.

It is clear from the whole evidence that complainant’s case is much stronger. I am satisfied on the balance of probabilities that complainant did suffer some damages as the result of defendant’s secret relationship out of the matrimonial home.

On the issue of quantum, complainant claims K3,500.00 in reimbursement for expenses incurred while searching for the defendants. A further K4,000.00 for mental distress and general inconveniences and K2,265.00 for loss of time and use of labor. Total claims stand at K9,765.00. The complainant pleaded in his statement of claim that he would provide particulars of those claims at trial but unfortunately he did not do so. So all those claims amounted to general damages in equity.

To be fair to all parties under the circumstance, I have decided t o strike a balance and make a global award of K4,000.00 to cover all the legs of claims to be shared equally or jointly by the defendants.

I enter judgement for the complainant for a global sum of K4,000.00 to be paid equally (K2,000.00 each) by the defendants.. The judgment debt is to be settled either in cash or in kind within one month upon receipt of the judgment.

Dated this 6th day of June, 2002 at Mt. Hagen District Court.

...............................
MR. RAPHAEL APPA
By the Court