Hane v M'Balupa [2004] PGDC 21; DC209 (7 July 2004)

DC209

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 3623 OF 2004

BETWEEN

Ken Hane
Complainant

V

Linume M’Balupa, William Aruru & 3 Ors.
First Defendants

Michael Moir Bussy
Chief Of Security
Second Defendant

The University Of Papua New Guinea
Third Defendant

Port Moresby: Gauli, Magistrate
2004: 7th July.

DECISION OF THE COURT

Nature of the Complainant

The complainant alleged that the First Defendants assaulted him on the 6th September 2003 at the University bus stop in which he suffered the injuries. And he claims unspecified damages against the defendants.

Brief Facts

The complainant is unemployed since 1998. He was the former security officer of the Uniforce Security Services of the University of Papua New Guinea. On the 6th of September 2003 the complainant got of the PMV bus at the University bus stop. He had in his possession some cigarettes (or spear) to hand over to his brother in law at University. His brother in law could not be found. He then got on another PMV bus to go to Gerehu when two University security officers came and pulled him out of the bus. They suspected him of selling cigarettes and betelnuts at the University bus stop. He struggled to free himself from them but other members of the security came and dragged him out of the bus and ruthlessly assaulted him. He sustained serious injuries to his facial and oral regions of his body. He lost one of his tooth whilst two of his teeth are still loosely hanging. And he claims for damages.

The complainant filed this proceedings in Port Moresby District Court on 31st August 2004 almost one (1) year later.

The Issues

1. Whether the lengthy delay in the commencement of the proceedings by the complainant in this case will be time barred from making any claims against the defendants?
   
2. Whether the complainant has established his case on the standard sufficiently necessary to convince the Court to grant the relief sought?
   

The Law

1. District Court Act, sections 28, 36.
   
2. Fraud and Limitations Act 1988, section 16.
   

District Courts Act.

"s.28 Information and Complaint.

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."

"s.36 Limitation of proceedings.

(1) subject to subsection (2), in a case of a simple offence, unless some other time is limited for laying an information by the law relating a particular case, the information may only be laid within six months after the time when the matter of the information arose.

(2) The time limit of six months referred to in Subsection (1) does not apply to an information laid for an offence specified in Schedule 2 to the Criminal Code Act".

Fraud and Limitations Act 1988.

"s.16 Limitation of actions in contract, Tort, etc.

(1) Subject to section 17 and 18, an action –

(a) that is founded on a simple contract or on Tort, or

(b) ...............

(c) ...............

(d) ...............

shall not be brought after the expiration of six years commencing on the date on which the cause of action accrued."

The Issues

I now discuss the Issues,

Issue 1. "Whether the lengthy delay in the commencement of the proceedings by the complainant in this case will be time barred from making any claims against the defendants?"

The alleged assault incident occurred on or about the 6th September 2003. This proceedings were commenced in the Port Moresby District Court on the 31st August 2004, almost a year later. The counsel for the defendant in his submission pointed out that pursuant to Section 28 of the District Courts Act Chapter 40, the proceedings in the District Court must be commenced by either an Information or a Complaint. And that the Information (Complaint) must be laid within six months.

The counsel for the defendant has misconceived himself. The section 28 of the District Court Act does not set time limits within which to bring an action. This provision only states that a proceedings shall be commenced before the Court either by an Information or a complaint.

The time limitations to bring an action before the Court is stipulated under section 36 of the District Courts Act. However this limitation of time applies only to the cases of a simple offence, which refers to criminal offences. This time limit does not apply to either contracts or tort.

For contract or tort, the appropriate law applicable is the section 16 of the Fraud and Limitations Act 1988. This provisions requires that the action must be commenced in Court no later than six years. This present case was commenced in Court about a year from the time the alleged incident occurred. This is still within the six years time limit allowed by the Section 16 (1) of the Fraud and Limitations Act 1988.

Accordingly this Court answers the First Issue that this action is not time barred. This proceedings have been commenced within the statutory time limit.

Issue 2. "Whether the complainant has sufficiently established his case on the standard necessary to convince the Court to grant the relief sought?"

In a criminal case the informant is required to prove his case beyond reasonable doubt. While in the civil case the complainant is required to prove his case on the balance of probability.

The complainant’s evidence is that as he was boarding a PMV bus at the University bus stop to go to Gerehu, five members of the Uni Force Security Services pulled him out of the bus and ruthlessly assaulted him and he sustained serious injuries to his facial and oral regions of his body. He said he was coming back from a funeral service at 6 Mile of his mother. He got off at the University bus stop to hand over the cash and the left over of the cigarettes that were not sold to his brother in law. Seeing that his brother in law was not there, he then got on the bus to go to Gerehu when he was assaulted by the securities who suspected him of selling cigarettes and betelnuts. He denied selling these items at the University Campus that day.

The witnesses Osborne Dawo and Asio Tobias gave evidence for the complainant. The witness Osborn Dawo in his evidence testified that he was not at the University bust stop on the 6th September 2003. He did not witness the securities assaulted Ken Hane nor was he with ken Hane selling cigarettes and betelnuts in there. He was called to given evidence because the defendants alleged that the complainant was seeing street vending at the University campus with the witness Osborn Dawo.

The witness Asio Tobias gave evidence that he is a street vendor at the University of Papua New Guinea’s bus stop. On the 6th September 2003 he was selling smoke (cigars) at the said location when the complainant got off the bus at about 10:00am. The complainant asked him about his (Ken’s) brother in law. The witness Tobias told him that he has not come down from the Baruni settlement. Witness Tobias said that Ken Hane was there to return his brother in laws cigarettes that he left with him but since he was not there Ken decided to go to Gerehu. As Ken was getting on the bus bound to Gerehu, the securities thought Ken was street vending so they pulled him out of the bus and assaulted him. Just then Policemen from Gerehu arrived and they took Ken to Gerehu Police Station. The witness Asio Tobias corroborates the evidence of the complainant. None of the policemen from Gerehu Police Station who arrived at the scene have been called as a witness in this proceedings.

The witness Asio Tobias in his oral evidence said that he saw a security officer chase the complainant towards the bus stop opposite the University Campus entrance towards Gerehu side. The security grabbed Ken, pushed him to the ground and booted him. Witness Tobias ran across the road and saw Ken bleeding from his head. The other securities just stood back and watched. They did nothing. His affidavit evidence contradicts his oral evidence. In paragraph 6 of his affidavit he said and I quote:

"6. Ken struggled to get himself free but a combine force of five security officers assaulted him seriously and he fell to the ground."

The complainant in his affidavit evidence sated on paragraphs 5 and 6 that while he was in the PMV bus, two security officers pulled him out of the bus. As he was struggling the other three securities joined in and they dragged him out of the bus and assaulted him ruthlessly. He fell unconscious. Both the evidence of Ken Hane and witness Asio Tobias contradict each other. The witness Tobias said only one security officer pulled the complainant out of the bus and assaulted him while the other securities just stood back and watched.

The evidence for the defence came from the defendants Linume M’Balupa, Michael Moir Bussy and the witness David Pima, Toring Walop and John Gimbol.

The defendant Linume M’Balupa is the section commander of the Uni Force Security of the University of Papua New Guinea. He gave oral evidence that he was not present at the scene of the incident that occurred on the 6th of September 2003 at the gates of the entrance of the Faculty of the Creative Acts Centre at the UPNG. He is confused why he has been summoned as one of the defendants.

The defendant Michael Moir Bussy in his affidavit evidence deposed that he is the Chief of Security of Unifroce Security of UPNG. He deposed that his officers informed him on the 6th September 2003 that they have warned off the complainant (Ken Hane) and his friend Osborn at the University bus stop while they were selling betelnuts and cigarettes. And that the complainant decided to fight the security officer and he attempted to use a knife against the security David Pima. He was not at the scene of the incident nor was he involved in that incident. His evidence is mostly hear say. The only relevant part of his evidence is that he was informed by his officers ofthe incident the same day. He denied the police contacting him of the incident. He also denied the complainant reporting to the Unifroce Security base the next day after the incident. He said a group of people fronted at his office after a few days.

The witness David Pina, one of the Unifroce Security guards, deposed in his affidavit evidence that on the 6th September 2004 when they (securities) reached the gate towards the Faculty of Creative Arts, they saw two men namely ken Hane and Osborn selling betelnuts and cigarettes at the entrance. The securities got of their vehicle and confiscated their items. The complainant become angry. He swore at the security members saying:

"Yupela kaikai kan. Yuplea givim money na mi baim?" (Translated to mean – You eat vagina. You gave me money and bought this?"

The complainant then grabbed David Pima on his shirt and he punched him on the face. He fell to the ground. And he sustained cuts on his head and jaw. The complainant got a kitchen knife from his bag and tried to stab David but he pushed the complainant away with his leg. The complainant fell on the footpath. The complainant got up and ran towards Baruni Settlement leaving behind his bag containing cigarettes, betelnut and the kitchen knife.

The witness Toring Walop, a member of the Unifiorce Security, gave evidence that on the 6th September 2004 he was present with the other securities at the scene of the incident. He saw Ken Hane and Osborn selling betelnut and cigarettes outside University gate facing the Faculty of Creative Arts. When the securities approached Ken Hane and confiscated his items Ken swore insultingly at the securities. The rest of his evidence is the same as the evidence of David Pima.

The witness John Y. Gimbol, the member of the Uniforce Security was present with the other members o the security and he witnessed what happened. His evidence is the same as the evidence of David Pima and Toring Walop.

These witness all testified that the complainant swore at them. He grabbed David Pima on the shirt and punched him. These witnesses never stated nor were they questioned by the complainant if he (Ken Hane) was in the PMV bus when the securities pulled him out of the bus and assaulted him. The complainant’s evidence is full of inconsistencies. And I find that due to the inconsistencies, the complainant’s evidence does not hold truth in it.

I find that the defence evidence is so consistence. The securities saw Ken Hane and Osborn street vending at entrance of the University of PNG. The securities got of the vehicle and confiscated the items they were selling. Ken Hane swore at them. He grabbed David Pima on his shirt and punched him to the ground. Ken took his knife out from his bag and tried to stab David. But David pushed Ken off with his leg. Ken fell to the ground, he got up and ran away. Ken Hane was never ruthlessly assaulted. I find the defendants not liable.

Accordingly this case be dismissed with costs for the defendants.

Ordered accordingly.

In Person: Complainant
George Muruma: Defendant