Ango v Dita [2004] PGDC 44; DC472 (26 March 2004)

DC472

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 106 OF 2001

BETWEEN

Tom Ango
Complainant

V

Andrew Dita
First Defendant

Kopi Sisiki
Second Defendant

Village Court
Secretariat
Third Defendant

The Independent State of Papua New Guinea
Fourth Defendant

Mt. Hagen: Appa, PM
2004: 13th February, 26th March

Counsel
P. Kumo For The Complainant
R. Koimo (Ms) For The Defendants

JUDGEMENT

The complainant claims in this proceeding that on the 28th of November 1998 complainant was at Gomis Town Village Court to attend to a case when he was allegedly assaulted by the first defendant who was the Village Court Clerk. Defence submitted that complainant may have said something which provoked the assault. The complainant was hit on the nose which according to the Doctor’s report had caused fractured bridge on the nose, permanent nose deformity, possibility of injection high and may result in sinusitis. There was no dispute on the assault incident.

There are attempts made at the village court for settlement and offers were made but complainant was not satisfied so he lodged proceeding in the District Court. According to defence submission, complainant did accept part payment of K60.00 of the K200.00 order made by a Joint Village Court so the matter rests there (res judicata).

I have had the opportunity to peruse the purported village court joint sitting documents but there were irregularities found. The Chairman of the Town Joint Village Court (Anton) gave evidence that he was not aware of order made by any Joint sitting so fraud was likely as claimed by the complainant’s submission. In any case I would not think the order for K200.00 would commentate with the seriousness of injury caused to the complainant. Photographs tendered in court with the Medical Report showed the permanent damage on the nose, crooked nose, not born with it.

At first sight I agreed with the defence of "res judicata" and indicated that view in court but after giving careful consideration on the whole case I changed my position because the assault was a deliberate act not warrant from village court officials while performing their official duties. They have acted contrary to the very purpose of their duty to preserve peace and harmony and not to be aggressive in the eyes of public. There has to be deterrent.

My other reason was that the complainant had not been compensated for his injury. To stop the case here would be unfair and doing injustice to him.

As I indicated earlier liability is established on the question of quantum, complainant claims for K10,000.00 for his injury. The Doctor who examined and treated the injury assessed that there was permanent nose deformity. I have no comparable present case at hand. Defence had provided me alternatives nor any mitigating factors on damages so court has to strike a balance. Since I am not guided by any evidence or materials to award the K10,000.00 claim, it would be unfair and unrealistic to award the full claim. In my honest opinion, an award of K8,000.00 would not be too unreasonable. Factors in consideration are there being no up to date medical report, at the same time to teach a lesson that those working for law and Order should not take the law into their own hands.

I enter judgement for the complainant for a sum of K8,000.00 in general damage plus 8% interest to run from date of summons to settlement date and nominal incidental cost of the proceeding. The judgement date is to be settled by the fourth defendant on the basis of vicarious liability.

Public Solicitor: Complainant
Solicitor General: Defendant