Mulungu v John [2005] PGDC 108; DC406 (29 September 2005)

DC406

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 2260 OF 2005

BETWEEN

Ayai Mulungu
Complainant

V

Mai John
First Defendant

Yate John
Second Defendant

Garry Hagapa
Third Defendant

Port Moresby: Gauli, Sm
2005: 19th, 20th, 22nd, 29th September

DECISION OF THE COURT

29th September 2005

GAULI, APM: The Complainant in this cause of action claimed that, the Defendants stole her bilum containing her money the sum of K2500.00. And the Defendant seeks orders for the stolen money.

The brief facts are that in the year 2004 at Erima, the Complainant hung her bilum containing K2500.00 in cash on a bathroom wall while she was washing. After her shower she noticed that her bilum was missing. She had no knowledge who stole the bilum with the money. This occurred at about 5:00 o’clock in the morning. She never reported the matter to police but began to search for it.

In early 2005 the Complainant noticed her stolen bilum in the possession of the First Defendant Mrs. Mai Jon from Kerema, at the Gordons market. The Complainant asked her where she got the bilum from. And the Defendant, Mrs. Mai John said that she bought it from a Highlands lady at the market. The Complainant told her to show her the women from whom she bought it. Sometimes later when the Complainant found the Defendant again, she asked her the Highlands women who sold her the bilum. This time Defendant Mai John changed her story and said it was given to her by a youth from Kerema. She was told to bring that youth but the Defendant Mai never showed up for two months. When she was located again she said that her son Yate John and one other boy from Highlands stole the bilum. That her son the second Defendant only gave her the bilum plus K5.00 cash while the other youth took the rest of the money. When the Defendant Yate John was questioned he revealed the other youth involved in that stealing incident been the third Defendant Garry Hagapa. The matter was mediated by the community leaders and the Defendants were told to repay the stolen money but no payments were forthcoming. As a result this proceeding were filed.

The Complainant’s evidence is basically as per the brief facts above. In support of her evidence, the Complainant called three other witnesses namely Agip Tapatia, James Inabu and Cyril Amburi.

The witnesses Agip Papatia is the Ex-peace Officer of the Erima Village Court. He was one of the community leader who mediated this dispute. He told the court that during that mediation, defendant Yate John told them that a boy from Kopiago, Tari, SHP took the bilum containing the money. The leaders told Defendant Yate John to bring that Tari boy. So the next day he brought Defendant Garry Hagapa, but he (Garry) denied having any knowledge of the stealing. The witness James Inabu, the Deputy Chairman of the Erima Village Court who conducted the mediation gave evidence that the Complainant reported to him of the bilum been stolen and that she has identified her bilum in the possession of the Defendant Mai John. The Complainant then brought to him the Defendants Mai John and Yate John. When he questioned Yate John, if he took the bilum, Yate replied "Yes" Mr. J. Inabu then asked him (Yate) how he got the bilum. Yate said:

"We saw her selling at the market, we followed her to where she went to wash. While she was washing we took the bilum. I was given the bilum with K5.00 but the other boy took the rest of the money."

Yate told them that the other boy is from Tari. He was told to bring that Tari boy with his parents. When the Tari boy (the third Defendant) was brought in Mr. J. Inabu told them to repay the Complainant’s money or they will be taken to court. There were no threats issued to the defendants.

The witness Cyril Amburi of Tari, SHP, one of the community leaders at Erima was also involved in this mediation of this dispute. His evidence is that he questioned the Defendant Yate John in the presence of his mother defendant Mai John. And Yate told them how they stole the bilum as per the evidence of James Inabu. During that mediation there was a lot argument so the leaders concluded that the Defendant must have stolen the money and advises the Complainant to take the matter up before the court.

The Defendants each denied stealing the bilum with the money. The Defendant Mai John in her evidence stated that the bilum the Complainant is complaining of was bought by her Defendant in the year 2002 for K50.00 from one of the young boys at Gordon’s market. She never used it until 2004 she carried the bilum to the market. That was when the Complainant inquired of the bilum. She told the Complainant that she bought it from a young boy. The Complainant brought two of her young men who insisted on questioning her where she got the bilum from. The Complainant argued over it. Defendant was taken to Gordon’s Police Station but police refused to investigate the matter.

The Complainant demanded that they go to Erima Village court but Defendant Mai never turned up. Later the Complainant met the Defendant Mai again and she referred her to Gordon’s Police once more. Police refused to investigate the complainant because Defendant Mai claimed she bought the bilum from some street boys some years back

Sometimes later the Complainant met up with Defendant Mai and she asked the Defendant when they will discuss the matter. Defendant Mai was again referred to Gordon’s Police that same day. At the request of the Complainant, Defendant Mai brought the bilum to the police station that same day. The Complainant requested the matter be brought before the village court, so that same day they appeared before Mr. James Inabu, the Deputy Chairman of Erima Village court, who is form Tari SHP. When they gathered before Mr. Inabu, other people from Tari, SHP gathered there and threatened Defendant Mai that if she does not tell the truth they will either rape her, kill her or burn down her house. As a result of these threats she told them that she had a son who is not a criminal. The Taris suggest that maybe her son and the other boy stole the bilum with the money.

The Complainant and Mr. Inabu asked Defendant Mai to bring her son. She went and brought her son, defendant Yate John and her husband. The Complainant brought her wantok boys and they all met near Gordons market. They threatened them and forced Defendant Yate John to mention the other boy who stole the bilum. They threatened to hit him if he does not say it out. So Defendant Yate mentioned defendant Garry Hagapa. They were requested to appear before the Erima Village Court and bring the third Defendant with his parents. This they did the next day.

From Erima they proceeded to Gordons Police Station where the case was mediated. Defendant Mai mentioned that she bought the bilum in the market. When police asked Defendant Yate if he stole the bilum, he said "Yes we stole it" Defendant Mai told the police that her son admits because he is under threat. Police then told her that her son (Yate) seems to be half-sense so they won’t take up the matter. After Police have questioned them all, police decided to charge Defendant Mai but they changed their mind and told them to just repay the money to the Complainant but they have not repaid the money.

Defendant Yate gave evidence that his mother Mai John bought the bilum at the market but since the Complainant and her wantoks threatened them, he just mentions the third defendants name.

Defendant Garry Hagapa in his evidence denied having any knowledge of the stealing incident. He was just implicated by the Second Defendant for no reason. The Defendants only witness Sergeant Iaki Koge gave evidence of what was been reported to him by defendant Mai John. I do not wish to restate all that again.

Having heard and considered the evidence of both parties I find that defendant Mai John bought the bilum from someone at the market some years back in 2002. The Defendant may have changed her stories because she was threatened and intimidated by the Complainant and her wantoks.

I find that the second Defendant Yate John did not appear to me to be a normal minded person. I observed him while in court he seems to be half-sense. And I am of the view that the admissions or confessions he made during the mediations may be doubtful. He was also threatened to make those admissions.

I further find that the third Defendant Garry Hagapa was never questioned. Even if he was questioned the Complainants evidence never stated what he said at the mediation.

The evidence for the Complainant is that she went to have her bath at 5: o’clock in the early morning when her bilum containing the money was stolen by unknown person. However her witness told this court that when they questioned Defendant Yate John he told them that they saw the Complainant at the market and followed her to the place where she went to wash and they took her bilum while she was washing. The Complainant in her evidence never stated that she returned from the market to have her shower when the bilum and the money were stolen. The Complainants evidence contradicts from her witnesses’ evidence.

The Complainant gave evidence that the first day she talked to Defendant Mai John of where the Defendant got the bilum; the Defendant said she bought it at the market from a Highland woman. Sometimes later when the Complainant met the Defendant again and asked of the bilum defendant said the bilum was given to her by a boy from Kerema. And on the third time the Complainant met the Defendant, she changed her story saying her son gave her the bilum.

Defendant Mai John denied all that the Complainant alleged. Defendant Mai John maintained she bought the bilum from some young boy who stole it. She never said her son gave it to her. She was threatened by the Complainant and her wantoks from Tari so she told them she had a son. And the Complainant and her wantoks suggested that may be her son stole the bilum. Her son Defendant Yate John was called and questioned under threats and in fear of the threats the son just mentioned Defendant Garry Hagapa’s, name.

The Complainant claimed that her bilum and the money were stolen sometimes in the year 2004. Defendant Mai John said she bought the bilum in the year 2002 but she never used it until 2004. The Complainant never described her bilum nor pointed out to this court the features that prove to her that the bilum belongs to her. I find that Complainants evidence is in consistent and it contradicts itself, thus insufficient to establish her case against the Defendants. And for the reasons alluded above I dismiss the case.

Ordered as above

In Person: Complainant
In Person: Defendant