Lembo v N'Dewa [2005] PGDC 57; DC255 (28 June 2005)

DC255

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 410 OF 2005

BETWEEN

Nesi Lembo
Complainant

V

Eva N’Dewa
Defendant

Port Moresby: Gauli, Magistrate
2005: 28th June.

DECISION OF THE COURT

Nature of the Complaint

The complainant sued the defendant for damages for assaulting her, lost of her sweet potatoes and medical and other expenses.

The brief facts are that sometimes towards the end of 2004 at Gordons market in the National Capital District, a lady from Koiari namely Julie Suan sold her five bags of kaukau at K100.00 each. Two ladies bought the four of her bags. The fifth bag is disputed by both the complainant and the defendant who each claim to have bought before the other. As a result they both fought over that bag of kaukau and the complainant sustained injuries.

The complainant’s evidence is that she was with the two ladies namely Eli and Mati who bought the 5 bags of kaukau from Julie Suan. The complainant paid for only one bag. She told Ara Ari to carry the bag of kaukau to where she usually market her goods while she went to buy other vegetables. When she return to her place where she sells her goods, her bag of kaukau was not there. Upon inquiry she was told that the defendant Eva N’Dewa took it away. The complainant went and retrieved the bag of kaukau and she was selling it when the defendant came. Defendant told those intending to buy the kaukau not to buy. She then emptied the bag of kaukau and she assaulted the complainant on the head with steel pipe and sustained injuries. Medical report showed that she was given 5 – 4 stitches. They were attended to at the Gordons Police Station.

The witness Jule Suan gave evidence that about 5 women went to buy her 5 bags of kaukau. She sold one of the bag of Kaukau to the complainant. At that time the defendant was not present. The complainant left the bag of kaukau on the vehicle while she went to look for other vegetables. Then the defendant came and wanted to buy that bag of kaukau. Julie told defendant that its already paid for by the other lady. The defendant was insisting and she (defendant) threw the K100.00 onto the vehicle where Julie was sitting and took the bag of kaukau. Not long she saw Nesi and Eva fighting over that bag of kaukau. They went to Gordons Police Station including Julie and she gave her explanation. Upon hearing her version Police told Julie to return the defendant’s K100,00 and told the complainant to sell the kaukau.

The witness Wanpis Kalom testified that the complainant was selling her bag of kaukau, which she bought from Julie, beside her when the defendant came, argued with Nesi and assaulted Nesi on the head with a steel pipe. She witnessed all that happened there.

The defendant has only herself as a witness. She said she went with Eli and Mati and bough the bags of kaukau from Julie. That the defendant one of the bags of kaukau while Eli and Mati bought two (2) bags each. That the complainant gave her money to Mati who bought one of the bags for her (Nesi) and Nesi was not present at the time. Later Ne3si went and took away defendant’s bag of kaukau so they both fought. She said that it was Nesi who assaulted the defendant first with a steel pipe on her head three times before she (defendant) retaliated. The defendant went to hospital and got treated but she failed to produce medical report to prove to the Court that she did sustained the injuries.

The Issues

There are three Issues to be considered.

1. Who paid for the bag of kaukau first?

2. Whether the complainant sustained injuries upon the assault by the defendant?

3. Whether the defendant sustained injuries upon the assault by the complainant.

Issue 1. "Who paid for the bag of kaukau first?

The complainant’s evidence is that she bought the bag of kaukau first from Julie Suan before the defendant did.

Her evidence is supported by Julie Suan, the one who sold the good. The defendant said it was her (defendant) who bought the bag of kaukau. She had no witness to support. In considering the evidence as presented before this Court by both parties, I find the evidence of the complainant is more convincing than the evidence of the defendant, despite other witnesses including Eli, Mati and Ara Arie not been called. Had the complainant not paid for the bag of kaukau first, I find no reason why she had to go and retrieve it from the defendant. I find that the complainant bought the bag of kaukau first before the defendant did.

Issue 2. "Whether the complainant sustained injuries upon the assaulting by the defendant?"

There is no dispute that the defendant assaulted the complainant. The evidence for the complainant is when the defendant came and interrupted her form selling the kaukau the complainant first hit the defendant with a kaukau on her head. The defendant retaliated by hitting the complainant on the head with a kaukau as well. The defendant then picked up a stick and assaulted the complainant on the head so the complainant retaliated likewise. The defendant went and returned with a metal pipe and assaulted the complainant on the head. She sustained a 5-4 cm cut. The complainant retaliated by hitting the defendant on her head with a stick, before they were stopped. The complainant produced a medical report to that effect. Her evidence was supported by Wanpis Kaloma.

The defendant denied assaulting the complainant with a steel pipe. Instead she said it was the complainant who assaulted the defendant with a steel pipe three times and the defendant got injured. The defendant no medical report nor any witness to support her claim.

I find from the evidence as presented before this Court that the defendant assaulted the complainant on her head with a steel or metal pipe that caused the injury to her head. She was bleeding and no doubt painful.

Issue 3. "Whether the defendant sustained injuries upon been assaulted by the complainant?"

There is no doubt that the complainant did assault the defendant. She hit her first with a kaukau then with a stick both on the head. Defendant did not produce any medical evidence that she received injuries to her head. I could not be satisfied on the balance of probabilities that the defendant sustained injuries.

Damages

The complainant sustained injures to the head where she was assaulted by the defendant with a metal pipe. She has 5-4cm cut and lost a fair amount of blood. She paid K30.00 for the taxi to go to the hospital at 3 Mile. She paid for medical treatment (K50.00), emergency fee of (K10.00), medical report of K50.00) and the loss of her kaukau and profit she would have make. She was humiliated in public. In considering all these, this Court award damages in the sum of K500.00 as compensation for the complainant.

And this Court orders that the defendant to pay the complainant the sum of K500.00 as damages within 30 days from the date of this Order.

Ordered Accordingly.

In Person: Complainant
In Person: Defendant