Pusahei v Wojam [2005] PGDC 90; DC274 (24 June 2005)

DC274

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 3906 OF 2005

BETWEEN

Paula Pusahei
Complainant

V

Augusta Wojam
Defendant

Port Moresby: Gauli, Magistrate
2005: 24th June.

DECISION OF THE COURT

Nature of the Complaint

The complainant alleged that on the 1st and the 2nd of November 2003, the defendant and her agents unlawfully threatened harassed and use abusive language towards the complainant. And the complainant seeks for orders to restrain the defendant and her agents.

Brief Facts

1. That on Saturday 1st November 0023 at about 10:30am in front of the St. Mary’s Cathedral Church in down town Port Moresby the defendant approached the complainant and said to her:

"Yu wetim man blong yu?" (Which is interpreted to mean

"Are you waiting for your husband?"

The complainant responded as to which man she was referring. And the defendant replied:

"Semi Maila". The complainant then told her that Semi Maila is just a family friend and the defendant may confirm that by asking Semi Maila herself.

A little later Semi Maila drove up to pick the complainant and her sister when Semi saw the defendant approaching him he did not stop but kept on driving. The complainant and her sister with her daughter walked down to the bus stop at the corner of the Hunter Street. They were picked up by Semi Maila and drove them to the Port Moresby general Hospital to visit the complainant’s sick son.

On Sunday the 2nd of November 2003 after the first mass for the sacrament of confirmation at 8:45am, the complainant took her family to the Crown Plaza in down town Port Moresby for breakfast. While the complainant and her family were at the front lawn of the Crown Plaza, a K.K. Kingston utility, registration number BBA:607 driven by Paul Wojam drove up the Hunter Street and parked in front of the Crown Plaza and the PSA Haus. Other members of the Wojam family namely Peter, Roselyn and Augusta appeared from the Musgrave Street and walked towards the complainant. Paul Wojam got out of the vehicle and approached the complainant saying:

"Yu nogat man nay u wok long behainim ol man ah; yu blood kan".

The complainant and her family remained in the Crown Plaza Bar and the Cafeteria area for about 2 hours until Mr. Semi Maila and one of the duty policeman came and escorted them down to the Town Police Station to lay the complaint.

3. The complaint was laid on the 1st December 2003. The summons was dated 2nd or 3rd December 2003 and returnable on 5th December. On the 4th December 2003 Magistrate Mr. Rei Vagi issued the Restraining Order against the defendant and adjourned the substantive matter to the 10th December 2003. There was no application by way of Notice of Motion filed in Court for the Court to determine on the 4th December.

4. On 22nd June 2004 the defendant filed a Notice of Motion returnable on 30th June 2004 seeking to set aside the Ex parte Restraining order of the 4th December 2004. This application was never determined by the Court until now.

Both parties gave evidence in respect of the incidents of the 1st and 2nd of November 2003. None of parties gave evidence for or against the defendant’s Notice of Motion to set aside the Ex parte Order. However at the close of the hearing, the counsel for the complainant made submissions to make the Ex parte Restraining Order permanent while the defence counsel’s submissions opposes to that effect.

There are two matters before this Court to determine, namely: (1) the defendant’s Notice of Motion filed on 22nd June 2004 and (2) the complainant’s substantive matter of the complaint.

I shall consider the defendant’s Notice of Motion first.

1. Defendant’s Notice of Motion.

The defendant filed her Notice of Motion on 22nd June 2004 to set aside the Restraining Order dated 4th December 2003 that was heard Ex parte.

From the facts as stated above which facts are as per the Court documents in this Court file DCC:3906/2003 the following events that transpired are obvious.

1. The complainant filed her summons in Court on either the 2nd or 3rd of December 2003.

2. The summons was returnable on the 5th December 2003.

3. The magistrate Mr. Rei Vagi issued the Restraining Order on the 4th December a day before the returnable date of the summons.

4. No application by way of Notice of Motion was filed in Court or served on the defendant that the complainant would seek restraining orders on the 4th December.

From these set of facts it is very clear that there was no proper application made in Court that would have given the defendant the opportunity to defend such an application. There were no affidavit evidence been filed to support the grant of that application. This in my view is clear abuse of the Court process and that the ex parte restraining order would be invalid and unenforceable.

The counsel for the complainant submitted that that ex parte restraining order be made permanent restraining order. The Court considered that this submission must fail for the reason that the order was obtained without making proper application in a normal Court process for such an order. It was obtained in an irregular manner.

For the reasons and the findings given above, this Court orders that the ex parte restraining order dated 4th December 2003 be set aside.

2. The Substantive Matter of the Complaint.

The complainant in the substantive matter also seek orders from the Court to restrain the defendant as a result of the incidents that occurred on the 1st and 2nd of November 2003.

The complainant in her complaint and summons stated that the defendant and her agent did unlawfully threatened, used abusive language and harassed the informant without any proper manner. And the complainant seeks restraining orders against the defendant and her agent.

Evidence

The evidence for the complainant came from the complainant herself and her two witnesses namely Semi Maila and Jita Pusahei.

The witness Semi Maila gave evidence to the effect that he married the defendant Augusta Wojam for ten (10) years according to custom. Their marriage ended in about 1997.

And on 27th December 2002 he obtained a restraining order against the defendant that restrained her from entering Semi Maila’s premises and any other property he owns. And that restraining order effectively ended their customary marriage as there was no bride price paid.

Mr. S. Maila said that on Saturday 1st November 2003 while attending the rehearsals at the St. Mary’s Cathedral, the defendant threatened him and accused him of driving around the complainant. And on the 2nd November 2003, he dropped off the complainant and her daughter at the St. Mary’s Cathedral Church in down town Prot Moresby. He went back to pick them up at about 11:00am when he was shouted down by the defendant and her relatives. So he went to the Town Police Station and learnt that the complainant and her daughter have taking refuge at the Crown Plaza Hotel. He then went to the hotel accompanied by a policeman, picked up the complainant and her daughter and proceeded down to the Town Police Station.

He stated that the complainant is married to his wantok from New Ireland Province and the Semi’s cousin sister is married to Paula Pusahei’s cousin brother. As a result of that family relationship he drove the complainant and her daughter to the church.

The complainant Paula Pusahei in her evidence said that Mr. Semi Maila is a long time family friend because of the marital relationship mentioned above and they have known as a family friend for 19 years. And so the complainant seek transport assistance from Mr. S. Maila.

She said on the 1st November 2003, Mr. S. Maila dropped her off at the St. Mary’s Cathedral to attend her son’s confirmation rehearsal. At about 10:30am the defendant approached her and asked her (complainant).

"Yu wetim man blong yu?"

The complainant then replied "which man are you referring to?" and the defendant replied "Semi Maila."

The complainant told the defendant that Semi is not her husband and she can confirm that by asking Semi himself. She was very upset and frustrated. The complainant waited fro Semi Maila to pick her up. When Semi Maila drove up to the car park in front of the St. Mary’s Church, the defendant approached him. So Semi Maila did not stop but he drove away without picking the complainant.

Then the complainant went to the ATM at the BSP in down town to withdraw some money, but her gat was not with her. She and her sister with her daughter walked back to the church, she picked up her bag from Fr. Rodrigo and walked down towards the Ela International School. The defendant and two young girls followed them from the church to the BSP ATM, back to the church and to Ela Beach School. Then Semi Maila came picked up the complainant just near the bus stop at the school and drove off.

For the incident on 2nd November 2003 after the mass for the sacrament of confirmation at about 8:45am at the St. Mary’s Catholic Church in Town, the complainant took her family to the Crown Plaza for breakfast. As they were entering the gates of the Crown Plaza the defendants brother Paul Wojam drove up by a K.K. Kingston utility registration number BBA:607 and parked in front of the hotel.

He got out of the vehicle and followed the complainant and her family into the Crown Plaza hotel and used abusive language to her saying:

"Yu nogat man na yu behainim ol man ah. Yu bloody kan".

Paul was stopped by the securities at the hotel. The complainant and her family took refuge in the hotel until Semi Maila in the company of a policeman came and escorted them out to the Town Police Station and laid her complaint.

The witness Jita Pusahae who is the complainant’s sister, gave evidence on the incident on the 1st November 2003. She was the eye witness to that incident. Her evidence is much the same as that of the complainant’s evidence. However she did not witness the incident on Sunday 2nd November at the Crown Plaza as she got on the bus and went home soon after the service.

The evidence for the defence are received from the defendant Augusta Wojam and her witness Peter Wojam. The three (3) affidavit evidence of the defendant were tendered in Court by consent of the complainant. She was therefore not cross-examined except her witness Peter Wojam. The three (3) affidavits of witness Peter Wojam. The three (3) affidavits of Augusta Wojam (defendant) are:

1. Affidavit dated 25/2/04 as "Exhibit D.1"

2. Affidavit dated 12/03/04 as "Exhibit D.2"

3. Affidavit dated 12/03/04 as "Exhibit D.3"

In her evidence Augusta Wojam admitted marrying Semi Maila for 13 years through a customary arrangement.

They are living apart because of Semis extra marital affairs with the complainant and also because of the restraining orders dated 27th December 2002 which restrained her from entering Semi Maila’s premises.

The defendant in her evidence basically admitted the incidents on the 1st and 2nd of November 2003. However she made no mention of her following the complainant to the BSP ATM and down to Ela Beach School on Saturday the 1st November. On Sunday 2nd November the defendant instructed for brothers to follow the complainant to the Crown Plaza basically to witness if Semi Maila would pick up complainant and her family. When Sami Maila drove up and parked in front of the Crown Plaza he was approached by the defendant’s brother in law Clement and asked if he (Semi) was there to pick up the complainant and her family. Semi Maila remained him of the restraining order.

The defendant then returned to the Town Police Station, got a policeman and return to the Crown Plaza with the policeman in order to talk to either Semi or Paula (the complainant). Paula refused to come out of the hotel. They returned to the Police Station. Then Constable Bill Lino got into Semi Maila’s car, they returned to the hotel and picked up Paula and her family members to the Town Police Station. Police interviewed them but decided they should take the matter to a civil Court. Then Semi took the complainant and her family and they drove away. The defendant denied any threats been used on the complainant.

The witness Peter Wojam gave evidence on the incident of the 2nd November 2003. HE was asked by the defendant to walk up to the Crown Plaza to see if Semi Maila would pick up the complainant. He confirmed Paula Wojam drove up and parked in front of the Crown Plaza.

He denied anyone going near to the complainant and her children nor said anything to them. They all walked on the other side of the road opposite the Crown Plaza to see if Semi Maila would come and pick up the complainant. The waited around until 10:30am when Semi drove up. When Semi noticed the presence of the defendant’s brothers, Semi drove down to Town Police Station and returned with a duty policeman and took the complainant and her family members down to the Police Station. The defendant’s brother Paula Wojam never gave evidence.

Issues

The only Issue this Court should consider is whether or not the defendant and her agents unlawfully threatened, harassed and or used abusive language at the complainant in order to restrain the defendant.

The counsels from both parties made submissions in Court. The counsel for the complainant submitted that the defendant assaulted the complainant. He relied on the Section 243 of the Criminal Code Act which defines the term "assault", and the case law on Fodgen -v- Wade [1945] NZLR, 724. The complainant in her complaint and summons never pleaded assault. As assault is not been pleading I do not intend to discuss it any further.

The counsel for the defendant submitted that the defendant did follow the complainant on both the 1st and 2nd November 2003. This is not disputed as shown in the evidence. The counsel submitted that there was no assault or threat made on the complainant by the defendant therefore the restraining orders should not be made or the interim restraining orders should not be made permanent.

As regards to the use of threats, there was no actual threats used against the complainant. However the evidence established before this Court that on the 1st and 2nd of November 2003, the defendant and her agents or relatives did followed the complainant. Their following the complainant on these two occasions did .......... Fear on the complainant. And because of that fear she would not come out of the Crown Plaza on Sunday and 2nd of November when requested by the defendant until the police presence was there. She had taken refuge for some 2 to 3 hours at the Crown Plaza on the 2nd November while the defendant and her agents or relatives kept a watch on her from outside the hotel. She felt insecure to come out of the hotel on her own. The complainant’s evidence show that the defendant’s brother Paul Wojam did approached her in a threatening manner at the Crown Plaza. Paul neither gave oral evidence nor filed affidavit evidence to clarify this matter. I must therefore accept the complainant’s evidence. Under these circumstances I find on the balance of probabilities that the defendant and her relatives or agents did threatened the complainant.

As regards to the use of the abusive language, the defendant said to the complainant if she was waiting for her husband Semi Maila. The complainant felt very upset because Semi is not her husband but he is just a family friend. And on Sunday 2nd November, Paul Wojam said to the complainant:

"Yu no gat man nay u behainim ol man ah. Yu bloody kan"

These words were abusive. And I do find the defendant and her agents did use abusive language at her.

The defence counsel in his submission referred to the case of American Cyanamio -v- Ethi Con Ltd [1975] UKHL 1; [1975] AC 396. The House of Lords held that in application for injunction the plaintiff has to show that:

(a) He has some legal status in a dispute.

(b) He has a good arguable case.

(c) His case is an appropriate case for an injunction to issue.

There is no dispute as to the principles (a) and (b) above. The complainant in an present case has a legal status in the dispute and she has a good arguable case. However the third principle need to be considered that is whether it is an appropriate case to issue an injunction or restraining order.

The use of the threats and abusive language, in our present case, occurred only once in November 2003. From that time to the close of the hearing of this matter on the 14th June 2005, there is no evidence showing that the defendant and or her relatives or agents have further threatened or abused the complainant. In the America Cyanamid -v- Ethicon Ltd [1975] (above, the House of the Lords held that:-

"Granting of an injunction is discretionary. The Court must balance whether the in position of a restraint on the defendant is reasonable and necessary to protect the plaintiff from irreparable harm."

In applying the principles in the "American Cyanamid" case to our present circumstances, I find that it is not appropriate to grant restraining orders.

The injunctions or restraining orders are temporary orders granted by the Court pending the hearing of the substantive matter of a complaint. In this present action there is no substantive cause of action pending before this Court for a grant of a restraining order. And secondly the threats and abusive languages were used once only some 18 months ago and there have been no further threats or abuse used. In the circumstances as it is, I find it inappropriate to grant the restraining orders. Accordingly this Court orders that:-

1. The Interim Restraining Orders of the Court dated 4th December 2003 are stayed or set aside as this was obtained irregularly.

2. The substantive matter of the complaint for Restraining Orders are dismissed.

3. There be costs for the defendant.

Ordered accordingly.

For the Complainant: Mr. Lawai N’drakali, Patterson Lawyers
For the Defendant: Mr. Joseph Lai, Narakobi Lawyers.