Amos v Elias [2006] PGDC 18; DC582 (22 September 2006)

DC582

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

DCCi 195 OF 2006

BETWEEN

RONI AMOS
COMPLAINANT/CROSS-DEFENDANT

AND

ELIAS & YANGOMA
DEFENDANTS/CROSS-COMPLAINANTS

Port Moresby: BINGTAU, DCM
2006: 17 July, 9, 28 &
31 August, 8, 11, 19 &
22 September

Civil – Practice and Procedure – The Central Court has concurrent territorial jurisdiction with Port Moresby District Court - - Loss – The Complainant has the duty to prove her loss with certainty and Particularity.

Damages – The principle of "Restitutio Integrum" applied in the assessment of compensation.

Case cited
PNGBC – v – Barker [1979] PNGLR 53
Peter Goodenough – v – The State N2157 of 1997 at p. 11.
Livingstone – v – Kawyerds Coal Co. [1980]5 App. Cases 25 (it.c) at p. 39
Kinsin Business Group Inc. – v – Joseph Hom Wafi, John Kalaut & The Independent State of Papua New Guinea N1634 of 1996 at p. 9.

Legislation
Section 21(5)(2((b), District Courts Act.

Appearances
Complainant, in person
Defendant, in person

22 September 2006

JUDGMENT

BINGTAU N, DCM:

1. In this case the Complainant though resident of the National Capital District sued the Two Defendants, also residents of the National Capital District by way of Complaint and Summons Upon Complaint, claiming compensation for the loss of her K800.00 cash against the Defendant on the 5 July 2006.

2. The Defendant, Elias on behalf of himself and his wife, Yangoma filed Defence on the 17 of July 2006 and claimed among other things that Central District Court lacks jurisdiction to deal with this case because the parties are all residents of National Capital District therefore the appropriate court would be the Port Moresby District Court. Defendant also cross claimed K127.00 for the loss of his wife, Yangoma’s goods like coke drink, cigarettes and spear smoke allegedly destroyed by Complainant and her relatives when the Complainant took them to the Defendant’s place at Arrow Club to question them on the loss of Complainant’s K800.00.

3. Upon plea, the Defendants denied the complaint and liability while the Complainant too denied the Defendant’s cross claim and liability. Therefore the court conducted trial to establish the truth.

4. Complainant called evidence from herself and two witnesses namely, Paul Paulus and Papindo Tonau while the Defendants called evidence from Elias, Chris, Kalabu and David Yakasa.

Facts:

5. The disputed facts as I find from the evidence of the Complainant and her two witnesses are that, the Complainant is Elias, the First Defendant’s brother’s daughter and so was relative to him as his niece. The Defendants have invited her to live with them in Arrow Club premises, where the First Defendant, Elias lives and work with his wife, the Second Defendant. Complainant had been living with the Defendants for sometime then between 24 – 26 May 2006, she slept out at 3 Mile with some relatives to watch the Maroons Rugby game on T.V. Back at the Defendants’ house, where she lives Complainant left behind K800.00 cash. The K800.00 cash was earned by the Complainant’s street sales of eggs, cigarettes, betelnuts etc. at the 4 Mile Bus Stop over some months. Upon return to the Defendants’ home, the Complainant found her clothes and bag had been searched and her K800.00 was stolen. There being no other persons apart from the Two Defendants and herself living in the house, Complainant blamed the Defendants for the loss of her K800.00 cash. However, the Defendants did not want to reimburse the K800.00 because they said they took the K800.00 as reimbursement for the Complainant’s bride price that the Defendants repaid to the Complainant’s former husband. However, if the Complainant still insisted that the Defendants return her K800.00 then, she would sue them in Court.

Complainant’s Evidence:

6. Sworn evidence from the Complainant was that between 24 – 26 May 2006, she went out to 3 Mile to watch the State of Origin game One in a sister’s house. Back at her uncle, the First Defendant and his wife, the Second Defendant’s house, she left behind K800.00 cash money in the room she sleeps in. she returned to the Defendants’ house on the 26 May 2006, but was greeted with abusive words and threats from the Defendants for some unknown reasons. The K800.00 cash was earned by Complainant from the sale of eggs, cigarettes etc.. at the Four Mile Bus Stop over some months. She thought of the K800.00 cash left in her room so she forced herself against the Defendants’ threatening and abusive behaviour and went into her room. She found her bag and clothes were searched and thrown all over the floor. She found her K800.00 was stolen so there being no one living with the Defendants and herself, she blamed the Defendants for stealing her K800.00 cash and asked them to return the money. However, they told her that her K800.00 was taken as reimbursement for the bride price, they paid to her former husband therefore if she still want them to refund the K800.00 she must sue them in Court for the court to decide.

7. The Defendants did not cross-examine the Complainant on her evidence. Complainant’s evidence remained unchallenged.

8. Complainant’s First Witness, Papindo Tonam’s sown evidence was that on the 26 May 2006 at 4:00 pm, he was selling betelnuts at Four Mile and some wantoks told him that Complainant’s money had been lost, at the Garden Hills house. Therefore at 6:00 pm, they will go to the Defendants’ house at Arrow Club to settle the matter. When he arrived at Defendants’ house at Arrow Club, the Defendants were selling betelnuts near the fence. Then Complainant told those present of how her K800 was lost but the Defendants scolded her and she cried. Then he heard the First Defendant, Elias say that he had spent a lot of money to pay back the bride price for Complainant to her former husband therefore the K800.00 will not be returned. If the Complainant wants her K800.00 to be returned then she must sue them in court for the court to decide.

9. Defendant, Elias cross-examined the witness with seven questions but he maintained his evidence and not contradicted.

10. Complainant’s Second witness, Paul Paulus’ sworn evidence was that he is related to both the Complainant and First Defendant, Elias. He had seen goods like betelnuts, ice blocks, scone, eggs, plus other things at the 4 Mile T.S.T Shop and at the Arrow Club market everyday from 6:00 pm to 4:00 pm with other men and women who sold goods. On the 26 May 2006, Complainant went and told him that her K800.00 got lost in the Defendants’ house therefore asked him with other wantoks to go over to the Defendants’ house and discuss the matter with the Defendants. He went with other relatives including Papindo, Tolan and others and discussed the problem with the Complainant and the Defendants. However, no peaceful settlement was reached because the Defendants shouted at the Complainant by First Defendant, Elias, saying their Engan language that, he wasted large sum of money to repay the bride price for the Complainant’s former husband so he is not happy with the Complainant. Therefore, if Ronnie wants to get back her K800.00 then serve summons on him to take back your K800.00.

11. Defendant, Elias cross-examined the witness with eight questions but the witness maintained his evidence and not contradicted.

12. Complainant closed her case then the Defendants gave their evidence, and called their witnesses.

Defendants’ Evidence:

13. Defendant, Elias filed Affidavit, dated 17 July 2006 on behalf of himself and his wife, Yangoma. His sworn evidence is that the Complainant’s case can be dismissed on the following grounds. First that Central Court lacks jurisdiction to hear this case because the Defendants usually reside in the National Capital District, namely at the Arrow Club in Port Moresby, pursuant to s 21(5)(a) of the District Courts Act. Secondly, the purported relieve sought by the Complainant is misleading, Vexatious and frivolous disclosing no cause of action as well as lacking further and better particulars against them severally because no affidavit disclosed the details of the purported unlawful actions.

14. The Complainant is Elias’ niece, the daughter of his brother, who was a vagrant and had no means of substance or employment engaged in unacceptable conduct like going out drinking, coming home late in the night or early morning thereby risking his continued employment, her own safety plus his safety too. He had warned Complainant on numerous occasions to cease such practices but she failed to listen so he has provoked to slap, Complainant as she had gone out on her usual runs returning home and disturbing him and his wife to open the door for her.

15. Out of anger and frustration he had told the Complainant to pack up and leave. She then took revenge on him and wife for slapping her and she manufactured false claim that he and his wife had searched her bilum and removed K800. is utter nonsense and a pack of lies because she was never employed in any way or engaged in informal section employment and was unlikely to have any money then changed her story claiming that the money, K800 was for another woman namely Yakopiwan Kupili given to her for safe keeping. However, when the said lady arrived on the same day, told him and wife that she never gave the Complainant any money for safe keeping.

16. The truth is that on Wednesday, 5 July 2006, the Complainant as usual went out and continued drinking beer till early morning hours of Saturday, 6 July 2006, returned home to Arrow Club where she resides with them and disturbed them to open the gate for her. That provoked him to slap her on her face and told her to pack up and leave as he had warned her many times but she had not changed her attitude.

17. The Complainant on the next day, Sunday, 8 July 2006 mobilized her mother’s relatives to come to the Arrow Club seeking revenge by threatening to fight with him and wife. In the process they destroyed his wife’s market of goods namely K70.00 worth of cake, K22.00 worth of Benson & Hedges cigarettes at K7.50 each packet, K22.50 worth of kool cigarette packets at K7.50 each, K12.00 worth of Spear off cut smoke which is a total value of K127.00 worth of goods were destroyed.

18. This is a classical malicious claim by the Complainant that she vented her anger towards him for slapping her and it is frivolous and vexation in nature and therefore ought to be dismissed with cost.

19. Himself and wife strongly deny the complaint as there is no evidence supporting her claim and urged the court to dismiss the complaint forthwith and instead have the Complainant pay them for the cost and goods destroyed valued at K127.00 as cross-claim with costs of K50.00 and a total of K627.00.

20. The additional Affidavit Elias filed on 31 August 2006 is a reply to the Complainant’s statement filed on or about 25 August 2006, does not state any new evidence but only repeats and refers to the Affidavit he filed on the 17 July 2006.

21. The Complainant cross-examined Elias with five questions and he maintained his evidence and he did not contradict, himself.

22. Defendants called two (2) witnesses namely David Yakusa and Chris Kalabus. They gave joint sworn evidence that they are witnesses to the circumstances in which the Defendants are sued for. They are guards employed by Liberty Security for the Fortune Club. They had never seen the Complainant doing any market at the Arrow Club premises. They also had not seen Paul Paulus and Papindo Tonam at the Fortune Club premises area on the 26 May 2006. On the 9 July 2006 between 5: 00 pm – 6: 00 pm, while they were on duty at their office, they saw the Defendants marketing their goods as usual then the Complainant and a group of people aggressively confronted their office gate. They destroyed the Defendants’ market goods and threatened them to open the gate. The group of people tried to push open the gate and attacked the Defendants but they maintained the gate very well. While they closely monitored the situation, the group of people slowly dispersed into the dark. Later they confirmed that a total sum of K127.00 worth of Defendant’s market goods were destroyed by the Complainant’s group.

23. Complainant cross-examined David Yakasa with two (2) questions and Chris Kalabus with five (5) questions but they maintained their evidence and did not contradict themselves.

Assessment of the Evidence:

24. The first issue posed by this case is whether Central District Court has territorial jurisdiction to hear this complaint? This is a legal issue so I sought assistance from s 21(5)(2)(b) of the District Courts Act which provides and I quote that:-

"21. Civil jurisdiction"
(5) subject to this section, a Court has jurisdiction when -
(a) the defendant, or one of two or more defendants, as the case may be is usually resident, or carries on business, or

(b) the cause of action wholly or partly arose in the are for which the court is constituted."

25. The Defendant, Elias in his evidence asked the court to dismiss this case on the grounds of lack of jurisdiction by Central District Court, because Complainant and Defendants are residents of National Capital District and that the complaint was laid in the Central District Court rather than the Port Moresby District Court which deals with the National Capital District residents’ cases. However, from my observation of the Central District Court and Port Moresby District Court I find that both courts are based in the National Capital District. Therefore it was my respectful view that in accordance with s 21(5)(2)(b) of the District Courts Act, Central District Court has concurrent territorial jurisdiction with the Port Moresby District Court to hear matters arising from the National Capital District. Likewise, the Port Moresby District Court too would have concurrent territorial jurisdiction over Central Province cases because both courts are established within the National Capital District and Central Province. Therefore my answer to the first issue is that I had jurisdiction to sit at Central District Court and hear this case of the parties who are residents of the National Capital District because Central District Court is located in National Capital District and has concurrent jurisdiction with the Port Moresby District Court.

26. The second issue posed by this case is that whether the Complainant/Cross Defendant proved her loss with certainty and particularity? This is a factual issue so I examined the Complainant and Defendant’s evidence and found the following facts. The Complainant/Cross Defendant is a single young woman who lives with the Defendant’s house at the Arrow Club and engaged herself in the informal sector employment by selling various goods like eggs, cigarettes, betelnuts, ice blocks etc at 4 Mile Bus Stop and at the Arrow Club premises too. Complainant had been doing that for over some months. That evidence has corroborated by her witnesses, Paul Paulus and Papindo Tenam. Therefore she managed to save K800.00 and kept it in her bag and left it at the Defendants’ house in the room she sleeps and went out to watch State of Origin First Test match between 24 – 26 May 2006. The K800.00 cash went missing from her bag in her absence. She blamed the Defendant for the missing K800.00. Defendant, Elias admitted taking the K800.00 from the Complainant’s bag she asked by the Complainant and her mother’s relatives on the 26 May 2006 because he had spent more money to repay the Complainant’s former husband’s bride price paid for the Complainant.

27. The witnesses, Paul Paulus and Papindo Tenam confirmed that they heard Defendant, Elias say that. However, Defendant has said he will not refund the Complainant’s K800.00 because he took it as reimbursement for Complainant’s bride price he repaid to the former husband. And that if Complainant wanted her K800.00, she will sue the Defendant in court for the court to decide.

28. However, on the Defendant’s evidence given by Elias on behalf of himself and his wife, Yangoma, he denied taking Complainant’s K800.00. He even denied admitting that he staole K800.00 as reimbursement of the money he spent on repaying the bride price for the Complainant to her former husband. He even denied that the Complainant was never engaged in the informal section employment but only goes out drinking beer at parties, and comes to their house at late night or early morning and disturbs them to open the gate and door for her so she would not have kept K800.00 in her bag, because where would she earn that money from? One time Elias was provoked to slap the Complainant for going out drinking beer every night against his advise on several occasions.

29. Therefore, because of that the Complainant had made up false accusation against him and his wife just to take revenge on them for hitting her on the 5 of July 2006.

30. Defendants’ witnesses, David Yakusa and Chris Kalabus also had supported Elias to say that they never saw the Complainant marketing any goods at the Arrow Club or Fortune Club.

31. I sought assistance from the case of PNGBC – v – Barker [1979] PNGLR 53, where the Supreme Court cited with approval the decision of the High Court of Australia in Butler – v – Egg and Egg Pulp Marketing Board [1966] 14 CLR 185 where in the court said that the principle is that the injured party should receive compensation in a sum which so far as money can do so will put him in the same position as he would have been in if the tort had not been committed. In most cases of conversion this usually will assist in the injured plaintiff recovering the full value of the property converted. However, the Plaintiff still has the obligation to prove his loss with much certainty and particularity as is reasonable. "He has to prove his loss".

32. Applying this authority to the present case I found the Complainant and her two witnesses convincing and acceptable than that of the Defendant, Elias and his two witnesses because Elias had not tested the Complainant with cross-examination question and more importantly put his defence to the Complainant to give her opportunity to rebut his defence. Furthermore, I find it hard to believe the Defendant, Elias accusing his niece, the Complainant of making up a false case just to vent her anger on him for slapping her of her disobedience to his advise and going out drinking beer at night or early in the morning. It is not in the normal case of things for a woman to make up stories and sue her uncle, the brother of her father. I take the Complainant and her two witnesses as honest and trustful witnesses.

33. I therefore find the Complainant had proven her loss with certainty and particularity and is reasonable that she had earned K800.00 from the informal employment and kept it in her bag in her room but in her absence, the First Defendant, Elias and his wife, Yangoma had stolen that money, therefore the Defendants are held liable for the loss. The second issue is answered yes.

34. The third issue posed by this case is whether the Complainant be compensated for the loss of her K800.00? This issue follows on from the second issue that since this court had found the Defendants liable for the loss of her K800.00 cash money she had to be compensated. A case authority on this point is the case of Kinsim Business Group Inc. – v – Joseph Hom Wafi & John Kalaut & The Independent State of Papua New Guinea, N1634 of 1996. In that case the National Court adopted the words of Lord Blackburn at p. 39 from the English case of Livngstone – v – Rawyerds Coal Co [1982] 5 App. Cas. 25 (HL) and I quote:

"Where injury is to be compensated by damages in setting the sum of money to be given for damages, you should as nearly as possible get that sum of money which will put the party who has been injured, or who has suffered, in the same as he would have been if he had not sustained the wrong for which he is now getting his compensation."

35. The above principle is also referred to as "Restitutio Integrum". That principle is qualified by two principles namely known as first remoteness of damages and second the duty to mitigate losses.

36. In applying the above principle in the present case, the evidence from the Complainant show that the K800.00 damages she claims from Defendants is not remote, it is the exact amount of money that was stolen by the Defendants. Furthermore, the Complainant did attempt to mitigate her loss by wrapping the K800.00 in a trousers and put in her bag amongst the other clothes but the Defendants have searched the bag and stolen the said K800.00 money. Therefore I find the two Defendants equally liable to compensate the Complainant the sum of K800.00 in proportion of K400.00 each, plus costs.

37. The fourth issue posed by this case is whether the Defendants have also proven their loss of market goods being damaged by the Complainant and her relatives as a cross-claim against the Complainant with certainty and particularity and as is reasonable? The evidence from Elias is that his wife sold goods in the Arrow Club premises on the 9 of July 2006 when the Complainant and her relatives went and destroyed them. The goods sold by Yangoma and destroyed by the Complainant and others were K20.00 worth of coke, K22.50 worth of Benson & Hedges cigarettes, K22.50 worth of Kool cigarettes and K12.00 worth of Spear off-cut smoke, total of K127.00. The witnesses, Chris Kalabus and David Pyakusa’s evidence show that they were informed that the goods destroyed were worth K127.00. Though the Complainant and her two witnesses denied destroying the Defendant’s market goods, they admitted that, Defendants were selling market goods when they went to talk to them about the Complainant’s K800.00 on the 26 May 2006.

38. I therefore applied the same case of PNGBC – v – Barker [Supra] in the Defendant’s cross-claim and found that, the Defendant Elias had proven his wife Yangoma’s losses of market goods with certainty and particularity and that the K127.00 compensation claim for the loss of the goods are reasonable, therefore I find the Complainant/Cross-Defendant liable for the losses because it was the Complainant who took her relatives to the Defendant’s premises and they damaged the Defendant’s market goods.

39. The fifth issue posed by this case is whether the Defendant, Yangoma be compensated for the loss of her market goods? I find that if follows from the fourth issue that since the Complainant had been found liable for the losses, she is liable to compensate the Defendant, Yangoma. Again, applying the same principle in the case of Kinsim Business Group Inc. – v – Jospeh Hom Wafi & John Kalaut & The Independent State of Papua New Guinea [Supra] the Defendant’s losses was not remote and also the Defendant could not have mitigated her losses as the Complainant and her relatives come in a mob and destroyed her market goods. Therefore the Complainant/Cross-Defendant is held liable to pay the K127.00 compensation to the Defendant, Yangoma, plus costs.

Conclusion:

40. Therefore for all the reasons already stated, I found the Defendants each and severally liable to pay K800.00 compensation to the Complainant in proportion of K400.00 each with costs of K50.00 and ordered them to pay up within one month.

41. For the Defendant’s cross-claim, I also found the Complainant liable to pay K127.00 compensation together with K50.00 costs within 14 days.

The court made orders accordingly.

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Complainant/Cross-Defendant, in person
Defendant/Cross-Complainants, in person