Polume v Awasa [2006] PGDC 3; DC368 (17 January 2006)

DC368

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 4171 OF 2005

BETWEEN

Hilda H. Polume
Complainant

V

Tom Awasa
Defendant

PORT MORESBY: GAULI, APM
2005: January, February 23, 24, 28; March 09
April 05, August 03, 22, 25th, 29th
September 12^th; October 26^th
November 11, 22^nd; December 05th, 19th
2006: January 06th, 13th, 17th

Counsel
Complainant, in person
Defendant, in person

DECISION OF THE COURT

GAULI; APM: The complainant claims that the Defendant had been abusive and aggressive towards the complainant and the children. And the Defendant had been threatening her physically and verbally and that this violent behavior has become worse over the last few months. And the Defendants negligent, destructive and violent behaviour has and will continue to cause behavioral problems for the children and is disrupting the peace and good order in the family. And the defendant had been destructive towards the complainant, her children and the property they are living in.

And the complainant seeks for the following orders:

1. An order that the defendant be restrained from entering the property namely Section 42 Allotment 41, Boroko

2. And order that the defendant be restrained from using abusive and threatening behaviour towards the complainant and the children

3. And order that the defendant contribute toward the maintenance and upkeep of his son Jaking Awasa

4. Cost of these proceedings.

Brief Facts

The Complainant and the defendant had a defector relationship for the last 18 years. They were living together from November 2002 until 7th October 2004 when the court issued a restraining order against the defendant from entering the complainant’s place of residence or her place of employment. From 1999 to November 2002 the defendant was living in his home village in Lae, Morobe Province. The defendant had not been employed for the last 16 years of the 18 years relationship. The complainant had been the only breadwinner for the family of three children. The complainant had been responsible for the school fees of their three children who attended the international primary schooling.

During their relationship from November 2002 to October 2004 they have been having arguments between them. Those arguments arose mainly over defendant’s failure to assist the complainant both physically and financially for the upkeep of the family. The other cause of arguments is over the Boroko property where the defendant has made no contributions toward the payment of it.

The Evidence for the Complainant

The complainant and her witnesses ANTONIA INAU, MAMU H. KURAPA, JAKING AWASA, CHOLAI KURAPA, FELISIA DOBUNABA and ANTON INAU gave evidence.

The complainant HILDA H. POLUME gave evidence that she had two children namely Mamu and Cholai Kurapa from her previous relationship and one child namely Jaking Awasa from her relationship with the defendant. She is solely responsible with the defendant and upkeep of these three children including their school fees. She is the only person paying off the bank loan for the property at Boroko. The defendant has contributed very little toward their son Jaking Awasa’s upkeep and school fees. That defendant does not contribute in paying water bills and electricity bills nor buy food for the house

The defendant has intentionally left the doors to the property open during times when they should be kept locked. The defendant had neglected the property for so long that it is in a very bad state.

The defendant had been aggressive, destructive and abusive towards the complainant and the three children. In 1996 the defendant threw Cholai Kurupa’s properties out of the house. He also chased Cholai and his sister Mamu Kurupa out of the house that year. He threw their food out of a cooking pot and threw their belongings out of the house and he locked them out of the property and ended up in a fight.

The incidents of 1996 occurred well over six (6) years ago therefore they a statutory time barred pursuant section 16 of the "Frauds and Limitation Act 1988. This provision states that "no action shall be brought after the expiration of six (6) years commencing on the day on which incidents that occur more that six years ago shall not be considered in this proceedings.

In 2003, the complainant deposed that the defendant uprooted the complainants vegetable garden for using mango leaves as compose. On 3rd January 2004 the defendant broke down on of the doors of the house at about 2:00 o’clock in the morning.

On the 23rd January 2004 defendant held the complainant by her throat when she told the defendant that he was sick in his mind for making degrading remarks towards their son Jaking Awasa. On 25th January 2004 the defendant threw out their clothing and cooking utensils. On 14th May 2005 the defendant shouted abuses to their son Jaking Awasa for attending soccer practice. When the complainant stood to support Jaking, the defendant went inside and threw out the cooking utensil and told the complainant to pack up and leave the property. Later when the elder son Cholai came home and was their utensils on the ground, he held the defendant by the neck and told him (defendant) to leave the house. And Cholai was charged for assaulting the defendant.

The defendant had been saying degrading remarks and chasing Cholai out of the property since 14th May 2004. On 02nd May 2004 the defendant shouted at the complainant and her daughter Mamu telling them to pack up and leave the property.

On 18th September 2004 the defendant went home drunk and chased the daughter Mamu out of the house. When the complainant stood in defence of her daughter (Mamu) the defendant told her get out of the house.

The witness Jaking Awasa gave evidence that he is the biological son of both the complainant and the defendant. He gave evidence of number of incidents which he did not indicate the exact dates, months and or years those incidents have occurred. Since there were no specific dates of their happenings, I do not consider it necessary to discuss them.

The witness Cholai Kurupa the biological son of the complainant gave evidence that he does not consider the defendant as his step-father for reasons that in 2003 the defendant threw out of the house the complainants personal belonging and the utensils. The second time the defendant did this was on 14th May 2004. This time Cholai confronted the defendant and held him by the neck. And Cholai was charged for assaulting the defendant. The defendant had called him a dog lover.

The witness Mamu H. Kurupa, the complainants daughter gave evidence that in early 2004 the defendant called her" wicked woman". And the defendant told her and her mother to pack up and leave the house. She gave evidence of other incidents but she did not give any specific dates and therefore I do not intend to dwell on them.

The witness Antonia Inau gave evidence that she is a neighbour to the complainant and the defendant at Boroko. She gave evidence that on number of times she witnessed or heard both complainant and the defendant arguing. Her evidence confirms the evidence of the complainant.

The witness Felisia Dobunaba gave oral evidence that she is a neighbour to both the complainant and the defendant at Boroko. She gave evidence of an incident in 1998 or 1999 where voices were raised yielding and shouting and a fight resulted between the parties. Mrs. Dobunaba went out of her gate and saw them fighting. And she tried to calm down Hilda in which Hilda accepted her advice. This was the only time Mrs. Dobunaba got involved though this was not the only time voices were raised with shouting. The latest of such incidents was in the year 2004.

The defendant and his witness Bernard Baloiloi gave evidence in defence. The defendant Tom Awasa gave evidence that he owns the property namely Section 42 Allotment 41, Meava Place, Boroko, National Capital District. By the court order dated 07th October 2004, the defendant was restrained from entering that house upon granting the interim orders sought for by the complainant in a notice of motion.

That property was transferred to Mr. Tom Awasa on 05th 21002. Then on 23rd December 2002 Mr. T. Awasa assigned the property to Hilda Polume in trust for Jaking Kisa Gesalec Awasa (Jaking Awasa). The defendant alleged that the evidence of the complainant are either ambiguous, half truths, or lies, speculative, assumption, malicious, fabricated his or deceptions.

He stated that for the incident of 03rd January 2001, he came home about 2:00 am. He tried to open the fly wire door leading into the kitchen but it was locked from inside. He knocked on the door and called Hilda (complainant) who was inside the house but she did not open the door. He unlocked the front door with the key but it was bolted from inside. He knocked and called Hilda but did not open the door for him. So he went to rest at the boy house lounge. It was raining and he was wet and cold and tired. He returned to the door, knocked and called Hilda to open the door for second, third and fourth time but to no respond. And so he got a metal digger and broke the fly wire door of the kitchen and when he pushed the wooden door it was open because Hilda has unlocked it. When he entered the kitchen Hilda was standing right in front of him. He walked past Hilda without threatening or touching her and he said to her "evil wicked woman why are you doing this to me." He even spoke these words while he was still outside the house waiting for the door to be opened to him.

When he was already inside the house he shouted at Hilda. "Get out of my house" then he went to sleep. If he was aggressive, abusive, destructive or violent he would have assaulted Hilda and cause damage to the house that night.

As for the incident in which he defendant was arrested and detained in the police cell at Boroko, he said that the complainant was the instigator of the quarrels and confrontations. The defendant simply spoke to his son Jaking by way of correction or discipline but Hilda intervened and she did not want him to discipline the son.

The defendant admitted uprooting the plants twice from the garden when Hilda used mango leaves as compost. The reason for doing this was because they have reached an agreement that Hilda is not to plant anything on the property while the property was transferred to Hilda as a trustee until Jaking reaches the age of 21 years.

The defendant said he was not happy about the sons Jaking Awasa and Cholai Kurupa washing, hanging and removing from the clothes line the underpants for their mother Hilda and their sister Mamu Kurupa. So he spoke strongly to them (sons). And Hilda shouted at him saying "You are sick, very sick". And the defendant slapped her (Hilda) on the chest and neck. Hilda reported him to the police and he was locked up in the police cells. He was charged but the case was struck out.

They had another quarrel when the defendant did not accept his son Jaking attending soccer training in the afternoons. The defendant consider it risky for Jaking to walk back to the house at night after the training.

In 2004, the defendant admitted chasing Cholai Kurupa out of the house for assaulting and using obscene language "fuck" to the defendant. This resulted in Cholai been charged by police.

The defendant denies that he is a habitual drunkard or habitually been intoxicated by alcohol. The witness Bernard Baloiloi gave evidence that the defendant is a sober person with very good character. He is not a violent or abusive person. He is a very close friend and have known him for over 25 years. He knew both Hilda and Tom for about 20 years. And during those years he has not seen or heard of any incident about Tom being violent or abusive toward Hilda and or children.

The Issue:

The issue this court needs to consider is:

"whether the defendant is abusive, aggressive, threatening, violent and or destructive towards the complainant and the children."

From the evidence as presented before this court, I find that the defendant had abused and threatened the complainant by calling her a wicked woman and telling her to pack up and leave the property. The defendant had also acted violently and aggressively towards the complainant and the children.

However I also find that the defendant would not have behaved or acted abusively, aggressively, or violently and or acted in a threatening or destructive manner had the complainant did not incite these incidents. I find that the complainant had instigated those incidents being complained of. For instances the damage done to the fly wire door by the defendant was the result of the complainant’s failure to answer the defendant’s knock and calling to have the door open to him. Also the complainant had allowed her sons to either wash and or collect her underpants of which the defendant did not accept such practice.

The complainant seems to paint a picture that the defendant was the cause of those arguments and or the incidents. The evidence however shows that the complainant was the instigator of all those arguments.

As regards to the maintenance and the neglectful of the son Jaking Awasa, it is not the proper proceedings here to consider that. That would be a separate cause of action for the Family court to consider for the maintenance of Jaking.

The complainant further seeks orders to restrain the defendant from entering the property namely section 42 Allotment 41, Boroko mainly because the defendant did not assist in paying off the loan. The complainant and the defendant have a defector relationship and they both were living in this property for many years, as husband and wife. I consider it unjust to restrain the defendant from entering that property. The interim orders of the 07th October 2004 are to be stayed.

In considering the whole of the evidence in the circumstances, as presented before this court I am convinced that this case be dismissed for the reasons that the complainant was the instigator of all the incidents complained off. Accordingly, this court orders that the case be dismissed and the defendant discharged. And I further ordered that parties bear their own costs. And that the defendant is allowed to reside at the said property in Boroko.