Boga v Kugam [2007] PGDC 26; DC509 (27 April 2007)

DC509

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE
SITTING IN ITS CIVIL JURISDICTION]

DCCi 283 OF 2006

BETWEEN

TAU BOGA
Complainant

AND

NUMA KUGAM
Defendant

Goroka: F MANUE
2007: April 12, 27

CIVIL - Personal Damages Claim – Young girl impregnated. Deprivation of proper marriage and return of bride price according to custom. Customary practice of bride price. Damages caused.

Cases Cited
Nil

References
1. Section 21 of the District Court Act

Counsel
Complainant: In Person
Defendant: John Kugam for Defendant by Leave of Court

April 27 2007

REASONS FOR DECISION

F Manue: This is a claim for personal damages based on custom and the Complainant claims for K5, 000.00 in damages.

2. The Complainant is the adoptive mother of Molina David (herein referred to as victim) a young girl. The victim was impregnated by the defendant and declined to accept her hand in marriage. And the Complainant sues for personal damages as her daughter has been deprived of a proper marriage and a return of potential bride price according to custom of Gadsup area in the Kainantu District.

3. The Complainant called three (3) witnesses who were the immediate family members. They are the adoptive father of the victim, the elder sister of the victim who is a medical Doctor by profession and the victim.

4. The adoptive father is Godi Boga from Central Province and married to the Complainant who is from Gadsup area of Kainantu. He has been married for 22 years and has personal and real properties in his wife’s village. He is well acquainted to his wife’s peoples customs and practices including those of customary marriages. He stated that he practices those of customs and gets involved with his in laws in practical means of the customs. According to him, young girls in marriage within their own area would fetch less than K4, 000.00 to K3, 000.00 while those young girls who marry outside of the local area can fetch up to K3, 000.00 to K4, 000.00. Again that amount would depend on the various circumstances.

5. He said he had no knowledge that his adopted daughter was involved with a man sexually until he was told by his family members and when he noticed that his daughter was pregnant. He said in the early stages of pregnancy, the defendants parents came to him and wife and discussed over the possibility of the defendant marrying the victim, which both parties agreed.

6. The victim then packed up and went to live with the defendants relatives. Later she was told to return to her parents where she stayed until she delivered her child. He said attempts to resolve the matter out of Court failed.

7. Miriam Boga is the elder sister of the victim and is a medical officer by professio. She said she noticed Molina vomited and had diarrhoea. She thought initially that Molina was sick so she took her sister to the hospital to get medical treatment and antibiotics. She gave the victim some medical supplies for home treatment.

8. She said after 3 – 4 days the victim still had not improved or recovered from the illness. She became suspicious and asked the victim when she had her last menstrual period. She was told that the victim had missed her period almost three (3) weeks.

9. She further asked when she had involved with a male sexually which the victim denied initially.

10. She then asked her sister to collect urine sample in order to do a pregnancy test on the 27 day of October 2005. The pregnancy test returned positive and she relayed the same information to her sister.

11. Then she asked for the second time whether she had involved sexually with a male person. She said the victim names the male person as Numa and admitted to have sexually involved with him.

12. From that information she calculated the time from conception to that particular time to be 7 – 8 weeks pregnancy by the victim. She then advised her sister to tell Numa of her pregnancy because by 12 weeks her pregnancy would be obvious.

13. She said when the victim was 15 weeks pregnant, Numas parents came to see their parents.

14. She said the only boy she knew who was Molina’s boyfriend was Stanley and no one else.

15. The victim gave her evidence and stated that she was employed at “PAPA KIU’S” shop. “Papa Kiu” is of Asian origin, who is married to the defendants elder sister. She said she was working there and went to the defendants work section to collect soft drinks to be displayed and sold to customers. While there she was sexually harassed and assaulted. She managed to struggle free but felt ashamed, embarrassed and frightened to inform anyone.

16. She said she normally finishes work at 6:00pm daily while the defendant finished work at about 5:00pm. When she finished she saw the defendant sitting outside the shop with a security officer and one of his brothers. She walked past them and continued walking to their house at Arabica Street. While walking home the defendant followed her. He then threw a pebble at her to attract her attention. Although she noticed that it was the defendant she ignored him and continued walking home.

17. Later he caught up with her and tackled her and they wrestled. In the cause of their wrestle she was stripped naked and eventually assaulted sexually, meaning he forcefully had sexual intercourse with her.

18. During the struggle she was prevented from shouting, etc. As a result of this sexual assault she became pregnant and delivered a child on 9 September 2005.

19. She said the parents of them both initially agreed that they would get married. She moved to live at the defendant’s peoples place, during which the defendant paid no visits nor did he live with her. Neither did he ever communicate with her.

20. The defendant has elected to remain silent and has not called any witnesses to rebut the issue of him impregnating the victim and that he had caused personal damages to the victim.

21. Section 21 of the District Court Act gives civil jurisdiction to the District Court.

22. Subsection (1) of the section is in these terms:-

“21 Civil Jurisdiction

(1) Subject to this Act, in addition to any jurisdiction conferred by any other law, a Court has jurisdiction in all personal actions at law or in equity where the amount of the claim or the amount or value of the subject matter of the claim does not exceed -

(a) where the Court consists of one or more Principal Magistrates – K10, 000.00; and

(b) where the Court consists of one or more Magistrates – K8, 000.00.

23. This provision enables the Court to have jurisdiction in all person actions of law.

24. It would seem that the defendant is not disputing liability. Although he has elected to remain silent, this does not prevent the Court from reaching a conclusion after hearing from the complainant.

25. There is evidence that the victim was a young single girl. On or about September 2005 she encountered, what seems to be a forceful sexual relationship with the defendant. It was a crucial period because it was her high risk peak period of ovulation and conception.

26. That act of sexual relationship caused her to miss her monthly period for September 2005. She conceived and has delivered a child.

27. The defendant has refused to accept her hand in marriage although both parents of the parties had agreed initially.

28. There is no question that the victim has suffered personal damage and therefore is entitled to take out personal action in law as in this case.

29. Since this claim is based on custom it has to be proved by evidence in Court.

30. This evidence is significant to show that the custom is not only in theory but is in practice and alife.

31. There is evidence that the custom of bride price payment is still alife in the Gadsup area. The first witness stated that he is a Central Province man by birth but has now adopted himself into the said area by marriage. He has regularly participated in customary obligations,

32. Bride price is paid for brides and depending on situations and circumstances, brides can fetch up to K4, 000.00.

33. The victim was certain to have brought to the complainant some bride price. Her value may have somewhat been demised due to her having a child already outside a formal marriage. That may reduce her integrity and affect to attract the best possible suitor who may see her as of a lower value than if she had not had a child outside of marriage. She may have lost her stable boyfriend of two (2) months due to her pregnancy.

34. She has had no other boyfriends since pregnancy and delivery of the child. She may have delivered the child in June 2006 and from that time to date is about ten (10) months. That’s quite a period of time to go through without a boyfriend. In accessing damages I have taken all of those circumstances into account.

35. There is no evidence that she was likely to have married an outsider or insider of the Gadsup area.

36. Having considered the evidence of the complainant, I find on the balance of probability that the complaint has been made out.

37. Accordingly I award K3, 000.00. Personal damages and costs to be calculated.

Complainant: In Person
Defendant: John Kugam for Defendant by Leave of Court