Ifana v Kare [2007] PGDC 98; DC609 (20 September 2007)

DC609

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

GFCi 34 of 2007

BETWEEN

MIRAVE IFANA
Complainant

AND

JAMES KARE
STANLEY LOKE
Defendant(s)

Goroka: M Gauli, PM
2007: September 20

CIVIL - Claims damages for personal injury – Assault – Fractured right arm – Complainant instigated the assault – Equity – He who seeks equity must come with clean hands.

Cases Cited
Kiau Nikints –v- Moki Kumints [1990] PNGLR 123
In the Matter of Yabo Sabo for Nagila clan of Amek in Madang Province [1995] PNGLR 13

References
Nil

Counsels
For the Complainant - In Person
For the Defendants - In Person

20 September 2007

DECISION OF THE COURT

M Gauli, PM: The Complainant sued the defendants and claims general damages in the amount of K10, 000.00 for suffering a fracture to his right forearm that resulted from the assault on him by the defendants on the 21 of February 2007. The defendants do not dispute assaulting the complainant but they denied that he suffered the injury complained of and that the complainant was the cause of the whole situation.

2. Issues

There are two issues to be considered. These issues are:-

1. Did the complainant suffer the injury he complained off?
2. Did the complainant come with clean hands?
   

Before I discuss these issues I should firstly briefly state the evidence of the parties.

3. Evidence for the Complainant

The complainant has only himself who gave evidence. His evidence is as follows:

“I know the defendants James Kare and Stanley Loke, they are my brother in laws. I married their sister. I was given K50.00 by one Simon sometimes ago. Peter Kare’s wife Popone committed adultery. I do not know why Simon gave me the K50.00. Defendant James Kare said he will take back his sister who is my wife. He asked me to apologise to him with a K50.00 compensation. I told him that I will do that.

That same night my wife argued with me so I assaulted her whiles we were in her village. So she went to my village and she was packing her belongings when I arrived. I asked her why she was doing that but she did not respond to me. So we both wrestled. At that time I was in possession of a bayonet. While wrestling she sustained a cut from my bayonet and she went back to her village. Next day I went back to my wife’s village to collect my son’s clothes. As I was entering the house, the defendants argued with me and they fought me by punching me. The defendant James Kare first assaulted me on the doorway. And I dropped my bush knife and my son’s clothing’s. Then defendant Stanley Loke joined in the fight. I then returned to my village. I went to Rumbau Aid Post and got treatment. At that time the medical orderly told me that my arm was broken and he told me to go to the Goroka Base Hospital for proper treatment which I did. As a result I sued the defendants for the injury. That is all.

4. The complainant tendered a Medical Report from Goroka General Hospital, marked EXHIBIT ‘A’. It is dated 19 July 2007. The report stated that the complainant’s right forearm was swollen, deformed and tender when orally examined. The radiological examination revealed that there was a fracture on his right D/3 ulna. The plaster of Paris was applied to his injured arm for 6 to 8 weeks and was discharged on antibiotics and analgesics. When reviewed on 17 July 2007, there was still mal-union and was not able to use his right arm well. He has lost 20% efficient use of his right arm. He failed to produce X-Ray result of his injured arm.

5. Evidence for the Defendant

The defendants gave evidence in Court including the two witnesses Peter Kare and John Utime. They relied on their affidavit evidence filed in Court. The evidence of defendant James Kare, as per his affidavit marked EXHIBIT ‘B’ states as follows:

“In the night of 23 July 2006 at Iyotafau village, the complainant and one other names Simon Nibia collaborated to have the wife of Peter Kare (First defendant’s brother) commit adultery with another man for a sum of K300.00. On the 14 January 2007 the complainant’s name was mentioned by the adulterer as one other person assisting and getting paid for the adultery act when negotiating “bel kol” settlement witnessed by the Village Court officials of Unggai Village Court No. 1. The complainant was paid K50.00 for his part in the adultery act. The action of the complainant, who is the in-law of the first defendant (James Kare), and the other names Simon Nibia, broke up James Kare’s elder brother’s marriage of 22 years. They have five children of that marriage.

On 14 February 2007 at Iyotafau village, the first defendant in front of all the villagers advised the complainant that his actions leading up to the break up of his in-laws marriage was unbecoming of an in-law and that he should apologise and make peace with his in-law. That evening the complainant assaulted his wife (Popone). She fled to the complainant’s village that night. On 20 February 2007, the first defendant’s sister who is the complainant’s wife, returned to our village with a bayonet stab wound on her right arm. On the 21 Febraury 2007 the complainant fronted up at our Iyotafau village. And argument broke out between him and my brother Peter Kare. The complainant was armed with an offensive weapon namely a bush knife, therefore prompting me to advance to disarm him. We grapple for possession of the weapon and we both fell on uneven ground and rolled for sometime. The complainant got up and left. But he turned a few minutes later and attacked the second defendant (Stanley Loke) and a fight broke out seeing the complainant fighting aggressively.

I have no knowledge of the complainant’s injury until 26 February 2007 when the complainant presented himself together with his relatives at Iyotafau village demanding compensation of K10, 000.00. He had a plastered arm. He gave us the dead line to pay up by 01 May 2007. At the time of the argument and fighting he was aggressive and picking fights on all his in-laws.

On the 01 of May 2007 the Complainant and the defendants and their respective village court officials got together to settle the conflict only to be disrupted by the complainant when he started fighting the First Defendant with this plastered arm. No settlement was reached and the Village Court officials advised the complainant to get proper Village Court Summons to settle the problem. The complainant has lied to the Court in his statement to cover the real issue, his fault in breaking up a marriage for money, assaulting and stabbing his wife.”

6. The second defendant Stanley Loke in his affidavit marked EXHIBIT ‘C’ and the witness Peter Kare in his affidavit marked EXHIBIT ‘D’ gave similar evidence to that of the evidence of defendant James Kare in confirmation. Therefore I do not intend to restate their evidence again.

7. The complainant did not challenge or dispute the defendant’s evidence at all. I now discuss the two issues.

8. Issue No 1: Did the Complainant suffer the injury he complained of?

The evidence as it stands established that the defendants assaulted him by punching him. No objects such as stones or sticks were used by the defendants during the fight. The evidence of defendants James and Stanley and the witness Peter Kare is that while the complainant and Peter Kare were arguing the complainant advanced towards Peter Kare. The complainant was armed with a bush knife so defendant James Kare grabbed him to disarm. They both wrestled to the ground and rolled for sometime. Both got up, shook hands and hugged each other and the complainant began to return to his village. But then he turned back and punched defendant Stanley Loke and a fight broke up. After the fight they all shook hands and apologized to each other before the complainant returned to his village. He never complained of any pains in his right arm. The defendants were surprised to see him with an arm plastered a week later. He did not challenge or dispute this evidence at all.

9. The complainant gave evidence that the defendants assaulted him by punching him. After the fight he went to Rumbau Aid Post for treatment. There he was told by a medical orderly that he had a fracture on his arm and told him to get proper treatment at Goroka Base Hospital. This he did. The Medical report (EXHIBIT ‘A’) showed he had a fracture on his right ulna. No X-Ray result was produced in Court though he said he had his injured arm X-Rayed. The Medical report on paper is one thing and without the proof of the X-Ray results, the medical report on its own is not sufficient as proof of any broken or fractured bones in the arm. The absence of such evidence is fatal to the complainant’s evidence.

10. The defendants’ evidence shows that on the 01 of May 2007 during a peace mediation at Iyotafau village, the complainant again picked fights on the defendants. And although his right arm was still been plastered, he was fighting as if he did not suffer any broken arm. This was not disputed by the complainant. Having considered that the complainant failed to produce proof by X-Ray result of his injured arm and that though his right arm was in plaster and yet he was fighting as if his arm was not injured, I could not find on the balance of probabilities that he suffered a fracture right ulna on the 21 of February 2007 during the fight with the defendants.

11. Issue No 2: Did the Complainant come with clean hands?

In equity, the maxim: “He who seeks equity must come with clean hands,” need to be applied here in this case. The evidence given before this Court established the followings: (a) The complainant was involved in the break down of his brother in-law Peter Kare’s marriage by involving Peter Kare’s wife to commit adultery with a teacher namely Ladem; (b) The complainant assaulted his own wife by stabbing her with a bayonet; (c) The complainant was the one who picked up fights with the defendants. His actions were quite improper especially towards his in-laws.

12. Justice Woods, as then he was said in Kiua Nikints –v- Moki Kumints [1990] PNGLR 123: “If you want equity you must come with equity, you must come with clean hands or you must strictly comply yourself.” The Court will not given you the relief you seek if you are found to be the cause of the problem, because you did not come with clean hands. The Court has the discretion to award or not to award the relief. It is not a right given in the law. Justice Doherty has this to say in the case of In the Matter of Yabo Sabo for Nagila clan of Amele in Madang Province [1995] PNGLR 13 at p.16:

The third point is whether the applicant comes before this Court with clean hands. This is a Court giving equitable relief. That means the Court has a discretion vested in it to decide whether to award the relief, it is not a right written down in a law of the parliament. The rules of equity says if you want the court to give your certain relief or rights, then you must have acted properly.”

13. In the present case the evidence clearly shows that the complainant was at fault. He caused the problem that resulted a fight on the 21 of February. And even on that day he challenged and rushed at the defendants that broke out into a fight. Considering these circumstances, I find that the complainant did not come to this Court with clean hands, accordingly he is not entitled to the relief he sought. I find the defendants not liable and I order that the case be dismissed without costs.

For the Complainant – In Person
For the Defendants – In Person