Jagipa v Imaga [2008] PGDC 150; DC980 (8 September 2008)

DC980
PAPUPA NEW GUINEA

[IN THE DISTRICT COURT OF JUSTICE]

Civil Jurisdiction

DC. N0. 887 OF 2008

EUNICE JAGIPA

Complainant

-V-

BORTHA IMAGA

Defendant

Port Moresby: Pupaka

2008: 8^th September

The Complainant in person
The Defendant in person

8^th September 2008
PUPAKA, PM: This case was fixed for hearing today, from 1^st September 2008. The parties were directed to file affidavit evidence, which they have. They now desire that the Court consider their affidavits and decide on the issues of assault and compensation.

Facts

It is not exactly clear just how many times these two women have squabbled over one man, who probably is not in the least concerned that they do. There is a copy order dated 29^th May 2008, dismissing a case against this defendant for lack of evidence. If that was a case of assault upon this same complainant then that assault may have occurred after this instant case was commenced on 26^th May 2008.

I say that because other undisputed facts herein reveal that the defendant confronted the complainant at 9 Mile Market on 21^st December 2007 and proceeded to verbally and physically assault the her (complainant). The latter’s clothes were torn off her and descriptive verbal abuses were hurled at her. Evidence from both sides shows that the defendant’s conduct was reported to the police and she was charged for assault. Her case, after a few mentions of it, was listed for hearing before the Boroko District on 29^th January2008. However the complainant could not attend court to testify so the defendant was acquitted for lack of evidence. There is an order to that effect dated 29^th January 2008 (evidenced by a Certificate of Dismissal of even date). Presumably this order evidences the alleged events of 21^st December 2007 at the 9 Mile Market.

There is also evidence of previous charges against this defendant for which there were actual convictions and penalties recorded.

In any event the story is that this instant suit is based on the 21^st December 2007 event at 9 Mile Market. The accepted facts show that the defendant was acquitted for lack of evidence, only because the complainant did not testify against her on the day of trial.

Is dismissal of a criminal charge a lawful
barrier /defence to any civil suit for damages?

The lawful consequence of the dismissal of a criminal charge for lack of evidence, due to lack of prosecution, is that it is no barrier to a civil suit for damages, over and based on the same incident that grounded the criminal charge. Otherwise, if it were not lawful or possible the instant case will not progress beyond this juncture.

Therefore, without further ado, I shall rule that the complainant is within her rights to commence this proceeding, seeking the order she seeks. However it is another matter as to whether there was any verbal and physical assault; for that will depend on the evidence.

I will expound further: There was no trial of the defendant. There was no trial on the issue of guilt. There was no judicial deliberation on the issue of guilt. The criminal case (information) was simply dismissed because there were no witnesses and no evidence from any. Yet, nevertheless, as a matter of law, the same or a similar criminal charge is not now possible in relation to the same incident. There is, as a matter of law, an altra foi acquit situation. It simply means there was an acquittal and the criminal case has ended.

However that, i.e., an altra foi acquit situation, or an altra foi convict situation for that matter, cannot mean that the complainant cannot seek damages in a civil suit. As it is, guilt was never deliberated upon and therefore liability for damages for injury is still an open issue. There is no res judicata situation. For instance; had the defendant been found not guilty after a trial and acquitted as a result, then the complainant may not sue for damages; at least in most cases anyway – sometimes injured persons may still sue for damages despite acquittal after trial, albeit subject to apportionment of liabilities for contributory negligence or the like.

Is there any defence on the merits raised or pleaded?

Permissiveness in law for the complainant to sue for damages despite an acquittal does not mean there is no need for the complainant to prove injuries and or losses. The ordinary rules for proof and evidence apply. The complainant must still prove injury and losses. As for the defendant, she retains all rights to defend if she can.

That being said I note that the defendant has filed relatively lengthy affidavits and has said many things. One such contention, pushed hard by her, is the obvious point that she is still the policeman’s only legal wife and not anyone else, including the complainant. It seems theirs was a statutory marriage and it has not been dissolved as yet. Her point is clear and the complainant cannot challenge it in any. However the complainant does not need to address that point – the contention is irrelevant for the purposes of her claim for damages.
The defendant’s other contentions, including that the complainant gets portions of the policeman’s wages and the complainant has a relationship him, are also matters not directly relevant to the issue at hand – which is of an assault and this consequential damages claim.

These two ladies have endured much mental and physical strain due to the fact that one man, a member of the Royal Papua New Guinea Constabulary, rules their hearts. Arguments and issues of love, marriage, and money are not new to them. Therefore they should either get over it by now or learn to live with these issues.

For whatever it maybe worth I do note that of these two feuding women, the man seems to prefer only one of them and expresses no fondness for the other. He leaves it in no doubt who he cares so little for. But again his feelings do not impinge on the issues here.

Moreover, on the pivotal issue of whether there was assault, either verbal and or physical, upon the complainant by the defendant, there is no defence at all. The defendant says nothing on it. She neither denies nor admits the allegations. She has simply failed to say she did not assault the complainant. In law that settles the issue. Liability is now in no doubt. She is liable. This Court must find the defendant liable to the complainant for the verbal and physical assault at 9 Mile Market on the 21^st of December 2007. Otherwise, to not find liability is to decide contrary to the weight of the evidence.

Quantum

How much does the complainant deserve by way of compensation? First of all any award cannot exceed K1000.00, because that is the limit of this complainant’s claim. She wanted no more than K1000.00.

While K1000.00 is not a lot of money these days, the complainant does not quantify her damages. She seems to have left that for the Court to do on her behalf. Unfortunately that is not how things work in the courtroom. She must say how much is for the stripping, how much is for the verbal abuse, and how much is for the obvious consequential mental distress. Once that is said the Court can then decide if there would be any deductions for anything, if necessary.

In the end I think the complainant is entitled to something. Normally it is a good practice to play safe and error only on the side of caution. But whatever is a suitable amount is purely guess work on the part of the Court. In the circumstances though, it shall have to be.

I do note that through the years the defendant seems to have been the aggressive party. Sadly though, she must understand that there is a lot of onus on the part of the man but he does not seem to want to have anything to do with her. He is only obligated to maintain the children and he seems to be doing that. Ergo the defendant must, by now, wise up to the fact that she may be needlessly seeking affections, if ever she does so, of a man who does not care that she exists. She must get used to the idea that she needs to move on.

In the end I deem it fair that an award of K800.00 is reasonable. Consequently I enter judgment for the complainant in the sum of K800.00 as full and final compensation for the verbal and physical assault accessioned upon her by the defendant on the 21^st of December 2007 at the 9 Mile Market. There shall be no interests paid but the complainant shall have her nominal costs of this proceeding.

_______________________________________________________

The parties represented themselves in person