Korai v Kendekei [2008] PGDC 158; DC5009 (24 June 2008)

DC5009
PAPUPA NEW GUINEA

[IN THE DISTRICT COURT OF JUSTICE]

Civil Jurisdiction

DC. N0. 2552 -2554 OF 2007

HELEN KORAI

Complainant
-V-

SUSAN WASAPE KENDEKEI
Defendant

Port Moresby: Pupaka

2008: 3^rd June

The Complainant in person
No appearance by the Defendant

24^th June 2008

PUPAKA, PM: In three separate proceedings the complainant sued the defendant for equally separate awards of damages. She also sued for protection (bind over) orders in each of the cases. The three cases were dealt with together, from the beginning, for obvious reasons, but mostly because the incidents that gave rise to these claims are related and flow on from each other. The cases were registered separately so the distinction between them is maintained but subject to evidence adduced in support of them sustaining that distinction. If it transpires that three suits amount to divider of causes and raise issues of duplicity, contrary to Section 38 of the District Courts Act, then these matters would be treated as one and the excess will have to be foregone in accordance with the (above) provision. If the distinction is maintained on the evidence then each case will have a different and separate outcome of its own.

These matters were heard ex parte. The defendant simply failed to attend over many adjournments. It is clear that she does not intend to be heard in defence. The complainant is entitled to present her evidence ex parte in the circumstances. She therefore presented into evidence her affidavit evidence filed in advance, for an expedited outcome, and closed case and requested the Court for a decision in each of her matters. What follows hereon is a considered decision in relation to each of these three cases.

D.C. No. 2552 of 2007

The 1^st case, D.C. No. 2552 of 2007, is based on the pleadings “For that you did acknowledge owing the complainant money for providing you meals, accommodation, financial assistance including funding your legal proceeding and other services rendered to you towards your life safety against your husband Mr. Christopher Kone that you forcefully brought upon the complainant thereby placing the complainant’s life in danger of being since your husband is violent person was stalking both of you in and around Port Moresby.” (sic)
The complainant seeks K5000.00 from the defendant. She also seeks exemplary and aggravated damages plus protection orders.

In support of the claim the complainant filed and tendered two affidavits, both dated 22^nd November 2007. She repeats most things said in one affidavit in the other.

I understand this case, D.C. No. 2552 of 2007, is a generic claim for compensation for having taken care of the defendant when she needed money and protection and comfort, when the latter was going though a rough patch in her marriage.

However just how much exactly was spend towards the benefit of the defendant is left unsaid. Court cases are not about guess work. The complainant needed to provide evidence of expenditure towards the benefit of the defendant. Also some sort of value must be place on the risks, from the defendant’s husband, that the complainant assumed by doing all that she allegedly did for the complainant. How much is for the loss suffered and how much is it for the assumption of risk? There simply is no clear evidence in relation to these matters. Obviously the complainant has left is wide open for the Court to guess at what is right. That is not how parties may prove their claims in court. People need to present evidence of loss suffered, not make general assertions wrapped up in emotion. After all the court is, in fact all courts are courts of law not courts of sympathy.
There is a brief reference of a conversation between the parties, as recalled by the complainant, that the defendant would compensate her when she had the money. However I note that the conversation generally was in the context of allegations of adultery that pitted these two former friends against each other. Reference to what the complainant did for the defendant and the latter’s acknowledging it was a remark uttered of hand, in the course of the arguments over their adultery issue. Compensation was not the issue discussed then.

Notwithstanding all of that, whether there was obligation created upon the defendant when the complainant cared for or supported the defendant is the key issue. Yet the evidence does show that when the services, (protection, food and support), was provided there was no obligation on anyone: There was no obligation on the complainant to do what she did for the defendant. On the other hand the defendant, based on the same available evidence, did not provide consideration, by way of an undertaking or promise to make any future repayment. No legally binding obligations were created at the relevant times. Future repayment was not something that was mutually agreed upon to found this claim. Moreover, had the spite between the two former best friends not occurred could this claim for compensation still arise? I doubt it very much. That simply is that.

Consequently, for the reasons given above, I must dismiss the complainant’s case in D.C. No. 2552 of 2007.

D.C. No. 2553 of 2007

The pleading in the 2^nd case is “For that you did spread false information among her work mates, friends peers and others generally that the complainant used sorcery to lure your husband Troy Roy Magari Basix to leave you for the complainant knowing very well that it is not true at all thereby tarnishing her name and reputation.” (sic)

In this case the complainant seeks K10, 00.00. Like in the 1^st case the complainant also claims exemplary and aggravated damages plus protection orders against the defendant.

In support of this 2^nd claim the complainant filed three affidavits by herself. One is dated 22^nd November 2007. It is the same affidavit filed for the purposes of the 1^st and 3^rd cases. She filed another affidavit dated 15^th May 2008, obviously in response to a defence filed by the defendant, and her 3^rd affidavit is dated 2^nd June 2008. There are affidavits by one Peter Toni; a James Yakopo; a Francis Jacob; and a Michael Piel; all dated 2^nd June 2008.

I understand this complaint, D.C. No. 2553 of 2007, to be a specific claim for compensation for falsely accusing the complainant of luring or enticing the defendant’s husband through sorcery.

Apart from a brief reference to being accused of enticing by sorcery in her affidavit dated 22^nd November 2007, there is no other evidence of the sorcery allegation being spoken or otherwise communicated by the defendant to members of the public other than the complainant. There is no evidence of publication of the allegation of luring by sorcery. The allegation of practicing sorcery, on its own, kept between the complainant and the defendant, cannot tarnish the name and reputation of the complainant. It must be communicated to a person or persons other than the complainant. Damage, as a matter of law and fact, can only be as a result of publication.

Also, based on the evidence of the complainant and her witnesses James Yakopo and Michael Piel (her fiancé?), the complainant and the defendant’s husband Roy Magari, were at least seeing each other. Meetings at the airport and other places in the city are admitted. So at least there is some substance in the “luring” or enticing allegation. Whether it was more a case of Casanova man Roy Magari doing the catching more than the complainant luring him is beside the point. It suffices that there was cause for the defendant’s accusation of the complainant invading her personal space. There may otherwise be a plausible defence of a half truth, excepting of course the use of sorcery to compel or lure the man.

In any event the only time sorcery was alleged or mentioned by the defendant was in an early morning telephone conversation between her and the complainant on the 28^th of May 2007. The complainant may have relayed the sorcery allegation to their mutual man Roy Magari but that cannot amount to publication by the defendant. As I said damaging or tarnishing of reputation by categorization of sorcery is nil were there is no publication. Publication causes damage. No one else heard, so there was no publication. If the utterance was made as alleged, the audience was just one – the complainant herself. Therefore damages cannot be safely imputed to have occurred.

Consequently I also dismiss the complainant’s damages claim, for being branded a sorceress, as sought in D.C. No. 2553 of 2007.

D. C. 2554 of 2007

The complainant’s 3^rd claim is also for damages of K10, 000.00, exemplary and aggravated damages plus protection orders. She pleaded “For that you did by yourself and through your associates used gross indecent abusive, insulting and threatening words towards the complainant thereby placing the complainant’s own life in danger of being harmed and injured by you and your associates.” (sic)

I understand that this case in D.C. No. 2554 of 2007 to be a general claim for compensation for using grossly indecent and abusive and insulting and threatening words. I cannot immediately appreciate how the use of indecent language can put the complainant’s life in danger per se but I suppose that is were the threats aspect come in, in the anticipated enforcement of the threats.

For evidence the complainant filed and tendered only one affidavit, which is her affidavit dated 22^nd November 2007. This affidavit does allude to the tirade of abuse and indecency complained of. It also makes mention the threats of harm and abuse as well.

However because these three cases have been heard together I am aware that the complainant has filed all the collaborative evidence, from her witnesses, that she needed to rely upon for this particular claim (3^rd claim), in her 2^nd case – in D.C. No. 2553 of 2007. That 2^nd case is in relation to the allegation of false accusation of the complainant luring the defendant’s husband via sorcery.

I am unsure whether the evidence filed for one case can be used for the purposes of another case, even if these are related matters. The complainant should have filed evidence she needs for this case in this case file, bearing the particulars of this case. She should have filed her evidence of violent behaviour and threats and foul language in this case – D.C. No. 2554 of 2007. Instead she seems to have consciously placed all those in D.C. No. 2553 of 2007. The documents, i.e., the affidavits filed by herself and her witnesses, attesting to the utterance of foul language and treats, bear the 2^nd cases’ file number – D. C. No. 2553 of 2007. Yet evidence of violent behaviour and threats and foul language and the like was irrelevant in the case of luring by sorcery, whereas they are material and relevant evidence in this 3^rd case.

In all the circumstances of these matters; particularly considering that the complainant is unrepresented and the defendant, having made a brief appearance previously, has seemingly decided not to defend this, and that these cases are being considered ex parte, it would be unfortunate and unfair to disregard apparently credible evidence, obviously intended to be considered by the Court.

Despite the fact that the complainant has not strictly complied with simple rules of evidence, not fully taking into account relevant evidence may result in injustice. Therefore I consider it appropriate, particularly in the absence of any contrary arguments, to accept and relay on evidence filed for another but related case/claim for the purposes of this instant case, D.C. No. 2554 of 2007.

Findings in relation to D.C. No. 2554 of 2007

In the circumstances I must accept that the words complained of, including foul and obscene language were spoken and uttered against the complainant by the defendant. I also accept that the defendant threatened the complainant with violence and harm.

In the circumstances I accept that the complainant was needlessly abused, hurt and victimized by the defendant through foul and obscene language and threats of violence and physical harm.

I accept the language used by the defendant, now repeated in evidence is, even if not reported verbatim, to be a fairly accurate report of the foul and obscene contents uttered. I find it sickening that people could be so debased, particularly apparently educated females. It seems the parties not only parted ways as best friends, but in fact became bitter enemies, and all for a bloke who had no qualms about swinging from one to the other and not doubt enjoyed doing it. The language used no doubt hurt and it was obviously intended to hurt. Further, considering that there would have been intention behind the threats issued, particularly given that it emanated from a spitted and scorned woman, the complainant can only have been stressed out and terrified to say the least.

I think the complainant is entitled to be compensated. Even if there is some truth in the enticement allegation, the defendant was entitled to seek redress though lawful ways, not be abusive and threatening. As the say goes, no two wrongs can make a right!

An aggregate sum of K10, 000.00 was sought for enduring the verbal abuse and harassment.
There is no evidence of any loss, i.e., ascertainable loss, emanating from the abuse and threats. For instance there is no evidence of the complainant having been hospitalized or sedated or counseled or in some way, at some expenses, treated as a result of suffering an ailment directly resulting from the harassment and abuse.

While the abuse and harassment was prolonged and protracted, as it was not a one off incident. The abuse and harassment were also exerted and administered over a period of time, through various ways. However it was not scaring or long lasting though. At least if it was scaring or long lasting, there is no evidence of it. Nevertheless, when it lasted, it was intended to be stressful and sure enough it did stress out the complainant as intended.

There is no comparative analysis of precedents or examples to indicate how much is a reasonable compensation, not to mention how much would be adequate compensation. There is no evidence or submissions on quantum. I cannot know how much is reasonable compensation for the verbal abuse and harassment and intimidation the complainant endured. I think the complainant and defendants are both at fault for not suggesting an appropriate award. In the end it, i.e., the amount assessed, will be pure guess work on the part of the Court. Yet it just has to be that way. I cannot possibly know what adequate or reasonable compensation is off hand. There is no evidence to assist the Court in computing a balanced sum. Therefore what is considered reasonable by the Court, for no other reason than the figure seems reasonable, will have to be accepted by the parties. Neither of them endeavoured to assist the Court. The complainant pleaded the limits of this Court’s jurisdiction without saying why K10, 000.00, and not anything less, is adequate. The defendant also does not say what amount is reasonable. Therefore both parties will have to accept an award arbitrarily assessed by the Court and live with it.

Consequently, for no other reason then that the figure seems and sounds right, I consider K4, 000.00 is adequate compensation. I consider it to be reasonable in the circumstances. Any lesser sum seems to me to be too little and a sum higher than K4000.00 seems too much in the circumstances.

In the end, in all the circumstances of the case, I hereby enter judgment for the complainant in the sum of K4000.00. There shall be interests paid on the adjudged award of K4000.00 at the statutory rate of 8% from the date of summons to the date of settlement. The complainant shall have her nominal costs of this proceeding.

__________________________________________________
The Complainant in person
The Defendant in person