Batao v Kuri [2008] PGDC 2; DC664 (11 January 2008)

DC664

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

DCCi 21 of 2007

BETWEEN

HANTA BATAO
Complainant

AND

DANNY KURI
Defendant

Kainantu: I Kurei
2008: January 04, January 11

CIVIL – Claims Damages – Setting fire to dwelling houses - Arson

Cases Cited
Nil

References
1. Wrongs (Miscellaneous Provicisons) Act, s 37 (2)

Counsel
For the Complainant – In Person
For the Defendant – In Person

04 January 2008

DECISION OF THE COURT

Background

Originally the matter came before this Court on 23 May 2007. The claim was for destruction of properties belonging to the Complainant by the Defendant’s relatives.

2. Matter was referred by District Court for Alternative Dispute Resolution (ADR) by the parties and the community leaders. Complainant returned to Court on 06 June 2007 and informed the Court, twice leaders called for mediation but Defendant failed to turn up.

3. Matter was set for Ex-parte Hearing as Defendant failed to appear on set dates. Eventually matter was heard on 18 July 2007, Ex-parte Judgment entered with Total amount of K 8, 000.00 for the Complainant on 31 July 2007.

4. The Ex-parte Judgment remained unsatisfied until Application to Set Aside the Ex-parte Order was filed on 07 August 2007. Application was dealt with on 31 October 2007.

5. The Ex-parte Order was set aside and matter was to be heard in full. On 16 November 2007, hearing commenced and ended on 21 November 2007.

The Decision was to be handed down on 19 December 2007, however due to it being not ready it adjourned to 04 January 2008.

Facts

6. There was a meeting/mediation arranged between the Complainant and Defendant. The purpose of the mediation was to address the issue of Defendant having affairs with Complainant’s wife. It was at the process of mediation, Complainant could not hold back his anger/frustrations and he attacked the Defendant with bush knife.

7. The Defendant was cut on the head. The news of the Defendant being attacked spread to Defendant’s Hauslain. The Hauslain mobilised and went to hunt the Complainant.

8. Since Complainant was not seen, the mob then went on to destroy and eventually burnt down the Complainant’s houses. Immediately after the destruction of Complainant’s properties, the Complainant’s relatives paid compensation of K 800.00 and a pig plus garden food.

9. The demand made by Defendant for his injuries was about K 2, 000.00 but only K 800.00 was paid.

Issue

10. Was there destruction to Complainant’s properties including dwelling house? Was the Defendant responsible for the destruction of
Complainant’s properties? Did the Complainant contributed towards the destruction of his properties or his miseries? Is the Defendant liable for actions by his relatives? Did the defendant cause the destruction of properties?

Law

Law of Tort
Underlying Law Act
Customary Practices
Wrongs Miscellaneous Provisions Act
Contributory negligence S 37 (2) © W (MP) A

Evidence

11. There is evidence that Complainant’s wife prior to her marriage to the Complainant was former girl friend of the Defendant. Complainant suspected his wife. As a result he assaulted her and she has gone to her parents.

12. The mediation was called to clear the issue of adultery between Complainant’s wife and the Defendant. Complainant upon seeing the Defendant lost control of himself and attacked the Defendant with bush knife.

13. Defendant did sustained injuries to his head. The extent of the injuries has not been established. The Defendant’s Hauslain upon hearing of the attack on the Defendant mobilised and caused the damages to Complainant’s properties. Also Complainant’s brother was injured during the commotion.

14. The Complainant’s witness have identified some of the persons responsible for the destruction and gutting of the Complainant’s properties.

Soon after compensation was paid to Defendant for the injuries caused to him, the actual demand has not been off seted but at least some money, a pig and food were paid.

Evidence in Dispute

15. Defendant denies having adulterous affairs with Complainant’s wife. This is in direct contrast of what Complainant’s statement as filed. As she admits the sexual affair she had with the Defendant. She was not revealing her adulterous affairs with Defendant until the destruction of the house and properties. Defendant denies taking active role in the destruction process of the properties.

Assessment of Evidence

16. Most of Complainant’s evidence is filed in Affidavit. On the other hand Defendant’s evidence is basically given orally. The deponents in the Affidavit evidence were cross-examined, as well as those who give oral evidence.

17. From the evidence, there is no denial of the destruction to Complainant’s properties. Indeed the destruction was caused by Defendant’s relatives.
The extent of the destruction goes as per a complete burning down of the house.

18. What the Defendant is raising in his defence is, all the destruction could not take place had he not been attacked by the Complainant.

In other words, Complainant had contributed towards his misery, or he be held liable for the destruction that is contributory negligence.

Finding

19. The onus the complainant has is to establish his case on balance of probabilities. Indeed the Complainant has established that onus; there was complete destruction of his properties.

20. On the same token, the Complainant is also liable for contributory negligence here. That is to say, whatever the court awards certain percentage to deducted on basis of fairness and equity.

Damage

21. Claim is for K 7, 409.00 – total cost of damage. Claim for frustration and inconvenience is K 1, 000.00. Also costs are being claimed. In considering what is now before me, I have no hesitation in making awards on the properties of Complainant which were destroyed. Also make certain deduction for Complainant’s role in the whole saga.

22. The Complainant claims, he has paid compensation to the Defendant, this is why he be compensated. I make my assessment not on that basis.

I see the attack was the Defendant. However Complainant came out worse. In other words he got more then what he bargain for.

23. In the circumstance, his attack does not justify defendant’s relatives to destroy his properties. Their action is an act of taking law into their own hands. If it is a customary practice, then it is a bad one and PNG Constitution does not allow for it.

However, in the final analysis awards made with deduction.

Orders made accordingly.

For the Complainant - In Person
For the Defendant - In Person