Didi v Korowaro [2008] PGDC 72; DC710 (21 January 2008)

DC710

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

GFCi 118 of 2007

BETWEEN

HELEN DIDI
Applicant

AND

BEBES KOROWARO
Respondent

Goroka: M Gauli
2007: December 12
2008: January 14, 21

CIVIL - Miscellaneous case – Application to set aside warrant of execution is issued by a Village Court.

Cases Cited:
Nil

References:
1. Section 92 of the Village Courts Act 1989

Counsels:
For the Applicant - Mr. A. Bino of Pilisa Lawyers
For the Defendant - In Person

21 January 2008

DECISION OF COURT

M Gauli, PM: This is an application by Helen Didi to set aside the warrant of execution issued by Magistrate Mr. G. Vetunawa of the Goroka District Court on the 08 of November 2007 for unsettle judgment order of the sum of K500.00 plus two pigs as ordered by the District Court hearing the appeal.

2. Background of the case

On 28 August 2006, the respondent Mr. Bebes Korowaro took the applicant Helen Didi before the Asaroufa Village Court for stealing the pig. The said Village Court ordered Helen Didi to compensate Bebes Korowaro in the sum of K500.00 and to pay a court fine of K20.00 Helen Didi appealed against that decision to the District Court. Magistrate Mr. G. Vetunawa on the 08 of November 2006 upheld the Village Court decision and quashed the appeal. The District Court Magistarte further ordered Helen Didi to return the remaining pigs to Mr. Bebes Korowaro forthwith. The Village Court order of the 28 August 2006 never ordered the return of the remaining pigs to Mr. Korowaro. And on the 08 November 2006 the District Court Magistrate issued the warrant of execution on the same day. And on the 12 September 2007 Helen Didi file an application seeking orders to set aside the said warrant of execution.

3. Hearing of the Application

Both parties have filed affidavits. Both parties agreed for a trial by affidavit only and the parties were invited to make written submissions before I could determine the application. I then adjourned the proceedings from the 18 December 2007 to 14 January 2008 for their submissions. The respondent Mr. Korowaro has filed his submission in Court on the 11 January 2008. The applicant has not field her submission by her lawyer since the case was adjourned on the 18 December 2007. I have read the affidavits filed by the parties and submission. The affidavit of witness Michael Kui Dirua for the respondent filed on 10 January 2008 will not be given consideration as this was filed after all affidavits from witnesses were closed on the 18 December.

4. The applicant Helen Didi has only herself who field affidavit evidence in support of her applicant. The respondent has field affidavits from himself and his witnesses namely Gitene Somare and Clara Korowaro. Both parties have also filed replies to the affidavits filed by their opponent.

5. The applicant Helen Didi deposed in her affidavit that following the death of her father, her late father’s uncles gave K500.00 cash plus four medium size pigs as a customary obligation. This would have to be repaid in two hundred folds for the head pay later to her late father’s uncle’s or relatives. One of these pigs was given to the respondent Mr. Bebes Korowaro. That pig was not been well looked after and was on a verge of dying. So the applicant took the pig away to raise it up for the respondent. After six months the pig gained weight and healthy and ready for slaughter. She told the respondent to pick the pig up but he failed to do so.

6. When the time came to repay the applicant’s late father’s uncles, the respondent Mr. B. Korowaro defaulted in his repayment. And so the applicant Helen Didi had to repay K1, 000.00 cash for the K500.00. This exchange took place in Chimbu. The respondent and his wife (Clara Korowaro) sent the applicant to pick up the pig at Kama in Goroka for this occasion in Chimbu. But she (Helen) had problems in transporting pig to Chimbu as she had no transport. Helen told her late father’s relatives that due to transport difficulties she would pay them K200.00 in settlement of the ownership of the pig which was agreed on.

7. Then on 14 August 2006 Mr. B. Korowaro took Helen to Lowa No. 2 Village Court and the Court ordered her to pay K500.00 to Mr. B. Korowaro as compensation and a fine of K20.00. Helen appealed against that Village Court order to the District Court in Goroka. The proceedings before the Village Court was that Helen stole the respondent’s pig. The District Court Magistrate hearing the appeal on the 8 November 2006 upheld the Village Court order and ordered Helen to pay Mr. B. Korowaro a sum of K500.00 and return the remaining pigs to him forthwith. She has not complied to that order.

8. On the 14 November 2006, the defendant in a truck load of his relatives went to Helen’s residence in Kama and assaulted her. On 15 November, Helen paid K500.00 in at Goroka District Court. That money was later collected by the respondent’s wife Clara Korowaro. That same day defendant’s relatives followed Helen to her resident and demanded to take one of the pigs. And so she let them pick up one of the pigs as they were insisting. Later that day the defendant in company of two policemen went to her residence plus some young men. The respondent and his relatives forcefully entered and searched her house in the presence of the two policemen. And they took away one of her pigs worth K1, 500.00. And they told her that they will be back to take two more pigs from her.

9. The respondent Mr. B. Korowaro’s evidence is that during the funeral of Helen’s late father Kui Dirua, he contributed K5, 700.00 and so he was given one of the four pigs by Michael as a token of appreciation. During the collection period to pay for the head, Mr. Korowaro gave K200.00 to Michael (relative of Helen’s late father) for the pig. Michael gave Helen K500.00 to raise chicken to sell and raise enough money towards the head pay. Helen raised about 300 chicken and sold them at K20.00 each. When the time came for the head pay, Helen only returned K1, 000.00.

10. In August 2006 Helen sold one of the four pigs belonging to Mr. Korowaro for K1, 000.00 so on the 14 August 2006, Michael informed him of the sale of the pig. And so Mr. Korowaro took out the summons against Helen. She is his (Korowaro’s) wife’s younger sister. And Helen was desperate to sell off all the remaining three pigs. Between 28 August and 8 November 2006, Mr. Korowaro visited Helen’s residence five times to ensure the remaining three pigs were not sold. On 10 October 2006, he found only 2 of the 3 remaining pigs. Helen has sold the other while the appeal was still pending before the District Court.

11. Helen took Mr. Korowaro’s pig from his premises without his permission. Mr. Korowaro and his wife Clara would sometimes go to Helen’s residence to feed and look after the pigs when Helen goes away to Kundiawa. Mr. Korowaro admitted going to Helen’s residence with a truck load of his relatives to help load the three pigs on 14 November 2006.

12. The witness Mrs. Clara Korowaro deposed in her affidavit confirming that Michael gave a pig to Mr. Korowaro in recognition for his contributions to their late father’s funeral. That Helen secretly removed that pig from Mr. Korowaro’s premises. While the pig was being raised by Helen, she bore three piglets. Mrs. Clara Korowaro sometimes assisted in feeding those pigs when Helen was away. And that Helen had sold one of those three off springs without Mr. B. Korowaro’s consent.

13. The witness Gitene Somare, a Village Court Magistrate of Asaroufa Village Court (Lowa No. 2 Court) deposed in his affidavit that he was present on 24 August 2006 when the said court presided over the case between Bebes Korowaro and Helen Didi over the claim that Helen stole the pig and sold one of its off springs without Mr. Korowaro’s consent. The said Village Court found Helen had sold one of the off springs without the owners consent For K1, 000.00 and so Helen was fined K20.00 and ordered to pay K500.00 to Mr. Korowaro. She was told that the three remaining pigs still belongs to Bebes Korowaro – however this was not stated in the Village Court order.

14. From the evidence as stated above Helen did take away a pig given to Mr. Korowaro by Michael. The date she removed that pig from Mr. Korowaro’s residence is not known. Had Helen stolen that pig, I could not see any reason why Mr. Korowaro was not able to take Helen to Court at the earliest convenient time. I am not convinced that Helen stole that pig from Mr. Korowaro. I accept the evidence of Helen that she only took away the pig because it was on the verge of dying.

15. Helen must have raised that pig for some length of time. In reply to Clara Korowaro’s affidavit, she said she raised that pig for three years. While the pig was in Helen’s care the pig had three off springs. Mr. B. Korowaro and his wife at times go and feed the pigs. Helen then sold one of those off springs without Mr. Korowaro’s consent. He then sued Helen before the Village Court and that Court ordered Helen to pay Mr. Korowaro K500.00 for the pig. The Village Court order did not state or order for the return of the remaining pigs. I take it that the Village Court order in writing was never a mistake. The Court clearly recorded what was pronounced in the presence of the parties.

16. However on appeal by Helen to the District Court, Magistrate Mr. G. Vetunawa in upholding the decision of the Village Court, further ordered the return of the remaining pigs to Mr. Korowaro. The Section 92 of the Village Courts Act 1989 states and I quote:

"(1) A Magistrate hearing the appeal against, or making a review of a decision of a Village Court may –

(a) confirm the decision; or

(b) quash the decision; or

(c) order that the matter be dealt with again by the Village Court and, if he sees fit, give with the order a direction as to how any defect in the earlier proceedings may be over come.'

17. The Magistrate hearing the appeal was aware that the Village Court order did not contain any orders for the return of the remaining pigs to Mr. Korowaro. Yet Mr. Korowaro was asking for the return of the pigs during the hearing of the appeal. The District Court hearing the appeal has no powers to impose additional orders when confirming the decision of the Village Court. To do so would be contrary to the provisions of Section 92 (1) of the Act. All that the Magistrate hearing the appeal need to do is to refer the matter back to the Village Court for a retrial with directions to put right any defects noticed in the order. I find that the District Court Magistrate hearing the appeal erred in law by imposing additional order when confirming the Village Court Order. This amount to miscarriage of justice.

18. Accordingly I find that the issuant of the warrant of execution by the Magistrate of the District Court on the 8 of November 2006 is void and not enforceable. Application by Helen Didi to set aside the warrant of execution is granted. Since the applicant only seeks orders to set aside the warrant of execution I made no further orders since this proceedings is not being referred to me for a review under Section 94 of the Village Court. This Court therefore orders that the warrant of execution be set aside and that the respondent is restrained from taking out further warrants of execution against the applicant over the same subject matter. And I further order that the respondent pays the applicant’s costs.

For the Applicant - Mr. A. Bino of Pilisa Lawyers
For the Respondent - In Person