Tassi v Kale [2011] PGDC 11; DC1061 (7 February 2011)

1061

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE
SITTING IN ITS CIVIL ( GRADE FIVE ) JURISDICTION]
GFCi 121 of 2010

BETWEEN

BEBI TASSI
Complainant

AND

SIR KOBALE KALE
Defendant

Goroka : G Madu
2010 : November 22 December 20
2011: January 12, 18, 31 February 7

CIVIL- Claim for damages – general damages – shame and humiliation forceful sex – defendant liable – damages awarded.

Cases Cited

Nil

Reference

Nil

Counsel
Bebi Tassi, for the Complainant
Nil, for the Defendant

7 February 2011

EXPARTE JUDGEMENT

G. Madu PM .The complainant alleged that the defendant had sexual intercourse without her consent and claims damages in the sum of K10,000.00.

2. The complainant instituted the proceeding by way of summons against the defendants on 7th October 2010. It was served on defendant with proof of service returned on 26th October 2010. The matter came first for mention on 22nd November 2010 at 9.00am. The defendants made no appearance and case was adjourned to 20th November 2010 at 9.00am for further mention. The court also gave orders to the Clerk of Court to issue notice to the defendant to appear on the mentioned date.

3. The case was again mentioned on 20th December 2010 at 9.00am and the defendants made no appearance. The case was then mentioned on 18th January 2011 at 9.00am. The complainant was instructed to file his affidavit. The defendant made no appearance when the case was mentioned. A notice was issued to defendants advising of the mentioned date. The case was again mentioned on 31st January 2011 at 9.00am for ex-parte hearing but did not proceed as the complainant did not file her affidavit. The case was further adjourned to 7th February 2011 and the defendants again made no appearance. The court then proceeded to conduct ex-parte hearing because sufficient notices was given to the defendant, but failed to appear in person or by his counsel. He also failed respond to the complaint by filing his defence and affidavits.

4. The facts are the Complainant comes from Sinasian in Simbu Province and is married to Tassi Tutu of Benabena Eastern Highlands Province. She was tasked by the defendant to find a vacant land in Goroka for purpose of expanding his business in Goroka. The complainant and her husband successfully found a piece of land at Komiufa village and her husband sent her to Kundiawa to advice the defendant about the land.

5. It was on 23rd October 2008 the complainant travelled to Kundiawa and then went to Sir KOBALE Kale’s house to inform him about the land. It was at the house where he allegedly grabbed her hand in the process and kissed the complainant and forced her to hold his penis with her right hand and then had sexual intercourse. He threatened her not to tell anybody about what he did and then told her that “his penis is right size for her cunt and had sex with to marry her”

6. The complainant alleged that she gave into to having sex with him because the defendant gave instructions to his body guard to kill her if she resisted and raised alarm to anyone who would come to her rescue. The complainant however resisted which resulted in her being seriously assaulted by the defendant’s two body guards and sustained serious wounds and also had K710.00 cash stolen.

7. The complainant claims that this incident had caused the complainant’s family and her husband’s family to put the demand to the defendant to pay compensation in the amount of K20,000.00 plus five live pigs but the defendant did not meet their demand.

8. The complainant claims that the action of the defendant has caused the complainant to suffer loss of expectation of respect, authority and trust from her husband. The complainant is seeking compensation in the sum of K10,000.00 for having sexual intercourse without consent.

ISSUE:

9. The only issue is what amount of compensation is appropriate in the circumstances.

EVIDENCE:

10. The complainant Bebi Tassi deposed that she is originally from Sina Sina District of Simbu Province and married to Tassi Tutu of Bena Bena in the Eastern Highlands Province, now resides at Komiufa village, outside Goroka.

11. The complainant said defendant and herself knew each other well being from the Sina Sina District. Because of this relationship the complainant went ahead to look for a vacant land for the defendant to expand his business in Goroka and eventually managed to find one. The complainant travelled to Kundiawa on 23rd of October 2008 to inform the defendant about the land she found at Komiufa village and went to his house at Kundiawa town to see the defendant.

12. While at his house the defendant grabbed complainants hands and pulled her closer against his body and forcefully kissed her and then force her to hold his penis with right hand. The defendant forced her down on to his bed and forcefully had sexual intercourse with her and stated he will marry her.

13. After the incident the complainant reported the matter to the police at Kundiawa and the defendant was arrested but the matter has not progressed since. The complainant was assaulted by the defendant’s body guards and sustained injuries to her face and body and stole her K710.00 in cash.

14. Both the families of the complainant and her husband demanded the defendant to pay compensation for his action.

15. The complainant’s witness Tassi Tutu in his affidavit stated Bebi Tassi is married to him and had been married for 20 years and reside at Komiufa village. The witness said that his wife informed him that the defendant was her clan’s man and he asked his wife to find a vacant land for him to expand his business. The witness said that having more respect for the defendant as an in- law they took the matter as their personal business and negotiated and consulted various people and eventually found a piece of land that was available for sale.

16. The witness said he sent his wife to inform the defendant about the land available for sale on 23rd October 2008. When his wife went to the defendant’s house to inform him about the availability of the land, the defendant with a wrong mind had sexual intercourse forcefully in his bedroom. Whilst struggling to escape from the defendant, the complainant sustained injuries to her face and body. The witness stated as husband he felt very humiliated and worried about his wife’s life and what the defendant did to her and wants him and his wife be compensated.

17. The defendant did not file his affidavit and failed to give his reasons. He has totally ignored the notices served on him to appear in person or by his legal representative. The only evidence available is from the complainant. Complainant’s evidence is overwhelming and I find that the complainant has proven her case on balance of probability. It is probable that the defendant forced the complainant to hold his penis and to have sexual intercourse therefore suffered general damages for pain, shock and humiliation. I find defendant liable for his action.

DAMAGES:

18. There are no cases that can be used as a guide to award appropriate quantum of damages. It is very clear from evidence adduced that the complainant is a married woman and the defendant is also a very well respected person in the his Simbu community and PNG however his actions towards the complainant demeans the calibre of person he stands out be and put into question his reputation.

19. His action of forcing the complainant to have sexual intercourse is degrading and humiliating and portray’s the complainant as a sex object. He failed to appreciate that the complainant is a married women and that he was intruding into somebody’s privacy. I am satisfied that the complainant did very much suffered general damages and I award damages in the sum of K6,710.00 plus cost and interest.

Order accordingly.

_____________________________
Lawyer for the Complainant: Bebi Tassi In Person
Lawyer for the Defendant: Nil