Ravei v Sibona [2017] PGDC 20; DC3050 (29 August 2017)

DC3050
PAPUA NEW GUINEA

[IN THE DISTRICT COURT OF JUSTICE

SITTING IN ITS CIVIL JURISDICTION

DCCi No. 107 of 2017

BETWEEN

LILIAN RAVEI

Complainant

AND

MICHELLE SIBONA

Defendant

Goroka: P KAUMBA

2017: August 4, 29

Civil:

Cases Cited:
Nil

References:
Nil

Counsels:

Lawyer for the Complainant - In person

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Lawyer for the Defendant- In person

29^th August, 2017

DECISION OF THE COURT

P KAUMBA, Magistrate: This is a complaint filed by the complainant alleging that the Defendant assaulted her with a handle of an umbrella on the 28^th of April 2017 at 12.00 midday at East Goroka Primary School gate (Seigu) Goroka, Eastern Highlands Province without any reasonable excuse and provocation. As a direct consequence she suffered injury to her left upper arm and she sought the following restraining orders:

(a) ‘The Defendant, her agents and servants, family members all be restrained from assaulting, intimidating, harassing, swearing and threatening the complainant at her house at Minogere Police Barracks or anywhere in public place that may in and around Goroka Town or Eastern Highlands Province or Papua New Guinea.

(b) Defendant may keep her distance 100 meters away from the complainant anywhere.

(c) Any breach of the above mentioned a custodial sentence (imprisonment) be imposed forthwith.

(d) Costs of these proceedings,

(e) Any other further orders as this Honourable Court deems proper’.

2. LAW.

District Court Act.
21 Civil Jurisdiction.

(1) Subject to this Act, in addition to any jurisdiction conferred by any other law, a Court has jurisdiction in all personal actions at law and equity where the amount or value of the claim does not exceed-

• (a) Where the Court consists of one or more Magistrates Grade V - K10, 000.00; and
• (b) Where the court consists of one or more magistrates grade IV – K8, 000.00.
  

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The District Court does not have power to issue restraining orders per se that is without prove of damage.

138 General Power of Amendment

3. On hearing of a complaint, the court may allow such amendment of the summons as it thinks just and on such terms as it thinks just, and such amendments shall be made as are necessary for the purposes of determining the real questions in controversy between the parties.

4. 139 When facts are admitted.(1) At the hearing, the substance of the complaint shall be stated to the defendant and shall be asked if she has any cause to show why an order should not be made against him(2) If the Defendant admits the truth of the complaint and shows no sufficient cause why an order should not be made against him, the court after hearing such evidence as it thinks fit with respect to the subject matter of the complaint shall make an order against him.
Note: The complainant has not identified the law under which she is coming to court so that it can analyse the facts of the case and do justice under the laws stated below and use its powers under the above sections.

5. Common law of Battery and Assault.

Osborn’s Concise Law Dictionary defines battery as ‘The actual striking of another person or touching him in a rude, angry, revengeful or insolent manner. A common assault whether or not including a battery, is a misdemeanour....

6. Assault is defined as ‘The unlawful laying of hands on another person, or an attempt or offer to do a corporal hurt to another, coupled with an apparent present ability and intention to do an act ... Assault is also a tort consisting of an act of the defendant which causes to the plaintiff reasonable fear of the infliction of battery (q.v.) on him by the defendant.

7. ‘Battery in all suits like trespass is actionable per se’(page 20 Street on Torts 7^th Edition)
.
Family Protection Act.

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8. Meaning of Domestic Violence. (1) A person commits an act of domestic violence if he or she does the following acts against a family member:

(a) Assaults the family member (whether or not there is evidence of a physical injury);or

(b) Psychologically abuses, harasses or intimidates the family member; ....

9. Domestic Violence Offence.

(1) A person who commits an Act of domestic violence is guilty of an offence.
Penalty: A fine not exceeding K5, 000.00 or imprisonment for a term of two years or both.

(2) It is not a defence to an offence under subsection(1) that the Defendant has paid an amount of money or given other valuable consideration, in accordance with his or her custom to the complainant.

HEARING.

10. The parties filed their affidavits in support of their claims and counter claims and the complainant called one witness. Parties agreed to trial on their affidavits and the affidavits were tendered into court and no cross-examination was done. The court only asked the parties a few questions.

FACTS.

11. The complainant was assaulted on the 28^th of April 2018 with a umbrella handle by the defendant in Goroka and as a result of the assault she suffered injuries to her upper arm that prompted her to come to court. Evidence produced by the parties shows that they have being having problems with their alleged family life and they both want restraining orders against each other.

12. Findings and application of law.

1. The parties are alleged to be married to one man, a policemen but evidence produced showed that they are not legally married according to the laws of Papua New Guinea and
   

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their relationship is a de facto relationship and they cannot avail themselves of the Family Protection Act.

2. The above fact was corroborated by the fact that the complainant used her maiden name to sue the Defendant in her maiden name and purported husband is out of the picture. The parties just refer to him as their husband in the body of their affidavits only.
   
3. The complainant was assaulted on the 21^st of July 2017 and suffered injury and that is not disputed by the defendant.
   
4. The Defendant also admitted in court that she did what she did because she was provoked but the facts or statements that were attributed to the complainant to have provoked her was made in the morning of the aforesaid date and the assault happened at midday and the defence of provocation will not avail her because the defence of provocation must be sudden and it must be at the spur of the moment to amount to a proper defence and not something that happened a while a ago.
   
5. The Defendant has not given reasonable explanation for the lapse of time from the morning when the alleged provocative statements were made by the complainant and the battery and assault happened at 12.00 midday.
   
6. The Complainant did not prove her injury by producing her medical evidence to the court in her affidavit even though her clinical note was attached to her complaint and summons which is not the proper way to prove her injury. Nevertheless I take note of the clinical notes because of the fact that she is not a lawyer and if she was to engage lawyer then she will not afford them because private lawyers are inaccessible to many citizens because they are expensive. Furthermore under common law of battery and assault a battery is actionable per se that is without proof of damage and the tort of battery was committed at the time when the defendant hit the complainant with her umbrella and there is no need to prove damages.
   
7. The Defendant has not disputed the fact stated hereinabove and admitted the battery. Hence the court is of the view that the common law tort of battery has been proven on the balance of probabilities.
   

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8. The District Court does not have power to grant restraining orders per se (see section21 quoted herein-above). Section 22 of the District Court is an ancillary jurisdiction to enable to court to make preliminary or interim orders or directions to ensure that justice is done to the parties in a substantive case before it. Here the complainants substantive relief is restraining orders and that is not within the jurisdiction of the court . Hence the court has tried to have this matter dealt with under the Family Protection Act (FPA) but findings in paragraph 1 and 2 herein-above that is the parties are living in a de facto relationship with one man which is not legal relationship under the laws of Papua New Guinea and it follows that the parties cannot use FPA to advance their cause or give legitimacy to their relationship.
   
9. If this case is dismissed on these two grounds then the parties on-going dispute and problems may be delayed and not resolved promptly and this state of things may continue and may result in other problems that may not be good for themselves, their families and society as a whole. Therefore the court has decided to use its powers under section 138 of the District Court Act (see quote herein-above) to include a claim for damages in the complainant’s complaint to do justice to the parties. And to deal with the complaint of battery and assault once and for all.
   
10. Hence it follows from the above amendment and findings that an award of damages must be made and in the courts view this is not serious case involving serious injury to the complainant which will require new evidence to assess the damage at a later date. An award of reasonable damages must be made to punish the defendant and to put others on notice that one cannot get away with battery and assault that was done without any legal excuse. Hence the court is of the view that an award of K200.00 for assault and battery and K50.00 for exemplary damages should be made. All together a total of K250.00 is reasonable in the circumstances.
    
11. The parties have an on going dispute between themselves and as a direct consequence of their de facto relationship with one man and the parties want this court to assist them by granting them restraining orders against each other but this court is of the view that it cannot help them in that regard because their relationship is not legally recognised by the laws of Papua New Guinea. Findings in items 1 and 2 hereinabove shows that the parties dispute cannot be termed as domestic violence within 5 section of the FPA. Furthermore the District Court has no powers to grant permanent restraining orders per se that is without prove of damage or without a substantive cause of action before under the District

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Court Act. The court has amended the Complainants claim under section 138 of the District Court Act and it may be argued that following the amendment the restraining orders should be granted as matter of course but due to findings stated above in item 8 above this court cannot grant the restraining orders sought by the complainant and to a lesser extent the submission for the courts intervention in their de facto relationship by the defendant cannot be entertained.

12. If the current status quo is maintained and if a dispute between the parties arises that

result in breach of criminal law then that is a matter for police to deal with.

13. Cost is a discretionary matter and the court is the view that parties will bear they own costs because complainant has failed to draft her complaint properly and made the court use its general powers of amendment her complaint to include a claim for damages and she is not entitled to costs.
    

13. This court’s formal orders are:

1. The defendant is liable to pay damages for battery and assault.
2. The Defendant shall pay K250.00 damages to the complainant within 30 days of this order.
3. Parties shall pay bear their own legal costs.
   

Dated this 29^thday of August 2017 at Goroka

Counsels:

Lawyer for the Complainant, - In person

Lawyer for the Defendant,- In person