IaRau v Lauk [2019] PGDC 22; DC4084 (14 November 2019)

DC4084

PAPUA NEW GUINEA

[IN THE DISTRICT COURT OF JUSTICE

SITTING IN ITS CIVIL JURISDICTION]

CV144 of 2019
BETWEEN

1. Emmah IaRau
2. Bale ToWau

Complainant

AND

Amos Lauk

Defendant

Kokopo: SLavutul

2019: 12^th, 22^nd August, 30^th September, 15^th, 28^th October, 11^th November

CIVIL PROCEDURES: General Damages –Exemplary Damages– Malice and Intent to cause duress- Injuries to persons of Complainants – Claims for Damages and Costs of Proceedings –Issue of Liability.

Cases Cited
Nil

References
District Courts Act

Appearance
Complainant appeared in person
Defendants appeared in person

Held: 1. That there was neither duress nor malice on the part of the Defendant, he
acted lawfully.
2. The Warrants for Arrest was lawfully issued by the court and the detention of
the Complainants were lawful.
3. The Defendant is not liable to the Complaint and discharged from liabilities.

DECISION

14^th November 2019

Samuel Lavutul, Principal Magistrate; This matter came before me by way of civil complaint filed by the Complainants Emmah IaRau & Bale ToWau against Defendant Amos Lauk on the 23^rd of May 2019 before the Kokopo District Court.

2. The Complainants claim that the Defendant by design and with malice and intention to cause duress laid a false report at the Kokopo Police Station that the Complainants had breached a Temporary Court Order whereby causing the Complainants to be arrested and jailed for one night before being released on bail. The Defendant intentionally laid a false report knowing beforehand that any breach would result in arrests being made. The matter was later dismissed by the court for being frivolous and lacking evidence.

3. The Complainants further claim that as a result of the calculated intentional actions of the Defendant, the Complainants due to their age have suffered stress and anguish due to their improper detention and detainment at the Police Cells.

4. The Complainant therefore prays to this Honourable for orders that;
(a) Defendant is to pay damages for suffering stress and anxiety the sum of
K1, 000.00 each to the Complainants.
(b) Defendant is to refund to the Complainants K200.00 being for monies spent
on transport, printing, and other expenses related to organizing their bail;
(c) Defendant is to be warned to take the Courts seriously and not waste the Court’s
time by laying vexatious and frivolous claims;
(d) Costs of and incidentals to the proceedings; and
(e) Any others the Court deems fit

5. During pleadings the Defendant told the court in his preliminary response that on Friday 26^th of April, 2019 he went with two (2) police officers to the 01^st Complainant’s place but the two (2) policemen pleaded with him not to arrest her due to her age and that it was long weekend. He added they asked him if he could allow the Complainants to come willingly to the Kokopo Police Station.

6. The Defendant further stated that they left the 01^st Complainant’s residence with the two (2) policemen and proceeded to look for the 02^nd Complainant Bale ToWau at his residence. He added they parked the vehicle along the Kokopo Road and they proceeded to see the 02^nd Complainant Bale ToWau. They proceeded to his residence located on the allegedly disputed piece of land, Terege Land currently under dispute. Amos Lauk in his pleading he went up to the land the subject of the dispute and learnt that Bale ToWau was still residing on the said land.

7. He told the court they called out for Bale but he did not answer and he was nowhere to be found. On the 29^th of April 2019 the two (2) Complainants voluntarily appeared at the Kokopo Police Station and then proceeded to the court house for the alleged breach of the Temporary Court Order by the Complainants.

8. The Defendant maintained that the Complainants were granted bail by the court however they were kept in the cells for one night as they did not pay for their bails. The Defendant denied that he was not the one who placed the Complainants in the cells for a night. He added it was the police and the court that had placed them in the cells and he stated he is not liable to the complaint.

9. Both parties were given the opportunity to give evidence in court on the 22^nd of August 2019. The only issue was whether the Defendant had unlawfully and with malice intentionally caused the two Complainants to be locked up in the Kokopo Police Station cells for one night on the 29^th of April, 2019.

10. By way of background both parties were party to an application for Temporary Orders by the now Defendant Amos Lauk numbered as LLC NO: 258 of 2018 against the Complainants including their families, associates and agents of Raburua and Bitatita villages, Kokopo East New Britain Province over a piece of customary land known as Terege within Davaon/Bitatita villages.

11. The matter was set for hearing of the Application for Temporary Orders on Monday 12^th November, 2018. The court depositions indicate both parties did appear and were heard and the matter was adjourned to the 10th of December, 2018 for ruling at 9. 30am. The Temporary Orders were granted on the 14^th of February, 2018 to the applicant over the said Terege land at Davaon village, Raluana Local Level Government, Kokopo District, East New Britain Province and it was ordered that the orders were in place for 3 months.

12. The Complainant aggrieved by the actions of the now Complainants by raising his complaint by way of a letter dated the 18^th of March, 2019 alleging that the Complainants had breach the Temporary Orders of the 14^th of February, 2019. And as a consequence two (2) warrants for arrest were prepared by the Local Land Court Clerk and endorsed by Magistrate Orim Kivu dated 25^th of April, 2019 and the Complainants were arrested and placed in custody on the 29^th of April 2019 after they appeared in person at the Kokopo Police station. On the 03^rd of May, 2019 at 9.00am Magistrate Orim Kivu after the Complainants were brought before him ruled that the process used in issuing the two warrants for arrest was not the proper process in that the Defendant should have filed by way of Information and Summons upon Information. Magistrate Kivu then struck out the case and revoked the warrants for Arrest, discharged the Complainants and refunded the Complainants’ bails of K100. 00 each totalling K200.

13. Then on the 14^th of May 2019 the Defendant, Amos Lauk still aggrieved by the fact that the Respondents/Defendants now complainants in this current proceedings were alleged to have breached the Temporary Orders of the 14^th of February, 2019 filed a breach proceedings against one Emmah IaRau and one Bale ToWau. The matter was then set for mention on the 24^th May, 2019 at 9. 00am and was then adjourned by Magistrate Lavutul to 31^st of May, 2019 before Magistrate Orim Kivu. However Magistrate Orim Kivu then mentioned the matter on the 03^rd of June, 2019 in which all parties were present and both Complainants pleaded not guilty to the allegations. The matter was further set for trial to the 21^st of June, 2019. After continuous adjournments the matter was dealt with by Magistrate Orim Kivu on the 17^th of July, 2019 in the presence of both parties.

14. However I note from the court depositions Magistrate Orim Kivu did not run a trial to determine the alleged breach but resort to making a preliminary ruling on the basis that “as a matter of law under the Land Dispute Settlement Act a Temporary Order is only valid for 3 months” from the date of issuance. I note Magistrate Orim Kivu ruled from the face of the records and the Breach of Temporary Order summons and Information were struck out and ordered for each parties to bear their on costs.

15. I place on record I am not sitting as the appeal court however I have a duty to discharge as a judicial officer and I am oblige to give my opinion on my findings and on what has been laid before me; I am of the view the Summons Upon Information and Information laid by Amos Lauk against Emmah IaRau and Bale ToWau were still within the life of the Temporary Orders and not outside of the 3 months as alluded to by Magistrate Orim Kivu. If the Court had followed strictly the specific dates from the 14^th of February 2019 the date the court issued the Temporary Orders to the date of the laying of the Summons and Information for the breach on the 14^th of May, 2019 it was on the final day of the 3 months of the life of the Temporary Orders. This is only my observations with due respect to his worship he made an error or maybe an oversight on the dates which unfortunately resulted in his ruling.

16. So the issue in this current proceeding is whether the actions by the Defendant Amos Lauk in his attempt to enforce the Temporary Orders of the 14^th of February 2019 did have any malicious intent to cause duress or may amount to a calculated intentional action against the Complainants which would result in any harm to their persons.

17. Based on the brief background of the Application for Temporary Orders and the Complaint by the Defendant for the alleged breach of the Temporary Orders by the Complainants; I find no malice or ill intent by the Defendant to deprive or illegally restraint the rights and liberty of the Complainants in the pursuance of the alleged breach in the process.

18. I found no error or malice in the manner which the Defendant initially took to report the alleged breach by the Complainants in his letter of Complaint dated the 18^th of March, 2019 address to the Local Land Officer at the Kokopo District Court Registry.

19. It was the Local Land Court Clerk that proceeded to issue the warrants for the arrest of the Complainants dated the 25^th of April, 2019 based on the Defendant’s complaint in line with the Local Land Court Practice Direction; where it states that in the event of any alleged breach a person maybe compel to appear in court to answer to any alleged breach by a warrant for arrest. I find no ill intent or duress in the process taken by the Local Land Court Clerk. The warrants were legally issued.

20. However, according to the evidence by the Defendant despite the fact the warrants for arrest were issued by the court to police they were reluctant to effect the arrest of the 01^st Complainant due to her age and it was going into a public holiday they saw keeping her in the cells would be detrimental to her health and well-being. He the Defendant also agreed to the steps the police had taken and he agreed for them to meet at the Kokopo Police Station on the 29^th of April, 2019. However he claims he was surprised that the two Complainants were already placed in the cells by the police upon his arrival at the police station on the 29^th of April, 2019.

21. In addition the Defendant totally denied in his evidence he had made any false report which had resulted in the detention of the Complainants for a night in the police cells as claimed by the Complainants. I find that the Complainants were legally detained for one night in the police cells based on the two warrants for arrest against them. I find neither malice nor duress on the part of the Complainant; I am of the view he acted with a clear conscience with an intent to lawfully address his concerns over the alleged breach by the Complainants.

22. I therefore find that the Complainants failed to satisfy the court in that the Defendant did intent to cause them harm. Despite the fact they were detained for a night I am of the view the court had accorded them consideration of their well-being by allowing them cash bail of K100 each as per their rights under the Bail Act. In conclusion I also wish to highlight the fact that the court presided by Magistrate Orim Kivu on the 03^rd of May, 2019 had cured the error in the issuance of the warrants for arrest issued by the court against the complainants by revocation of the warrants and discharging the Complainants from custody including the refund of their bails. I am of the view justice and fairness was achieve and accorded through Mr. Orim Kivu’s ruling in the Complainants’ favour.

23. I therefore ruled the Defendant not liable to the claim by the Complainants and I refused the reliefs sought by the Complainants.

Orders

1. This case is dismissed forthwith
2. The Defendant is discharged from liabilities
3. Parties to bear their own costs.
   

Complainants Appeared In Person

Defendants Appeared In Person