Kolis v Gasi [2019] PGDC 5; DC3088 (11 April 2019)

DC3088
PAPUA NEW GUINEA

[IN THE DISTRICT COURT OF JUSTICE

SITTING IN ITS CIVIL COURT JURISDICTION]

GFCr 42 of 2017

BETWEEN

FATIMA KOLIS
Complainant

AND

IVAN GASI & TWO OTHERS
Defendants

BUKA: BTASIKUL

2019: 11^th April,2019

     

Civil-

Cases Cited

References

Counsel

JUDGEMENT

1. B.TASIKUL Fatima Kolis filed a claim for damages against the defendant Ivan Gasi, Nigel Milo and Gerio Gasi. She is claiming K10, 000.00 damages for physical assault, insulting words, damaging of properties and other related cost.
   
2. To appreciate what transpired during the cause of this action it is important that I state briefly the back ground of this matter.
   
3. On the 11^th September, 2017 the Plaintiff filed a summon of K10, 000.00 damages against the three defendants for assaulting her. The matter was set down for mention on the 21^st September, 2017. The matter came before Late William Banjoy who preside over and adjourned the matter to the 28^th September,2017 due to non-appearance of the three defendants.
   
4. On the 28^th September, 2017 the defendant Ivan Gasi was the only defendant present and the matter was further adjourned to the 3^rd October, 2017.On the 3^rd of October,2017 the Plaintiff was again present while all the three defendants fail to appear. His worship Late Banjoy then entered a Exparte order against the three defendants to pay K2500.00 each a total of K7500.00
   
5. After the exparte court order was issued, the three defendants never comply with the order and the Plaintiff took out a warrant of execution against the defendants, which police never executed and was return to the court.
   
6. The Plaintiff then filed a proceeding under s. 192 of the District Court Act for the enforcement of the court order. While this proceeding was on foot the defendant filed an application to set aside the Exparte court order dated 3^rd October,2017.
   
7. I heard the application and I was satisfied that the Applicant [defendant] has established the three grounds for setting aside an exparte judgment. I granted the application and set the exparte order dated 03^rd of October, 2017 aside and adjourned the matter to the 7^th February,2019 for the re-hearing of the substantive matter.
   
8. On the 7^th February, 2019 I proceed to hear the substantive matter. It was alleged that on the 24^th August,2014 the three defendants together with their relatives armed themselves with offensive weapons and attacked the Plaintiff’s and her relatives. During this attack the Plaintiff was injured.
   
9. The complainant gave evidence and calls three witnesses. Her evidence was not disputed by the defendants. She also tenered a medical report of the injuries she sustained during the attack.
   
10. The only defendant who was present was Ivan Gasi who testified and calls two witnesses. Ivan Gasi told the court that the reason why he assaulted the complainant was the result of an ongoing land disputed which his clan won through the Local Land Court on the 22^nd of December, 1994. He deposed in his affidavit that after his clan was awarded the customary ownership of Leitana/Hakalio land in 1994, by the Local Land Court,the complainant relatives and clan members have been denying his clan the use of the land.
    
11. He deposed in paragraph 4 of his affidavit that there was an incident where the complainant relatives burnt down his uncle’s residence in 2005 or somewhere around that year and the complainant’s son was charged with arson and sentence by the Buka National Court to 4 years imprisonment. He was also ordered to pay K1200.00 by the National Court and to date they haven’t honoured the court order.
    
12. He further deposed in paragraph 5 that they have taken the complainant and her relatives to court for not complying with the Local Land Court orders. He tenered a copy of the court order dated 29^th July,2011 where the District Court issued a court order restraining the complainant and her relatives to permanently restrained them from preventing his uncle Levi Hariets and his clan for the free use and enjoyment of rights and benefit over that portion of land. He told the court that this order was never complied with by the complainant and her relatives.
    
13. He further deposed in paragraph 6 of his affidavit that on the 24^th October, 2017 the Complainant with her relatives was sentence to six months imprisonment for non-complying with the Local Land Court order, but nothing has happen and the complainant and her relatives are still roaming freely.
    
14. As the result of this ongoing issue where thecomplainant and her relatives, have not been complying with these court orders the defendant with his relatives attacked the complainant which resulting the complainant taking them to court for assaulting her.
    
15. The Complainant has not contested the evidence presented by the defendant so I admit this evidence as the truth.
    
16. It is thereforenot disputed that the defendant Ivan Gasi was the person who assaulted the complainant. It is also not disputed that the complainant did sustain injuries. However, there is evidence that the fight that occurred resulted the complainant sustaining injuries was due to an ongoing land disputes between the parties. Evidence pointed out also that the complainant with her clan members have never complied and respected numerous court orders issued against them over the years until this incident.
    
17. So the question I asked myself is; if the complainant never respected or comply with these court orders, can she now come to this same court to seek redress for being assaulted?
    
18. Firstly, without resources it was difficult for me to research into this area of law, as there is no proper facility like a Law Library and etc.
    
19. Despite that,let me at this juncture state herein, where there is no law, there would be anarchy in the society. The laws are there to protect the citizen of a country. Under the Constitution the Judiciary [Courts] are institutions that arecreated for citizens to seek redress. The courts are there to protect therights of citizen. When people take their grievances to court and when court makes decisions, those decisions must be observed and respected by the parties and the communities. If you are not happy with the courts decisions, then there is a process of appeal.
    
20. In your case there is evidence that you have not complied with the decisions of the Local Land Court, the District Court and even the National Court. I also noted from the evidence your clan have exhausted the process of appeal. Your action shows that you have no respect to the legal system. If you cannot respect and complied with the courts decisions, then why come to this same court to seek justice.
    
21. Yes you have a right to claim damages for the injuries inflicted on you by the defendant. However, I am of the view that you are entitle only for what is call contemptuous damages.
    
22. In the case of National Capital District Commission V Yama Security Services LTD [2017] PGSC34 SC 1606 the Supreme Court awarded K1.00 to the Plaintiff [Applicant] K1.00 in damages. I will apply the same principle and I will award you contemptuous damages in the sum of K1.00.