Tanabo v Tarabi [2021] PGDC 180; DC7034 (2 December 2021)

DC7034

PAPUA NEW GUINEA

[IN THE DISTRICT COURT OF JUSTICE]

CIV NO. -------74/2021
MAGDELYN DAHAI TANABO
(Complainant)

-v-

MAGGIE TARABI
(Defendant)

VANIMO: B.Fehi

GENERAL CIVIL: Compensation claim for use of insulting and offensive words – Appropriate causes of actions – Claim based on Tort of verbal assault – Claim of defamation pursuant to the provisions of the Defamation Act – Both cause of actions not applicable – prevailing customary considerations appropriate as grounds for compensation – use of insulting and offensive words inappropriate as per customary accepted standard – compensation allowed and provided as a matter of common customary practice – plaintiff has proven her claim beyond reasonable doubt – presence of contributory negligence – total award minus component for contributory negligence equals final award to be paid as monetary compensation

PRACTICE AND PROCEDURE: Courts power to develop the underlying law of Papua New Guinea – due consideration given to common prevailing customary practices accepted by both parties – provisions of the Constitution in relation to the development of the underlying law – provisions of the Underlying Law Act considered – meaning of courts as provided within the Underlying Law Act – meaning of National Judicial System and its composition – District Courts part of the National Judicial System – District Courts have the powers to develop the Underlying Laws of Papua New Guinea by application of relevant common customary practices – cause of action appropriate to be considered under accepted customary practices – compensation award appropriate to be made as per customary practices.

Statutes:

• Constitution of the Independent State of Papua New Guinea;
• Underlying Law Act; and
  

Case Law Cited:

1) Anton v. Tiki [2016] DC3054

Representations:

Complainant in person

Defendant in person

02^th December 2021

1. FEHI. B. DCM: The complainant brings this action before me against the defendant claiming the following as reprinted hereunder:

“Did out of ill will swore and issue offensive and abusive languages which discriminate and deform the complainant character as she had quoted here; “Yu Kan yu, Yu Fuck yu, Yu bus Meri yah” end of quote. You also threatened to cause harm to the complainant as she quoted here; “Mi no Pinis Wantaim yu yet” end of quote. You also shouted at your husband when he want to stop you and said as quoted here; “Yu laik sapotim Maggie ah, Yu go kaikai Kan blo em” end of quote. Magdelyn Dahai is a married woman and mother of her four children and wife to her husband. The Informant is psychologically traumatized and offended, her self-worth had been disrupted and she is now living with this stigma in the community.

The complainant prays to this Honorable Court for the following Orders:

1) That you pay compensation to the complainant in the sum of K1, 500.00 in full;

2) Cost of this proceedings and any other orders the court deems fit.”

RECORD OF PROCEEDINGS

2. This cause of action was commenced by way of Information and Summons upon Complaint filed and dated 07^th October 2021. I noted at the outset the use of the wrong originating process, in instances where there are objections raised by the defendant, I may have this proceedings struck out. However, this was not so and in using my discretion I proceeded to hear this claim and treat this proceeding as it would appear on a complaint. The error in my view is excusable as both parties are laymen and it’s common before our courts to see such errors. Despite this the nature of the claim is appropriately set out for the defendant to understand thereby reply accordingly, as such I elected to proceed with the hearing.

3. First mention was on 19^th of October 2021 were the nature of the complaint was read to the defendant who upon hearing denied the claim. Matter was then set for trial and adjourned to 21^st October 2021 were trial was conducted and completed with the matter further adjourned for decision to 09^th November 2021. I was not ready with the decision so had the matter adjourned to 02^nd December 2021.

4. This is now my full written decision on the claim as it was contested through trial.

BRIEF FACTS

5. The facts of the matter in brief are that both the complainant and defendant reside with their respective husbands at West Sepik General Hospital Compound here in Vanimo Urban, West Sepik Province. Both their husbands are employees of West Sepik Provincial Health Authority and they live next to each other as neighbors. On the 02^nd of August 2021 at about 5:35pm at their residential area, the defendant whilst under the influence of alcohol shouted at the top of her voice and made insulting, offensive and abusive remarks to the complainant. This was in relation to an earlier misunderstanding between the complainant and defendant’s husband concerning a text message she sent inquiring about her husband’s illicit activities at their home while she was away. The same incident defendant reported to Vanimo Police Station where it was mediated and resolved on 29^th July 2021. Apart from defendant’s verbal barrages she also threw stones at complainant’s family home and destroyed her flower beds. Because of the defendant’s actions, the complainant brings this proceeding claiming compensation for the wrong she caused to her.

APPLICABLE CAUSE OF ACTIONS

6. As alluded to above, the brief layout of what the complainant described as the wrong done to her by the defendant (that upon which she brings this claim) is quite broad as such I am required as a matter of best practice to consider the relevant cause of actions that would best capture her claim. Noting her brief as reprinted, the main claim is to do with the insulting, offensive and abusive remarks which I consider to be the following:

“Yu Kan yu, Yu fuck yu, Yu bus meri yah”

“Mi no pinis wantaim you yet”

“Yu laik supportim Maggie ah, yu go kaikai kan blo em”

7. In my opinion, the relevant causes of action lies with tort of assault and defamation. I ask myself are both these cause of actions relevant if so are both applicable, if not, which one is applicable and if none, are there any other relevant cause of actions other than the two (2).

8. I will first consider tort of assault and see whether this is the right cause of action. I will start by looking at the meaning of the word assault and I find appropriate to reprint the meaning as provided for by Osborn’s Concise Law Dictionary, Seventh Edition, which states as follows:

“assault. 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 the 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 on him by the defendant”

9. It is clear from the first part of the meaning that assault also constitutes a criminal offence, in our jurisdiction it is well covered under the provisions of the Summary Offences Act. The second part of the meaning makes assault actionable as a tort to recover damages. It is this part that the law within our jurisdiction is yet to be fully developed. I say this because assault as a tort is most often confused to be a component of battery and not a standalone cause of action. In most actions before our courts, one would find actions brought for assault and battery. Even so, there are still not enough case laws to give a well-defined approach to dealing with matters brought under this actionable tort.

10. Referring back to the meaning, assault as an actionable tort, in my view must consist of verbal threats accompanied with a physical act, for instance, the phrase “Ba mi cuttim yu lon bush naip” (I will cut you with the bush knife) followed thereafter by the action of using a bush knife to either cut or threatened the victim. The complainant in such a scenario is entitled to bring actions for assault to claim compensation. As for insults, abusive and offensive languages, I am unable to find any tortious action relevant for such an action.

11. That brings me to the second consideration of defamation. Is it the relevant cause of action to bring against the defendant for using insulting, abusive and offensive languages? To answer this I adopt and apply the ruling of His Worship B. Tanewan in the matter of Anton v. Tiki [2016] DC3054. His Worship appropriately finds towards the end of his judgment the following:

“The complainant’s evidence that the words meant “Yu kaikai kan blo mama blo yu” and if that is so, these words cannot amount to defamatory matter within the meaning under the Defamation Act.”

“The court is therefore left to conclude that this case involves words and actions that may fall under use of insulting words or behavior under the Summary Offences Act, which may have been dealt with as a police matter”

12. I am therefore not satisfied that action of defamation brought pursuant to the Defamation Act is relevant given the nature of the complainant’s claim.

13. In my humble view, both causes of action are not relevant for civil actions based on the use of insulting, abusive and offensive languages.

14. Are there any other cause of actions available for complainants to bring matters to court based on insulting, abusive and offensive languages for damages? I am of the opinion that a cause of action lies under custom. Even if that is so, do I have the jurisdiction sitting as a District Court Magistrate to consider such cause of actions?

15. I direct myself to the provisions of the Constitution and the Underlying Law Act. The Constitution under Section 172 (1) (2) provides as such:

“172. Establishment of other courts.

(1) Subject to this Constitution, Acts of the Parliament may establish, or provide for the establishment of, courts within the National Judicial System in addition to the Supreme Court and the National Court, and may define, or provide for the definition of, their respective powers, functions and jurisdictions and their relationship with other components of the National Judicial System.

(2) Courts established under Subsection (1) may include courts intended to deal with matters primarily by reference to custom or in accordance with customary procedures, or both.”

16. The Underlying Law Act provides under Section 1 (1) interpretations of terms used as per its application. The meaning of courts is as follows:

“1. INTERPRETATION

(1) In this Act, unless the contrary intention appears:

---------------------------------
---------------------------------
‘Court’ means a court within the National Judicial System
Etc...”

17. The above provisions confirm that the District Court is a court within the National Judicial System and as such the provisions of the Underlying Law Act applies to it giving it the jurisdiction to consider appropriate customs when considering matters before it and in so doing develop within its jurisdictional limits the underlying law. I am therefore satisfied that I have the jurisdiction to consider complainant’s claim through the application of the relevant customary consideration and practices.
EVIDENCE BEFORE THE COURT

A) COMPLAINANT’S CASE

18. Complainant relied on her affidavit filed on 06^th October 2021 and her own testimony given together with the testimonies of her witnesses namely Noah Tanabo and Jepath Karl on 21^st October 2021. All testimonies were given on oath.

19. The complainant’s case is that she suspected her husband Noah Tanabo of bringing a woman from Lido Village to their family house while she was with her relatives at Wusipi, Vanimo Urban. She asked her husband about her suspicion and he denied it saying that the women where brought there by man playing dart at the defendant and her husband’s house. She took her husband’s phone and saw a phone number which she suspected was that of the woman. She tried getting through but could not positively identify the woman so she texted defendant’s husband using her husband’s phone. The defendant was away and upon her return found out about what she did and brought all of them to the police station on 29^th July 2021 were they mediated and settled the matter.

20. It followed that on the 02^nd of August 2021, between the hours of 5:35pm through to the early hours of the next day; the defendant was under the influence of alcohol and made insulting, abusive and offensive remarks to her. She stated that the defendant was at her house next door when she started swearing at her, she approached her to stop but the defendant continued swearing at her. She was under the influence of liquor and could not be controlled, even by her husband who she swore at when he tried to stop her.

21. Both her witnesses through their respective statements mentioned in support that the defendant was drunk and swore at the complainant. The defendant could not be stopped even by her husband who she swore at when he tried to stop her.

B) DEFENDANT’S CASE

22. The defendant filed no affidavit in defence but presented before me a defence statement which she read in court and I accepted it to be her oral testimony on 21^st of October 2021. Her husband namely Kues Tarabi also gave oral testimony on the same date. All testimonies were given on oath.

23. She admitted being drunk as claimed by the complainant and her witnesses but mentioned in her defence that she reacted in that manner as stated because the complainant had previously promised to compensate her husband for an earlier incident where the complainant suspected and questioned her husband about the complainant’s husband bringing two ladies from Lido Village to their family home. According to her nothing was done by the complainant and on the 02^nd of October 2021, she raised her voice against her husband who had friends over to play dart at their residence, the complainant reacted to this and entered her premises to confront her, this provoked her because of the outstanding case she had with complainant. As a result she uttered all the insulting, abusive and offensive words as claimed by the complainant in her complaint. However, she denied destroying her flower beds or even physically assaulting her. She clarified that, the words she uttered “mi no pinis wantaim you yet” was not a threat but made in relation to the unsettled incident concerning complainant’s false accusation towards her husband.

24. Her husband in support confirmed what the defendant said and mentioned further that if the complainant stayed at her premises and not come over to their premises to confront defendant, all these would not have transpired. He agreed that the defendant uttered all the insulting, abusive and offensive words as claimed by the complainant in her complaint and also that the defendant was under the influence of alcohol when all this transpired.

RELEVANT ISSUES AND DISCUSSIONS

25. The relevant issues for my consideration are set out as follows:

i) Whether the Defendant made insulting, abusive and offensive remarks to the Complainant;

ii) Whether such behavior by the defendant constitutes a cause of action under custom; and

iii) If so, does custom allow for a sum of monetary compensation to be awarded as compensation?

iv) Did complainant on her part, acted in a manner that constituted contributory negligence?

26. I will answer the first issue in the positive. It is not disputed from the evidence that the defendant whilst under the influence of alcohol made the following insulting, abusive and offensive remarks to the complainant ““Yu Kan yu, Yu fuck yu, Yu bus meri yah”, “Mi no pinis wantaim you yet” and “Yu laik supportim Maggie ah, yu go kaikai kan blo em”. I am inclined to accept the remarks “mi no pinis wantaim yu yet” as insulting, abusive, offensive nor threatening. It is in my view just a plain ordinary statement; therefore I will place no weight on it.

27. As for the second issue, that is, whether such behavior by the defendant constitutes a cause of action under custom, I will answer this as yes. The complainant is from Imonda and the defendant is from Lido both areas within Vanimo Green District. Say you go to a village in Imonda area and used such insulting, abusive and offensive language to any ordinary member of that community, likewise in Lido Village, what would be their reaction? Most if not all will react aggressively towards you because any individual subject of such insults will find it degrading and humiliating and therefore the reaction will be the same. This in my view is enough to accept that a cause of action lies under custom commonly recognized by both the defendant and complainant respective customs. As such, I am satisfied that an action lies under custom for such remarks made by the defendant towards the complainant.

28. The third issue is on whether custom allows for monetary compensation as damages. I will generally say yes because the incident which gives rise to the cause of action occurred in an urban setting. If it were in their respective villages, other forms of customary compensation would be appropriate. In an urban setting, one form of compensation is relevant and is considered acceptable by persons of different customary background and that is monetary compensation. As such I am satisfied that custom allows for monetary compensation and that it is relevant to consider this as damages to be awarded to the complainant.

29. The last issue concerns complainant’s behavior at all material times leading up to and at the time of the incident. I must say that all the evidence agree that the complainant’s husband is the instigator of this unfortunate incident. Complainant should have dealt with her suspicions appropriately away from the defendant and her husband. It’s through her action of texting the husband of the defendant that brought them first to the police station, she and her husband failed also to compensate Mr. Kues as agreed to at the police station. All this created some form of frustration in the mind of the defendant coupled with complainant’s action of entering the residence of the defendant and her husband which was the final provocative act that ignite the defendant into a frantic rage. Therefore, I am satisfied that yes, complainant through her action contributed to what she received from the defendant.

FINDINGS

30. Having dealt with the above issues, I find that the defendant used insulting, abusive and offensive remarks against the complainant. Her action constitutes a cause of action under custom and that the complainant is entitled to bring an action against her per se. I also find that custom allows for monetary compensation to be considered as award of damages to the complainant and that any award made must take into consideration complainant’s contributory negligence which I am satisfied existed prior to and at the time leading up to the incident.

31. As per the above findings, I will proceed to assess what I consider to be the appropriate award to make in favor of the complainant as compensation. Given the status of parties as laymen not much evidence is before me to make a comprehensive assessment, rather I will only asses what appears relevant under this part as provided for during trial and pleadings by respective parties. Taking all things into consideration, I find appropriate and make an award of K1, 000.00 as compensation. K200 will be deducted to compensate for complainant’s contributory negligence, leaving an amount payable of K800.00.

CONCLUSION

32. The complainant has proven her case on the balance of probability against the defendant as per their common custom, which entitles her to bring an action for the use of insulting, abusive and offensive languages. An award minus contributory negligence is made in her favor which the defendant is required to pay. I hereby issue the following orders to conclude this matter:

COURT ORDERS:

1. Cause of action under common custom of improper conduct through use of insulting, abusive and offensive language is established on the balance of probabilities;

2. Defendant is held to be liable and is required to pay monetary compensation as damages to the complainant;

3. An award of K1000 is made in favor of complainant;

4. Contributory negligence is also established against Complainant

5. Total award minus K200 as contributory negligence leaves an amount of K800 which the defendant is required to pay within one month from today’s date to the complainant;

6. Enforcement to follow upon default; and

7. No orders for costs.