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Papua New Guinea District Court |
PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]
SUM NO. 49/2020
FRANCISCA NUMBABUS
(Complainant/Applicant/Cross Defendant)
-v-
CAMILUS WEILOBU
(Defendant/Respondent/Cross Claimant)
VANIMO: B.Fehi
CIVIL CAUSES OF ACTIONS: Cause of action brought pursuant to Section 209 and Section 210 of the District Courts’ Act – General denial by Defendant – No oral testimonial evidence – Affidavit evidence – No submissions – Counter claim – Cause of action based on fraud and claim of compensation, Cause of actions time barred pursuant to Section 16 of the Frauds and Limitations Act – Substantive action established on the Balance of Probabilities – Remedial relief granted pursuant to Section 214 of the District Courts’ Act – Defendant/Respondent required to enter into written recognizance to keep the peace for a period of two (2) years – without cash sureties – upon default a term of up to 6 months imprisonment time may apply.
PRACTICE AND PROCEDURE: Affidavit evidence not challenged through cross-examination of deponents – When there appears to be facts in dispute on contentious issues the court has the discretion to call witnesses for cross-examination as to the dispute – Counter claim or cross-claim – Order 8, Rule 38 of the National Court Rules relevant for Application with flexibility.
Statutes:
Case Law Cited:
Representations:
Complainant/Applicant/Cross-defendant appearing in person.
Counsel M. August from M. Smiley Lawyers for the Defendant/Respondent/Cross-claimant
22nd April 2021
1. FEHI. B. DCM: This is an application under District Courts Act Section 209 and 2010. The nature of the application is as follows:
“.....that since January of 2019 to 17th of September 2020 at Transmitter Village, Vanimo Green District in the said Papua New Guinea
That you Camilus Weilobu have been frequently disturbing the Complainant and her family in her family home, assaulting them and threatening to burn down their family home and even threatening to murder them without any justification or cause at all.
The Complainant being aggrieved and pursuant to Section 209, Section 210 and Section 22 of the District Courts Act prays for the following orders: ......”
RECORD OF PROCEEDINGS
2. First mentioned of this matter was before Senior Provincial Magistrate (SPM) His Worship Sasa Inkung on 1st October 2020 in the form of an Urgent Ex-Parte Application. On 01st April 2021, the same parties appear before me for substantive hearing of the complaint. The court was informed of Counsel August representation of the Defendant/Respondent’s (D/R) case and I in turn disclose facts that in my view may place me in a situation of bias. I disclose the following:
Original Pidgin Version
“Mi mas tok klia lon yu alsem komplenen em save pes blon mi, as blo displa em alsem em na mi mipla wantaim silip kirap lon Ward 5 blo Vanimo Urban lon Transmitter. Em mama blo wanpla trade store wer mi wantaim al family sa go kam lon baim all liklik sumtin blo haus. Sapos lon displa na yu les lon mi harem kes blo yutupla, em nau em taim blo tokaut na mi harem”
English Translation
“I must make known to you that the Complainant/Applicant is a known person to me due to the fact that we both reside within the same Ward 5 of Vanimo Urban LLG, at Transmitter. She owns a trade store where my family together with myself go for basis household goods. Should you have any objection to me presiding over this matter, you have the right to object and this is the time for you to do that”.
Reply in Pidgin by D/R
“Yu ken go yet na harem”
English Translation
“You can go ahead to hear.”
3. D/R acknowledged my disclosure, however, raised no objection to this; therefore the matter was further adjourned to 06th April 2021. Mr. August made appearance for the D/R and requested by way of an application a short adjournment in order to confirm instructions and file the necessary defence. No objection from the Complainant/Applicant (C/A) and matter further adjourned to 08th April 2021. D/R’s filed his affidavit and served on the C/A whereupon she requested for time to reply in writing, the matter was than adjourned to 13th April 2021 for her to do so. This was also done by the C/A with copies of her reply filed and served on Counsel.
4. I pose to parties whether they intend to file other affidavits and both replied in the negative. Also on whether they intend to cross-examine respective deponents and both replied no. With parties’ consensus, I closed their respective pleadings. Parties also consent to trial by paper on uncontested evidence as they appear without making any submissions. I now proceed to outline the facts as they appear before this proceeding.
BRIEF FACTS
5. The C/A currently resides at Transmitter, Ward 5, Vanimo Urban, West Sepik Province. She owns and operate out of her residential area (subject of the current application) a trade store business and PMV bus service. C/A is aggrieved by the D/R’s actions, whom she claimed has been interfering with her peaceful occupation and enjoyment of the premises she occupies. She alleges the D/R to have on the 21st August 2020 walked into her store and threatened to assault her family. Also on the 22nd of August 2020, D/R allegedly approached her Store Keeper with threats of violence with force and attempting to obtain goods from the store. He further threatened to destroy the properties to the ground if his demands were not met. C/A claimed D/R persisted through with this behavior on 15th, 16th, 17th and 18th September 2020. The C/A is fearful of her life and properties, as such, she brings this proceeding against the D/R.
APPLICABLE LAW
6. The C/A through her complaint invoked Section 209 and Section 210 of the District Court’s Act. She also invoked as supplementary, Section 22 of the District Court’s Act. As such, a reprint of these provisions is necessary and is as follows:
209. Information praying for the surety of the peace.
Where a written information is laid before a Magistrate that a person has-
(a) threatened-
(i) to do to the complainant or his wife or child, or person under his care or charge, bodily injury; or
(ii) to burn or injure his house; or
(iii) to commit a breach of the peace towards him or his wife or child or that other person,
Or to procure others to commit any such injury; or
(b) used language indicating an intention to commit any such breach of the peace or to do any such injury or procure it to be committed or done,
And that the complainant is in fear of the defendant, and the complainant prays that the defendant may be required to find sufficient sureties to keep the peace, proceedings may be had under this Part.
210. Information praying for surety to be of good behavior.
Where a written information on oath is laid before a Magistrate that a person is a person of evil fame, and the complainant prays that the defendant may be required to find (82) sufficient sureties to be of good behavior, proceedings may be had under this Part.
22. General Ancillary Jurisdiction.
Subject to this Act, a Court as regards a cause of action for the time being within its jurisdiction, shall, in proceedings before it-
(a) grant such relief, redress or remedy, or combination of remedies whether absolute or conditional; and
(b) give the same effect to every ground of defence or counterclaim, whether equitable or legal,
as ought to be granted or given in a similar case by the National Court and in as full and ample a manner.
7. In my opinion, it is more practical to read Section 209 and Section 210 together with Section 214 of the District Court’s Act. Section 214 is as follows:
214. Case to be Dismissed, or surety of the peace, etc. , required.
After hearing the evidence relating to an information under Section 209 or 210, the Court may-
(a) dismiss the case; or
(b) require the defendant immediately, or at some time to be specified by the Court, to enter into a recognizance, oral or in writing, with or without sureties, in such reasonable amount as the Court thinks fit, to keep the peace or to be of good behavior, as the case may be, for such time as it thinks fit, or in default – commit the defendant to a corrective institution or police lock-up for such time as the Court thinks fit, not exceeding six months, unless in the meantime the required recognizance is given.
8. Having reprinted the relevant provisions at the heart of this proceeding, I now focus my attention on the respective claims as they appear from the affidavits provided by the parties. Before I precede any further it is worth noting that parties have both elected not to cross-examine each other, this leaves me without an opportunity to observe and assess the credibility of each deposed testimonies. Therefore, as a matter of best practice, assistance must be sought from case law on how best to approach such practice scenario. As such, I will adopt and apply Kaumi M’s (as he then was) observation in the case of Tawi v Tawi [2009] DC943. In my opinion this approach is applicable and I hereby will use it to guide me through my deliberation and assessment of parties’ respective evidences. The following is what His Worship (as he then was) observed in writing:
“10. The rules governing the process of which a court of law filters through the evidence that is adduced in a trial before it in order to determine whether or not to accept a witness and his testimony in its deliberations are well established and the Supreme and National Courts have stated these rules and some of them inter alia are:
“11. In this case, both parties have given evidence by affidavits. Both parties have not exercised their right to cross examination so this Court will have to assess their credibility as witnesses of truth. It has to assess inter alia the believability of their stories, examine the degree of consistency in their evidence (both its intent consistency and its consistency with the evidence of other witnesses) to determine which version of events is the correct one. “
9. In addition to His Worship’s observation, a requirement in law which in my view, is worth noting, is the courts discretion to call witnesses for cross-examination on disputed facts contained within affidavit evidences. I borrow and apply the relevant observation of Makail J. in the case of K.K Paradise v Tepi [2010] N3979. His Honor held as reprinted hereunder:
“Held:
1. ........................ (not relevant for my use)
2. Where a trial is conducted purely by affidavits and the evidence is conflicting, regardless of whether or not lawyers for the parties have called for the deponents for cross-examination, the Court has the ultimate discretion to decide whether or not to call them for cross-examination under Section 35 (3) of the Evidence Act, Ch 48.
3. In the instant case, the trial was conducted purely by affidavits and there was a substantial factual dispute in relation to the malfunction of the poker machine which was the critical issue between the parties.
4. As there was conflicting evidence in relation to the malfunction of the poker machine, it was not easily ascertainable if it was functioning purely on the affidavits of witnesses.
5. The learned magistrate fell into error when he did not call the deponents of the affidavits for cross-examination in respect of the malfunction of the poker machine.
6. .......................... (not relevant for my use)”(brackets and emphasis mine )
10. Having satisfied myself of the above valid considerations, it is only proper to reprint hereunder the respective contentious affidavit evidence as provided before me:
EVIDENCE BEFORE THE COURT
A) COMPLAINANT/APPLICANT
Complainant/Applicant’s Affidavit Evidence
11. The C/A produced and relied on her initial affidavit filed and dated the 21st of September 2020 and her affidavit in reply filed and dated 12th April 2021. The relevant paragraphs for my consideration are:
Affidavit dated 21st September 2020
Paragraph #4: The Defendant in this application takes advantage of our deceased father and argues at us for no good reason at all. He is making false allegations that the property belongs to him and not us.
Paragraph #5: As a result of this is frequently attacking us and intimidating us. He is threatening us with words to the effect that he going to burn us with the house and damage everything and even he going to murder us.
Paragraph #11: That on the 21st of August 2020 around 7pm the Defendant forcefully walked into my trade store and threaten to assault my family.
Paragraph #12: Then on the 22nd of August 2020 he approached my Store Keeper and threatened to get goods from my store by force and dash off. He told the Store Keeper that if he refuses to give the goods he destroy the properties dismantle it to the ground.
Paragraph #13: Then after a day he approached the third time at the Store Keeper and threatened the Store Keeper demanding him for K3000.00 if not he going to murder us or dismantle the whole property.
Paragraph #14: That on the 15th, 16th, 17th to the 18th of September 2020, the Defendant has been continuous threatening us at our residence shouting verbal assaulting us and demanding us to give him K3000.00. If we do not give him his request, he shall threaten physically assault and further dismantle our property.
Affidavit in reply to defence’s affidavit dated 12th April 2021
Paragraph #1: His affidavit claim points 3-7 have nothing to do with I the applicant as per my summons to the Defendant.
Paragraph #2: All claims raised in affidavit 3-7 be submitted to Jeffery Visser and NOT I THE EXPARTE. I have no idea whatsoever.
Paragraph #5: His claim point 15 is totally a lie from a liar. He has been up against I and the family with intimidation of threat of violence many times with no sense of remorse and has never stopped since then.
Paragraph #7: His claim rests solely with the second party and not me the applicant seeking permanent restraining orders.
12. The above reproduction is what I select as those relevant evidences produce by the C/A in support of her application against the D/R. No other documentary evidences were provided. Therefore, I accept the C/A’s evidence as above stated and closed her case.
Defendant/Respondent’s Affidavit Evidence
13. The D/R relied on his affidavit filed and dated 07th April 2021. D/R also filed several documentary evidences attach to with and appearing as annexures to his affidavit. The relevant paragraphs for my consideration are:
Paragraph #3: I am the original person who developed the government waste land where the Informant’s store and residence is located in Transmitter. That is my premises that I agreed with Mr. Jeffery Visser to rent and sell his store goods and second hand clothing at a rental of K500 a month.
Paragraph #4: My agreement with Mr. Jeffery Visser was made on 05th February 2001. After the rental agreement with Mr. Visser, I had then returned to my village of Talpipi in Lumi during that month of February 2001. See Annexure ‘A’.
Paragraph #5: I believe he Jeffery Visser had sold the premises to late deceased Mr. Steven Nimbabus and Wife Francesca around the year 2002 without my consent and knowledge.
Paragraph #6: During the month of February 2003, I returned to Vanimo to collect outstanding rental payments from Mr. Visser but only to find out that late deceased Mr. Steven Nimbabus and Wife Francesca had moved into my premises and were using it to live there and conduct their business.
Paragraph #7: I can clearly recall that my big house built at the back of the premises was demolished and food crop trees such as coconuts, breadfruits and bananas were also chopped down and cleared without my consent and knowledge.
Paragraph #8: I approached late deceased Mr. Steven Nimbabus a couple of times regarding the issue of the premises and for him to pay it off from me but he had disregarded my requests made politely and with courtesy because he and his family lived amongst us.
Paragraph #9: Between 15th and 16th June 2006, I approached DAL Office in Vanimo and they calculated loss of my food crop trees in 2005 and I issued a Notice from the Vanimo District Court to pay these but this was ignored. See Annexure ‘B’ & ‘C’.
Paragraph #10: I went back home to my village of Talpipi in Lumi in the mid-year of 2006 and returned a couple of times to Vanimo without disturbing late deceased Mr. Steven Nimbabus and Wife Francesca. I believe that they would realize my issue with them and settle it in their own time.
Paragraph #11: In 2010, I came back to Vanimo and returned home again and stayed in the village until 2020.
Paragraph #12: I returned in 2020 and realized it had been quite a while they had not paid anything to me for occupying the premises. Even Mr. Visser was very evasive when I tried approaching him many times in Vanimo regarding his arrangement with the Nimbabus family.
Paragraph #13: On 24th September 2020, I approached Vanimo District Court for assistance and they helped me. I issued a Notice from the Vanimo District Court to pay me K20, 000.00 for the premises but this was ignored. See Annexure ‘D’.
Paragraph #15: As per the affidavit of the complainant/informant, I have never issued any threats, being violent and abusive or had damaged any of her properties since the day I have had this issue with them moving in without my consent and knowledge. It has been quite the opposite in that whenever they had intruders or problems with others in the community, my family had always been there to assist them because they resided and conducted business on my premises fraudulently sold to them by Mr. Visser.
Paragraph #16: I therefore deny all allegations and humbly asked that no permanent restraining order be issued.
Paragraph #17: I am advised the restraining orders are equitable remedies that can limit a person’s liberties. The equitable maxim applies that an equitable remedy cannot be granted if the complainant/informant came to court without clean hands. In my case, I have approached the Complainant/Informant in the most courteous manner to resolve the issue of my premises. Restraining me to put the issue under the rug and conduct business as normal is in my view injustice.
The supporting documents appearing as annexures in the D/R’s affidavit are as follows:
I accept the abovementioned documents and marked them for my viewing, referring to each as ‘Exhibits’ i, ii, iii, and iv.
14. The above reproduction is what I select as those relevant evidences produce by the D/R in response to the allegations/claims made against him by the C/A. In support of his response are several documentary evidences as noted and re-presented above. Therefore, I accept the defences’ evidence as above stated and closed his case.
15. In view of the above and having conducted preliminary assessment of the respective evidences as reproduced, by all accounts, the D/R is raising several claims of his own. I note specifically paragraphs 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, and 13 of his affidavit. I am required to go by the book and deliberate on the C/A cause of action brought pursuant to Section 209 and Section 210 of the District Courts’ Act. Being that as it may, what now is the available cause to take, given the existence of D/R set of claims?
16. But firstly, what is the nature of the set of claims raised by the D/R? Put in brief, the D/R claimed to be the owner of the premises situated at Transmitter, Ward 5, Vanimo Urban LLG, Vanimo-Green District, West Sepik Province, the current residence of the C/A. He claimed the premises was sold fraudulently to C/A late husband Mr. Steven Nimbabus by one Jeffery Visser. Supplementary to this, he claimed against the C/A outstanding rentals for use of the premises and costs of properties that were destroyed by the C/A throughout the duration of their occupancy.
17. At this juncture, it is only proper for me to consider the available options in law and practice both within the District Courts’ Jurisdiction and if need be, the National Courts’ Jurisdiction.
PRELIMINARY ISSUES ON PRACTISE AND PROCEDURE
18. The District Courts’ Act only provides for demands and set-off, of which the relevant provisions lie under Part VIII, Division 1 and Division 2 of the Act. In my view, this does not apply to the case before me. Also my reading of the Magistrate Manual of Papua New Guinea provided no assistance towards this effect and I was unable to locate any other provisions of the District Courts’ Act that could be of any assistance.
19. It is well settled practice in our jurisdiction to consult practices of the National Courts should there be no assistance provided within the enabling legislations or practice materials at the District Courts’ level. As such, recourse is made to the provisions of the National Court Rules and I find within Order 8 practice guidelines relevant for my application, in particular, Rule 38, sub-rule (1) and (2).
“Division 3.-Cross-claims
38. Commencement
(1) A party against whom a claim is made in proceedings and who claims relief by way of counter-claim, cross-claim, set-off, third party claim or otherwise may make his claim by filing a pleading by way of cross-claim in those proceedings.
(2) A cross-claimant may file a cross-claim within the time fixed for filing his defence.”
20. The meaning of counter-claim (cross-claim) as defined by Osborn Concise Law Dictionary Fifth Edition is as follows:
“counterclaim. A counterclaim may be made by a defendant who alleges that he has any claim, or is entitled to any relief or remedy against a plaintiff, instead of bringing a separate action. A counterclaim may also be made against any other person who is liable to him together with the plaintiff in respect of the counterclaim or the original subject matter of action.......”
21. I am satisfied that the D/R claim arising out from his defence affidavit falls within the meaning of counterclaim and therefore Order 8, Rule 38, sub-rule (1) & (2) applies. However, I will only use Order 8 Rule 38 as a guide and applying it where necessary with much flexibility. For a more detail explanation on its application, Reference is made to the National Court decision of Kumarasinghe v. Kunako [2017] N7046, should parties so require.
22. Having satisfied myself of the above practice approach, I will now deal with claims raised by the D/R accepting it as it appears within the relevant paragraphs as aforementioned. For this, the D/R will be referred to as Cross-claimant and C/A will be referred to as Cross-defendant.
COUNTER CLAIM OF THE CROSS-CLAIMANT
23. The cross-claimant (C/C) gave evidence that he is the rightful owner of the block of land currently occupied by the Cross-defendant (C/D). On 05th February 2001, he entered into an agreement with one Jeffery Visser, who agreed to use his premises on an agreed rent to conduct his business. Thereafter, he left for his Village in Lumi, West Sepik Province. He claimed Jeffery Visser without his knowledge and consent sold the property to late deceased Steven Nimbabus and his Wife C/D sometime in 2002. Upon his return to Vanimo Urban sometime around 2003, he discovered what had happened. He claimed to have made several attempts to get late deceased Steven Nimbabus to pay of the premises from him but all these were disregarded.
24. Between the 15th and 19th June 2006, he raised his claim with the Division of Agriculture and Livestock office here in Vanimo and a valuation was done on the crops allegedly destroyed by the Nimbabus family. He also took out a Debt Notice (Memorandum) from the District Court Registry here in Vanimo and served on the Nimbabus family. As per the debt notice, a claim of K362.00 was made against the Nimbabus family. He stated that he left the Notice with them hoping that they will realize his issue and settle it within their own time. Thereafter he returned back to his village in Lumi West Sepik Province.
25. C/C stated that he returned briefly to Vanimo and return back shortly after to his Village in Lumi and stayed there until 2020. He realized upon his return that it had been a long time, and the Nimbabus family had not made any attempts to settle his issues with the premises. Even Mr. Visser avoided him every time he tried to approach him regarding the issue of his premises.
26. On 24th of September 2020, he took out a second Debt Notice from Vanimo District Court Registry, this time claiming K20, 000.00 from the C/D as payment for the premises, but this was ignored. He was intending to further progress his claim when C/D filed this proceedings against him.
27. In response to this claim, C/D denied having any knowledge of this and said in her cross-defence that whatever claim C/C think he has lies not with her but with Jeffery Visser regarding the status of the premises prior to their purchase and occupation.
Assessment of Preliminary issues arising within the Counter-claim
28. Having briefly set out the above counter-claim, I identified the following preliminary issues and consider it necessary to deal with them first before proceeding any further with other counter claim substantive issues. The following is what I consider relevant at this stage:
29. Provided below is my discussions regarding the respective identified preliminary issues.
a) Whether the Counter-claim falls outside the statutory limitation period as provided by the Frauds & Limitations Act and therefore time barred?
30. I now reproduce Section 16 (1) of the Frauds and Limitations Act to be the basis for my discussion:
16. Limitations of Actions in Contract, Tort, etc.-
(1) Subject to Section 17 and 18, an action-
(a) that is founded on simple contract or on tort;
(b) to enforce a recognizance; or
(c) to enforce an award, where the Submission is not by an instrument under seal; or
(d) to recover any sum recoverable by virtue of any enactment, other than a penalty or forfeiture or sum by way of penalty or forfeitures.
Shall not be brought after the expiration of six years commencing on the date on which the cause of action accrued.
31. I make reference to the Supreme Court ruling in the case of Soakofa Trading Ltd v Bank of South Pacific Ltd [2021] SC 2068 and rely on the respective observations contained therein and apply it to the counter-claim before me. Also reference is made to the National Court case of Makono v. Kunako [2019] PGNC 422. A reading of these precedents will give parties a clear understanding of Section 16 and its relevant application.
32. I find the C/C’s counter-claim to have accrued around the year 2006. Evidence provided through his affidavit confirmed that he took out a debt notice from the District Court Registry here in Vanimo against the late husband of the C/D. He claimed against him a sum of K362.00 as per the valuation of crops provided by the Division of Agriculture and Livestock. The cause of action then was for claim of compensation.
33. I make reference to Exhibit ii which is a copy of the Debt Notice (Memorandum), and identified towards the bottom of the page a statement in the following manner, “FURTHER TAKE NOTICE THAT, unless this matter is settled within 7 days from the date of this memorandum, appropriate legal action may be instigated against you without further warning.” As per this statement, the C/C was under an obligation to complete the process by taking out appropriate legal action should the C/D failed to settle what he claimed they owed him. This would also extend to include him using that opportunity to raise other claims such as fraud associated with his compensation claim.
34. Instead, no action was taken by the C/C until the year 2020, when a second Debt Notice was obtained from Vanimo District Court House Registry, containing a claim of K20, 000.00 made against the C/D. This time it was for the total value of the premises.
35. I find the cause of action to have only accrued on or about the year 2006. It has not accrued overtime as in the case of Soakofa Trading Ltd v Bank of South Pacific Ltd (supra). Therefore, the time limitation period commenced in 2006 and should end about 6 years later.
36. To answer issue 1, I am satisfied that the counter-claim raised by the C/C is time barred, as such, I am not required under law to deliberate any further on this claim.
b) If not, whether I have the jurisdiction to deal with any substantive cause of action arising within the counter-claim?
37. Having dealt with issue 1, it is unnecessary for me to consider this issue.
Ruling on the Counter-Claim
38. After having considered the evidence provided by the C/C and the C/D, I am satisfied that there appears to be no factual disputes requiring me to call deponents to be cross-examined, therefore I accept the evidence as they appear within the respective affidavits. On the issue of credibility, I find the C/C reasons for his delay somewhat astounding and contrary to logic and common sense, this in my view cast a lot of doubt on his version of events and only goes to support the fact that, he has failed to take the appropriate steps to pursue his claim within the prescribe time limit.
39. Therefore I find his Counter-claim to be time barred. I see no issue with the exercise of my jurisdiction to that extent because of the fact that I did not proceed to deal with substantive issues rather only preliminary compliance issues.
ASSESSMENT OF RELEVANT SUBSTANTIVE CLAIM ISSUES
40. I now will proceed to deal with the substantive matter which is the complaint/application filed by the C/A pursuant to Section 209 and Section 210 of the District Court’s Act. The issues I consider relevant are as follows:
41. Provided below is my discussions regarding the respective identified substantive issues.
i) Which is the relevant applicable provision (for C/A claim to be based on), Section 209 or Section 2010 of the District Court’s
Act?
42. A closer look at Section 209 as reprinted above, I find sub-section (b) to bear relevance to the C/A’s claim against the D/R. it appears as, “used language indicating an intention to commit any such breach of the peace or to do any such injury or procure it to be committed or done”. The evidence provided as a whole gave no accounts of any physical actions perpetrated by the D/R, that is, clear description of him actually destroying C/A’s properties or physically assaulting her family members, agents or associates. The accounts provided disclosed only verbal encounters and nothing more. Section 209, sub-section (1) does not apply, in my view, it only applies to situation were a husband makes a complaint under this part. Also Section 210, does not apply because the actions of the D/R as claimed were in relation to grievances of his own concerning the premises C/A resided on. That alone is not sufficient to have the court invoke Section 210 and deliberate on whether to label the D/R as a person of evil fame. Therefore, I will consider C/A claim pursuant to Section 209 (b) of the District Court’s Act.
ii) Has the C/A made out a case against the D/R for remedial reliefs to be granted in her favor?
43. Paragraphs 11, 12 and 14 of the C/A’s affidavit dated 21st September 2020 gave clear description of events on the respective dates as mentioned therein. D/R in response only gave general denials, contained in paragraphs 15 and 16 of his affidavit. All the other paragraphs I have dealt with earlier by way of a counter-claim and provided no convincing evidence to accept otherwise, apart from that which was clearly described by the C/A.
44. After having considered the evidence provided by the C/A and the D/R, I am satisfied that there appears to be no factual disputes requiring me to call deponents to be cross-examined, therefore I accept the evidence as they appear within the respective affidavits. On the issue of credibility, I find the C/A description of D/R’s actions at all material times as truthful and on par with logic and common sense. Without any alternative accounts provided by the D/R, it is only proper that I rely on C/A’s version and hold in her favor that she has made out a case for remedial reliefs to be granted in her favor against the D/R.
iii) If yes, whether granting of the remedial relief in favor of the C/A will cause any form of injustice to the D/R?
45. Having dealt with D/R’s counter claim, it is in my view highly unlikely that he would succeed in any claim made before a court of higher jurisdiction other than through the appeal process, due to the application of Section 16 of the Frauds and Limitations Act. As such, any relief granted to the C/A will not cause any form of injustice to the D/R as it only goes to protect the C/A and not to restrict his access to available avenues to pursue further his claim if he so wishes. The equitable maxim of “he who comes to court must come with clean hands”, cannot be used against the C/A as a basis to refuse granting of the relief by D/R because the death of her husband has overtaken its relevance. Also recent events prior to today perpetrated by the D/R, that is, attending to Senior Provincial Magistrate Sasa Inkung’s residence confronting his wife with allegations of corrupt practices and attending to SPM’s Office with the same allegations concerning this current matter only goes to affirm my view that the C/A needs remedial relief in the form of protective order against the D/R. Therefore, my granting of the reliefs to the C/A will not in any way cause an injustice to the D/R.
FINDINGS
46. Having discussed matters sub judice, I hereunder make the following findings per se.
47. I find appropriate and accept the C/A use of a complaint document to file this cause of action against the D/R. I rely on my discussion and opinion in my earlier decision in the matter of Isodor So-or v. Bruno Kim & 3 Others unreported (2021) Civ. 59/2020, were I was of the view that, it is not a strict requirement to commence proceedings under Section 209 and Section 210 of the District Courts Act only by way of an Information document, complaint document can also be used.
48. I find the D/R to have produced through his affidavit several claims of his own against the C/A. As such, I consider it necessary to borrow and apply with much flexibility, Order 8, Rule 38 of the Nation Court Rules in order to deal with his counter-claim.
49. In doing so, I find the D/R’s counter claim to be time bard pursuant to Section 16 of the Frauds and Limitations Act. Therefore, his counter claim is hereby dismissed in its entirety.
50. I find the C/A claim relevant under Section 209 (b) of the District Courts Act. I also find in favor of the C/A sufficient evidence making out a case against the D/R on the Balance of Probabilities for the granting
of remedial relief orders pursuant to Section 2014 of the District Court’s Act.
CONCLUSION
51. In closing, the C/A has produced sufficient evidence beyond reasonable doubt to confirm before me that the D/R has on several occasions used language indicating an intention to commit breach of the peace or do to the her and her family, associates, agents and employees injury and damages to property or procure it to be committed or done. Because of his direct actions, the complainant is in fear and I must give her protection through invoking Section 214 of the District Court’s Act.
52. I hereby do this by issuing the following orders:
COURT ORDERS:
D. Upon any default the Defendant/Respondent may be committed to Vanimo Correctional Services Jail establishment to serve a term of up to 6 months, this is to apply on respective progressive defaults within the recognizance term; and
C. Orders cease to apply at the expiration of the period of recognizance, (C/A thereafter is at her own liberty to apply for further extension should there be a need to) or otherwise discharged at an earlier date by a court of competent or higher jurisdiction.
53. This brings to conclusion the matter before me.
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