Sen v Sen [2011] PGNC 341; N4316 (22 June 2011)

N4316

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CIA NO 220 OF 2009

JACOB SEN
Appellant

V

ROSE SEN
Respondent

Madang: Cannings J

2010: 22 October;
2011: 22 June

JUDGMENT

APPEALS – whether sufficient evidence to support a District Court order for appellant to pay K10,000.00 damages – whether proper assessment of damages made by District Court

The respondent sued her former de facto husband in the District Court, claiming damages for trespass to the person and for unjust enrichment. The District Court upheld the claim and awarded her K10,000.00 damages. The appellant appealed on four grounds: (1) the complaint was vague, in that the allegations of fact were not specified, and therefore defective; (2) the District Court failed to conduct a proper assessment of damages; (3) there was no evidence to support the award of K10,000.00 damages; (4) irrelevant considerations were taken into account, resulting in a miscarriage of justice.

Held:

(1) The complaint was adequately pleaded before the District Court.

(2) The assessment of damages, though short on detail, was, having regard to the fact that the appellant failed to present any evidence, supported by the respondent's evidence, and therefore proper.

(3) There was sufficient evidence to support the award of damages.

(4) Irrelevant considerations were not taken into account and there was no miscarriage of justice.

(5) All grounds of appeal were rejected and the appeal was dismissed.

Cases cited

The following case is cited in the judgment:

Egga Pua v Otto Benal Magiten (2005) N2892

APPEAL

This was an appeal from a decision of the District Court ordering the appellant to pay K10,000.00 to the respondent.

Counsel

J Lai, for the appellant
A Meten, for the respondent

22 June, 2011

1. CANNINGS J: This is an appeal against an order of the Madang District Court (Mr S W Seneka SPM presiding) which was granted against the appellant, Jacob Sen, requiring him to pay K10,000.00 damages to the respondent, Rose Sen.

2. The order was made on 26 November 2009 in proceedings commenced by the respondent, in which she sued her former de facto husband, claiming damages for trespass to the person and for unjust enrichment. The gist of her complaint was that she and the appellant were married in 1995 in Goroka, they moved to Simbai in the Middle Ramu District of Madang Province and established a successful trade store and cocoa fermentery business, but then in 2006 the appellant took in a second wife, assaulted the respondent and forced her to leave the home and the business, resulting in her moving with their child to Madang town to start a new life. His Worship Mr Seneka, having noted that the appellant, though filing a defence, failed to attend the trial or present any evidence, upheld the complaint and awarded the respondent K10,000.00 damages.

GROUNDS OF APPEAL

3. The notice of appeal raises four grounds of appeal:

(a) The learned Magistrate erred in fact in finding that the defendant is liable to pay K10,000.00 to the complainant when the summons and the complaint and the affidavit in support of the claim do not support the claim or are defective.

(b) The learned Magistrate has erred in law and in fact when he awarded the sum of K10,000.00 to the complainant when the quantum of damages have not been assessed by the Court.

(c) The learned Magistrate erred in law and in fact in finding that the complainant is entitled to the sum of K10,000.00 when there is no evidence before him to support such finding.

(d) The learned Magistrate took into account irrelevant considerations as such there is a miscarriage of justice.

GROUND (a): COMPLAINT WAS DEFECTIVE

4. The appellant argues that the complaint filed in the District Court was vague and defective as the allegations of fact were not specified and that there was no evidence of the respondent being assaulted by the appellant. Mr Lai, for the appellant, submitted that the affidavit of the respondent that was relied on by the trial Magistrate does not specify how she was beaten, what injuries she sustained or how much money she had invested in the family business. His Worship should have had regard to the appellant's evidence that the respondent voluntarily left him and married another man, that the appellant did not threaten or abuse the respondent and that she was only his de facto partner, in contrast to the alleged second wife, Julie, a woman he lawfully married according to the rites of the Seventh-Day Adventist Church. The trial Magistrate should have found as a fact, Mr Lai submitted, that the business at Simbai was actually started by contributions from the appellant's cousin-brothers, Tony Komonai and Johnson Aipoki. Further, that in 2008 the appellant found the respondent in Madang and asked her to return with him but she refused.

5. I reject those submissions. I consider that the respondent sufficiently pleaded her case before the District Court. The appellant was given the opportunity to provide his side of the story but he did not attend the trial despite the case being adjourned a number of times to give him that opportunity. By failing to attend, the appellant deprived himself of the opportunity to have his side of the story admitted into evidence. This did not mean that the respondent was automatically entitled to the relief that she was seeking. She still had to persuade the trial Magistrate that she was making a proper claim and that there was sufficient evidence to prove her allegations on the balance of probabilities. The respondent gave evidence in the District Court that she did not agree with the appellant bringing in another wife and because of this they had constant arguments and the appellant was beating her up so she left him. I am satisfied that the learned trial Magistrate properly assessed the evidence and made findings of fact that were reasonably open to be made. Ground (a) is therefore dismissed.

GROUND (b): FAILURE TO CONDUCT A PROPER ASSESSMENT OF DAMAGES

6. The appellant argues that the complaint filed in the District Court did not clearly set out what types of damages the respondent was claiming and in particular failed to comply with Order 8, Rule 29 of the National Court Rules, which provides that a party must give necessary particulars of any claim. At the trial the respondent did not adduce evidence to show how much money she invested in the business or what was owed to her by the appellant. It was argued that the learned Magistrate erred in law by awarding damages of K10,000.00, in light of the defective complaint and the lack of evidence.

7. I reject those arguments. I repeat my determination of ground (a): the statement of claim sufficiently pleaded the nature of the respondent's case, both as to the causes of action that were being pleaded and the relief sought. The argument about Order 8, Rule 29 of the National Court Rules makes no sense as that is a rule of practice and procedure that applies to pleadings in the National Court, not the District Court. The assessment of damages, though short on detail, was, having regard to the fact that the appellant failed to present any evidence, supported by the respondent's evidence, and therefore proper. Ground (b) is therefore dismissed.

GROUND (c): NO EVIDENCE TO SUPPORT AWARD OF K10,000.00 DAMAGES

8. Mr Lai conceded at the hearing of the appeal that this ground was a rehash of grounds (a) and (b). Grounds (a) and (b) have been dismissed, so ground (c) is also dismissed.

GROUND (d): IRRELEVANT CONSIDERATIONS WERE TAKEN INTO ACCOUNT RESULTING IN A MISCARRIAGE OF JUSTICE

9. The alleged irrelevant consideration that is relied on to support this ground of appeal is the amount of K10,000.00 that was sought by the respondent. Mr Lai submitted that the learned trial Magistrate simply awarded the amount of damages that the respondent asked for, without further consideration.

10. This is a flimsy argument, which has already been addressed. I repeat my determination of ground (b): the assessment of damages, though short on detail, was, having regard to the fact that the appellant failed to present any evidence, supported by the respondent's evidence, and therefore proper. I uphold the submission of Mrs Meten, for the respondent, that there has been no miscarriage of justice. Ground (d) is dismissed.

CONCLUSION

11. All grounds of appeal have been dismissed. There has been no miscarriage of justice so I will under Section 230(1)(c) of the District Courts Act affirm the decision appealed from.

12. As to costs, it is appropriate to award costs of the appeal to the respondent, the successful party. Having regard to Section 234 of the District Courts Act and the power of the National Court to make an order for a specific sum of costs (Egga Pua v Otto Benal Magiten (2005) N2892) I will direct that the appellant pay K400.00 costs, which shall be paid within 14 days of the date of this judgment to the Registrar of the National Court, who shall forthwith pay over that sum to the respondent.

ORDER

(1) The appeal is dismissed.

(2) The order of the Madang District Court of 26 November 2009 in DCC No 42 of 2009 is confirmed and shall be respected and enforced.

(3) The appellant shall within 14 days of the date of this judgment pay costs of the appeal in the sum of K400.00 to the Registrar of the National Court who shall forthwith pay over that sum to the respondent.

(4) Time for entry of the order is abridged to the date of settlement by the Registrar, which shall take place forthwith.

Judgment accordingly.
_____________________________
Thomas More Ilaisa Lawyers & Attorneys: Lawyers for the Appellant
Public Solicitor: Lawyer for the Respondent