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Nahu v Apuka [2005] PGDC 52; DC262 (28 January 2005)

DC262

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 4725 OF 2004

BETWEEN

Nini Nahu
Complainant

V

Rex Apuka
Defendant

Port Moresby : Mr Gauli M
2004: December 12th
2005: January, 06th – 28th

Counsel
Complainant: In Person
Defendant: In Person

DECISION OF THE COURT

Nature of the Complaint

Gauli – The Complainant seeks orders to restrain the Defendant from harassing, threatening, assaulting or intimidating the Complainant.

Brief Facts.

The brief facts are that the parties are a couple married in September, 1997 according to custom. They have number of children and they have a home in East Boroko. The Defendant is employed by Seeto Kui as a Wrapper. They are both from Eastern Highlands.

In September, 2004, the Complainant has being visiting her relatives at Erima regularly. On 2nd October, 2004 she went to live with her relatives. On 14th October, she decided to return to her husband, the Defendant. She went to Manu Market at Malaoro in 3 Mile selling her goods. At about 6.00 pm the market was closing and the Complainant was storing away her unsold goods when the Defendant approached her and asked her if she was going home with him. The Complainant responded by saying that she was going back to her relatives at Erima. The Defendant was upset by her response.

The Defendant held her by her hair and pulled her down to the ground and he kicked her left side of the face with the stockman boot. They had a struggle but they were separated by the Complainant’s relatives. The Defendant picked up an iron rod and assaulted her on the back of her head. The Complainant sustained injuries to the left side of her face and on the back of her head. And the Complainant seeks orders to restrain the Defendant from interfering with her life.

The facts are not in dispute except that the Defendant denied kicking her on the face. The Defendant alleged that he only stepped on the face.

Evidence

The Complainant and her witness as namely Mrs Poli Edward and Mr Edward Kamale gave evidence on Oath. These two witnesses were present at the scene of the incident and they actually separated them during that fight. The Complainant was actually with these witnesses when this incident occurred. The witness Polii Edward said she saw the Defendant pulled the Complainant by the hair. She fell to the ground and while laying on the ground the Defendant booted her or her face. She then separated them. The Complainant got up, she jumped onto a table, she got a knife and tried to stub the Defendant. But Mr Edward Kamale disarmed her. Mrs P Edward then returned to put away her unsold good at the market. Then she heard people shouting that the Complainant fell down. When she turned she saw the Complainant laying on the ground. Mrs Edward went to stop a taxi while Mr Edward Kamale went to assist the Complainant. Mrs Edward did not see the Defendant hit the Complainant with the metal bar on the head.

The witness Edward Kamale gave evidence that while the Complainant and the Defendant were wrestling, he separated them. The Complainant jumped onto the table with a knife in her hand. Mr Kamale disarmed her and he pushed the Defendant away for some 15 metres from the Complainant. As he was going back he heard people shouting that the Complainant fell to the ground. He then turned back and saw the Complainant bleeding from the back of her head. He assisted her into a taxi and took her to the hospital. And Mr Kamale did not see the Defendant assaulted rhe Complainant on the head with a metal rod.

The Defendant and his witnesses namely Tom Amori and Usima Rex admitted that the Defendant did hit her on the head with the metal rod. They said that after the Complainant’s knife was removed from her hand. She picked up the metal rod and hit the Defendant on the head. The Defendant then disarmed her and he hit her on the head with the same metal rod.

On the evidence as it is I am satisfied that the Defendant did assault the Complainant with the metal bar on the back of her head. The clinic record showed that she sustained a deep laceration to the back of her head and a laceration to her upper and lower part of her left eye. The Complainant tendered the photographs of her injuries. This shows that the Defendant’s denial of kicking her on her left side of the face is not true. I find that the Defendant did kick her on the left side of the face causing cuts to the upper and lower parts of her left eye. I find the Defendant liable for inflicting injuries to the Complainant’s body.

The relief the Complainant is seeking is to restrain the Defendant from assaulting, threatening, insulting and or intimidate the Complainant anywhere at anytime. She is not seeking for compensation for the injuries to her body nor praying for the sureties of the peace. There is no substantial matter on foot. The practice in the District Court is that the injunctive or restraining orders can only be heard and made provided there is a substantive matter of complaint being filed. Since there is no substantive matter being filed it is an abuse of process to proceed on the restraining orders alone. The reason is that the restraining order or the interim orders are merely temporary pending the hearing of the substantive matter.

For the fore going reasons this Court is reluctant to enter restraining orders without there being a substantive matter on foot. Accordingly the Court orders this case be dismissed.