DC603

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE
SITTING IN ITS CIVIL JURISDICTION]

DCCi 17 of 2006

BETWEEN

JOLLY MORUWO
Complainant

AND

SIMON SIA
Defendant

Goroka: M Gauli
2007: August 13, 27
September 14, 29

CIVIL- Claims damages – Unlawful assault – Tort – Battery – Used insulting words – Suspect of stealing – Complainant’s evidence contradicts the allged date of the incident – Complainant not to lead evidence on matters not pleaded in the complaint and summons, Sec. 137 District Courts Act.

Cases Cited
Collins –v- M.V.I.T [1990] PNGLR 580
Waima –v- M.V.I.T [1992] PNGLR 254
M.V.I.T –v- Salio Tabanto [1995] PNGLR 214

References
Nil

Counsel
For the Complainant - Mr. D. Umba of Umba Lawyers
For the Defendant - Mr. M. Mukwesipu of Stevens Lawyers

26 September 2007

DECISION OF THE COURT

M Gauli: The complainant Jolly Moruwo sued the defendant and claimed in damages a sum of K4, 000.00 for assault and accusing him of stealing. The defendant Simon Sia is the director and a shareholder of Asia Pacific Investment Limited trading as Bintangor Trading. And the general manager of Bintangor Trading based in Goroka. The complainant is the former employee of Bintangor Bakery since the 06 of June 2003 until his termination on 20 October 2004. The defendant unlawfully assaulted the Complainant in the presence of the fellow employees by slapping him twice on the face, he grabbed him by his shirt and pushed him against the wall. And he accused him of being a thief. The defendant denied the entire allegation.

2. The issues to be considered are these:-

i. Did the allegation of assault and insulting occur on 20 October 2004?
ii. Whether or not the complainant could claim damages on matters not pleaded in the complaint and summons. 

3. Before I discuss these issues I would state the evidence of the parties first. The complainant and his only witness Jeffery Omenafa gave evidence. Their evidence are as follows.

4. Jolly Moruwo (Complainant) stated:

“On the 18 August 2004 I drove the bakery bus back to the bakery after doing my sales delivery at 3:00 pm. I opened the door of the bus and came out. Another employee by the name of David Pillow came out of the bakery and said “good afternoon, see you tomorrow” and went home. I saw the defendant drove into the bakery yard and parked his car. I walked into the bakery and stood in the bakery waiting for Miss. Bee to check for another order for delivery. The defendant walked straight to me and said, “You one of them, you are a thief”. And he held and grabbed my shirt, pushed me against the wall and slapped me on my face twice in front of all the bakery employees and the Manager Miss Bee.

5. Jeffery Omenafa (Witness) stated:

“I was employed by Bintangor Bakery from 24 April 2004 to 16 May 2005 _ _ _ during that employment period we worked seven days a week from 7:00 am to 6:00 pm. Sometimes passing that hour, no lunch break, no off days even public holidays except new year.

On the 18 August 2004 at about 3:00 pm, I saw the defendant walking into the bakery and walked straight towards the complainant and said to him: “You are one of them, you thief” and grabbed his shirt pushed him against the wall and slapped him on his face twice. I was standing two metres away and saw the incident will all the other bakery employees and the Manager herself Miss. Bee.”

6. During cross-examination both the complainant and the witness J. Omenafa were asked if the defendant said anything else to the complainant apart from saying “You are one of them, you thief”. The complainant said that defendant said something else but he could not remember them. While witness Omenafa said that defendant did not say anything else beside what was said.

7. Defendant Simon Sia was not present to give evidence on 28/08/06. However by consent of both consels, the affidavit of Simon Sia dated 18 December 2006 was tendered and Marked EXHIBIT ‘C’ with its attachment. Defendant has no witnesses. His affidavit stated:-

“Jolly Moruwa was employed by Bintangor Bakery from the 05 of May 2003 to the 19 October 2004 when he resigned. On the 20 October 2004 nor at any other time did I unlawfully assaulted Jolly Moruwo in front of other workers of the company by slapping him twice on his face neither did I grab his shirt and push him. Also on the 20 October 2004 nor at any other time did I insult him by say _ _ _ _ “You thief, you are one of them”. The complainant was at the time employed by the Bakery and he was supervised by Peter Pasun and Ms. Bee. I understand from records Jolly resigned from work and Peter Pasun endorsed his resignation.

I do not get involved in the matters as alleged by Jolly as they are completely handled by Division Supervisors. I will only get involved if Peter Pasun or Ms. Bee request my opinion or decision on the issue. In this case I was not consulted and did not employ the kind of treatment referred to by Jolly. That is illegal and I know none of our staff assaulted the complainant _ _ _ “.

8. Attached to his affidavit (marked EXHIBIT ‘C’) is a letter from Jolly Moruwo to Bintangor Trading dated 19-10-2004 in which the complainant requested for resignation following the incident that occurred on the 16 October 2004. That letter did not state what that incident was but the comment on that letter indicated that it was due to a stealing incident in which the complainant accepted his letter of resignation with his entitlements to be calculated.

9. The complainant’s evidence claimed that Ms. Bee, the Manageress at the Bakery was present at the time of the incident on the 18 August 2004. However none of the parties have obtained her affidavit to confirm or deny the claims by the complainant. If she is still employed at Bintangor Bakery it will not be possible for her to file affidavit or even testify against her supervisors including the defendant in this proceedings. It would be more appropriate for the defendant to call her as his witness but he had not called her.

10. Issue No. 1: Did the alleged incident of assault and insulting occur on the 20 October 2004?

The complainant’s evidence is that this incident occurred on the 18 of August 2004 inside Bintangor Bakery. The defendant denied any such incident on that particular day or even on any other days after that. The complainant in his letter of resignation dated the 19 October 2004 stated that the incident occurred on the 16 October 2004. And he was terminated as of the 20 October that year.

11. In the complaint, the complainant claimed that the incident occurred on the 20 October 2004. He restated that date in his Statement of Claim. In his affidavit (EXHIBIT ‘A’) he said the incident occurred on the 18 August 2004 and he was terminated on the 20 August, some two days later. And in his letter of resignation the dates of the assault incident and his resignation are completely different, separated exactly by two months.

12. The complainant is educated, he speaks and understands simple English. He cannot be mistaken of the actual date of the incident. During Cross-examination, in Question No. 6, he was referred to Paragraph 2 of his Affidavit to re-affirm the dates of his employment and his termination. He said he was certain of the dates stated in Paragraph 2 of his affidavit. Clearly the complainant gave evidence of the incident that did not form part of his complaint of the incident of the 20 of October 2004. The complainant had never applied to amend the complaint, Statement of Claim or his affidavit. On the basis of the evidence as available before this Court, I find that the Complaint and the Statement of Claim contradicts the evidence in that the date of the alleged incident is incorrect or that the complainant’s evidence is contradictory in that he adduced evidence that did not constitute the alleged incident. The complainant failed to give evidence of the alleged incident of the 20 October 2004. There is no evidence at all for the incident of the 20 October. He failed to establish his case against the defendant. Where the evidence of the complainant contradicts with the complaint and the statement of claim in respect to the date of the incident that discredit the complainant’s case. And that must favour the defendant’s case especially when the complainant fails to seek amendment to the date of the incident. 

13. Issue No. 2: Whether or not the complainant could claim damages on matters not pleaded in the complaint and summons.

By law the complainant cannot lead evidence to matters that are not pleaded in the complaint or in the statement of claim. The Section 137 of the District Courts Act is precisely clear on this point of law. This provision state and I quote:

“137	Evidence of matters not in summons

Evidence of a demand or cause of action shall not be given on behalf of the complainant on the hearing of the complaint other than a demand or cause of action stated in the summons issued on the complaint, or in the summons as amended.”

14. The counsel for the defendant submitted that the complainant is not permitted to lead or rely on evidence for matters not pleaded. And he refers to the law mention above. I quite agree with the counsel’s submission. The complainant gave evidence of an incident that occurred some two months before the alleged incident of this cause of action. He has not pleaded for the incident of the 16 August 2004 for which he gave evidence to. His evidence for the incident of the 16 August 2004 cannot be accepted simply because he has not pleaded that in his complaint and summons. It is well established in our jurisdiction that one cannot lead evidence to matters not being pleaded at a trial – see the case of Collins –v- M.V.I.T [1990] PNGLR 580; Waima –v- M.V.I.T [1992] PNGLR 254 and M.V.I.T –v- Salio Tabanto [1995] PNGLR 214. These case precedents clearly established that the plaintiff or the complainant could not give evidence of matters he has not pleaded in the complaint or summons. In the present case the complainant gave no evidence of the assault or insult incident that occurred on 16 October 2004 which he pleaded in the complaint, summons and the statement of claim. However, he gave evidence of the incident of 16 August 2004 which he has not pleaded at all. I find that the complainant failed to establish evidence against the defendant of the matters he has pleaded. And I find the defendant not liable. That the case be dismissed with costs for the defendant. 

For the Complainant – Mr. D. Umba of Umba Lawyers
For the Defendant – Mr. M. Mukwesipu of Stevens Lawyers