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Manike v Avina [2008] PGDC 3; DC663 (15 January 2008)

DC663

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

DCCi 47 of 2007

BETWEEN

ELSPERT MANIKE
First Complainant

ELTON MANIKE
Second Complainant

AND

IAN AVINA
Defendant

Kainantu: I Kurei
2008: 09 January, 15 January

CIVIL – Claims Damages – Enticing other person to set fire to properties - Arson

Cases Cited
Nil

References
1. Wrongs (Miscellaneous Provisions) Act 37 (2), s. 37 (3)

Counsel
For the Complainant – In Person
For the Defendant – In Person

15 January 2008

DECISION OF THE COURT

Background

It was on 30 March, 2005, after counting and declaration of Arona Valley Development Incorporated (AVDA) Execution elections; Mr. Luke Tanao set fire on the Complainant’s dwelling house.

2. The criminal matter in which Luke Tanao was the Defendant went before National Court of Justice and the decision was made. The claim now before this Court (District Court) came about as Complainant’s now claim Luke Tanao was enticed by the Defendant (Ian Avina) to set fire on their house.

Facts

3. On 30 March 2005, at that time election for Executives of AVDA Incorporated was conducted in the morning in the respective hauslain of the said entity.

After election was conducted, the polling officials transported the ballot papers to Yonki Police Station for counting and declaration.

Luke Tanao was a candidate in the said election.

4. After counting of votes, result plus subsequent declaration of winner. Luke Tanao made his way to his hauslain. There he created a commotion, there after he walked on in the direction of Complainant’s house, thereafter the house was set on fire and was gutted to ground.

5. Defendant was at the scene of the commotion and walked after Luke Tanao to the direction of Complainant’s house, which was seen to burnt down to the ground.

Issue

6. Was Defendant Ian Avina in the area at that time and date in question?

Was Defendant Ian Avina seen in company of Luke Tanao?

Did Defendant Ian Avina entice, influenced or directed Luke Tanao to do what he did, i.e., commit arson?

If Defendant Ian Avina enticed, influenced or directed Luke Tanao in some ways to commit arson, is he (Defendant Ian Avina) legally responsible for his actions for the loss of Complainant’s properties?

Law

7. Law of Tort

What is a Tort?

Simple meaning of tort as defined in little Oxford English Dictionary is (noun) (Law) "a wrongful act or violation of a right". A more complex meaning in Osborne’s Law Dictionary is [crooked (conduct); a wrong]. An act which causes harm to a determinate person, whether intentionally or not, being the breach of a duty arising out of a personal relation or contract, and which is either contrary to law, or an omission of a specific legal duty, or a violation of an absolute right. A civil wrong for which the remedy is a common law action for unliquidated damages, and which is not exclusively the breach of contract or the breach of a trust or merely equitable obligation (Salmond).

Wrongs (Miscellaneous Provisions) Act (W (MP) A)

S 37 (2) Where damage is suffered by a person as a result of a tort (whether it is also an offence or not.)

1. Judgment recovered against a tort – feasor in respect of the damage is not a bar to an action against any other person who would, if sued, have been liable as tort feasor in respect of the same damage.
   

S 37 (3) "In any proceedings for contribution under this section, the amount of the contribution under this section, the amount of the contribution recoverable from a person is such as, is found by the court to be just and equitable, having regard to the extent of his responsibility for the damage, and the court may exempt a person from liability to make contribution, or direct that the contribution recovered from a person amounts to a complete indemnity."

Tort feasor – One who commits a tort – (Law Dictionary).

8. The Wrongs (Miscellaneous Provisions) Act address issue of contributory negligence, however in this case there is no act of contributory negligence by the Complainants.

Other legislated laws considered are;

The Constitution of Independent State of PNG.

The Underlying Law Act 2000.

The Criminal Code Act.

Evidence

9. Complainant’s gave evidence themselves as well as calling three (3) witnesses who claim to be there on the date of the destruction (30 March 2005).

10. Defendant on the other hand called four (4) witnesses beside himself giving his evidence. The witness includes Luke Tanao, who had actually set fire to Complainant’s dwelling house. All the defence witness claims they were physically present at the location of the commotion prior to the fire set to the house.

All the witnesses, both from Complainant’s and Defendant’s are matured persons and claim to see exactly what had happened.

Evidence in Dispute

11. Complainant, Elton Manake claims that the Defendant, Ian Avina was at Yonki during counting. Defendant strongly denies this claim.

12. Defendant’s version is that he came to Kainantu town and returned to Rot Bung whilst then; Luke Tanao created the commotion and subsequently burnt the house down. Again witness from both sides, i.e., Plaintiff’s and
Defendant’s do not agree to the central issue of whether or not Ian Avina directed, enticed, encourage or whatever to burn the dwelling.

Considering the Evidence

13. Witness from Complainant’s side claim to hear and saw actions of the Defendant who clearly enticed/encourage Luke Tanao to burn the dwelling house.

14. It be noted, both First Complainant and Second Complainant were not present at their house when the arson took place. Their young children were there but were not called to testify. Defendant clearly, as expected denies taking any or playing an active role in the burning of the dwelling house by Luke Tanao.

15. I had closely considered evidence of Witness Marabe Yema’a for the Complainant and Witness Luke Tanao for the Defendant.
The above two (2) witnesses, their respective evidence differs from other witnesses from both Complainant’s and Defendant’s side.

16. Witness Marabe Yema’a in his evidence, I hereby briefly outline. He was there after voting remained there until Luke Tanao arrived. He was there, heard and saw what Luke Tanao did. His evidence points out what Defendant said and did.

17. I remind myself, with witness Marabe Yema’a, that in cross-examination Defendant examined the witness and witness revealed his former wife married the Defendant. I am very cautious with his evidence. Apart from Defendant’s personal life and witness person life, the evidence was not discredited in any way. It does have some credibility and weight.

18. On the Defendant’s side Luke Tanao’s evidence is considered carefully. He is now on Probation ordered by National Court of Justice after he was found guilty by National Court of Justice. Whether conviction was recorded or not, I have no records. Nevertheless, Luke’s evidence points out the personal relationship he has with Second Complainant, Elton Manike.

He sets out his reason for why he did commit the arson.

19. If Second Complainant, Elton was in the vicinity or in his house, would it be burnt or a fight will take place I don’t know. Which Luke Tanao was obviously under influence, he alone decided to burn the house. Or was he encourage by words of others including Defendant or mere presence of his supporters including the Defendant made him burn the house.

20. The truth of the matter will be treasured in minds of each person who saw and know including Defendant, witness from either sides of exactly what had taken place.

21. The other witness evidence from both sides are similar. That is Complaint’s witness simply say, Defendant did said words to the effect that enticed or encourage Luke Tanao to set fire on the house.

22. The other defence witness evidence is directly opposite. However the contents from either side respectively are similar. The purpose of it is to show from Complainant’s side what Defendant did and from Defendant’s side, he did not do what Complainant’s witnesses are saying.

23. My view on such evidence, I treat them with caution. First and foremost is, such evidence can be the type of evidence of witness who have been coached.

24. Another reason is, experience in PNG has shown that, any witness called by Complainant has to support what Complainant’s case is all about. Likewise with Defendant’s witness, they have to support what Defendant is saying or claiming.

25. These types of evidence are very common in lower courts, Witness in PNG, sort of give evidence to support whoever calls them, regardless of requirement of law that requires them to tell the truth and assist Courts in establishing facts of the matter.

I consider the evidence before me, but I remind myself the evidence be treated with caution not to accept it on its face value.

Observation

26. The observation I have on litigants and witness, I must say it is one of the few cases I have presided over in which parties acted as "spoilt kids" or "cry babies". By this I mean, if Complainant is claiming Defendant’s witnesses are doing these and that. The next minute, Defendant claims Complainant’s witnesses are doing this and that, all in Court’s precincts. Such behaviour all amount to the attitude problems they may have in their hauslain or the personal differences and dislikes they have of each other.

27. The bottom line is, they have to accept the fact that, they are from the same area whether they like it or not. They will have to bear one and another until life on this earth departs them.

28. Since it is not the first case of its kind before me in Kainantu. It be pointed out that we have rule of law. We have our Court and justice system in place. Citizens taking law in their hands be discouraged. This is now the challenge to younger generation now.

Final Analysis

29. In considering the facts, the issues, the law and the evidence, plus my observation, I find the Defendant was present at Kona Rot Hauslain, he was in view of Luke Tanao, and he has followed Luke to Complainant’s dwelling house. The reasonable person would draw an inference that Defendant may have played a role in burning of Complainant’s house.

30. Acting completely innocent in this matter, I find that notion hard to believe in the circumstances now placed before me. Having said what I wanted to say in this matter, I find the Complainant’s have established on balance of probabilities. Defendant Ian Avina had played a role in burning down of their place of abode.

Finding made accordingly.

31. Assessment of Damages

Complainant’s claim the following in Para 17 of Statement of Claim;

1. Compensation for destruction - K 5, 000.00
2. Emotional and mental suffering - no amount claimed

100. Restraining orders sought

4. Costs at K 500.00
5. Any other orders
   

32. In considering the evidence and finding, the Complainants’ have discharged their onus, i.e., balance of probabilities and establishing Defendant had played a role in their loss and sufferings or miseries.

Also Complainants’ have not in any way contributed directly towards their loss.

33. I make the following assessment, that Defendant did not burn the house but has played a significant role in burning of the house, as such following is awarded:-

For the Complainants - In Person
For the Defendant - In Person