DC332

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 1071/2005

BETWEEN

John Kone
Complainant

V

Mark Wuktumi
Defendant

Port Moresby: Bidar, Pm
2005: 21st April & 3rd May.

District Court - Practice and Procedure – Application by Notice of Motion seeking to set aside ex parte order and or alternatively dismissal of proceedings as being frivolous, vexatious and disclosing no cause of action- Relevant principles.

Cases cited
There are no cases cited in this Judgement.

3rd May, 2005.

BIDAR PM: On 22nd March 2005, complainant filed summons upon complaint against the defendant. He claims that on the 9th March 2005, defendant demanded compensation and used threatening words to the effect that "there will be bodies going to the morgue one by one" in the event that the demand for compensation was not met. Defendant displayed offensive behaviour and threatened the complainant in a harmful manner at the residence of Mr. and Mrs. Robert Tiotam.

The demand for compensation arose out of an incident which took place on 5th March 2005 at Golden Bowl Restaurant. On that day, complainant attended his nephew Geoffrey Tiotam’s 21st birthday party at Golden Bowl Restaurant, Waigani. After the party most guests left, defendant who was at the party started bashing his wife Jenny and knocked her out cold. After knocking her out cold he picked up a chair and struck his wife with it. Defendant’s wife Jenny is the sister of Geoffery’s father, Robert Tiotam, and Geoffrey’s mother is complainant’s wife’s younger sister.

When complainant saw Jenny out cold, he lost his cool and punched defendant out and said to him, "I don’t like men who hit woman".

On the 10th March 2005 at Robert Tiotam’s house, complainant was told of compensation demand by defendant and a meeting was to be held on 11th March to discuss payment of compensation for K5,000.00.

On Friday 11th March complainant attended meeting with his two sons and a few friends. Defendant turned up with his wantoks and friends from 9 Mile settlement in two to three PMV busloads. When the demand was made, complainant stated that he did not have K5,000.00 but he could pay defendant’s medical bills, if he came with the relevant medical documents. Defendant was adamant that complainant pay K5,000.00 compensation within two weeks. The defendant and his supporters demanded that the issue of compensation was non negotiable.

On 12th March 2005 complainant reported the matter to Gordons Police station. On Sunday 13th March 2005, police picked up the defendant from his residence and brought him in for questioning. He was instructed by constable Kuri to produce his medical review report by 18th March to the police station to assess whether the matter would go to Court or not. Defendant was told not to issue any threats or demands for the compensation. Complainant was told not to pay any money and to wait for medical review report.

On 24th march 2005, complainant applied ex parte and obtained certain restraining orders from this Court.

On 8th April 2005 defendant through his lawyers filed notice of motion seeking the following orders:-

"1. The ex-parte order dated 24th March 2005 and entered on even date be set aside pursuant to s. 25 of the District Court Act.

2. Alternatively, this proceedings DC:1071/2005 be dismissed as it is frivolous, vexatious and disclosing no cause of action and therefore is an abuse of process.

3. Cost of this application be paid by the complainant.
Time be abridged to the date of settlement which shall take place forthwith by the Clerk of Court.

4. Any other such further orders that the Court deems fit in the circumstances".

5. The applicant relies on his own affidavit sworn on 8th April 2005 and filed the same day. He deposed that he was served the copies of the following documents on 29th March 2005. An ex-parte order dated 24th March 2005, a complaint and summons dated 22nd March 2005 and filed the even date. He then deposed to the circumstances which took place on the 5th March 2005 at Golden Bowl Restaurant.

Having heard Mr. Haumu of counsel for the applicant and upon reading applicant’s affidavit as well as the respondents response and all the circumstances of this matter I am unable to be satisfied that, the Orders, complainant obtained on the 24th March 2005 should continue to be in existence. I find no evidence, particularly recent evidence to suggest that any threats of whatever nature on the complainant. I find that the applicant and respondent are mature and sane people and would use their better judgements. On the other hand, I am satisfied with reasons advanced by the applicant and in all the circumstances I grant the motion by the applicant.

I order that the ex parte order dated 24th march 2005 be set aside. With respect to the cause of action, which complainant filed, I am unable to find that it is a reasonable one. On the contrary, I find that no reasonable cause of action is disclosed and I dismiss the same with costs to the applicant / defendant.

I rule accordingly.

Counsel:
G. Haumo: Defendant
In Person: Complainant