DC797

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

DCCi 137 of 2008

BETWEEN

FATIMA PAINAP
Informant

AND

JOANNE. N. PARAPI
Defendant

Goroka: M. IPANG

2008: August 28
September 04, 08, 15, 23, 26
October 02, 03

CIVIL LAW- Application for Protection Orders – Applicant must come with clean hands – He who comes to equity must come with clean hands – Informant must not be guilty of misconduct or else relief will be denied – SASTRI approach adopted – the nature of right being infringed – the reason or purpose for the restriction – is it justified? – what evil is sought to be remedied? – what’s the prevailing conditions at the time this application is filed? Principles established in Regina –v- Oaks [1986] 26 DRL (4th) 200 also followed.

Cases Cited:

1. Regina –v- Oaks [1986] 26 DRL (4th) 200

References

R. W. James, ‘Challenges of Equity in Developing the Underlying Law,’ Faculty of Law, UPNG, 1996

Legislation

Constitution of Independent State of Papua New Guinea.
District Courts Act, Chapter No. 40

Counsels

Informant: In Person
Defendant: In Person

03 October 2008

JUDGMENT

M IPANG Magistrate: The Informant Fatima Painap, a matured adult female student at University of Goroka, filed a summons upon information and information against the Defendant Joanne. N. Parapi, seeking for protective orders for her safety, comfort and good study environment pursuant to sections 209 and 210 of the District Courts Act Chapter No. 40.
2. The information filed by the informant states that on the 25th of May 2008 at around 2:00 pm at the campus of the University of Goroka, the defendant being an employee of the University of Goroka (UOG) shouted at the Informant using abusive and insulting words, the nature of which is “BAI MI NAIFIM YU.” Informant gave a translation of this statement to mean that “defendant will stab her with a knife and kill her.” (emphasis mine).

3. On the 28th of August 2008, this matter went before my brother Magistrate Mr. M. Gauli as I was away in Port Moresby for Practice Direction Workshop for victims of violence seeking protective orders from 27th to 28th August 2008. This is the workshop basically dealing with issues relating to prompt issuance of Protective Orders of which the current case is a classical example. Let me back track again that on the 28th day of August 2008, before Magistrate M. Gauli the defendant denied the information saying that the words were directed at her husband and not Fatima, the Informant. The matter was set for trial in mid September but due to the fact that the Informant has her exams the trial commenced on the 26th of September, 2008.

4. Legal Issues:

1. Whether Informant’s hands are clean in seeking protective orders.

2. Whether threatening, abusive and insulting words were spoken to the Informant.

3. Whether the defendant has potential to carry out her threats.

5. In order to appreciate and solve the above issues raised, it is necessary to re-state the train of events leading up to the filing of this case seeking for protective orders. These include facts which are not disputed and facts which are disputed.

a)	It was not disputed that in December 2004, the defendant and her husband Dr. Arnold Parapi then a Lecturer at University of Goroka (UOG) separated. Dr. Parapi when giving evidence said when his employed with the UOG was no longer required, he was left with no friends. He said his very wife, the defendant also rejected him. He then decided and left the defendant and their children.

b)	Again it was not disputed that from December 2004 to 2007 both the defendant and her husband had no communication. However, defendant’s husband maintained that he does support his children with whatever jobs he undertook and got paid from. I do not wish to dwell in to defendant husband’s latter statement (this issue) as this is not the appropriate issue to be dealt with in this matter.

c)	Whether defendant’s husband Arnold Parapi had established relationship with the Informant prior to December 2004 had not been well established. However, the defendant presumed her husband and had established relationship with the Informant during the time he was supervising students on Practical Teaching experience. But again this is only assumption without any substantiation. 

d)	It has become obvious before this court that when defendant’s husband left defendant and his children, he was with the Informant from the end of 2004 up till 2007. Since these years defendant’s husband with the Informant had lived together in Rabaul and Wewak. This has been confirmed by Informant’s brother Mark Saghou.

e)	Defendant’s husband Mr. Parapi who is a witness to the Informant said this year 2008, in the month of February, he was permanently employed with Coffee Industry Corporation (CIC) as their Coffee Curriculum Advisor and is based at Aiyura, Kainantu in the Eastern Highlands Province. It so happened simultaneously that the Informant was selected for studies at the University of Goroka (UOG). 

f)	Informant said on the 02nd of February 2008, she headed for the Administration Building to register as a student when the defendant confronted her and used abusive and threatening words. She said defendant threatened to stab her with knife and continuous disturbance so that she will withdraw from her studies and leave.

g)	The second incident happened one month later on the 17th of April 2008. On that date, at around 11:00 am at Goroka Main Market, defendant as claimed by the Informant was with group of women, when she used abusive languages and threatening words to these effect “bai mi kilim yu na yu mas lukaut.” She then spat bettle nut stains on informant’s face and walked away.

h)	On Sunday, 25th of May 2008 at around 2:00 pm, Informant said the third incident took place. She said this third incident happened at her brother Mark Saghou’s residence at the University of Goroka (UOG). Informant said the defendant shouted abusive languages at her for more than two (2) hours and repeated her threatening words that she will kill the Informant and threatened to disrupt Informant’s studies. 

i)	Apart from the above three (3) incidents Informant claimed defendant has deprived her from continuously using the library in a comfortable environment, in that the Informant said defendant does not serve her and always ignored her and walked away. The Informant further said she does not feel safe to walk around in the Campus or to the market as she fears defendant might approach her at any place at any time. 

j)	Informant had taken the matter up with University of Goroka Administration but these was no favourable response. Not even a response when then prompted her to seek justice from the District Court.

k)	Defendant admitted the three (3) incidents. She said was provoked by the fact that the Informant had plan to terminate her from her employment at University of Goroka. Defendant also said she was angered by the fact her husband failed to adequately support his children’s needs, but was always quick to support the informant who just came into his life. Regarding the third incident, she explained that she approached Mr. Saghou’s house to speak to her husband about the interest of the children. When her husband refused, she got frustrated and spoke her piece of mind and she said everything she always wanted to say. I have noted that defendant has not relied and pursued her defence as she has raised on the 28th of August 2008, that the words spoken were directed at her husband.

6. On the 18th of April 2008 at 1:30 pm, at Mrs. Pusal’s office at University of Goroka, there was a peace agreement made between the Informant and the defendant that the defendant will not threaten the Informant. Both shook hands and apologized to each other and this was witnessed by Mrs. Pusal. After this peace agreement, came the third incident which then caused informant to seek assistance from University of Goroka Administration with no response. She then came to the District Court. 

7. Whether the Informant’s Hands are Clean in Seeking the Protective Orders.

So far as it is, the evidence before this court is that after defendant’s husband left his marital home in December 2004, he ended up with a relationship with the Informant. Defendant’s husband Dr. Parapi told this court that in December 2004, he had told the defendant in a Hotel Room that he was leaving her and leaving the relationship. He said he also told her, she has right to seek legal redress.

8. Was Dr. Parapi leaving the defendant and leaving the marital relationship because he was already in contact with the Informant? I do not have any evidence of such nature. It is therefore my view that there is no relationship between the Informant and the defendant’s husband, prior to him leaving the relationship. It is unfair to assume such existed without the help of any form of evidence.

9. Informant’s brother Mark Saghou said, he accepted the Informant and defendant’s husband into his house because it is common knowledge and the rest of the family members accepted the relationship over the number of years both have lived together. He said he accepted the relationship because the other members of the family had done so already (emphasis mine).

10. Legal Position

Maxims represent the foundation on which specific rules of law are founded. See R.W. James, ‘Challenges of Equity in Developing the Underlying Law,’ Faculty of Law, UPNG, 1996 at p. 90. One of these maxims is, “HE WHO COMES TO EQUITY MUST COME WITH CLEAN HANDS.” This specifically refers to the past conduct of the Informant. It requires that a plaintiff in equity (such as the informant) should not be guilty of some improper conduct, or else relief will be denied. In this case, I am satisfied the Informant came to this court with clean hands. Refer to paragraphs 7 and 8 of this judgment.

11. The next issue: whether threatening, abusive and insulting words were spoken to the Informant, I will deal with this issue now that it has become obvious defendant has admitted saying these words.

The final issue is: whether the defendant has the potential or the capacity to carry out her threats.

12. I have alluded to this a little earlier in this judgment. After the peace accord or agreement was made inside Mrs. Pusal’s office on the 18th of April 2008, the third incident took place at Mark Saghou’s residence on the 25th of May 2008, which is just a little less than one (1) month. The past two (2) incidents demonstrated the Informant’s potential or capacity to carry out her threats. The third incident demonstrated that she has no respect for those in authority like Mrs. Pusal who spent her time to broker the peace agreement. I would therefore ruled that the defendant has the potential to execute her threats.

13. Finally, what is the purpose or the “evil” whose existence threatens the safety, comfort or the well-being of the informant that needs to be restrained. I have re-stated the information filed by the informant at the beginning of this judgment and do not wish re-state it here. But the Informant firmly believes that the defendant will carry out her evil intentions to do bodily injury to hear and she is in fear of the defendant. Informant seeks order from this court for the defendant to be placed on ‘Good Behavior Bond’ with sureties for a period of two (2) years – pursuant to ss. 209 and 210 of the District Courts Act, Chapter 40. 

14. Section 209 Information Praying for Surety of the Peace States:

Where a written information is laid before a magistrate that a person has-

a)	threatened-

(i) to do to the complainant or to his wife or child, or a person under his  care or charge, bodily injury; or 

(ii) to burn or injure his house; or

(iii) to commit a breach of the peace towards him or this wife or child or that  other person, or to procure others to commit any such injury; or 

b)	used language indicating an intention to commit any such breach of the peace or to do any such injury or procure it to be committed or done,

and that the complainant is in fear of the defendant, and the complainant prays that the defendant may be required to find sufficient sureties to keep the peace, proceedings may be had under this Part.

15. Section 210 Information Praying for Surety to be of Good Behaviour.

Where a written information on oath is laid before a Magistrate that a person is a person of evil fame, and the complainant prays that the defendant may be required to find sufficient sureties to be of good behavour, proceedings may be had under this Part. In support of the above (s. 211 of the District Court Act) the Informant has the corroborating statements of her brother Mark Saghou and Dr. Arnold Parapi.

16. Application of the Law.

S. 52 of the Constitution guarantees the Informant her constitutional right to freedom of movement. Sub-section (1) states no citizen may be deprived of the right to move freely throughout the country, to reside in any part of the country and to enter and leave the country; except in consequence of a law that provides for deprivation of personal liberty in accordance with s. 42 (liberty of the person). It is obvious the law gives us our rights and under certain exceptions take away these rights away from us.

17. Very soon, I will grant orders which will eventually lead to restricting certain rights of the defendant. But first of all, I need to determine whether such restrictions would be reasonably justified. There are two (2) methods usually applied;

1.	The SASTRI Approach which is commonly applied within the Indian Jurisdiction 

1)	The nature of the right being infringed;

2)	The reason or purpose for the restriction – is it justified?

3)	What evil is sought to be remedied or what issue is being addressed?

4)	Does the extent of the restriction go no further than is necessary to overcome the evil?

5)	The prevailing conditions at that time.

Only if; the restriction is a reasonable one which addresses an important concern/problem existing at that point of time and that is being imposed for a just purpose and restricting rights no further than is necessary to achieve that purpose can a restriction be satisfied.

2.	Regina –v- Oaks [1986] 26 DRL (4th ) 200

Giibbs, CJ stated that for a restriction to be justified, two (2) criteria must be met:

1)	the purpose for restraining the right must be of sufficient importance to warrant the overriding of a constitutionally protected right of freedom;

2)	the restriction must be directly aimed at achieving the purpose. There must be a connection between the restriction and the purpose.

18. Applying the SASTRI Approach and the principles in Regina –v- Oaks case will reveal that the Informant who is currently a student at the University of Goroka fears for her safety because of the threats issued by the defendant on three (3) different occasions. Furthermore, these threats, abuse, insulting words have great negative effects on her study. Being a student, she needs, good study environment and she can’t have that when she is subjected to threats. The informant requires the protective orders for her own safety and for her to have a good conducive study environment whilst being a student at University of Goroka (UOG).

19. I have consider the application for Protection Orders favourably as sought by the Informant. The Protective Orders will last for the time when the Informant is a student at the university of Goroka. And the Informant has applied for the Protection Orders with time span of two (2) years. I believe this was for the period which the Informant is deemed to complete her studies. This Protective Orders will only last if the Informant continues to be a student. These orders will automatically cease if the Informant is no longer a registered student.
 
20. I do grant orders in favour of the Informant in the following manner:

1)	That you be placed on two (2) years Good Behaviour Bond (GBB) with cash surety of k150.00 with the following conditions;

2)	You’re now restrained from going to Mark Saghou’s house; closer to the house, shouting abusive, threatening or insulting words to the Informant. You’re restrained from confronting the Informant anywhere at the University of Goroka Campus, not to threaten, intimidate, insult or abuse the Informant in whatsoever ways,

3)	Your agents, relatives or friends be also restrained from interfering, threatening, assaulting or use abusive or insulting words at the informant.

4)	You’re to sign your Good Behaviour Bond form by 07th of October, 2008 with the receipt of k150.00 cash surety.

Counsel:
Complainant: In Person
Defendant: In Person