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Woodham v Undai [1999] PGLawRp 659; [1999] PNGLR 163 (18 June 1999)

[1999] PNGLR 163

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

DAVID WOODHAM

V

JANET UNDAI

MADANG: SAWONG J
4, 18 June 1999

Facts

This is an appeal from the Madang District Court. The appellant is a New Zealand citizen and was married to a Papua New Guinean woman from the Western Highlands Province. They are said to have been married under custom of the Western Highlands and have been so married for up to 18 years. Their marriage ran into difficulties and proceedings were initiated at a Village Court in Madang but comprising Village Court Magistrate from Madang and Minj, for the dissolution of marriage, custody of children and compensation. The Village Court then ordered that:

(i) the customary marriage be dissolved;

(ii) that the applicant pay compensation of K30,000 in cash and kind to the respondent;

(iii) that both parties have joint custody of their youngest child; and

(iv) a preventative order against the respondent to keep peace and good order towards the respondent.

The respondent appealed to the District Court, and the District Court Magistrate quashed orders (i) and (ii) but confirmed orders (iii) and (iv), stating that inter alia, the Village Court had no jurisdiction to dissolve customary marriage.

Held

1. There is no express statutory power in a Village Court to either dissolve a customary marriage or order compensation payment following such a dissolution under provisions of the Village Courts Act.
   
2. The provisions of Matrimonial Causes Act do not apply to or in relation to dissolution of customary marriages.
   
3. However, there is general power under ss 47, 57 and 58 of the Village Courts Act, upon which the Village Court derives jurisdiction to dissolve customary marriages and order compensation payments following such dissolution.
   
4. In instances where statutory provisions are ambiguous or unclear, it is the duty of the court to construct those words in a fair and liberal manner so as to achieve the purpose intended by the legislature: PLAR NO. 1 of 1980 [1980] PNGLR 326 applied.
   

Papua New Guinea cases cited

PLAR No. 1 of 1980 [1980] PNGLR 326.

SCA No. 6 of 1984 Re Provocation [1985] PNGLR 31.

Wemay v Kepas Tumdal [1978] PNGLR 173.

Counsel

D Poka, for the applicant.
Respondent in person.

18 June 1999

SAWONG J. This is an application for judicial review of a decision made by the District Court in Madang on 14 January 1999. The applicant seek to have the said decision and the orders made thereto quashed.

In support of the application the applicant relies on his two affidavits. The respondent has not filed any material and at the hearing she said that she was happy with the decision of the District Court Magistrate.

Before I deal with the substance of the application and the submission it is necessary to set out a brief history of the matter.

History

The applicant is a New Zealand citizen. The respondent comes from Western Highlands Province and is a Papua New Guinea citizen. They married customarily. It is not clear as to under which custom they were married but I infer that they were according to the customs of the respondent. They had been married for 17 or 18 years. Unfortunately their marriage had problems and so proceeding were initiated at the Village Court in Madang for the dissolution of that marriage, custody of their children and compensation.

On 17 September 1999 a Village Court comprising Village Magistrates from Minj and Madang heard the dispute between the parties and the following orders were made;

(i) Order 2253 – that the parties marriage be dissolved.

(ii) Order 2254 – that the applicant pay compensation to the respondent comprising of one (1) 115 seater Bus worth K26,000.00 cash money of K4,000.00 a total of K30,000.00.

(i) Order 22255 – both parties have joint custody of their youngest child – Naomi.

(iv) Order 67185 – being a preventive order against the respondent.

The respondent then appealed against the decision and the orders of the Village Court to the District Court pursuant to s 86 of the Village Courts Act of 1989.

The learned Magistrate at the District Court heard the appeal and quashed Orders 2253 and 2254 of the Village Court. Orders 2255 and 67185 were not affected.

The application for review before this Court is in relation to the quashing of the Orders 2253 and 2254.

I now turn to consider the submissions in respect of these matters. I deal firstly with Order 2253. The learned magistrate in his reasons for his decision refers to the non-appearance of the respondent at the hearing before the Village Court.

He criticises the Village Court for proceeding ex parte and determining the matter. He then refers to s 79 of the Village Courts Act to hold the view that the Village Court ought not to have proceeded without the presence of the respondent. He then says that the Village Court had no jurisdiction to dissolve a customary marriage. His criticism lies on the face of evidence contained in the report by J. Pinger where in the second page of this report, commencing from the second paragraph to the fifth paragraph, he describes in detail the actions of the respondent.

The learned magistrate found that the village Court had no jurisdiction to dissolve a customary marriage. Accordingly he proceeded and quashed the Village Court order dissolving the parties’ customary marriage.

Mr Poka, counsel for the applicant submitted in essence that the learned magistrate made an error when he made that finding. He submitted that a Village Court had jurisdiction to hear and determine customary matters including applications for the dissolution of customary marriage. This was an interesting point because there is no express power in the Act, for a Village Court to dissolve a customary marriage. There is no doubt that a customary marriage can not be dissolved in accordance with the provisions of the Matrimonial Causes Act, because the provisions of that Act has no application for the dissolution of customary marriages. Section 4 of that Act provided in no uncertain terms that the Matrimonial Causes Act, does not apply to or in relation to a customary marriage.

There is therefore an ambiguity as to whether a Village Court, in the absence of any express provision has the jurisdiction to dissolve a customary marriage.

There is therefore an ambiguity as whether a Village Court, I the absence of any express provision has jurisdiction to dissolve customary marriage.

It is the trite principle of statutory interpretation that "if the words of a statute are themselves precise and unambiguous, then no more is necessary than to expound those words in their ordinary and natural sense" Wemay v Kepas Tumdal [1978] PNGLR 173 at 176 per Wilson J adopted in SCA No. 6 of 1984 Re Provocation [1985] PNGLR 31. Where however, the words of a statute is or are ambiguous or unclear, it is the duty of the Court to construct those words in a fair and liberal manner so as to achieve the purpose intended by the legislature – See PLAR No. 1 of 1980 [1980] PNGLR 326.

Section 57 of the Village Courts Act grants a Village Court general jurisdiction. It reads:

"(1) Subject to Subsections (2) and (3), in all matters before it a Village Court shall apply any relevant custom as determined in accordance with ss 2, 3 and 7 of the Customs (Recognition) Act Ch 19.

(2) Custom shall be applied in accordance with subsection (1) whether or not it is inconsistent with any Act.

(3) The Power conferred on a Local Level Government body by the Local Government Act (Ch 57) or an Act of a Provincial Legislature to make rules, extends to making rules declaring what is to be taken as the custom relating to any matter, and such a declaration is binding on Village Courts."

As can be seen, the Village Courts have general powers under s 57(1) of the Act to apply any relevant customs as determined in accordance with ss 2, 3 and 7 of the Customs (Recognition) Act (Chap.19). I do not propose to analyse s 57(1) and (2) of the Act in any great detail. But in general, I consider that s 57(1) and (2) of the Act confer very wide powers on Village Courts. Section 57(1) provide in very wide terms that "in all matters before it, a Village Court shall apply any relevant custom as determined in accordance with ss 2, 3 and 7 of the Customs (Recognition) Act".

Upon a plain reading of this provision it is quiet obvious that a matter involving a customary marriage or dissolution of a customary marriage would be or is covered by this provision. It is my view that this general power is wide enough to read into it that a Village Court had jurisdiction to deal, with, inter alia, customary marriages and customary divorces.

Section 2 and 3 of the Customs (Recognition) Act provides:

"2(2) In considering a question referred to in Subsection (1), a court –

(a) is not bound to observe strict legal procedure or apply technical rules of evidence; and

(b) shall -

(i) admit and consider such relevant evidence as is available (including hearsay evidence and extrusions of opinion); and

(ii) otherwise inform itself as it thinks proper.

3(1) Subject to this Act, custom shall be recognised and enforced by, and may be pleaded in, all courts except so far as in a particular case or in particular context –

(a) Its recognition or enforcement would result, in the opinion of the court, in injustice or would not be in the public interest; or

(b) in a case affecting the welfare of a child under the age of 16 years, its recognition or enforcement would not, in the opinion of the court, be in the best interests of the child.

(2) Nothing in Subsection (1) of itself empowers a Local Government Council to make a subordinate enactment affecting custom, but this subsection does not limit in any the powers of a Local Government Council conferred by any other law.

Section 5(f) Subject to this Act and to any other law, custom may be taken into account in a case other than a criminal case only in relation to –

(f) marriage, divorce or the right to the custody or guardianship of infants, in case arising out or in connection with a marriage entered into in accordance with custom; or

(i) the existence of a state of mind of a person,

or where the court thinks that by not taking the custom into account injustice will or may be done to a person."

In addition, I consider s 5(f) of the Customs Recognition Act to be relevant also, because it provides, inter alia that custom maybe taken into account in a civil case involving inter alia, marriage, divorce etc.

Applying the principles set out in the authorities I have referred to earlier to the present case, I consider that s 57(1) and (2) of the Village Courts Act give a wide general power to a Village Court. This would include the power to order dissolution of a customary marriage. I am fortified in my view because of the provision of s 58 of the Act, which gives a very wide power to a Village Court. I would infer that a Village Court has power to dissolve customary marriage pursuant to its general powers under ss 57 and 58 of the Act.

In the present case, both parties agree that they were married under a custom. There is therefore no question that they were customarily married. That being the case, I am of the view that the Village Court was the proper forum for the dissolution of their marriage.

The respondent was not prepared to submit herself to the jurisdiction of the Village Court. It is obvious that she became abusive bordering on contempt of the Village Court. Her actions speaks for itself. It is quite clear that the Village Court Officials went out their way to help her to come to Court. She was given every opportunity to be heard but she refused to take part.

In the end, I am of the view the learned District Court magistrate made an error of the law quashing the decision of the Village Court dissolving the parties’ marriage.

I must therefore quash the decision of the learned District Court.

I now deal with Order 224. In this Order the Village Court ordered the applicant to pay compensation to the respondent in the total sum of K30,000.00 comprising a 15 seater bus and cash. The learned magistrate in the District Court found that the amount of compensation ordered was not within the powers of the Village Court to make. There is no doubt that a village Court has power to make compensatory orders. This power is conferred by s 45 of the Act. It reads:

"Subject to Section 46 and to Part VI, a Village Court may make an order for –

(a) the payment of compensation or damages; or

(b) the repayment of a debt,

to an amount not exceeding, in cash or value, the sum of K1000.00.

In matters relating to –

(a) bride price; or

(b) the custody of children; or

(c) death,

a Village Court may award such amount in compensation or damages as to the Village Court seems just."

Section 45 is subject to the provisions of s 46 and Part VI of the Village Courts Act. Section 46 provided that in matter of bride price, custody of children or death, the amount a Village Court may award compensation or damages may be as the Village Court deems just. The implication here is that a Village Court has the power to award compensation in excess of the amount prescribed in under s 45. The only problem with s 46 is that it relates to bride price, custody or death. There is no express provision in s 46 for compensation payments involving customary divorce. However, I would think that by reference to "bride price" the legislature intended that a Village Court would to have powers to order compensation for dissolution of customary marriages. This would then entail compensation or damages in excess of K1000.00. It follows that I am of the view that the learned magistrate fell into error when he quashed the order for compensation. Consequently I would also quash his decision on this aspect.

In conclusion, it is my view that the learned magistrate fell into errors and consequently I would quash his decisions in relation to the Village Court Orders 2253 and 2254.

In the circumstances of this case I consider that each party should pay their own costs.

Lawyer for the applicant: Milner & Associates.
Respondent: Appeared in person.