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Bepi v Simon [1986] PGNC 21; [1986] PNGLR 233 (14 November 1986)

Papua New Guinea Law Reports - 1986

[1986] PNGLR 233 - Agua Bepi v Aiya Simon�

[1986] PNGLR 233

N566(M)

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

AGUA BEPI

V

AIYA SIMON

Mendi

Cory J

7 November 1986

14 November 1986

INFANTS AND CHILDREN - Custody - Jurisdiction and powers of District Court - Claim by father - No power to order custody to father - No powers under Infants Act - Deserted Wives and Children Act (Ch No 277), ss 3, 22 - Infants Act (Ch No 278).

HUSBAND AND WIFE - Maintenance - Claim by husband - No provision for laying complaint - No power to make orders on - Deserted Wives and Children Act (Ch No 277), s 22.

INFERIOR COURTS - District Courts - Jurisdiction and powers - Summons for repayment of brideprice - Order for imprisonment of wife pending payment of brideprice by relatives - Subsequent imprisonment of wife for non-payment - Orders ultra vires - No power to issue warrant for non-payment of money - Orders unconstitutional - Deprivation of liberty for fulfilment of �contractual obligation� - Order not directed to party to proceedings - District Courts Act (Ch No 40), ss 49, 171(1)(b) - Constitution, s 42(1)(c).

CONSTITUTIONAL LAW - Rights of all persons - Liberty of the person - Deprivation of to secure �contractual obligation� - Imprisonment for non-repayment of brideprice - Constitution, s 42(1)(c).

In October 1985, a husband issued a District Court summons against his wife alleging:

N2>�(a)��� desertion of husband and four children

N2>(b)����� repayment of brideprice ....�

On an adjourned hearing of this summons at which the wife did not appear a warrant of arrest was issued purportedly under the District Courts Act (Ch No 45), s 49. The wife having been arrested and sentenced to two months imprisonment, the court proceeded to hear the summons and ordered:

N2>(a)����� that the wife be remanded in custody until the brideprice be repaid by her relatives within one month; and

N2>(b)����� that the father of the children be granted custody of them.

Upon default in payment the court subsequently ordered (purportedly pursuant to the District Courts Act, s 171(1)(b)) that the wife be sentenced to twelve months imprisonment.

On appeal;

Held

N1>(1)����� The order for custody was a nullity as being in excess of and without jurisdiction:

N2>(a)����� The Deserted Wives and Children Act (Ch No 277) does not provide for the laying of a complaint and summons against a wife for desertion of her husband;

N2>(b)����� The Deserted Wives and Children Act (Ch No 277) does not provide for the laying of a complaint against a mother for desertion of her child or children: s 22 creates an offence in circumstances of desertion therein specified which is punishable on information and not on complaint;

N2>(c)����� The power of the District Courts to make an order for custody arises only under the Deserted Wives and Children Act (Ch No 277), s 3, on a complaint that a father has deserted his child or children: the District Court has no power to exercise the power of the National Court under the Infants Act (Ch No 278).

Nora Ume v Martin Beni [1978] PNGLR 71, applied.

N1>(2)����� The orders for imprisonment of the wife pending payment of the brideprice and the subsequent order that the appellant be convicted for failing to comply with the order for payment of brideprice:

N2>(a)����� were ultra vires the power of the District Court as the District Courts Act (Ch No 40), s 171(1)(b), does not permit the court to issue a warrant of commitment for the non-payment of a sum of money other than a fine;

N2>(b)����� were unconstitutional, as they deprived the appellant of her liberty in order to secure fulfilment of a �contractual obligation� in contravention of the Constitution, s 42(1)(c);

Kare Konia v Wenta Wuanp [1963] P&NGLR 130 at 134, considered.

N1>(3)����� Further, the order for imprisonment of the wife pending payment of the brideprice was a nullity because directed to persons not party to the proceedings.

Held Further

N1>(4)����� that the claim for repayment of brideprice could not succeed: on a claim for repayment of a customary payment the claimant must prove his claim by producing evidence of the relevant custom and no such evidence had been produced.

Cases Cited

Camilus Billy v Jubilee (Unreported, National Court judgment N360 of Kearney J, dated 20 November 1981).

Kare Konia v Wenta Wuanp [1963] P&NGLR 130.

Nora Ume v Martin Beni [1978] PNGLR 71.

Appeal

This was an appeal from various orders made by a District Court magistrate on a summons alleging desertion of husband and four children and repayment of brideprice.

Counsel

T Doherty, for the appellant/wife.

M Tamutai, for the respondent/husband.

Cur adv vult

14 November 1986

CORY J: This is an appeal from:

N2>(1)����� An order of the Iabilu District Court made on 15 April 1986:

(a)����� that the relatives of the appellant wife pay the respondent K2,000 (being refund of brideprice) and costs of K10.60 within one month and that the appellant be remanded into custody of Ialibu Police lock-up until the said sum is paid by the relatives.

(b)����� That the children be in the custody of the respondent father.

N2>(2)����� An order of the Ialibu District Court dated 15 April 1986 that the appellant having been convicted of failing to comply with the above order to pay K2,000 brideprice and costs of K10.60 be imprisoned for one year under s 171(1)(b) of the District Courts Act (Ch No 40).

The history of this matter is as follows:

N2>(1)����� The parties were married by custom in about 1972-3. The wife came from Mt Hagen, the husband from Ialibu.

N2>(2)����� At marriage the husband paid brideprice in money and pigs.

N2>(3)����� The wife had four children and the marriage went well until the husband married a second wife. The wife alleges the husband failed to provide her with sufficient food for herself and the children, stopped her from using his garden, forced her to cook outside, on one occasion chased her and tried to cut her with an axe and claimed that the fifth child with which she was pregnant was not his. As a result of this treatment, in about 1983, the wife left and returned to Mt Hagen.

N2>(4)����� The husband came to Mt Hagen paid K200 compensation for the axe incident and the wife returned. The husband�s conduct did not improve and when the fifth child was about eight months old, in about 1984, the wife again left for Mt Hagen and took the fifth child with her.

N2>(5)����� Apparently the husband failed to pay her any maintenance for herself and the child and on two occasions in early 1985, after a lapse of about one and half years, she took out a Village Court summons against the husband for hearing at Pilpil Alan Village Court, Ialibu. She came from Mt Hagen to Ialibu but the husband did not appear and no court was held. Because of transport and other costs, she took no further action.

N2>(6)����� In 1985 the wife remarried and was pregnant.

N2>(7)����� The husband issued a District Court summons dated 10 October 1985 alleging:

(a)����� Desertion of husband and four children.

(b)����� Repayment of brideprice total of K2,770.

The summons was returnable at Ialibu on 15 October 1985. The Court record does not show what happened to this summons. The appellant says she came to Ialibu but the magistrate did not appear.

N2>(8)����� The husband issued a second District Court summons on the same grounds returnable for 22 October 1985. There is no record of what happened on 22 October 1985.

N2>(9)����� On 31 October 1985 at the Ialibu District Court, the respondent husband appeared, the appellant wife did not appear because she feared payback arising from a road accident. The hearing was adjourned to 7 November 1986. It does not appear from the Court record if the wife was advised of date of adjourned hearing.

N2>(10)��� On 7 November 1985, the appellant wife did not appear and on the application of the respondent, the Court ordered a warrant for the arrest of the appellant. There was no power for the magistrate to order the issue of this warrant of arrest, as no information had been laid, the summons was based on a complaint: s 49, District Courts Act: Issue of Warrants of Arrest:

N2>(11)��� On 25 February 1986 the Ialibu District Court issued a warrant for the arrest of the appellant based on a complaint by the respondent dated 26 December 1985 that she had �failed to appear at Ialibu Local Court to repayment of brideprice�. There is no record of any such complaint and there does not appear to have been any hearing of the Ialibu Local Court. The issue of this warrant was an abuse of judicial process and again the Ialibu District Court magistrate had no power to order the appellant�s arrest. Worse still, the respondent says that the magistrate went with him and arrested the appellant and she was sentenced to two months imprisonment.

N2>(12)��� The appellant�s record at Bui-Yebi Corrective Institution shows that on:

�11th March disobey Village Court Order 11/3/86. Warrant of Commitment 11/3/86 - 11/5/86. The Pilpil Alan Village Court order was apparently in compliance with the respondent�s request to prevent the appellant returning to her relatives at Mt Hagen and reads as follows:

�... you no can i go long Mt Hagen. Olsem na sakim dispela orda na em mas kalabus inap long two(2) mun.�

Signed: Regue Hi Village Court.�

The date 20.5.80 is an obvious error. The appellant was imprisoned at the Ialibu Rural lock-up. At this time, her two year old daughter, Priscilla, was taken from her and was given to the respondent. The appellant tried to appeal, saw the visiting Justice from Mendi, but no action was taken.

N2>(13)��� The respondent, having obtained the imprisonment of the appellant at Ialibu, then proceeded to bring on for hearing the summons of 10 October 1985 claiming:

(a)����� Desertion of husband and four children; and

(b)����� Repayment of brideprice total K2,770.

The case came on for hearing before the Ialibu District Court on 20 March 1986 before Mr R V Inno, a Grade II Magistrate, the same magistrate who had signed the warrant for the appellant�s arrest on 25 February 1986. Apparently at the hearing the respondent amended his claim for brideprice to K7,000. As the magistrate only had jurisdiction up to K2,000, the case was adjourned for a Grade IV Magistrate on 15/4/86.

N2>(14)��� On 15 April 1986, Mr R V Inno was again the presiding magistrate. The respondent complainant agreed to waive the amount of the claim in excess of K2,000, Mr Inno then had jurisdiction, the hearing proceeded and at the conclusion the court made the two orders which are the subject of this appeal. The appellant being remanded in custody until the relatives paid the K2,000 within one month.

N2>(15)��� The above one month would have expired on 15 May 1986, but the records at Bui-Yebi Corrective Institution show that the appellant was imprisoned on 7 May 1986 and the warrant of commitment signed by the magistrate, Mr Inno, orders the appellant to be imprisoned for one year for having failed to comply with the above order for the payment of K2,000.

The above record shows that not only were the appellant and her child mistreated by the respondent to such an extent that she was forced to leave Ialibu and return to her relatives at Mt Hagen, but her subsequent attempts to obtain maintenance through the Pilpil Alan Village Court at Ialibu were unsuccessful. When this situation persisted for about one and a half years, she rightly considered that the marriage was finished and with the consent of her relatives remarried and became pregnant. The respondent on learning of this, issued proceedings to recover brideprice. In the Court proceedings and warrants which followed, the appellant has been subjected to unjustified harsh and oppressive arrest and imprisonment by the Ialibu District Court and the Pilpil Alan Village Court. This was a civil not a criminal matter, but the appellant was unjustly and harshly treated as a criminal, particularly by the magistrate of the Ialibu District Court, Mr R V Inno, to such an extent that I have serious doubts as to whether he is a fit and proper person to exercise judicial office and I intend to forward all the depositions and papers to the Chief Magistrate of the Magisterial Services Commission, for it�s further inquiry and consideration.

Of the nine grounds of appeal, the respondent only opposes the appeal on ground 6.

The first two grounds of appeal are as follows:

N2>(1)����� The order was in excess of the jurisdiction of the Court.

N2>(2)����� The order was ultra vires the power of the court as s 171(b) of the District Courts Act (Ch No 40) does not permit the court to issue a warrant of commitment for non-payment of a sum of money.

The complaint alleges two matters:

N2>(1)����� Desertion of husband and four children.

N2>(2)����� Repayment of brideprice K2,770.

The complaint in relation to desertion cannot be laid under s 2 and s 3 of the Deserted Wives and Children Act (Ch No 277), as that is restricted to the desertion of a wife and/or child by a husband. The only section dealing with desertion by a wife is s 22 which provides that:

SECTION 22

The father or mother of a child who is able to maintain the child, and who wilfully and without lawful or reasonable excuse deserts the child and leaves it without means of support, is guilty of an offence.

Penalty: Imprisonment for a term not exceeding one year.

As this section make it an offence, it would require an information to issue and not a complaint. Secondly, the section does not make it an offence for a wife to desert a husband as is alleged in this case and finally the following elements are also necessary to constitute the offence:

N2>1.������ The desertion is to be done wilfully; and

N2>2.������ Without reasonable cause; and

N2>3.������ The child is left without means of support.

None of these elements are alleged in the complaint and there was no evidence that the appellant mother was �able to maintain the children�.

Section 171. Warrant of Commitment in other cases provides:

N2>(1)����� Where:

(a)����� ...

(b)����� A court orders the doing of an act other than the payment of a fine or sum of money or costs and directs that, in case of the defendant�s neglect or refusal to do the act,

the court or a magistrate may issue a warrant of commitment for the imprisonment of the defendant for such time as the conviction directs. (My emphasis.)

This order was an order for the payment of money.

For these reasons I uphold grounds 1 and 2 of the appeal and quash that part of the above order 1(a) as relates to the appellant being remanded into custody of Ialibu Police lock-up, order 1(b) and order 2.

Ground 3 of the appeal is as follows:

N2>3.������ The order committing the appellant to imprisonment for failure to repay brideprice was unconstitutional as it deprived the appellant of her liberty in order to secure fulfilment of a contractual obligation thereby contravening s 42(1)(c) of the Constitution.

Section 42(1)(c) of the Constitution provides as follows:

Liberty of the Person

N2>(1)����� No person shall be deprived of his personal liberty except:

(c)����� by reason of his failure to comply with the order of a court made to secure the fulfilment of an obligation (other than a contractual obligation) imposed upon him by law.

In the case of Kare Konia v Wenta Wuanp [1963] P&NGLR 130, which involved a payment of brideprice, the payment was treated as a contract, Smithers J stating at 134:

�... [He] must prove and rely upon the fact that payment was originally made under the contract ... if the arrangement between Kare Konia and Wenta Wuanp is to be treated as a contract as understood by our law ....�

This view is supported by other cases involving brideprice referred to in �Contract Law in Papua New Guinea� by Roebuck at 31 and 105. I therefore uphold this ground of appeal.

Ground 4 of the appeal is as follows:

N2>4.������ The magistrate erred in committing the appellant to imprisonment for breach of an order when the said order was directed at members of the appellant�s clan and not the appellant and before the one month to pay had expired.

The first page of the Court depositions reads as follows:

�Court Order. Judgment for the complainant that defendant�s relatives pay sum of K2,000 plus the costs K10.00 within one month ....�

The Court had no power to order the appellant�s relatives to pay K2,000; they were not parties to the action and it follows that the magistrate had no power to order imprisonment on their failure to pay. Also as mentioned earlier the appellant was imprisoned on 7 May 1986 and it was unlawful and grossly unjust to order the appellant�s imprisonment in these circumstances. I uphold this ground of appeal.

Ground 5 of the appeal is as follows:

N2>5.������ The magistrate erred in law in hearing two matters in one complaint.

Section 45 of the District Courts Act permits more than one matter in a complaint. As mentioned earlier, the Court�s error was in permitting and dealing with a complaint, the first matter of which had to be by information and not by complaint.

Ground 6 of the appeal is as follows:

N2>6.������ The magistrate erred in law in awarding custody of the children to the complainant when there was no evidence relating to the said children�s welfare before the court.

Ground 7 of the appeal is as follows:

N2>7.������ The magistrate erred in fact and in law in finding that the appellant had deserted her husband and children.

Ground 8 of the appeal is as follows:

N2>8.������ The order for custody of the said children was ultra vires the jurisdiction of the said court in that it did not follow on a finding that they were left without adequate means of support pursuant to s 3 of the Deserted Wives and Children Act.

An order for custody of children can only be made either by an application to the National Court under the Infants Act (Ch No 278) or by the District Court under the Deserted Wives and Children Act (Ch No 277). The District Court has no power to conduct a custody case as if it were a case under the Infants Act. In Nora Ume v Martin Beni [1978] PNGLR 71, a District Court magistrate, without making any findings of being left without means of support, proceeded to make an order for custody as under the Infants Act and the court ruled that the order was of no effect. Pritchard J at 77 stated:

�... It is quite clear to me this case was conducted as an ordinary custody case in front of a magistrate as if it were a case under the Infants Act. The magistrate had no power to hear it or to make the order which he did ... the magistrate was acting without jurisdiction.�

The power to make an order for custody under the Deserted Wives and Children Act only arises under s 3 on a complaint under s 2 where a father has deserted his child or left him without means of support. In this case, there is no such complaint and no evidence or finding that the children were left without adequate means of support. The magistrate was therefore acting without jurisdiction and his order granting custody to the respondent is a nullity and of no effect. I uphold Ground 8 of the appeal. It seems unnecessary to consider Ground 6, although I agree there was no evidence relating to the children�s welfare before the court.

In relation to Ground 7 and the magistrate�s finding that the appellant had deserted her husband and children, an examination of the evidence shows, as mentioned earlier, that the appellant had been forced to leave home because of the respondent�s conduct and that far from deserting her husband, the respondent had constructively deserted the appellant. Section 20 of the Deserted Wives and Children Act provides as follows:

N2>Section 20.��� Constructive Desertion

A wife who has been compelled to leave her husband�s residence under reasonable apprehension or danger to her person or under other circumstances that reasonably justify her withdrawal from that residence shall be deemed to have been deserted without reasonable cause.

This is a situation which applies in this case and I uphold the ground of appeal.

Ground 9 of the appeal is as follows:

N2>9.������ That the magistrate erred in law in making an order relating to a customary payment without hearing evidence on custom.

An analysis of the evidence in relation to the payments of brideprice and other payments made by the respondent is as follows:

There was no evidence of the value of the pigs. The magistrate erred in taking other payments intount.

A complainant who claims he is entitled by custom to a repayment of a customary payment such as brideprice must prove his claim as a matter of fact by evidence. This legal requirement is imposed by s 5 of the Customs Recognition Act (Ch No 19). In Camilus Billy v Jubilee (Unreported, National Court judgment N360, dated 20 November 1981 of Kearney DCJ). The District Court had awarded a sum for seduction. The appeal was upheld. Kearney DCJ at p 2 of his judgment stated:

�The fact that the behaviour of the appellant was actionable by custom ... was something which had to be established before the court by evidence ... as no such evidence was called ... jurisdiction to entertain the claim was not established.�

This principle has been adopted in a number of subsequent cases. In this case the appellant comes from Mt Hagen, the respondent from Ialibu. There was no evidence as to which custom of which area was to be applied and what that custom is in relation to the situation where the appellant is forced to leave the respondent�s residence because of his conduct. I therefore uphold this ground of appeal.

I make the following orders:

N2>(1)����� Declare that the order made by the Ialibu District Court on 15 April 1986.

(a)����� That the relatives of the appellant pay the respondent K2,000 and costs of K10.00 within one month and that the appellant be remanded in custody of Ialibu Police lock-up until the said sum is paid by the relatives is a nullity and of no effect.

(b)����� That the children be in the custody of the respondent is a nullity.

N2>(2)����� Declare that the order of the Ialibu District Court dated 15 April 1986 that the appellant be imprisoned for one year is a nullity and the conviction and sentence be quashed.

N2>(3)����� That the appellant�s youngest child, Priscilla, be returned to the custody of the appellant.

N2>(4)����� Respondent pay the appellant�s costs of the appeal.

Orders accordingly

Lawyer for the appellant: T Doherty.

Lawyer for the respondent: M Tamutai.