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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CIA NO 448 0F 2004
CAROLYN WALI
Appellant
V
ERIC WALI
Respondent
BIALLA, KIMBE: CANNINGS J
16 MARCH, 20 APRIL 2006
APPEAL
FAMILY LAW – maintenance – Deserted Wives and Children Act – District Court – customary marriage, dissolved in accordance with custom – jurisdiction of District Court – whether the husband deserted the wife – whether the husband left his wife and children without reasonable means of support.
A husband and wife had a customary marriage. They had three children. They separated and their marriage was dissolved by the Village Court. The wife made a claim for maintenance in the District Court under the Deserted Wives and Children Act. The District Court rejected the claim on the grounds that it lacked jurisdiction; the husband had not deserted the wife; and he had in any event let the wife retain the use of land that he and her owned, thereby leaving her and the children with reasonable means of support.
Held:
(1) The District Court may have erred in its findings that the husband and wife owned the land jointly and that he had left her with reasonable means of support.
(2) However, the appeal could not be allowed as the District Court had made the right decision to refuse the maintenance claim as (a) it had no jurisdiction to award maintenance as the marriage had already been dissolved; and (b) the evidence supported the conclusion that the husband did not desert the wife.
(3) Nevertheless, it is important that the issue of maintenance not be left unresolved due to a technicality. Therefore the National Court referred the matter to the Village Court under Section 97(2) of the Village Courts Act.
Cases cited:
The following cases are cited in the judgment:
Elias Tokom v Luisa Tokom [1985] PNGLR 195
Henry Aisi v Malaita Hoala [1981] PNGLR 199
Martha Aeava v Oa Ikupu [1986] PNGLR 65
Abbreviations:
The following abbreviations appear in the judgment:
J – Justice
N – National Court judgment
No – number
PNG – Papua New Guinea
PNGLR – Papua New Guinea Law Reports
APPEAL
This was an appeal from a decision of the District Court dismissing an application for maintenance under the Deserted Wives and Children Act (Chapter No 277).
Representation:
O Oiveka for the appellant
E Wali, the respondent, in person
CANNINGS J:
INTRODUCTION
This is an appeal against a decision of the District Court at Bialla, constituted by Mr C Koi in which his Worship dismissed an application for maintenance under the Deserted Wives and Children Act (Chapter No 277).
BACKGROUND
The appellant, Carolyn Wali, and the respondent, Eric Wali, were married for several years. It was a customary/statutory marriage. They had three children: Belinda, Eriklyn and Amaziah. Problems developed in the marriage apparently because the respondent started to see another woman. The appellant and the respondent separated, then their marriage was dissolved by custom.
DISTRICT COURT PROCEEDINGS
On 29 April 2004 the appellant filed a complaint in the District Court at Bialla under the Deserted Wives and Children Act (Chapter No 277). She asked the District Court to order that she be paid a regular allowance to support herself and the children and that she be given custody of the children. The basis of the claim was that the respondent had unlawfully deserted his wife and children and should therefore pay maintenance for them and give up custody of the children.
On 27 October his Worship Mr Koi presided over the matter. The hearing took a full day. One of the main issues was about a parcel of land called Lalo. The respondent argued that part of this land belonged to him, that he had left his part for the use of the appellant, that it was productive land being used for oil palm and that therefore he had not left his wife or children without reasonable means of support. The appellant argued that she already owned Lalo, so the respondent was not leaving her anything that she did not already have a right to.
There was a large body of documentary evidence before the District Court relating to Lalo. It was not disputed that the appellant and the respondent had had a customary marriage and that the marriage had been dissolved in accordance with custom.
His Worship Mr Koi considered that evidence and the submissions made by the parties and decided in the respondent’s favour by disallowing the application for maintenance and declining to make any order for custody. The reasons he gave were as follows:
APPEAL TO NATIONAL COURT
On 19 November 2004 the appellant filed a notice of appeal, stating the following grounds:
The appellant seeks the following orders in substitution for those of the District Court:
MAJOR ISSUES
The three grounds of appeal argue the same point: that the learned magistrate erred by finding that the respondent had left the land, Lalo, to the appellant, as the land actually belonged to the appellant’s family. So the first issue is:
If that issue is answered yes, the District Court erred, I will then need to consider the question of remedies. If the issue is answered no, I will need to consider whether there is any other reason the appeal might be allowed. In either case, the next issues will be:
APPELLANT’S SUBMISSIONS
Mr Oiveka argued that there was not enough evidence before the District Court for the magistrate to conclude that the land belonged to both the appellant and the respondent. The evidence supported the finding that the land belonged to the appellant’s family. The magistrate’s finding was against the weight of the evidence. His Worship’s finding about ownership of the land was the only basis for his conclusion that the respondent had left his wife and children with reasonable means of support. Once that finding is set aside, it is clear that there has been a substantial miscarriage of justice. The respondent is not providing any support at all to his wife and children. This court should therefore order that he pay maintenance.
RESPONDENT’S SUBMISSIONS
The respondent, Eric Wali, represented himself. He took issue with the claim that he had deserted the appellant. He said that it was the other way around: it was the appellant who deserted him. He said that he is being denied access to his children but whenever he does get the chance to see them he gives them money and food. He submitted that the magistrate had come to the right conclusion about the land Lalo. It consists of two separate blocks. One was bought by the appellant and her family. The other was bought by the appellant and himself. The appellant and her family are living on the latter block and making a living from it. The District Court therefore made the right decision.
FIRST ISSUE: DID THE DISTRICT COURT ERR BY FINDING THAT THE RESPONDENT HAD LEFT LAND TO THE APPELLANT?
My tentative conclusion on this issue is that yes. The District Court erred as the evidence that was before the District Court suggests that the land Lalo was sold by the customary landowners to the appellant, in her name only, in 1999. It seems that it was not sold to both the appellant and the respondent. There were moves afoot in 1999 to have the land converted from customary land to individualised tenure under the Land (Tenure Conversion) Act 1963. An application was made in the name of the appellant and the respondent. But the application, it seems from the evidence, was never determined. I therefore cannot find support in the documentary evidence for his Worship’s conclusion that the land belonged to both the appellant and the respondent.
However, I emphasise that this is a tentative conclusion as – despite this being put forward as the critical issue in the appeal – neither Mr Oiveka nor the respondent argued the point in great detail. Furthermore, for reasons I will explain in a moment this appeal is not going to succeed so it is not necessary to come to a firm finding on the issue of ownership of the land and whether an error was made by the District Court.
SECOND ISSUE: HAS THERE BEEN A SUBSTANTIAL MISCARRIAGE OF JUSTICE?
This issue must be addressed in view of Section 230(2) of the District Courts Act, which states:
An appeal shall be allowed only if it appears to the National Court that there has been a substantial miscarriage of justice.
Even if the District Court made an error regarding the issue of who owned the land and whether the respondent left his wife and children with reasonable means of support, it still came up with the right decision as a matter of law.
First, his Worship made it clear at the beginning of his judgment that the appellant had come to the District Court too late. She came after her marriage with the respondent was dissolved. His Worship stated, at page 4 of the judgment:
The complainant is now divorced from the defendant. She cannot claim maintenance. A wife cannot claim if the marriage is dissolved.
I think what his Worship was saying was that an application for maintenance under the Deserted Wives and Children Act has to be made while the marriage is subsisting. Not after it has been dissolved. On that issue he is clearly correct. In Martha Aeava v Oa Ikupu [1986] PNGLR 65, Barnett AJ, as he then was, stated:
The Deserted Wives and Children Act is intended to oblige a husband to pay maintenance to a wife he had deserted during the continuance of that marriage. Once the marriage is dissolved no further payment can be enforced under that Act. For a statutory marriage dissolution is granted by a court order and there is provision for maintenance to be ordered under the Matrimonial Causes Act. If, however, the dissolution is by custom the question of possible continuous obligations for the former husband to pay maintenance to the divorced wife would have to be determined according to the custom involved.
That interpretation of the legislation has not been disturbed in the 20 years since Aeava v Ikupu was decided. It is a correct statement of the law.
I do not think the learned Magistrate in this case meant to say that a person in the position of the appellant cannot, once she is divorced, make any claim for maintenance at all. She can still make a claim but as the marriage was dissolved in accordance with custom she will make the claim under customary law in the Village Court, not under the Deserted Wives and Children Act in the District Court. With respect, and with the benefit of hindsight, the learned Magistrate should have declined to hear the matter in the District Court and pointed the parties in the direction of the Village Court.
The second reason the District Court came up with the right decision is that his Worship found that the respondent did not desert the appellant or their children; and the desertion by the husband of the wife and/or children is a prerequisite to the making of a maintenance order under the Deserted Wives and Children Act; and this aspect of the District Court’s decision was not challenged in the notice of appeal.
The Deserted Wives and Children Act has two key provisions. Section 2 (power of Court to issue summons or warrant) states:
(1) Where—
(a) a husband has unlawfully deserted his wife or left her without means of support; or
(b) a father has deserted his child or left him without means of support; or
(c) a husband or father is about to leave the country without making adequate provision for the support of his wife or child,
a Court, on complaint on oath being made by the wife or by the mother of the child or by a reputable person on behalf of the wife or child, may—
(d) issue a summons requiring the husband or father to appear before it to show cause why he should not support his wife or child; or
(e) where it is satisfied that the circumstances justify it doing so, issue a warrant for the arrest of the husband or father.
(2) Where a warrant has been issued and the defendant cannot be found the Court, on proof of inquiry and search, may proceed in the case ex parte.
Section 3 (hearing and order) states:
(1) On the hearing of a complaint under Section 2, the Court shall inquire into the matter and—
(a) where it is satisfied that—
(i) the wife is left without means of support; or
(ii) the defendant is about to leave the country without making adequate provision for her support,
the Court may—
(iii) order the defendant to pay such allowance as it considers reasonable for the use of the wife; and
(iv) commit the legal custody of a child of the marriage to a wife or some other person; and
(v) order the defendant to pay such allowance as it considers reasonable for the support of the child; and
(b) where it is satisfied that—
(i) a child of the defendant is left without means of support; or
(ii) the defendant is about to leave the country without making adequate provision for the support of the child,
the Court may—
(iii) order the defendant to pay such allowance as it considers reasonable for the support of the child; and
(iv) commit the legal custody of the child to the mother or some other person.
(2) An allowance ordered to be paid under Subsection (1) shall be paid weekly, fortnightly, or monthly, and to such person and in such manner as the Court orders.
(3) An order for the support of a child or an order committing custody of a child to a person does not continue in force after the child has attained the age of 16 years or died, except for the recovery of arrears then due under the order.
(4) On the hearing of a complaint under Section 2, where the Court is satisfied that reasonable cause has been shown for—
(a) the desertion; or
(b) the leaving without support; or
(c) leaving the country,
it may decline to make an order.
(5) An order shall not be made on the application of a wife or a person on her behalf if it is proved that she has committed adultery or is of drunken habits, unless the husband has condoned or connived at the adultery or, by his cruelty, wilful neglect or misconduct, conduced to the adultery or drunken habits.
What these provisions mean is that to make a successful application for maintenance under this law, the applicant must prove that:
(See Henry Aisi v Malaita Hoala [1981] PNGLR 199, National Court, Bredmeyer J; and Elias Tokom v Luisa Tokom [1985] PNGLR 195, National Court, Bredmeyer J.)
In the present case, the District Court found that the first element – desertion by the husband – was not proven and that for this reason alone, quite apart from whether the wife and children were left without support, no order for maintenance could be made. This was a correct and logical process of reasoning which was not challenged by the appeal. Even though I have concluded that the District Court did not have jurisdiction in the case and that the magistrate had erred in his finding about ownership of the land, his final decision would stand.
In these circumstances there was no miscarriage of justice and the appeal cannot be allowed.
THIRD ISSUE: WHAT REMEDIES, IF ANY, SHOULD BE GRANTED BY THE NATIONAL COURT?
Upholding an appeal is not a precondition to the National Court making orders or granting other remedies calculated to advance the interests of justice.
Section 230(1) of the District Courts Act states:
On the hearing of an appeal, the National Court shall inquire into the matter, and may—
(a) adjourn the hearing from time to time; and
(b) mitigate or increase a penalty or fine; and
(c) affirm, quash or vary the conviction, order or adjudication appealed from, or substitute or make a conviction, order or adjudication which ought, on the evidence before the National Court, to have been made by a District Court; and
(d) remit the case for hearing or for further hearing before the Court which made the conviction, order or adjudication or any other competent court; and
(e) exercise a power that the Court that made the conviction, order or adjudication might have exercised; and
(f) make such further or other order as to costs or otherwise as the case requires.
Given the history of this matter I propose to dismiss the appeal but vary the orders of the District Court under Section 230(1)(d), put myself in the shoes of the District Court under Section 230(1)(e) and invoke Section 97(2) (reference of matters between Village Courts and other Courts) of the Village Courts Act, which states:
Where—
(a) proceedings have been commenced in a court other than a Village Court; and
(b) it appears to the court that—
(i) the proceedings; or
(ii) any part or aspect of the proceedings,
could more appropriately be dealt with by a Village Court having jurisdiction in the matter,
the court may make an order referring the matter to that Village Court.
I will order that the issue of maintenance be dealt with by an appropriate Village Court. That court can inquire also into the issue of ownership of the land Lalo. I will direct that the Village Courts Secretariat at Kimbe report back to the National Court to ensure compliance with the order.
REMARKS
I am referring this case to the Village Court as it is important that the issue of maintenance not be left unresolved due to a technicality. As I mentioned earlier I think the appellant should have been pointed in this direction before the District Court exercised jurisdiction. Family matters like this are invariably a source of great tension, especially where children are involved. It is important that all courts deal with them with a sense of compassion, sensitivity and fairness, and that means listening to all sides of the dispute in a peaceful and orderly way.
As this was a customary marriage dissolved by custom, the best place to start sorting out the issue of maintenance is in the Village Court, which will apply customary law. If any party is aggrieved by the Village Court’s decision, there is a right of appeal to the District Court; and from there to the National Court and maybe to the Supreme Court.
The Village Court should also address the issue of custody of the children of the marriage. If custody is to remain with the appellant, the Village Court should consider granting access rights to the respondent.
COSTS
Normally the side that loses a case such as this will get an order from the court saying that they must pay the other side’s legal costs. This is a matter for the discretion of the court. In this case the unsuccessful appellant was represented by the Public Solicitor and the respondent represented himself. The appeal has really not resolved the issue of maintenance. In these circumstances I think it is best that the parties bear their own costs of the appeal.
JUDGMENT
I will direct entry of judgment in the following terms:
Appeal dismissed; matter referred to Village Court.
_____________________
Lawyer for the appellant : Public Solicitor
Lawyer for the respondent : Self-represented
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