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Wapung v Moses [2007] PGNC 218; N5024 (25 July 2007)

N5024

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CIA NO 56 0F 2007

ROMAN WAPUNG
Appellant

V

MIRIAM MOSES
Respondent

Kimbe: Cannings J
2007: 20, 25 July

FAMILY LAW – desertion – death of deserted spouse – whether deceased spouse's next of kin can sustain cause of action in desertion against surviving spouse – assessment of damages.

The appellant and his wife separated and three years later she died. The deceased's sister brought a claim against the appellant in the District Court. She obtained an award of K5,000.00 damages, as the District Court concluded that he had deserted the deceased and deprived her of income from the oil palm block that they had jointly developed. This is an appeal against the District Court decision.

Held:

(1) There were no errors in the decision on liability as there was sufficient evidence before the Court for it to reasonably conclude that: the appellant and the deceased had a customary marriage; he was guilty of constructive desertion, and left her without means of support; the deceased's cause of action against him inured upon her death in favour of her estate; and the respondent was her next of kin and in the absence of a will a rightful person to benefit from the proceeds of the deceased's estate.

(2) As to the amount of damages, the sum of K5,000.00 was excessive, and K2,500.00 was the appropriate sum in all the circumstances. The appeal was accordingly upheld in part.

Cases cited

The following case is cited in the judgment:

Wali v Wali (2006) N3051

APPEAL

This was an appeal from a decision of the District Court awarding damages for desertion.

Representation

R Wapung, the appellant, in person
M Moses, the respondent, in person

25th July, 2007

1. CANNINGS J: This is an appeal against a decision of the District Court at Kimbe, constituted by Mr P N'Dranoh, in which his Worship ordered the appellant, Roman Wapung, to pay K5,000.00 damages to the respondent, Miriam Moses, for desertion. It was not Miriam who Roman was adjudged to have deserted but Miriam's sister, Jane Roman, who died in 2005. The District Court found that Roman and Jane married in 1989. They jointly developed and ran an oil palm block at Gaongo, near Kimbe. In 2002 Roman brought a new wife to the block, forcing Jane out. Jane stayed around Kimbe for a while then went home to East Sepik Province. She died of natural causes at Maprik. One year later Miriam commenced the proceedings in the Kimbe District Court, which handed down its decision on 21 November 2006.

GROUNDS OF APPEAL

2. Roman argues that the District Court made seven errors of fact or law:

1. He and Jane were never legally married. All they had was a de facto relationship.
2. There was no evidence that Miriam is Jane's sister.
3. Jane left of her own accord.
4. Any right to damages was restricted to Jane, who should have made a claim while she was alive.
5. Miriam was the one who facilitated Jane's departure to Maprik.
6. He was not responsible for Jane's death.
7. The award of K5,000.00 was excessive as Jane had already received more than K11,000.00 as proceeds from the block.
   

3. I will address each ground of appeal in turn. In the event that one or more is successful I will decide whether to uphold the appeal in whole or part and what orders, if any, should be made.

1 WERE ROMAN AND JANE LEGALLY MARRIED?

4. Roman submitted that he and Jane were never legally married, they only had a de facto relationship. I consider that there was enough evidence before the District Court to conclude that they had a customary marriage, which was not dissolved. Therefore it was open to the District Court to conclude that Roman was liable to pay some compensation (Wali v Wali (2006) N3051).

2 IS MIRIAM JANE'S SISTER?

5. Roman submitted that there was no evidence that Miriam is Jane's legitimate sister or next of kin. I consider that there was enough evidence before the District Court to conclude that Miriam is Jane's blood sister. As no one else had come forward, within a year after Jane's death, to claim a closer kinship to the deceased, it was open to the District Court to conclude that the deceased's sister was her next of kin.

3 DID JANE LEAVE OF HER OWN ACCORD?

6. Roman argued at the hearing of the appeal that he did not desert Jane. She was just his de facto with whom he had an intermittent relationship and she left the block of her own accord. He did not force her out. The evidence of this issue was before the District Court that Roman took a second wife on to the block and Jane felt unwanted and left. The learned Magistrate concluded that it was a case of constructive desertion. I cannot find on the material available that his Worship made an error of law in that regard.

4 WAS THE RIGHT TO DAMAGES RESTRICTED TO JANE?

7. Roman submitted that if anyone had a right to claim damages for desertion it was Jane, and only Jane. She left the block in March 2002 and died in August 2005. She had plenty of time to make a claim before she died but for whatever reason elected not to. The right to make a claim for damages was extinguished upon her death and was too long delayed.

8. Roman has raised two points here but I have decided neither in his favour. First, Jane's cause of action was not extinguished upon her death. It inured, upon her death, in favour of her estate by virtue of Section 34(1) of the Wrongs (Miscellaneous Provisions) Act Chapter No 297, which states:

... on the death of a person after 1 January 1963 (being the date of commencement of the pre-Independence Law Reform (Miscellaneous Provisions) Act 1962) all causes of action subsisting against or vested in him survive against or for the benefit of, as the case may be, his estate. [Emphasis added.]

9. Secondly, Miriam's complaint was not too long delayed or otherwise time-barred. The cause of action could be regarded as based on tort (a common law, civil wrong). Therefore, under Section 16(1) of the Frauds and Limitations Act 1988 she would have had six years after the date on which the cause of action accrued (the date of desertion, March 2002) to file proceedings. So she had until March 2008 to file the complaint.

5 DID MIRIAM FACILITATE JANE'S DEPARTURE TO MAPRIK?

10. It is hard to understand what this ground of appeal is about. Roman seems to be arguing that Miriam was the person who encouraged Jane to go to Maprik, so if anyone has to pay damages it should be Miriam. The argument is fundamentally flawed as Miriam's cause of action was not dependent on proof that Roman caused Jane to flee to Maprik. It was Roman's constructive desertion of Jane, forcing her to leave the block and leaving her without means of support, that was the cause of action. The question of who facilitated her departure to Maprik was irrelevant.

6 WAS ROMAN RESPONSIBLE FOR JANE'S DEATH?

11. This is another misconceived ground of appeal. The District Court did not decide that Roman caused Jane's death. It was not the fact that Jane died that created the cause of action, it was Roman's desertion of her that gave her the right, while she was alive, to sue him; a right which passed to her next of kin upon her death.

7 WAS THE AWARD OF K5,000.00 DAMAGES EXCESSIVE?

12. This is the last ground of appeal and it is the only one on which Roman will succeed. I have carefully considered all the evidence before the District Court and concluded that there was insufficient evidence to warrant such a substantial sum. In my assessment, a more appropriate amount of damages would be half the sum awarded, K2,500.00.

SHOULD THE APPEAL BE UPHELD AND WHAT ORDERS SHOULD BE MADE?

13. There has been a substantial miscarriage of justice regarding the assessment of damages, so I will, under Section 230(2) of the District Courts Act, allow the appeal, in part, and, under Section 230(2)(c) of the District Courts Act, quash the order that Roman pay K5,000.00 damages and substitute it with an order that he pay damages of K2,500.00. I will give him more time to make the payment.

COSTS

14. As each side has to some extent succeeded on the appeal and represented themselves, it is appropriate that they bear their own costs.

JUDGMENT

15. I will make the following order:

(1) The appeal is allowed, in part.

(2) The order of the Kimbe District Court of 21 November 2006 in DC No 409 of 2006, is quashed and substituted with the following.

(3) Roman Wapung must pay damages of K2,500.00 cash to Miriam Moses on or before 22 August 2007, failing which he shall without further order be arrested, detained in custody and brought before the next sittings of the National Court at Kimbe, to be dealt with according to law.

(4) The parties will bear their own costs.

_______________________________________

Lawyers for the appellant : Nil
Lawyer for the respondent : Nil