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Kiwai v Kiwa [2015] PGNC 83; N5877 (19 February 2015)

N5877


[PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


WS. NO. 384 of 2010


BETWEEN


ANNA YAKOPA KIWAI
Plaintiff


AND


JERRY KIWA
Defendant


Waigani: Kandakasi, J.
2013: 21st October
2015: 19th February


EVIDENCE – Adducing into evidence copies of documents - Best evidence rule – Need for proper explanation as to whereabouts and inability to produce original – No such explanation provided – Purported agreement no agreement.


CONTRACT - Written contracts – Requirements – Contest over signing or execution by a party – Original allegedly signed not produced and no explanation and reason advanced – Witnesses and parties executing not in the same place and time – Serious doubt on the essential terms amounting to unconscionable terms - Purported copy no prove of contract


CONTRACT - Particular kind of contract – Prenuptial agreement – Essential elements – Essential elements not meet in purported agreement – No prenuptial agreement.


LEGISLATION – Fairness of Transactions Act – Main purpose – Address need for fairness and equality in bargaining power – Failure to meet requirements of Act – Transaction could be declared null and void.


STAMP DUTIES ACT – Failure to meet requirements of Act – No party at liberty and entitled to have purported agreement admitted into evidence and enforced by the Courts.
WORDS & PHRASES – "Witness" – Role of a witness to a written agreement – Observing, seeing, viewing or perceiving the signing of an agreement in the witnesses presence – Singing by a witness without seeing the signing by the parties is no valid witnessing.


Cases Cited
Papua New Guinea Cases cited:


The State v. Hekavo [1991] PNGLR 394.

Grand Chief Sir Michael Thomas Somare v. Chronox Manek (2011) SC1118.
Re James Eki Mopio [1981] PNGLR 416.
Chief Collector of Taxes v Blasius Dilon [1990] PNGLR 414.
Sam Kuri v. Motor Vehicles Insurance Limited (2011) SC1117.

The State v. John Bill White (No 1) [1996] PNGLR 262.
Arua Loa & 2 Ors vs The State and Ors (2015) N5849
Michael Tenarum Balbal v. The State (2007) SC860.
Peter Wararu Waranaka v Gabriel Dusava (2009) SC980.
Waghi Security Service Pty Ltd v. John Tembon & Anor and [1994] PNGLR 138.
Gwanzik Wiring v. John Muingnepe (2012) N4889.
Alotau Enterprises Pty Limited and Allen Enterprises Pty Limited v. Zurich Pacific Insurance Pty Limited (1999) N1969 .
Papua Club Inc v. Nusaum Holdings Ltd (2005) SC812.
Kora Gene v. Motor Vehicles Insurance (PNG) Trust [1995] PNGLR 344.
Credit Corporation (PNG) Limited v. David Nelson (2011) N4368.
Bank South Pacific Ltd v. Robert Tingke (2012) N4901.
Rage Augerea v. Bank South Pacific Ltd (2007) SC 869.
Negiso Investments Limited v. PNGBC Limited (2006) N3104.
Dr. Florian Gubon Trading as Gubon Lawyers v. Pacific Mobile Communication Limited (2003) N2439.
Spirit Haus Ltd v. Robert Marshall (2004) N2630


Overseas Cases Cited


Hocking v Ahlquist Bros Ltd [1944] 1 KB 120.
Megginson v. Megginson, 367 Ill. 168 (Ill.1937).
In the Matter of the Estate of Robert J. Crawford, 107 Wash.2d 493 (Wash. 1986).
McMullin v. McMullin, 926 S.W2d 108 (Mo. App. 1996).


Text Books & Articles Cited:


J M E Garrow & J D Willis in The Principles of the Law of Evidence in New Zealand.
Phipson On Evidence, 13th edition, para 5-01 – 02.
"Prenuptial Prerequisites: The 4 essential elements of an inviolable agreement," By Mark A. Chinn & Charles Greer, Family Advocate, A practical journal by the ABA Family Law Section, Vol. 24, No. 3, Winter 2002, at http://greerlawfirm.net/prenuptial-prerequisites-the-4-essential-elements-of-an-inviolable-agreement.htm


Counsel:


A. Baniyamai, for the Plaintiff
J. Kolkia, for the Defendant


19th February, 2015


1. KANDAKASI J: This is perhaps the first ever case in Papua New Guinea that concerns a prenuptial agreement. Here Anna Yakopa Kiwai, the Plaintiff is seeking to enforce a purported prenuptial agreement between herself and Jerry Kiwa the Defendant dated 6th April 2005 ("the Agreement"), which he denies. In his defence, Jerry claims he did not enter into such an agreement and denies executing it. He also claims that the purported terms of the contract are unconscionable. Based on these, he says Anna is not entitled to enforce the agreement.


Question


2. Two main questions are presented for this Court to consider and determine. These are:


(1) Did Anna and Jerry enter into the agreement and execute it?

(2) If the answer to the first question is in the affirmative, is it enforceable?

3. The first question is determinative of the second and hence the whole case. I will deal with these questions as one but in the order they are presented.


Evidence and relevant facts


4. The first question is one which turns mainly on the facts with some assistance with the law on the reception, treatment and use of evidence called by the parties. Some of the facts are agreed between the parties per their statement of agreed and disputed facts. Before getting into other evidence before the Court, I consider it helpful that I should set out the full terms of the agreement in order that we are informed as to what the dispute and arguments are all about. The agreement, excluding the parts naming the parties and the date of when it was executed reads:


"AGREEMENT FOR MARRIAGE AND LIFE BOND


An AGREEMENT made on the 6th day of April 2005.


BETWEEN: ANNA YAKOPA KIWAI of Lihir Management Company


AND: JERRY KIWAI of Jerry Kiwai Lawyers


WHEREBY IT IS AGREED and CONSENTED between parties as follows:-


  1. The Wife Anna Yakopa Kiwai agrees to resign from work and marry her husband Mr Jerry Kiwai only on the following conditions.
  2. The Husband Mr. Kiwai to pay a forthnightly (sic) salary of K2,000.00 every forthnight (sic) which should take effect forthwith upon resignation for a lifetime.
  3. The Husband Mr. Kiwai to give 60% of the shares in the law firm to her and her children.
  4. The Husband Mr. Kiwai to give million kina to her upon receipt of the judgment sum from the Pastor Louis Apurel's case.
  5. The Husband Mr. Kiwai to buy a brand new Toyota Land cruiser for her use upon immediate recival (sic) of any outstanding sums.
  6. The Husband Mr. Kiwai pay a sum of K150,000.00 (including pigs and etc) as bride price wealth to her relatives.
  7. The marriage to be properly consummated in church and recognized by everyone and further evidenced by a marriage certificate immediately.

IN WITNESSWHEREOF the parties have signed this Agreement on the day and date first mentioned earlier.


SIGNED by said )

ANNA Y KIWAI as )

the wife in the presence of ) (Signed and dated 8/04/05) ________________________

(signed and dated 6/04/05) MR. LEO YAKOPA

______________________________ ) WITNESS:

______________________________ )


SIGNED by said )

JERRY KIWA as )

the HUSBAND in the presence of ) ______________________

(signed and dated 6/04/05) PASTOR LOUIS APUREL

___________________________ ) WITNESS:

___________________________ )"


5. Before anything else, I observe that, the way in which the agreement has been written out and executed does not reflect well of a law firm that has been in existence for a while now or as a document produced by its principal. Instead, it appears to suggest an amateur or a lay person who is familiar with legal documents, particularly written agreements or contracts at work more than a lawyer. It displays a lot of spelling, styling and other errors, like the most obvious one being the agreement indicating that it is between a husband and a wife when the parties are yet to get married. Also, the agreement does not start with any preamble as most other agreements prepared by lawyers do. Further, the respective addresses of the parties are not disclosed.


6. Now turning to the other evidence before the Court I first note that, according to the parties' statement of agreed and disputed facts filed on 2nd September 2013, the following facts are agreed:


(1) Anna and Jerry lived as husband and wife under a customary marriage from 2005 to August 2008;

(2) Jerry Kiwai is the principle of a law firm, Jerry Kiwai Lawyers operating out of the National Capital District;

(3) Prior to 13th December 2006, Anna was employed as an Archivist with Lihir Gold Mine in the New Ireland Province;

(4) Anna resigned from her then employment on 13th December 2006, and moved to Mt. Hagen to live with Jerry;

(5) From 13th December 2006, to 1st April 2010, Jerry employed Anna as the Finance Manageress of the then office of Kiwai Lawyers in Mt. Hagen, Western Highlands Province;

(6) There is a copy of an agreement dated 6th April 2005, bearing both Anna and Jerry's signatures but Jerry denies signing the agreement; and

(7) The Agreement was executed by Anna on 6th April 2005 and was purportedly witnessed by Leo Yakopa on 8th April 2005.

7. Both sides called evidence on the main issue. Anna adduced into evidence her two affidavits respectively sworn on 5th May 2010 (Exhibit P1) and 30th July 2010, Exhibit P2 and an affidavit by one of her witnesses, Jayne Ausre sworn on 16th December 2012, which is marked Exhibit P3. Both Anna and Jayne were called for cross examination on their respective affidavits and they gave some oral testimony. Anna also called upon summons a Paul Rimbu who gave sworn oral testimony. On the other hand, Jerry adduced into evidence only his affidavit sworn on 10th December 2013 (Exhibit D1) and also took the stand under cross examination on his affidavit.


The Plaintiff's Evidence


8. Anna's evidence can be summarized in this way. On 6th April 2005, Jerry drafted and sent by facsimile the agreement to her. That was done from Jerry's law firm's office, Jerry Kiwai Lawyers in Mt. Hagen. She was at that time working at her place of employment at Lihir, New Ireland Province. The faxed copy of the agreement was received by Anna's witness Jayne, who was her work mate and friend and is therefore not necessarily an independent witness. According to Jayne, Jerry used to call many times, each time asking to speak to Anna with 6 of those being made on 6th April 2005, chasing up on the agreement. On the final of those calls, Jerry addressed Jayne as his "tambu" and enquired about a three page fax he had sent for Anna. She undertook to check the fax machine which she did and confirmed that the fax was received. Upon her confirmation of the receipt of the fax, Jerry said to her that he had signed the agreement already and asked Jayne to pass it onto Anna urgently for her to sign. Jayne delivered the fax copies of the agreement to Anna, whereupon Anna signed it and forwarded her signed version of the agreement by fax to her uncle, Leo Yakopa on 8th April 2005, who signed and returned it on the same day to Anna and Anna faxed it to Jerry on the same day. Getting Leo to sign was at the insistence of Jerry.


9. A photocopy of the agreement is annexure "A" to Anna's affidavit sworn on 30th July 2010. Anna then goes onto say, Jerry has not denied the existence of this agreement when a number of opportunities were presented to him. The first opportunity was on 4th September 2008 when Jerry offered her a contract of employment with his firm, the terms of which she protested as they did not reflect the agreement. The second was when she issued a memo dated 9th September 2009 regarding a renewal of her employment with Jerry Kiwai Lawyers. The third opportunity, was when she gave him another memo on 19th October 2009, when she specifically referred to the agreement and gave notice that she would sue on the agreement. The fourth opportunity was when her lawyer wrote to him on 30th March 2010 to which he responded on 13th April 2010. The next opportunity came when her lawyer forwarded a settlement proposal on 13th April 2010. The final opportunity was presented when her lawyers wrote to Jerry's lawyer on 11th June 2010.


The Defendant's evidence


10. Jerry's evidence is that, he commenced practicing law on his own under the firm name, Jerry Kiwai Lawyers in February 2005, then based at Mt. Hagen. He also says, when Anna left her employment with Lihir Gold Mine, she went to Australia with the intention of marrying an Australian. However, things did not work out for her. After staying in Australia for a few months she returned to PNG and commenced living with him. He says he did not know about her resigning and getting to Australia until she called him from Australia.


11. Jerry goes on to say, he paid bride price of K20,000.00 in cash and several pigs. On top of that, he says he expanded or gave her or spent on her account during the course of their living together as husband and wife:


(a) K272, 431.72 in cash which he is able to account for and an estimated more than K450,000.00 to K500,000.00, he is not able to account for;

(b) Bought her a motor vehicle VX Station Wagon, registration number LAL 777 at a value of K130,000.00 as well as a 15 seater Mazda bus for K56,000.00, both registered in Anna's name;

(c) Built and gave her a fully furnished house up to a value of between K150,000.00 to K250,000.00;

(d) Fully paid holidays to Australia for her to spend time with her relatives there;

(e) School fees and other support for Anna's relative's children at an estimated K1,000.00 every week since he and Anna did not have any children of their own; and

(f) Employed Anna as his firms finance manageress at a fortnightly salary of K1,466.55 net, until she commenced three separate court actions against him, namely WS No 595 of 2010 claiming in access of K10 million, criminal proceedings out of Waigani under reference CR No 920 of 2011 and this proceedings.

12. Jerry denies drafting, signing and faxing the agreement to Anna. He claims that his signature was either forged or copy pasted onto the document purporting to be a copy of the agreement. He also says, he could not have come up with such an agreement since he only commence his practice and more so the agreement as a provision for a payment of K1 million upon receipt of a judgment for a client, Pastor Louis Apurel's case.


Parties Arguments


13. Learned counsel for Anna argues for an acceptance of his client's evidence on the basis of which he argues for a finding that Jerry signed the agreement which should result in a finding that the agreement is binding on Jerry and is enforceable against him. In support of his arguments, counsel points out the following factors as factors favoring his arguments:


(1) Anna's evidence is consistent with the dates, fax numbers and place where the fax originated as shown in the copy of the agreement;

(2) Anna called an independent and truthful witness, Jayne Ausre who gave a detail account of conversations between him and Jerry on 6th April 2005 confirming his drafting and execution of the agreement, faxing it and requiring Anna to sign, which evidence corroborates Anna's own evidence;

(3) Jerry's evidence on the other hand, lacks detail and independent corroboration;

(4) Jerry's conduct speaks against him particularly when considering the following conducts:

14. On the other hand, learned counsel for Jerry argues for a rejection of Anna's evidence and find that his client did not execute and therefore did not entered into the agreement. He points out to the following factors as factors favoring such a finding:


(1) Anna failed to produce the respective copies of the faxed documents on which her original signature and that of her uncle Leo, appears which should confirm her claim of herself and her uncle receiving separate fax copies of the agreement upon which they each signed;

(2) Anna failed to provide any explanation for not being able to produce the original or the fax copies revealing the original signatures of herself and her uncle;

(3) The agreement binds Jerry into a financial commitment running into about K2 million, which is beyond his means;

(4) Witness Paul Rimbu who was called to confirm the existence of the original agreement failed to do that and instead testified that he had no knowledge or idea about the agreement;

(5) Jerry has explained that the signature identified as his by Anna appears similar to his but he has denied signing it on the agreement and explained further that it could have been forged or copy pasted;

(6) Further to (5) above, the signature appearing to be that of Jerry appears to be thicker than other writings on it, which suggests a writing over it again;

(7) The same hand writing appears to have been signed for Anna and her uncle Leo;

(8) Pastor Louis Apurel, who is referred to as the person from whose judgment a sum of K1 million was to be paid to Anna and who was supposed to sign off has a witness did not sign;

(9) The terms of the agreement are unrealistic, unethical and financially not viable, given that Jerry commenced his law practice in February 2005;

(10) Internal memo from Anna dated 9th September 2008, which is annexure "H" to Anna's affidavit, Exhibit P2 does not refer specifically to the agreement in dispute here. Instead it is referring to a previous contract of employment;

(11) Anna failed to produce any evidence confirming her claim of having resigned from her pervious employment to go and live and work with Jerry;

(12) Overall, Anna's claim lacks credibility and as such it should be dismissed.

Consideration


15. Before considering anything else, I accept both learned counsel's submission that the standard of proof in civil cases is on the balance of probabilities.[1] Applying that stand of proof, I need to consider and determine if Anna as the plaintiff who bears the burden to prove her case, as done that. Since the dispute in this case is about the execution and hence the existence of an agreement, the rules relating to documentary evidence and the other evidence before the Court are relevant and call for consideration and application first before getting into the law of contract which governs agreements or contracts and their enforceability.


16. Justice Doherty summarized the relevant principles in these terms in the case of The State v. Hekavo;[2]


"It has been said[3] that in all cases it is necessary to produce the best evidence available to prove any particular fact. This became known as the 'best evidence rule' and is referred to[4] 'as the best evidence must be given which the nature of the case admit.' It must be brought to the court in the form which gives the best guarantee of its credibility and that the circumstances of the case admit."


  1. Later in The State v. John Bill White (No 1),[5] her Honor again speaking about the principles said:

"... in order to adduce proof of each element [of an offence] the maxim 'the best evidence must be given of which the nature of the court case permits' is considered a fundamental principle of the law of evidence. Phipson[6] considers that it applies in three slightly different senses ... i.e. that the nature of the fact admitted, or that the circumstances would allow, or that the party could produce and if there was inability to obtain better evidence than there could be some justification to resort to inferior forms of evidence such as hearsay by interested witnesses or copies of documents."


  1. Applying this principle, in my most recent decision in Arua Loa & 2 Ors vs The State and Ors,[7] I found that a photocopy of a land purchase agreement without any explanation as to where the original was and how the copy was obtained and annexed to an affidavit did not meet the "best evidence rule". I was critical of the State's failure through the failures of the Department of Lands in keeping proper records and producing them in evidence.
  2. Another relevant and accepted principle in our jurisdiction is in the area of application of logic and common sense to assist in determining whether or not to accept any evidence or claim. The Supreme Court discussed this principle in these terms in Michael Tenarum Balbal v. The State:[8]

"... receiving, assessing and determining whether or not to accept a witness and his testimony is a well-trodden one. Rules of evidence have much to say and do with the reception or rejection of evidence. Logic and common sense do play an important part in that, as has been noted and applied in many decisions of both this and the National Courts... This is in addition to any serious inconsistencies that might exist in the testimonies of the witnesses called by a party which makes any acceptance of the evidence difficult..."


Present case


  1. Applying these principles to the case at hand, I find that Anna has failed to establish her claim on the he balance of probabilities. There are a number of reasons for this finding. Firstly, she has not satisfactorily explained where are the original of the agreement or failing that at least the fax copies upon which she and her uncle, Leo, respectively signed. If it was difficult to secure the original from Jerry as Anna claims, she would have had no difficulty in producing the faxed copies on which she signed as well as the fax copy on which her uncle Leo allegedly signed. Anna failed to provide any explanation for this failure and she also failed to explain where these copies of the agreement might be or presently are and how it was difficult to produce them in Court.
  2. Secondly, the copy of the agreement in evidence has a number problems which speak against the document been a legally binding and enforceable agreement. The first of these problems is the defects noted in paragraph 5 of this judgment.
  3. The second problem about the copy of the agreement is the fact that, it reveals no evidence of it meeting the requirements of the Stamp Duties Act Chp.117, in order for it to be admissible and relied upon. In Waghi Security Service Pty Ltd v. John Tembon & Anor,[9] the plaintiff company tendered an agreement upon which it relied on to support its claim. But it produced no evidence of complying with the Stamp Duties Act. What Woods J., presiding in that case said is relevant and applicable here:

"...under s 19 of the Act, the document tendered cannot be admitted as or available in law. One very simple rationale for this is that unless you pay stamp duties and company tax and income tax, how can a government get the funds it requires to provide the services of government institutions like courts to assist people with the resolution of disputes? If you want to enter into modern commercial agreements and have the protection and support of the modern institutions, you must comply with the modern laws."


  1. The third problem with the document in this case is the fact that Pastor Apurel who was to witness Jerry signing the agreement did not do so. His provision is left unsigned. This is critical because he is referred to in the body of the agreement as the person from whose judgment K1 million was to be paid to Anna. In the Waghi Security Service case, Woods J added additional grounds for rejecting an agreement which I am of the view are also relevant and applicable here with appropriate modification to reflect the present case. His Honor said:

"The document has not been executed properly. The seal of the provincial government has not been affixed properly, namely in the presence of two officers of the provincial government who are proper officers and who have signed accordingly. There appears to be one signature of a provincial government official, but that is all. It may have been necessary to have a copy of the resolution in the minutes of the Cabinet whereby the seal was authorised to be affixed. The same would go for the execution by the plaintiff company. There is no common seal affixed and properly certified by the signatures of two proper officers of the company. Also the dates on the contract are too vague. There has been an alteration which has not been certified properly, and the date is not noted at the end near the purported signatures."


  1. In the present case, according to Anna's own testimony, her signing of the agreement took place on 6th April 2005. Her witness, Leo Yakopa was not there to witness her signing the agreement. According to Anna, the witness signed it two days later after receiving a fax copy from her on 8th April 2005 at a totally different location, Kutubu in the Southern Highlands Province. What happened here was contrary to what usually happens. People who are witnessing the execution of an agreement would usually be present and witness the signing by those who are required or entitled to sign. The task of a witness to a document is to witness amongst others, mainly the signing of the document by the author or the persons who are required to sign. These cannot be done separately and after the event. In this case, the signing and witnessing part clearly indicates that the parties were to sign in the presence of their respective witnesses. That did not happen.
  2. The fourth problem with the agreement in this case is the form and content of the document. Neither counsel assisted the Court with any material or case law on the form and content of prenuptial agreements, given that this is a particular kind of agreement and in some jurisdictions they are governed by legislation.[10] According to my own research, I have ascertained that the following are essential elements or features of such agreements:
  3. In the present case, a number if not all of these elements are missing. Firstly, I note that there is no preamble to the agreement which could give the background leading to the agreement, its purpose or why the parties are entering into the agreement. Most lawyers make it their business to have a preamble to each agreement they help to draft. This one obviously does not have a preamble in the beginning of the agreement. Secondly, whilst the names of the parties are given, no information is given in respect of their respective residential and postal addresses. Thirdly, it is not stated clearly if either or both of them are coming from any prior marriage and if so fails to indicate if any children are involved. Fourthly, there is no indication of a mutual desire by both Anna and Jerry to get married. Instead, the only provision, coming anywhere closer to this point is clause 7 which requires a consummation of the marriage in church and be recognized by everyone and be evidenced and confirmed by a marriage certificate. Fifthly, there is no indication and clearly there is no clear statement on when the marriage between the parties was to be consummated, if at all that is to occur, despite the document already addressing the parties as husband and wife. The relevant evidence on point which is mainly from Anna if credible and acceptablem, speaks of Jerry repeatedly chasing her up for execution of the agreement and she obliged. She also speaks of Jerry being the one who wanted the agreement to be witnessed by Anna's uncle, Leo. What is obvious in this piece of evidence is an element of force or duress on the part of Jerry. The suggestion here is that, Jerry was desperately chasing up Anna for her to sign the agreement and for her uncle Leo to witness it. This clearly leaves no room for a mutuality or a desire or wish to get married and each doing their part freely and willingly to enable their anticipated formal wedding and hence their marriage to occur. Rather, the impression Anna creates is one of only Jerry wanting this marriage so badly and was hence pushing for the signing of the agreement. In other words Anna appears to suggest that Jerry coerced her into the signing of the agreement. This alone has the potential of rendering the agreement unenforceable on the grounds of force or duress.
  4. The above observation immediately leads to the question of whether the parties were at consensus ad idem on the terms of their agreement. If there were any prior discussions and agreement reached by both Jerry and Anna to enter into a prenuptial agreement, in the terms set out in the copy of the agreement or otherwise, there is no evidence of that before the Court. In these circumstances, it seems clear to me that, there were no consensus ad idem on the terms of the agreement between the parties. Instead, if Anna can be believed, it was only Jerry's wish and he was desperate in getting the agreement signed on 6th April 2005. This makes it difficult to find that the parties reached an agreement in the terms of the copy of the agreement in evidence or at all.
  5. That is not all, sixthly and most importantly and as noted, one of the main objectives of a prenuptial agreement is to provide for the status, ownership, and division of contracting parties' respective individual and joint present and future assets and liabilities of the parties to the agreement, and fully disclose them with schedules fully disclosing the relevant details of each of the assets and liabilities. My reading of material on point, makes it clear that, as close as is possible to the day of their wedding, the parties should provide statements to each other fully disclosing their assets and liabilities, inclusive of any superannuation scheme either or both of them may be part of as well as any interest in any business. The disclosure should consist of financial statements, covering bank statements, income tax returns, security accounts and real estate and mortgage information, list of other assets like motor vehicles and other assets and debts. Where a business is part of the assets and liabilities, there should be a disclosure of the extent of the parties' interest in it and the valuation method used to arrive at the value of the interest. A failure to observe this discloser requirement could amount to a finding of fraud or concealment against the party failing to disclose, and this alone will defeat any claim of any prenuptial agreement.
  6. There is no local case on prenuptial agreements but there is a few elsewhere. These few cases do not provide much assistance in determining what amounts to fair and reasonable disclosure. What is clear is that, the question of whether there has been a fair and reasonable disclosure is a question that is dependent on the facts and circumstances of each case. A court will most likely uphold a prenuptial agreement if it discloses sufficient details with the relevant financial statements and other details required of the parties. The troublesome cases, are those in which there is some but not all relevant details. A case on point is the Supreme Court of Illinois decision in Megginson v. Megginson.[11] There, in an action by a wife seeking to invalidate a prenuptial agreement, the Court held that there was sufficient disclosure by the husband who disclosed two farm properties but failed to give the full nature and extent of his property. The Court reasoned that, the intended wife had or ought to have knowledge of the character and extent of the intended husband's property. She was thus in a position to ascertain the specific details she complained about.
  7. In the present case, the agreement neither discloses nor does it make any provision for the fair and reasonable discloser of each of the parties' assets and liabilities. The parties appear to have had no regard to this most important issue of each other's assets and liabilities. Jerry's learned counsel's argument that the financial commitment allegedly made by his client are beyond his means begs a satisfactory response from Anna. If the parties took the time to exercise care and paid attention to what they were entering into, Jerry's argument could have no place. However, since there is no discloser of his means and that of Anna's, the argument is open. Jerry argues that he did not enter into this agreement with Anna. That means, he was not given the opportunity to consider and address the issue. Hence, the onus in my view, was with Anna as the plaintiff to satisfactory address this issue. If indeed she entered into the agreement with Jerry, she had the burden to disclose in detail what Jerry's assets and liabilities were and demonstrate, how it was possible for him to make such a commitment. She also had to indicate what her assets and liabilities were that warranted Jerry making the kind of commitment he allegedly made. She failed in both respects. Thus, his most important element for a valid prenuptial agreement is absent thereby speaking against the existence of a valid and legally enforceable prenuptial agreement between the parties as alleged or at all.
  8. Another matter that should also have been disclose and provided for or addressed in the agreement was the need for the parties to indicate if either or both of them were getting into their intended marriage either as persons who had or did not have any prior marriages. Then if either of them did have a prior marriage, indicate whether there were any children they were coming with. This is the seventh essential element missing in this agreement.
  9. As earlier noted one of the other essential pillars of a prenuptial agreement is the need to provide for what is to become of the parties' assets and liabilities in the event of the possible unhappy eventualities of one of them becoming totally dependent on the other by reason of ill health and any other eventually or in the event of a death or dissolution of marriage. In the Matter of the Estate of Robert J. Crawford,[12] the Supreme Court of Washington voided a prenuptial agreement because nvision was made fode for the wife in the event of divorce or death. In the present case, it is evident that, no provision was made in the agreement for any or a these serious matters that could happen. This is the eighteighth most significant and noticeable omission in the agreement.
  10. The ninth most noticeable omission in this agreement is the fact that there is no provision made let alone any mention being made about children. Often people entering into marriage expect to have children and all that comes with having children unless for good reason the parties expect that, there will be no children in the marriage. Whatever the position was or was to be for the parties in this case, they still had to provide for what was their agreement in respect of children. Here, for reasons only know to the parties there is no coverage and or mention in any manner or form of this most important factor.
  11. I now turn to another important and perhaps controversial one is the need to ensure that the terms and conditions of the agreement a fair and reasonable for both parties with valuable consideration passing from one to the other. There must be evidence of the parties entering into the agreement voluntarily and knowledgeably. Disproportionate provisions alone are not capable of invalidating an agreement. The courts measure fairness at different points. Where there is legislation dealing with prenuptial agreements, this is dependent on each of the courts' applying legislation. Some courts assess fairness at the time of execution, others at the time of enforcement and still others at both points. Observance of the need for full discloser and being fair and frank and up front together with how much each is bringing to the relationship and how much is foregone by each or either of them for the sake of the agreement and the intended marriage plays a significant part in determining whether the terms of a prenuptial agreement are fair. The duty to disclose fully, frankly and fairly is universal to all kinds of contracts and is a known concept as many cases in PNG will demonstrate.[13] In the area of insurance contracts, the need for full fair and frank discloser is often played out quite dramatically, where a mere failure to disclose can be very fatal.[14] Whether this duty has been discharged is dependent on the relevant facts. A finding in favor of fairness, is possible, if provision is made for each of the parties to seek and they in fact seek and secure independent legal advice and then sign their agreement. Though not directly on any prenuptial agreement we have a few judgments locally which highlight this point.[15] Of course, if this is not observed, the opposite result would be inevitable.[16]
  12. The need for fairness to form the foundation of any agreement or transaction is the whole intent of the provisions of the Fairness of Transactions Act 1993, in our country. As was noted by the Supreme Court in its decision in Rage Augerea v. Bank South Pacific Ltd,[17] Parliament passed that legislation out of a concern over the issues of fairness and equality in the bargaining power of the parties in all transactions and provide remedies for a failure to observe the principles of fairness.[18]
  13. In this case that, if at the time of the purported entering into of the agreement the parties loved each other so much they would have wanted to do everything right by each other. This would have started with a full appreciation of each other's position prior to their intended marriage and what each were coming to the marriage with. For clarity and to avoid any possible future arguments, they would have each observed the requirement for full disclosure and they would have disclosed their respective assets and liabilities. The agreement does not disclose a single disclosure of either of their assets and liabilities. This is a serious and critical defect in the agreement because without a full knowledge, appreciation and understand of each other's assets and liabilities there would be no legitimate basis to expect any deliverance of any of the terms purportedly agreed to. Without such disclosure, the obligations stipulated in the agreement could be seen as mere statements not intended to be delivered. In this respect, Anna's own submissions acknowledges in answer to Jerry's claim that the agreement was not aimed at defrauding Jerry as he did not have much money. This submissions supports, Jerry's claim that he did not have the means to commit himself to the terms of the agreement.
  14. Further, I find that the terms of the purported agreement speak in terms of what Jerry has to do for Anna and her benefit. The only thing that she appears to forgo is her resigning from her then employment. But that is not at a loss. She is to be paid K2, 000.00 per fortnight. There is no discloser of the reasons why she should be paid that much and more so there is no mention of what good she might be to the firm of Jerry Kiwai Lawyers and be in a position have 60% of the shares or interest on the firm. Other than her resignation for a better reward, it seems to me in the absence of any evidence to the contrary that, clearly there is no reciprocation of any or all of what Jerry is to do for Anna. This clearly speaks of and against any mutuality of benefit or valuable consideration passing from one to the other. In McMullin v. McMullin,[19] the Missouri Court of Appeals found a prenuptial agreement unenforceable because it found the agreement was so one-sided that it was "unconscionable" and thus unenforceable. The court also ruled that the agreement failed to meet "full disclosure" requirements because it listed but did not value the husband's pry and did not allow the prospective wife sufficient time tome to seek legal counsel in reviewing the agreement prior to signing.
  15. Another provision the parties should have made was for each to give the other time and opportunity to carefully consider what they were getting into with the assistance of their respective lawyers prior to signing the agreement. Even though Jerry was a lawyer, good practice demanded a second independent opinion and advice before executing it. There is no evidence of the parties allowing each other or one of them to seek independent legal advice before executing the agreement. In the absence of any evidence to the contrary, it appears clear to me that the need for independent legal representation and advice was not a part of the parties' negotiations and the eventual execution of the agreement.
  16. The final factor I turn to is in relation to how the parties' executed the agreement. Jerry claims he did not sign the agreement. He asserted that, either his signature was forged or copy pasted. That means he is in no position to explain why his witness was not able to witness his purported execution of the agreement. Anna who signed a fax copy of the agreement and claims Jerry signed the document does not provide any explanation as to why the document could not be signed in the presence of her witness, her uncle, Leo other than to say he was in Kutubu. The role of a witness to an agreement or any document as already noted is to witness the signing of the document by the person who is required to sign it. Signing of a document without a witness is not signing a document in the presence and witness of a witness. For there can be no witnessing unless the witness, observes, sees, views or perceives what is happening before his eyes. Hence, unless the signing of a document or agreement is observed, seen, viewed or perceived by the witness, there can be no witnessing. If there is a purported witnessing as in this case without any seeing, viewing, observation or perception by the witness of what is being signed, there would be no proper witnessing of what it is. This would render the act or event not properly witnessed. This alone could render a purported agreement seriously defective and unenforceable. Here, Leo, the only witness did not witness Anna executing the agreement. The onus was hence, on Anna to prove that the signature purporting to be that of Jerry appearing on the agreement is genuine and that Jerry signed it. That she had to do it through the calling and the testimony of signature expertise,[20] which she failed to do.
  17. The total effect of all of the foregoing is simple. The purported agreement has a lot of serious defects which have the force of rendering the agreement seriously defective. The defects in my view are very serious and or fundamental and go into the heart of the agreement. Accordingly, I find that the purported agreement fails to meet the requirements of a valid prenuptial agreement or indeed any agreement or contract that is enforceable at law.
  18. I now turn to the third reason for this Court not being able to accept Anna's claims. The terms of the agreement include an obligation to have Anna paid from what appears to be a client, Pastor Louise Apurel's judgment. Except with the free and informed agreement of the client, no such agreement could be arrived at. The said Pastor Apurel has not signed the agreement in any capacity even though he was named as a witness. In the absence of any evidence to the contrary, it is reasonable to assume that the Pastor did not witness the agreement because he did not agree to such a substantial sum of money going from his judgment to Anna. There is no evidence from Anna which demonstrates both the justification and the need for her to be paid such a substantial sum of money. Similarly, there are other terms of the agreement for instance the one that gives her 60% of the interest in Mr. Jerry's law firm. Again there is no discloser of the basis or justification for this term of the agreement. These and the rest of the terms of the agreement render the agreement untenable or unconscionable, by reason of which, it is not enforceable.
  19. Anna's arguments through her learned counsel as noted at paragraph 13 above, with respect does not satisfactorily address any of the fundamental factors that need to be provided for in a prenuptial agreement. Her arguments with respect does not in any way addresses and establish any of the essential elements that need to exist for a legally binding and enforceable contract in any case. This is serious and more fundamental than the arguments Anna, through her learned counsel, presents against Jerry. Those arguments must therefore fail in view of the matters I have set out above.
  20. Whilst the forgoing finding would render any further discussion unnecessary, I will make mention of at least two of Anna's arguments which I have given some careful thought and consideration. Firstly, is her learned counsel strongly arguing that, the agreement has been part performed when Jerry admitted to paying bride price and bought her a Toyota Land Cruiser and a 15 Seater Bus in addition to employing her as Jerry Kiwai Lawyers Finance Manageress. Counsel placed reliance on Annexure "H" to Anna's affidavit (Exhibit P2) as documentary evidence acknowledging the existence of the agreement. My impression of Anna and her witness, Jayne did not impress upon me as truthful witnesses on this and the other aspects of this case. Paul Rimbu whom Anna called to confirm the existence and the original fax copy of the agreement having originated out of Jerry Kiwai Lawyers office, did the opposite.
  21. Annexure "H" does not make any clear reference to the agreement the center of the dispute here. Instead, it refers to Anna's contract of employment. This is apparent from the phrase "when I was given a second contract on the 5th of September 2009 employing me as a finance manageress" which appears in the last sentence of the second paragraph in annexure "H". Jerry has offered an explanation for the payment of pride price and the purchasing of the two motor vehicles. He said he married Anna according to custom which meant that he was required to pay bride price, which he did and then proceeded to discharge his duty has a husband when he bought and gave Anna the two motor vehicles and other cash and properties. I take note that, these are things most well to do men in the highlands do for their wives and what Mr. Kiwai did is not exceptional.
  22. The second of Anna's argument I have given some particular thought and consideration to was her argument through her learned counsel that, Jerry failed to deny the existence of the agreement despite a number of opportunities given to him. Whilst there is some basis for this argument, I cannot see how this argument can fix the various and serious defects in the agreement as identified and discussed fully in the foregoing. For this argument can only have meaning and some effective if the various serious defects do not exist.
  23. For the foregoing reasons, I do not find Anna's claims credible. Accordingly, I indicated that I was not persuaded that, Anna has established her case against Jerry on the balance of probabilities. Instead I find that the factors found against Anna forms the foundation for a finding that, the parties did not enter into the purported prenuptial agreement. Instead I find that, the purported agreement was the making of Anna or someone on her instructions and not a lawyer like Jerry and is not a mutual agreement between Jerry and her. Based on this finding, I am firmly of the view that Anna's claim should be dismissed. Accordingly, I order a dismissal of the claim with costs to Jerry. The costs shall be agreed if not taxed.

_______________________________________________________________
Baniyamai Lawyers: Lawyers for the Plaintiff
Jerry Kiwai Lawyers: Lawyers for Defendants

[1] See: Grand Chief Sir Michael Thomas Somare v Chronox Manek (2011) SC1118; Re James Eki Mopio [1981] PNGLR 416; Chief Collector of Taxes v Blasius Dilon [1990] PNGLR 414 and Sam Kuri v Motor Vehicles Insurance Limited (2011) SC1117 for case on point.
[2] [1991] PNGLR 394.
[3] In in Hocking v Ahlquist Bros Ltd [1944] 1 KB 120)
[4] by J M E Garrow & J D Willis in the text The Principles of the Law of Evidence in New Zealand (at 17)
[5] [1996] PNGLR 262.
[6] Phipson On Evidence, 13th edition, para 5-01 - 02 “the best evidence rule”.
[7] (2015) N5849.
[8] (2007) SC860; cited and applied with approval in Peter Wararu Waranaka v Gabriel Dusava (2009) SC980.
[9] [1994] PNGLR 138.
[10] This and the following is based on the article “Prenuptial Prerequisites: The 4 essential elements of an inviolable agreement,” By Mark A. Chinn and Charles Greer, Family Advocate, A practical journal by the ABA Family Law Section, Vol. 24, No. 3, Winter 2002 found at http://greerlawfirm.net/prenuptial-prerequisites-the-4-essential-elements-of-an-inviolable-agreement.htm
[11] 367 Ill. 168 (Ill.1937).
[12] 107 Wash.2d 493 (Wash. 1986).
[13] See for example: Gwanzik Wiring v John Muingnepe (2012) N4889;
[14] Alotau Enterprises Pty Limited and Allen Enterprises Pty Limited v Zurich Pacific Insurance Pty Limited (1999) N1969f .
[15] See Papua Club Inc v. Nusaum Holdings Ltd (2005) SC812
[16] See Kora Gene v. Motor Vehicles Insurance (PNG) Trust [1995] PNGLR 344; Credit Corporation (PNG) Limited v. David Nelson (2011) N4368 and Bank South Pacific Ltd v. Robert Tingke (2012) N4901.
[17] (2007) SC 869.
[18] See Negiso Investments Limited v. PNGBC Limited (2006) N3104 and Dr. Florian Gubon Trading as Gubon Lawyers v. Pacific Mobile Communication Limited (2003) N2439.
[19] 926 S.W2d 108 (Mo. App. 1996).
[20] See Spirit Haus Ltd v. Robert Marshall (2004) N2630 for more discussion on this point.

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