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Tainje v Kelipo [2006] PGDC 32; DC857 (14 December 2006)

DC857

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE AT LAE]

CHM No. 140/05

BETWEEN:

CAROLINE TAINJE
(Complainant)

AND:

SAM KELIPO
(Defendant)

Lae: C Inkisopo
2006: 14th December

Deserted Wives and Children’s Act - whether wife and child left without any means of support by Defendant – whether defendant liable to pay maintenance allowances for the support of the wife and child – Desertion alleged to have occurred in 1994 and the Complaint upon oath and Summons for this matter issued in 2005.

Statutes of Frauds and Limitations Act – application of Act to Complaint seeking maintenance allowances of wife and child support under the Deserted Wives and Children’s Act –whether or not this case is statute barred under Section 16 of the Act.

Legislations:

1. Deserted Wives and Children’s Act 1951 Chapter No. 277
2. Statutes of Frauds and Limitations Act 1951 Chapter No.

Case cited:

*Veronica Morgan vs Damien Faith [1995] PNGLR 273

Appearances:

1. Caroline Tainje: Self in person in Court
2. Sam Kelipo: Self in person in Court

HELD: The entire proceeding is statute barred and is therefore dismissed with costs by each party.

JUDGMENT

C Inkisopo: The Complainant filed proceedings upon a Complaint on oath and Summons claiming unlawful desertion of her and her child by the Defendant pursuant to Section 2(1)(b)(iii) of the Deserted Wives and Children’s Act Chapter 277. Complainant said that the Defendant is her husband and the father of her child named Raymond who was born on 28th September, 1995.

2: In support of her Complaint and Summons, Complainant swore to and filed an affidavit dated 20/06/05 in which she said that in the year 1994 the Defendant’s people paid bride price for her in the sum of K200.00 and seven (7) pigs to solemnize her marriage to the Defendant. Out of that marriage, two (2) children were born; the first child was still-born while the second child Raymond was born on 28th September, 1995. It is for the maintenance support of this child and for the support of herself that she comes to this Court claiming relieves under the provision of the Deserted Wives and Children’s Act for desertion and failing to provide any means of support for herself and the child. The court has heard the evidence of the Complainant herself and that of her witness from which the following evidence were borne out – Marriage in accordance with custom by way of bride price changing hands in the Ialibu/ Pangia area of the Southern Highlands Province. Complainant comes from Ialibu District of the Southern Highlands Province. As for the Marriage, it is clear to this Court that this part of the issue is proven - that the Complainant is the legal wife of the Defendant’s whilst the Defendant is the legal husband of the Complainant’s.

3: On the question of the paternity of Raymond’s attributed to the Defendant; on the material before me, I am satisfied that the parties as married man and woman were living together at their Kamkumung block during the material time and that the child Raymond was allegedly conceived by the Complainant out of that cohabitation. I accept the evidence of the Complainant’s second witness Mr Steven Warea who testified of him and his wife and ‘Sam and his wife’ (reference to Defendant and Complainant) all living together at the Kamkumung block. The parties’ living together as a married couple at their Kamkumung block was not an unusual phenomenon but a normal life situation of man and woman living together that included the normal marital activities of sexual relations that occurs freely within a marriage circle and to suggest otherwise in this instance is to part company with the realities of a normal married life situation. Sexual activities/relations are normal occurrences between married couples in their own matrimonial homes and Sam Kelipo and Caroline Tainje’s case was not an exception to this marital norm.

4: It naturally so followed that the child Raymond is the bye-product of this marriage relationship between the parties, Sam Kelipo and Caroline Tainje.

5: I therefore have no iota of doubt in my mind in finding that the Defendant is the biological father of the Complainant’s child Raymond. This Court is therefore satisfied on the balance of probabilities that child Raymond is the Defendant’s biological child and accordingly he is the father of the said child.

6: The next question to grapple with is as to whether or not Defendant has left his wife the Complainant and the child without any means of support.

7: On the evidence presented before me for the Complainant, I am satisfied that the Defendant has left the said child and the Complainant without any means of support ever since Complainant was kicked out of the matrimonial home at Kamkumung in 1994 and subsequently the birth of child Raymond in 1995. I am satisfied that since up to and including the day when the child was born the Defendant did not provide any maintenance allowance support for his wife and child. That much, this Court is satisfied on the balance of probabilities.

8: I therefore hold that the Complainant has established her case on the required standard such that she is entitled to judgment BUT for the Statute of Frauds and Limitations Act I am inclined to decide this case otherwise than I would normally have wanted to as alluded to immediately above.

9: Section 16 of the Statute of Frauds and Limitations Act expressly bars any causes of action that are of more than 6 years in duration.

10: In Veronica Morgan vs Damien Faith [1995] PNGLR 273 the National Court confirmed the Decision of the District in a child maintenance case instituted at the District court in which time lapse was an issue. In that case, Complainant claimed maintenance allowance for her illegitimate child after 15 years since the birth of the child in question. The District Court in that case held that, though the obligation to pay maintenance allowance continues until the child reaches 16 years, an affiliation order was first necessary to facilitate that – hence the Complainant’s action for maintenance allowance for her child from the Defendant was considered statute/time barred. On appeal from that decision to the National Court, the appellate Court agreed with the District Court’s ruling and confirmed that decision.

11: On the strength of the above discussion, I consider the current case to be time barred under Section 16 of the Statute of Frauds and Limitations Act.

12: The complainant has out-waited her time to bring this action before this Court and consequently time has been very unkind to her; in that time unfortunately has run out on her.

13: The Complainant filed her complaint upon oath on the 20th June, 2005 – some almost 10 years after the alleged cause of action arose (birth of child on 28/09/1995 and the Defendant’s alleged desertion of complainant in 1994).

14: In this case I have no choice but to find the proceeding to be time/statute barred and this action must therefore fail.

15: I therefore non-suit the Defendant in this case and dismiss the entire claim with each party ordered to bear his/her own costs of proceedings.

Orders accordingly.