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Vurr v Vurr [1996] PGNC 27; N1480 (6 September 1996)

Unreported National Court Decisions

N1480

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

OS NO 177 OF 1996
BETWEEN
PAULA LAS VURR - PLAINTIFF
AND
TEDDY VURR - DEFENDANT

Mount Hagen

Injia J
12 July 1996
23 August 1996
29 August 1996
6 September 1996

JURISDICTION - National Court - Underlying law - Dissolution of customary marriage - Whether jurisdiction available - Constitution, Sch. 2.1.; Local Courts Act (Ch No 41), S. 16.

JURISDICTION - Local Court - Certificate of dissolution of customary marriage - Exclusive jurisdiction of the Local Court - Local Courts Act (Ch No 41), S. 16.

Held

The National Court has no jurisdiction under Constitution Sch. 2.1. to deal with an action seeking a declaration that a customary marriage be or was dissolved. Pursuant to S. 16 of the Local Courts Act, (Ch No 41), the appropriate Court is the Local Court which has jurisdiction to inquire into an alleged dissolution of a customary marriage and upon being satisfied that the marriage has been so dissolved in accordance with the relevant custom, to grant a Certificate of dissolution of that customary marriage.

Counsel

Paula Las Vurr in person

No appearance for or of the Defendant

6 September 1996

INJIA J: This is a claim by thintifintiff, in person against her husband, the Defendant, for the following orders:

1. & A60; A declaration that the customary marriage be dissolved.

3. ټ&##160; A60; An orde order the on Sn 308 Lot 9 at Hohola, Port Moresby, National Capital District be awarded to the Plaintiff:tiff:

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(a) &##160;; And topd topertDefrtDefendant’s217;s name name be transferred to the Plaintiff; or

(b) Ptoper t besfeanedherchn wchn with their guardian.

4. &#160 &##16;&; An orderorder that compensation of K20,000.00 being for loscompahip ass ofummatand breach of custocustomary mary obligobligationations, los, loss of customary right to compensation.

5. An order that each arty tear their own costs.

6. Such further or other ordsrs as thnouraourt it.I gr leavthe Plaintiff to proceed with the matter tter ex-paex-parte, rte, upon upon her aher applicpplication, after I satisfied myself that efendnd/orlawyer were served witd with theh the Orig Originating Summons and all the othcompanying documentuments and were aware of these proceedings coming up for hearing on 23rd and 29th August 1996 and they made no effort to attend the proceedings.

I heard the substantitter on 29th August 1996.&#96. laintiff relied on her affr affidavit sworn on 25th April 1996 and filed on 8th May 1996. Beingmiliar with the CourtCourt procedures, she chose to rely on her affidavit, chose not to say anything further and closed her case0; No submissions were made. I ot ask any questions on s on her affidavit. I ad I adjourned thter to r to today for decision.

The Plaintiff’s primary relief is for a declaration, by this Court, that their customary marriage entered into in 1e dissolved. The other orders s are cone consequent uent upon an order for dissolution of the customary marriage.

The Plaintiff in her affidavit has given an account of their marriage life going through difficult times mainly because of the Defendant’s infidelity towards her and the Defendant’s marriage of several more wives and as a result, the Defendant’s failure to look after her and her children, failure to live with her, etc. The Plaintiff cons that heat her customary marriage to the Defendant has come to an end in accordance with the custom of the Melpa people of Western Highlands to which they belon is asking this Court for a declaration that the marriage iage is dissolved.

Whilst I agree with the Plaintiff that she is entitled to come before the National Court as a Court of unlimited jurisdiction to seek reddress, and more particularly under Sch. 2.1 of the Constitution which empowers this Court to deal with actions arising out of local custom, I do not think this is an appropriate case for the exercise of the Courts jurisdiction under Sch. 2.1 because there is a statutory law which specifically vests the jurisdiction to deal with the dissolution of customary marriages in another Court, namely the Local Court. PursuanS.16 of the Local Ccal Courts Act Ch No 41, the Local Court has jurisdiction to deal with an application by a married person to a certificate of dissolution of a customary marriage.

Section 16 provides:

&

“16. Dissoluti Customary Marriaarriage.

(1) ـ A LocalLocal Court shall, on application by a person married by cu and ing sied that that marriage has been dissolved in accordance with custom, grm, grant tant to himo him a certificate that that marriage has beenissol/p>

(2) &160; #160;ـ St ject to part VI, a cert certificate under Subsection (1) is conclusive evidence that the marriage has been dissolved.”

Section 16 confers a judicial discretion on the Local Court to issue a certificate of dissolution of a customary marriage and it is exercised on proper grounds. As to what use is made o cthe certificate of dissolution by the applicant is another matter. She may take up the matter with the Village Court, which has jurisdiction to deal wit actions arising out of local custom, and sue the other parr party for compensation for causing the dissolution of the customary marrand/or for a decision over over the properties owned by the family. She may bring similar proceedings in the Local Court or the District Court, both Courts having jurisdiction to deal with actions arising out of local custom. Even further, she may r to this Court, the National Court, and pursue the other coer consequential relief sought in paragraphs 2-6 of the Originating Summon>

For the above reasons, I refer this matter to the Local Court at Mount Hagen to determetermine the issue of dissolution of the subject customary marriage. If the Local Court after determining that the customary marriage has dissolved in accordance with the Melpa custom issues a Certificate of Dissolution, the Plaintiff may choose to come back to this Court and apply for the cuential orders sought in pain paragraph 2-5 of the Originating Summons. If the Plaintiff choosereto return to this Court, this Court will deal with those matters in the usual way.

The orders of this Court shall be:

1. ;&#16e mahter of dissolutiolution of customary marriage bete between the parties claimed in paragraph 1 of the Originating Summons isrred e Locurt ant Hagen for determination under S. 16 of the Local Courts Acts Act Ch t Ch No 41No 41.

2. & T60;rele f cleimed in parn paragraphs 2, 3, 4 and 5 of the Originating Summons are adjourned sine die until the issue of dissol of tbjectomaryiage termined by the Local Court at Mount Hagen.

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3.&#13. < &160; #160; ¦&#1he Plaintiff is gris granted liberty to apply to this Court for a determination of the relief claimed in para. 2, 3, 4 and 5 of the Originating Summonn obtg a Cicateissolution of the subject cust customartomary mary marriageriage.

Lawyer for the Plaintiff: Plaintiff in person

Lawyer for the Defendant: Paulus M Dowa Lawyers