Uglinga v Kunjip [2003] PGDC 12; DC122 (16 January 2003)

DC122
PAPUA NEW GUINEA

[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 55 OF 2002

BETWEEN

ALI UGLINGA
Complainant

AND

DOUGLAS KUNJIP
Defendant

Mt. Hagen: M Pupaka
2002: 14 February

Civil claim - Child affiliation proceedings - Claim under the Child Welfare Act Ch. 276 - Motion to strike out proceedings on basis that matter is statute barred - Issues of conception & paternity - Whether the Frauds & Limitation Act 1988 (No. 3 of 1988) applies - The same claim previously struck out upon a finding that the cause of action was statute barred - Additional issues of 'abuse of process' and 'res judicata'.

Cases Cited
Gone v Alick [1994] PNGLR 545
Morgan v Faith [1995] PNGLR 273

Counsel
The Complainant, Jason Kolo by Leave of Court

The Defendants, Mr Sino

16th January 2003

M.M. PUPAKA: By a set of Complaint & Summons upon Complaint dated 04/10/02, the complainant sued for maintenance of the female child Sasha, born to her on 27/07/94 allegedly as the result of a relationship between her and the defendant, and on the bases that the defendant has left the said child without adequate means of support. She brings this action under section 55 of the Child Welfare Act Ch. No. 276, (the CWA).

The defendant has filed a defence pleading that the matter is statute barred by virtue of section 16 of the Frauds & Limitations Act 1988. He has also pleaded that a previous action (Complaint No. 2 of 2002) claiming the same relief was struck out on the bases that it was time barred and the complainant is estopped from bringing this action.

On 08th January 2003 I directed that both council file submissions for me to consider on the issues of time limitation and issue estoppel. Defence council, who has also filed a separate motion to have the proceedings dismissed at this stage for the reasons pleaded in the defence, has made written submissions. However the complainant has not filed submissions as directed. I do recall Mr. Jason Kolo declaring in court, on 08th January 03 that he would like to see an expedited deposition of this matter as he was going to go away for studies or something. Nevertheless I do not intend to wait for any late submissions that may be filed for the complainant. I would not be available within the jurisdiction for some time, possibly until mid year and I have to hand down a ruling in this matter, with or without a submission from the complainant. Due and adequate regard would be paid to the interests and rights of the complainant, and I have fully considered an affidavit of the complainant which is already on file. The following therefore is the ruling of the court in this matter on the preliminary issues raised.

Is this claim statute barred?

The facts disclosed in the affidavit of the complainant dated 30th September 2002 reveal that the child, the subject of this proceeding, having been borne on the 27th of July 1994, is now more than 8 years old. I also note that this proceeding instituted on 30th September 2002, was so instituted under section 55 of the CWA. The complainant pleaded no marriage between herself and the defendant but said that there had been a relationship between them and that they planned to marry which, in the circumstances, I must accept did not happen. Therefore the subject child, Sasha, would have been borne out of wedlock, making her an illegitimate child.

Accepting these to be the uncontested facts, and going by the case precedents, the complainant's claim is now definitely time barred. There are two cases on point. These are the cases of Gone v Alick [1994] PNGLR 545 and Morgan -v- Faith [1995] PNGLR 273. By these cases, delivered at the same time on the 22nd of April 1994, Woods J for the first time ruled and declared that the primary issue in affiliation cases, such as this instant one, is that of paternity. The cause of action in affiliation cases is based on paternity. It must be established first to found liability against the father. That being so it is subject to the limitation in section 16 of the Frauds and Limitation Act 1988. The ruling of Justice Woods as expounded in these two cases is still binding precedent, at least upon the District Court.

Paternity is contested in this action and the defence of statutory imitation is pleaded. Under the circumstances, particularly the uncontested facts, the defence pleaded is made out and would stand.

Is this claim res judicata, amounting to abuse of process?

There is a copy order dated 8th August 2002, given under the hand of Magistrate Betty Jacobs, in a proceeding styled as complaint No. 02 of 2002, between these same parties, which simply states: "The proceedings herein be struck out for being statutorily time barred" (sic). Without any contention or evidence to the contrary I should accept that this same cause of action was dismissed for being time barred. Magistrate Jacobs seems to have adjudicated upon the cause of action, albeit summarily. The complainant has not challenged this order through an appeal to pave the way for fresh proceedings based on the same cause to be reinstituted. This then can give rise to only one effect in law, which is that there is a situation of issue estoppel or res judicata. Again the complainant has not said or shown that this proceeding, based as it is on a cause of action previously judicially adjudicated, is not res judicata or barred by issue estoppel. Therefore I also find that this proceeding is res judicata.

This (res judicata, issue estoppel situation) consequently raises the question of the propriety of taking out this proceeding the second time. The complainant can not litigate upon issues that she has no doubt been informed are statute barred, for to do so is an abuse of the process. She must cease or invoke appellate court jurisdiction to overturn the first ruling of the District Court, though I might add her chances in that regard are decidedly slim given the clear law in the precedents.

In the end result, for all the foregoing reasons, I summarily dismiss this proceeding and enter judgement for the defendant with costs. The costs to be taxed if not agreed to between the parties.

Mr. Jason Kolo: The Complainant by leave of Court
Kunai Lawyers: The Defendant