Epelya v Kurapae [2005] PGDC 42; DC219 (1 January 2005)

DC219

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE 3077 OF 2004

BETWEEN

Kurapae Epelya
Complainant

V

Lesi Kurapae
Defendant

Port Moresby: Gauli, Magistrate
2005

Counsel
Complainant in Person.
Defendant in Person.

DECISION OF THE COURT

Nature of the Complaint

The complainant claims against the defendant the sum of K2,000.00 in costs in the course of searching for the defendant. The defendant is the complainant’s estranged wife who left him to start a new life.

Brief Facts

The parties were married at Lyamala Village, Laiagam, Enga Province in the year 1991 under a customary marriage. A cash amount of K6,000.00 plus 46 pigs were given to the defendant’s relatives as bride price payment. They have an 11 year old daughter of this marriage. The complainant got employment in Porgera Mine leaving the defendant and their daughter back in their village.

The complainant got married to another woman while working in Porgera and he has not being supportive of the defendant for some number of years. The defendant then came to Port Moresby to live with his sister. She married another man and she is living with him for five years. And the new husband supports her and her daughter is now doing Grade 2. The complainant having heard of the defendant engaged in a new relationship then came down to Port Moresby in the year 2003 to look for her and thereby incurred the costs as claimed.

Evidence

The evidence for the complainant came from the complainant himself and the affidavits of Joe Alyap and Jerry Lita. The affidavits of these witnesses were tendered and accepted by consent of the defendant. The complainant was cross-examined.

The evidence for the complainant is that the complainant and the defendant were customarily married in 1991 where a bride price payment of K6,000.00 cash plus 46 pigs were given to the defendant’s relatives. They were married for 13 years before the defendant ran away with their 11 year old daughter to Port Moresby. In 2003 the complainant having heard of the defendant’s new relationship came down to Port Moresby looking for them in which he incurred K2000.00 on airfares, PMV fares, accommodation, meals and other incidental costs.

The complainant’s two witnesses, in their affidavit evidence merely gave evidence witnessing the customary marriage of both the complainant and the defendant. Both witnesses claimed to have known the parties for a very long time since their marriage in 1991. However none of the witness ever testified as to how long the couple had been living together before their marriage broke down.

The complainant said that they were married for 13 years before the defendant ran away from him. And so the complainant came to Port Moresby in search of her. The complainant said they both came to live in Port Moresby in 1993. At that time the complainant was constructing a house at 8 Mile. The defendant however denies these claims and said that she never came to live with him in Port Moresby nor have they lived together for 13 years.

The defendant’s evidence comprises of the evidence of the complainant and the affidavit of witness Alu Yakawe Taliya and dated the 19th January 2005. He is the Village Court magistrate as Surinki District, Wabag, Enga Province.

The defendant gave evidence that she was customarily married to the complainant in 1991 where the said bride price was paid. After she gave birth to their first child, a daughter in 1993, the complainant left them at their village and he went to work at Porgera Mines.

While working at Porgera the complainant married another woman. He forgot about the defendant and their daughter. He gave no financial support nor paid them visits for three (3) years. As a result the defendant married a man from the next village. She lived with him for one year. The complainant never summoned her for marrying a new husband.

The defendant then came to Port Moresby and married another man. She lived with him for two years. Again the complainant never sued her. She then married to a fourth man and she had been married with him for five (5) years now.

The defendant’s witness Alu Y. Taliyand in his affidavit said that both parties appeared before Surinki Village Court at Wabag, Eng Province because the complainant was no longer looking after the defendant and her daughter’s daily needs. At the Village Court hearing the complainant told the Court that he no longer wanted the defendant to be his wife.

The defendant argued that she was totally ignored by the complainant for a period of 11 years. And that the complainant’s coming to Port Moresby in the year 2003 was not for the purposes of searching for the defendant but for his own joy visits with his new wife. The defendant contested that she is not liable for whatever costs the complainant incurred in coming to Port Moresby in the year 2003.

Having heard and considered the evidence as presented by both parties, I am satisfied that they were customarily married in 1991 back in their home at Enga province. And I find the evidence of the defendant to be more convincing than that of the complainant. I am satisfied that the complainant left the defendant since 1993 without any means of support. The complainant’s trip to Port Moresby in the year 2003 was for his own private trip. He did not come to Port Moresby in search of the defendant. Any expenses and or costs the complainant incurred in 2003 were not costs incurred for the purposes of him in searching for the defendant. For the reasons given above I find that the defendant is not liable for the complainant’s expenses incurred in the year 2003. The case against the defendant be dismissed.

Ordered accordingly