Pondrilei v Tau [2008] PGDC 102; DC823 (11 June 2008)

DC 823

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

FC 28 of 2007

BETWEEN

NAUNA PONDRILEI
Complainant

AND

RICHARD B TAU
First Defendant

AND

STELLA C. LOW
Second Defendant

Lae: C Inkisopo

2008: 10th & 11th June

Legislation referred to: Adultery And Enticement Act, District Court Act.Marriage Act

Action for adultery – No Part V Marriage – No Customary marriage – “Status Marriage”. Application for dismissal of proceedings for non-disclosure of reasonable cause of action – whilst “Status Marriage” subsisting subsequent entry into of Part IV Marriage – appropriate case for transfer to the National Court under Section 24 of the District Courts Act.

Cases cited:

(1) Elma John & Luke Mare –vs- John Nake
Appeal Nos. 501 & 502 of 1998

(2) Kopland Oa & Esther Korua –vs- Nelson Korua
Appeal Nos. 32 & 33 of 1999

JUDGMENT

C. Inkisopo: This is a ruling on Defendants’ Application to dismiss entire proceedings on grounds of non-disclosure of reasonable cause of action.

2. Defendants through their lawyers of Kunai & Co. Lawyers through Counsel Mr Bob Waipek made this application by way of a Notice of Motion filed/dated 8th October, 2007.

3. Today on 10th June, 2008 Mr. Waipek moves his clients’ application by way of that motion of 08/10/07 which was pending ever since it was filed back then. Why it was not heard as early as it was filed or soon thereafter is beyond me but, as it seems, the Defendants’ application is now finally before this Court and has finally been moved and arguments for and against the application have been fully received from both Counsel speaking for their respective clients’ cases.

4. In a nutshell, Mr. Waipek submits that the entire proceedings should be dismissed as having have disclosed no reasonable cause of action. Counsel in support of the application refers to the supporting affidavit material sworn to by the First Defendant, Mr. Richard B Tau filed/dated 8th October, 2007. The First Defendant in his affidavit raised the crucial issue of “No Marriage” and that on the alleged date, he was duly legally married to the Second Defendant – hence there can have been no act of adultery between the Defendants within the meaning of the Adultery & Enticement Act.

5. Mr. Tabai responds by submitting to the contrary though in the main conceding that there is no legal nor customary marriage between the parties, but still proceeds to contend that there was this existing “status marriage” subsisting between the Complainant and the First Defendant that was current when the alleged act of adultery took place on 28/12/06. In making that submission, Mr. Tabai refers to two National Court decisions delivered by his honour Mr. Justice Injia (as he then was). The first is the case of Elma John & Luke Mane –vs- John Nake (Appeal Case Nos. 501 & 502 of 1998) and the second is the case of Kopland Oa & Esther Korua –vs- Nelson Korua (Appeal Nos. 32 & 33 of 1999). The first case of Elma John is the case that talks about the “third form” of marriage situations in PNG – that is the so-called “status marriage”. In adultery claims, the Elma John stands to say that the claimant can prove “status marriage” to found or establish a claim for adultery. It goes to show that in a claim for the cause of adultery, the claimant may prove or establish one of three (3) types of marriage relationships recognized under the law and succeed – that is the Part IV Marriage (Registry Marriage), Customary and the so-called “status marriage”.

6. Mr. Tabai was emphatic that the relationship in issue between the Complainant and First Defendant is one of “status marriage” relationship which was subsisting when the alleged act of adultery took place on 28/12/06.

7. Mr. Tabai says that the Complainant and First Defendant who both hail from Manus Province had been living together as wife and husband for the past 22 years out of which relationship they have grown-up children as well as adopting several others. There is also evidence of witnesses who have filed affidavit material testifying of personal observations of Complainant and First Defendant to be behaving and conducting themselves as a married couple. Mr. Tabai was emphatic that the type of relationship in this case is one of “status marriage” that this Court should recognise as such for our present purposes and I must confess that I consider the relationship as one that Mr. Tabai submits to being so but for the reply and counter-submissions advanced by Mr. Waipek which gives this case a different dimension.

8. Mr. Waipek in reply raises two (2) important issues that shakes this Court as it considers finding itself in “deep sea” – “deep sea” in the sense that whilst I consider that I have no problem accepting that the relationship between the Complainant and First Defendant is one of “status marriage”, Defendants have produced in evidence a copy of a marriage certificate between one Richard Bartholomew Tau and Stella Christine Low solemnized by a Pastor Newman Watapi, a religious minister of a Church authorized to solemnize such marriages. In advancing his main and reply submissions, Mr. Waipek submits that whatever relationship Complainant had with First Defendant had, it had long ceased as of 14/12/06 when First Defendant told Complainant that their relationship was over when Complainant allegedly refused to go home to First Defendant’s village of Olowai to build the family house there. As Mr. Waipek says in his submission; whilst registry and customary marriages have their own built-in prescribed methods by which parties follow to terminate those categories of relationships, the “status marriage” does not have a type of process to follow to terminate such relationships – so in that context, his client was entitled to follow how and what he thought best to end the relationship and it was perfectly within his rights to call it quits to that so called “status marriage” relationship that may have existed prior to 14/12/06 between the Complainant and the First Defendant when Complainant allegedly refused First Defendant’s proposal for a family home to be built at Olowai village, Lorengau, Manus Province. So, as Mr. Waipek says, First and Second Defendants entered into a legal Part IV Marriage on 28/12/06 and that for all intents and purposes, there can not have been any adultery as they were by then legally married. There is therefore no subsisting marriage to contend with as the Part IV marriage of 27/12/06 superseded any prior existing “status marriage”– hence the claim discloses no reasonable cause of action to warrant the advancement of this case to the trial stage.

9. This Court considers this application to be touching the substance of the case itself to which I thought, the matter should have to have been allowed to go to a full-fledged hearing to consider the evidence in full as what Applicants/Defendants raise are matters of positive defence they have available to them under Section 9 of the Adultery and Enticement Act. But again, on hindsight, I am glad Counsel has raised this issue at this early stage of the proceeding when the Court has not gone into the full hearing stage when the hearing would have gone half or three quarters of the way after so much time and resources would have been expended only to find ourselves coming to grips with what I note to be an important and crucial issue pertinent and peculiar to the case on hand.

10. That is to say, on the face of the Complaint and the brief evidentiary material available before this Court there is discerned a reasonable cause of action disclosed in this claim. That is to say, I consider that the relationship between the Complainant and First Defendant is one of a “status marriage” and by all accounts, the alleged act of adultery that allegedly took place on 28/12/06 would seem to have been committed during the currency of the subsisting “status marriage” between the Complainant and the First Defendant. But then there comes into the equation the formal “Certificate of Marriage” between the Defendants that this Court must have to come to grips with.

11. This is where this Court earlier during arguments indicated to finding itself in “deep sea”. This is the reason for my remark that it was appropriate that this issue was raised at that early stage of the proceedings and not whilst we would have been half or three quarters of the way into trial – for if it were, I’m afraid I would still have to come to be grappling with this issue and arrive at still the same result.

12. The problem I would have to grapple with in this case with this issue hovering over head is as to how best to reconcile these issues – “status marriage” subsisting when subsequent entry into a Part IV marriage on 27/12/06 and still the subsequent alleged act of adultery on 28/12/06.

13. I thought I would have no difficulty making a determination in this case if there was no “Certificate of Marriage” between the Defendants to grapple with. My problem is; if I have to hold that the “status marriage” was still subsisting and the subsequent events of the new Part IV Marriage evidenced by the “Certificate of Marriage” of 27/12/06 and the subsequent alleged act of adultery on 28/12/06, it would seem to mean that I will have overlooked the existence of this Part IV Marriage which course will be tantamount to holding the Part IV marriage of 27/12/06 to being void – in which realm this Court lacks jurisdiction to encroach upon and determine the voidability or otherwise of this Part IV marriage of 27/12/06 evidenced by the Certificate annexed as Annexure “A” of the supporting affidavit of the First Defendant sworn and filed dated 08/10/07. That is the problem I consider myself to be grappling with when I remarked during submissions to finding myself in “deep sea”. To just give the matter a perfunctory consideration and overlook the existence of the latter event of the statutory Part IV Marriage in existence between the Defendants dated 27/12/06 would be a very serious amiss on my part as a lower court of limited jurisdiction. I am fully cognizant of the limitation on my part as a lower court of limited jurisdiction. To make any determination on the question of voidability or otherwise of the Certificate of Marriage between the Defendants is an area I consider lacking the jurisdiction to stray into. To determining this matter of the claim for adultery between the parties on the basis of a “status marriage” (between the Complainant and the First Defendant) is a matter I consider myself having little difficulty but I face real difficulties when it is seen in the face of the certificate of marriage between the Defendants – and I have real difficulty reconciling these two (2).

14. Hence, I consider that the arguments presented by both Counsels have advanced this case to a stage where I find myself truly in “deep sea” that I consider this Court lacking the jurisdiction to deal with this matter – for to hold that the claim for adultery has been proven is to fly in the face of hard facts – the Part IV Marriage entered into between the Defendants solemnized by the Certificate of Marriage dated 27/12/06 which realm is not this Court’s to stray into as this is a Court of limited jurisdiction (Section 21 of the District Court Act), Chapter No. 40). And by that fact and on the basis of the foregoing discussions and in my humble view I consider it inappropriate for this Court to deal with this matter to conclusion. The way to get around what I consider to be the hurdle is for this Court to invoke the provisions of Section 24 of the District Courts Act, Chapter 40 by transferring the entire proceeding up to the National Court for that Court to deal with and make appropriate determinations under the particular circumstances of this case – as I consider this case and the issues spawned by it to be such that it should be heard and determined before the National Court at first instance.

I therefore order as follows:

(1) Application to dismiss proceedings is declined.

(2) The entire proceedings are hereby transferred to the National Court for hearing and determination by that Court including issuance of orders of declaratory nature as and where it deems meet under Section 24 of the District Court Act, Chapter No.40.

(4) Costs of these proceedings thus far to be in the cause.

Counsel:
Lawyer for Complainant – Mr. Bilding Tabai of- Tabai Lawyers
Defendants in person – Mr. Bob Waipek of Kunai & Co. Lawyers