Komia v Jack [2009] PGDC 36; DC905 (21 May 2009)

DC905

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]
SITTING IN ITS CIVIL JURISDICTION

COMPLAINT NO 10 OF 2009

BETWEEN:

PHILIP KOMIA
COMPLAINANT

AND

MARIA JACK
DEFENDANT

LIHIR: B. TASIKUL
2009: MAY, 21

JUDGMENT

TASIKUL, BRUCE: This matter came before me by way of summon upon complaint in which the complainant is claiming K4000.00 being money he paid as bride price for the defendant. He claims that he is no longer married to the defendant therefore he wants a refund to his money.

However the defendant also filed a cross claim claiming K2500.00 being money she loaned to the complainant for the purchase of a vechile. The complainant admitted owing the defendant the amount as claim. He claims that he would repay her money as soon as they refund his bride price money.

I will first deal with the substantive matter before going to the cross claim. Both defendants come from Southern Highland Province in which they met each other in Lihir where they both decided to get married. The complainant paid K4000.00 to the defendants relatives as bride price.

Their marriage did not last long as after just a month problems started creeping into their marriage. The complainant alleged that the defendant with her relatives started pestering him and takes fight with him. There were occasion the defendant would abusive him in public place. Because of this the complaint decided to leave her.

The defendant rebuked his claims saying that the reason why they were after him because he own them money which he promised to repay but failed. There is no doubt that the complainant did pay K4000.00 bride price. The issue now before this court is: Is whether or not the complainant is entitled to refund to the bride price payment.

There are no statutes governing bride price as this a customary matters which are off course be deal with through our customary laws. Both parties are from the same province of Southern Highlands; therefore their custom must be applied to this matter. However they were no witness called by either of them to give evidence related to their customs in such situation.

To guide this court to reach a fair decision I refer to a similar case of KERE V TIMON [1990] PNGLR 103 where his honor Los J held:

(1) Any customs related to bride price payment must be applied within the general constitution and legal framework of the country.

(2) The custom of bride price payment cannot within that framework entitle a husband to do what he likes with his wife.

(3) According, where there is a breakdown of a marriage in respect of which bride price payment has been made, a major factor in considering whether there should be any repayment of bride price is where the fault lies. Other factors include custody of the children and fairness.

What his honor is saying is that if bride price is to be returned the court must satisfy itself as to who is the cause of the problem. In applying this principle on this matter I am satisfied that both parties are pointing fingers at each other. One is saying that the defendant is the cause of the problem while the other maintained that she is still the wife.

I am satisfied from the evidence that both parties have been living apart from each other for sometimes now. The complainant does not want to return back to the defendant if that is his wish then he cannot force to return. Their marriage did not last long so there were no children born in their relationship. The defendant also has never lived with the complainant as the complainant lives in the camp whilst she resides with her relatives.

However the complainant must bear responsibility to his own doing he should have chose properly whether he really wanted to marry her. He cannot just use a woman and then leave her and asked for the return of bride price. I do not think it is fair for the bride price be return as I has alluded that the complainant has himself to be blame and held responsibility for his own action.

I therefore take into consideration the following factors:

1 The parties since bride price was paid they have not been living together.

2 There was no child born to their relationship.

3 The defendant has not done any work for the complainant or his family as a wife.

4 Their relationship did not last long.

I therefore make the following orders:

1 That the defendants Maria Jack and Jacob repay 75% of the bride price that is K3000.00 and because the complainant still own the defendant K2500.00,the defendant will only pay him K500.00 The payment be made with seven days.

COMLAINANT IN PERSON
DEFENDANTS IN PERSON