Lata v Kisokol [2020] PGDC 47; DC5035 (13 November 2020)

DC5035

PAPUA NEW GUINEA

IN THE FAMILY COURT OF JUSTICE

HELD AT

PORT MORESBY DISTRICT COURT

In the Matter of APPEAL OF VILLAGE COURT ORDERS

VCA NO. 19 of 2020

Between:

ROSELYN LATA

Complainant

And:

DAGEMA JACK KISOKOL

First Defendant

CHAIRMAN OF HOHOLA VILLAGE COURT

Second Defendant

His Worship Mr. E. Komia

13^th November 2020

Counsels for the Complainant: in person

Counsels for the First Defendant: in person

Counsels for the Second Defendant: in person

Appeal against village court orders seeking dissolution of marriage – grounds of divorce for customary marriages (highlands custom) - forms of child neglect and abuse – principles of natural justice a paramount consideration – all evidence must be seriously considered – chronic adulterous lifestyle – constant verbal and physical abuse – relationship with wife and in law deteriorated – no reasons to maintain marriage – village court order restoring marriage set aside – village court to order dissolution of marriage.

Legislations Cited

Case Laws

Woodman v. Undai [1999] PGNC 62; N1868 (18 June 1999)

1. INTRODUCTION
   

1. The Appellant had instituted a complaint at the Hohola village court seeking for a dissolution of marriage. The basis of the complaint was that the respondent was involved in an adulterous affair. The village court made an order for the marriage to be restored and for the respondent to pay a compensation of K2000.00 to the appellant and the appellant to return to the respondent’s house.
   
2. The appellant is aggrieved with that decision, and appeals the decision. This is the Courts ruling.
   

2. FACTS.
   

3. The facts of the cases are summarized as follows:
   
   • 3.1 The appellant is the wife of the respondent, and they were married in 2014.
     
   • 3.2 In 2014, there was a first instance where they argued over a key belonging to Gordons Guest House found inside his trousers pocket. The appellant packed up to leave and the respondent broke down on his knees and cried, begging for forgiveness. This won the appellants heart and she decided to stay back. In the same year, the appellant was assaulted by the respondent and later admitted to Paradise Private Hospital after she was seen arguing with the respondent’s former girlfriend.
     
   • 3.3 In March 2017, the respondent paid a bride price of K35, 000.00 and ten pigs. He returned to Port Moresby and later on in August 2017, the respondent returned to Port Moresby, and never sent them any ticket until August 2017, when the appellant and her daughters returned to Port Moresby.
     
   • 3.4 In December 2017, the appellant found out through the respondent’s Facebook account that the respondent was having another relationship with one Madlyne James Ediwako, and she was eight months into her pregnancy. When confronted by the appellant, the respondent denied everything in their entirety.
     
   • 3.5 On 26 November 2020, she instituted the first village court proceeding at Hohola, claiming compensation for adultery. The respondent admitted everything, and he said that he had a one night stand with Madlyn James, and further stated that the child is not his.
     
   • 3.6 From the attachments of evidence which were snapshots taken from Facebook, the respondent did have relationship with Madlyne, and was indeed the father of the child. Often times, there were arguments through messenger and Facebook showing that they were in essence having arguments like ordinary couples do, and further to that, they treated each other like couples.
     
   • 3.7 In 2019, the appellant was again assaulted, but she did nothing. On 23^rd July 2020, the respondent came home drunk and assaulted the appellant by cutting of her braids with a kitchen knife. After putting up with the continuous adulterous and aggressive behavior of the respondent, the appellant instituted Village Court proceedings again at Hohola, this time seeking to dissolve the customary marriage.
   • 3.8 Nevertheless, during the hearing, those evidences of adultery and physical and verbal assaults were overlooked and the respondent was ordered by the second respondent to pay a compensation of K2000.00.
     
   • 3.9 On 07^th September 2020, the village court chairman (second respondent) made orders for the appellant to return to the respondent’s house, and that the respondent shall pay her a compensation of K2000.00.
     
   • 3.10 The respondent is aggrieved with that decision and appeals that decision
     

100. ISSUE
     

4. Should this Court uphold or dismiss the Appeal?
   

4. EVIDENCE
   

5. The appellant and the respondents filed their affidavits respectively. The appellant relies on the following affidavits:
   
   • - Statement of Roselyn Lata annexed to the Notice of Appeal which attaches all the Facebook communications between the respondent and Madlyne James Enihako, which was also produced before the Hohola village court during the hearing.
     
6. The respondents rely on the following affidavit:
   
   • - Affidavit of the first respondent filed on 07^th October 2020, which attaches his statements and defense.
     

5. DISCUSSIONS ON FACTS AND LAW
   

7. Village Courts are empowered under the Village Courts Act to determine and decide on matters concerning customary laws. Issues involving dissolution of marriages such as the matter, subject of this appeal is an example of the powers bestowed on the village courts, although there is no clear provision providing for it.
   
8. The above proposition was discussed and held in the case of Woodman v. Undai [1999] PGNC 62; N1868 (18 June 1999). The court in that case held amongst other orders that;
   
   • 8.1 there is no express statutory power in a village court to dissolve a customary marriage or order compensation payment following such a dissolution of customary marriages
     
   • 8.2 however, there is general power under s. 47, 57 and 58 of the Act, upon which the village court derives jurisdiction to dissolve customary marriages and order compensation following such a dissolution.
     
9. This court notes that apart from ss. 47, 57, and 58, section 48A allows the village courts to determine marital status of persons, and this to my mind is indicative of the village courts power to also decide on dissolution of marriages. I also take into consideration the reasoning’s of His Honour, Justice Sawong in the Woodman case (supra), where he states:
   

“there is therefore an ambiguity as to whether the village court, in the absence of any express provision has jurisdiction to dissolve a customary marriage....... It is trite principle of statutory interpretation that “if the words of a statute are themselves precise and unambiguous, then no more is necessary than to expound on those words in their ordinary and natural sense” Wemas v. Kepas Tumdal [1978] PNGLR 173 at 176 per Wilson J adopted in SCA No. 6 of 1984 Re: Provocation [1985] PNGLR 31. Where however the words of the statute is or are ambiguous or unclear, it is the duty of the Court to construct those words in a fair and liberal manner so as to achieve he purpose intended by the legislature – See PLAR No. 1 of 1980 [1989] PNGLR 326.

10. Nevertheless, be the above as it may, the appellant argues that the Village Court erred in three fundamental areas when it arrived at its decisions, and those grounds are as follows:
    
    1. The court was not properly constituted.
    2. She was not given the opportunity to be hear (principles of natural justice were not observed)
    3. The Court exceeded its jurisdiction or its powers.
       
11. I will deal with the three grounds of appeal on their own, and establish in this ruling whether the grounds of appeal can stand or the appeal to be quashed.
    
    1. GROUND 1 OF APPEAL: THE COURT WAS NOT PROPERLY CONSTITUTED
       
12. During the course of the hearing, the court on the venue and the location of the village court. From the record that is placed before me, I note that the village court sitting at that time was a joint sitting and it comprised of village court officers from Hohola, Six Mile – Saraga, and Erima Village Courts.
    
13. The decision was made by officers who were known peace officers and village court officials from those three village court jurisdictions. Parties also agreed that they were mandated village court officials.
    
14. So then, when does a court become improperly constituted? S.56 of the Village Court Act provides that;
    

56. Joint sittings.
(1) Where—

(a) a dispute or the subject matter of a dispute extends to the area of more than one Village Court; or

(b) parties to a dispute are normally resident in the area of

more than one Village Court; or

(c) it appears to the Village Magistrates or the Peace and Good

Order Committee that a dispute may cause a breach of the peace,

the Village Courts may—

(d) by agreement between the Chairmen; or

(e) if there are no Chairmen, by agreement between the Village

Magistrates; or

(f) at the direction of the Provincial Supervising Magistrate; or

(g) at the request of the Peace and Good Order Committee,

hold a joint sitting for the purpose of dealing with the dispute.
(2) A joint sitting shall consist of—

(a) not less than two Village Magistrates from each Village

Court referred to in Subsection (1); and

(b) a Visiting Village Magistrate.

(3) A Visiting Village Magistrate shall be such Village Magistrate
as—

(a) the Chairmen, or, if there are no Chairmen, the Village

Magistrates, referred to in Subsection (1), by agreement determine; or

(b) the Provincial Supervising Magistrate, where there is no

agreement under Paragraph (a), directs to sit.

(4) The Village Magistrates constituting a joint sitting shall appoint
one of their number to preside.

(5) The Village Magistrates constituting a joint sitting may sit outside
the area of the Village Court to which they are respectively
appointed.

(6) A joint sitting under Subsection (5) has jurisdiction to deal with a
dispute under this Division.

(7) Subject to this section, this Act applies to and in relation to a joint
sitting as though—

(a) it was a sitting of a single Village Court established for the

combined areas of the Village Courts concerned; and

(b) the Village Magistrates were Village Magistrates for the

combined Village Court.

15. On the record before this court, the village courts were constituted of the following village court officials;
    
    1. Chairman, Hohola Village Court – Mr. William Ipu (Enga)
    2. Deputy Chairlady, Hohola Village Court - Mrs Nancy Jacob (Goroka)
    3. Senior Official Hohola Village Court - Mr. Luke Tomo (Enga)
    4. Chairman, Erima Village Court - Mr. Gabriel Sinewai (Simbu)
    5. Six Mile Saraga Village Court - Mr. Tolpari Toea (Simbu)
       
16. The above to my mind, there was a fair composition of what is prescribed for under s.56 of the Village Courts Act. I am therefore of the view, that the composition of the village court officials was lawful, and it cannot be said to be improper. This ground of appeal must fail.
    
    2. GROUND TWO – A PARTY WAS NOT GIVEN REASONABLE OPPORTUNITY TO PRESENT ITS CASE PERSONALLY OR BY A REPRESENTATIVE (NOT A LAWYER)
       
17. The above ground of appeal to my mind relates to the ‘principle of natural justice’ in which the principle demands courts, tribunals and quasi-judicial bodies to take into consideration the principle to act fairly in all manner.
    
18. Section 59 (2) and (3) of the Village Court Act gives rise to the principle of natural justice to be observed in the village court, by virtue of the way the provision is worded, in which it states;
    

59. Evidence, etc.
(1) Subject to Subsection (2), in any proceedings before it a Village Court

shall not apply technical rules of evidence but shall admit and consider such information as is available.

(2) The powers and procedures of a Village Court shall be exercised in
accordance with the principles of natural justice.

(3) Without limiting Subsection (2), a Village Court must do all of the

following:

(a) act fairly and impartially; and

(b) give all parties an equal opportunity to be heard; and

(c) give all parties an opportunity to present their case,

including the calling of witnesses; and

(c) explain the reasons for the decisions made by the Village

Court.

19. The appellant’s argument is that the village court officials in the joint sitting failed to observe the above principles under ss.59 (2) and (3). Furthermore, the village court failed to give its reasons why it ordered the appellant to return to the respondent. I note from the appellant’s submission that the village court officials also failed to hear the reasons and arguments put forward by the defendant when she argued that the respondents adulterous was not a one off thing, but a continuous act which results in her being constantly abused and harassed both physically and verbally.
    
20. The other striking thing, this court notes is that, the appellant had provided evidence in the village court that, the respondent had been lying to her to believe that he had no other child from any relationship. But the evidence proved that there was an adulterous affair continuously going on. The other factor the village court failed to consider is that, this was not the only instance where the village court had deliberated on the adulterous conduct of the respondent, rather, there were other instances which forced the appellant to dissolve the marriage.
    
21. What troubles me is that, if the appellant and the respondent have never had such problems, and this was a one off thing, the orders for parties to keep the marriage and for the appellant would serve well. In such instances where parties have become bitter about each other’s actions, and where the respondent in his conduct by the face book and messenger texts adduced as evidence before this court, which was also presented before the village court, establishes that he still maintains communication with Madelyn James. The nature of the relationship seems to be intimate. That was not considered, and that amounted to a miscarriage of justice.
    
22. Adultery according to custom in the highlands is a ground of divorce. It may be once or if it is done continuously. The custom in the highlands uniformly is that, if the husband or the wife has committed an act of adultery or a form of physical abuse at the most grievous stage, then, compensation is ordered, if the other party feels offended. On the other hand, if the act of adultery or assault is frequent and spontaneous, custom calls for dissolution of the marriage, if the suffering party requests so, and custom gives paramount consideration to the suffering party and the stress and hardship the victim is put through.
    
23. In Re Raima and the Constitution, Section 42(5) (unreported National Court judgment, Mt. Hagen, 15 April 1991, Kidu CJ in his decision which concerned an appeal from a village court decision to imprison a woman for an act of adultery, after she had left the marriage stated after examining the village court records, that;
    

“the order does not say why the compensation was ordered to be paid by her. Was it to be paid because she broke the marriage or was it to be repayment of the bride price paid for her by the husband of her 3- 4 months? On the face of it, it would appear to be merely for her speaking strongly of breaking her marriage. This is, of course, wrong in law. Whether under introduced law or customary law a woman has the right to break her marriage. It is her right and she should not be penalized for that. If a woman breaks her customary marriage, the village court only has the right to consider repayment of bride price according to customary law. A village court does not have the power to penalize her for breaking the marriage.^[1] (emphasis mine)

24. Upon a closer scrutiny to the culture and custom of the appellant and respondent, it is common practice that adultery is an act that attracts divorce and compensation. Often it would be the village courts that look to the wish of the aggrieved party, and if the aggrieved party seeks compensation, such may be ordered, but if that is not the case, the village courts would order for dissolution of marriage.
    
25. Another important factor is the acquiescence of the relatives. As indicated, the point of time at which the separation matures into “divorce” may often be a matter of conjecture and controversy, especially where the approval or at least acquiescence^[2]. Essentially, upon closer look at the submission by the appellants, it seems that the relationship between the respondent, herself and her family has soured over time. The appellant’s relatives are somewhat pushing for divorce, and as such, where a relationship has deteriorated, the courts cannot simply reinstate a deteriorated relationship. It is the interests of all to prevent separation, but everyone also wants to avoid serious injury, beating or suicide of the unhappy wife and husband.^[3]
    
26. With respect to this appeal, this court notes that the village court took into considerations the factors such as the bride price, and the welfare of the children, but not the amount of stress, pain, anxiety and mental stress the appellant was going through. Those, were minor considerations, which I think is an essential element overlooked by the village court. The respondent’s actions and the bearing it would have on his children and family (especially the respondent) over time, were never considered. Evidence establish that the appellant had been putting through all the situation, and she has had enough. The village court failed to consider that, the relationship between parties have soured and come to a stage where they would end up facing off, resulting in either party being victims.
    
27. The safest decision the village court could have arrived at was for dissolution of marriage, and for the custody of the children to be determined.
    
    3. GROUND THREE – THE COURT EXCEEDED ITS JURISDICTION OR ITS POWERS
       
28. This ground is quite tricky in the sense that the issue of whether the Court had the powers to order the appellant to return to her matrimonial home is proper or not. In construing the Village Court Act, this court notes that there is not such powers bestowed on the village court except that the village courts have the power to make orders with respect to customary marriages and bride price.
    
29. To my mind, the village courts can make orders in so far as the marital status is concerned, and that is to either declare the marriage to be dissolved or otherwise, but cannot go to the extent of ordering a party to return to his or her partner. that to my mind would be an infringement of one Constitutional Right to freedom of choice. It is incumbent on the parties to choose to return to the matrimonial home or not.
    
30. In the light of all the foregoing discussions, this Court is of the view that although the first and third grounds of appeal were complied with, the second ground of appeal would have in essence been a very critical consideration, and in the light of the issues addressed by this Court, I am of the view that this appeal must succeed, as those most critical aspects were ignored.
    

THE COURT THERFORE ORDERS THAT:

1. The Orders of Hohola Village Court Joint Sitting made on 07^th September 2020 is quashed, and the Joint Sitting at Hohola is to order for dissolution of marriage.
2. The Hohola Village Court Joint Sitting shall decide on the amount of bride price that should be refunded to the respondent by the appellant.
3. Parties are ordered to keep the peace and refrain from conducting themselves in manner that is threatening, intimidating, abusive or violent to each other.
4. Cost of the proceeding to be borne by parties.
5. Time is abridged.

By The Court.

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^[1] Principles of Family Law in Papua New Guinea, Jessep and Luluaki
^[2] ibid
^[3] ibid