Ponje v Karap [2020] PGDC 49; DC5038 (23 November 2020)

DC5038

PAPUA NEW GUINEA

IN THE FAMILY COURT OF JUSTICE

HOLDEN AT

PORT MORESBY DISTRICT COURT

In the Matter of Lukautim Pikinini Act 2015

FC# 233 of 2020

Between:

REGINA PONJE

Complainant

And:

BOMAI KARAP

Defendant

His Worship Mr. E. Komia

10^th November 2020, 13^th November 2020 and 23^rd November 2020

Counsels for the Complainant: in person

Counsels for the Defendant: in person

Complaint & Summons for Custody and maintenance – when is a desertion a constructive desertion – equity and justice demands equity and justice to be performed by the parties and if one is coming to court with unclean hands, equity and law dictates that such litigants cannot be granted equity and justice.

Legislations Cited

Lukautim Pikinini Act 2015

Case Laws

Siiwen v Agnus [2014] PGDC 1; DC2052 (22 May 2014)

Mini v Nele [2020] PGDC 8; DC 4044

Kamuta v. Sode [2006] PGNC 9; N3067

Kelly Kerua v. Council Appeals Committee of the University of Papua New Guinea (2004) N2534

Paul Sireh v. Miai Larelake (2007) N3181

Danny Taka v. Dr. Samson Amean (2006) N3070

1. INTRODUCTION
   

1. This is a proceeding filed by the complainant seeking maintenance orders for four children against the defendant, by the complainant. The proceeding is filed pursuant to s. 108 of the Lukautim Pikinini Act 2015.
   

2. FACTS.
   

2. The facts of the cases are summarized as follows:

2.1 The complainant is the customary wife of the defendant. They were married in 2008, and have four children.

2.2 In 2012, the complainant married another woman, and separated from the defendant because of the complainant’s aggressive behavior and continuous verbal and physical assault.

2.3 The complainant lives in the institutional house at Bomana, and has chased the defendant out of the house. The defendant lives at a block in eight mile with his second wife.

2.4 The defendant’s bank account card has been in the complainant’s custody and he has never taken it away from her. In 2017, the defendant was terminated from employment because of the complainant laying complaints with the police hierarchy for reasons only known to herself.

2.5 In 2019, the defendant was reinstated, and since his reinstatement, he has not given any money to the complainant but has bought the food rations and relevant necessary items for the house. Now the complainant sues for maintenance after she was the cause of the defendant’s suspension from the force.

100. ISSUE
     

3. The complainant seeks the following remedies in her summons and complaint, in that the defendant pays fortnightly maintenance of K600.00 (K150.00 each child) for the said four children pursuant to s. 108 of the Lukautim Pikinini Act 2015.
   
4. The above claims can be summarized into two issues for determination by this Court, which are as follows:
   
   1. Whether the Defendant is liable to pay maintenance for the said five (5) children.
      
   2. Whether the Defendant is liable to pay maintenance for the complainant.
      

4. EVIDENCE
   

5. The complainant relies on her affidavit filed on 01 September 2020, and 19^th October 2020, whilst the defendant relies on his affidavit filed on 12^th October 2020.
   

5. DISCUSSIONS ON FACTS AND LAW
   

6. The complainant claims that, the defendant has not been providing food and money for herself and the four children since he deserted the house in 2012. She further claims that the defendant directed all his focus and attention on her new wife and lived with her.

The defendant contends otherwise, and stated in his affidavit that the reason for him to move out was a result of constant verbal and physical abuse given to him by the complainant. He states that although he is employed with Royal Papua New Guinea as a police constable, he has never had the benefit of enjoying his salary and institutional house. Those perk and privileges of his employment were taken by the complainant.

7. The defendant was removed from the police force as a result of the complainant laying some complaint with the Police Department, and later reinstated in 2019. It is established that the defendant since his reinstatement has not given any form of cash to the defendant, but has bought food rations and other household necessities on fortnightly basis.
   
8. The complainant at times also goes to the defendant and his second wife’s residence at eight mile and often argues with the wife and makes provoking statements. This to my mind is a resemblance of the kind of character the complainant has. Can this be an instance where the complainant is coming to court with unclean hands?
   
9. The principles of coming to court with unclean hands have been widely discussed in our jurisdiction. In the case of Mini v Nele [2020] PGDC 8; DC 4044 (23 September 2020), I discussed the principles of unclean hands and found the applicant to have come to court with clean hands, in the light of an existing IPO proceeding that was still on foot in the District Court. In that case, I cited relevant national court cases and made the following remarks;
   

In the case of Kamuta v. Sode [2006] PGNC 9; N3067, the applicant was a student at University of Papua New Guinea when he was employed as a Legal Officer for the Internal Revenue Commission (IRC). He was terminated from employment as a legal officer with the Internal Revenue Commission in 2001, when he was found to have occupied that office without any law degree qualification, neither being admitted as a lawyer. The applicant appealed the matter to Public Service Commission (PSC) and PSC deliberated on the issue and on 12^th January 2004 wrote a letter to IRC to reinstate the applicant. The IRC refused to give effect to the PSC decision, and the applicant took the matter to court by way of judicial review seeking mandamus order for the Court to compel the IRC to give effect to the decision of the PSC. His Honor, Injia, DCJ (as he then was) in dealing with that matter, declined the judicial review application and stated as follows;

“He held himself out as having undertaken and completed his Law Degree between 1994 and 1998 when in fact he was a final year law student in 1999. Equity will not permit him to the reliefs he seeks on this kind of misrepresentation.

Equity will also not permit him to be appointed to a position in the public service and to enjoy or derive benefits from that position to which he is not legally qualified to occupy in the first place.”

This basically means that, the conduct of the parties prior to the proceeding and during the course of the proceeding is paramount to consider whether someone is coming into court with unclean hands or not. There are other cases also in the National Court that decides on this issue, such as Kelly Kerua v. Council Appeals Committee of the University of Papua New Guinea (2004) N2534 ; Paul Sireh v. Miai Larelake (2007) N3181 and Danny Taka v. Dr. Samson Amean (2006) N3070

10. In applying the principles discussed in the cases above, I note the following;
    
    • - The complainant had held the save card of the defendant since 2008, until his suspension in 2017
    • - The complainant had been residing in the institutional house to the exclusion of the defendant, and she had complained and argued with the defendant that t was not his home and he should not set foot in the premises of the institutional house.
    • - Due to that, the complainant has not been able to visit his children
    • - Defendant had only been reinstated in July 2019, and since then, he has been buting food and providing the basic necessities for the house.
    • - Complainant to date has been constantly nagging and harassing the defendant and the defendant being a very shy guy does not retaliate.
    • - It is the complainants doing that resulted in the defendants job suspension in 2017.
      
11. I also note that, the complainant wants the defendant’s entire pay to go to her. That to my mind is selfish and unreasonable. The complainant’s conduct resulted in the defendant moving out of the house. Her actions have caused the desertion, and is tantamount to ‘constructive desertion’.
    
12. In all fairness, I am of the view that the complainant is to be blamed for all the dilemma she is going through. I am also of the view that the defendant has not in any manner deserted his children, but has been forced to remarry and live outside of his own institutional house, which is provided for him, as a result of the complainant’s behavior. The complainant is living in that house, and continues to batter the defendant with all her misdeeds.
    
13. Essentially this Court finds that the complainant is coming to Court with unclean hands, and as such, equity and justice demands one to do equity and justice before equity and justice is done to the person seeking it. In Siiwen v Agnus [2014] PGDC 1; DC2052 (22 May 2014), My Senior Brother Magistrate, His Worship Mr. Tatakali in his judgment stated:
    

“It is a general rule that equity does not aid a party at fault. This maxim has been repeatedly expressed that no one is entitled to the aid of a court of equity (or law for that matter) when that aid has become necessary through his or her own fault....”

14. The courts cannot be used as a medium to advance a selfish agenda, and to my mind, I think the claim is really an act of selfishness, and coupled with a motive to make the defendant suffer more, after all that he has been put through by the complainant.
    
15. Therefore, there is no reason and no convincing evidence establishing that the defendant had deserted the complainant or her children. This court is not convinced; the complainant has made out a case against the defendant, neither for maintenance, nor for custody.
    

THE COURT THERFORE ORDERS THAT:

1. The application for maintenance of the four children is dismissed.
2. The application for maintenance of the complainant is dismissed.
3. The defendant is at liberty to return to the institutional house at Bomana Police Barracks, and the complainant is ordered to give vacant possession forthwith.
4. The complainant is permanently restrained from making any verbal, bodily gestures or actions to provoke or cause any form of harassment, intimidation, and threatening against the defendant.
5. The defendant shall have full custody of all the children, and the complainant shall have reasonable access to the children, and such access shall be granted at certain time and location which the parties shall mutually agree from time to time.
6. Cost of the proceeding to be borne by parties.
7. Time is abridged.

By The Court.