Siki v Siki [2021] PGDC 13; DC5060 (2 February 2021)

DC5060


PAPUA NEW GUINEA

IN THE DISTRICT COURT OF JUSTICE

HOLDEN AT

PORT MORESBY DISTRICT COURT

In the Matter of An Appeal From Erima Village Court Proceeding

VCA No. 33 of 2020

Between:

ERICK SIKI

Appellant

And:

ELICE SIKI

First Respondent

PETER PYAWA – CHAIRMAN OF ERIMA VILLAGE COURT

Second Respondent

His Worship Mr. E. Komia

10^th December 2020, 11^th December 2020 and 02^nd February 2021

Counsels for the Complainant: in person

Counsels for the Defendant: in person

Appeal against Village Court Orders – dissolution of customary marriage – distribution of property – principles of natural justice – powers of village court in determining distribution of property – property acquired through collective effort of the appellant and the respondent – village court jurisdiction in terms of the property distribution between parties, subject of customary marriage.

Papua New Guinea cases cited

Woodham v Undai [1999] PGNC 167; [1999] PNGLR 163

Vurr v Vurr [1996] PGNC 27; N1480 (6 September 1996)

Premdas v The State [1979] PNGLR 329

Debepmin v Madang Urban Local Level Government N6587" title="View LawCiteRecord" class="autolink_findcases">[2017] PGNC; N6587,

Jopam Ltd v Kaptel [2009] PG DC67; DC 890

Kiripo v Anori [2008] PGDC 132; DC 848

Ango v. Hides Gas Development Company Ltd [2020] PGNC 101; N8265

Legislations

Village Courts Act

Customs Recognition Act

Matrimonial Causes Act

A. INTRODUCTION

1. This is an appeal against a decision of Erima Village Court which ordered for dissolution of the appellant and respondent’s customary marriage, and the consequent distribution of the Matrimonial Properties, located at Wild Life Settlement. There were other village court decisions made prior to the orders for sharing of the matrimonial properties, but the appellant appeals specifically against the orders of 16^th July 2020, specifically recorded as Order No. 235414.
   
2. The Order was made for the property, specifically described as Green House to be handed over to the respondent, whilst the appellant was allowed to keep the other three properties at the same premises at Wild Life, and another one at Eight Mile Suburb.
   

B. FACTS

3. The facts surrounding the Appeal are quite complex, but the Court after hearing parties and from affidavits filed in court, established the facts, to be as follows.
   

3.1 The appellant and the respondent married under customary law around 1995 and have lived as husband and wife until 2020 when they started to live separate lives.

3.2 On 22^nd January 2020, the first respondent filed a complaint against the appellant by way of a Summons, registered at the Erima Village Court. The Summons sought orders for dissolution of the Customary Marriage, and subsequently for distribution of properties after the orders for dissolution of marriage.

3.3 On 01^st February 2020, second respondent after hearing parties adjourned the matter to, 15^th February 2020. The second respondent as Chairman of Erima Village Court heard the matter alongside six other magistrates namely James Irabu, Phillip Keru, Willie Madande, Rex Kuman and Vincent Neka.

3.4 On 25^th July 2020, the village court at Erima made orders for one of the properties described as Green House to be given to the respondent, and the other four properties to be kept by the appellant. The village court also made a third order that the properties would later be transferred to the children, and that the appellant and the respondent were only holding the properties and managing it for their five children.

3.5 The Appellant was present in all those various times when the proceedings were heard.

3.6 Both parties acknowledged and agreed that the properties do not belong to them, and they are not owners. They are only managing the properties for their children.

4. The appellant appealed against the Erima Village Court decision, and the grounds of appeal are as follows;
   

4.1 The village court acted in contravention of the Constitutional Law, Act or subordinate legislation in applying the law it did on the matter before it; and,

4.2 The Appellant was not given reasonable opportunity to present his case personally or by a representative (not a lawyer); and,

4.3 The presiding Magistrate had a substantial interest on the matter and had not disqualified himself from adjudicating the matter; and,

4.4 The court exceeded its jurisdiction when dealing with the issue of distribution of properties, when it clearly had no jurisdiction to deal with the issue or subject matter; and,

4.5 There was no reason given for the decision as provided for under S.93 of the Village Court Act.

C. ISSUES

4. These five grounds of appeal have become the issues for this Court to deliberate on. Ground number one (1) and ground number four (4) are similar, and as such, I will deal with them as one issue.
   
5. The issues therefore are:

5.1 The village court acted in contravention of the Constitutional Law, Act or subordinate legislation in applying the law it did on the matter before it, and, therefore the village court exceeded its jurisdiction when dealing with the issue of distribution of properties, when it clearly had no jurisdiction to deal with the issue or subject matter beforehand; and

5.2 A party was not given reasonable opportunity to present its case personally or by a representative (not a lawyer); and,

5.3 The presiding Magistrate had a substantial interest on the matter and had not disqualified himself from adjudicating the matter; and,

5.4 There was no reason given for the decision as provided for under S.93 of the Village Court Act.

D. DISCUSSION OF FACTS AND LAW

6. Issue No. 1 – Whether the village court acted in contravention of the Constitutional Law, Act or subordinate legislation in applying the law it did on the matter before it and, therefore the village court exceeded its jurisdiction when dealing with the issue of distribution of properties, when it clearly had no jurisdiction to deal with the issue or subject matter;
   
7. Village Courts are established by the Village Courts Act 1989, and has jurisdiction to deal with matters concerning disputes related to the custom of the locality where the village court sits. Those disputes also cover matrimonial disputes where the marriage has been recognized under native Papua New Guinean custom.
   
8. The jurisdiction of a village court in dealing with issues relating to the status of a customary marriage is provided under S 48 A of the Village Courts Act 1989.
   
9. The relevant provision that could be useful in such circumstance is Division 8, and specifically section 57 of the Village Court Act which states:

Division 8.—Law to be applied.

57. Application of custom.

(1) Subject to Subsections (2) and (3), in all matters before it a Village Court shall apply any relevant custom as determined in accordance with Sections 2, 3 and 7 of the Customs (Recognition) Act (Chapter 19).

(2) In applying the relevant custom, a Village Court must take into account the following:

(a) custom is not to be followed in a case if it would result in unfairness or would not be in the interest of the community as a whole; and

(b) custom is not to be followed in a case involving a woman or a child if it is not in the best interest of the woman or child; and

(c) if there is conflict between customs, a Village Court is to apply the custom that gives the most just outcome; and

(d) in deciding what custom to apply, a Village Court may have regard to any source of information.

^[1]

(3) Without limiting the legislative powers of Local-level Governments in any other law, a Local-level Government has the power to make laws declaring what is to be taken as the custom relating to any matter, and such a declaration is binding on Village Courts.

10. The provision (S.48 A) basically establishes that the village court can only decide or adjudicate on matters relating to customary marriages and where its status can be confirmed as divorced or married. The Act is silent on the Village Courts powers to decide over matrimonial properties concerning customary marriages. Nevertheless, this ambiguity in construing S.48A has been settled in the case of Woodham v Undai [1999] PGNC 167; [1999] PNGLR 163 in which His Honor Justice Sawong stated, that;
    

“Upon a plain reading of this provision, it is quite obvious that a matter involving customary marriage or dissolution of customary marriage would be or is covered by this provision. It is my view that this general power is wide enough to read into it that a village court had jurisdiction to deal with inter alia, customary marriages and customary divorces.”

11. This court is bound by the case of Woodham (supra) and therefore adopts the view that, when village courts are faced with such issues regarding matrimonial properties, the village court officials must revert to the customary norms and practices to guide them when adjudicating issues relating to sharing of matrimonial properties.
    
12. The provision makes it a mandatory requirement for the village court officials to define and apply custom in all its decisions depending on the circumstances of the case that is before it from time to time.
    
13. Further to that, the village court has the jurisdiction to deal with matters relating to custom. From dissolution of marriage to sharing of matrimonial properties acquired during the cause of marriage.
    
14. In the case of Vurr v Vurr [1996] PGNC 27; N1480 (6 September 1996) unreported judgement, Injia J, (as he was then) in deciding to refer the matter of customary marriage back to the Local (District Court) held that the issue of customary marriage, its dissolution and distribution of property should be determined in the Local Courts and village Courts. A closer look into the decision establish that the applicant in the Vurr case was given the option to either return to the National Court or for the matter to be dealt with according to the customary practices of the Melpa people either in the village court or the local (district) court.
    
15. This Court is therefore satisfied that the village courts have jurisdiction to deal with issues relating to customary marriage and part of it is to do with matrimonial properties. For this reason, the first and fourth ground of appeal collectively must fail.
    
16. ISSUE NO. 2 - Whether the appellant was given reasonable opportunity to present his case.
    
17. The Appellant argues that he was never given an opportunity to fully present his case before the decision was handed down by the Erima Village Court. He claims that, the village court proceeded to determine the matter when he had never responded to the complaint.
    
18. The principle of natural justice dictates and demands that every party must be heard. This is supported by various authorities, going back as early as the case of Premdas v The State [1979] PNGLR 329, in which it was discussed that the right to be heard is one fundamental principle of natural justice. It was also discussed in Premdas that “the principles of natural justice apply to such proceedings only to a limited extent, viz to the extent that the exercise of judgment must not be biased, arbitrary or capricious”.
    
19. In this appeal, the issue is specifically regarding the distribution of the properties that the appellant and the respondents had accrued over time during the tenure of their marriage in which, both parties contributed immensely. In such a circumstance, it is very important that the distribution of the family properties located at wildlife must be done after parties are fully given the opportunity to present their case before the village court so that the village court can make an informed and fair decision after hearing parties.
    
20. From submissions made by parties before this Court, during the hearing of this appeal, and also from the depositions made in their respective affidavits, the appellant was in fact present in all the hearings and, was also given the opportunity to be heard.
    
18. There is no instance in which the court made the orders either ex – parte or by completely negating the appellant’s argument. The decision made was fair and after parties had agreed.
    
19. The court also notes that, the orders were signed off by the appellant. The appellant has not adduced any evidence stating that the orders were fraudulently entered or that he had no knowledge of the terms of the said orders. To my mind, this is a situation where the appellant knowingly signed off on the orders and knew very well the implications of those orders.
    
20. What has happened in this case to the opinion of the court is that the appellant has now changed his mind after he had knowingly consented to the terms of the orders, or accepted the orders that were made by the village court after they were both heard. I do not see an instance where the village court acted in any fraudulent or malice manner. It is obvious that the court convened, parties were given adequate and ample opportunity to put their case forward and the village court had then deliberated on the matter, and arrived at that decision.
    
21. I find this to be fair and liberal, and see no circumstance in which the appellants right to be heard has been infringed.
    
22. I am therefore of the view that the principles of natural justice was observed by the village court before arriving at their decision, and I therefore find this ground of appeal to be misconceived, and consequently must fail.
    
23. ISSUE NO. 3 - WHETHER THE PRESIDING MAGISTRATE WAS IN A CONFLICT OF INTEREST POSITION.
    
24. The Courts and quasi-judicial bodies such as local land courts, tribunals and village courts, all have a greater task to the general public, when it comes to dispensation of justice. This duty calls for a greater scrutiny of decision making body’s conduct before, during and after the hearings and the manner in which it conducts itself in arriving at its decisions. It is imperative on the Courts and quasi-judicial bodies that, at the very least, it must never adjudicate on any matter when there is an allegation of general presumption of bias from the court users or the general litigants appearing before the courts.
    
25. When there is such allegation of biasedness, or a conflict of interest raised against that body, the courts and quasi – judicial bodies tribunal members, and Courts judges and magistrates, must at that instant, disqualify themselves from presiding over the matter, as it is the safest thing to do to preserve the integrity of the institution, even if it is at the very lowest courts like village courts.
    
26. On the other hand, it is also important for litigants and general public to observe the integrity of the courts and ensure that the courts are not smeared of allegations merely because they think it is so. Whatever thoughts that seem proper for them, can never be a good ground to disrepute the integrity of the courts. Their thoughts may be formulating such ideas, but it is proper for one to have credential evidence to substantiate their allegations, which can be credibly put before the courts for the judge, magistrate and village court official, whoever is concerned to then formally disqualify himself.
    
26. This court noted that there is no substantial interest on the part of the village court Chairman, or the other officials that presided over the hearing. There is not an iota of evidence that establishes the monetary and physical benefits obtained by the village court officers.
    
27. The allegations turn out to be mere accusations and wild averments without any concrete evidences. The law is such that ‘he who asserts must prove.’ In the case of Debepmin v Madang Urban Local Level Government N6587" title="View LawCiteRecord" class="autolink_findcases">[2017] PGNC; N6587, Jopam Ltd v Kaptel [2009] PG DC67; DC 890 Kiripo v Anori [2008] PGDC 132; DC 848 and many other authorities, the Courts both in National and District Courts have discussed this.
    
28. In the most recent case of Ango v. Hides Gas Development Company Ltd [2020] PGNC 101; N8265, David J in his ruling in deciding over an assertion made by the plaintiffs that the defendant had breached an agreement stated;
    

9. In civil proceedings, the general rule is that ‘he who asserts must prove it’ (Shaw v. Commonwealth of Australia [1963] PNGLR 119, Supreme Court Reference No. 4 of 1980 [1982] PNGLR 65, Reference by the East Provincial Executive (2011) SC 1154, Galem Falide v Registrar of Titles & The State (2012) N4775, Board of management of Holy Spirit Primary School v. Mosese Sariki (2013) N5446, and the standard of proof is on the balance of [probabilities. Hence; the burden may shift to the party who asserts and who must then prove it. JD Haydon, Cross on Evidence, Butterworths, Fifth Edition, 1996, paragraph 7200 – 7230.

29. It is clear from the evidence that the appellant has not proved his assertion. There is nothing shown in his evidence where, he had disputed the second respondent had an interest in the outcome of the proceeding and continued to preside over the hearing, and at the same time, established evidences orally to dispute the second respondent from presiding over the matter, along with the other village court officials. This ground of appeal must therefore, also fail.
    
30. ISSUE NO. 4 - WHETHER THE VILLAGE COURT GAVE ITS REASONING IN HANDING DOWN ITS DECISION.
    
31. This ground of appeal is important and the appellant also argues this ground strenuously. The appellant argues that during the cause of the decision, the village court only pronounced the orders and never gave him any reason why those orders were made.
    
32. During the hearing of this appeal, the Court queried the second respondent to give an account of what had transpired during the village court hearing and the manner in which the Erima Village Court conducted the hearing and if there were any reasons given during the pronouncement of the orders. The second respondent in his elaborative oral testimony made the following remarks that the court noted:
    

32.1 There were two summons filed by the respondent against the appellant. The first summons was for the dissolution of marriage which was taken out on or around January 2020, and later determined around February 2020, in which the village court dissolved the marriage after hearing out parties.

32.2 The second summons was filed by the respondent in April 2020, and that was for the distribution of the property, pursuant to the dissolution of marriage.

32.3 There were various adjournments, and finally around July, the court convened to hear the parties on the issue of disbursement and sharing of the properties they had acquired over the twenty five (25) years of marriage.

32.4 The properties were not titled properties but built on squatter settlements in Wild Life settlement and Eight Mile Suburb settlement. There were total of five properties, mostly high covenant buildings all put out on rent and fully tenanted.

32.5 The Erima village court took into consideration the twenty five years of hard work put in by the respondent, and the support she had provided to the appellant, and it was proper for them to award the green house to the respondent, as her share for the support and hard work.

32.6 The reasons for the decision was that the respondent was not the cause of the divorce, and that the respondent had all along been very supportive and often covered up adulterous affairs of her husband and continued to maintain the business. Furthermore, because both parties had submitted that the properties belonged to the children, the village court made orders that the parents would share the properties but later give it to the children.

32.7 Finally, the Second Respondent mentioned that, in Enga custom, it was always fitting and proper in custom to let woman go with the share of pig and other wealth she had acquired whilst being married to the man. The land that she cultivated would always remain the land of the children that she bore to the man, but unless she bore a child, the land would revert to the man.

33. After considering the above, I referred to the court file and the documents from the village court, containing the village court orders to see if there were any reasons to support the above statement, and if there were any justification for the orders. A closer look at all the decisions leading up to that decision, subject to this appeal show that there were reasons given during the pronouncement of the decision.
    
34. The reasoning I rely on is the reason, given by the village court Chairman stating that the respondent had been supportive of the appellant in their 25 years of marriage. I agree with that reason and would want to stress here also that, the appellants’ polygamous life was all along, challenged by the respondent. This is because the respondent in her sworn affidavit deposes that the first instance of adultery occurred in 1997, and followed on with her sister being impregnated by the appellant, and later on, a successive act of adultery with his current partner.
    
35. The respondent also acted out of goodwill and to save the integrity of her husband as a leader and father to her children, gave him K 4000.00 to pay compensation to the lady. The appellant used the money for other purposes. That was never appreciated and the appellant has continued to be arrogant to continue his adulterous activity. The Court sees this act as an act of selfishness and inconsideration.
    
36. I also consider the fact that respondent had filed the separation proceeding after she had become fed up of the polygamous lifestyle. I think she has a point. Essentially, the appellant has in a way come into court with unclean hands and his demeanor has proved to be a detriment to himself.
    
37. Be that as it may, I have considered the merits of all the grounds of merit and find that the grounds of appeal do not establish a case warranting dismissal of the village court orders.
    
38. It is also important that I make a comment with respect to the defects in the Village Court Act in respect of matters pertaining to issues surrounding distribution of property, subject to customary marriage. Unlike statutory marriages that have the issue of separation of marriage and other consequential matters pertaining to separation, such as distribution of properties, and custody of children, subject to customary marriage, the Village Court Act is salient on that matter, and this Court therefore finds comfort in observing the rulings in the Vurr and Woodham case (supra).
    
39. I also stress here that, in a metropolitan city like Port Moresby where there are intermarriages between men and women of different customary setting, the village courts must be careful in entertaining and determining issues relating to dissolution of marriage and distribution of properties. The village court in this case dealt with the matter in a more straight forward manner because the parties were both from the Enga Province, and majority of the magistrates were also from Enga Province, who had a good understanding of the Enga culture and custom, and therefore arrived at the decision, hence; the decision of the village court is made in consideration of all those relevant issues such as support, companionship, and the motivation provided by the respondent in ensuring the family attained those properties and lifestyle.
    
40. It would rather be a cunning circumstance where the parties are from different customs, and the village court officials are from another custom, as opposed to a village court setting in the typical village setting. In such setting, every village court official must ensure that, they have a grounded understanding of the customary laws of the persons that come before them, so that they do not enforce a custom that is repugnant to the general principles of humanity. This is when the Customs Recognition Act is relevant.
    
40. Nevertheless, I am very much of the view that the village court in this appeal did have the proper jurisdiction, as the respondent had no remedy under the Matrimonial Causes Act, as clearly stipulated under s.4 of the Matrimonial Causes Act, which states that the Act does not apply to customary marriages.
    
41. I will therefore dismiss the appeal, and uphold the decision of the Erima Village Court, and in the terms I order as follows.
    

THE COURT HEREBY ORDERS:

1. This Appeal is quashed and the decision of Erima Village Court made on 16^th July 2020, is hereby affirmed.
   
2. The Appellant shall have control and management over the four properties, three of that are those located at Moitaka, Wild Life, First Block, and the fourth one being the one located at Eight Mile Suburb Settlement, in Port Moresby, National Capital District.
   
3. The Respondent shall have management and control over the property at Wildlife, specifically described as Green House.
   
4. The Appellant is restrained permanently from interfering with the respondent’s peaceful occupation, management and usage of the property described as Greenhouse, located at Moitaka.
   
5. Cost of the Appeal shall be borne by Parties.
   
6. Time is Abridged.
   

BY THE COURT
His Worship Mr. Edward A. Komia

---