Kumbagerin v Kipu [2021] PGDC 14; DC7024 (4 March 2021)

DC7024

PAPUA NEW GUINEA

[IN THE DISTRICT COURT OF JUSTICE

SITTING IN ITS CIVIL JURISDICTION]

CV 373 of 2020
BETWEEN

SAM KUMBAGERIN
Complainant

AND

HELLEN KIPU
Defendant

Lae: L Wawun Kuvi

2021: 3, 24 November, 8 December 2020, 4 March
 

CIVIL- CONTRACT-No intent to create contractual relationship-De facto relationship-Whether expenditure during cohabitation recoverable.

Cases Cited
Ofoi v Bongare [2007] PGNC 110; N3248 (20 July 2007)
Kati v Willie [2005] PGDC: DC101
Bulage v Ben [1990] PNGLR 473 (20 November 1990]

Counsel

Complainant in person

Defendant in person

4 March 2021

1. L Wawun-Kuvi, Magistrate: The defendant claims K7000 from the Complainant. He states in his complaint and summons that the defendant should pay that amount as compensation to him before she leaves the marriage.
2. As the defendant is not educated, the Court required the complainant pursuant to section 135 of the District Court Act, to further particularised his claim. Specifically to explain further the amount sought or the break up. The complainant states that, that is money that he paid for her school fees and also assisted her and her relatives during the course of their relationship. There was no legal marriage but the parties have a child together. She has now left him homeless.
3. This then gives rise to the issue of whether or not a cause of action has been disclosed.
4. An ex tempo judgement was given and this is the full reasons of the Court.
5. In Bulage v Ben [1990] PNGLR 473, a case on appeal from the District Court where there was an order made for the de facto wife to compensate her de facto husband, Brunton J held:

“There is no cause of action under which a de facto husband or wife may recover the everyday expenditure incurred during the course of the relationship because they are not matters to which the Courts attribute a contractual relationship.......The Order of the District Court was made in respect of a matter for which there was no recognised cause of action. It was therefore made without jurisdiction.”

6. The facts in Bulage v Ben (supra) are similar to the present. In Bulage, the husband claimed K3, 466.00 for money spent on clothing and food amongst others and for money given to relatives. He goes on to claim that she left him and is now living with another man.
7. District Courts are creatures of statute and any powers exercised must be in accordance with written law. As stated by Brunton, J in Bulage, there is no statue that gives right to a man to sue his partner for money he spent on her.
8. Bulage expresses that actions that were done out of love and affection do not form an agreement. However, the Court in Bulage did accept that enforceable agreements exist in intimate partner relationships which may be implied or express, examples of which are a promise to give a house on the condition of marriage or contribution of labour towards maintenance of a house in exchange for beneficial interest.
9. In Ofoi v Bongare [2007] PGNC 11O; N3248, then Injia DCJ whilst holding enforceable a implied agreement for the demolition and rebuilding of a new house based on the belief that there was to be a marriage, ruled that the reimbursement for money spent on a partner’s education is not. In adopting Bulage, His Honour found that this was part of everyday expenses in a de facto relationship.
10. In Kati v Willie [2005] PGDC: DC101 the Court adopted the case of Bulage and dismissed the complainant, where parties were living together for 8 months and the man claimed living expenses. There was no formal marriage. The man kept all records of his expenses.

Whether I am entitled to dismiss the matter without hearing the evidence?

11. The complaint is the document which contains the claim made by the aggrieved party. The claim must disclose the cause of action, that is, the wrong that the complainant claims to have suffered and the relief or remedy sought.
12. The Complaint must contain the elements of the cause of action. For example, in contract, the elements are: the existence of an agreement whether implied or express, the breach, and damages. The Court upon motion by the other party may dismiss the complaint for failure to disclose a cause of action.
13. Here the parties are unrepresented and have no concept of formal legal processes and procedure. To continue to hear the matter even when on the face of the complaint that there is no cause of action is a waste of judicial time and unnecessary cost and expenses to parties.

Orders

14. The Orders of the Court is as follows:
    1. The Complaint is dismissed for disclosing no cause of action.
    2. Defendant is discharged.
    3. No orders for costs.

Lawyer for the Complainant Self Represented

Lawyer for the Defendant Self Represented