Tatut v Cassimus [1978] PGLawRp 543; [1978] PNGLR 295 (4 August 1978)

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[1978] PNGLR 295 - SCR No 1 of 1977; Re Constitution Sch2.3; Poisi Tatut v Chris Cassimus

CONSTITUTIONAL REFERENCE NO. 1 OF 1977 IN THE MATTER OF SCHEDULE 2.3 OF THE CONSTITUTION OF THE INDEPENDENT STATE OF PAPUA NEW GUINEA.

CONSTITUTIONAL LAW - Constitutional reference Sch. 2.3 - Law of enticement - Whether exists in Papua New Guinea.

CONSTITUTIONAL LAW - Underlying law - Declaration of - Finding of “no rule of law” necessary - Rule of law including custom - No evidence of custom - No power to declare law - Constitution Sch. 2.1[cdxcix]¹, Sch. 2.3[d]².

PRACTICE AND PROCEDURE - Supreme Court - Declaration of underlying law - Finding of “no rule of law” necessary - Rule of law including custom - No evidence of custom - No power to declare law - Constitution Sch. 2.1[di]³, Sch. 2.3[dii]⁴.

Schedule 2.1 of the Constitution of the Independent State of Papua New Guinea provides that “custom is adopted, and shall be applied and enforced, as part of the underlying law”.

N2>“(1) If in any particular matter before a Court there appears to be no rule of law that is applicable and appropriate to the circumstances of the country, it is the duty of the National Judicial System, and in particular the Supreme Court and the National Court, to formulate an appropriate rule as part of the underlying law ...”

On a reference under Sch. 2.3 of the Constitution by a District Court Magistrate of the question “What rule of law is appropriate to the circumstances of Papua New Guinea to decide whether a husband can recover damages against a man for enticing his wife to live apart from her husband or who harbours her while living apart, without her husband’s consent”:

N1>(1) The duty to formulate a law pursuant to Sch. 2.3 of the Constitution arises only where there is neither a “rule of law” of the applied Common Law or Statute, or of custom as applied by Sch. 2.1 covering the situation.

N1>(2) (Per Prentice CJ with whom Raine Dep. CJ agreed). “However, if custom is not to be regarded as a ‘rule of law’ within the meaning of that phrase in Sch. 2.3; then before undertaking the duty of formulating an appropriate rule as part of the underlying law, in regard to a matter close-knit into the fabric of traditional village life, the Court would I think, need to have evidenced before it an appropriate almost country-wide custom.”

N1>(3) (Per Saldanha J) “As long as there is a doubt that there may be a remedy at customary law for the wrong of enticement it would not be proper for this Court to formulate a rule of law on this subject.”

N1>(4) The common law action of enticement having been abolished prior to Independence by the Law Reform (Miscellaneous Provisions) Act 1970 (U.K.) and there being no material before the Court suggesting that any law of enticement existed at the relevant time, or now in Papua New Guinea, and there being no reliable evidence of custom it would be quite improper for the Court to formulate a law pursuant to Sch. 2.3 of the Constitution.

This was a reference to the Supreme Court under Sch. 2.3 of the Constitution of the Independent State of Papua New Guinea by a District Court Magistrate of the question: “What rule of law is appropriate to the circumstances of Papua New Guinea to decide whether a husband can recover damages against a man for enticing his wife to live apart from her husband or who harbours her while living apart without her husband’s consent.”

PRENTICE CJ: The complainant sued the defendant in the District Court in Rabaul in what has been described in terms drawn from the Common Law as “an action for enticement or harbouring of his wife, by the defendant”.

The learned magistrate in his “judgment”, discussed the question of the law of enticement in English law, and canvassed the facts put before him. He came to the conclusion apparently, that the defendant had received and harboured the plaintiff’s wife. He declared on the day that his “judgment” was delivered, that “it is for the Supreme Court to determine what legal consequences flow from these findings”. He went on to add, “I refer the question of what damages, if any, flow from these findings to the Supreme Court”.

Apart from the last-mentioned, obviously quite unjustified, “reference”, the question sent for decision to this court, by way of reference under Sch. 2.3 of the Constitution, was stated as follows:

“What rule of law is appropriate to the circumstances of Papua New Guinea to decide whether a husband can recover damages against a man for enticing his wife to live apart from her husband or who harbours her while living apart, without her husband’s consent.”

His Worship stated in his “judgment”, referring to the defendant and the “enticed” wife — “Because she loves the children and wants to care for them partly because the defendant cannot get a divorce from his wife, they have agreed to separate after this case and for the wife to return to her husband” (emphasis mine). In these circumstances, it is not perhaps surprising, that neither party was seemingly the slightest bit interested in making submissions on the learned magistrate’s reference, though one of them had been represented by the Public Solicitor in Rabaul. Some embarrassment was caused the Court, and it has taken up to this time, and then only with the reluctant consent of Mr. Nwokolo and Mr. Maino (State Solicitor) both appearing, not for the parties, but as amici curiae, to get the matter to argument. In these circumstances, normally the Court would probably have let the matter descend into the limbo of appeals that no one has any interest in arguing. But, because this was the first occasion that appeared to bring the Supreme Court to a consideration of some of Sch. 2 of the Constitution’s provisions, it was thought that a strong effort should be made to engage the interest and efforts of counsel in what on the surface, appeared a profitless exercise. The Court expresses its gratitude to counsel who have striven valiantly to put before it the relevant considerations as they see them.

It is clear that the Common Law on the law of enticement was vacated entirely in the U.K. by the Law Reform (Miscellaneous Provisions) Act 1970, ss. 4 and 5. It was virtually agreed by both counsel that it was therefore impossible to argue that the law of enticement, as previously set forth in Halsbury (vol. 19, 3rd ed. par. 1340) had survived Independence (Reception of Common Law Sch. 2.2 — the Constitution).

Schedule 2.1 of the Constitution (“Recognition of Custom”) enacts that “Subject to subsections (2) and (3)” (immaterial here) “custom is adopted, and shall be applied and enforced, as part of the underlying law”. One pauses to opine that “custom” here, having regard to Sch. 2.4 must mean “custom obtaining throughout the country”.

Schedule 2.3 enacts that “if in any particular matter before a court there appears to be no rule of law that is applicable and appropriate to the circumstances of the country, it is the duty of the National Judicial System ... to formulate an appropriate rule as part of the underlying law ...”

It would appear therefore that the Supreme Court’s duty to formulate a rule of law arises only where there is neither a “rule of law” of the applied Common Law, or Statute, or of custom as applied by Sch. 2.1, covering the situation.

However, if custom is not to be regarded as a “rule of law” within the meaning of that phrase in Sch. 2.3, then before undertaking the duty of formulating an appropriate rule as part of the underlying law, in regard to a matter close-knit into the fabric of traditional village life, the Court would, I think, need to have evidenced before it an appropriate almost country-wide custom.

Mr. Nwokolo has referred this Court to a report of the Law Reform Commission, No. 5 of February 1978, which apparently has led to the drafting of a Bill, which in one form or another may, we are told by the State Solicitor, be proposed to Parliament in November 1978, as the basis of declaring law for the future in regard to enticement. Apart from the Law Reform Commission Report, which does not itself assert a nation-wide custom, the only reference we have been given is to an unsigned article in the Encyclopaedia of Papua New Guinea (1972 edited P. Ryan) on “Marriage”, which, at p. 708 states:

“In all but a few matrilineal areas men are in a much stronger position. A husband catching his wife in adultery often has the right to kill both wife and lover if he can; so that adulteresses often defend themselves by pleading rape, or a woman who knows she has aroused her husband’s suspicions may anticipate his charge by so accusing her lover. The exercise of the husband’s right may, however, be modified by a number of factors. His status and strength and the support he can muster may be insufficient for him to exact physical redress; hence an adulterer of high status enjoys some degree of immunity. Moreover, if the adulterer belongs to the same kin or local group as the husband, the kinsmen usually persuade the injured party to control his indignation and accept material compensation. Some societies do not take too grave a view of occasional infidelity, although they may punish severely a flagrant and promiscuous adulteress. It seems probable therefore that a husband does not usually exercise his right to kill his errant wife but satisfies his honour rather by thrashing her or, less commonly, divorcing her.”

No evidence whatever was laid in the District Court to establish either a custom, or “no custom”. The individual members of the Court have individual experiences which lead them to believe that such custom as exists in P.N.G. traditional society as to the right to claim compensation for enticement of a wife, is not common to the whole country. I would therefore incline to the view that there is “no rule of law” on the subject, within the meaning of Sch. 2.3. But I could not come to that decision with any confidence — based merely on the opinions after years of experience in all districts of the country, of its judges alone. It may be that, as perhaps the Law Reform Commission believes, there is such a “rule of law” in custom — if “rule of law” includes “custom” (Sch. 2.1).

But the clear direction that the Constitution gives on this subject, lies in the signpost of Sch. 2.4 as follows:

“In all cases, it is the duty of the National Judicial System, and especially of the Supreme Court and the National Court, to ensure that, with due regard to the need for consistency, the underlying law develops as a coherent system in a manner that is appropriate to the circumstances of the country from time to time, except insofar as it would not be proper to do so judicial act.”

I am of the opinion that, insofar as the problem has not been the subject of competent or any, evidence in the District Court, and that counsel in this Court have found themselves unable to produce any reliable statement as to custom, and that the topic has been dealt with by the Law Reform Commission and is likely to be the subject of legislation by the Parliament in the relatively near future; it would be quite improper for this Court to hazard an opinion as to what custom might be, or to declare what the law should be on this subject (query whether this would establish what the lazy was in January 1977).

The Court has no material before it to suggest that any law of enticement existed in January 1977, or now, in P.N.G. It can discover no material in the proceedings before the District Court which would allow the learned magistrate to come to any such conclusion, and it therefore advises that the District Court must find a verdict for the defendant.

RAINE DCJ: I have read in draft the judgments of my brethren. I agree with them.

I only wish to emphasize what is said by my brothers, namely the necessity for evidence of custom when we are asked to perform the duty cast upon us by Sch. 2.3(1) of the Constitution. In some quarters it is fashionable to suggest that the Supreme Court is shirking this duty. It is not so. We are not given the tools with which to work. I adverted to this sort of problem in Topeu Taupa v. Tiotam Joel[diii]⁵ in pre-Independence days.

SALDANHA J: The circumstances in which this reference came to be made have been set out in the judgment of the Chief Justice which I have had the benefit of reading in draft and it is not necessary for me to repeat them.

The trial magistrate made the reference on his own initiative and for the following reasons which he has stated in his judgment:

“The abolition of the action in U.K. means that it is not part of the adopted Common Law of Papua New Guinea under Sch. 2.2 of the Constitution. This being so a rule of law has to be formulated which is appropriate to the circumstances of this country.”

The person responsible for bringing the action in the District Court of Rabaul seems to have assumed that the English common law action for enticement was available in Papua New Guinea. But this action having been abolished in England by the Law Reform (Miscellaneous Provisions) Act of 1970 it is not part of the underlying law in Papua New Guinea under Sch. 2.2 of the Constitution. The trial magistrate appears to have overlooked the fact that under Sch. 2.1 of the Constitution custom is part of the underlying law. Whether an action for enticement, or a similar action, was available under custom does not appear to have been considered either by the litigants or the trial magistrate. I would be greatly surprised if some such action was not available at customary law. The passage from vol. 2 of the Encyclopaedia of Papua New Guinea at p. 708 cited by the Chief Justice seems to suggest that it is available.

As long as there is a doubt that there may be a remedy at customary law for the wrong of enticement it would not be proper for this Court to formulate a rule of law on this subject.

The Law Reform Commission has published a Report on Adultery which contains a commentary on enticement and we are informed that a bill entitled Adultery and Enticement Bill is ready for presentation to Parliament and is likely to be debated some time this year. I feel that Parliament, of which the overwhelming majority of members are native-born Papua New Guineans, would be in a better position to formulate a law of enticement appropriate to the circumstances of the country than the expatriate judges of the Supreme Court.

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[cdxcix][d][di][dii][diii](Unreported) Judgment 822, Raine J of 13th November, 1974.

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Papua New Guinea Law Reports

Tatut v Cassimus [1978] PGLawRp 543; [1978] PNGLR 295 (4 August 1978)

Papua New Guinea Law Reports - 1978