[national court of justice]

otto benal magiten –
for and on behalf of himself and his five children

v

bernadette beggie; and benedict magiten wahiginim
kimbe: cannings j
18, 21 April 2005

Judgments and orders – application for default judgment – substantive proceedings commenced by originating summons – whether default judgment an appropriate procedure.
Underlying law – custom – breach of custom as a cause of action – need to plead and prove custom relied on – Underlying Law Act 2000 – Customs Recognition Act, Chapter No 19. 
Practice and procedure – directions that a case commenced by originating summons shall continue on pleadings – National Court Rules, Order 4, Rules 31, 35.

Facts

The plaintiff commenced proceedings by originating summons, alleging that his wife, who is the first defendant, had illegally married his brother, who is the second defendant. The plaintiff claimed that the defendants' marriage is in breach of the East Sepik customary law, to which all parties are subject and was by custom and was by custom and void. He asked the court for consequential orders for damages. The defendants did not file a notice of intention to defend or a defence or any other document, in response. The plaintiff then brought a motion for default judgment. 

Held

1.	The motion is misconceived, as the default judgment procedure is not available for proceedings commenced by originating summons.

2.	The court was not satisfied that the originating process disclosed a reasonable cause of action, and would have refused the motion, even if the proceedings had been commenced by writ of summons. 

3.	The documents filed in court must state clearly what the custom being relied on is and who it applies to and provide details of its requirements in clear, precise and adequate terms. Madaha Resena and Others v The State [1991] PNGLR 174 (the Fisherman's Island case) applied; Gia Kewa Piel v Eric Ranpi [1996] PNGLR 396; George W Sulliman v Thecla Sulliman [2002] PGNC 132; N2199; Mesulam Meriba v Phillip Silou [2002] PGNC 107; N2227 followed. 

4.	Directions given under Order 4, Rules 31(2) and 35(1) of the National Court Rules that the proceedings shall continue on pleadings.

Papua New Guinea cases cited

Eliakim Laki and 167 Others v Maurice Alaluku and Others [2000] PGNC 60; N2001.
George W Sulliman v Thecla Sulliman [2002] PGNC 132; N2199.
Gia Kewa Piel v Eric Ranpi [1996] PNGLR 396.
John Kunkene v Michael Rangsu and The State (1999) N1917.
Madaha Resena and Others v The State [1991] PNGLR 174.
Mesulam Meriba v Phillip Silou [2002] PGNC 107; N2227.
Tiaga Bomson v Kerry Hart [2003] PGNC83; N2428.

Counsel

O Magiten, the plaintiff, in person.
No appearance for the defendants.

21 April 2005

Cannings j. This is an application for default judgment. The plaintiff filed an originating summons. He served it on the defendants, who have not filed a notice of intention to defend. The plaintiff says that the defendants are in default of the National Court Rules and therefore he is entitled to a judgment, in his favour. He wants an order nullifying the purported marriage of the first and second defendants and an order that they are liable to pay damages to him and his children.

Background 

This case is about an alleged breach of custom leading to an illegal marriage. The plaintiff is from East Sepik Province. He says that he came to Kimbe, West New Britain, in 1998 with his wife and five children to stay with his parents on their oil palm block. He has had to travel frequently since then. While he was away his wife, the first defendant, formed an association with his brother, the second defendant. They have become married. He claims that this is a disgraceful breach of their custom.

On 12 October 2004 the plaintiff filed an originating summons, seeking three sets of orders:

1	A declaration that the first and second defendants' marriage is prohibited according to custom and as such has breached fundamental rights of the children and the plaintiff and therefore is null and void thus be restrained accordingly.

2	An order that the first and second defendants pay damages to the plaintiff and his five children for the pain and suffering. 

3	Such further or other orders as the court may think fit.

On 26 October 2004 the originating summons was served on the defendants. On 6 January 2005 the plaintiff filed three affidavits in support of his claims. The deponents are:

·	the plaintiff himself, who gives his address as PO Box 194, Madang; 
·	his 12 year-old daughter Deborah Benal, of Woginara No 2 village, Dagua, East Sepik; and 
·	the first defendant's mother, Anna Ablesim, also of Woginara No 2. 

On 11 April 2005 the plaintiff filed a notice of motion, seeking a default judgment in terms of the orders sought in the originating summons. He supports the motion with an affidavit filed on the same day in which he deposes that the defendants have not filed any document to defend the matter and that they have failed to comply with the National Court Rules. 

On 13 April 2005 the plaintiff filed an affidavit deposing that he had personally served the notice of motion on the defendants on 12 April 2005.

THE LAW REGARDING DEFAULT JUDGMENTS

An application for default judgment must be made under Division 12.3 (default judgment) of the National Court Rules. This Division contains Rules 24 to 36, which prescribe the requirements that have to be satisfied before the National Court considers whether to exercise its discretion to enter default judgment. 

There is a checklist of things that have to be proven by an applicant, eg the motion must be in a proper form, supported by affidavit; it must be served in accordance with the Rules; there must be proof that the defendant has not filed a notice of intention to defend or if no notice has been filed that the plaintiff has warned the defendant of an impending application for default judgment; there must be proof of default in filing a defence and proof of service of the writ. If one of the items on the checklist is not ticked, the court will refuse the application. 

If all of them are ticked the court still has a discretion to refuse the application, eg where the extent of the default by the defendant is not great and the defendant appears to have a good defence (John Kunkene v Michael Rangsu and The State (1999) N1917, Kirriwom J) or where the statement of claim amounts to an abuse of process (Eliakim Laki and 167 Others v Maurice Alaluku and Others (2000) N2001, Sevua J) or where the plaintiff has not prosecuted his case diligently (Tiaga Bomson v Kerry Hart (2003) N2428, Kirriwom J).

Order 12, Rule 24 states that Division 12.3 of the National Court Rules only applies to proceedings commenced by writ of summons. There is no equivalent procedure regarding proceedings commenced by originating summons.

MOTION MISCONCEIVED

In the present case the proceedings have been commenced by originating summons. So there can be no application for default judgment. The motion before the court is misconceived and will be dismissed for that reason alone.

FAILURE TO DISCLOSE CAUSE OF ACTION

Even if that were not the case, and I was satisfied that the various items on the checklist for default judgment were satisfied, I would exercise my discretion to refuse the application as I am not satisfied that the originating summons and the other documents filed to date disclose a reasonable cause of action.

BREACH OF CUSTOM

This is a case based on custom. Though the orders sought in the originating summons allude to breach of constitutional rights (which are not specified) it seems that the cause of action being relied on is breach of custom. 

Breach of custom can be a proper cause of action but it must be properly pleaded. The documents filed in court must state clearly what the custom is and who it applies to and also provide details of its requirements in clear, precise and adequate terms. This was made clear by the Supreme Court in Madaha Resena and Others v The State [1991] PNGLR 174, Kapi DCJ, Amet J, Los J (The Fisherman's Island case). It is a rule of practice and procedure applied subsequently in a number of National Court cases, including Gia Kewa Piel v Eric Ranpi [1996] PNGLR 396, Injia J; George W Sulliman v Thecla Sulliman [2002] PGNC 132; N2199, Davani J; and Mesulam Meriba v Phillip Silou [2002] PGNC 107; N2227, Lenalia J. 

The originating summons in the present case fails to meet those requirements. The court – and therefore the defendants – do not know the details of the custom that is said to have been breached. That is another reason I will dismiss this motion.

I will not, however, dismiss the proceedings. There is no motion before the court to do that and it would be unfair on the plaintiff for the court to dismiss the proceedings on its own motion without giving him notice and an opportunity to make submissions on the matter. What I will do is give some directions aimed at putting the case on a proper path so that the real issues can be identified. Before doing that I will refer to two laws of paramount importance whenever a case based on custom is brought before the court.

THE UNDERLYING LAW ACT 2000

This Act was made by the National Parliament in 2000 pursuant to Sections 20 and 21 of the Constitution. 

Section 20 (underlying law and pre-Independence statutes) states:

(1)	An Act of Parliament shall—

(a)	declare the underlying law of Papua New Guinea; and

(b)	provide for the development of the underlying law of Papua New Guinea.

(2)	Until such time as an Act of Parliament provides otherwise—

(a)	the underlying law of Papua New Guinea shall be as prescribed in Schedule 2 (adoption, etc., of certain laws); and

(b)	the manner of development of the underlying law shall be as prescribed by Schedule 2 (adoption, etc., of certain laws).

(3)	Certain pre-Independence statutes are adopted and shall be adopted, as Acts of Parliament and subordinate enactments of Papua New Guinea, as prescribed by Schedule 2 (adoption, etc., of certain laws).

Section 21 (purpose of Schedule 2) states:

(1)	The purpose of Schedule 2 (adoption, etc., of certain laws) and of the Act of the Parliament referred to in Section 20 (underlying law and pre-Independence statutes) is to assist in the development of our indigenous jurisprudence, adapted to the changing circumstances of Papua New Guinea.

(2)	For the purpose set out in Subsection (1), a Law Reform Commission shall be established in accordance with Schedule 2 (adoption, etc., of certain laws), and certain special responsibilities are imposed by that Schedule on the National Judicial System (and in particular on the Supreme Court and the National Court) and on the Law Reform Commission.

Section 24(2) of the Underlying Law Act provides that the underlying law prescribed by Schedule 2 (adoption, etc., of certain laws) of the Constitution ceased to come into effect on the coming into operation of the Underlying Law Act. It commenced operation on the date of certification, 18 August 2000. (See Constitution, Section 110 (certification as to making of laws), the long title to the Underlying Law Act and the Notice as to Certification of Acts in National Gazette No G113 of 7 September 2000, at page 3.)

The sources of the underlying law are now prescribed by Part II (sources of the underlying law) of the Underlying Law Act, which contains Sections 3, 4 and 5. These provisions state:

3.	Source of underlying law.

(1)	The sources of the underlying law shall be— 

(a)	the customary law; and
(b)	the common law in force in England immediately before the 16th September, 1975.

(2)	The principles and rules of customary law shall be applied with the qualifications and subject to the conditions as set out in this Act.

(3)	The principles and rules of common law shall be applied—

(a)	with the qualifications and subject to the conditions as set out in this Act; and

(b)	notwithstanding their modification through an amendment, repeal or alteration by a statute of England unless the modifying statute has been adopted in Papua New Guinea.

4.	Application of sources of underlying law.

(1)	Subject to Subsection (2) or (3)—

(a)	the customary law; and
(b)	the common law,

shall be adopted and applied as part of the underlying law.

(2)	The customary law shall apply unless—

(a)	it is inconsistent with a written law; or
(b)	its application and enforcement would be contrary to the National Goals and Directive Principles and the Basic Social Obligations established by the Constitution; or
(c)	its application and enforcement would be contrary to the basic rights guaranteed by Division III.3 (Basic Rights) of the Constitution.

(3)	The common law shall not be applied unless—

(a)	it is consistent with a written law; or
(b)	it is applicable and appropriate to the circumstance of the country; or
(c)	it is consistent with the customary law as applied under Subsection (2); or
(d)	its application and enforcement would not be contrary to the National Goals and Directive Principles and Basic Social Obligations established by the Constitution; or
(e)	its application and enforcement would not be contrary to the basic rights guaranteed by Division III.3 (Basic Rights) of the Constitution.

(4)	A court which—

(a)	refuses to apply a principle or rule of customary law, shall give reasons for its refusal in terms of Subsection (2)(a), (b) or (c); or

(b)	applies a principle or rule of common law, shall give its reasons for the application in terms of Subsection (3)(a), (b), (c), (d) or (e).

(5)	A principle or rule of customary law or common law applied under Subsection (2) or (3) shall become part of the underlying law.

5.	Duty of courts.

The courts, especially the Supreme Court and the National Court, shall 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.

A number of provisions of the Underlying Law Act deal specifically with how the court is to deal with causes of action based on customary law, eg Sections 15, 16 and 17 provide as follows:

15.	Duty of counsel in relation to customary law.

(1)	A counsel appearing in a proceeding in which a question of whether the customary law applies in that proceeding, is under a duty to assist the court by calling evidence and obtaining information and opinion that are relevant which would assist the court in determining—

(a)	the nature of the relevant rules of customary law; and
(b)	whether or not to apply those rules in the proceedings.

(2)	A counsel in carrying out his duty under Subsection (1) may refer to matters provided for in Section 16(2)(b)(I), (ii) and (I).

16.	Ascertainment of customary law.

(1)	A question as to the existence or content of a rule of customary law is a question of law and not a question of fact.

(2)	The court, when determining a question under Subsection (1)—

(a)	shall consider the submissions made by or on behalf of the parties concerning the customary law relevant to the proceedings; and

(b)	may—

(i)	refer to cases, books, treatises, reports and other works of reference on the customary law relevant to the proceedings; and

(ii)	refer to statements and declarations of customary law made by local, provincial and other authorities in accordance with a law empowering them to make such statements and declarations; and

(iii)	consider evidence and information concerning the customary law relevant to the proceeding presented to it by a person whom the court is satisfied has knowledge of the customary law relevant to the proceedings; and

(iv)	of its own motion, obtain evidence and information and obtain the opinions of persons as it thinks fit.

(3)	Notwithstanding any provision in any other law, when a court is hearing an appeal or conducting a review of a question concerning the customary law, the court may make further enquiries into the customary law by exercising the powers set out in Subsection (2).

17.	Application of different regimes of customary law.

(1)	Where a question arises, as to which particular customary law should apply to a subject matter of a proceeding, the court shall determine this question in accordance with the following rules—

(a)	where the parties belong to the same community, the customary law of that community; or

(b)	where the parties belong to communities with different customary law rules on the subject matter of the proceeding—

(i)	the customary law that the parties intend to govern the subject matter; and

(ii)	if no such intention can be discovered, the customary law that is, in the opinion of the court, most appropriate to the subject matter; or

(c)	where the matter concerns a question of succession, the customary law of the community to which the deceased belonged, except with regard to interests in land, in which case the customary law of the place where the land is situated shall apply; or

(d)	in all other cases the court shall apply the customary law it considers most appropriate to a particular case.

(2)	In deciding on which customary law is to apply under Subsection (1)(b) and (d), the court shall have regard to—

(a)	the place and nature of the transaction, act or event; and
(b)	the nature of residence of the parties.

The above is not an exhaustive selection of the provisions of the Underlying Law Act that need to be considered when bringing a case in the National Court based on custom. The whole Act needs to be carefully considered. But it at least gives an indication of how a case such as the present one needs to be carefully thought through and pleaded before the court is asked to deal with its merits.

CUSTOMS RECOGNITION ACT, CHAPTER NO 19 OF THE REVISED LAWS 

This is a much older piece of legislation than the Underlying Law Act. They overlap to some extent, but the Customs Recognition Act still needs to be considered. It consists of only seven sections, so I will quote the entire Act.

Customs Recognition Act.

Being an Act relating to the determination and recognition of custom.

1.	Interpretation.

In this Act, unless the contrary intention appears "court" includes any court or person acting judicially in, or for purposes of or connected with, the country.

2.	Proof of custom.

(1)	Subject to this section, questions of the existence and nature of custom in relation to a matter, and its application in or relevance to any particular circumstances, shall be ascertained as though they were matters of fact.

(2)	In considering a question referred to in Subsection (1), a court—

(a)	is not bound to observe strict legal procedure or apply technical rules of evidence; and

(b)	shall—

(i)	admit and consider such relevant evidence as is available (including hearsay evidence and expressions of opinion); and

(ii)	otherwise inform itself as it thinks proper.

(3)	For the purposes of the decision on a question referred to in Subsection (1) a court may—

(a)	refer to books, treatises, reports or other works of reference, or statements by Local Government Councils or committees of Local Government Councils (whether published or not); and

(b)	accept any matter or thing stated in such works as evidence on the question; and

(c)	of its own motion, call such evidence or require the opinions of such persons as it thinks fit,

but this subsection does not limit in any way the discretion of the court in obtaining evidence or informing itself on the question.

(4)	Notwithstanding Subsection (1), where an appeal is made from a decision of a court, the court that hears the appeal may consider de novo a question referred to in that subsection that arises in the appeal.

3.	Recognition of custom.

(1)	Subject to this Act, custom shall be recognized and enforced by, and may be pleaded in, all courts except so far as in a particular case or in a particular context—

(a)	its recognition or enforcement would result, in the opinion of the court, in injustice or would not be in the public interest; or

(b)	in a case affecting the welfare of a child under the age of 16 years, its recognition or enforcement would not, in the opinion of the court, be in the best interests of the child.

(2)	Nothing in Subsection (1) of itself empowers a Local Government Council to make a subordinate enactment affecting custom, but this subsection does not limit in any way the powers of a Local Government Council conferred by any other law.

4.	Criminal cases.

Subject to this Act and to any other law, custom may be taken into account in a criminal case only for the purpose of—

(a)	ascertaining the existence or otherwise of a state of mind of a person; or
(b)	deciding the reasonableness or otherwise of an act, default or omission by a person; or
(c)	deciding the reasonableness or otherwise of an excuse; or
(d)	deciding, in accordance with any other law whether to proceed to the conviction of a guilty party; or
(e)	determining the penalty (if any) to be imposed on a guilty party,
or where the court thinks that by not taking the custom into account injustice will or may be done to a person.

5.	Civil cases.

Subject to this Act and to any other law, custom may be taken into account in a case other than a criminal case only in relation to— 

(a)	the ownership by custom of or of rights in, over or in connexion with customary land or—

(i)	any thing in or on customary land; or
(ii)	the produce of, customary land, including rights of hunting or gathering; or

(b)	the ownership by custom of rights in, over or in connexion with the sea or a reef, or in or on the bed of the sea or of a river or lake, including rights of fishing; or

(c)	the ownership by custom of water, or of rights in, over or to water; or

(d)	the devolution of customary land or of rights in, over or in connexion with customary land, whether—

(i)	on the death or on the birth of a person; or
(ii)	on the happening of a certain event; or

(e)	trespass by animals; or

(f)	marriage, divorce or the right to the custody or guardianship of infants, in a case arising out of or in connexion with a marriage entered into in accordance with custom; or

(g)	a transaction that—

(i)	the parties intended should be; or
(ii)	justice requires should be, regulated wholly or partly by custom and not by law; or

(h)	the reasonableness or otherwise of an act, default or omission by a person; or

(i)	the existence of a state of mind of a person, or where the court thinks that by not taking the custom into account injustice will or may be done to a person.

6.	Guardianship, etc. Notwithstanding anything in any other law, custom shall be taken into account in deciding questions relating to guardianship and custody of infants and adoption.

7.	Conflict of custom.

(1)	Subject to this section, and to any other law, where—

(a)	in a matter before a court a question arises as to which of two or more systems of custom should prevail; and

(b)	the court is not satisfied on the evidence before it as to that question, the court shall consider all the circumstances and may adopt the system that it is satisfied the justice of the case requires.

(2)	Where a court is not satisfied as to which of two or more systems of custom apply, or should under Subsection (1) be applied, to or in relation to a matter, the court may apply, with the necessary modifications and as nearly as may be, the ordinary rules of the underlying law.

(3)	Notwithstanding Subsection (1) or (2), the principles set out in those subsections may be varied or departed from by a court in any particular case to such extent as the justice of the case requires.

DIRECTIONS

It is evident from the above that the present case needs some work done on it to put it in a proper state for determination by the National Court. I will therefore give directions under Order 4, Rules 31(2) and 35(1) of the National Court Rules.

The directions are that:

1	These proceedings shall continue on pleadings.
2	The plaintiff shall within 28 days after this order, file and personally serve a statement of claim, which pleads, with particulars, the custom on which he is relying and the manner in and the extent to which it is claimed to have been breached.
3	The plaintiff shall within seven days after filing and personally serving the statement of claim, make an appointment through the Assistant Registrar of the National Court at Kimbe for a status conference with a Judge and the defendants to assess the proceedings and determine further steps to be taken in relation to the proceedings.

ORDER

1	Application for default judgment is refused.
2	Directions as made above.
3	No order for costs.

Lawyer for the plaintiff: The plaintiff represented himself.
Lawyers for the defendants: No representation.