Nou v Vagi [1986] PGNC 40; [1986] PNGLR 1; N533(M) (15 January 1986)

N533(M)

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

IGUA NOU

V

KAROHO VAGI

Waigani
Barnett AJ
15 November 1985
15 January 1986

INFERIOR COURTS - District Courts - Jurisdiction and power - Maintenance orders - Power to discharge Local Court order - No power to quash order or hear appeal - District Courts Act (Ch No 40), s 230 - Local Courts Act (Ch No 41), s 17.

MAINTENANCE - Order for - In favour of wife - Customary marriage - Order for maintenance made after marriage dissolved by custom - Enforcement orders made - Application for discharge on ground of inability to pay - Application for discharge on ground of dissolution - Order valid till discharged - Justice required discharge from date of last application - District Courts Act (Ch No 40), s 230 - Local Courts Act (Ch No 41), s 17 - Maintenance Orders Enforcement Act (Ch No 279), ss 1, 11.

JUDGMENTS AND ORDERS - Discharge of - Valid order - Payments made prior to discharge - No power to order repayment.

The "wife" of a customary marriage, having left the "husband" in a manner which constituted dissolution of the marriage according to native custom, obtained an order for maintenance of herself from a Local Court pursuant to the Deserted Wives and Childrens Act (Ch No 277). Subsequent proceedings included enforcement proceedings under the Maintenance Orders Enforcement Act (Ch No 279), an application for discharge by the "husband" on the grounds of inability to pay and further enforcement proceedings on which the "husband" applied for a discharge on the grounds that the marriage had been dissolved according to native custom prior to the maintenance order of the Local Court. The District Court magistrate who heard this application found the order of the Local Court to be "null and void", discharged it and ordered repayment of the moneys paid under it. On appeal from this order to the National Court:

Held

(1) The District Court has power under the District Courts Act (Ch No 40) to discharge or vary an order for maintenance made by a Local Court but it cannot hear an appeal from or quash an order of a Local Court.

(2) The order of the Local Court having been made within jurisdiction and in accordance with the proper procedures of the court was valid and effective until properly discharged or appealed in the National Court and accordingly payments received in good faith thereunder could not be ordered to be repaid.

(3) In the circumstances there had been a substantial miscarriage of justice which justified the quashing of the order for discharge made by the District Court.

(4) Justice required the maintenance order of the Local Court to be discharged as from the date on which the "husband" first applied to have the order discharged on the grounds that his marriage had been dissolved according to native custom.

Appeal

This was an appeal from an order of a District Court magistrate discharging an order for maintenance made under the Deserted Wives and Childrens Act (Ch No 277) by a Local Court.

Counsel

B Gamogab, for the appellant.
D Manoka, for the respondent.
Cur adv vult

15 January 1986

BARNETT AJ: This is an appeal against an order of the District Court at Port Moresby which discharged a maintenance order which had been made under the Deserted Wives and Childrens Act (Ch No 277), s 3, in the appellant’s favour by the Local Court on 13 April 1983. The District Court discharged the order as from the date it was made by the Local Court and ordered the refund of all maintenance payments given under it.

The grounds of appeal are:

(1) That the learned magistrate erred in law in discharging the order No 138/83 of the Local Court in respect of me.

(2) That the order of the District Court, to the extent that it requires me to repay all moneys the respondent had paid to me for my own use under the maintenance order No 138/83 of the Local Court constitutes a grave miscarriage of justice.

The facts as appear from the depositions and from the learned magistrate’s reasons were as follows.

The parties married in November 1980 in Pari village according to Motu custom. It was a marriage which occurred in a hurry after the appellant wife gave birth to the respondent’s child. Full customary engagement practices were not followed but there was a token exchange and a ceremony of sorts in the presence of relatives of both sides. No bride wealth was paid but evidence of native custom indicates it was accepted by the people of Pari village as a customary marriage. The parties commenced living together in the respondent’s father’s house.

On 30 June 1981 the respondent secretly went through a form of marriage under the Marriage Act (Ch No 280) with a Filipino woman with whom he had been committing adultery. When the appellant discovered the marriage certificate in October 1982 it led to a heated argument during which the appellant left the house and complained to the Village Court magistrate who tried to reconcile the parties. The appellant refused to be reconciled and returned and removed all her possessions. She never returned to live with the respondent.

On 13 April 1983 she obtained a Local Court order for the respondent to pay maintenance of thirty kina per fortnight for herself and ten kina per fortnight for her son. Presumably this was made on the basis of constructive desertion but no details of those proceedings are before me. When the respondent fell into arrears the appellant obtained an order for enforcement in the District Court under the provisions of the Maintenance Orders Enforcement Act (Ch No 279).

On 9 May 1984 the respondent unsuccessfully applied to the District Court for variation or discharge of the order on the grounds that he could not afford to pay. Again he was ordered to pay arrears. On 24 August 1984 he was convicted for bigamy arising from his bigamous "marriage" to the Filipino woman. He was released on a bond to be of good behaviour.

Finally, the appellant applied again to the District Court for enforcement of the order and this time the respondent counter-claimed with an application to have the April 1983 Local Court order discharged on the ground that his marriage to the respondent had been dissolved according to native custom when the appellant left the home in October 1982 — prior to the maintenance order of the Local Court.

The learned magistrate heard evidence that the marriage was indeed treated as dissolved by native custom when, or soon after, it broke down prior to the Local Court order. The witnesses for the respondent swore that when the appellant removed all her belongings it was an accepted sign that she was treating the marriage as dissolved and that this had been accepted by both sets of relatives.

The first ground of appeal is that the District Court magistrate was wrong in law to discharge the order of the Local Court. On this point it is clear, first, that the Local Court had jurisdiction under the Local Courts Act (Ch No 41), s 17, to make an order under the Deserted Wives and Childrens Act. It is also clear under the Maintenance Orders Enforcement Act that the District Court had power to discharge such an order as "order" is defined in s 1 to include a Local Court order. The power to discharge the order is given by s 11. That section also makes it clear that the District Court could make the discharge take effect even from before the application for discharge and that it could take into account "conduct and circumstances of the parties which occurred before the date of the order ... that it is satisfied was not available at the time when the order was made". The learned magistrate expressly found that evidence of dissolution was not properly before the Local Court when it considered the matter.

Now, although the District Court can discharge an order of a Local Court (or of another District Court) it cannot hear an appeal from such a court or quash its order. In his reasons for decision the learned District Court magistrate said he found that the Local Court order was "null and void". He had no power to do that.

Taking the view that the Local Court’s 1983 maintenance order was null and void, the magistrate then ordered the refund of all maintenance moneys paid; over K600. In doing this he was in error.

The original order was made within the Local Court’s jurisdiction and in accordance with its procedures. It is effective until such time as it is appealed against to the National Court or properly discharged. No appeal was prosecuted and so the appellant legally received the maintenance payments in good faith pursuant to an existing court order. She cannot now be made to repay those moneys.

Under the District Courts Act, I am enabled to quash the order of the learned District Court magistrate and substitute an appropriate order which he could have made, provided the order appealed against has resulted in a substantial miscarriage of justice.
In this case there has been a substantial miscarriage of justice.

I intend to discharge the order of the Local Court on the ground that the marriage has been dissolved by native custom. On the evidence, custom treated that marriage as dissolved shortly after its irretrievable break-down had been accepted by the parties and their relatives. This point however was not taken by the respondent before the Local Court, although all the evidence must have been then available. Nor was it taken at the first application to enforce the order or the respondent’s first application to vary or discharge the order. During the latter application he apparently accepted the continuing validity of the marriage and merely argued he was unable to pay. I have therefore decided to discharge the maintenance order as from the date when the respondent first applied to have the order discharged on the grounds that his marriage had dissolved according to native custom. That date was 29 October 1984. The moneys which have already been paid under that order the appellant is entitled to keep.

In the circumstances of this case, however, it would be unjust for the respondent to be obliged to make any further payments of arrears and I order that he be discharged from the obligation to make any further payment for the maintenance of the respondent. His obligation to pay ten kina per fortnight in respect of the child of course will continue.

ORDER

Appeal allowed in part. Order of the District Court is quashed and the following order is substituted:

(1) The order of the Local Court dated 13 April 1983 that the respondent Karoho Vagi pay the sum of thirty kina for the maintenance of the appellant Igua Nou is discharged as from 29 October 1984.

(2) The appellant is entitled to retain all moneys paid by the respondent under the said Local Court order prior to the date of this order.

(3) The respondent is discharged from responsibility to pay any money now owing under the said Local Court order by way of maintenance for the appellant.

______________________________

Lawyer for the appellant: State Solicitor.
Lawyer for the respondent: Public Solicitor.

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