Moma v Awiya [1989] PGNC 36; N729(M) (17 July 1989)

N729(M)

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

APPEAL 241 OF 1986

GISS MOMA & ELE MOMA
APPELLANTS

AND

PENGA AWIYA
RESPONDENT

Mount Hagen: Woods J
12 May 1989, 17 July 1989

APPEAL - District Court - Bride price Repayment - Sufficiency of Evidence.

Counsel
D.L.O’Connor for the Appellants
A. Yer for the Respondent

WOODS J: This is an Appeal from an Order of the District Court in Mt Hagen ordering the Appellants to repay some pigs and money and other goods. The evidence suggests that it is a repayment of bride price. The history of the matter is that Giss Moma was married to Penga Awiya and he had paid some bride price to the family of Giss Moma, Ele Moma being the father of Giss. Sometime during the marriage Penga had been posted to Mendi to work but he did not take Giss. Sometime later Giss went and married someone else on the basis that she had been divorced from Penga. Then later Penga himself married someone else.

Apparently some applications were made to the Village Court but it is not clear what was the result. Penga then claimed repayment of the bride price from Giss and Giss’s father Ele. This claim was made in the District Court.

The grounds of Appeal are firstly that the Appellants were unable to cross-examine the first two witnesses for the respondent; secondly that the interpretation was inaccurate; thirdly that the proceedings hade been already been dealt with by the village court; and finally that there was insufficient evidence for the Magistrate to find the way he did.

I note that it was suggested before the Magistrate that this type of claim should not be brought in the District Court. I find no reason why the District Court cannot entertain this type of claim. Just because it has been the practice to bring these claims for repayment of brideprice before the Village Courts does not mean that a party cannot use the District Court if the party so chose. The Village Courts are not given exclusive jurisdiction over this subject.

On the first ground of appeal that the appellants were unable to cross-examine witnesses that is the fault of the appellants. If parties fail to turn up or appear late when due notice has been given of hearing dates or adjournment dates that is their problem and Courts are not expected to waste time waiting on a party’s pleasure.
There were no submissions to the court on the ground of appeal relating to interpretation.

There was no evidence placed before the Magistrate showing that the matter had been dealt with by the Village Court.

On the Ground of appeal that there was insufficient evidence it is necessary to look into all the facts placed before the Magistrate.

Undisputed facts are that the parties were married sometime in 1981 and bride price was paid. Sometime later, there is no evidence as to what year, Penga, the husband, was transferred to or got a job in Mendi. He states that there was no house there so he went by himself and left his wife at his parent’s place. Some 5 months after he went to Mendi Giss his wife had left his parents and went and married someone else. Then later the husband himself went and married someone else. Penga has now come to court seeking repayment of the bride price presumably on the ground that his wife had left him. This may have firstly been attempted through the village court and then through the District Court.

There seems to be some evidence before the District Court that some bride price may have been repaid. However there is no evidence before the magistrate and no matter referred to by the Magistrate as to what is the customary law in such a situation. It is not enough to just assume that the Magistrate would have known about the custom, and anyway he should refer to it in his reasons.

The evidence before the Magistrate raises many questions. There can be little argument that there are situations where there is an obligation to repay brideprice. However there must be factors which can affect this obligation.

So what is the customary law on this? In this case before me the husband has left the wife behind and gone to another Province to work and absented himself for some months. Perhaps one can assume that in traditional times this never happened on such a scale, people never wandered too far away. But here the wife is left. What does custom say about this? Does she just have to sit back and accept the separation, or is she entitled to assume that he has deserted her if he stops away for so long earning a salary but remitting her nothing. He says he left her with his parents. Does she have any say in it and is this acceptable to-day in the modern mobile society where he has just gone off to suit himself and his job. What is the effect of this separation or desertion on the bride price situation and what is a reasonable expectation in such circumstances. Under the Constitution women have equal rights and are not bound to merely put up with being deserted. Then what is the effect of the husband himself remarrying after his wife had remarried and before he started claiming the bride price back. May not that be an acceptance by him of the separation or his desertion. Some brideprice appears to have been repaid. What does this mean? Presumably the marriage had subsisted for some years. What is the customary law about this and how does it take account of modern developments and give equal rights and status to women. There are many questions that can be asked analogous to those raised in modern cases of divorce and maintenance.

If claims of this kind are to be brought in the District Court or National Court then the relevant evidence must be forthcoming. I am satisfied that there was insufficient evidence before the Magistrate.

I therefore allow the appeal, quash the Order of the Magistrate and refer the matter back to the District Court at Mount Hagen for further hearing.