Peter v Mathew [1995] PGNC 31; N1365 (12 September 1995)

Unreported National Court Decisions

N1365

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

OS 438 OF 1994
MARY TORONAKI PETER - Plaintiff
V
PETER MATHEW - First Defendant
GEORGE LESSY - Second Defendant
THE REGISTRAR GENERAL - Third Defendant

Mount Hagen

Woods J
14 August 1995
12 September 1995

MARRIAGE - Marriage Act - Allegation of duress and fraud - application to declare marriage null and void - Dismissed.

Cases Cited:
Maki v Pundia [1993] PNGLR 337

Counsel:

M Tamutai for the Plaintiff

W Hagahuno for the First Defendant

J Kawi for the Third Defendant

12 September 1995

WOODS J: The Plaintiff is seeking a declaration that the purported marriage under the Marriage Act Chapter 280 between herself and the first defendant on 2 March 1989 at Mendi be declared null and void. The grounds appear to be that the consent of the Plaintiff to the purported marriage was obtained by duress or fraud and further that the plaintiff was mistaken as to the nature of the ceremony performed.

The evidence is that in about 1987 the plaintiff and first defendant met in Mendi where the plaintiff lived with her parents and the first defendant was stationed as a policeman. They apparently became boy and girlfriend. Then Peter moved into the house with the plaintiff and her parents and they lived together in that crowded house with the intention that they would marry. There was talk of bride price having to be paid. After a year living together in her parents house it was becoming too difficult in such a crowded house so Mary and Peter talked about how they should move out and get a house of their own. Part of the discussion was that if Peter was married he would be entitled to a police house. He would therefore have to produce some sort of documentation to prove he was married. The Plaintiff says that her parents refused to sanction any marriage until Peter had paid the brideprice. She says that one day Peter asked her to come and sign a document to enable them to get a house. She says he also told her that by signing a document to recognise their marriage then he would have less deductions from his pay and therefore be able to save more pay to save up for the bride price. She then says that one day Peter asked her and her mother to come the office of the Provincial Secretary to sign the documents to enable him to get a house so she came and they signed some documents. She said it was never explained to her what those documents were and that shortly after that they did get a married house and were able to move in. After a few years there was friction between herself and Peter and finally in 1994 she left Peter and the house. In the meantime there had been one child from the cohabitation. At the time she left Peter took out a complaint in the village court against her leaving and it was when he produced the marriage certificate that she said she first realised that she had been formally married.

The plaintiff’s version of the events is supported by her parents who say there was never any consent to marry as was required under the Act as Mary was under 21 years then and such consent would not have been given until the full bride price had been paid. The parents deny signing any consent document, and Mary’s mother says she was aware that her daughter was having a defacto relationship but there was no marriage until the bride price was to be paid. She agrees that she accompanied her daughter to the Provincial Secretary’s office but agrees there was no marriage ceremony performed there, they only went to sign some papers to enable them to get a house.

The First Defendant denies the Plaintiff’s version of events. He states that they had been living together in her parents house but talked about having to leave and that if they got married he could get a married accommodation through his job. He says that the parents first of all consented to the marriage by signing a consent form a month before in February 1989 before a Magistrate at the District Court Office in Mendi and also she and him signed a Notice of Intended Marriage at the same time. Then a month later in March they went before the Provincial Secretary who is a registered marriage celebrant where the marriage took place. Peter denies there was any fraud or misunderstanding about the reason they went before the Provincial Secretary. He states that it was always clear in their discussions that they had to get married and produce relevant documentation to get married accommodation. On the subject of bride price Peter agrees that he had to pay some brideprice but that the total amount was never confirmed but that he did pay some bride price over a period of time.

There are two forms of marriage recognised by the law in Papua New Guinea. There is the customary marriage, which is recognised in accordance with the customs of the people concerned, such customs not being in written form. Then there is what we have here the Marriage Act marriage which is defined by way of the provisions of the Act. And in accordance with these statutory requirements certain documents have been tendered into evidence, firstly the Consent by Both Parents to marriage of a Minor as Mary was under 21 years at the time. This Consent has been signed by the alleged parents of the plaintiff before a Magistrate of the District Court. The parents are claiming they are not their signatures or mark, however there has been no handwriting experts called to give evidence on this. Rather there have been other documents produced with the father’s signature or writing and to an ordinary onlooker there does not seem to be anything wrong with the writing to suggest it as being done by different persons. Then there is the Notice of Intended Marriage also signed by the plaintiff and Peter before the Magistrate of the District Court. And finally there is the Certificate of Marriage signed by the parties before the Provincial Secretary. If what the plaintiff and her parents allege is true then certain senior Government officials are guilty of deceit or worse. Allegations of fraud have always been treated seriously by the Courts and the law has required detailed allegations and overwhelming proof. As was said in the case Maki v Pundia [1993] PNGLR 337 @ 338.9.

“An allegation of fraud is a very serious allegation and the courts have required strict adherence to requirements for pleadings in such cases. Courts have never allowed general allegations of fraud. Courts have required that a person pleading fraud should set out the facts, matters and circumstances relied upon to show that the party charged had or was actuated by a fraudulent intention. The acts alleged to be fraudulent must be stated fully and precisely with full particulars. It is not enough just to say that the person lied or swore a false affidavit, the facts matters and circumstances which make such statements lies must be particularised. Also this being a challenge to the procedures under an Act namely the Land (Tenure Conversion) Act then the fault of fraud in those procedures should be particularised.”

So how was the plaintiff misled or how was her consent obtained by fraud, where was the fraud. The evidence is quite clear that they had both talked about having to move out of her parents house and that they should try and get a house. And the plaintiff does not deny that there was talk of the only way he could get a married house in his job was to be married. So how can she now deny that marriage was what the documents were to be for. She knew that the documents were needed for him to send to Moresby to help him get a house. So to deny any idea that they were related to getting married is a facade. And what was their status at the time. They had been living together for a year albeit in her fathers house. They were obviously living as man and wife. Or was her parents agreeing to them living immorally together, but as her father said in his affidavit; “In the Ialibu area it is also very shameful for parents who allow their daughter to go with a man without going through a proper bride price ceremony.” Are we to infer that her parents were living with the shame of their daughter living with a man without being married. The court cannot infer that, instead the reality was that in the eyes of everybody they were married, and they later had a child, and they were living in the married accommodation provided by the Police Force. So how can her parents deny the marriage. She agreed to go and live with him in married accommodation and bear his child. So how can the plaintiff now deny that they were married.

It is not as if she did not know what the ceremony was and was then surprised when he tried to consummate the marriage or expected her to go and live with him and bear his child, she did all these thing willingly. And it is only now, years later that she suggests she was misled or forced.

Behind this whole claim is the matter of bride price allegedly not having been paid. Whilst the evidence is not clear about the amount of bride price as each side has a different version and refers to different figures, bride price is not a condition precedent to a Marriage under the Marriage Act. It may very well be a condition precedent to a customary marriage. And the plaintiff is now asking the Court to find that the underlying law of P.N.G. is that bride price should also be a condition precedent to the Marriage Act. However there is no rationale for this at all, the law in P.N.G. as has already been stated quite clearly recognises both forms of marriage. It is not necessary to adapt the requirements of the Marriage Act to more suit the P.N.G. situation as the Marriage Act itself clearly recognises that situation by recognising both types of marriage, but still clearly distinguishing them as based on two separate sets of principles. To say that the Marriage Act principles are too strict and inappropriate is nonsense when the Act clearly recognises the alternate style of marriage namely the customary marriage.

I find that there has been a valid marriage in accordance with the provision of the Marriage Act Chapter 280 and there are no grounds for this Court to find the marriage should be declared null and void.

I dismiss the application and order Judgement for the Defendant.

Lawyer for the Plaintiff: W Tamutai

Lawyer for the First Defendant: Public Solicitor

Lawyer for the Third Defendant: Solicitor General