Oa v Korua [1999] PGNC 69; N1871 (2 August 1999)

Unreported National Court Decisions

N1871

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

APP. NO. 32 & APP. 33 OF 1999
BETWEEN: COPLAND OA & ESTHER KORUA
-APPELLANTS-
AND: NELSON KORUA
-RESPONDENT-

Lae

Injia J
16 June 1999
5 July 1999
2 August

ADULTERY &#1 Meaning of&; of “e” &#160 - Customaarriage - Parties from Highlands rnds region - Bride price pre-condition to valid custocustomary marriage - Marriage by instalment payof inite a for indefinite periNo eve of such customaryomary brid bride prie price pace paymentyment in Highlands societies - No valid customary marriage - Adultery and Enticement Act 1988 (as amended), ss.1, 2, 9(1)(c).

Counsel

Appellants in person

Respondent in person

2 August 1999

INJIA J: This is an appeal agai fina finding of liability in favour of the complainant/respondent and award of K500 against each appellant in damages for adultery, on a complaint brought by tspondent. The decision wde by the Lohe Local Ccal Court at Lae on 26 January 1999 following a joint-trial on the complaint in which four witnesses gave evidence for the complainant and three witnesses gave evidence for the defendants. Both defendailed separate rate appeals, which were heard together.

There are two grounds of appeal in each appeal and they are the sa160; They are:

1. &ـ T60; The Leae Learned Magistrate erred ired in finding that there was a legal marriage when it was not supported by evidence before me.

2. ټ&##160; T60; The amoe amount of K500 being “the ma” is too excessive.

The proceedings were brought by the complainant under the Adultery and Enticement Act 19he &#Act”).&#160  “Ary” is ; is defined by S.2 of the Act as where &#8 spouse engagengages in voluntary sexual intercourse with a perther than his spousese”. The word “spouse” is broadly defin S.2 as &#8220udes a es a party to a relationship between ween a man and a woman which can reasonably be considered as a subsisting relatip hathe status of a marriage”. It is a de a defence under S.9(1)(c) of the Act for for a defendant to show that he “believed on reasonable grounds that the spouse with whom the act of adultery .... was committed was not married.” The ard oof applicable is e is e is the civil standard, namely proof on the balance of probabilities: s.19.

In a case where the conant relies on the existence of a subsisting marriage of one form or another, and the defendefendant denies the existence of any such marriage relationship, the Court must be clear about the precise kind of “marriage” relationship in issue in the proceedings. There aree kinds of &#8b>“marriage” relationships covered under the definition of “spouse” in S.1 - a registered marriage under Part V of the Marriage Act (Ch. No. 286), a customary marriage recognised by Part II of the Marriage Act and, if I may use the term “status marriage” for want of better term, described in S.1 under the definition of “spouse.” The onus is on the comant nant to prove the existence of any of these three types of “marriages” as required by S.2 and it isthe dant to p to prove the absence of any of these types of relationships as prescribed by d by S.9(1)(c). The proof of the exie or wtherwise of a registered marriage and customary marriage should not pose any great diat difficulty whereas proof of a &#8220us marriage” does. Recently in App. No. 501 & 502 Elma Elma John & Luke Mane -v- John Nake, Unreported National Court judgment handed down at Lae on 14 May 1999, I laid down various considons relevant to determiningining a “status marriage” and the test to be applied. I said:

“As to what factors are relevant to be considered in deciding whether a relationship is one enjoying the “status of a marriage&# are many and of course will depend on the circumstances of each case. Some of the nohe notableonommon factors include the circumstances of cohabitation including the place and period of cohabitation; the children born to the couple in this period; the acnce of union of the couple by the immediate parents and reld relatives of the couple throughout the period of cohabitation; where customs of certain societies require bride price payments as a pre-requisite to a valid marriage, the demand for payment of bride price by the woman and her relatives in this period; the reciprocal exchange of gifts and undertaking of economic obligations between the couple and their respective relatives in recognition of or in furtherance of their relationship and the regard had of the relationship of the couple by members of the community the couple live in and the people they relate to.

The test is an objective one. The Courtld ask itself.&#1f. Having rega the aggregate gate of all the relevant factors, is the relationship between the man and the woman one that ordinary people in the community they live in or where they come from, and the releveople they relate to, one tone that is accepted or regarded as one of a husband-wife relationship, that is, one of “marriage?”

In relation to the first ground of appeal, the uncontested evidence before the Magistrate were that Nelson and Esther both come from the Watabung/Goroka area of the Eastern Highlands Province and they speak the same local dialect. Coplanes from the Chimbu pmbu province. All the parties lived at Kamkumung Settlement at Lae and are known to each other. omplainant he was ̶“married to Esther for 7 months from April - November 1998&1998”, to which Esther agreed byng Aftis, she left left due tdue to his continuous physical abuse of her and she went to live with Copland as “husband and wife.” All parties agreat paymentyment of briice fvalid customary mary marriaarriage was a requisite of their common local Highlands custom and that no such bride price was paid when ouple started living together. was also evidencidence shce showing that Nelson accepted his customary obligation to pay bride price and that he would pay it by instalments of an unspecified amount for an indefinite period.

There was dispute however, over the actual payments made by Nelson in this period. Nesaid he assisted Esther&ther’s family in their daily and did so by paying some K6,000 in the short period, some of which were K100 to Anton Koin Koin, K120 to Yanepa, K90 to Elisha MefaK60 to Esther’s mothemother. Esther said Nelson did not pay bride price at all in the short period they “were married.” He only gave o her father ther as compensation for insulting him and K120 to her brother for accommodatir living in his house.&#160 She stromaintained these pese payments were not for bride price, hence there was no customary marriage and certainly no registered marriage.

The Magistrate found that even though bride price was not paid, he found this was an exceptional case where both of them were living together and felt they were married. Allies t disputispute knew knew each other and they knew Esther was married to Nelson. Esther ran away ut dissolvssolving her marriage to Nelson and lived wiplandcommitted adultery. He found the complaint provedroved and and awarded damages against the appellants.

It is clear to me thatMagistrate did not decide tide the issue of a subsisting marriage on the basis advanced by the complainant, that is, a customary marriage. He appears to have g160; o60; off on a different course and decided there was a marriage relationship of some kind but he made no reference to a “customary marriage” or a “status marriage”. When a magistracides the ithe issue of a subsisting marriage, he must be clear in his mind about which of the three types of marriage relationshe parties are relying on - a registered marriage, customary marriage or “status mtus marriage” as defined in S.1. This is because difterensiderationations apply to each of these three types of “marriage” relationships. In this case, I am at a loss to understand what kind of marriage the magistrate is talking about.

In my view, it is clear from the evidence that there was no registered or church marriage. The complainant’e wase was that there was a customary marriage based on an agreement to pay bride price by instalments to Esther’s relatives, of an unspecified amount forndefinite period, in the form of meeting their daily needs.eeds. There is evidence to show he paid a total of K370 but not K6,000. A sum in the vicinity of K6,000 appears to be a realistic figure for bride price, which Nelson may have had in mind anch Esther may also have had in mind.

I agree gree with Esther that K370 paid was not for payment of bride price but payments made for all sorts of things. e light of her denial of t of the existence of a registered or customary marriage, I undersher reference to their 6 mo 6 months relationship as one of “marriage” to mean living as a married couple together under one roof. The payment ofomary bride ride price is a distinct payment which has some public ceremonial significance. Theents made by the responespondent in this case lack these essential characteristics. As in (ante), the parties to the relationship in the present case all coml come from the Highlands region. Whsaid >Elma John &ahn & Luke Mane -v- John Nake on the custom of bride price in Highlands societies is appoto the present case. I said: “IIt could be argued that the contenontentions that Luke and Elma had come up with now regarding bride price could be a recent invention, to legitimise their adulterous relationship. If this was a serious in e in their relationship of 7 years, then one would expect the relationship between John and Elma to have broken up long ago.; Seven years of cohabitation in the face of difficult times, is a long time and it canRn’t be lightly dismissed as a temporary “marriage” relationship pending legitimisation by the payment of bride price.

“On the other hand, the payment of customary bride price is an essential pre-requisite to the existence and recognition of a customary marriage in the Highlands societies where the parties come from. Such fa as love between then the parties, period of cohabitation, and all the other relevant factors referred to earlier take a secondary stage. Bride price is the funtal ntal pillar of a customarriage. If the woma woman’s parents waive their rights to demand bride price for their daughter, that may be permissibl60; But it appears, both parents, not just one, must take aake a common stand on bride price. If oney is not prepared toed to waive his or her right to bride price, there is no waiver. In the precase, that is exis exactly what has happened. John&#8 unpaid brrice comm commitments questioned the validity of y of his relationship as early as 1994. A largtion of their yea coea cohaion was under clor cloud. It also afd the welfare ofre of their child Jason. It0; It was untraditiond uand uncustomary fon to turn a blind eye to the demands for bride price and send seek the unilateral approval of Elma’s mother. In the light of tfactony rany reasonable person from the Highlands would havd have no difficulty in concluding that theirs was (not) a customary marri/p>

“Of the two completing arguments, I am more persuaded by the latter argument aent as the most sensible of the two. I find the requisite for customary marriage to be an overriding consideration in Highlands societies where the parties in these proceedings come from. Both pa to the relationshionship, that is John and Elma, were well aware of this custom and knew that John would have to pay bride price at some latter stage. This neventuated at John&#ohn’s initiative. For these reasons, Iider tder that the relationship between John and Elma was not one which could reasonably be regarded by ordinary people fro High living in their heir own villages or in towns such as in Lae, as (a valid) customary marrimarriage.”

In the present case, no such customary bride price was paid. Furtherre is no evid evidence of localom ttom to show that the custom of the parties allowed marriage by agreement for payment of bride price by instalment payments of an unspecified amount forndefiperiod. The; There is also no cevir evidence to show show the agreed total bride price payment and duration of periodic payments.

For these reasons, I find that on the evidence, the magistrate could not possibly have come to a conclusion that a customary marriage existed. I find he erred.

I

I allow the first ground of appeal. In tght of this decision oion on the first ground of appeal, it is not necessary to consider the second ground of appeal. I quash tcision of the mage magistra160; Each party shall meet their own costs of the appeal.