Andalu v Hagua [2016] PGNC 132; N6326 (23 June 2016)

N6326

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]
CIA No. 98 OF 2016

BETWEEN:

DORCAS ANDALU
First Appellant

EPE KENDARI
Second Appellant

AND
ZEROX HAGUA
Respondent

Tari: Ipang, J

2016: 17 & 23 June

APPEAL – Practice and Procedure – Nature of Appeal – Appeal from District Court – Adultery Summons – District Court found appellant guilty of adultery – made orders for compensation and further orders on custody of the child and return of bride price. Appeal on two (2) additional orders made by the District Court.

APPEAL – Practice and Procedure – District Court Magistrate acted – “ultra vires” – Appeal upheld – District Court Order on custody of child and return of bride price beyond Magistrate’s power – orders quashed.

Cases Cited:

Shem Emmanuel & Elizabeth Norman v. Elizabeth Iga (2003) N2427 [2003] PNGCR 214

Counsel:

Appellant, In person
Respondent, In person

DECISION

23^rd June, 2016

1. IPANG, J: This is an appeal against an order of the District Court in Tari on the 03^rd of August 2015. The First Appellant argued that the District Court Order which ordered that;
   
   • (1) The First Defendant (now first appellant) relatives shall refund only K35, 000.00 of the original K40, 000.00 and 10 matured pigs valued at K1, 000.00 each out of the 15 pigs paid as bride price. A Bank Cheque valued at K35, 000.00 in favour of the complainant shall be processed and paid through Tari District Court within four (4) months i.e. between 03^rd August and 03^rd December, 2015. The custody of the four (4) years old female child is awarded to the complainant (Respondent). The First Defendant (First Appellant) shall be allowed to have access to the child from time to time.
     
2. The First Appellant’s grounds of appeal as contained in her Notice of Appeal dated 02^nd September, 2015 stated that;
   
   • (1) The learned Magistrate in reaching the decision and order which is excessive in amount and decision not within the jurisdiction of the District Court.
     
3. The First Appellant and the Respondent both from Hayapuga LLG in Tari were customarily married on the 5^th June, 2010. The Respondent paid K40, 000.00 cash plus 15 pigs worth K15, 000.00. Total bride price of K55, 000.00.
   
4. Out of the Respondent’s marriage to the First Appellant, they have a female child who is four (4) years old. Their marriage is not harmonious at all as both deposed in their respective affidavits filed.
   
5. The Respondent then summoned the First Appellant before Tari District Court in which the Court made the orders on the 03^rd August, 2015 which is the subject of this appeal.
   

First Appellant’s Argument

6. The First Appellant argued that the Summons dated 10^th June, 2015 which the Respondent took out for her was for adultery only and no order reliefs claimed. She said for the District Court to go further and made further additional orders on the custody of the female child and return of bride price is beyond the powers of the District Court.
   

Respondent’s Argument

7. Respondent argued that the District Court has found First Appellant guilty of adultery and ordered her to pay compensation. The next issue which is automatic under Tari Custom is for her to return bride price which the District Court has ordered plus the custody of the female child.
   

Issue

8. Whether the District Court has jurisdiction to grant the two (2) additional orders for (1) return of the bride prices (K35, 000.00) and 10 matured pigs valued at K1, 000.00 each plus the custody of the female child aged four (4) to the Respondent.
   

Analysis and application of Law

9. The Respondent took out summons for adultery against the Appellant under the Adultery and Enticement Act which provided for compensation (see section 11, 14 & 17). The Adultery & Enticement Act does not provide for any further relief for an act of adultery for return of bride price or custody of a child or children of the marriage.
   
10. In Emmanuel v. Iga [2003] PNGLR 214 at p.2117 Kirriwom, J stated;

The power of the District Court is limited to what the enabling Act expressly provides. Generally all courts of summary jurisdiction exercise their powers within the limitation imposed upon the Court as creatures of statute. They are not court of records. Their first source of power is the law under which District Court is given the jurisdiction to deal with a matter, for example in this’ case, the Adultery and Enticement Act. If a remedy sought under the Act is unavailable the next reference point is the District Court Act, which is the overall law that creates the Court and gives its powers. If that Act is silent makes no provision for the type of relief that a party seeks, there is no other source”.

11. What Kirriwom, J stated is the correct position in terms of District Court’s source of jurisdiction. Magistrate should first look at Adultery and Enticement Act and if finds out that he has no jurisdiction then the next legislation he should consider is District Courts Act. If the District Courts Act is silent on return of bride price and custody of child then he will have to stop from there. Whilst I understand the Magistrate’s desire to deliver justice for the parties (Appellant and Respondent) however, it must be the justice done according to law and not what he thinks or assumed the law to be.
    
12. The marriage between the Respondent and the First Appellant is a customary marriage, so in terms of bride price or the return of bride price and the custody of the child, these matters must be determined by the Village Court. See sections 46 and 47 of the Village Court Act, 1989. Once the customary marriage is dissolved according to custom before the Village Court then an application with supporting documents are filed before the District Court for the magistrate to consider and if satisfied that the customary marriage has been dissolved then the magistrate issues a Certificate of Dissolution of Marriage. The magistrate does not have the jurisdiction to dissolve customary marriage or even the custody of child at first instance or through the Adultery Summons.
    
13. The civil jurisdiction of Grade 4 magistrate as far as monetary value is concerned is up to K8000.00 and the Grade 5 magistrate is up to K10, 000.00.See District
    

Courts Act. The instant case is also concerning return of K35, 000.00 which the magistrate has ordered which is beyond his civil jurisdiction of K10, 000.00.

CONCLUSION

14. Due to above reason(s), I am upholding the appeal and quash the two (2) additional orders (s) return of bride price in the sum of K35, 000.00 and 10 matured pigs valued at K1, 000.00 each plus the custody of the four (4) years old child. Respondent to meet the First Appellant’s cost of this appeal to be agreed if not taxed
    

__________________________________________________________________
Appellant : In person
Respondent : In person