Apinas v Apinas [2019] PGNC 415; N8122 (20 November 2019)

N8122

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 249 OF 2017

RUTH APINAS
Plaintiff

-V-

JETHRO APINAS
First Defendant

REDVILLE PROPERTIES
Second Defendant

Waigani: Kariko, J
2019: 19^th &20^th November

CIVIL PRACTICE & PROCEDURE – claim under Married Women’s Property Act - application to dismiss proceedings – whether reasonable causes of action disclosed– whether claims are tenable

Cases Cited:

Thomas Taiya Ambi v Exxon Mobil Ltd (2012) N4844

Legislation:

Marriage Act, Ch.280
Married Women’s Property Act, Ch.281
National Court Rules

Counsel

No appearance for the Plaintiff
Mr M Ginyaru, for the Defendant

RULING

1. KARIKO, J: The defendants have moved to have this proceeding dismissed for disclosing no reasonable cause of action, for being frivolous and vexatious, and for being an abuse of process.Alternatively, they seek payment into Court for a security deposit.
   
2. I allowed the application to be heard ex parte upon being satisfied that the plaintiff’s lawyers were well aware of the hearing yet they and their client failed to appear.
   

Brief background
.

3. The plaintiff Ruth Apinas claims to have been married to the first defendant Jethro Apinas for 17 years from 1998 to 2016.
   
4. Relevant facts seemingly not in dispute are:
   
   • From the relationship, Ruth and Jethro had three children.
   • Jethro purchased land at Allotment 68 Section 148 Tokarara in 2008 where they established their home and lived together until 2016 when Jethro left with the children.
   • There were several court proceedings between Ruth and Jethro that ensued concerning the property.
   • In October 2017, Ruth was evicted from the property upon a District Court order.
   • In May 2019, Jethro transferred the property to the second defendant Redville Properties, a business name registered to him.
     

The claim

5. The plaintiff filed this action claiming a right to co-ownership and a right to possession of the property pursuant to s. 15(1) of the Married Women’s Property Act, Ch. 281, which reads;
   

“15. Summary determination of questions as to property.

(1) If a dispute arises between husband and wife as to the title to or possession of any property—

(a) the husband or the wife...

may apply in a summary way to a Judge for an order declaring the title to, or the right to, the possession of the property.

..........”

Submissions

6. The defendants argue that the cited provision and indeed the Act has no application to the present case. First, it is submitted that the relationship between Ruth and Jethro was neither a marriage under the Marriage Act, Ch.280 or under custom. Instead, it was a de facto marriage. Second, the Court was urged to note that the disputed property was not jointly owned by the couple but was solely owned by Jethro with the title registered in his name only.
   

Consideration

7. Having carefully read the Act, I find myself in agreement with the defendants.
   
8. It is obvious that the phrase “married women” referred to in the Married Women’s Property Act, Ch. 281relates to women who are legally married either under Part V of the Marriage Act, Ch.280 (following a religious or civil ceremony) or a marriage in accordance with custom. There is no evidence that any of such marriage existed as between Ruth and Jethro. In her affidavit filed with the Originating Summons, the plaintiff merely relies on the facts that she and Jethro lived together for 10 years and together had three children; relatives considered them married; and she adopted Jethro’s surname Apinas and signed documents in that name. These statements may be true but they do not establish the existence of a legal marriage.
   
9. Furthermore, it is clear that s.15(1)(a) applies to cases where a husband and wife might jointly own a property or have joint possession of the property. In the present case, it is agreed that title to the property is in Jethro’s name, and while Ruth argues that she helped in building the house on the property, that does not entitle her to joint-ownership of the property nor the right to possession of it. She may well have a claim for reimbursement of the monies she spent on the property but that must be the subject of a separate proceeding and a different claim.
   
10. Ultimately, I consider the plaintiff’s claim as frivolous and vexatious as it is untenable. There is also an argument that no reasonable cause of action is disclosed as any cause of action disclosed cannot reasonably be brought by persons who do not have standing; Thomas Taiya Ambi v Exxon Mobil Ltd (2012) N4844.
    

Order

11. Accordingly, I order that:
    
    • (1) The defendants’ application to dismiss the proceeding is upheld.
    • (2) The proceeding is dismissed in its entirety.
    • (3) The plaintiffshall pay the defendants’costs of and incidental to the proceeding on a party-party basis.
    • (4) Time is abridged.

________________________________________________________________
Public Solicitor: Lawyer for the Plaintiff
Ginyaru Lawyers: Lawyer for the Defendants