N11298
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

WS NO. 204 OF 2023

BETWEEN:
JENNIFER MEKA YAMO, in her capacity as a WIFE AND PART OWNER OF THE SECOND DEFENDANT HEREIN
Plaintiff

AND:
MEKA YAMO, in his capacity as a MANAGING DIRECTOR OF THE SECOND DEFENDANT HEREIN
First Defendant

AND:
YAMO SMALL SCALE MINING LTD
Second Defendant

LAE:   DINGAKE J
14 JUNE 2024; 05 MAY 2025

DAMAGES – claim for damages for loss and injuries sustained for desertion by first defendant – plaintiff alleges being married to first defendant through custom – bought properties and started business together – plaintiff claims for reasonable and fair portion of the shares in the Second Defendant as part of her contribution - no cogent and credible evidence that establishes that the Plaintiff has rights or interests over the Second Defendant -  plaintiff bears the onus to prove her allegations and any loss she suffered on a balance of probabilities – claim dismissed 

Case cited
Ruth Apinas v Jethro Apinas & Redville Properties (2019) N8122

Counsel
Mr. Warren Kume for the plaintiff
Mr. Luke Vava for the defendants

1.	DINGAKE J:  INTRODUCTION: This is my Judgement with respect to a suit lodged with this Court by the Plaintiff against the Defendants, in which she claims damages for losses or injuries she has sustained after she was constructively deserted by the First Defendant.

The Pleaded case against the Defendants

2.	The Plaintiff’s claim is captured in her Statement of Claim endorsed to the Writ of Summons.

3.	It is not necessary to embellish this judgment with reproducing the entire pleadings.

4.	Essentially, in her pleadings, the Plaintiff alleges that she was married to the First Defendant under custom or customary law. She alleges that she was married to the First Defendant by the Watut custom of Bulolo District of Morobe Province since 2000 and that the said marriage has subsisted for twenty-four (24) years.

5.	The Plaintiff further alleges that she raised money over the years that assisted in the acquisition of their Matrimonial properties, including two houses (one house at Pine Top, Bulolo and another at 4 Mile, Lae City, Morobe Province and the establishment of the Second Defendant. The Plaintiff says, she is entitled to claim reasonable and fair portion of the shares in the Second Defendant as part of her contribution to the establishment of the said company.

6.	The Plaintiff avers that she was ill-treated and eventually deserted by the First Defendant and thereby bringing their marriage to an end.
The Pleaded Defence
7.	The First Defendant denies ever being married to the Plaintiff and alleges that the relationship he had with the Plaintiff was a de facto relationship or could otherwise be characterized as a live in partnership.

8.	With respect to the Second Defendant, the First Defendant in his defence says he is the sole owner of a small-scale alluvial mining business registered as Yamo Small Scale Alluvial Mining. He says it is a business registered under the Business Names Act, and it is not a company as claimed by the Plaintiff in her Statement of Claim.
The Issue
9.	The only issues that arises is whether the Plaintiff is entitled to succeed in her claim.

Evidence

10.	The evidence of the Plaintiff is captured in the Affidavits below that were tendered without objection and admitted as evidence:

a)	Affidavit of Jennifer Meka Yamo sworn and filed on 15th March 2024 (Doc No. 19) – Exhibit PX1;

b)	Affidavit of Anna Rex sworn and filed on 6th November 2023 (Doc No. 15) – Exhibit PX2;

c)	Affidavit of Joshua Kamuge sworn and filed on 26th October 2023 (Doc No. 14) – Exhibit PX3; and

d)	Affidavit of Pr. Leham Dex sworn and filed on 26th October 2023 (Doc No. 13) – Exhibit PX4.

11.	The Defendants relied on the following Affidavit material which was also admitted as evidence without objection:

a)	Affidavit of Meka Yamo sworn on 31st August 2023 and filed on 1st September 2023 (Doc NO. 9) – Exhibit D1;

b)	Affidavit of Tony Sailas sworn on 11th October 2023 and filed on 17th October 2023 (Doc No. 10) – Exhibit D2;

c)	Affidavit of Dick Ben sworn on 11th October 2023 and filed 17th October 2023 (Doc No. 11) – Exhibit D3;

d)	Affidavit of David Sambano sworn on 13th October 2023 and filed on 17th October 2023 (Doc No. 12) – Exhibit D4;

e)	Affidavit of Meka Yamo sworn and filed on 13th May 2025 (Doc No. 23) – Exhibit D5;

f)	Affidavit of Endengo Yamo sworn and filed on 13th May 2024 (Doc No. 24) – Exhibit D6;

g)	Affidavit of John Yamo sworn and filed on 13th May 2024 (Doc No. 25) – Exhibit D7.

Summary of the Evidence

12.	The effect of the totality of the Affidavit material in support of the Plaintiff’s case is that she was married to the First Defendant under customary law as indicated earlier.

13.	In her Affidavit, Document No. 19, the Plaintiff says that her relatives came and openly declared the parties’ intention to marry each other and both sides of the relatives agreed to the marriage. The Plaintiff avers that the marriage was done in accordance with the practices and customs of both parties. Both parties come from Watut area of Bulolo District, Morobe Province.

14.	According to the Plaintiff, both parties, through joint effort built two houses, one at Pine Top, Bulolo and another at 4 Mile, Lae City, MP. The Plaintiff avers that she raised funds from her roadside market, Gold dust collection and borrowing from friends and relatives.

15.	The Plaintiff says that out of the moneys she raised as indicated above, she financed the start up of the alluvial mining operation which she says the First Defendant registered as a company, being the Second Defendant.

16.	The Plaintiff complains that during the subsistence of their relationship, the First Defendant subjected her to harsh and hostile treatment, including engaging in extra marital affairs and eventually deserted her.

17.	The Plaintiff further says that she was the one who gave the idea to the First Defendant to set up the alluvial mining business.

18.	The evidence of the Defendants in brief denies the Plaintiff’s claim in its entirety. The First Defendant says he was never married to the Plaintiff by custom as the Plaintiff claims. He says that he met and cohabited with the Plaintiff in 2010 and that the relationship was not a good one as the Plaintiff cheated on him. He also says that the Plaintiff drank alcohol.

19.	The First Defendant’s evidence is also to the effect that in May 2022, the Plaintiff attempted to kill him by using a bush knife. He avers that in the process the Plaintiff managed to cut his left arm.

20.	The First Defendant avers that the Plaintiff was arrested and charged for attempted murder in May 2022, and was remanded in custody at Buimo CIS until he withdrew the charge. He says after he withdrew the charge the Plaintiff was discharged on the 29th of July, 2022.

21.	The First Defendant says that he stopped living with the Plaintiff in April 2022. He admits they have been cohabiting for twelve (12) years and not twenty-three (23) or twenty-four (24) years.

22.	The First Defendant avers that the Second Defendant is not a company, but a business registered under the Business Names Act. He avers that the gold and alluvial mining has been part of his family business for generations.
Analysis of the Evidence
23.	On the evidence, it is clear that the Plaintiff and First Defendant were involved in a romantic relationship that lasted for a few years. On the evidence, the Plaintiff has not placed before the Court sufficient evidence to establish that the parties were married to each other in terms of custom. The Plaintiff’s pleadings to the effect that she was married to the First Defendant in accordance with the practices and customs of both parties obliged her to tender evidence from those whose knowledge of those practice and customs is not questionable. Such alleged practices and customs must be clearly stated and shown to have been followed. 

24.	On close scrutiny it becomes clear that the Plaintiff only makes assertions on the alleged marriage that falls short of the requisite proof the Court requires as indicated above. The Plaintiff’s claim relating to the alleged customary marriage are too general and sketchy. No details relating to requisite of customary marriage that need to be satisfied are given.

25.	In the result, I find that the Plaintiff has failed to prove that the parties were married to each other on a balance of probabilities, in terms of the custom of where both parties come from.

26.	The cause of action manifested by the pleadings is not based on cohabitation, but on customary marriage.

27.	With respect to any of financial contributions, the Plaintiff alleges to have contributed to the acquisitions of the properties referred to earlier and to the Second Defendant as a business. The Plaintiff makes assertions that do not constitute evidence. Evidence in the form of bank statements or financial records that supports her assertions is not there. There is also no evidence, in the form of receipts that shows any payment as part of the set up or maintenance of the Second Defendant as a business.

28.	On the evidence, I am satisfied that the Second Defendant is not a company. No Certificate of Incorporation has been furnished to prove that the Second Defendant is a company.
Application for the Law to the Facts
29.	The Plaintiff bears the onus to prove her allegations and any loss she suffered on a balance of probabilities. Significantly, the onus is not on the Defendants who deny the Plaintiff’s claim.

30.	In this case, the provisions of the Marriage Act of 1963 and the Married Persons Property Act are relevant.

31.	Section 3 of the Marriage Act provides that:

“3.	CUSTOMARY MARRIAGES.
(1) 	Notwithstanding the provisions of this Act or of any other law, a native, other than a native who is a party to a subsisting marriage under Part V. may enter, and shall be deemed always to have been capable of entering, into a customary marriage in accordance with the custom prevailing in the tribe or group to which the parties to the marriage or either of them belong or belongs. (emphasis mine)
(2) 	Subject to this Act, a customary marriage is valid and effectual for all purposes.”
32.	Section 15(1) of the Married Persons Property Act provides as follows:
“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; or
(b) 	a person, bank, company, public body, society or public officer in whose books any property of either spouse is standing,
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.”

33.	It is plain from Section 3 of the Marriage Act that customary marriages in Papua New Guinea are valid and recognized.

34.	Put differently, customary marriage entered into in accordance with custom prevailing in the tribe or group to which the parties to the marriage or either of them belong or belongs, is valid.

35.	It seems obvious from the provisions of Section 3 of the Marriage Act, that where there is a dispute of a marriage entered into in terms of customary law, a party who alleges that such marriage exists must demonstrate or prove to the satisfaction of the Court what the custom prevailing in the tribe is – and that such custom was complied with. It is not sufficient to simply assert that there was a customary marriage.

36.	With respect to Section 15(1) of the Married Persons Act, it is clear that to have a claim to the matrimonial property, one must be legally married (including by custom) and must have legal interest in the property.

37.	I have had the benefit of reading a case of this Court similar to the present, the case of Ruth Apinas v Jethro Apinas & Redville Properties (2019) N8122. This was a claim by the Plaintiff under the Married Persons Act, against her partner. The claim was dismissed on the basis of insufficient evidence. 

38.	The Plaintiff’s claim relating to special damages in business as set out in her particulars of claim (sufferings) suffers from the same defect as the claim relating to the marriage and the losses allegedly sustained. It all comes down to one thing: evidence. There is no cogent and credible evidence that establishes that the Plaintiff has rights or interests over the Second Defendant.

39.	The Plaintiff’s claim that she contributed to the establishment of the mining business simply lacks sufficient evidence that can lead a Court properly directing itself to find for her. There is no evidence in the form of bank statements or admissible documentary evidence that support her claim.

40.	This Court cannot rely on guess work. Assertions are not evidence. In this case there is simply no credible evidence to sustain the Plaintiff’s claim.

41.	The need to furnish the Court with sufficient evidence is even more important in circumstances where the First Defendant denies the Plaintiff’s claim in its entirety.

42.	In the result, I find that the Plaintiff has failed to prove on a balance of probabilities any of her claims as pleaded and that consequentially the entire claim is liable to be dismissed.

43.	In the result, the Court orders that:

a)	The Plaintiff’s claim is dismissed in its entirety, with costs, such costs to be agreed or taxed.
_____________________________________________________________
Lawyers for the plaintiff:   George Kaore Lawyers		
Lawyers for the defendants:   Luke Vava Lawyers