DC6002
PAPUA NEW GUINEA
IN THE DISTRICT COURT OF JUSTICE
Civil Court Jurisdiction
GR 5 CV NO. 53 OF 2021

Between:

BESSY JOHN
Complainant

And:
SELYNA JOHN
Defendant 
 
Tari: Komia (M)
14th May 2021, and 17th May 2021

COMPLAINT – complainant and summons by elder sibling - compensation claim for moneys expanded to support defendant – complainant assisted defendant in cash and in kind – a moral and ethical obligation is distinct from legal obligation – if in any circumstance, a law places an obligation or family members to consider welfare a paramount consideration – it places no obligation for repayment of such gesture or gift – such laws may only enforce a lacking moral and ethical obligation.

LAW OF CONTRACT –  particular kind of contract – essential elements of contract - whether gestures and gift are binding agreements – whether parental and guardian responsibility establish a legally binding contract – whether the benefactor of such love, care and affection displayed through gifts and gesture create legal obligation for recipient to repay – essential elements not present in such circumstance.

PRACTICE AND PROCEDURE – no practice direction in District Court – Courts Power to invoke Order 12 Rule 40 of National Court Rules pursuant to s.22 of the National Court Rules - frivolous and vexatious claim – no cause of action in law – claim untenable – claim dismissed for failing to display probable cause of action – vexatious proceedings must be dismissed with costs pursuant to s.

Held:
1.	At common law, a contract is not enforceable unless the parties intended the contract to create legal relations which are binding and enforceable, however there is general presumption that contract between family members are not intended to create legal relations. The presumption “derives from experience of life and humanity which shows that in such circumstances, men and women usually do not intend to create legal rights and obligations, but intend to solely rely on family ties of mutual trust and affection (Jones v Padavatton [1962] 2 All ER 616 at 621 (CA)).

2.	Nevertheless, that presumption is rebuttable by evidence because, in the kind of agreement reached between family members, which are never bargained nor, negotiated, a party claiming some form of repayment in future by the family member receiving assistance whether in cash or in kind must bring in substantial evidence, and such evidence must not be oral or implied but well documented to establish such contractual agreement, because it is now making the Court to turn a natural law to now enter the realm of contract law, and will have major impact in future development of contract law.

3.	Whilst family obligations and responsibilities are legislated to ensure a child is well reared and bred to adapt and live independently in the society, the law also imposes an additional emphasis on parents and guardians, but the duty to repay and thank the guardian and parents is a moral obligation and court must be strictly reluctant to enter into the realm of making that moral obligation enforceable, as it would only add to demeaning certain moral and ethical laws in our custom.

4.	Where a pleading is simply untenable in law, and there is no cause of action, the District Courts can adopt practice and procedures under Order 12 Rule 40 of the National Court Rules 1983 and apply the Rules by invoking S.22 of the District Courts Act in the absence of practice directions for practice procedures being made by the Chief Magistrate and approved by the Judicial Legal Service Commission Pursuant to S. 21A of the District Courts Act.

Papua New Guinea cases cited

Takori v Yagari [2008] PGSC 3; SC905
Kiwai v Kiwai [2015] PGNC 83; N5877 (19 February 2015)
PNG Forest Products and Inchcape Berhad v The State and Genia, Minister for Forest [1992] PGLawRp 573; [1992] PNGLR 85 (4 March 1992)

Other cases cited

Jones v Padavatton [1962] 2 All ER 616

Other materials cited

When is a Contract between Family Members Enforceable? By Evaristus Oshionebo  - University of Calgary Faculty of Law; ABlawg.ca

Legislations
District Courts Act 
Lukautim Pikinini Act 2015

Counsels:
Complainant:		in person	
Defendant:		in person

INTRODUCTION
1.	The complainant sues the defendant for damages and compensation for the school fee’s, financial assistance and bus fares she had provided for the defendant during the time the defendant was attending school.

BRIEF FACTS 
2.	The fact’s from which the complainant’s cause of action arises is as follows. 

2.1	The parties in this proceeding are two sisters. The complainant’s mother is the first wife, and the defendant’s mother is the second wife.  

2.2	In 2015, the defendant was accepted to study at the Don Bosco Technical Institute in Port Moresby. The total school fee was K 22, 000.00 which was partly sponsored by the TVET Sponsorship, and other half was paid by the father.

2.3	The defendant often visited the complainant and her family during weekends, and the complainant and her husband often supported the complainant through cash and kind for her busfare, food and other needs.

2.4	After completing her TVET studies in 2017, the complainant could not find any employment and returned to her village in Margarima. In 2020, she managed to secure an employment with Oil Search Limited.

2.5	When she was working, she often visited the complainant at Dauli and gave her clothes like meri blouse, skirts, and money to support the complainant, whilst the complainant was at Dauli.

2.6	Around the same time in 2020, the complainant got married and her bride-price was paid. The defendant gave her sister (complainant) K300 as her share of the bride-price, and the complainant’s sisters and brothers K100 each.

2.7	Some cows were paid as part of the defendant’s bride-price, and the complainant and her husband claim that they should have been the recipient of one of those cows because they had helped the defendant during her school days, and when they were never considered, they instituted this claim for reimbursement of all the monies and assistance they had given to the defendant during her school days at DBTI.

2.8	The complainant’s husband was raged and the deserted the complainant and took all his children with him, claiming that the complainant’s sister (defendant) and their father have not shown any appreciation for the support and backing during the defendants, school days.

3.	The complainant now claims K10, 000.00 as reimbursement of the school fee and financial support she and her husband had provided for the defendant during her school days.  

EVIDENCE

	Complainant’s evidence

4.	The complainant gave unsworn evidence from the witness dock and stated that she had been supporting the defendant through cash and kind, and at one time, her husband had given the defendant K500, and her father K500. 

5.	The defendant was adequately supported and cared for during her two years of studies at Don Bosco Technical Institute in Port Moresby.

6.	On Fridays, the defendant often went and stayed with the complainant and her husband and they took care of her bus fares and basic needs, and often gave her bus fare when she returned to school campus on Sundays or Mondays.

		Defendant’s evidence 

7.	The complainant and her husband have been supporting her in terms of bus fare when she visited them from time to time during the school days, but those visits were not on weekly basis. The visits were very rare and on a one off occasions.

8.	There was never any agreement that she would give them hefty amount of compensation as and whenever she got married, neither was there any other form of express agreement for her to repay those monies and assistance both in cash and in kind back to the complainant.  

9.	At the time the defendant found employment, her sister, the complainant was living in Dauli, and she often visited her during her breaks from work and gave her money like K50, K100, and K150, to keep her going as she was at her husband’s village whilst the husband and their children were living in Port Moresby. 

10.	The bride price was shared amongst all the tribesmen both from her mother’s clan and her father’s clan, and as such, it was shared in portions which the relatives would receive enough.

ISSUE

11.	The issue before this court is whether the Complainant’s claim is founded in law, and if the answer is to the affirmative, is the defendant liable to pay some form of compensation to the complainant?

DISCUSSION OF FACT AND LAW

12.	This kind of claim is the first of its kind for me to deal with, and I find that the claim as argued by the complainant, can be categorized under contract law

13.	In a contractual claim, there must be an offer, acceptance, and a consideration for the contract to be a binding and enforceable contract. There must also be the meeting of the minds (‘consensus ad idem’).

14.	Nevertheless, can a family obligation or gesture done in goodwill or a gift be enforceable in law? To my mind, such claims lack the ingredient of a contract. This claim as I see is a claim that is based on frustration and anger because of an expectation. 

15.	The expectation placed on a party to a contract by the other party is distinct and separate from this kind of claim associated with family member’s gifts and gestures consequential to human nature. This kind of claim is a claim that is based on goodwill and is more or less to my mind can be properly categorized as a gift or kind gesture. 

16.	Then I also ask myself another question of whether principles of equity demand this Court to adequately compensate the complainant and her husband of the hard work put in by them in ensuring the defendant is supported so she can complete her studies? It is simply no. 

17.	If this court is to give meaning and allow the claim to proceed and award such claims, it would be giving a legal contractual obligation on every parent and family members to support their children and relatives so as to be paid back equally for all the contributions they make to the child or relative they are taking care of. It is even dangerous to decide on ‘implied terms’ too.

18.	This kind of support would be really unfair and can never be allowed to stand. It must never be encouraged for the following reasons;

(a)	Every parent and relative would run to court for enforcement of their hard work in rearing and caring for their child or relative and would denote a legal obligation in rearing and caring for a child or relative.

(b)	This kind of agreements are not contractual in nature, as they do not have the basic ingredients of an offer, acceptance and considerations that would form the basis of an agreement or contract that is enforceable in court.

(c)	Equity would not also allow such to happen as it is a gift or gesture and is never enforceable in a court of law or equity.

19.	In addition to the above, the court is also mindful that such claims as this, and claims arising from prenuptial agreements are really unenforceable in court unless there is evidence showing that parties explicitly agreed to those terms and those terms were agreed to in express terms and conditions evidenced in written document. This is in fact a first claim of this kind to come before any courts in this country for deliberation, or if it has, perhaps it has not been reported until it is now. In matters relating to prenuptial agreements, Kandakasi J (as he then was) in Kiwai v Kiwai [2015] PGNC 83; N5877 (19 February 2015) in a very elaborative gave a distinctive ruling of the elements of a prenuptial agreement. 

20.	In this case, I note that, whilst this case may not fall under any category of contract law, so to say the nearest to the Kiwai case by reasons of agreement between loved ones or family members, I am minded to observe and ascertain if there is any element of a contractual agreement existing, based on evidentiary materials and not simply based on parties conduct. In doing so, it is also important to consider and weigh out the moral and ethical duties and obligations, and to distinctly separate it from contractual obligations. 

21.	The responsibility placed on every parent and family member to help in rearing and caring for a child is a moral obligation and must never be given a treatment so as to equate it to a contractual obligation

22.	In this case, I observed the following;

-	There is no offer to the agreement
-	There is no acceptance
-	There is no consideration
-	There is no meeting of the mind
-	All the complainant’s gifts and gestures towards the defendant were unenforceable as it was done out of love and affection, unless there has been evidence to the contrary to establish otherwise, vis a vis a contractual agreement.

23.	At common law, a contract is not enforceable unless the parties intended the contract to create legal relations. Whether or not the parties intended to create legal relations is determined objectively by examining the circumstances existing at the time of the execution of the contract. However, there is general presumption that contract between family members are not intended to create legal relations. The presumption “derives from experience of life and humanity which shows that in such circumstances, men and women usually do not intend to create legal rights and obligations, but intend to solely rely on family ties of mutual trust and affection (Jones v Padavatton [1962] 2 All ER 616 at 621 (CA)), and that it is presumably rebuttable by evidence because, in the kind of agreement reached between family members, are never bargained nor, negotiated.

24.	From my analysis of her short submission, I find it to be more or less arguing that her husband’s and her gestures and gifts was binding on the defendant, and the defendant owes them monies for their gestures and gift. The question to my mind whether a gift or gesture given to another person by a family member or parent, sibling, aunt, uncle, cousin or grandparent create a legally binding obligation on the recipient to repay those gifts and gestures.34

25.	I am fortified in my opinion that, rearing and caring of a child (whether adopted or biological), siblings, niece, nephews and grandchildren is a moral responsibility placed on every parent and guardian of that child. Whilst the defendant in this case may not have been a child, the moral responsibility to care for her as a child and a student. was fulfilled by the complainant and her husband.

26.	It is as I said, a moral responsibility, and whilst the law may place a legal responsibility, I am of the view that, law is only placing an additional emphasis on that moral responsibility by legalizing the parental and guardian responsibility in rearing and caring for a child. Nevertheless, even if the law places additional emphasis on the moral responsibility, there is no law that places a reciprocated obligation to repay an act that fulfills a moral responsibility, and even if there were such laws, I would sufficiently conclude that such laws would only demean the value created and curtailed by morality and ethics, and would only contribute to a decrease in the moral code of humanity with respect to parenting. 

27.	Whilst every parent and guardian has a moral responsibility to rear and care for their child, whether that child appreciates the efforts put forward by his parents and guardian is also a moral obligation placed on the child. 

28.	The Lukautim Pikinini Act 2015 is an example of an instrument that creates and gives additional emphasis on the legal responsibility on every parent and guardian to ensure that the upbringing of their child is morally and legally sound. There is no legal binding obligation created on the part of the child receiving that support and love to repay those acts of gesture and gift. The obligation on the part of the child is one of a moral and ethical nature to make those parent and guardian proud of their efforts by achieving feats in life such as being a respected person in the society with high moral and ethical values, graduating from a recognized institution with certain qualifications, and doing and achieving amazing things that are positive in life so as to reflect exceptionally well on the family name.  

29.	Whether the child repays or not, the goodwill gesture, and gift is an individual decision. Every child or student have the choice to say thank you and appreciate his parents and guardian. After all, he or she will also have a family one day, and whatever expectations he would have on his children is exactly what his or her parent or guardian are having on him or her. That is an area where the law does not prescribe. It is solely left to that benefactor whether or not he appreciates his parents or guardians for their contributions to his or her life.

30.	Whilst it seems to be unfair, it is the way of life and has been the practice across every society, and I am of the view that the law must not intervene and disturb the order of nature placed by morality and ethics which has been passed on from generation to generation from time immemorial. Having said this, every child that have had had parents and guardians who provided them with best education and other conditions in life should be ashamed of themselves if they have failed to say thank you in cash or in kind to those parents and guardians. 

31.	In this case, the complainant may have an argument and a cause of action if one is to apply morality and ethics. But that does not necessarily mean that the defendant is legally obligated to pay back those gestures of goodwill, and gift accorded to her by the complainant. It is a mere obligation in law, but a serious obligation worth considering in terms of her moral and ethical responsibility to the complainant. 

32.	Another important point I raise is the frivolous and vexatious nature of the proceeding. Any cause of action or suit or proceeding embarked on in litigation by litigants in any given proceeding, the court must strenuously consider the complaints from the outset, and if the court finds that the proceeding has no basis for its cause of action in rem or in personam, the court must dismiss such cases because there is no legal basis for the cause of action.

33.	In proceedings such as this, the courts also have the discretion to strike out matters which pleadings do not disclose reasonable cause of action. Whilst s.21 of the District Courts Act allows for the Chief Magistrate to formulate practice directions and for those practice directions to be issued pursuant to the authorization of the Judicial Legal Service Commission, s.22 allows for the District Courts to grant such relief, redress or remedy, or combination of remedies, whether absolute or conditional, and also give the same effect to every ground of defence or counterclaim, whether equitable or legal, as ought to be granted or given in a similar case by the National Court and in as full and ample a manner. 

34.	I therefore, pursuant to s. 22 of the District Courts Act, now apply Order 12 Rule 40 of the National Court Rules to deal with the issue of whether this proceeding has a cause of action in law, and whether or not, this proceeding is frivolous and vexatious, falling within the precincts of Order 12 Rule 40. This rule states:

Order 12 Rule 40 reads:

“(1) Where in any proceeding it appears to the Court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings:

(a)	no reasonable cause of action is disclosed; 
(b)	the proceedings are frivolous or vexatious; or
(c)	the proceedings are an abuse of the court process of the court,
the Court may order that the proceeding be stayed or dismissed generally or in relation to any claim for relief in the proceedings. 
(2) The Court may receive evidence on the hearing of an application for an order under sub-rule (1) of this Rule.”

35.	In the case of PNG Forest Products and Inchcape Berhad v The State and Genia, Minister for Forest [1992] PGLawRp 573; [1992] PNGLR 85 (4 March 1992) Sheehan J stated that;

“There is a long line of history of decided cases where one party or another has sought to strike out the proceedings of an opponent to obviate the need for trial. As long ago as 1887 in Republic of Peru v Guano Company (1887) 36 Ch D 489, Chitty , J said:
“if not withstanding defects in the pleading, … the Court is of the view that a substantial case is presented the Court should, I think, decline to strike out the pleading: but when the pleading discloses a case which the court is satisfied will not succeed, then it should strike it out and put a summary end to the litigation.”

36.	Whilst a plaintiff or a claimant must not be driven from the judgment seat, the courts must protect its robustness by filtering out unwanted and unsubstantiated claims, which hardly have any basis or chance of success in law or equity. If the court is seen by the public to entertain claims merely because of logic rather than law, it would create a judicial system that works meekly to logic of the people rather than the wheel of justice, based on principles, and mechanics of law.
37.	I find in this proceeding also that the pleadings in this case disclose no reasonable cause of action. My preceding discussions tend to point towards the fact that the proceeding lacks the ingredients on the face of the evidence to establish that there was an agreement between the complainant and the defendant. 

38.	Having come to the above conclusions and the reasons and findings above, I am inclined to conclude this proceeding to lack any elements of a contract, and therefore there is no proper cause of action in law and in equity, neither is there any elements of an agreement which would warrant me to decide otherwise, and as such, I will order as follows;

THE COURT HEREBY ORDERS:

1.	Pursuant to S. 22 of the District Courts Act and Order 12 Rule 40 of the National Court Rules 1983, the information contained herein this summons filed by the complainant is dismissed for lacking proper cause of action and for being frivolous and vexatious.

2.	Parties shall bear their own costs.

3.	Time is abridged.

BY THE COURT	
His Worship Mr. Edward A. Komia