[NATIONAL COURT OF JUSTICE]

MESULAM MERIBA

V

PHILLIP SILOU

Kokopo: Lenalia J

25 February; 28 March 2002

APPEAL – Appeal from decision of District Court – Claim for expected loss of income for impregnanting a daughter – Grade 9 student – No reasonable cause of action in law – either common or statute law.

CUSTOM – Pleadings – Duty to plead a cause of action clearly, precisely and adequately – Whether claim based on statute or customary law – Conflicts between written and customary law – In custom unless properly and substantiated by evidence – No cause in custom if not properly pleaded – Even if pleaded must be shown in evidence..

APPEAL – Civil law – Claim for impregnanting a school girl – Whether or not it is proper to claim for impregnanting his daughter – Public policy – Other available options – Obligations to education – Obligations are duties imposed on parental care as statutory requirement: Child Welfare Act (Ch. No. 276), Deserted Wives and Children Act. (Ch. No.277), National Goals and Directive Principles – Constitution.

Facts

The appellant impregnated the respondent's slaughter who was at the time a Grade 9 pupil at School. On finding out that his daughter was pregnant, the respondent removed her from school, thereby denying her an education. The respondent successively claimed compensation for loss of school fees incurred on his daughter, and future benefits he would have realised if she had completed her education. On appealed.

Held

1. 	There was no reasonable cause of action either at common law or statute.

2. 	Where a person relies on custom, it must be specifically pleaded concisely, clearly and adequately, National Court Rules O. 8 r. 27.

3. 	Educational expense spent on pupils or students is an obligation on the part of parents or guardians of children of school age. Thus no damages could be claimed for expenses expended. This is an obligation imposed by the Constitution (see National Goals and Directive Principles) though non justiciable (basic principles and social obligations) is owed whether a child is born in or out of wedlock: (see Goal No. 5).

4. The appeal is upheld.

Papua New Guinea cases cited

Buku v Rikian [1982] PNGLR 4.
Gia Kewa Piel v Eric Ranpi [1996] PNGLR 82.
Madaha v PNG [1991] PNGLR 174.

Counsel
Appellant in person.
Respondent in person.

29 March 2002 

LENALIA, J: The appellant appealed against the decision of the District Court at Kokopo made on the 28 August 2000 in which he was ordered to pay special damages to the respondent in the sum of six thousand two hundred and nine kina and sixty toea [K6,209.60] inclusive of all costs.

The facts and brief evidence put before His Worship the trial Magistrate upon which he based his decision were as follows. The respondent's daughter Siwa Silou was attending the Kokopo Provincial High School up until 1999, when the appellant contacted her and had sexual intercourse with her. It was merely a casual act of consensual intercourse and according to the very short evidence (about a half a page) by the daughter of the respondent, it was merely one act of sexual intercourse.

By about June 2000, the respondent found out that his daughter was pregnant. He removed her from school and she was unable to complete her Grade 9 education or continue to Grade 10. The complainant after having his daughter removed from school commenced proceedings against the appellant and as found by the trial magistrate for "special damages". In the summons before the District Court, the respondent pleaded the following statement of claim. For convenience and brevity's sake, I only quote from paragraph 3 downward.

3 	The complainant is the biological father of one Siwa Silou who at all material times was a Grade 9 student at Kokopo Provincial High School.

4 	In or about October 1999, the defendant exerted force and threat upon Siwi Silou at Kabakaul without her consent had sexual intercourse with her and as the result she became pregnant.

5 	In or about the second week of June 2000, the complainant became aware of Siwa Silou's pregnancy and with great concern and shame removed Siwa Silou from school and thereby prematurely terminating her educational advancement.

6 	By reason of the defendant's illegal action in making Siwa Silou pregnant, her educational advancement has been prematurely terminated, and as a result the complaint has suffered loss of school fees and other expenses incurred on Siwa Silou's education and future benefits if the said Siwa Silou completed her education and found a job.

7 	Therefore the complainant Claims:

1. Compensation of K6,037.00
2. Costs of incidental to these proceedings.

The respondent's claim was for the sum stated above (see Para. 7.1). As found by the presiding magistrate, the damages claimed by the respondent were special damages for prematurely ending Siwa Silou's educational advancement. The following are the only two grounds relied on in this appeal:

1 	The learned trial magistrate erred in fact and in law in proceeding to determine the complaint against the appellant that had no basis in law.

2 	The learned trial magistrate erred in fact and in law in not striking out the complaint on his own motion on the basis that the complaint was against public policy as any expenses incurred by the complainant in educating his daughter Siwa Silou were incurred as part of his moral obligations for which there was no duty on her part to repay the said expenses in the future.

I was impressed by the argument put forward by the appellant on arguing his appeal personally although I thought had he engaged a legal counsel; he would have been a lot better. But the appellant's argument on appeal is this, that there was no basis in law upon which the respondent could claim for any damages as the act of sexual intercourse between him and Siwi Silou was consensual. There was in fact no dispute at all whether or not sexual intercourse took place. The appellant admitted to one casual act of sexual intercourse. This was confirmed by the evidence of Siwa Silou on trial before the trial magistrate.

To this Court, it is an issue of whether or not the respondent had any right either in law or by custom to claim special damages for the use of his daughter and for the premature termination of Siwa's education. For this type of claim, two extremes or bodies of law ought to be discussed. They are statute and customary law. I deal with statutory provisions first.

Under the Constitution (see National Goals and Directive Principles Goal 5) the basic social obligations required of parents are to educate, support and to give to their children the true understanding of their basic rights and social obligations. Parents are required by law to educate, maintain and support their children until they reach age 16 years; (see ss 50 – 56 of the Child Welfare Act Ch. No. 276 and ss 1, 2 & 3 of the Deserted Wives and Children Act, Ch. No. 277). Though the basic social obligations under the Constitution are non-justiciable, this Court is duty bound to apply and give effect to such obligations because such basic social obligations are entrenched in the statutes that govern the welfare of children (see s 25 (1)(2) & (3) of the Constitution).

The respondent in this appeal claimed under two heads namely the past loss he had suffered in incurring school fees and other expenses and secondly, for the expected future benefit when and if Siwa Silou had completed her education at whatever level that might have been and her chances of getting a job. It is my view that whatever expenses spent on the respondent's daughter up until she was impregnanted by the appellant were parental basic social obligations imposed on him by law to educate and maintain her, since the welfare of every child is of paramount consideration.

Supposing the respondent was embarrassed by his daughter's pregnancy or even if she gave birth and I hope she did, the respondent and her daughter were entitled to take out an action for affiliation proceedings either before or after birth. See PART IX on Affiliation Proceedings – Child Welfare Act (ie. ss. 50 – 56).

Under the Child Welfare Act, where a single woman is pregnant by a man who does not make adequate provision for payment of confinement expenses in preparation for the birth of the child the woman can sue for confinement expenses. After a child is born, she has a corresponding or equal right to sue for maintenance of the child. So when looking at how the trial magistrate approached the claim before him, perhaps customarily, he could make such an order provided such claim was properly pleaded: Gia Kewa Piel v Eric Ranpi [1996] PNGLR 82. The next part of this discussion concerns customary law.

Whilst this Court has jurisdiction under the Constitution s 20 and Sch. 2.1 to entertain actions based on local custom, the Statement of Claim put in the body of the Summons did not disclose any action based on local custom. In order for the respondent to rely on custom, he needed to give evidence and call witnesses to prove existence of local custom requiring a man to pay compensation for the act of sexual intercourse between Siwa and the appellant. Certainly by custom, the appellant would have paid some compensation only if custom was properly pleaded. The pleadings in the Complaint and Summons do not say what was wrong with the relationship between the appellant and Siwa.

Simply put, as admitted by appellant and respondent's daughter, it was one act of fornication. This was not a case where the respondent's daughter was claiming for the maintenance of her child under the Child Welfare Act in which case such maintenance is allowable by statute to be made fortnightly.

Under sections 2 and 3 of the Customs Recognition Act (Ch. No. 19) the Courts are required to ascertain from evidence, if there exists such a custom. When examining the evidence put by the respondent before the trial magistrate there is no reference made to custom whatsoever. In fact only two witnesses were called, the respondent and his daughter the subject of these proceedings. It is imperative that when a person relies on some local custom, the pleadings must disclose the cause of action and it must be clear, precise and adequate: Madaha Resena v PNG [1991] PNGLR 174. At pages 183 – 184 Kapi, Dep. C.J. said:

"As a matter of law and of good practice, a new cause of action based on custom should be separately instituted. The reason is that the parties should be allowed to plead issues of custom clearly and precisely. This will enable counsel to make proper enquiry into custom and enable the Court to reach an informed decision on these issues."

The requirement to clearly plead a customary action becomes more important in cases where there may be potential conflicts between custom, the Constitution and statute or where such custom is repugnant to the general principles of humanity: see Sch. 2.1 to the Constitution.

In the instant appeal, the respondent was purely claiming for the past loss of educational expenses and which I have held was part of the basic social obligations required by law to provide to his daughter. The second part of his claim consisted of a claim for the future expected income had the respondent's daughter completed high school education and got a job. This was not an accident claim where it is possible to claim for future loss of expectation of life. Simply because the respondent nor his daughter would have known what would become of Siwa Silou in the future.

In custom, one other possible option opened to the respondent was to take his action to the Village Court where appropriate compensation could be claimed. However it would be subject to the usual limitation provided for by the Village Courts Act 1989. There would have been in my view no obstacle to the substance of such claim being pursued in the Village Court. The evidence by Siwa Silou is contained in about a half a page has an element of forceful intercourse, however, did she have to wait until she was pregnant in order for her to inform her father. Right from the start or soon after the act of sexual intercourse the victim had every right to report the matter to police for possible criminal prosecution.

Though s 22 of the District Courts Act, (Ch. No. 40) provides for general ancillary jurisdiction for the District Court magistrates, it specifically provides that in any proceedings before it, the District Court may grant relief, redress, remedy or even a combination of remedies as it is granted in the National Court. An interesting decision on the scope of s 21 of the District Courts Act was discussed in Buku v Rikian [1982] PNGLR 4. A District Court Magistrate in Rabaul heard a claim for customary compensation arising out of a de facto relationship. One of the orders made by the trial magistrate required the man to make fortnightly payments of K50.00 to the woman. On appeal to the National Court, Bredmeyer, J. found that the magistrate had jurisdiction to hear customary claim pursuant to s 21, but due to procedural irregularities, the case was sent back for rehearing before another magistrate.

The judge there further found that, the order made for periodical payments purporting to be a maintenance order could not be justified, since she had no legal basis to claim maintenance since the woman was not married to the man as only married woman can claim under the Deserted Wives and Children Act. Of interest and in conclusion is the fact that it would be inconsistent with statute and the public policy to allow as in the instant appeal the respondent to claim for special damages for the past educational expenses and for the future expected income of his daughter who had not got a job and had not even completed High School education.

As earlier stated, provision of expenses for education is an obligation of parents, at least those who are able to send their children to school. Enforcement of the basic social obligations in the context of this discussion in terms of education is possible under the Constitution, see s 63. Although the basic social obligations are non-justiciable, this Court is empowered by s 63 (2) and (3) to encourage compliance with such obligation as far as it lies within the inherent powers given this Court by s 155 (3) of the Constitution.

In this appeal, there was not even any evidence of the past expenses except for the trial magistrate to take judicial notice of the fact that the former pupil was doing Grade 9. Such important evidence is absent from the appeal file before me. Certainly Siwa Silou was educated up to Grade 9, and certainly, the respondent had spent some money and as the law stands the respondent needed to prove his case to the required civil standard of "proof on the balance of probabilities".

I uphold the appeal on it's entirety and make the following orders.

1 	The appeal is upheld.
2 	The order made against the appellant on 28 of August 2000 be set aside.
The parties shall meet their own costs.

Appellant: In person.
Respondent: In person.