[national court of justice]

otto benal magiten

v

bernadette beggie (no 2)

kimbe: cannings j

23 August, 21 October 2005

UNDERLYING LAW – Customary law as a source of the underlying law – Breach of custom as a cause of action – Approach to take when deciding whether a cause of action exists – Need to make findings of fact as to what actually happened – Need to plead and prove custom relied on – Need to make findings about existence and content of customary law being relied on – Underlying Law Act 2000 – Customs Recognition Act, Chapter No 19.

UNDERLYING LAW – Customary law – Applicability and enforceability – Determination of 'validity' of custom – Checklist of criteria to apply – Custom must not be inconsistent with a written law, especially a Constitutional Law – Whether there have been breaches of customary law – Whether a cause of action for breach of custom established – Remedies for breach of custom.

CONSTITUTIONAL LAW – Basic rights –Equality of citizens – Rights within marriage, including customary marriages – Equality of rights between males and females, husbands and wives – Interdependence within marriage – Equality of partnership – Right to privacy – Right to freedom based on law – Constitution, National Goals and Directive Principles, 2.12 – Constitution, Sections 32, 49, 55.

CONSTITUTIONAL LAW – Basic rights – Whether National Court should order two persons not to cohabit as a couple – Rights of consenting adults to enter into personal, intimate relationships – Constitutional right to freedom based on law – Right to privacy.

FAMILY LAW – Customary marriages – Polygamy – Bride-price – Recognition of importance of bride-price in determining validity of customary marriages – De facto relationships.

Facts

The plaintiff commenced proceedings alleging that one of his two wives, the first defendant, had illegally married his brother, who is the second defendant. The plaintiff claimed that the defendants' marriage is in breach of the East Sepik customary law, to which all parties are subject. He argued that two serious breaches of custom occurred. First, the first defendant breached the rule that says a woman can have only one husband. Secondly, the second defendant breached the rule that says a man cannot marry his brother's wife. The plaintiff sought a declaration that the defendants' marriage is prohibited by custom and void, and sought consequential orders for damages.

Held

1.	Breach of a valid customary law can constitute a cause of action.
2.	In the circumstances, it was ascertained that it formed part of the customary law of the Dagua people of East Sepik Province that, amongst other things, a man could marry as many wives as he liked; but a woman could marry only one man.
3.	That custom is, however, inconsistent with the Basic Rights of all citizens to equality and non-discrimination on the basis of sex and to that extent is inapplicable and 	unenforceable.
4.	The plaintiff was unable to enforce any rights under his purported marriage to the first defendant as he had not paid bride-price for her.
5.	Therefore there was no breach of custom by the defendants.
6.	The orders sought for dissolution of the defendants' marriage and for payment of damages to the plaintiff were accordingly refused.
7.	Order made that the defendants are free to live together as husband and wife.

Papua New Guinea cases cited

Application by Individual and Community Rights Advocacy Forum Re Miriam Willingal [1997] PNGLR 119.
Aundak Kupil and Kauke Kensi v The State [1983] PNGLR 350.
Constitutional Reference No 1 of 1977; Poisi Tatut v Chris Cassimus [1978] PNGLR 295.
Kolta Development Pty Ltd and Others v PNG Defence Force and The State [1997] PNGLR 585.
Madaha Resena and Others v The State [1991] PNGLR 174.
Magiten v Beggie and Wahiginim (2005) N2880.
Mark Ekepa v William Gaupe (2004) N2694.
Re Kaka Ruk and Section 42(5) of the Constitution [1991] PNGLR 105.
Re Kepo Raramu and Yowe Village Court [1994] PNGLR 486.
Re Wagi Non and Section 42(5) of the Constitution [1991] PNGLR 84.
SCR No 4 of 1980; Re Petition of M T Somare [1981] PNGLR 265.
Supreme Court Reference No 2 of 2004; Special Reference by the Morobe Provincial Executive (2005) SC785.
The State v Albina Sinowi (2001) N2175.
The State v Drikore Yuana Peter (2000) N1973.
The State v Joseph Kule [1991] PNGLR 404.

Counsel

O Magiten, the plaintiff, in person, for himself
B Beggie, the second defendant, in person, for the defendants

21 October 2005

Cannings J. 

Introduction

This is an application for dissolution of a marriage and for damages. The plaintiff is claiming that the marriage between the two defendants should be dissolved and that they should pay damages. His application is based on alleged breaches of customary law, leading to an illegal marriage. The plaintiff and the two defendants are related. In fact almost everyone involved in this case is related. They come from Woginara No 2 village, Arapes, in the Dagua district of East Sepik Province. It is the customary law of that part of the country that is at the heart of the case. Most of the people involved have lived in West New Britain Province for many years. They are:

·	the plaintiff, Otto Benal Magiten – he is the second defendant's brother and claims to be the first defendant's lawful husband – he claims to have two wives: the first defendant and another woman, Susan Benal, who was a witness in this case;
·	the first defendant, Bernadette Beggie – she was the plaintiff's wife, but has since formed a relationship with his brother, Benedict, who is the second defendant;
·	the second defendant, Benedict Wahiginim Magiten – he is the plaintiff's brother and is now living with the first defendant as her husband;
·	the plaintiff's first witness, Susan Benal – she is the first defendant's sister and the plaintiff's first wife;
·	the plaintiff's second witness, Anna Ablesim – she is Susan and Bernadette's mother;
·	the plaintiff's third witness, Deborah Benal – she is the daughter of the plaintiff and the first defendant;
·	the defendants' first witness, Paulias Duna – he is a village leader and an uncle to Susan and Bernadette;
·	the defendants' second witness, Leo Dabinis – he is a magistrate in the Tamba and Sarakolok village court, near Kimbe.

BACKGROUND

Claims

The plaintiff claims that he and the first defendant and their five children came to West New Britain several years ago to stay with his parents on their oil palm block. He has had to travel frequently since then. While he was away his wife, the first defendant, formed an association with his brother, the second defendant. They have become married. He claims that this is a disgraceful breach of their custom.

Statement of claim

On 11 May 2005 the plaintiff filed a statement of claim. He pleaded that the custom applicable was Melanesian custom (implying that it was, specifically, the custom applying in and around Dagua, East Sepik Province). The custom is that once a man and woman enter into a customary marriage, the woman cannot remarry unless the marriage is dissolved or her husband dies. He claims that neither of those things has happened but the first defendant has re-married, therefore breaching custom. The breach is said to be an acute one as the man she has married unlawfully is her husband's brother. Also, a man cannot marry his brother's wife.

Defence

The defendants filed their defence on 10 June 2005. They did not deny the existence of the custom relied on by the plaintiff. But they disputed some aspects of the validity or fairness of the custom. They also disputed many of the facts he alleged. They claimed that the marriage between the plaintiff and the first defendant was not legal, as no bride-price had been paid.

Trial

The trial was held on 23 August 2005. The plaintiff represented himself. The first defendant represented herself plus the second defendant. A number of affidavits were tendered by consent. Three witnesses gave oral evidence. Oral submissions were made by the parties and the court reserved its decision.

APPROACH

This is a case based on breach of custom. A special approach is required. There are a number of laws to guide the court on how custom is to be ascertained and enforced. I will take a seven-step approach:

·	First I will explain what evidence was produced to the court. I will distinguish between evidence that the plaintiff produced and what the defendants produced.
·	Secondly I will set out what the plaintiff's and the defendants' submissions were. I have carefully considered their submissions but I have had to take into account that none of the parties were legally represented. In some ways this made it easier to understand what the case was really about. They all made it very clear how they felt about this problem that has landed in court. But the downside of not having lawyers is that I did not get the benefit of carefully researched and presented legal arguments. The application of customary law in the superior courts of PNG is not a straightforward process.
·	Thirdly I will make some findings of fact as to what has actually happened in this case. There are complex and intriguing family relationships involved.
·	Fourthly I will make findings about the existence and content of the customary law that the plaintiff says has been breached. These findings will be based on the evidence presented in court. There are guidelines given in both the Underlying Law Act and the Customs Recognition Act about how this is to be done.
·	Fifthly I have to address the question of the applicability and enforceability of the custom. This means that I have to determine the 'validity' of the custom. The court will not enforce unjust, barbaric or inhumane custom. It is not allowed to. There is a checklist of things that have to be followed. This does not mean the judge imposes his or her personal view on whether a custom is good or bad. The law tells us what we have to check. If at the end of this checking process, I conclude that all or part of the custom is inapplicable and unenforceable, I will make a declaration to that effect.
·	Sixthly, if the custom passes the test of applicability and enforceability, the next thing to decide is whether it has been breached. Here it will be a matter of applying the law to the findings of fact that have been made, to establish whether the plaintiff has a cause of action. This is just the same as happens in an ordinary court case. If the result of this step is that 'no, there has been no breach of valid custom', that will be the end of the case. The plaintiff will lose. If, however, I conclude that there has been a breach, the case will proceed to the seventh and last step.
·	Finally, if there has been a breach of a valid custom the question becomes what remedy should be given, if any? The law provides clear guidelines here. The plaintiff does not necessarily get what he wants. He has to prove that the remedy he is seeking is fair and just.

STEPS 1, 2 and 3 (Omitted)

STEP 4: EXISTENCE AND CONTENT OF CUSTOM

I will now make findings about the custom that the plaintiff claims has been breached. Before doing that I need to say something about the status of custom in the laws of Papua New Guinea.

The Rule of Law 

Papua New Guinea is a country in which the Rule of Law prevails. Well-defined and established rules, or laws, exist and everyone who lives in or comes to this country is expected to know them and abide by them. We do not have Rule By Individuals. We do not have dictators or tyrants who can Rule By Decree. At least they cannot do so lawfully. We have many people who make, interpret, apply and enforce the law. But the idea of the Rule of Law is that the law is supreme. No one is above it. That means all manner of high-ranking people, like the Queen and Head of State, the Governor-General, the Prime Minister, the Chief Justice and all the Judges, the Speaker of the National Parliament, the Chief Ombudsman and all the other leaders in the public sector and those in the private sector must yield to the law, just like everyone else.

Many laws exist to control behaviour of individuals. Everyone in the country has to follow the law. If you do not comply with the law, the law sets out what happens to you. Some laws are described as criminal laws. If you break those laws you can be subject to criminal penalties such as being sentenced to a term of imprisonment. Other laws are civil. If you break them someone might be able to take you to court to obtain a civil remedy, such as an order to pay damages or compensation.

The Constitution, Section 9 (the laws), spells out what the laws of Papua New Guinea consist of:

The laws of Papua New Guinea consist of— 

(a)	this Constitution; and
(b)	the Organic Laws; and
(c)	the Acts of the Parliament; and
(d)	Emergency Regulations; and
(da)	the provincial laws; and
(e)	laws made under or adopted by or under this Constitution or any of those laws, including subordinate legislative enactments made under this Constitution or any of those laws; and
(f)	the underlying law,
and none other.

Written and unwritten laws

Most of the laws in s9 are written laws. That is you can get an officially published copy of the law. It is written down in a document. Others are unwritten. In PNG the unwritten laws are called the underlying law. There is nothing unusual about having unwritten laws. Plenty of other countries have them. In PNG our underlying law comes from two sources: custom and the common law of England. Custom is the law that existed throughout PNG's many cultures and societies before colonisation came to the country. It has been passed on from generation to generation, often changing and evolving along the way. The same goes for the common law of England. It has developed over many centuries. PNG decided to adopt it at Independence.

In the hierarchy of laws, though both custom and common law form the underlying law, custom, if it is enforceable, is a superior law to common law. (See Madaha Resena and Others v The State [1991] PNGLR 174, Supreme Court, Kapi DCJ, Amet J, Los J (the Fisherman's Island case.)) The superiority of custom over common law has since been reinforced by the Underlying Law Act, ss4(3)(c), 6, 7(3).

Underlying law

A lot of thought was put in to deciding how to treat customary law and common law. It was agreed that they would continue to be a part of the bundle of laws applying in the country. The courts were obliged from the beginning, by Schedule 2.4 of the Constitution (judicial development of the underlying law) to ensure that the underlying law develops as a coherent system in a manner that is appropriate to the circumstances of the country from time to time. (See generally E L Kwa, Constitutional Law of Papua New Guinea, Lawbook Co, 1991, pp 44-52; O Jessep and A J Regan, 'Developing a Coherent Underlying Law – Integrating Custom and Common Law', Twenty Years of the Papua New Guinea Constitution, Lawbook Co, 2001, pp 114-158.)

It was accepted that sometimes custom or common law would conflict with other laws. So a system had to be worked out for identifying these laws and deciding which would actually be applicable and enforceable. This system was put into the Constitution at Independence particularly through ss 9 and 20 and Schedules 2.2 and 2.3 and, through the Customs Recognition Act. Recently the system changed a little, when the Parliament enacted the Underlying Law Act 2000.

The system is a twofold process:

·	the court has to work out what the customary law is, what its rules are, whether it is still current and who it applies to; and having done that,

·	the court has to determine whether that custom will be applied and enforced as part of the underlying law.

The first part of the process is what I earlier described as step No 4 in the approach being taken to this case. The second part of the process is step No 5. (See under the heading 'Approach" at the start of this judgment.) I am now at step No 4.

Ascertaining the existence and content of customary law

There has been a lot of talk about custom in this case and I have to determine precisely what rules of custom exist. In undertaking that task I have had to apply a number of guidelines set out in both the Customs Recognition Act and the Underlying Law Act.

Section 2 (proof of custom) of the Customs Recognition Act states:

(1)	Subject to this section, questions of the existence and nature of custom in relation to a matter, and its application in or relevance to any particular circumstances, shall be ascertained as though they were matters of fact.

(2)	In considering a question referred to in Subsection (1), a court—

(a)	is not bound to observe strict legal procedure or apply technical rules of evidence; and

(b)	shall—

(i)	admit and consider such relevant evidence as is available (including hearsay evidence and expressions of opinion); and

(ii)	otherwise inform itself as it thinks proper.

(3)	For the purposes of the decision on a question referred to in Subsection (1) a court may—

(a)	refer to books, treatises, reports or other works of reference, or statements by Local Government Councils or committees of Local Government Councils (whether published or not); and

(b)	accept any matter or thing stated in such works as evidence on the question; and

(c)	of its own motion, call such evidence or require the opinions of such persons as it thinks fit, but this subsection does not limit in any way the discretion of the court in obtaining evidence or informing itself on the question.

(4)	Notwithstanding Subsection (1), where an appeal is made from a decision of a court, the court that hears the appeal may consider de novo a question referred to in that subsection that arises in the appeal.

Section 16 (ascertainment of customary law) states:

(1)	A question as to the existence or content of a rule of customary law is a question of law and not a question of fact.

(2)	The court, when determining a question under Subsection (1)—

(a)	shall consider the submissions made by or on behalf of the parties concerning the customary law relevant to the proceedings; and

(b)	may—

(i)	refer to cases, books, treatises, reports and other works of reference on the customary law relevant to the proceedings; and

(ii)	refer to statements and declarations of customary law made by local, provincial and other authorities in accordance with a law empowering them to make such statements and declarations; and

(iii)	consider evidence and information concerning the customary law relevant to the proceeding presented to it by a person whom the court is satisfied has knowledge of the customary law relevant to the proceedings; and

(iv)	of its own motion, obtain evidence and information and obtain the opinions of persons as it thinks fit.

(3)	Notwithstanding any provision in any other law, when a court is hearing an appeal or conducting a review of a question concerning the customary law, the court may make further enquiries into the customary law by exercising the powers set out in Subsection (2).

Definition of custom

Those two laws say much the same thing, though interestingly the Customs Recognition Act states that ascertainment of custom is a question of fact, while the Underlying Law Act says it is a question of law. I do not think it matters much, for present purposes anyway. The terminology has changed a bit too. The Customs Recognition Act (which was a pre-Independence law) refers to "custom", whereas the Underlying Law Act refers to "customary law". Both these terms mean the same thing. There is a definition of "custom" in the Interpretation Act, Section 3, (which applies to the Customs Recognition Act) and in Schedule 1.2 of the Constitution (which applies to the Constitutional Laws). Then there is a definition of "customary law" in the Underlying Law Act. Fortunately they all say the same thing. "Custom" or "customary law":

means the customs and usages of indigenous inhabitants of the country existing in relation to the matter in question at the time when and the place in relation to which the matter arises, regardless of whether or not the custom or usage has existed from time immemorial.

Place and time

Custom is therefore ascertained in accordance with two things: place and time. The custom the court needs to ascertain, in the present case, is the customs and usages (ie the way the people conduct their lives and the rules that apply in that society):

·	of the indigenous inhabitants of the Dagua District of East Sepik Province, in particular the people of Woginara No 2 village (the place);

·	over the last 20 years, and in particular in 2005 (the time).

In some early cases it was suggested that custom should only be recognised if it applies to the whole country (Constitutional Reference No 1 of 1977; Poisi Tatut v Chris Cassimus [1978] PNGLR 295, Prentice CJ, Raine DCJ, Saldanha J; SCR No 4 of 1980; Re Petition of M T Somare [1981] PNGLR 265, Kidu CJ, Kearney DCJ, Greville J, Smith J Kapi J Miles J). However, that approach seems to defy reality. Papua New Guinea is a conglomeration of many disparate cultures and sets of customary laws. No doubt there are some universal customs. However, it would seem to defeat the purpose of respecting and upholding customary law to insist that it apply across the country before enforcing it. Besides that, this issue is now foreclosed by Section 17 of the Underlying Law Act, which addresses the issue of what customary law to apply.

Section 17 (application of different regimes of customary law) states:

(1)	Where a question arises, as to which particular customary law should apply to a subject matter of a proceeding, the court shall determine this question in accordance with the following rules—

(a)	where the parties belong to the same community, the customary law of that community; or

(b)	where the parties belong to communities with different customary law rules on the subject matter of the proceeding—

(i)	the customary law that the parties intend to govern the subject matter; and

(ii)	if no such intention can be discovered, the customary law that is, in the opinion of the court, most appropriate to the subject matter; or

(c)	where the matter concerns a question of succession, the customary law of the community to which the deceased belonged, except with regard to interests in land, in which case the customary law of the place where the land is situated shall apply; or

(d)	in all other cases the court shall apply the customary law it considers most appropriate to a particular case.

(2)	In deciding on which customary law is to apply under Subsection (1)(b) and (d), the court shall have regard to—

(a)	the place and nature of the transaction, act or event; and
(b)	the nature of residence of the parties.

In the present case all the parties belong to the same community: Woginara No 2 village, Dagua, East Sepik. Therefore s17(1)(a) applies and it is clear that the customary law of that community is the custom that has to be considered. It does not matter that the case is being tried in Kimbe, in West New Britain, a different part of the country to the East Sepik, the geographical source of the custom involved. The case is being tried in the National Court, which has jurisdiction throughout the country. Custom from one part of the country can be applied in any part of the country. However it is important to note that it is contemporary custom that the court is concerned with. The law recognises that custom can evolve over time. Modern custom might be completely different to the custom that applied in the old days.

Present case

I have applied the above principles to the evidence presented and determine that the following rules of customary law exist and are relevant in this case:

1	the man is the head of the family;
2	the man is obliged to be the provider for his family;
3	to enforce his interests under a customary marriage, a man must pay bride-price to his wife's relatives;
4	a man can have more than one wife;
5	a woman can have only one husband;
6	a man cannot marry the wife of his brother;
7	a man cannot marry the sister of his wife, while his wife is still alive;
8	a man with more than one wife must look after them equally;
9	if a woman leaves the man to whom she has been married and goes to another man, the second man should pay compensation to the first, eg a pig and some money, and if compensation is not paid and the village leaders cannot solve the problem, the woman will be asked to leave both men;
10	a breach of some of these rules, eg a woman committing adultery, could in the old times result in death but that rule no longer applies and breaches of most rules these days are remedied by payment of compensation, eg in the form of pigs, shell money or cash.

STEP 5:	IS THE CUSTOM APPLICABLE AND 	ENFORCEABLE?
Validity of custom

Having just identified the relevant custom (ie the first stage of the twofold process of determining whether custom is enforceable), the court now has to determine its applicability and enforceability. In other words, is the custom valid? Will the court enforce it? This is the second stage of the twofold process referred to in Step No 4.

In going through this process the National Court does a similar thing to what the Supreme Court does from time to time when it examines the constitutionality of written laws made by the National Parliament. A recent example is Supreme Court Reference No 2 of 2004; Special Reference by the Morobe Provincial Executive [2005] PGSC 32; PNGLR SC785, Supreme Court, Kapi CJ, Injia DCJ, Los J, Hinchliffe J, Sakora J. In that case the Supreme Court was required to rule on the validity of some of the provisions of the Enhanced Co-operation Between Papua New Guinea and Australia Act No 8 of 2004. The court went through the same sort of process I am undertaking in the present case with rules of customary law. It looked at a piece of law and ascertained its existence and content. Then it tested its validity against other, superior, laws. The result was that some of the provisions of the Act, particularly those that restricted rights and freedoms of citizens under the Constitution, were ruled invalid. They are no longer applicable or enforceable.

The position from 1975 to 2000

When the People of Papua New Guinea established, adopted and gave to themselves the Constitution, in 1975, the question of determining the applicability and enforcement of custom was dealt with in s 20 (underlying law and pre-Independence statutes), which states:

(1)	An Act of Parliament shall—

(a)	declare the underlying law of Papua New Guinea; and

(b)	provide for the development of the underlying law of Papua New Guinea.

(2)	Until such time as an Act of Parliament provides otherwise—

(a)	the underlying law of Papua New Guinea shall be as prescribed in Schedule 2 (adoption, etc., of certain laws); and

(b)	the manner of development of the underlying law shall be as prescribed by Schedule 2 (adoption, etc., of certain laws).

(3)	Certain pre-Independence statutes are adopted and shall be adopted, as Acts of Parliament and subordinate enactments of Papua New Guinea, as prescribed by Schedule 2 (adoption, etc., of certain laws).

Schedule 2 of the Constitution (adoption etc of certain laws) prescribed how custom and common law could be applied and enforced as part of the underlying law. The criteria to apply to custom were set out in Schedule 2.1(2) (recognition of custom): it would not be applied or enforced to the extent to which it was "inconsistent with a Constitutional Law or a statute, or repugnant to the general principles of humanity". Section 3(1) of the Customs Recognition Act provided additional criteria.

Underlying Law Act

The criteria in Schedule 2.1(2) of the Constitution have since been replaced by those in the Underlying Law Act, which was passed in 2000 in accordance with s20(1) of the Constitution. The requirement that custom be not repugnant to the general principles of humanity, no longer exists. The sources of the underlying law are now prescribed by Part II (sources of the underlying law) of the Underlying Law Act, which contains Sections 3, 4 and 5.

Section 3 (source of underlying law) states:

(1)	The sources of the underlying law shall be—

(a)	the customary law; and

(b)	the common law in force in England immediately before the 16th September, 1975.

(2)	The principles and rules of customary law shall be applied with the qualifications and subject to the conditions as set out in this Act.

(3)	The principles and rules of common law shall be applied—

(a)	with the qualifications and subject to the conditions as set out in this Act; and

(b)	notwithstanding their modification through an amendment, repeal or alteration by a statute of England unless the modifying statute has been adopted in Papua New Guinea.

Section 4 (application of sources of underlying law) states:

(1)	Subject to Subsection (2) or (3)—

(a)	the customary law; and
(b)	the common law, shall be adopted and applied as part of the underlying law.

(2)	The customary law shall apply unless—

(a)	it is inconsistent with a written law; or
(b)	its application and enforcement would be contrary to the National Goals and Directive Principles and the Basic Social Obligations established by the Constitution; or
(c)	its application and enforcement would be contrary to the basic rights guaranteed by Division III.3 (Basic Rights) of the Constitution.

(3)	The common law shall not be applied unless—

(a)	it is consistent with a written law; or
(b)	it is applicable and appropriate to the circumstance of the country; or
(c)	it is consistent with the customary law as applied under Subsection (2); or
(d)	its application and enforcement would not be contrary to the National Goals and Directive Principles and Basic Social Obligations established by the Constitution; or
(e)	its application and enforcement would not be contrary to the basic rights guaranteed by Division III.3 (Basic Rights) of the Constitution.

(4)	A court which—

(a)	refuses to apply a principle or rule of customary law, shall give reasons for its refusal in terms of Subsection (2)(a), (b) or (c); or
(b)	applies a principle or rule of common law, shall give its reasons for the application in terms of Subsection (3)(a), (b), (c), (d) or (e).

(5)	A principle or rule of customary law or common law applied under Subsection (2) or (3) shall become part of the underlying law.

Section 5 (duty of courts) states:

The courts, especially the Supreme Court and the National Court, shall ensure that, with due regard to the need for consistency, the underlying law develops as a coherent system in a manner that is appropriate to the circumstances of the country.

Issues raised by new law

One of the issues encountered when applying the Underlying Law Act is that it covers some of the same ground as the Customs Recognition Act, but does not mention or expressly repeal the latter; unless, of course, it amounts to an implied repeal. (See C E P Val Haynes, The Underlying Law of Papua New Guinea: the "permanent" formula?, ALTA Conference, University of the South Pacific, Vanuatu, 1-4 July 2001.)

Another aspect of the Act that is intriguing is that some of its provisions suggest that customary law can be applied and enforced independently of the underlying law (eg ss 6(c), 7(2), 7(3), 7(4)). So, if a customary law is not adopted for some reason as part of the underlying law it can nevertheless be applied. I am not sure that this is allowed. Section 9 of the Constitution states exclusively what the laws of Papua New Guinea consist of. There are seven categories and the last one is the underlying law. Customary law is part of the underlying law if it passes the tests provided by the checklist I am about to outline. If it fails the tests, it is not part of the underlying law and not part of the laws of Papua New Guinea capable of being enforced in the National Court. I would venture to suggest that there is an argument to say that the provisions I have outlined might be unconstitutional.

However, I did not have the benefit of legal argument on those issues and I do not think it is necessary to dwell on it further for the present purposes. This case is complicated enough already. I will apply the Underlying Law Act and the Customs Recognition Act together and presume that both are operative and constitutional.

Checklist

The new criteria (plus those that continue to apply under the Customs Recognition Act) can be set out in the form of a checklist, comprising seven questions. The court has to check the rules of customary law that it has identified against the checklist, to determine whether the rules are applicable and enforceable.

The checklist is as follows:

1	Is the custom inconsistent with a written law? (Underlying Law Act, Section 4(2)(a).)
2	Would its application and enforcement be contrary to the National Goals and Directive Principles and the Basic Social Obligations? (Underlying Law Act, Section 4(2)(b).)
3	Would its application and enforcement be contrary to the Basic Rights? (Underlying Law Act, Section 4(2)(c).)
4	Is the court satisfied that parties intended that custom would not apply? (Underlying Law Act, Section 7(2)(a).)
5	Is the subject matter of the proceedings unknown to the customary law and cannot be resolved without causing injustice to one or more of the parties? (Underlying Law Act, Section 7(2)(b).)
6	If the custom is already part of the underlying law (eg where there has been a previous court case on the same custom) is it no longer appropriate to the circumstances of the country? (Underlying Law Act, Section 9.)
7	Would enforcement of the custom result, in the opinion of the court, in injustice or not be in the public interest? (Customs Recognition Act, Section 3(1).)

If the answer to all those questions is 'no', the custom applies and is enforceable and is part of the underlying law. (Underlying Law Act, ss 4(1)(a), 4(5), 5, 6 and 7(1); Customs Recognition Act, s3(1).)

However, if the answer to any one of the questions is 'yes', the custom will be inapplicable and unenforceable. In the case of question Nos 1 to 5 and (7), the custom is not allowed to be part of the underlying law. (Underlying Law Act, ss 4(2), 4(4)(a), 7(2); Customs Recognition Act, s3(1).) It will remain un-adopted, and not be recognised. 

If the answer to question 6 is yes, the court has a discretion. It may formulate a new rule, appropriate to the circumstances of the country. There are guidelines given in s 9(a) to (d) of the Underlying Law Act about how that is done.

Marriage Act

There are two provisions of the Marriage Act (Chapter No 280) to bear in mind in this case.

Section 3 (customary marriages) states:

(1)	Notwithstanding the provisions of this Act or of any other law, [an automatic citizen] other than [an automatic citizen] 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.

(2)	Subject to this Act, a customary marriage is valid and effectual for all purposes. 
Section 5(1)(a) (void marriages) states:

a marriage is void if … either of the parties is, at the time of the marriage, lawfully married to some other person. 

Precedents and principles

In a number of cases the National Court has ruled that a custom was inapplicable and unenforceable because it did not satisfy the then applicable criteria. For example:

·	Aundak Kupil and Kauke Kensi v The State [1983] PNGLR 350, Bredmeyer J: payback killing, which could be regarded as part of the custom of the Wahgi Valley district of Western Highlands Province, as a sanction for non-payment of customary compensation to the relatives of the victim of a motor vehicle accident, was unenforceable as it was repugnant to the general principles of humanity;

·	Re Wagi Non and Section 42(5) of the Constitution [1991] PNGLR 84, Woods J: a custom in the Jimi district of Western Highlands Province that required a woman who had been deserted by her husband for several years and who committed adultery, to pay compensation (and then be imprisoned for failure to pay) was unenforceable:

It is denying her the equality provided in the Constitution, s.55 enforcement of custom must not conflict with the principles and rights given in the Constitution. I am not saying that a man cannot have several wives and cannot travel but if he chooses to have wives and travel elsewhere he must accord them equality in care and participation and she must have the same freedoms that he has. Customs that denigrate women should be denied a place in the underlying law of Papua New Guinea because they conflict with the National Goals of equality and participation which have been laid down clearly in the Constitution. The facts of this case suggest that this woman is bonded, almost in slavery, to the husband even when the husband neglects her. This must clearly be a denigration of the woman's humanness.

·	Re Kaka Ruk and Section 42(5) of the Constitution [1991] PNGLR 105, Woods J: a custom in the Western Highlands Province that required a woman to pay compensation to her husband for having sexual relations with her husband's brother, in circumstances where her husband had left her to find work elsewhere and was not regularly supporting her (and then be imprisoned for failure to pay) was repugnant to the general principles of humanity and should be denied a place in the underlying law and was unenforceable.

A basic social obligation in Papua New Guinea is to respect and to act in the spirit of the Constitution and to assist in the exercise of the rights conferred by the Constitution and to respect the rights and freedoms of others and to respect the use of Papua New Guinean forms of consultation and consensus and this must include solving problems by discussion and compromise. 

People in Papua New Guinea must come to terms with the law that women are not chattels that can be brought and thus bonded forever. They are equal participants in the marriage and in society. 

·	The State v Joseph Kule [1991] PNGLR 404, Doherty J: an East Sepik custom that allegedly required a man who had been convicted of manslaughter to give up one of his daughters to the deceased's relatives was contrary to the welfare of the child and to the constitutional prohibition against slavery, and therefore unenforceable and could not be a mitigating factor for sentencing purposes;

·	Re Kepo Raramu and Yowe Village Court [1994] PNGLR 486: Doherty J: the custom in many parts of Manus Province and Morobe Province that says women whose husbands have died are not to go around with another man strikes against the basis of equality provided in s 55 of the Constitution, as there is no equivalent custom that says a man whose wife had died is not allowed to go around with other women and therefore it is oppressive to women and fails to recognise the inherent dignity of mankind;

·	Application by Individual and Community Rights Advocacy Forum Re Miriam Willingal [1997] PNGLR 119, Injia J: the custom of tribes in the Minj district of Western Highlands Province of requiring young women to be given up as "head pay", as part of a compensation package paid by a wrongdoer to a victim, was unenforceable as it was contrary to the Basic Rights to freedom and equality, unjust, not in the public interest and repugnant to the general principles of humanity;

·	Kolta Development Pty Ltd and Others v PNG Defence Force and The State [1997] PNGLR 585, Salika J: the plaintiffs' attempt to establish a cause of action in custom against the Defence Force and the State to seek compensation for the burning down of the Germania Club, Waigani, was misconceived as, even if there was a custom, as claimed, it purported to establish no-fault liability, and this would cause a grave injustice and not be in the public interest.

Relationship between customary law and constitutional rights

All those cases pre-date the commencement of the Underlying Law Act. There appears to have been no case reported since the new Act came into operation in which the court has been required to apply the new criteria. However, the older cases provide ample precedent for the sort of inquiry I am now embarking on.

Miriam Willingal's case is particularly pertinent. It shows how the court methodically examines the custom to see whether it is compliant with the relevant criteria. The judgment of Injia J, as he then was, explains lucidly the relationship between customary laws and written laws, particularly the provisions of the Constitution that confer human rights. His Honour stated:

The courts of the National Judicial System including this court are predominantly modern courts. As such, although provisions are made in the context of relevant statutes and constitutional laws to allow for customary beliefs, rules and actions to play a part in the modern courts, law limits the rule of customary law. Courts must be careful not to pass quick judgments on the legality and soundness of traditional customs and customary practices and their underlying values.

In the context of all these diversities, however, when Papua New Guinea got independence, all Papua New Guineans, through the Constitution, pledged to unite as one nation and build a modern Papua New Guinea based on the National Goals and Directive Principles and Basic Social Obligations enshrined in the Constitution, respect for the constitutional rights of others and respect for the rule of law. …

It seems ironic that traditional customs and customary practices of some ethnic societies should be struck down by the courts as being inconsistent with our national laws. They are inconsistent with a constitutional law or a statute or repugnant to general principles of humanity, when those very customs and customary practices have their own values in their respective ethnic societies. … But it is clear to me that the framers of our Constitution and modern day legislators were thinking about a modern Papua New Guinea based on ethnic societies whose welfare and advancement was based on maintenance and promotion of good traditional customs and the discouragement and elimination of bad customs as seen from the eyes of an ordinary modern Papua New Guinean. No matter how painful it may be to the small ethnic society concerned, such bad customs must give way to the dictates of our modern national laws.

His Honour's explanation of the relationship between customary law and the written laws has been echoed by the current Chief Ombudsman, Ila Geno, who has in a number of public forums proclaimed:

The Constitution is the modern culture!

Determination of enforceability of custom

Can a man have more than one wife?

Benal pointed out in his affidavit that his great-grandfather had six wives and there was nothing wrong with that; implying that Benal could, if he wanted to, have six wives and that would be consistent with his custom. Perhaps the rationale was that in the old days, tribal warfare claimed the lives of many men. If a brother were killed in a tribal fight, or even if he died of natural causes, it may have been the custom that the wife of the deceased, for whom bride-price had been paid, would have to marry a brother of the deceased. There were probably good, practical reasons such as that for allowing men to have more than one wife. 

At this point, I will clarify some terminology:

·	polygamy is a general term referring to the practice or custom of having more than one wife or husband at the same time (derivative terms are polygamist, polygamous and polygamously);

·	polygyny is a specific term describing the practice or custom of a man having more than one wife, being a form or sub-set of polygamy (a derivative term is polygynous);

·	polyandry is a specific term describing the practice or custom of a woman having more than one husband, being a form or sub-set of polygamy (a derivative term is polyandrous).

(See Concise Oxford English Dictionary, 11th edition, Oxford University Press, 2004.)

The customary law that in some parts of PNG allows a husband to have a number of wives, giving rise to the practice of polygynous marriages, has been heavily criticised in many circles as being un-Christian, immoral and a source of chronic family dysfunction leading to brutal killings by disaffected marital partners.

For example, in The State v Drikore Yuana Peter (2000) N1973, Kirriwom J, in the course of sentencing a Chimbu woman who murdered one of her co-wives in a three-wife polygynous customary marriage, said:

If Papua New Guinea is to remain a truly Christian country, polygamy must be outlawed for good and attended by severe penalties against those who practice it. Unless this is realised and actioned accordingly, unnecessary deaths resulting from polygamous marriages will continue to appear and reappear as contests between co-wives reach new heights to win greater attention from their one common husband while jealousies between them boil even hotter to the brink until the ultimate explosion.

Courts can do no more than simply point out the deficiencies in our legal system and the unfairness that exists as between wives and their husbands who cannot be sexually satisfied by just one wife other than by being promiscuous. I regret using the term promiscuous but that seems to me to be the reality in today's interpretation of the practice. There is no denial that in some parts of Papua New Guinea, polygamy is permitted by custom for various cultural reasons including land heritage. But the practice has however become an all-embracing licence for men of all walks of life at all levels of varying intellect to flavour their immoral conduct under the guise of customarily accepted norm. The truth is, when you remove the disguise, the practice really is the reflection of the behavioural pattern of men in their pursuit of sexual gratification that can only be achieved from more than one sexual partner.

In The State v Albina Sinowi [2001] PGNC 35; N2175, Kandakasi J, when sentencing an East Sepik woman convicted of unlawfully assaulting her co-wife in a two-wife polygynous customary marriage, said:

If a man is not able to keep all of his wives and children happy, he should not marry more than one wife. Presently there are calls for an end to polygamy or marrying more than one wife. Cases like this demonstrate the need to enact such laws. The Papua New Guinea Law Reports are filled with cases some of them tragic caused by such polygamous marriages. The duty is on Parliament now to enact such laws quickly for the security, peace and harmony of our society. In the absence of any suggestion to the contrary I believe the reluctance of Parliament enacting such a law is because Parliament is dominated by men who rather prefer to have more wives than just one. They appear not to care about the problems polygamy brings upon a family and the society as a whole. If they still wish to allow polygamous relations they could enact laws to punish those men who are not able to maintain peace and harmony between themselves and their wives, and between the wives and the children of such marriages.

Until such laws are enacted men are under a social and moral obligation, in my view, not to marry more than one wife unless, he is able to keep all of his wives and children happy in a society like ours which is moving fast into the modern world. I note that custom in some societies in our country does allow for a man to marry more that one wife. That was so in most cases to allow for the production of more children given the risk of death for most children due to lack of appropriate medical services. The situation in most societies in our country today is not the same as in the past. There are comparatively better health services to safeguard against the early death of children. At the same time, the pressures of the modern economy are hitting hard on families. The bigger a family is the harder it is to survive.

I do not wish to add much to this debate, except to say that despite widespread commentary on the subject, customary polygynous marriages are not intrinsically unlawful arrangements. If a man has entered into more than one customary marriage, that is not unlawful unless he has prior to one of his customary marriages entered into a 'statutory' marriage under the Marriage Act. 

Customary polygynous marriages are not by themselves contrary to any written law and no decision of the National Court or the Supreme Court has declared the customary law underpinning them to be unlawful or unenforceable. That is why I could not find fault with the rule of customary law. 

Can a woman have more than one husband?

However, when that rule of custom is considered alongside rule No 5 – that a woman can have only one husband – serious questions need to be asked about the fairness and justice of such a situation. The customary law is saying that polygyny is OK, but polyandry is not. Bernadette Beggie stressed this in her defence, in her affidavit and in her submissions. Is it fair that the man can have as many wives as he likes but the woman can have only one husband? She submitted that it was totally unfair and one-sided and discriminatory. It was a bad custom and she should not be hauled before the court for breaching it.

I found this to be a profound argument, solidly based in Constitutional Law. Though she did not put it in these words, Bernadette's argument is that her right, as a female citizen, to marry who she pleases, must be the same as Benal's right, as a male citizen, to marry who he pleases. If her rights are curtailed, and she is discriminated against because she is a woman, her constitutional right to equality will be removed. The argument is that she has the right to equality under s55 of the Constitution; that she has the right to freedom based on law under s32; and that the courts should ensure that custom does not offend against the National Goals and Directive Principles, which call for equality between the partners to the marriage. Also at issue is a person's right under s.49 of the Constitution to privacy concerning his or her private and family life.

Constitutional rights and principles

Section 55 of the Constitution (equality of citizens) states:

(1)	Subject to this Constitution, all citizens have the same rights, privileges, obligations and duties irrespective of race, tribe, place of origin, political opinion, colour, creed, religion or sex.

(2)	Subsection (1) does not prevent the making of laws for the special benefit, welfare, protection or advancement of females, children and young persons, members of underprivileged or less advanced groups or residents of less advanced areas.

(3)	Subsection (1) does not affect the operation of a pre-Independence law.

Section 32 (right to freedom) of the Constitution states:

(1)	Freedom based on law consists in the least amount of restriction on the activities of individuals that is consistent with the maintenance and development of Papua New Guinea and of society in accordance with this Constitution and, in particular, with the National Goals and Directive Principles and the Basic Social Obligations.

(2)	Every person has the right to freedom based on law, and accordingly has a legal right to do anything that—

(a)	does not injure or interfere with the rights and freedoms of others; and
(b)	is not prohibited by law, and no person—
(c)	is obliged to do anything that is not required by law; and
(d)	may be prevented from doing anything that complies with the provisions of paragraphs (a) and (b).

(3)	This section is not intended to reflect on the extra-legal existence, nature or effect of social, civic, family or religious obligations, or other obligations of an extra-legal nature, or to prevent such obligations being given effect to by law.

"National Goals and Directive Principles" Nos 2(5) and 2(12) (equality and participation) state:

We declare our second goal to be for all citizens to have an equal opportunity to participate in, and benefit from, the development of our country.

WE ACCORDINGLY CALL FOR— …

(5)	equal participation by women citizens in all political, economic, social and religious activities; …

(12)	recognition of the principles that a complete relationship in marriage rests on equality of rights and duties of the partners, and that responsible parenthood is based on that equality.

Section 49 of the Constitution (right to privacy) states:

Every person has the right to reasonable privacy in respect of his private and family life, his communications with other persons and his personal papers and effects, except to the extent that the exercise of that right is regulated or restricted by a law that complies with Section 38 (general qualifications on qualified rights).

Refusal to apply a principle of customary law

I uphold the first defendant's submission in relation to rule no 5 – that a woman can have only one husband. I refuse to apply that as a rule of customary law that is enforceable in this case. In accordance with Section 4(4) of the Underlying Law Act, my reasons are that:

(a)	it is inconsistent with a written law, viz the Constitution;
(b)	its application and enforcement would be contrary to the National Goals and Directive Principles; and
(c)	its application and enforcement would be contrary to the Basic Rights guaranteed by Division III.3 (basic rights) of the Constitution.

I now move to step No 6.

STEP NO 6: HAS CUSTOM BEEN BREACHED?

Two alleged breaches

Benal has argued that two serious breaches of custom have occurred. First, Bernadette breached the rule (No 5) that says a woman can have only one husband. Secondly Benedict breached the rule (No 6) that says a man cannot marry his brother's wife.

Ruling re alleged breach of custom by Bernadette

I have just concluded that rule No 5 is unenforceable. Therefore, Bernadette, by marrying Benedict in 2001, when her marriage to Benal was, arguably, not dissolved, is not guilty of any breach of custom.

There are two other reasons Bernadette has not breached custom.

First, Benal never paid any bride-price for her. Benal has breached rule No 3. I uphold Bernadette's submission concerning her marriage to Benal. Benal's rights under it cannot be enforced. Susan and Bernadette's mother, Anna Ablesim, stated in evidence that she was not worried about bride-price. However, I do not think she is in a position to forego bride-price. The right to bride–price, under rule No 3, inures in favour of the wife's relatives, not only her mother. (As to the importance of bride-price generally, see O Jessep and J Luluaki, Principles of Family Law in Papua New Guinea, 2nd edition, UPNG Press, 1994, Chapter 2.)

Secondly, I have reached the conclusion that Benal and Bernadette's marriage was unlawful by virtue of Section 3 of the Marriage Act. When Benal purported to marry Bernadette in 1991, he had a subsisting statutory marriage with Susan. He was not permitted to have any wife additional to his statutory wife.

For all these reasons I reject the allegations that Bernadette breached custom by marrying Benedict. 

Ruling re alleged breach of custom by Benedict

As to Benedict, the claim is that he breached custom by marrying Bernadette in 2001, as she was the second wife of his brother, Benal, and the marriage between Bernadette and Benal had not been dissolved. Benal says Benedict breached rule No 6: a man cannot marry the wife of his brother.

This claim suffers the same fate as the first, owing to my conclusion that Benal cannot enforce his rights under his purported marriage to Bernadette as he has paid no bride-price for her and that marriage was contrary to the Marriage Act. His failure to pay bride-price means that Bernadette was free to marry who she wanted to; and Benedict could elect to marry her, as she was, in effect, a free agent.

No breach of custom

There being no breach of custom by either of the defendants, the plaintiff is unable to establish a cause of action. Therefore he cannot obtain any of the remedies he is seeking. However, as there was considerable argument on the question of remedies I will address it.

STEP NO 7: WHAT IS THE REMEDY?

Remedies sought

If the plaintiff, Benal, had succeeded in establishing a cause of action based on breach of customary law, the final step would be to determine what remedy, if any, should be granted. What order should the court make? Benal submitted that Benedict, his brother, was guilty of a disgraceful act of bastardry. He married his brother's wife. So that marriage ought to be dissolved. The court should order that Bernadette and Benedict can no longer live together as husband and wife; and that Bernadette and, in particular, Benedict must pay damages to Benal and his children to compensate them for the distress and hardship caused to them.

Court's discretion

The court has a wide discretion in deciding on what orders to make in this situation. Section 10 (remedies) of the Underlying Law Act states:

In a proceeding before a court, when the remedy sought is based on the underlying law, the court may grant any remedies that are available under—

(a)	a source of the underlying law; or
(b)	a formulated rule of the underlying law.

Compensation as the primary remedy

It appears from Section 7(4) of the Underlying Law Act that the court should only formulate a rule, appropriate to the circumstances of the country, as part of the underlying law, if there is no rule of the underlying law, customary law or common law applicable to the subject matter of the proceeding, ie if there is a gap in the law. There is no gap in the present case. Rule No 10, which I earlier paraphrased as 'breach of rules = pay compensation' is applicable and enforceable. So the customary law provides a remedy. It is payment of compensation.

Dissolution of marriage as a last resort

I accept, from the evidence of Paulias Duna, who I considered a level-headed, credible and authoritative witness, that dissolution of a marriage is a last-resort measure, only availed of if the defaulting party does not pay compensation and then only after a genuine attempt at mediation through the intervention of village leaders has failed.
In that respect the customary law appears consistent with s 32(2) of the Constitution: the right to freedom. If two people love each other and want to live together, they have the right and freedom to do that unless their relationship interferes with the rights and freedoms of others or it is prohibited by law.

Discretion re whether to award compensation

So at this stage of the proceedings, if Benal had established a cause of action, dissolution of Bernadette and Benedict's marriage would not have been ordered. What about compensation? Would it have been ordered? Who has to pay? To whom? How much? Would I have made a decision now? Should perhaps the matter be referred to village leaders to resolve, with the benefit of this judgment? Or would that only confuse things?

I would have decided that the court should continue to do its best to resolve the dispute. It has been going on for at least four years. The parties have already been to the Village Court and the District Court. I can only presume that it has been a burning issue in the village in East Sepik, and that it has spread into the communities in Madang and Kimbe where the parties live. The parties and their families are alive with emotion over this saga. The interests of the five children must also be considered. At the moment they are the collateral damage of all this. So I would have decided that the court continue to deal with the matter, so that everyone can feel that they have been listened to, that there is closure, and they can get on with their lives.

If this case had boiled down to the compensation issue outlined above, the court would have taken account of all the circumstances of the case. In particular:

·	How serious was the breach of custom? Was the breach justifiable or understandable in the circumstances?
·	Have there been any breaches of custom by the person relying on the breach, ie the plaintiff, Benal?
·	What has happened since the breach was committed? Has compensation already been paid?
·	What does the justice of the case require?

The present case

As I indicated earlier, Bernadette's alleged breach of custom does not arise as the custom she was said to have breached was unconstitutional. As to Benedict, if I had been satisfied that he had breached custom by marrying his brother's wife, I would have concluded that his breach was not as serious as it was contended to be by Benal. What seems to have happened is that Benal's pride has been hurt. He has been deserted by one of his wives who evidently was not happy with him and did not think that he was looking after her and her children properly. She had the gall to go and become his own brother's wife. He was deeply hurt by this and probably felt shame in the eyes of his wantoks. From his point of view it was an extremely serious breach of custom. However, viewed objectively, it is a wrong – but not a heinous, vile act involving physical harm to anybody. I gained that impression from Paulias's evidence. He was impressive in the witness box as an older and mature man who should be the source of wisdom and calm that all parties should draw on. He indicated that Benedict may have done wrong but, clearly and calmly, he said that it is something that can be sorted out. It was not in relative terms what can be described as an extremely serious breach of custom.

Plaintiff's conduct

The seriousness of the breach is lessened when the microscope is put on Benal's conduct. He married the sister, Bernadette, of his wife, Susan, while his wife was still alive. That was a breach of rule no 7. It may have also been a breach of the Marriage Act, as a church marriage, also known as a statutory marriage, involves an obligation that each party to the marriage marry only one person. He paid no bride-price for either wife. That was a breach of rule No 3; particularly in relation to Bernadette as Benal's marriage to her was a customary marriage. These transgressions do not put Benal in a good position to argue that Benedict's breach of custom was reprehensible.

Res judicata

As to what has happened since Benedict's alleged breach was committed in 2001, I accept that Beneradette and Benedict have already paid K1,100.00 compensation to Benal. As Bernadette said in her submission: shouldn't that be the end of the matter? The principle of res judicata is applicable here.

Res judicata is a common law principle or legal doctrine that has been adopted as part of the underlying law of Papua New Guinea. It was expressly recognised by Schedule 2.8(1)(d) of the Constitution. It is now set out in s18 of the Underlying Law Act. It is a principle that says 'this dispute has already been resolved by a court and cannot be pursued further by the same parties'. In Tok Pisin: Dispela hevi em Kot i stretim pinis. 

Res judicata applies when all the following conditions are met:

·	The cause of action (ie the basis of the remedies being sought) in one court case is the same as that relied on in an earlier case. (It does not matter whether the earlier case was decided in the same court or by the same Judge.)
·	The earlier case was between the same parties or their "privy". (A privy is someone so closely connected to one of the earlier parties that they have the same interests that are sought to be enforced in the later case.)
·	In the earlier case the court made a final determination of the issues between those same parties or their privies.
(See Mark Ekepa v William Gaupe (2004) N2694, National Court, Cannings J.)

In the present case, all those conditions have been met. The present dispute has already been dealt with by other courts: the Village Court and the District Court.

Interests of justice

Furthermore, the interests of justice require that this case be called to a halt. Even if I had been convinced that either or both of the first defendants had breached custom, I would not have considered that further compensation was warranted. The plaintiff has already been compensated for that. I would have concluded that the interests of justice lie in leaving things as they are.

CONCLUSION

There has been no breach of custom by the defendants. Therefore their relationship will not be dissolved. They are free to live together as husband and wife. They do not have to pay damages to the plaintiff.

Even if either or both the defendants had breached custom, the court would not have ordered the dissolution of their marriage. If two people want to have a consensual and intimate relationship and live together, they have a constitutional right to do so. Their right to freedom and to privacy must be upheld, unless their relationship directly interferes with the rights and freedoms of others or is prohibited by law. If breach of custom had been proven, the remedy would have been restricted to compensation. Even then, it is unlikely compensation would have been awarded in this case, as the dispute has already been dealt with by the Village Court and the District Court.

REMARKS

Now that this dispute has come all the way to the National Court and a decision has been made, all parties owe it to themselves and each other and to their families and in particular to the five children of the plaintiff and the first defendant to get on with their lives in a spirit of peace and understanding. They should now focus on the welfare of the children. Put personal pride to one side and decide together what is best for the children. This should be done in accordance with custom in a peaceful and consensual way. It seems that the best place to sort out any dispute about custody of the children is in the village.

COSTS

Normally costs follow the event, ie the party that loses is ordered to pay the other side's legal costs. This would mean that the plaintiff, Otto Benal Magiten, would have to pay the defendants their legal costs. That would not be an unreasonable result, as there is an argument to say that given the history of this case, which has seen essentially the same dispute dealt with already by the Village Court and the District Court, the plaintiff is guilty of an abuse of process. However, neither side was legally represented and given all the circumstances of this case, it being a family and village based dispute, I do not consider the normal rule about costs should apply. It is better that each side bear their own costs.

ORDER

The order of the National Court will be:

1	The relief sought in the statement of claim is refused.
2	The defendants are free to live together as husband and wife.
3	The defendants do not have to pay damages or any other compensation to the plaintiff.
4	The parties shall bear their own costs.

Lawyers for the plaintiff: None.
Lawyers for the defendants: None.