Unreported National Court Decisions
N1532
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
O.S. 450 OF 1996
NAOMI RUMBIA - PLAINTIFF
V
MANEVI GENE - DEFENDANT
Goroka
Sawong J
20 February 1997
11 April 1997
CIVIL LAW - Custody - Existing Village Court Order - Village Court Order not set aside or reversed - Jurisdiction of National Court.
Held
(1)      As there is a subsisting village court order, which  has not been set aside or quashed by any court of competent jurisdiction, the National Court has no jurisdiction to deal with the application for custody.
(2)      That in order to invoke the inherent power of the National Court under S.155 of the Constitution, the plaintiff must have exhausted all the review process  procedure under the Village Courts Act.
(3)      As the plaintiff has not exhausted the appeal and or  review procedures under Village Courts Act, it was premature to make an application under S.155 of the Constitution.
(4)      That as the subsisting valid Village Court Order has  not been reversed, or quashed by a court of competent jurisdiction and as the action by the plaintiff was by way of a fresh hearing, the National Court has no power to deal with the matter, in the circumstances of this case.
Counsel
D Umba for the Applicant
K Wagaro for the Defendant
11 April 1997
SAWONG J: This was an application pursuant to S. 4 of the Infants Act Chapter 278 for the custody of the infants children Repy and Ian Manevi.  The applicant/Plaintiff is the natural mother of the children.  The defendant is the natural father of the children.
At the hearing of the application both the plaintiff and the defendant gave evidence.  In addition the plaintiff filed affidavit evidence and this was tendered and accepted into evidence during the course of her oral examination inchief.  In addition she called a Welfare Officer who had compiled the report and Dr. Ninkama to give evidence.
At the end of the evidence it became quite clear that there was in existence a village court order which had granted custody of the children to the defendant.  There was no dispute that the village court had made a custody order infavour of the defendant.  It appears from the evidence that that order has not been appealed against nor reversed by any court of competent jurisdiction.  That being the case, I posed to the parties to address the court on the issue of, whether, when there was already in existence a custody order, albeit made by the village court, which order has not been reversed by any court of competent jurisdiction, the National Court had jurisdiction to entertain the matter.  I considered that the jurisdictional issue need to be resolved before the substantive application is to be considered.
I invited counsel to put their submissions in writing and this they have done.  I have read carefully the submissions.  Both counsels have not been helpful in their submission in respect of this issue.  I consider this issue to be very important because the National Court, cannot simply assume responsibility or jurisdiction when there was in existence an order which has been properly adjudicated and made.
The undisputed fact is that the defendant was given custody by the village court order in 1990.  That being the case, can this court hear and determine the substantive application.  In order to appreciate and resolve this issue, I consider it necessary to consider the provisions of the Village Courts Act, being Act No. 37 of 1989 (the Act).
In my judgement ss. 47, 86 and 87 of the Act are relevant and applicable to the facts of this case.  Section 47 reads:
“47.    Custody of Children
A village court may make an order as to a custody or guardianship of a child if the child is:
(a)      born of parents married under customary law: or
(b)      illegitimate.”
It is quite clear that a village court has jurisdiction to deal with custody applications in two situations.  The first is in a case involving a child who is born of parents who are married under a customary law.  The second situation is where the child is illegitimate.
In the present case, the uncontested evidence from both parties is that the parties were married under a customary law.  That being the case they went before the village court which dissolved their marriage and awarded custody of the two children to the defendant.
Section 86 and 87 of the Act, provide the procedures for appeals and reviews by magistrates of the decisions of the village court.  These read:
“86.    Appeals
(1)      Subject to Subsection (2), a person aggrieved by a decision of a Village Court may, within three months after the day on which the decision is pronounced, appeal, orally or in writing, to a Magistrate.
(2)      Subject to Subsection (3), a Magistrate may, in the special circumstances of a particular case, allow such extension of time for appealing, as to the Magistrate seems fit.
(3)      No appeal against a decision shall be made after the expiration or twelve months from the day on which a decision is pronounced.
87.     Review
A Magistrate may review a decision of a Village Court at any time within a period of 12 months from the day of the decision.”
It is quite clear, from the evidence that plaintiff did not appealed against the decision of the village court nor did she sought a review of that decision under S. 87.  That being the case, there is in existence a valid court order.
Mr Umba, in his submissions, submitted that even though there is in existence a valid village court order, nevertheless this Court has power under S.155(3)(a) and S.155(4) of the Constitution, to review any exercise of judicial authority and make such orders as are necessary to do justice in the circumstances of a particular case.
Mr Wagoro, on the other hand submits in essence that as the village court has already made a custody order in favour of the dependant and which order has not be set aside or reversed, the defendant ought to continue to have custody of the two children.
There is of course no doubt that this Court has inherent jurisdiction under S.155 of the Constitution to review the exercise of judicial authority.  In order to invoke that inherent jurisdiction of the Court, the applicant must come to the Court seeking such a review.  In other words, if the plaintiff is saying that she now wants this court to review the decision of the village court, then in her cause of action and pleadings she ought to have pleaded that.  However, in the present case she has not done that.  What she has done is to come to this Court a fresh and makes an application a fresh seeking custody of the two children.  I have great difficulty in her counsels submission.  She has not appealed against the decision of the village court nor has she sought a review of that decision.  To that end, I consider that submissions advanced in respect of this issue by the plaintiff is misconceived and not applicable.
Since the matter was heard, I have done my own research into this particular area of law.  I have been unable to find any authority which dealt with a similar factual situation.  My research indicates that decided cases dealt with cases where the parties went straight to the National Court under any of existing legislation, for example, the Infants Act, the Child Welfare Act,  the Matrimonial Causes Act or the Deserted Wives and Children’s Act.  Non of the authorities that I have sighted, deal with a situation as similar to the present case.  Thus those authorities are not relevant nor applicable to the facts of this case.
As I have said quite clearly the evidentiary material before the court is that there exist a village court order which has been quite properly made, awarding custody to the defendant.  That order has not nor appealed against nor reversed by a court of competent jurisdiction.  It was in my view a very important point that needed to be resolved before one can proceed to the substantive matter.
In my view the plaintiff has not exhausted the remedies that is available to her under the provisions of the Act.  She has, to that extent, come to this court prematurely.  I am satisfied on the evidence before me that as the village court order has not been quashed or reversed by a court of competent jurisdiction I think it is unnecessary for me to consider the application at all.
The evidence shows quite clearly that the matter has been dealt with by the village court already.  I consider that in the circumstances the matter is res judicata.  In other words as the village court has already decided the issue and made the orders awarding custody of the two children to the defendant and that decision had not been quashed, the matter can not be determined again.
In these circumstances I dismiss the application.  The orders sought are refused and the proceedings are dismissed.
The costs shall follow the event, such costs are to be agreed, if not, to be taxed.
Lawyers for the Plaintiff: Acanufa & Associates
Lawyers for the Defendant: Kot & Associates