N4728

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CIA NO 104 0F 2011

DAVID HILL
Appellant

V

JANELLE VERA HILL, BY HER NEXT FRIEND, AGNES WATSON
First Respondent

AGNES WATSON
Second Respondent

Waigani: Cannings J
2012: 6, 22 June

COURTS AND ORDERS – District Court – power to declare existence of customary marriage – jurisdiction in land matters involving bona fide dispute as to title – power to order transfer of title – power to order costs on solicitor-client basis.
 
In determining proceedings commenced by the appellant under the Summary Ejectment Act, seeking eviction of the second respondent from land of which the appellant was the sole registered proprietor, the District Court ordered that: there was a customary marriage between the appellant and the second respondent, the ejectment proceedings were dismissed, the appellant shall transfer his interest in the land in such a way that the second respondent becomes joint tenant of the land and the appellant shall pay costs to the second respondent on a solicitor-client basis. The appellant appealed against the order on eight grounds, arguing that the District Court erred by (1) declaring the existence of a customary marriage without proper pleading or evidence; (2) and (3) making orders regarding land in respect of which there was a bona fide dispute as to title, contrary to Section 21(1)(f) of the District Courts Act; (4) awarding costs on a solicitor-client basis without jurisdiction (5): basing the order as to transfer of land on Section 94 of the Child Welfare Act; (6) basing the order as to transfer of land on Sections 22 and 23 of the Deserted Wives and Children Act; (7) basing the order as to transfer of land on the National Goals and Directive Principles, which are non-justiciable; and (8) failing to provide reasons for its decision.

Held:

(1)	Ground (1) was upheld as the existence of custom relied upon to base the declaration of a customary marriage was neither pleaded nor supported by credible evidence.

(2)	Grounds (2) and (3) were upheld as there was a bona fide dispute as to title to land, a matter which is excluded from the jurisdiction of the District Court by the District Courts Act, Section 21(1)(f).

(3)	Ground (4) was dismissed as the provision of the District Courts Act, Section 260, which confers power to award costs does not prevent the District Court awarding costs on a solicitor-client basis.

(4)	Ground (5) was dismissed as the District Court was having regard to the requirements of Section 94 of the Child Welfare Act, and not relying on that provision as a source of jurisdiction.

(5)	Ground (6) was dismissed as the District Court was having regard to the requirements of Sections 22 and 23 of the Deserted Wives and Children Act, and not relying on those provisions as a source of jurisdiction.

(6)	Ground (7) was dismissed as the District Court was having regard to the National Goals and Directive Principles, and not relying on them as a source of jurisdiction; and in any event it is not correct to state as a blanket proposition that they are non-justiciable.

(7)	Ground (8) was upheld as the District Court was obliged to provide reasons for its decision and its failure to do so meant that it failed to act judicially, in excess of its jurisdiction.

(8)	Four grounds of appeal were upheld, there was a substantial miscarriage of justice so the appeal was allowed and the order of the District Court was quashed. However the application for summary ejectment was refused; instead the Court ordered that the respondent shall not be ejected from the land except by order of the National Court made in separate proceedings to which she is a party.

Cases cited

The following cases are cited in the judgment:

Abel v Hargy Oil Palms Ltd (2006) N4150
Anton Angra and Oimbo Security Services Pty Ltd v Tony Ina [1996] PNGLR 303
Application of Thesia Maip [1991] PNGLR 80
Cecilia Bonny v Dorothy Amino (2009) N3591
Cecilia James v MVIL (2009) N3661
Gia Kewa Piel v Eric Ranpi [1996] PNGLR 396
Glenis Apolos Olowa v Trikas Gola (2011) N4192
Jack Amu v Kingiko Kokowa (2008) N3703
Magiten v Beggie (2005) N2908
Medaing v Ramu Nico Management (MCC) Ltd (2011) N4340
Ombudsman Commission v Peter Yama (2004) SC747
Papua New Guinea Harbours Board v Breni Kora (2005) N2834
Shem Emmanuel v Elizabeth Norman (2003) N2427
The State v James Yali (2005) N2931
Tony Yandu v Peter Waiyu (2005) N2894
Yomi Siwi v Lincy Mathew (2006) N3048

APPEAL

This was an appeal from a decision of a District Court declaring the existence of a customary marriage and ordering the appellant to transfer part of his interest in land to the respondent.

Counsel

P J Wright, for the appellant
A Watson, the second respondent, in person

22 June, 2012

1. CANNINGS J: This is an appeal against an order of the Port Moresby District Court constituted by Magistrate Mr H Sareke. His Worship was dealing with a case commenced by the appellant, David Hill, under the Summary Ejectment Act Chapter No 202 against the respondents, Janelle Vera Hill and Agnes Watson. The appellant was seeking their ejectment from land in Ororo Crescent, Boroko, in respect of which he is the registered proprietor. The first respondent is his biological daughter and the second respondent is his estranged former de facto wife. The respondents made cross-claims against the appellant in the course of those proceedings.

2. On 23 December 2010 his Worship made an order that determined the complaint of the appellant and the cross-claims of the respondents, and it is that order which is the subject of this appeal. There were four substantive parts of the order:

(1)	that there was a customary marriage between the appellant and the second respondent under the customs of the National Capital District;

(2)	that the proceedings commenced by the appellant under the Summary Ejectment Act were dismissed;

(3)	the appellant was ordered to transfer his interest in the land in such a way that the second respondent would become joint tenant of the land, with him; and

(4)	the appellant was ordered to pay costs to the second respondent on a solicitor-client basis in the sum of K5,000.00.

3. The appellant has argued eight grounds of appeal and urges the court to quash the entire order of the District Court and order the immediate eviction of the second respondent from the land.

GROUND (1): DECLARING THE EXISTENCE OF A CUSTOMARY MARRIAGE WITHOUT PROPER PLEADING OR EVIDENCE

4. Ground (1) is upheld as the existence of the custom relied on by the District Court to base the declaration of a customary marriage was neither pleaded nor supported by credible evidence. It could not have been reasonably concluded by the learned Magistrate that there was a common PNG custom regulating the relationship between the appellant and the second respondent, which is a necessary pre-condition to recognition of a customary marriage (Gia Kewa Piel v Eric Ranpi [1996] PNGLR 396, Magiten v Beggie (2005) N2908). There existed between the appellant and the second respondent a de facto relationship, which is not the same thing as a customary marriage (Application of Thesia Maip [1991] PNGLR 80, Gia Kewa Piel v Eric Ranpi [1996] PNGLR 396, Shem Emmanuel v Elizabeth Norman (2003) N2427, The State v James Yali (2005) N2931).

GROUNDS (2) AND (3): MAKING ORDERS REGARDING LAND IN RESPECT OF WHICH THERE WAS A BONA FIDE DISPUTE AS TO TITLE

5. Grounds (2) and (3) are upheld as the District Court was by the nature of its order recognising that there was a bona fide dispute as to title to land, a matter which is expressly excluded from the jurisdiction of the District Court by the District Courts Act, Section 21(1)(f) (Tony Yandu v Peter Waiyu (2005) N2894, Yomi Siwi v Lincy Mathew (2006) N3048, Jack Amu v Kingiko Kokowa (2008) N3703, Cecilia Bonny v Dorothy Amino (2009) N3591, Glenis Apolos Olowa v Trikas Gola (2011) N4192).

GROUND (4): AWARDING COSTS ON A SOLICITOR-CLIENT BASIS

6. Ground (4) is dismissed as the provision of the District Courts Act, Section 260, which confers power to award costs does not prevent the District Court awarding costs on a solicitor-client basis.

GROUND (5): BASING ORDER AS TO TRANSFER OF LAND ON CHILD WELFARE ACT

7. Ground (5) is dismissed as the District Court was having regard to the requirements of Section 94 of the Child Welfare Act, and not relying on that provision as a source of jurisdiction.

GROUND (6): BASING ORDER AS TO TRANSFER OF LAND ON DESERTED WIVES AND CHILDREN ACT

8. Ground (6) is dismissed as the District Court was having regard to the requirements of Sections 22 and 23 of the Deserted Wives and Children Act, and not relying on those provisions as a source of jurisdiction.

GROUND (7): BASING ORDER AS TO TRANSFER OF LAND ON NATIONAL GOALS AND DIRECTIVE PRINCIPLES

9. Ground (7) is dismissed as the District Court was having regard to the National Goals and Directive Principles, and not relying on them as a source of jurisdiction; and in any event it is not correct to state as a blanket proposition that they are non-justiciable (Cecilia James v MVIL (2009) N3661, Medaing v Ramu Nico Management (MCC) Ltd (2011) N4340).

GROUND (8): FAILING TO PROVIDE REASONS FOR DECISION

10. Ground (8) is upheld as the District Court was obliged to provide reasons for its decision and its failure to do so meant that it failed to act judicially, in excess of its jurisdiction (Ombudsman Commission v Peter Yama (2004) SC747, Anton Angra and Oimbo Security Services Pty Ltd v Tony Ina [1996] PNGLR 303, Papua New Guinea Harbours Board v Breni Kora (2005) N2834, Abel v Hargy Oil Palms Ltd (2006) N4150).

CONCLUSION

11. Four grounds of appeal have been upheld. I am satisfied for the purposes of Section 230(2) of the District Courts Act that there has been a substantial miscarriage of justice, so the appeal will be allowed and the order of 23 December 2010 will under Section 230(1)(c) of the District Courts Act be quashed.

12. As to consequential relief, the appellant seeks an order for the immediate ejection of the second respondent from the land. I do not think that would be a fair, proper or just order to make. The second respondent appears to have no legal interest in the land but as she was living there for a considerable time with the permission of the appellant, and indeed it appears to have been the family home when they were living in harmony as a de facto couple, it would be harsh and oppressive to order her to leave immediately. She at least deserves to be given reasonable time to leave, but more than that, her peaceful possession of the land needs to be protected by a court order. She needs time to get proper legal advice and to consider instituting proceedings in the National Court to assert an equitable interest in the land. My view is that this is the sort of case that is crying out for mediation. The parties would benefit from having their grievances and disputes being advanced in a less combative forum than a courtroom. I have considered making an order for mediation as part of the determination of these proceedings but ultimately decided not to do so as the question of mediation was not raised by either party, but more importantly these are appeal proceedings so it would be neater for the court to determine the appeal, get it out of the way, and then allow the parties to commence fresh proceedings to enforce their interests in the land. Once fresh proceedings are instituted the court would be in a good position to order mediation. The beauty of mediation is that it encourages parties to work towards a more meaningful and amicable resolution of their dispute but it does not take away their right to have their day in court, if the mediation fails, or if either of them are intent on prosecuting the matter in court.

13. Under Section 230(1)(f) of the District Courts Act the National Court on the hearing of an appeal is obliged to inquire into the matter – which has been done – and may make such further or other order as to costs or otherwise as the case requires. I invoke Section 230(1)(f) for the purpose of making the following orders, which I consider are required by the nature and circumstances of this case. It is apparent that there is no clear winner, so it is appropriate that the parties bear their own costs.

ORDER

(1)	The appeal is allowed.

(2)	The order of the Port Moresby District Court of 18 March 2011 in DC No 701 of 2010 is quashed.

(3)	The application for an order for immediate ejectment of the respondents from Section 11, Allotment 15, Ororo Crescent, Boroko, is refused.

(4)	The second respondent is entitled to peaceful possession and occupation of Section 11, Allotment 15, Ororo Crescent, Boroko, without disturbance from the appellant or any other person unless and until the National Court orders otherwise.

(5)	The parties shall bear their own costs.

(6)	Time for entry of this order is abridged to the date of settlement by the Registrar, which shall take place forthwith.
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Posman Kua Aisi Lawyers: Lawyers for the appellant