N6487
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CIA No. 05 OF 2015

BETWEEN:

TONY NAMUR
- Appellants -

AND:
DAVID MARE, IGNASIA MARE, RAPHAEL VULE, GERARD VULE &
LUDGA GELU
- Respondents -

Kokopo: Anis AJ
2016:  28 July, 21 September & 13 October

DISTRICT COURT APPEAL – Court order made in favour of a non-party to the proceeding - whether court has power - whether the hearing was a trial - sections 22 and 22B of the District Courts Act Chapter No. 40 discussed

Facts

The appellant lost his wife and unborn child during labour.  The respondents, who were the deceased's relatives, wanted her to be buried at her village and not at the appellant's village.  The respondents applied to the District Court and sought declaratory orders.  The main orders included a declaration that there was no valid customary marriage and an order that the respondents have custody of the body of the deceased for burial at their village.  The District Court released the body of the deceased to the deceased's mother.

Held

1.	His Worship did not conduct a trial under section 22 of the District Courts Act Chapter No. 40.

2.	His Worship identified only one issue which was "where to bury the deceased" and after that, he exercised his powers under section 22B of the District Courts Act Chapter No. 40 and tried get the parties to resolve the matter amicably out of court.

3.	The grounds of appeal all relate to the substantive matter, which His Worship never dealt with.

4.	The appeal was dismissed.

Case Cited:

Nil

Counsel:

Ms J Marubu, for the Appellant
Mr T Kawas, for the Respondents

JUDGMENT

13th October, 2016

1.	ANIS AJ:	The appellant was the husband of late Caroline Namur (deceased).  He appeals against a decision made by the District Court on 5 January 2015.  Briefly, the deceased died with her unborn child during labour at the Nonga Based Hospital in Rabaul, East New Britain Province.  A dispute arose as to where the parties should bury the deceased and the unborn child.  The respondents then filed proceedings at the District Court.  They sought declaratory orders and questioned the marriage of the appellant and the deceased.  They also wanted to retrieve the body to bury at their village in West New Britain Province.  The trial magistrate, upon hearing the matter, released the body of the deceased to the custody of the deceased's mother.

2.	The appellant's appeal is against the said decision.

APPEAL

3.	Let me begin by setting out the grounds of appeal.  At page 11 of the Appeal Book (AB), I read:

(i)	The Court erred in fact in relying on the evidence of the Respondent in that the Appellant had not paid any form of bride price.
(ii)	The Court erred when it awarded the body of the deceased to the mother of the wife of the appellant in that it refused to recognize the deceased and the Appellant as husband and wife.
(iii)	The Court erred in not accepting that the appellant and the wife being married for 24 years and paying bride price were married couple according to custom.
(iv)	The Court in not considering the interest of the Appellant and the children of marriage.
(v)	The Court in determining the matter erred in that it considered issued that were not within the jurisdiction of the Court.

ISSUES

4.	The issues are:

(i)	Did His Worship conduct a trial?

(ii)	If not, what type of hearing was that and whether the decision was final?

(iii)	Are the grounds of appeal sustainable under the circumstances?

(iv)	Was there a substantial miscarriage of justice that warrants this Court to over-turn the trial magistrate's decision?

TYPE OF HEARING

5.	I think it is important to firstly determine and understand (i) how His Worship had conducted the hearing and (ii) what power he had invoked, when he heard the matter and reached his decision.  His Worship's judgement starts at page 13 of the AB.

6.	His Worship firstly cited, discussed and made some critical remarks regarding his powers under section 22 of the District Courts Act Chapter No. 40 (DCA).  These discussions are not directly relevant for this purpose so I will not address them.  But His Worship, in my opinion, did not proceed to exercise his powers under section 22 after his general remarks on the said provision.  Let me quote paragraphs 18 and 19 of the His Worship's judgment as follows:

18.	Having expressed what I view in section 22 and not reading Order 1 Rule 15 of the National Court Rules I am hesitant or reluctant to give orders as asked for by the complainants.

19.	In this situation the way forward is by way of mediation by parties as outlined in section 22B of the District Court Act 1963.  The solution will be reached at "Haus Karai" level and not in the District Court room.

7.	Section 22B of the DCA states and I read:

22B.	Mediation in civil matters.

(1)	A Magistrate approved by the Judicial and Legal Services Commission for the purpose, or a person appointed by the District Court may mediate between the parties in a civil matter at any stage of or before the hearing with a view to the just and amicable settlement of the matter.

(2)	A District Court may postpone or adjourn the hearing of a complaint in a civil matter where is considers that by doing so a just and amicable settlement will be or may be reached by the parties to the case.

(3)	Where a settlement has been reached under this section, the District Court may embody it in its decision without further hearing.

8.	Now, based on the His Worship's decision to mediate the matter under section 22B, he then goes on to identify the issue.  At paragraph 20 of his judgment, he said and I read:

20.	After perusal of documents filed what stands and is where to bury the deceased Carol Namur (Mare) at Ratubu Village, West Coast Namatanai NIP, the home of the husband Tony Namur, or at Porapora Village, Hoskins in WNBP, where she (deceased originates from).

(Underlining is mine)

9.	I must state at the outset and with respect that I had initially found the judgment of His Worship quite difficult to understand and follow.  I found it confusing at times.  However, having read the judgment thoroughly the second and the third time, it became clearer and eventually I found it easy to follow or understand what His Worship was saying.

10.	I note that His Worship has made it clear in his judgment that he did not want to deal with the matter as a trial matter but rather he wanted the parties to settle amicably out of Court.  His Worship expressly said that at paragraph 19 of his judgment and I quote in part where he said The solution will be reached at "Haus Karai" level and not in the District Court room.  I note that during the hearing, His Worship adjourned the matter to 1:30pm on that same day.  His Worship wanted the parties to discuss and see if the matter would be resolved.  When the Court resumed at 1:30pm, the parties told the Court that they had not reached a resolution.

11.	I find no evidence in the judgment, which would suggest that His worship had actually heard the matter like a trial.  His Worship firstly indicated his position on how he would proceed.  His Worship has stated that he would proceed under section 22B of the DCA He then went on to identify the issue which was where to bury the deceased.  He discussed his experiences and commented on the various customary practises regarding marriage under custom, and of the need for the parties to try to resolve the matter.  He then drew his attention to the deceased's mother whom he had seen in Court.  He said some things about her.

12.	In conclusion, His Worship held and I read:

To where late Caroline Namur (Mare) is to be rested is for both parties to reach a compromise.  It is not for me to decide.

51.	For the above forgoing reasoning I hold the view the deceased be released to her biological mother Mrs Antonia Mare.

52.	What is at the back of my mind in making such order is Tony Namur is at liberty to renegotiate with Antonia Mare.

13.	So His Worship has answered the issue, which he himself has identified.  At the conclusion of his judgment, His Worship said that the decision on where the deceased is to be buried, rests with both parties.  He said it was not for him to decide.  On that basis, His Worship ordered the body to be released to the mother of the deceased with an understanding that the appellant and the respondents would decide and as he puts it at paragraph 19 of his judgment, at the "Haus Karai" level and not in the District Court room.

14.	I think the final significant thing to note is that His Worship released the body of the deceased to the deceased mother.  He did not make an order for the body to be buried at Hoskins in West New Britain Province.  He also expressly stated that the appellant was at liberty to negotiate with the deceased's mother on where to bury the deceased.  These, in my opinion, are clear indications supporting this Court's view that:

(i)	His Worship has exercised his powers under section 22B of the DCA at the material time;
(ii)	His Worship did not hear or conduct a trial where he would have otherwise exercised his powers under section 22 of the DCA or exceeded his powers under section 22 of the DCA as alleged by the appellant;
(iii)	His Worship tried to mediate and when that failed he appointed the deceased mother to have possession of the body of the deceased and His Worship invited the appellant to discuss the matter with the respondents to try to settle the issue of where they would want the deceased buried amicably amongst themselves.

FINDING

15.	I find that the District Court hearing on 5 January 2015 was not a trial.  I find that His Worship has explained that in his judgment.

16.	I find that at that time, His Worship exercised his powers under section 22B of the DCA on the matter.  I find that His Worship started-off (after he had invoked section 22B) by identifying the issue as he saw it.  His Worship said the issue was about where to bury the deceased.  Then His Worship went on to address it.  I find that His Worship did not address the trial issues by following the pleadings therein or by considering the evidence that had been disclosed by the parties.  I find that His Worship tried to mediate the matter by talking to the parties and trying to get them to settle without the need for a court battle.  I find that His Worship had allowed time out, to the parties to see if they would reconsider their positions when he adjourned the matter to 1:30pm on that same day.  However, when the Court resumed, the parties informed the Court that they were not willing to settle.  I find that His Worship then exercised his powers under section 22B (1) when he appointed the deceased's mother to have custody of the body.  I find that the purpose for that decision by His Worship was to enable the appellant and the respondents to try to discuss and amicably resolve the matter outside of Court.  Section 22B(1) states in part and I read, A Magistrate approved by the Judicial and Legal Services Commission for the purpose, or a person appointed by the District Court may mediate between the parties in a civil matter at any stage of or before the hearing with a view to the just and amicable settlement of the matter.  (Underlining is mine)  Again, it is important to note that His Worship did not at any one time, order in his judgment that the deceased shall be buried at her mother's village in West New Britain Province.  His Worship expressly said the deceased be released to her biological mother Mrs Antonia Mare. (Underlining is mine)  And immediately after that he said his intention for making that order was to get the appellant to liaise with the deceased's mother on where the deceased should be buried.

FINDINGS ON THE GROUNDS OF APPEAL

17.	Let me address the grounds of appeal.  The first ground states and I read:

(i)	The Court erred in fact in relying on the evidence of the Respondent in that the Appellant had not paid any form of bride price.

18.	I dismiss this ground of appeal.  His Worship did not conduct a trial.  I also find that His Worship did not, in his judgment make such a finding as alleged under this ground of appeal.

19.	The second ground of appeal states and I read:

(ii)	The Court erred when it awarded the body of the deceased to the mother of the wife of the appellant in that it refused to recognize the deceased and the Appellant as husband and wife.

20.	I dismiss this ground of appeal.  His Worship did not conduct a trial on the substantive matter.  I also find that His Worship did not in his judgment "awarded" the body of the deceased to the deceased's mother as alleged under this ground of appeal.  His Worship simply released the body to the deceased's mother on the understanding that the parties would amicably resolve the matter out of Court.  I also find that His Worship did not refuse to recognise the deceased and the appellant as husband and wife as alleged under this ground of appeal.  In fact, His Worship's reasonable attempts and approaches to the parties where he had encouraged them to settle their differences amicably, was, in my opinion, His Worship's recognition of the marriage bond and relationship that had existed between the deceased and the appellant at that time.  His Worship recognised these without making a finding as to the legality of their marriage.

21.	The third ground of appeal states and I read:

(iii)	The Court erred in not accepting that the appellant and the wife being married for 24 years and paying bride price were married couple according to custom.

22.	I dismiss this ground of appeal.  His Worship did not conduct a trial.  Therefore, His Worship did not determine the issue of whether was a binding marriage under custom.  The ground of appeal is also misconceived because His Worship has expressly stated in his judgment that he was not going to consider payment of bride price.  I refer to paragraph 47 where His Worship said and I read:

47.	The issue of bride price should not be raised in this instance.  That issue would have been raised whilst late Caroline was alive.  It has no bearing in my mind in deciding this matter.

23.	The fourth ground of appeal states and I read:

(iv)	The Court in not considering the interest of the Appellant and the children of marriage.

24.	Firstly and as I have already stated above in my judgment, His Worship did not conduct a trial.  Secondly, I disagree with the claim that His Worship did not consider the interest of the appellant and his children.  In my opinion, I do not think the appellant has fully read and appreciated the judgment of His Worship.  In my opinion, His Worship did not conduct a trial but chose a reasonable path for the parties to follow to try and amicably resolve what was a sensitive matter at that time.  In my opinion, the only people who appeared disinterested in recognising the interests of the children and respect for the deceased's body at that time were the appellant, the respondents and the relatives of both parties.  Both parties were adamant on fighting this to the very end.  Evidence given by both sides showed ugly accounts of incidents, violence, arrests between the relatives of the parties at the material time.  I will not waste any more time to address these accounts here except to mention them as I have done.  At paragraph 25 of the judgment, His Worship took into account the evidence given by Dr Ako Yap.  The doctor's report showed that the morgue was in a poor condition.  His Worship was obviously concerned of the state of the body of the deceased with that evidence which, in my view, was an important factor that had caused him to try to resolve the matter out of Court.  It seems that both parties did not appreciate this fact at that time.  I have also discussed this point below in my judgment under the sub-heading "Remarks".

25.	The fifth ground of appeal states and I read:

(v)	The Court in determining the matter erred in that it considered issued that were not within the jurisdiction of the Court. 

26.	I dismiss this ground of appeal.  Like I said, His Worship did not conduct a trial.  I have found that His Worship had exercised his powers under section 22B of the DCA when he released the body to the mother of the deceased.  In doing so, I note that His Worship went outside the confines of the matter and the issues for trial.  I have also found that His Worship had expressed that intention clearly throughout his judgment.  That was why and in the end he went ahead and released the body to the mother of the deceased who was not a party to the proceeding. 

REMARKS

27.	The first remark I make is this:  His Worship's decision was not a final decision.  The parties, in my opinion, should have returned before the same Court if they had issues after the said ruling.

28.	The second remark I make is this:  When I consider the decision of His Worship as a whole, I find it sound and reasonable given the circumstances that had existed at the time.  I think the only persons who have been un-reasonable were the appellant and the respondents, and their relatives.

29.	My concluding remark is this:  His Worship commented at paragraph 28 of his judgment that both the appellant and the deceased came from matrilineal societies.  If that were the case, I have this query.  The appellant said he legally married the deceased under custom and he maintains that in this appeal.  Assuming that this fact was true and that the two were legally married under custom, the question I would have is this:  Where will the deceased be buried under custom if both customs (i.e., the appellant's custom and deceased's custom) practice the matrilineal system?  I will leave is hypothetical question to the parties themselves to think about.

SUMMARY

30.	I refer to the issues.

31.	In relation the first issue, that is, Did the trial magistrate conduct a trial? my answer is "no".  In relation to the second issue, that is, If not, what type of hearing was that and whether the decision was final? my answer is "His Worship exercised his powers under section 22B of the DCA and he also tried to settle the matter amicably.  And the decision of His Worship was not final".  In relation to the third issue, that is, are the grounds of appeal sustainable under the circumstances? my answer is "no".  And in relation to the final issue that is, Was there a substantial miscarriage of justice that warrants this Court to over-turn the trial magistrate's decision? my answer is "no".

COSTS

32.	Cost is discretionary.
33.	I refuse to award costs against appellants herein.  I find that both parties are at fault.  For the appellant, I have dismissed all his grounds of appeal.  I note that this matter would not have come this far had both parties addressed the matter in the manner as pointed out to by His Worship.  Both parties have failed in that regard and it has come to this stage.

34.	I will order each party to bear their own costs.

THE ORDERS OF THE COURT

I make the following orders:

1.	The appeal is dismissed.

2.	The appellant and the respondents shall bear their own costs of the appeal.

3.	Time is abridged.

The Court orders accordingly.

________________________________________________________________
Solwai Lawyers		: For the Appellant
Islands Legal Services	: For the Respondent