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Ume; Re Martin Beni [1978] PNGLR 71 (10 April 1978)

Papua New Guinea Law Reports - 1978

[1978] PNGLR 71 - Ex Parte Nora Ume; Re Martin Beni 

[1978] PNGLR 71

N129

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

NORA UME

V

MARTIN BENI

Waigani

Pritchard J

7 April 1978

10 April 1978

PREROGATIVE WRITS - Habeas Corpus - Order for custody of child - Claim to writ to be based on clear legal entitlement - Custody order apparently defective - Power to go behind custody order - No jurisdiction to make custody order - Writ discharged - Deserted Wives and Children Act 1951, ss. 5, 6[lxi]¹ - Infants Act 1956, s. 6.

ESTOPPEL - Matters preventing existence of estoppel - Lack of jurisdiction - Custody order - Order on its face made without jurisdiction - Application for writ of habeas corpus based on order - Power to go behind order - Deserted Wives and Children Act 1951, ss. 5, 6[lxii]² - Infants Act 1956, s. 6.

The applicant (wife) for a writ of habeas corpus had made a complaint (not on oath) purporting to be under s. 5 of the Deserted Wives and Children Act 1951, alleging that she had been left without means of support, upon the hearing of which a District Court magistrate, not having made any findings on the question of being left without means of support, proceeded to make an order for custody of an infant who was residing with the husband’s parents, and apparently on the basis of a custody application under s. 6 of the Infants Act 1956. On the return of the order nisi for a writ of habeas corpus directed to the husband and requiring production of the child,

Held

(1)      A parent, guardian, or other person who is legally entitled to the custody of a child can regain that custody when wrongfully deprived of it by means of a writ of habeas corpus: but the claim in such a writ must not only be based on clear legal entitlement by the applicant but on illegal detention by the respondent to the writ.

Halsbury’s Laws of England 3rd ed. vol. 11 pp. 24, 31, 33 referred to.

(2)      On the return of a writ of habeas corpus the court may go behind an order upon which the order nisi is based, which on its face appears to be made without jurisdiction, for the lack of jurisdiction deprives the order of any effect whether by estoppel or otherwise.

Halsbury’s Laws of England 4th ed. vol. 16, par. 1554 referred to.

(3)      It appearing from the face of the order for custody upon which the order nisi was made returnable that it had been made without jurisdiction, the court could go behind the order and look at the actual proceedings in the District Court.

(4)      From the record of proceedings in the District Court it appeared that the case was conducted as an ordinary custody case as if under the Infants Act 1956 which the magistrate has no power to hear or decide (such applications lying only to the National Court), and the order made therefor had no effect.

(5)      Accordingly the applicant (wife) had no clear legal entitlement to custody of the infant and the respondent (husband) to the writ of habeas corpus ought to be discharged.

Habeas Corpus

This was the return of an order nisi for a writ of habeas corpus directed to the respondent to produce before the court his child, of whom the applicant was the mother, and in relation to whom the District Court had made an order for custody in favour of the applicant.

Counsel

K. A. Wilson, for the applicant (wife/mother).

I. Nwokolo, for the respondent (husband/father).

Cur. adv. vult.

11 April 1978

PRITCHARD J: In this matter a writ of habeas corpus was issued returnable before this Court on 7th instant directing the respondent to produce before the court his child, Theresa Beni, of whom the applicant is the mother. On the return day the respondent appeared represented by counsel who filed on his behalf an affidavit purporting to show cause in answer to the writ. The child was not produced in court. The affidavit claimed that the child (now aged 4½) had in fact been living with the respondent’s mother in her village (Waima, in the Central Province) since she was one year old although the respondent did not specifically say that the child was there at present. Council for the applicant objected to the respondent’s affidavit on three broad grounds. Firstly that the child had not been produced, secondly that the affidavit did not disclose where the child was and thirdly that it contained a number of matters going to the merits of the question of who was better fitted to have custody of the child which, counsel for the applicant said, could not be considered at this point of time as the issue of the writ itself was based on the applicant’s claim that an order for custody was pronounced in her favour by the Port Moresby District Court on 1st February last and had been disobeyed.

Counsel for the respondent submitted that the case Ex parte Youngeman Tongale[lxiii]³ was authority for the proposition that as between father and mother a writ of habeas corpus could not run. In that case Prentice D.C.J (as he then was) said: “In Papua New Guinea, short of what may be shown to be otherwise under the Native Custom Recognition Act (unless native custom is to be regarded as superseded by the Infants Act 1956), the situation as to custody of children is governed by s. 6 of the Infants Act. Thereunder, father and mother are jointly and severally entitled to the custody of their children. As Alfred is shown to be the father of the children concerned and prima facie entitled with his wife to their custody, the writ cannot run against him.” His Honour quoted the following passage from Halsbury (3rd ed., vol. 11 p. 24) on habeas corpus — “The writ ... is a prerogative process for securing the liberty of the subject ... by affording an effective means of immediate release for unlawful or unjustifiable detention, whether in prison or private custody.”

I would go on to quote two passages from the same volume. Firstly at p. 31 it is said: “The remedy of habeas corpus is equally available in criminal and civil cases, provided that there is a deprivation of personal liberty without legal justification.” At p. 33, in relation to the question of custody of infants it is said: “A parent, guardian, or other person who is legally entitled to the custody of a child can regain that custody when wrongfully deprived of it by means of the writ of habeas corpus. The unlawful detention of a child from the person who is legally entitled to its custody is, for the purpose of the issue of the writ, regarded as equivalent to an unlawful imprisonment of the child. It is, therefore, unnecessary to allege in applying for the writ that any restraint or force is being used towards the infant by the person in whose custody and control it is for the time being.”

Council for the applicant submitted that Tongale’s case was not binding upon the applicant as she had a legal order for custody from a court of competent jurisdiction in her favour and that order had been disobeyed. I would point out here that in the three passages from Halsbury cited above, the stress placed upon the expressions “unlawful detention”, “without legal justification”, “legally entitled to the custody” and “unlawful imprisonment” make it obvious that a claim in a writ of habeas corpus must not only be based on a clear legal entitlement but on illegal detention by the respondent to the writ.

On perusal of the affidavit of the applicant upon which she obtained the issue of the writ I drew the attention of counsel to the fact that it appeared that the magistrate may not have had jurisdiction to make the order referred to. Paragraphs 7 and 8 of the affidavit read as follows:

“7.      In January, 1978, after taking proceedings to enforce the order in respect of Martha I applied for an order under the Deserted Wives and Children Act for custody of THERESA at the District Court, Port Moresby.

8.       The case was heard on the 1st February, 1978 MARTIN BENI appeared, and A. Iapia S.M., the presiding magistrate awarded custody of THERESA to me.”

The magistrate’s order signed by him and sealed with the seal of the Port Moresby District Court was annexed to the affidavit and I set it out in full:

“PAPUA NEW GUINEA

IN THE MATTER OF NATIONAL CAPITAL DISTRICT COURT HOLDEN AT PORT MORESBY ON 1st FEBRUARY, 1978

BETWEEN:

COMPLAINANT: NORA UME of TOKARARA PORT MORESBY

AND:

DEFENDANT: MARTIN BENI of PORT MORESBY

COMPLAINT:

That during the month of July, 1976, at Port Moresby did leave your wife without sufficient means of support. The Complainant seeks an order for maintenance for the child THERESA born on the 4th June, 1973 under Section 5 (1)(b) of the Deserted Wives and Children Act 1951 (as amended) and the Complainant further seeks an order under Section 6 of the said Act committing the custody of the abovementioned child to her.

COURT ORDER:

1.       The custody of the child THERESA is awarded to the complainant NORA UME.

2.       The defendant MARTIN BENI to pay maintenance for the child THERESA in the sum of TEN KINA (K10.00) per fortnight through N.M.T.A. Cash Office, Port Moresby and the complainant NORA UME to collect this money on behalf of the said child.

3.       This order to remain valid until the child THERESA attain the age of 16 years or may be varied, suspended, or discharged by an order of the Court if other circumstances arise.

4.       First payment of TEN KINA (K10.00) per fortnight to commence on 10th February, 1978 and to be paid as stated above on No. 2.

Given under my hand this 1st day of February, 1978.

A. IAPIA, MAGISTRATE”

I pointed out to counsel that jurisdiction to award custody under the Infants Act 1956 lay only in the National Court and that under the Deserted Wives and Children Act 1951 a court of summary jurisdiction had no right to make an order for custody unless it was consequent to a finding of leaving without means of support and the making of a maintenance order under that Act and that it appeared on the face of the applicant’s affidavit and the magistrate’s order that such conditions precedent had not been fulfilled. As I was part heard in another matter that day, I stood this matter over until yesterday in order that the original court records from the Port Moresby District Court could be obtained.

On the resumed hearing yesterday counsel for the applicant submitted to me that I had no right to go behind the magistrate’s order and that in any event the magistrate’s decision could not be questioned on the return of a writ of habeas corpus. He cited to me the case of R. v. Morn Hill Camp Commanding Officer; Ex parte Ferguson[lxiv]⁴. I do not consider that case appropriate to the present one. In it the writ of habeas corpus was being sought specifically to question the decision of the magistrate and the basis of the decision was that it could not be so used when there was a ready means of appealing from that decision in a regular manner. This is not such a case. This is a case where on the face of the magistrate’s order he appeared to act without jurisdiction. In Halsbury (4th ed. vol. 16 par. 1554) it is said:

“In order that estoppel by record may arise out of a judgment the court which pronounced the judgment must have had jurisdiction to do so: the lack of jurisdiction deprives the judgment of any effect, whether by estoppel or otherwise. This rule applies even where the party alleged to be estopped himself sought the assistance of the court whose jurisdiction is impugned.”

Later on in the same paragraph it is said:

“The absence of a condition necessary to found the jurisdiction to make an order or give a decision deprives the order or decision of any conclusive effect, but it is otherwise where the order is good on its face and the court adjudicating has jurisdiction to determine the existence or not of the condition, and the party denying its existence has neglected his opportunity of raising objection at the hearing.”

This is, to me, a clear statement of the law. I reserved consideration of my right to go behind the order and of the matter generally until today. Prior to adjourning yesterday counsel for the respondent attempted to amend the affidavit showing cause by adding the ground of want of jurisdiction in the magistrate on the face of his order. This was objected to and I made no ruling on it. During the proceedings and before I adjourned, the child Theresa was in fact brought into court by what appeared to be the parents of the respondent to this application. This virtually got rid of whatever technical objections have been raised to the respondent’s original non-compliance with the terms of the writ itself.

Section 5 of the Deserted Wives and Children Act provides for 3 alternative grounds to found a complaint on which a summons or warrant may issue. The two alternative grounds relevant here are:

(a)      where a husband has unlawfully deserted his wife or left her without means of support, and

(b)      where a father has deserted his child or left him without means of support.

In each instance a complaint must be made on oath in the first case by the wife and in the second case by the mother of the child. The court then is empowered to issue its summons requiring the husband or father to appear before it and show cause why he should not support his wife or child as the case may be or the court may issue a warrant for his apprehension instead.

Section 6 of the Act (omitting the irrelevant parts) provides as follows:

“(1)    Upon the hearing of a complaint under the last preceding section, the court shall enquire into the matter of the complaint, and

(a)      if it is satisfied that the wife is in fact left without means of support ... may order the defendant to pay, for the use of the wife, such allowance as it considers reasonable, and may commit the legal custody of a child of a marriage to the wife or some other person and order the defendant to pay, for the support of the child, such allowance as it considers reasonable, and

(b)      if it is satisfied that a child of the defendant is in fact left without means of support ... may order the defendant to pay, for the support of the child, such allowance as it considers reasonable, and may commit the legal custody of the child to the mother or some other person.”

It will thus be seen that the procedure in s. 6 (1)(a) is the procedure to be followed in the first type of complaint I have above indicated may be laid under s. 5, and the procedure in s. 6 (1)(b) is the procedure to be followed in the second type of complaint which can be laid under s. 5.

It thus appears on the face of the magistrate’s order in this case that he had not satisfied himself that the wife has been left without means of support for the very simple reason, apart from the fact that he does not say he has so satisfied himself, that he made no order for maintenance in her favour. That being the case he could not go on to make an order for custody of a child under s. 6 (1)(a). Further, on the face of the order, he had no right to grant custody of the child under s. 6 (1)(b) as he has not purported to deal with a complaint for leaving the child without means of support. In view of this I propose going behind the order and looking at the actual proceedings which took place at the Port Moresby District Court. I am always loath to go behind a magistrate’s order but in Papua New Guinea I believe, because of language difficulties, appellate courts should be more inclined than elsewhere to look behind magistrates’ orders at the actual proceedings themselves. It must be remembered that to the vast majority of magistrates in this country, English is only a second or third language and it frequently occurs that magistrates’ orders are worded incorrectly because of this. It sometimes happens that perusal of the court records demonstrates that in fact the magistrate did exercise his jurisdiction in a proper manner and all that needs correcting is the wording of his actual order.

In this case on perusing the court records it is clear, however, that the magistrate had no jurisdiction to make the order he did. For a start the complaint was not made on oath as it should have been. It is in fact a complaint for leaving the wife without means of support and does not allege that the child was left without means of support. On reading the evidence I find there is no evidence whatever by the wife that she was left without means of support. The only evidence she gave relating to the question of her support was that she was in secure employment and had been so for the past 1½ years. She swore that from her income she is able to pay money into a savings account. She gave no evidence to suggest that the child was left without means of support. In fact she swore that the child Theresa had lived with the respondent’s parents since July 1976 at Waima Village. She did claim that she had been trying to get the child since that time. The respondent gave evidence and he said that the child was with his parents and that some customary payments had been made to the applicant’s relations so that he and his parents could keep the child. The respondent does not live in his village but works and lives in Port Moresby. He gave evidence that he saw the child every month and that he took money each time be visited her. In his address to the magistrate, counsel for the applicant said “It would appear that Mr. Beni did not have custody of the child. The child is with his parents.” It is quite clear to me that this case was conducted as an ordinary custody case in front of the magistrate as if it were a case under the Infants Act. The magistrate had no power to hear it or to make the order which he did. Counsel for the respondent has criticized the magistrate for not taking into account the question of custom which was clearly raised on the evidence. This, however, is irrelevant as whatever the custom of these parties may have been the magistrate was acting without jurisdiction. This finding also makes it unnecessary for me to decide whether this writ lay against the respondent at all, considering the clear evidence which emerged before the magistrate that the child was in his parents’ custody, not his.

Before adjourning yesterday I invited the parties to make an application to this Court under the Infants Act so that the matter could be properly litigated and the question of custody determined. That is a matter for the parties to decide themselves. Finally I would like to quote from the first annual report under the Constitution by the Chief Magistrate which I made while acting in that position in 1976. In Chapter 3 headed “Problem Areas in the Work of Magistrates” par. C. headed “Maintenance of Wives and Children”, I said at p. 21: “The two acts dealing with this subject, namely the Deserted Wives and Children Act 1951 and that portion of the Child Welfare Act 1961 concerning illegitimate children, are badly in need of reform. They are certainly in many cases not appropriate to Papua New Guinea; they confuse many magistrates in the way they are worded and as a result many orders are made for questionable reasons, both as to liability itself and the amount ordered”. That statement has been ignored up to the present time and I can only say that this case before me demonstrates the truth of these remarks and the need for reform in this field of law.

I therefore discharge the respondent Martin Beni on the writ upon which he has appeared before this Court. I make no order as to costs in favour of the respondent, firstly because he could have appealed against the magistrate’s order and did not do so and secondly there is no indication that the applicant personally has acted in anything other than good faith, believing she had a valid order for custody in her favour.

Orders accordingly.

Solicitor for the applicant: Mari Kapi (Public Solicitor).

Solicitor for the respondent: Ikenna Nwokolo & Co.

[lxi]Infra p. 76.

[lxii]Infra p. 76.

[lxiii]Unreported National Court Decision N.5 of 3rd October, 1975.

[lxiv] [1917] 1 K.B. 176.