Gia Kewa Piel v Eric Ranpi

• Jurisdiction: Papua New Guinea
• Judge: Injia J
• Judgment Date: 19 April 1996
• Citation: [1996] PNGLR 396
• Court: National Court
• Year: 1996
• Judgement Number: N1414

National Court: Injia J

Judgment Delivered: 19 April 1996

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

GIA KEWA PIEL

V

ERIC RANPI

Mount Hagen

Injia J

9-10 April 1996

19 April 1996

PRACTICE AND PROCEDURE — Pleading of cause of action — Underlying law — Action based on local custom — Duty of lawyers or parties to plead cause of action in clear, precise and adequate manner — Constitution, s 20, Sch. 2.1; National Court Rules, O 8 r 27.

Facts

The action was brought by the plaintiff/mother against the defendant/father in respect of a girl born in a de-facto relationship, which girl had turned 16 years of age before the action was instituted, seeking recovery of costs of maintaining the girl in her infancy and damages for loss of bride price prospect.

Held

1. There was no reasonable cause of action based on local custom pleaded in the statement of claim and the entire pleadings should be struck out and consequently the whole action should be struck out.

2. It is the duty of lawyers or parties to a customary cause of action to plead the cause of action in a clear, precise and adequate manner.

3. The need to clearly, precisely and adequately plead a customary cause of action becomes even more important where there is potential conflict between a customary action and, inter alia, statutory provision, i.e. the Child Welfare Act Ch 276 or the Deserted wives and Children Act Ch 277.

Cases Cited

Resena v PNG [1991] PNGLR 174.

Counsel

P Kopunye, for the plaintiff.

J Steel, for the respondent.

19 April 1996

INJIA J: This is a claim by the natural mother of her daughter Regina against her former de-factor boy-friend to cover damages being for the cost of maintaining or raising their female de-factor child who attained the age of 16 years before these proceedings were instituted. The plaintiff also seeks damages for loss of bride price payment.

The plaintiff's claim as pleaded in the statement of claim is essentially that she conceived Regina in 1977 as a result of a brief de-factor relationship she had with the defendant. Regina was born on 28 August 1978. Thereafter, the defendant disappeared and went his own way. The plaintiff went on to marry Paul Piel who adopted Regina and they both looked after her. On 9 October 1994, after more than 16 years, the defendant re-appeared and "took physical custody of Regina" claiming that he was her father. In the original writ the plaintiff claimed the cost of reasonable maintenance for Regina and loss of prospective bride price. On 20 October 1995, the matter came before me for trial and whilst the plaintiff was represented by Mr Kopunye, the defendant appeared in person. I granted him leave to appear in person to defend the claim even though he had not filed notice of intention to defend and defence. The plaintiff went into evidence and she was ably cross-examined by the defendant. He put his case to her whih basically was a mixture of denial of paternity and admission of paternity. At the end of the plaintiff's evidence, I invited the defendant to make a statement of his defence, as raised in cross examination, for the Courts record. At that stage, he ran into complications and asked for an adjournment to seek legal assistance, to which request I readily granted. He engaged the services of Warner Shand Lawyers who on 27 October 1995 filed a notice of intention to defend and defence. Subsequently, on 20 November 1995, the defendant's lawyer wrote to Mr Kopunye in which he raised two preliminary objections to the competency of the claim in line with their client's defence.

Mr Kopunye responded by filing a notice of motion on 27 November 1995 seeking to amend the statement of claim. The motion was supported by his affidavit sworn on 27 November 1995. The affidavit did not however disclose the fact that the matter was part-heard before me. The motion was moved before Woods, J. on 8 December 1995 who granted the orders sought.

In the original writ filed on 22 March 1995, the plaintiff claimed the following principal relief:

" (a) K1,624.00 representing the care and maintenance of the said Regina Piel from 28 August 1978 to February 1983;

(b) K9,060.00 representing the reasonable maintenance for the said Regina from February 1983 to 9 of October 1994;

(c) Loss of prospective bride price."

By defence filed on 27 October 1995, with leave of the Court, the defendant pleaded:

"7. The Defendant denies paragraph 15 of the statement of claim and further states that the Plaintiff is not entitled to maintenance of herself or Regina Piel because;

(a) there is no subsisting marriage.

(b) Regina Piel is over the age of 16 and is barred under the Frauds and Limitations Act 1988 from claiming maintenance for herself.

(c) the National Court has not jurisdiction in relation to maintenance claims under the Deserted Wives and Children's Act Ch No 277."

In the amended writ filed on 15 December 1995, the plaintiff claimed the following principal...