Otto Benal Magiten for and on Behalf of Himself and His Five Children v Bernadette Beggie and Benedict Magiten Wahiginim (2005) N2880

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 21 April 2005
• Court: National Court
• Citation: (2005) N2880
• Year: 2005
• Judgement Number: N2880

Full Title: Otto Benal Magiten for and on Behalf of Himself and His Five Children v Bernadette Beggie and Benedict Magiten Wahiginim (2005) N2880

National Court: Cannings J

Judgment Delivered: 21 April 2005

N2880

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS NO 573 OF 2004

OTTO BENAL MAGITEN

FOR AND ON BEHALF OF HIMSELF AND HIS FIVE CHILDREN

Plaintiff

V

BERNADETTE BEGGIE

First Defendant

AND

BENEDICT MAGITEN WAHIGINIM

Second Defendant

KIMBE : CANNINGS J

18, 21 APRIL 2005

RULING ON MOTION

Judgments and orders – application for default judgment – substantive proceedings commenced by originating summons – whether default judgment an appropriate procedure.

Underlying law – custom – breach of custom as a cause of action – need to plead and prove custom relied on – Underlying Law Act 2000 – Customs Recognition Act, Chapter No 19.

Practice and procedure – directions that a case commenced by originating summons shall continue on pleadings – National Court Rules, Order 4, Rules 31, 35.

The plaintiff commenced proceedings by originating summons, alleging that his wife, who is the first defendant, had illegally married his brother, who is the second defendant. The plaintiff claimed that the defendants’ marriage is in breach of the East Sepik customary law, to which all parties are subject. The plaintiff seeks a declaration that the defendants’ marriage is prohibited by custom and void, and consequential orders for damages. The defendants did not file a notice of intention to defend or a defence or any other document, in response. The plaintiff then brought a motion for default judgment.

Held:

(1) The motion is misconceived, as the default judgment procedure is not available for proceedings commenced by originating summons.

(2) The court was not satisfied that the originating process disclosed a reasonable cause of action, and would have refused the motion, even if the proceedings had been commenced by writ of summons.

(3) The documents filed in court must state clearly what the custom being relied on is and who it applies to and provide details of its requirements in clear, precise and adequate terms. Madaha Resena and Others v The State [1991] PNGLR 174 (the Fisherman’s Island case) applied; Gia Kewa Piel v Eric Ranpi [1996] PNGLR 396; George W Sulliman v Thecla Sulliman (2002) N2199; Mesulam Meriba v Phillip Silou (2002) N2227 followed.

(4) Directions given under Order 4, Rules 31(2) and 35(1) of the National Court Rules that the proceedings shall continue on pleadings.

Cases cited

The following cases are cited in the judgment:

Eliakim Laki and 167 Others v Maurice Alaluku and Others (2000) N2001

George W Sulliman v Thecla Sulliman (2002) N2199

Gia Kewa Piel v Eric Ranpi [1996] PNGLR 396

John Kunkene v Michael Rangsu and The State (1999) N1917

Madaha Resena and Others v The State [1991] PNGLR 174

Mesulam Meriba v Phillip Silou (2002) N2227

Tiaga Bomson v Kerry Hart (2003) N2428

NOTICE OF MOTION

This was an application on notice seeking entry of default judgment.

Counsel

O Magiten, the plaintiff, in person

No appearance for the defendants

CANNINGS J:

INTRODUCTION

This is an application for default judgment. The plaintiff filed an originating summons. He served it on the defendants, who have not filed a notice of intention to defend. The plaintiff says that the defendants are in default of the National Court Rules and therefore he is entitled to a judgment, in his favour. He wants an order nullifying the purported marriage of the first and second defendants and an order that they are liable to pay damages to him and his children.

BACKGROUND

This case is about an alleged breach of custom leading to an illegal marriage. The plaintiff is from East Sepik Province. He says that he came to Kimbe, West New Britain, in 1998 with his wife and five children to stay with his parents on their oil palm block. He has had to travel frequently since then. While he was away his wife, the first defendant, formed an association with his brother, the second defendant. They have become married. He claims that this is a disgraceful breach of their custom.

On 12 October 2004 the plaintiff filed an originating summons, seeking three sets of orders:

1 A declaration that the first and second defendants’ marriage is prohibited according to custom and as such has breached fundamental rights of the children and the plaintiff and therefore is null and void thus be restrained accordingly.

2 An order that the first and second defendants pay damages to the plaintiff and his five children for the pain and suffering.

3 Such further or other orders as the court may think fit.

On 26 October 2004 the originating summons was served on the defendants. On 6 January 2005 the plaintiff filed three affidavits in support of his claims. The deponents are:

· the plaintiff himself, who gives his address as PO Box 194, Madang;

· his 12 year-old daughter Deborah Benal, of Woginara No 2 village, Dagua, East Sepik; and

· the first defendant’s mother, Anna Ablesim, also of Woginara No 2.

On 11 April 2005 the plaintiff filed a notice of motion, seeking a default judgment in terms of the orders sought in the originating summons. He supports the motion with an affidavit filed on the same day in which he deposes that the defendants have not filed any document to defend the matter and that they have failed to comply with the National Court Rules.

On 13 April 2005 the plaintiff filed an affidavit deposing that he had personally served the notice of motion on the defendants on 12 April 2005.

THE LAW REGARDING DEFAULT JUDGMENTS

An application for default judgment must be made under Division 12.3 (default judgment) of the National Court Rules. This Division contains Rules 24 to 36, which prescribe the requirements that have to be satisfied before the National Court considers whether to exercise its discretion to enter default judgment.

There is a checklist of things that have to be proven by an applicant, eg the motion must be in a proper form, supported by affidavit; it must be served in accordance with the Rules; there must be proof that the defendant has not filed a notice of intention to defend or if a notice has been filed that the plaintiff has warned the defendant of an impending application for default judgment; there must be proof of default in filing a defence and proof of service of the writ. If one of the items on the checklist is not ticked, the court will refuse the application.

If all of them are ticked the court still has a discretion to refuse the application, eg where the extent of the default by the defendant is not great and the defendant appears to have a good defence (John Kunkene v Michael Rangsu and The State (1999) N1917, Kirriwom J) or where the statement of claim amounts to an abuse of process (Eliakim Laki and 167 Others v Maurice Alaluku and Others (2000) N2001, Sevua J) or where the plaintiff has not prosecuted his case diligently (Tiaga Bomson v Kerry Hart (2003) N2428, Kirriwom J).

Order 12, Rule 24 states that Division 12.3 of the National Court Rules only applies to proceedings commenced by writ of summons. There is no equivalent procedure regarding proceedings commenced by originating summons.

MOTION MISCONCEIVED

In the present case the proceedings have been commenced by originating summons. So there can be no application for default judgment. The motion before the court is misconceived and will be dismissed for that reason alone.

FAILURE TO DISCLOSE CAUSE OF ACTION

Even if that were not the case, and I was satisfied that the various items on the checklist for default judgment were satisfied, I would exercise my discretion to refuse the application as I am not satisfied that the originating summons and the other documents filed to date disclose a reasonable cause of action.

BREACH OF CUSTOM

This is a case based on custom. Though the orders sought in the originating summons allude to breach of constitutional rights (which are not specified) it seems that the cause of action being relied on is breach of custom.

Breach of custom can be a proper cause of action but it must be properly pleaded. The documents filed in court must state clearly what the custom is and who it applies to and also provide details of its requirements in clear, precise and adequate terms. This was made clear by the Supreme Court in Madaha Resena and Others v The State [1991] PNGLR 174, Kapi DCJ, Amet J, Los J (The Fisherman’s Island case). It is a rule of practice and procedure applied subsequently in a number of National Court cases, including Gia Kewa Piel v Eric Ranpi [1996] PNGLR 396, Injia J; George W Sulliman v Thecla Sulliman (2002) N2199, Davani J; and Mesulam Meriba v Phillip Silou (2002) N2227, Lenalia J.

The originating summons in the present case fails to meet those requirements. The court – and therefore the defendants – do not know the details of the custom that is said to have been breached. That is another reason I will dismiss this motion.

I will not, however, dismiss the proceedings. There is no motion before the court to do that and it would be unfair on the plaintiff for the court to dismiss the proceedings on its own motion without giving him notice and an opportunity to make submissions on the matter. What I will do is give some directions aimed at putting the case on a proper...