Pawa Kombea v Semal Peke

• Jurisdiction: Papua New Guinea
• Judge: Kapi DCJ
• Judgment Date: 02 December 1994
• Citation: [1994] PNGLR 572
• Court: National Court
• Year: 1994
• Judgement Number: N1275

National Court: Kapi DCJ

Judgment Delivered: 2 December 1994

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

PAWA KOMBEA

V

SEMAL PEKE

Waigani

Kapi DCJ

12 August 1994

16 August 1994

2 December 1994

CONSTITUTIONAL LAW — Underlying law — Pleading custom in a common law action.

PRACTICE AND PROCEDURE — Custom — Matter of fact.

DAMAGES — Assessment — Malicious prosecution — False imprisonment — Defamation — Quantum.

Facts

The plaintiff sued the defendant alleging a number of causes of action known to common law, but not yet adopted by the courts as the underlying law of Papua New Guinea. Default judgment was entered against the defendant for failure to file pleadings. A hearing was held to assess damages.

Held

1. Where an action in common law which is not yet part of the underlying law is instituted, the question of custom must be pleaded to give effect to Sch 2.2 (1) (c) of the Constitution.

2. Damages should be assessed under each separate cause of action.

Cases Cited

Abal v Parao [1976] PNGLR 251.

Aundak Kupil v PNG [1983] PNGLR 350.

Cross v Zuidema [1987] PNGLR 361.

Resena v PNG [1991] PNGLR 174.

Counsel

J Shepherd for the plaintiff

No appearance by the defendant

2 December 1994

KAPI DCJ: The plaintiff sued the defendant for damages under the following heads:

1. Malicious prosecution

2. False imprisonment

3. Defamation

4. Character assassination

5. Breach of constitutional rights

6. Exemplary damages

7. Special damages

8. Interest.

On 13 December 1993, default judgment was entered against the defendant for failure to file a defence. The matter has come before me for assessment of damages. At the hearing, I raised the question of the relevance of customary law. Under our law, an indigenous inhabitant of Papua New Guinea has a choice of law as between an action in common law, statute, or customary law (Resena v PNG [1991] PNGLR 174).

If, however, an action in common law is chosen, the applicability of common law is still subject to Sch 2.2 of the Constitution. Under Sch 2.2 (1) (c), common law is subject to the principles of customary law. In dealing with this issue, I said in Resena v PNG (supra) at p 182:

"This means that where a common law action is instituted as a matter of choice, if a custom which is applicable to any of the parties in the action is shown to be inconsistent with the common law action, the common law principle in a particular case cannot be enforced. It is the duty of counsel to ensure that this inquiry is made before principles of common law can be adopted and enforced as part of the underlying law. Ultimately it is the duty of the court to make this inquiry as was done in the case of Aundak Kupil and Kauke Kensi v Independent State of Papua New Guinea.

Now in this case, while the trial judge posed the right question, he did not give any opportunity to any of the parties to assist him on the inquiry as to the existence of any principle of customary law. In my view, this is significant in this case as the claim was based and argued before the trial judge on the principles of common law and they gave no consideration at all to calling any witnesses to give evidence of custom. In my view, had the parties been given the opportunity to do so, they would have led evidence relating to custom. The relevant custom in question is that of the Motuan people and there would be no difficulty in calling appropriate witnesses from villages around Port Moresby. No opportunity was given to any of the parties to call this evidence. This is not only contrary to principles of natural justice (ss 59, 60 of the Constitution) but a real and a meaningful effort must be made by the courts to call for proof of evidence of custom."

I adjourned the case in order to give counsel for the plaintiff in this case an opportunity to seek instructions on the question of custom. The parties in this case come from the same area in the Southern Highlands Province. Counsel for the plaintiff has filed two affidavits; one by Aepa Pere of Karo village, Ialibu, a Village Court Magistrate since 1978, and Karu Opu, a leader from Ponegama village, Ialibu.

Both witnesses deposed that the parties in this action speak the same language (Imbongu) and have the same customs and traditions. As I understand their evidence, there is no custom which would be inconsistent with the actions taken in common law in this case.

The right time in which to raise the question of custom is at the outset, when a cause of action is instituted. The most appropriate way to raise this issue would be by pleading the question of custom as a matter of fact in the pleadings (s 2 (1) Customs Recognition Act Ch 19). If there is any custom which may be relevant, it should be pleaded to indicate whether or not it is inconsistent with the principles of common law and equity. If there is no custom which is relevant, that fact should also be pleaded.

In my view, it is necessary to raise the question of custom in the pleadings in all actions which are based on the principles of common law and equity which are yet to be adopted as part of the underlying law to give effect to Sch 2.2 (1) (c) of the Constitution.

In the present case, custom was not pleaded, and when judgment was entered, it related only to the action brought in accordance with the principles of common law. As there is no relevant custom and as no issue was raised about the applicability and appropriateness of principles of common law, it will be adopted as part of the underlying law.

As I have pointed out earlier in the judgment, the plaintiff claimed damages under the heads of malicious prosecution, false imprisonment, defamation, character assassination, constitutional rights, exemplary damages, special damages, and interest. At the hearing, counsel for the plaintiff abandoned the claims for exemplary damages, character assassination, and breach of constitutional rights. The claim is, therefore, confined to a claim for malicious prosecution, false imprisonment, defamation, special damages, and interest.

The plaintiff comes from Kogibugl village near Ialibu, Southern Highlands Province. He is aged about 47 years and he is a member of the Southern Highlands Provincial Assembly. He was first elected into the Assembly on 19 June 1980, and has been re-elected in successive elections until now. He is, therefore, the longest serving member of the Assembly. He is married with two wives according to custom. He...