Anna Yakopa Kiwai v Jerry Kiwa

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi, J.
• Judgment Date: 19 February 2015
• Citation: (2015) N5877
• Court: National Court
• Year: 2015
• Judgement Number: N5877

Full : WS. NO. 384 of 2010; Anna Yakopa Kiwai v Jerry Kiwa (2015) N5877

National Court: Kandakasi, J.

Judgment Delivered: 19 February 2015

N5877

[PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS. NO. 384 of 2010

BETWEEN

ANNA YAKOPA KIWAI

Plaintiff

AND

JERRY KIWA

Defendant

Waigani: Kandakasi, J.

2013: 21st October

2015: 19th February

EVIDENCE – Adducing into evidence copies of documents - Best evidence rule – Need for proper explanation as to whereabouts and inability to produce original – No such explanation provided – Purported agreement no agreement.

CONTRACT - Written contracts – Requirements – Contest over signing or execution by a party – Original allegedly signed not produced and no explanation and reason advanced – Witnesses and parties executing not in the same place and time – Serious doubt on the essential terms amounting to unconscionable terms - Purported copy no prove of contract

CONTRACT - Particular kind of contract – Prenuptial agreement – Essential elements – Essential elements not meet in purported agreement – No prenuptial agreement.

LEGISLATION – Fairness of Transactions Act – Main purpose – Address need for fairness and equality in bargaining power – Failure to meet requirements of Act – Transaction could be declared null and void.

STAMP DUTIES ACT – Failure to meet requirements of Act – No party at liberty and entitled to have purported agreement admitted into evidence and enforced by the Courts.

WORDS & PHRASES – “Witness” – Role of a witness to a written agreement – Observing, seeing, viewing or perceiving the signing of an agreement in the witnesses presence – Singing by a witness without seeing the signing by the parties is no valid witnessing.

Cases Cited

Papua New Guinea Cases cited:

The State v. Hekavo [1991] PNGLR 394.

Grand Chief Sir Michael Thomas Somare v. Chronox Manek (2011) SC1118.

Re James Eki Mopio [1981] PNGLR 416.

Chief Collector of Taxes v Blasius Dilon [1990] PNGLR 414.

Sam Kuri v. Motor Vehicles Insurance Limited (2011) SC1117.

The State v. John Bill White (No 1) [1996] PNGLR 262.

Arua Loa & 2 Ors vs The State and Ors (2015) N5849

Michael Tenarum Balbal v. The State (2007) SC860.

Peter Wararu Waranaka v Gabriel Dusava (2009) SC980.

Waghi Security Service Pty Ltd v. John Tembon & Anor and [1994] PNGLR 138.

Gwanzik Wiring v. John Muingnepe (2012) N4889.

Alotau Enterprises Pty Limited and Allen Enterprises Pty Limited v. Zurich Pacific Insurance Pty Limited (1999) N1969 .

Papua Club Inc v. Nusaum Holdings Ltd (2005) SC812.

Kora Gene v. Motor Vehicles Insurance (PNG) Trust [1995] PNGLR 344.

Credit Corporation (PNG) Limited v. David Nelson (2011) N4368.

Bank South Pacific Ltd v. Robert Tingke (2012) N4901.

Rage Augerea v. Bank South Pacific Ltd (2007) SC 869.

Negiso Investments Limited v. PNGBC Limited (2006) N3104.

Dr. Florian Gubon Trading as Gubon Lawyers v. Pacific Mobile Communication Limited (2003) N2439.

Spirit Haus Ltd v. Robert Marshall (2004) N2630

Overseas Cases Cited

Hocking v Ahlquist Bros Ltd [1944] 1 KB 120.

Megginson v. Megginson, 367 Ill. 168 (Ill.1937).

In the Matter of the Estate of Robert J. Crawford, 107 Wash.2d 493 (Wash. 1986).

McMullin v. McMullin, 926 S.W2d 108 (Mo. App. 1996).

Text Books & Articles Cited:

J M E Garrow & J D Willis in The Principles of the Law of Evidence in New Zealand.

Phipson On Evidence, 13th edition, para 5-01 – 02.

“Prenuptial Prerequisites: The 4 essential elements of an inviolable agreement,” By Mark A. Chinn & Charles Greer, Family Advocate, A practical journal by the ABA Family Law Section, Vol. 24, No. 3, Winter 2002, at http://greerlawfirm.net/prenuptial-prerequisites-the-4-essential-elements-of-an-inviolable-agreement.htm

Counsel:

A. Baniyamai, for the Plaintiff

J. Kolkia, for the Defendant

19th February, 2015

1. KANDAKASI J: This is perhaps the first ever case in Papua New Guinea that concerns a prenuptial agreement. Here Anna Yakopa Kiwai, the Plaintiff is seeking to enforce a purported prenuptial agreement between herself and Jerry Kiwa the Defendant dated 6th April 2005 (“the Agreement”), which he denies. In his defence, Jerry claims he did not enter into such an agreement and denies executing it. He also claims that the purported terms of the contract are unconscionable. Based on these, he says Anna is not entitled to enforce the agreement.

Question

2. Two main questions are presented for this Court to consider and determine. These are:

(1) Did Anna and Jerry enter into the agreement and execute it?

(2) If the answer to the first question is in the affirmative, is it enforceable?

3. The first question is determinative of the second and hence the whole case. I will deal with these questions as one but in the order they are presented.

Evidence and relevant facts

4. The first question is one which turns mainly on the facts with some assistance with the law on the reception, treatment and use of evidence called by the parties. Some of the facts are agreed between the parties per their statement of agreed and disputed facts. Before getting into other evidence before the Court, I consider it helpful that I should set out the full terms of the agreement in order that we are informed as to what the dispute and arguments are all about. The agreement, excluding the parts naming the parties and the date of when it was executed reads:

“AGREEMENT FOR MARRIAGE AND LIFE BOND

An AGREEMENT made on the 6th day of April 2005.

BETWEEN: ANNA YAKOPA KIWAI of Lihir Management Company

AND: JERRY KIWAI of Jerry Kiwai Lawyers

WHEREBY IT IS AGREED and CONSENTED between parties as follows:-

1. The Wife Anna Yakopa Kiwai agrees to resign from work and marry her husband Mr Jerry Kiwai only on the following conditions.

2. The Husband Mr. Kiwai to pay a forthnightly (sic) salary of K2,000.00 every forthnight (sic) which should take effect forthwith upon resignation for a lifetime.

3. The Husband Mr. Kiwai to give 60% of the shares in the law firm to her and her children.

4. The Husband Mr. Kiwai to give million kina to her upon receipt of the judgment sum from the Pastor Louis Apurel’s case.

5. The Husband Mr. Kiwai to buy a brand new Toyota Land cruiser for her use upon immediate recival (sic) of any outstanding sums.

6. The Husband Mr. Kiwai pay a sum of K150,000.00 (including pigs and etc) as bride price wealth to her relatives.

7. The marriage to be properly consummated in church and recognized by everyone and further evidenced by a marriage certificate immediately.

IN WITNESSWHEREOF the parties have signed this Agreement on the day and date first mentioned earlier.

SIGNED by said )

ANNA Y KIWAI as )

the wife in the presence of ) (Signed and dated 8/04/05) ________________________

(signed and dated 6/04/05) MR. LEO YAKOPA

______________________________ ) WITNESS:

______________________________ )

SIGNED by said )

JERRY KIWA as )

the HUSBAND in the presence of ) ______________________

(signed and dated 6/04/05) PASTOR LOUIS APUREL

___________________________ ) WITNESS:

___________________________ )”

5. Before anything else, I observe that, the way in which the agreement has been written out and executed does not reflect well of a law firm that has been in existence for a while now or as a document produced by its principal. Instead, it appears to suggest an amateur or a lay person who is familiar with legal documents, particularly written agreements or contracts at work more than a lawyer. It displays a lot of spelling, styling and other errors, like the most obvious one being the agreement indicating that it is between a husband and a wife when the parties are yet to get married. Also, the agreement does not start with any preamble as most other agreements prepared by lawyers do. Further, the respective addresses of the parties are not disclosed.

6. Now turning to the other evidence before the Court I first note that, according to the parties’ statement of agreed and disputed facts filed on 2nd September 2013, the following facts are agreed:

(1) Anna and Jerry lived as husband and wife under a customary marriage from 2005 to August 2008;

(2) Jerry Kiwai is the principle of a law firm, Jerry Kiwai Lawyers operating out of the National Capital District;

(3) Prior to 13th December 2006, Anna was employed as an Archivist with Lihir Gold Mine in the New Ireland Province;

(4) Anna resigned from her then employment on 13th December 2006, and moved to Mt. Hagen to live with Jerry;

(5) From 13th December 2006, to 1st April 2010, Jerry employed Anna as the Finance Manageress of the then office of Kiwai Lawyers in Mt. Hagen, Western Highlands Province;...