David Hill v Janelle Vera Hill, by her Next Friend, Agnes Watson and Agnes Watson (2012) N4728

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 22 June 2012
• Court: National Court
• Citation: (2012) N4728
• Docket Number: CIA NO 104 of 2011
• Year: 2012
• Judgement Number: N4728

Full Title: CIA NO 104 of 2011; David Hill v Janelle Vera Hill, by her Next Friend, Agnes Watson and Agnes Watson (2012) N4728

National Court: Cannings J

Judgment Delivered: 22 June 2012

N4728

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CIA NO 104 0F 2011

DAVID HILL

Appellant

V

JANELLE VERA HILL, BY HER NEXT FRIEND, AGNES WATSON

First Respondent

AGNES WATSON

Second Respondent

Waigani: Cannings J

2012: 6, 22 June

COURTS AND ORDERS – District Court – power to declare existence of customary marriage – jurisdiction in land matters involving bona fide dispute as to title – power to order transfer of title – power to order costs on solicitor-client basis.

In determining proceedings commenced by the appellant under the Summary Ejectment Act, seeking eviction of the second respondent from land of which the appellant was the sole registered proprietor, the District Court ordered that: there was a customary marriage between the appellant and the second respondent, the ejectment proceedings were dismissed, the appellant shall transfer his interest in the land in such a way that the second respondent becomes joint tenant of the land and the appellant shall pay costs to the second respondent on a solicitor-client basis. The appellant appealed against the order on eight grounds, arguing that the District Court erred by (1) declaring the existence of a customary marriage without proper pleading or evidence; (2) and (3) making orders regarding land in respect of which there was a bona fide dispute as to title, contrary to Section 21(1)(f) of the District Courts Act; (4) awarding costs on a solicitor-client basis without jurisdiction (5): basing the order as to transfer of land on Section 94 of the Child Welfare Act; (6) basing the order as to transfer of land on Sections 22 and 23 of the Deserted Wives and Children Act; (7) basing the order as to transfer of land on the National Goals and Directive Principles, which are non-justiciable; and (8) failing to provide reasons for its decision.

Held:

(1) Ground (1) was upheld as the existence of custom relied upon to base the declaration of a customary marriage was neither pleaded nor supported by credible evidence.

(2) Grounds (2) and (3) were upheld as there was a bona fide dispute as to title to land, a matter which is excluded from the jurisdiction of the District Court by the District Courts Act, Section 21(1)(f).

(3) Ground (4) was dismissed as the provision of the District Courts Act, Section 260, which confers power to award costs does not prevent the District Court awarding costs on a solicitor-client basis.

(4) Ground (5) was dismissed as the District Court was having regard to the requirements of Section 94 of the Child Welfare Act, and not relying on that provision as a source of jurisdiction.

(5) Ground (6) was dismissed as the District Court was having regard to the requirements of Sections 22 and 23 of the Deserted Wives and Children Act, and not relying on those provisions as a source of jurisdiction.

(6) Ground (7) was dismissed as the District Court was having regard to the National Goals and Directive Principles, and not relying on them as a source of jurisdiction; and in any event it is not correct to state as a blanket proposition that they are non-justiciable.

(7) Ground (8) was upheld as the District Court was obliged to provide reasons for its decision and its failure to do so meant that it failed to act judicially, in excess of its jurisdiction.

(8) Four grounds of appeal were upheld, there was a substantial miscarriage of justice so the appeal was allowed and the order of the District Court was quashed. However the application for summary ejectment was refused; instead the Court ordered that the respondent shall not be ejected from the land except by order of the National Court made in separate proceedings to which she is a party.

Cases cited

The following cases are cited in the judgment:

Abel v Hargy Oil Palms Ltd (2006) N4150

Anton Angra and Oimbo Security Services Pty Ltd v Tony Ina [1996] PNGLR 303

Application of Thesia Maip [1991] PNGLR 80

Cecilia Bonny v Dorothy Amino (2009) N3591

Cecilia James v MVIL (2009) N3661

Gia Kewa Piel v Eric Ranpi [1996] PNGLR 396

Glenis Apolos Olowa v Trikas Gola (2011) N4192

Jack Amu v Kingiko Kokowa (2008) N3703

Magiten v Beggie (2005) N2908

Medaing v Ramu Nico Management (MCC) Ltd (2011) N4340

Ombudsman Commission v Peter Yama (2004) SC747

Papua New Guinea Harbours Board v Breni Kora (2005) N2834

Shem Emmanuel v Elizabeth Norman (2003) N2427

The State v James Yali (2005) N2931

Tony Yandu v Peter Waiyu (2005) N2894

Yomi Siwi v Lincy Mathew (2006) N3048

APPEAL

This was an appeal from a decision of a District Court declaring the existence of a customary marriage and ordering the appellant to transfer part of his interest in land to the respondent.

Counsel

P J Wright, for the appellant

A Watson, the second respondent, in person

22 June, 2012

1. CANNINGS J: This is an appeal against an order of the Port Moresby District Court constituted by Magistrate Mr H Sareke. His Worship was dealing with a case commenced by the appellant, David Hill, under the Summary Ejectment Act Chapter No 202 against the respondents, Janelle Vera Hill and Agnes Watson. The appellant was seeking their ejectment from land in Ororo Crescent, Boroko, in respect of which he is the registered proprietor. The first respondent is his biological daughter and the second respondent is his estranged former de facto wife. The respondents made cross-claims against the appellant in the course of those proceedings.

2. On 23 December 2010 his Worship made an order that determined the complaint of the appellant and the cross-claims of the respondents, and it is that order which is the subject of this appeal. There were four substantive parts of the order:

(1) that there was a customary marriage between the appellant and the second respondent under the customs of the National Capital District;

(2) that the proceedings commenced by the appellant under the Summary Ejectment Act were dismissed;

(3) the appellant was ordered to transfer his interest in the land in such a way that the second respondent would become joint tenant of the land, with him; and

(4) the appellant was ordered to pay costs to the second respondent on a solicitor-client basis in the sum of K5,000.00.

3. The appellant has argued eight grounds of appeal and urges the court to quash the entire order of the District Court and order the immediate eviction of the second respondent from the land.

GROUND (1): DECLARING THE EXISTENCE OF A CUSTOMARY MARRIAGE WITHOUT PROPER PLEADING OR EVIDENCE

4. Ground (1) is upheld as the existence of the custom relied on by the District Court to base the declaration of a customary marriage was neither pleaded nor supported by credible evidence. It could not have been reasonably concluded by the learned Magistrate that there was a common PNG custom regulating the relationship between the appellant and the second respondent, which is a necessary pre-condition to recognition of a customary marriage (Gia Kewa Piel v Eric Ranpi [1996] PNGLR 396, Magiten v Beggie (2005) N2908). There existed between the appellant and the second respondent a de facto relationship, which is not the same thing as a customary marriage (Application of Thesia Maip [1991] PNGLR 80, Gia Kewa Piel v Eric Ranpi [1996] PNGLR 396, Shem Emmanuel v Elizabeth Norman (2003) N2427, The State v James Yali (2005) N2931).

GROUNDS (2) AND (3): MAKING ORDERS REGARDING LAND IN RESPECT OF WHICH THERE WAS A BONA FIDE DISPUTE AS TO TITLE

5. Grounds (2) and (3) are upheld as the District Court was by the nature of its order recognising that there was a bona fide dispute as to title to land, a matter which is expressly excluded from the jurisdiction of the District Court by the District Courts Act, Section 21(1)(f) (Tony Yandu v Peter Waiyu (2005) N2894, Yomi Siwi v Lincy Mathew (2006) N3048, Jack Amu v Kingiko Kokowa (2008) N3703, Cecilia Bonny v Dorothy Amino (2009) N3591, Glenis Apolos Olowa v Trikas Gola (2011) N4192).

GROUND (4): AWARDING COSTS ON A SOLICITOR-CLIENT BASIS

6. Ground (4) is dismissed as the provision of the District Courts Act, Section 260, which confers power to award costs does not prevent the District Court awarding costs on a solicitor-client basis.

GROUND (5): BASING ORDER AS TO TRANSFER OF LAND ON CHILD WELFARE ACT

7. Ground (5) is dismissed as the District Court was having regard to the requirements of Section 94 of the Child Welfare Act, and not relying on that provision as a source of jurisdiction.

GROUND (6): BASING ORDER AS TO TRANSFER OF LAND ON DESERTED WIVES AND CHILDREN ACT

8. Ground (6) is dismissed as the District Court was having regard to the requirements of Sections 22 and 23 of the Deserted Wives and Children Act, and not relying on those provisions as a source of jurisdiction.

GROUND (7): BASING ORDER AS TO TRANSFER OF LAND ON NATIONAL GOALS AND DIRECTIVE PRINCIPLES

9. Ground (7) is dismissed as the District Court was having regard to the National...