Otto Benal Magiten for and on Behalf of Himself and his Five Children v Bernadette Beggie and Benedict Wahiginim Magiten (2005) N2908

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 21 October 2005
• Court: National Court
• Citation: (2005) N2908
• Docket Number: OS No 573 of 2004
• Year: 2005
• Judgement Number: N2908

Full Title: OS No 573 of 2004; Otto Benal Magiten for and on Behalf of Himself and his Five Children v Bernadette Beggie and Benedict Wahiginim Magiten (2005) N2908

National Court: Cannings J

Judgment Delivered: 21 October 2005

N2908

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 WAHIGINIM MAGITEN

Second Defendant

KIMBE : CANNINGS J

23 AUGUST, 21 OCTOBER 2005

JUDGMENT

Underlying law – customary law as a source of the underlying law – breach of custom as a cause of action – approach to take when deciding wether a cause of action exists – need to make findings of fact as to what actually happened – need to plead and prove custom relied on – need to make findings about existence and content of customary law being relied on – Underlying Law Act 2000 – Customs Recognition Act, Chapter No 19.

Underlying law – customary law – applicability and enforceability – determination of ‘validity’ of custom – checklist of criteria to apply – custom must not be inconsistent with a written law, especially a Constitutional Law – whether there have been breaches of customary law – whether a cause of action for breach of custom established – remedies for breach of custom.

Constitutional Law – basic rights – equality of citizens – rights within marriage, including customary marriages – equality of rights between males and females, husbands and wives – interdependence within marriage – equality of partnership – right to privacy – right to freedom based on law – Constitution, National Goals and Directive Principles, 2.12 – Constitution, Sections 32, 49, 55.

Constitutional Law – basic rights – whether National Court should order two persons not to cohabit as a couple – rights of consenting adults to enter into personal, intimate relationships – constitutional right to freedom based on law – right to privacy.

Family law – customary marriages – polygamy – bride-price – recognition of importance of bride-price in determining validity of customary marriages – de facto relationships.

The plaintiff commenced proceedings alleging that one of his two wives, 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. He argued that two serious breaches of custom occurred. First, the first defendant breached the rule that says a woman can have only one husband. Secondly, the second defendant breached the rule that says a man cannot marry his brother’s wife. The plaintiff sought a declaration that the defendants’ marriage is prohibited by custom and void, and sought consequential orders for damages.

Held:

(1) Custom, and customary laws, are capable of being adopted, applied and enforced as part of the underlying law of Papua New Guinea.

(2) Customary law must be pleaded and proved and its existence and content ascertained, before it can be adopted, applied and enforced.

(3) Furthermore the court must in its deliberate judgment address the question of the validity of a custom. There is a checklist of things that must be satisfied before a custom is enforceable. In particular the custom must not be inconsistent with a written law.

(4) Breach of a valid customary law can constitute a cause of action.

(5) In the circumstances, it was ascertained that it formed part of the customary law of the Dagua people of East Sepik Province that, amongst other things, a man could marry as many wives as he liked; but a woman could marry only one man.

(6) That custom is, however, inconsistent with the Basic Rights of all citizens to equality and non-discrimination on the basis of sex and to that extent is inapplicable and unenforceable.

(7) The plaintiff was unable to enforce any rights under his purported marriage to the first defendant as he had not paid bride-price for her.

(8) Therefore there was no breach of custom by the defendants.

(9) The orders sought for dissolution of the defendants’ marriage and for payment of damages to the plaintiff were accordingly refused.

(10) Order made that the defendants are free to live together as husband and wife.

Cases cited

The following cases are cited in the judgment:

Application by Individual and Community Rights Advocacy Forum Re Miriam Willingal [1997] PNGLR 119

Aundak Kupil and Kauke Kensi v The State [1983] PNGLR 350

Constitutional Reference No 1 of 1977; Poisi Tatut v Chris Cassimus [1978] PNGLR 295

Kolta Development Pty Ltd and Others v PNG Defence Force and The State [1997] PNGLR 585

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

Magiten v Beggie and Wahiginim (2005) N2880

Mark Ekepa v William Gaupe (2004) N2694

Re Kaka Ruk and Section 42(5) of the Constitution [1991] PNGLR 105

Re Kepo Raramu and Yowe Village Court [1994] PNGLR 486

Re Wagi Non and Section 42(5) of the Constitution [1991] PNGLR 85

SCR No 4 of 1980; Re Petition of M T Somare [1981] PNGLR 265

Supreme Court Reference No 2 of 2004; Special Reference by the Morobe Provincial Executive (2005) SC785

The State v Albina Sinowi (2001) N2175

The State v Drikore Yuana Peter (2000) N1973

The State v Joseph Kule [1991] PNGLR 404

TRIAL

This was the trial of a family law matter based on alleged breaches of customary law.

Counsel

O Magiten, the plaintiff, in person, for himself

B Beggie, the second defendant, in person, for the defendants

CANNINGS J:

INTRODUCTION

This is an application for dissolution of a marriage and for damages. The plaintiff is claiming that the marriage between the two defendants should be dissolved and that they should pay damages. His application is based on alleged breaches of customary law, leading to an illegal marriage. The plaintiff and the two defendants are related. In fact almost everyone involved in this case is related. They come from Woginara No 2 village, Arapes, in the Dagua district of East Sepik Province. It is the customary law of that part of the country that is at the heart of the case. Most of the people involved have lived in West New Britain Province for many years. They are:

· the plaintiff, Otto Benal Magiten – he is the second defendant’s brother and claims to be the first defendant’s lawful husband – he claims to have two wives: the first defendant and another woman, Susan Benal, who was a witness in this case;

· the first defendant, Bernadette Beggie – she was the plaintiff’s wife, but has since formed a relationship with his brother, Benedict, who is the second defendant;

· the second defendant, Benedict Wahiginim Magiten – he is the plaintiff’s brother and is now living with the first defendant as her husband;

· the plaintiff’s first witness, Susan Benal – she is the first defendant’s sister and the plaintiff’s first wife;

· the plaintiff’s second witness, Anna Ablesim – she is Susan and Bernadette’s mother;

· the plaintiff’s third witness, Deborah Benal – she is the daughter of the plaintiff and the first defendant;

· the defendants’ first witness, Paulias Duna – he is a village leader and an uncle to Susan and Bernadette;

· the defendants’ second witness, Leo Dabinis – he is a magistrate in the Tamba and Sarakolok village court, near Kimbe.

BACKGROUND

Claims

The plaintiff claims that he and the first defendant and their five children came to West New Britain several years ago 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.

Orders sought

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.

Default judgment refused

On 11 April 2005 the plaintiff applied for a default judgment in terms of the orders sought in the originating summons. He argued that the defendants had not filed any document to defend the matter. That application came before me on 18 April. On 21 April 2005 I refused it, as a default judgment cannot be entered in a case commenced by originating summons and there appeared to be no reasonable cause of action disclosed. I directed that the proceedings continue on pleadings. The plaintiff had to file a statement of claim setting out the custom he was relying on and the manner in and extent to which it was breached. The defendants would then have the opportunity to file a defence. (Magiten v Beggie and Wahiginim (2005) N2880.)

Statement of claim

On 11 May 2005 the plaintiff filed a statement of claim. He pleaded that the custom applicable was Melanesian custom...