DC604

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE
SITTING IN ITS GRADE FIVE CIVIL JURISDICTION]

GFCi 05 of 2007

BETWEEN

ANITI HAVATU
Complainant

AND

KENIO KIFATO
Defendant

Goroka: M Gauli, PM
2007: May 28
June 01, 12, 26

CIVIL- Claims compensation against former husband – For services rendered – Marriage broke down in 2002 – Properties acquired during marriage – Proceedings first brought to Village Court – District Court on appeal quashed Village Court order and referred to Village Court for retrial – Village Court directed fresh summons in the Village Court – Summons field in the District Court – Abuse of Court process. 

Cases Cited
Carl Zeiss Stiftung –v- Rayer & Keeler Ltd (No 2) [1967] 1 A.C. 853 at 933
The State –v- Peter Painke [1976] PNGLR 210

References
1. Village Courts Act 1989, Section 96 (4)

Counsel
For the Complainant - Mr. D. Umba of Umba Lawyers
For the Defendant - Mr. M. Kadai of Paul Paraka Lawyers

26 June 2007

DECISION OF THE COURT

M Gauli, PM: The Complainant Aniti Havatu claims against the defendant Mr. Kenio Hifato a sum of K10, 000.00 in compensation for all the hard work she provided to Mr. Hifato during the period of their customary marriage during which Mr. K. Hifato acquired properties.

2. The brief facts are as follows. Mr. Kenio Hifato married Aniti Havatu in about 1987 until their customary marriage broke down in the year 2002. They had six children of their marriage, four boys and two girls. Two of the children have died. During their marriage they acquired properties including number of vehicles, generator, video screen and player, chain saw and a four bedroom permanent house. These are disputed by the defendant.

3. On 28 August 2006 the complainant Aniti Havatu took out court proceedings in a joint Village Court sitting at Fomurenave, Abade, Ijovinonta and Kamanonka Village Courts in Henganofi over the same matter. The joint Village Court sitting ordered Mr. K. Hifato to pay K3, 000.00 compensation to Aniti. He only paid K800.00 then appealed to District Court Magistrate. The appeal was upheld and the matter referred back to the Village Court to be heard by Lowa No. 2 Village Court in Asaroiufa in Goroka District. The complainant Aniti is from Bitebe in Kainantu District while Mr. Kenio Hifato is from Jentove in Henganofi District. The Lowa No. 2 Village Court ordered Aniti Havatu to proceed with fresh summons in the District Court. The defendant disputed this and says that the Lowa No. 2 Village Court ordered Aniti to proceed with fresh summons in the Village Court but she field the proceedings in the District Court.

4. The complainant further claims that she was the defendant’s first wife. Defendant however denied this.

5. There are a number of issues to be considered. These issues are as follows:-

i.	Whether Aniti Havatu was Mr. Kenio Hifato’s first wife.

ii.	Whether Mr. K. Hifato acquired the properties complained of while married to Aniti Havatu.

iii.	Whether the current claims which were previously dealt by the Village Court could be proceeded before the District Court again.

6. Before I discuss the Issues I want to make a mention here that on the 01st of June, the case was adjourned to 12 June for both counsels written submissions. I have only received the submissions from the defendant and the matter was adjourned to 26 June for decision. Since then I have not received submissions form the counsel for the complainant. I only sighted his submission this morning. Having read his submission I noted that these have been covered in my decision already.

7. Issue No. 1: Whether Aniti Havatu was Mr. Kenio Hifato’s first wife.

The complainant and her only witness Mr. Inaneso Havatu gave evidence that Aniti Havatu was defendant’s first wife. The defendant Mr. K. Hifato and his only witness Goyrara Hifato gave evidence that Mr. Hifato’s first wife was Naomi. After that marriage broke down Mr. Hifato then married Aniti Havatu. Both Aniti and Hifato claimed to have no formal education and so they do not know the date of their marriage except that their marriage broke down in the year 2002. The reasons for the break down of their marriage is not very clear. Aniti claimed that this was due to Mr. Hifato getting a new wife. Mr. Hifato in denying this claim said that Aniti deserted him at her own choice. No independent witnesses were called by both parties to confirm or deny their evidence. The witnesses called by the parties are related to them as their blood brother or sister. Whatever the reason was, their marriage is no longer existing.

8. The witness Mr. Inaneso Havatu, the complainant’s brother, in his affidavit evidence marked EXHIBIT ‘C’ never mentioned that Aniti was Mr. Hifato’s first wife. He only made mention of this in his oral evidence. The defendant’s witness Goyrara Hifato, who is defendant’s blood sister gave evidence that while she was a single girl, the defendant first married Naomi. She, Goyrara used to assist Naomi in gardening and raising chicken. Goyrara then left her village when she married a man from Kaveve in Goroka District before Aniti married Kenio Hifato. The witness Goyrara does not know the year she got married and left her village as she claimed to be illiterate.

9. Defendant Mr. Hifato both in his oral evidence and in his affidavit evidence marked EXHIBIT ‘D’ and ‘E’ never mention of him marrying Naomi as his first wife before Aniti. However in examination in Chief, defendant was asked and his response in Question 4 is as follows:-

Q4:	you said you had the fist wife before you married Aniti. Where is your first wife now?
A:	When I married Aniti, my first wife had left me.

10. The counsel for the complainant never examined the defendant in cross-examination of his first marriage before marrying Aniti. The Complainant was asked by the counsel for the defendant in Question 9, that Kenio Hifato had a first wife Naomi before Aniti but Aniti claimed to be the first wife. Mr. K. Hifato’s answer to Question No. 4 was: “When I married Aniti, my first wife had left me”, means that he married Aniti after his first wife Naomi had already left him. And perhaps that was the reason why Aniti did not know that Hifato was previously married to someone else before her. The defendant gave no evidence of the period of his marriage with Naomi. He did not even state if he had children of that marriage. I am not convinced by the defendant’s evidence that had Naomi as his first wife before Aniti. From the evidence as it is presented before this Court, I am satisfied on the balance of probabilities that the complainant Aniti Havatu was Mr. Hifato’s first and only wife.

11. Issue No. 2: Whether Mr. K. Hifato had acquired the properties complained of while married to Aniti Havatu.

The Defendant in his affidavit evidence marked EXHITIB ‘D’ admitted acquiring these assets except the chain saw and a permanent house. He said the chain saw was borrowed and was retuned to its owner. Regarding the house, he said he does not own any permanent house in the village except one bush material house. The counsel for the complainant never cross – examined the defendant regarding the permanent house or the chain saw. I find from the evidence as given before this Court that defendant Mr. Hifato had assets including a Mazda T35, a 15 seater Toyota Hiace bus, a Mitsubishi L200 4WD utility and a video screen but not a permanent house nor a chain saw.

12. The second part of the Issue No. 2 is whether these properties were acquired by Mr. Hifato while Aniti Havatu was married to him. The complainant Aniti Havatu, in her Affidavit marked EXHIBIT ‘A’ said that when she married Mr. K. Hifato he had no business assets. Since she married Mr. Hifato, from the sales of her vegetables she gave him K200.0 and defendant started of with the chicken project. That chicken project expanded and from the revenue generated from that project they built three houses, expanded the poultry project which eventually generated enough money and bought a Mazda 2 wheel drive, a Mitsubishi L200 4 WD, a 15 seater Toyota Hiace bus, a Mazda T35 truck, video screen and a player, a chain saw, a permanent three bedroom house and a generator. When defendant saw the business expanding he married a new wife and divorced the complainant Aniti.

13. In her Affidavit marked EXHIBIT ‘B’. Aniti made some clarifications that the three big houses referred to were three big chicken houses. And the permanent house she referred to is a semi-permanent four bedroom house. She reaffirmed the purchases of a chainsaw, generator, Mitsubishi L200 4x4, 15 seater bus, Mazda T35 truck.

14. The complainant’s only witness who is her brother Mr. Inaneso Havatu in his Affidavit stated that he assisted Aniti in her gardens and building the chicken house. At that time the defendant had nothing. It was through the complainant’s hard work the defendant now owns vehicles and other assets. He made no mention of the types of vehicle and or the number of vehicles that were being acquired. He made no mention of what other assets he was referring to. However in his oral evidence in Court he referred to those other assets such as video screen, chain saw, generator and permanent house. The complainant and her witness never indicated the particular date or year these assets were acquired to prove that these were either purchased or built during the time Aniti was married to Mr. K. Hifato.

15. The defendant Mr. Kenio Hifato in his Affidavit evidence denied having three big houses and or a permanent house at his village. He only had one bush material house. In regard to a chain saw, he said it was borrowed and was returned to the owner. Regarding the Mazda T35 truck, a 15 seater Toyota Hiace bus and the generator he said these were bought after complainant Aniti has already left him. He bought the generator in the year 2004. During examination in-chief and cross-examination the defendant said that while Aniti was married to him he never purchased any vehicles. Before he married Aniti, he already had three vehicles namely a Toyota Land cruiser, a Toyota Hilux and a Ford. After Aniti had left him on 17 August 2002 he bought the 15 seater Toyota Hiace bus on 13 April 2004 and a Mazda T35 truck, on 19 November 2002. He made no mention of when he bought the video screen and a player.

16. Defendant’s witness Goyrara Hifato in her oral evidence said that defendant had already established his businesses namely the poultry and trucking business before he married Aniti Havatu. She further said that during their marriage there were no developments apart from the existing businesses the defendant already had before marrying Aniti. The witness Goyrara gave evidence that while she was still single, she was living at her village and assisting defendant’s wife Naomi in gardening and their poultry project when defendant established his trucking business. The witness Goyrara left her village when she married a man from Kaveve village in Goroka District, before defendant married Aniti. She has been living in Kaveve therefore she could not know what developments have taken place during the married life of Kenio and Anit at Jonteve village in Henganofi District. She cannot be a witness of truth in respect to the acquiring of the assets claimed by the defendant.

17. In considering the evidence of the complainant Aniti Havatu and the defendant Kenio Hifato alone, the complainant failed to indicate the dates or the year those assets were purchased. I do understand that she is illiterate. However she had six children from her marriage with the defendant. And she could have easily related the acquisition of those assets to the dates of births of her children. For example she could have said that defendant purchased at Mitsubishi L200 4x4 before or after the birth of her second child and so forth. However having satisfied that the complainant is the only wife the defendant had and taking into account of the number of years of their marriage, I am convinced by her evidence that those assets were acquired during her marriage with the defendant. I am not 
satisfied by the evidence of the defendant that those assets were acquired after Aniti had left the defendant. Defendant bought a Mazda T35 truck on 19 November 2002, some three moths after his marriage with Aniti broke down. They have been married for some 17 years before that marriage ended. I find that the complainant did have contributed one way or the other in financing towards its purchase mainly through raising of poultry. The same could be said of the purchases of the other assets since defendant made no indications of the date of purchase of these items. 

18. Issue No. 3: Whether the current claims which were previously dealt with by the Village Court could be proceeded before the District Court again.

There is no dispute that the proceeding now before this Court were previously dealt with by a joint sitting of the Ababe, Ijaninonta, Fonurenave and Kamanonka Village Courts on 28 August 2006. And that Court ordered the defendant to pay K3, 000.00 compensation to Aniti. The defendant only paid K800.00 then he appealed to the District Court. The appeal was upheld on 3 November 2006 and referred the matter back to be heard by Lowa No. 2 Village Court in Asaroiufa in Goroka. 

19. The decision of the Asaroiufa Lowa No. 2 Village Court is not so clear. The complainant Aniti gave evidence that the said Village Court ordered her to take out a new summons. And so she filed this proceedings in the District Court. Her witness Inaneso Havatu gave no evidence about the decision of the Asaroiufa Lowa No. 2 Village Court. There is no dispute as to the jurisdiction of the Asaroiufa Lowa No. 2 Village Court hearing the case as it was referred to it by the District Court. I am satisfied that the Asaroiufa Lowa No. 2 Village Court does have a jurisdiction.

20. The defendant Kenio Hifato gave evidence that Asaroiufa Lowa No. 2 Village Court on rehearing the matter had dismissed the decision of the joint Village Courts sitting in Henganofi and ordered Aniti Havatu to proceed with new summons in Asaroiufa Lowa No. 2 Village Court. Instead the complainant filed this proceedings in the District Court. Defendant’s witness Goyrara Hifato simply confirm the evidence of Kenio Hifato. Neither of the parties have called any of the members of the Asaroiufa Village Court to confirm its decision. Defendant presented to this Court the copy of a Village Court Summons dated 16 May 2007. That summons stated that Lowa No. 2 Village Court and ordered Aniti to file new summons at Lowa No. 2 Village Court. That order was made on the 17 November 2006.

21. From the evidence for the defendant, it would appear that Asaroiufa Lowa No. 2 Village Court having dismissed the case ordered Aniti to file new summons at the same Village Court. She however filed the proceedings before Goroka District Court and increased her claims to K10, 000.00. The proceedings were first commenced in the Village Court. It went to District Court by way of appeal and the District Court on 3 November 2006 referred the matter back to the Village Court for rehearing. When the proceedings have been referred back by the District Court to the Village Court, it remains the matter for the Village Court and the proceedings must be determined by the Village Court. To bring those proceedings to the District Court by way of fresh summons amounts to an abuse of the processes of the court. A person who initially elects and brings the proceedings before Village Court must conclude all proceedings in that Court. This matter still remains the jurisdiction of the Village Court and it is in that forum the complainant must file her proceedings.

22. If on the other hand, the Village Court has dismissed the proceeding that is the end of the matter. The complainant cannot file the same cause of actions in the District Court again. Where the matter is dismissed by the Village Court, the only avenue available is by way of appeal, unless the relief’s sought in the District Court were not been determined by the Village Court. The Section 96 (4) of the Village Courts Act 1989 is direct to this point. This provision states:

“(4)	Nothing in the preceding provisions of this section prevents proceedings for relief (whether by way of compensation or otherwise) being taken in a Village Court or other court after a decision has been given in a Village Court or other court, where proceedings for such relief were not disposed of in the first proceedings.”

23. Once a claim between the same parties had been litigated and decided by a competent court having the jurisdiction, that same claim cannot be resurrected in another court of the same jurisdiction or the court having greater jurisdiction. Lord Guest said in the case of Carl Zeiss Stiftung –v- Rayer & Keeler Ltd (No. 2) [1967] 1 AC 853 at 933: “The rule of estoppel by res judicata, which is a rule of evidence, is that were a final decision has been pronounced by judicial tribunal of competent jurisdiction over the parties to and the subject matter of the litigation, any party or privy to such litigation as against any other party or privy is estopped in any subsequent litigation from disputing or questioning such decision on the merits (Spencer Bower on Res judicata, p.3).” This decision is cited in The Administration of the Territory of PNG –v- Guba & Doniga [1973] PNGLR 603 at 696.

24. The document the defendant relied upon that the matter was dismissed by the Village Court and the complainant was ordered to file fresh summons was not the FORM 6 of the Village Court order, rather this was a Village Court Summons. I find the document the defendant relied upon is defective as it is just a summons. And so I could not be satisfied that the proceedings were dismissed by the Village Court. I am satisfied that the Village Court had directed the complainant to file fresh summons in the Village Court. Since the District Court hearing the appeal had referred the matter back for retrial before the Village Court, the proceedings must continue before a Village Court. To bring the same matter of the litigation afresh before the District Court would be an abuse of the Court process. Acting Justice O’Leary, as then he was in The State –v- Peter Painke [1976] PNGLR 210, has this to say about the abuse of court process: “Abuse of the process of the court is an expression used to describe any use of the process or procedures of the court for an improper purpose or in an improper manner. It encompasses wide range of situations.” 

25. Where the Court above has referred the matter to be tried at the court below, those proceedings must be determined and concluded at the court below. Those proceedings must not be field afresh in any of the Courts having higher jurisdictions. I find that the filing of fresh actions in the District Court by the complainant in the present case does amount to an abuse of the process of the Court. And I make an order that the current proceedings before this be dismissed. The complainant to persue her cause of actions before the Asaroiufa Lowa No. 2 Village Court. That there be costs for the complainant.

For the Complainant – Mr. D. Umba of Umba Lawyers
For the Defendant – Mr. M. Kadai of Paul Paraka Lawyers