Papua New Guinea Law Reports - 1963
[1963] PNGLR 130
PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]
KARE KONIA
V.
WENTA WUANP
Port Moresby
Smithers J
9 May 1962
CONSENSUS AD IDEM - Claim arising out of payment of bride price - Money had and received - Appeal where no Rules - Prohibition - Native Regulation Ordinance 1908-1952 - Order in Council 6th August, 1924 - Native Regulations 1939 - Regulation 133 (2)*[clxiv]1.
The Respondent alleged that he had been induced by the fraud of the Appellant to enter into a contract and pay thereunder a sum of money as bride price. The Magistrate of the Court for Native Matters ordered that the sum of money paid as bride price be repaid by the Appellant to the Respondent.
Held:
That in an action to recover the money paid as money had and received arising out of the rescission of the contract on the ground of the fraud alleged the allegation of payment was essential. Because a payment takes its character or quality from the circumstances in which it was made such an action was properly described as a claim arising out of a bride payment. By Reason of Regulation 133 (2) the Court for Native Matters was precluded from entertaining the claim.
Quaere whether in the absence of Rules of the Supreme Court regulating the right of appeal from the Court for Native Matters to the Supreme Court any appeal lies.
Appeal from the Court for Native Matters.
Counsel:
Barnett, for the appellant.
McLaughlin, for the respondent.
C.A.V.
SMITHERS J:  In the Court for Native Matters the Respondent sued the Appellant that “on the 14th day of December at Port Moresby Kare Konia in debt to the sum of £64 10s. to Wenta Wuanp.”
That Summons came on for hearing on the 15th December, 1961, before a Magistrate acting in his capacity as a Magistrate of the Court for Native Matters.
In evidence at the hearing the complainant stated that some two and a half to three years previously he had had a conversation with the Defendant and that she had promised him her daughter (Iawi, then only a very small girl) in marriage if he paid to her certain moneys. He further stated that (during) two years after the conversation he paid to her small amounts until the total was £64 10s. He stated that at this stage he asked Kare Konia “about Iawi” and that Kare Konia then told him that she had never promised Iawi to him. He then asked for the return of the money paid, but she refused.
There was some corroboration of the story of the complainant, and it appears that the Magistrate accepted in substance the evidence of the complainant set out above.
The defendant gave evidence and stated that Wenta Wuanp had not paid to her any of the moneys alleged by him to have been paid. From the reasons for judgment of the Magistrate it appears that “in reply to the complainant Kare Konia stated that Iawi had been already promised in marriage (betrothed) to another man according to native custom, and that she had no power to promise her daughter to Wenta Wuanp or anyone else except the man to whom her daughter had already been promised.”
The magistrate was fully conscious of the provisions of Regulation 133 (2) of the Native Regulations 1939. This Regulation provides that a claim to the pride payment or any claim arising out of the payment thereof upon a marriage by native custom is not to be made the subject of a civil claim under those Regulations. The effect of this is that if the claim of Wenta Wuanp were a claim arising out of payment of the bride payment the Court for Native Matters had no jurisdiction.
Having heard the evidence of Wenta Wuanp and his witnesses and the evidence of Kare Konia, the Magistrate came to the conclusion that the parties were never “ad idem,” that therefore there was no valid agreement, and the monies could not be and were not, in fact, applied as part of the bride price.”
He accordingly held that the moneys were not part of a bride price and were therefore moneys which could be recovered under the provisions of Section 132 (d) of the Regulations as a civil claim for the recovery of money by one person from another.
I think that the proper interpretation of the findings is that the parties entered into the arrangement deposed to by the complainant and that the complainant thereafter paid the moneys to the defendant pursuant to that arrangement, but that the defendant did not at any time intend to carry out her part thereof. Having regard to the arrangement and there being no other explanation for the payments, I think it follows from the findings that the defendant could not have been in ignorance of the purpose for which the payments were made.
The Magistrate appears to have drawn the inference that the parties were not ad idem from the circumstance that Kare Konia did not intend to perform the arrangement. In this I think he was in error. To determine whether two parties who purport to make an agreement are or are not ad idem, the inquiry is not as to their intentions concerning performance but whether, because of some lack of clarity or lurking ambiguity in the terms used to express the obligations of the parties, they were not at one in their understanding of those terms. See Raffles v. Wichelhaus[clxv]2. If the parties understand the terms used then there is no question of absence of concensus ad idem. I do not read the findings or the evidence here as suggesting lack of understanding of the arrangement. The case was one of an arrangement alleged on the one side and categorically denied on the other, the denial being disbelieved.
The matter comes before me on behalf of the appellant on alternative bases.
First, I am asked to deal with the matter as an appeal against the decision of the Magistrate under Section 4 of the Native Regulations Ordinance 1908-1952 pursuant to which the Supreme (Central) Court was by Order in Council of 6th August, 1924, constituted a Court of Appeal from the Courts for Native Matters.
Alternatively, the Court is asked to exercise its power to deal with an error of the Court for Native Matters by way of Prerogative Writ of Probibition or Certiorari.
The grounds of each application may in effect be reduced to three:
(a)      That there was no jurisdiction in the Court for Native Matters because the claim of Wenta Wuanp arose out of the payment of the bride price . . .
(His Honour then considered the second and third grounds of appeal which he rejected and continued:)
On the question of jurisdiction, however, the case for the appellant is on much firmer ground.
This question is to be decided upon the terms of Regulation 133 (2) of the Regulations.
It is put by both Counsel that in the interpretation of this Regulation it is to be kept in mind that it is addressed to men in the field who may not be lawyers and that in consequence of this, the language of the Regulations is not technical and often colloquial. With this I agree, and it follows that if within the fair meaning of these words this claim arises out of the payment of the bride price upon a marriage according to native custom, the jurisdiction of the Court for Native Matters did not extend to try it. The main contention of Mr. McLoughlin was that the claim did not arise out of the payment of bride price but out of a fraud perpetrated by the defendant.
As I understand him he contends that the Magistrate is to be taken as having found that the complainant was induced to enter into the arrangement with Kare Konia and to make the payments by a fraudulent statement on the part of Kare Konia that she had at each relevant time the intention to give the girl Iawi to Wenta Wuanp for his wife. This was not to be found in any express statement, but was to be found by implication from the facts as found by the Magistrate and the evidence. Mr. McLoughlin argued that if this view were taken then the claim ceased to be one arising out of payment of bride price and became one for money had and received. The position was that the complainant had paid money under a contract induced by fraud which he had rescinded on the ground of fraud whilst it was still executory and that as a consequence he was entitled to sue for his money as money had and received.
The next and essential step in the argument is that when the complainant sues for the money on this basis he is not suing for something arising out of the payment of bride price. He is suing for something arising out of fraud, or rather arising out of the rescission ab initio of a contract under which he had paid certain moneys. It is said that under this cause of action the complainant is not required to say in what way the money came to be paid or for or as what it was paid, and that even if he is required to give any history of the payment, that is mere narrative and does not go to the essence of his cause of action.
Mr. McLoughlin quoted authorities to illustrate that if money is paid under a contract which is subsequently rescinded on the ground of fraud, the rescinding party may recover the money as money had and received. As it is put in McDonald v. Dennys Lascelles Ltd.[clxvi]3 “When a contract is rescinded because of matters which affect its formation, as in the case of fraud, the parties are to be rehabilitated and restored, so far as may be, to the position they occupied before the contract was made.”
I do not think, however, that the proposition established carries Mr. McLoughlin as far as he needs to go. The question still remains whether an action for money had and received based on rescission, on the ground of fraud, of the contract under which it was paid does not also arise out of the original payment of the money. If it does, then so far as this case is concerned, it arises out of the payment of the £64.10s. If then the £64.10s. had the character or quality of a payment of bride price, the complainant is suing for something arising out of the payment of the bride price.
In an action for money had and received the complainant is required to show the facts which are alleged to make the receipt a receipt to the use of the complainant. See Bullen and Leake 9th Edition p. 259. This is sometimes expressed as showing the facts out of which the equity to repayment arises in favour of the party making the claim. See Sinclair v. Brougham & Anor[clxvii]4.
These facts must appear in the body of the Statement of Claim or in particulars thereunder.
In the present case the Statement of Claim would allege the making of the contract or arrangement for the bride, the payment of the money thereunder, the fraud and the inducement and the rescission.
The allegation of payment is essential. It is apparent therefore that just as the claim arises out of the fraud, it arises out of the payment. Compare Gunter v. Davis[clxviii]5. Then, was the payment a payment of bride price. A payment takes its character or quality from the circumstances under which it was made. In my opinion the dominant circumstances are that the payment was intended by the payer to be payment of bride price and was made pursuant to an arrangement contemplating such a payment. In addition the defendant accepted payment with knowledge of the purpose thereof. The secret intention of the payee was not relevant to the purpose, character or quality of the payment.
If under a contract for the sale and purchase of land the purchaser paid part of the purchase moneys payable, that money would have the character of purchase money paid for land.
It would not matter that the vendor never intended to convey, and defaulted therein, nor that the purchaser rescinded the contract for fraud. It would always be a true, fair and accurate use of language to say that the money paid was purchase money and that an action to recover it on any of the grounds available was an action arising out of the payment of purchase money.
If some statute said that a claim arising out of the payment of purchase money for land had to be brought in some special Court or subject to certain conditions, such an action would be within its terms, although also based on fraud.
So in this case I think it is clear that the money when paid was paid as a bride payment. Nothing more was required to be done to give it that character than for the parties to pay and receive it under an arrangement for payment of money for that purpose.
Relying on Taylor v. Bowers[clxix]6, Mr. McLoughlin contended that in suing for the money the complainant did not, in order to succeed, have to rely upon the contract. One concedes that he does not have to rely on the contract in the sense that he was claiming to enforce the contract or to treat it as existing or as having continuing effect. But he must prove and rely upon the fact that payment was originally made under the contract, albeit the rescinded contract.
It was suggested that the intention on the part of Kare Konia that she would not, and, unles the other betrothal were repudiated or came to an end in some way, could not give Iawi to Wenta Wuanp to wife, deprived the payment of the character of bride price.
I do not think this is so. If the arrangement between Kare Konia and Wenta Wuanp is to be treated as a contract as understood by our law, then notwithstanding the intention of and embarrassment affecting Kare Konia with reference to performance of the contract, the character of the payment was determined by the arrangement as to what its character was to be. If the arrangement between these parties is to be treated as part of a social event having a significance and creating obligations socially and otherwise different from those of a mere contract and perhaps involving the interests of other parties, then there is less reason for attributing to these intentions and embarrassments any effect on the character of the payment. The desires and influence of parties other than Kare Konia may then have become a factor in relation to the performance of the arrangement. But the central fact would remain that the money was paid to Kare Konia for the bride.
Mr. Barnett does not concede that the elements of a case of fraud do appear from the relevant materials, but I have dealt with the matter on the basis that such a case does appear, because I think that the contention that it does is not readily refuted.
There was a submission made that if there was a bride price it was not one made “upon a marriage by native custom.” I think that this expression is wide enough to cover payments made or claimed before and with respect to a proposed marriage and payments made or claimed after the marriage. It is no doubt because of the complex rights and obligations which may arise by reason of the failure of the marriage to materialise or to persist and the number and diversity of persons and interests which may become involved that a Court for Native Matters is deprived of the jurisdiction to attempt to solve by legal decision the problems arising out of bride payments.
I think that by whatever route judgment in favour of the complainant was sought, the payment had to be shown, and the payment having the fatal character or quality, the jurisdiction of the Court for Native Matters was absent.
In these circumstances the question arises as to the remedy which is available to the defendant.
It is argued by Mr. McLoughlin that no appeal is open to the appellant because the Order in Council did not confer jurisdiction. All that that Order did was to set up a Court which could hear appeals in cases and on grounds and subject to other provisions which it itself should subsequently define and prescribe. This is an argument which has strength, but whether it is correct or not does not, I think, have to be determined by me in this case. Indeed, it may well be that it may never have to be determined. As in Draycott v. Harrison[clxx]7 I think that in order to save expense and to have the real question decided at once, this Court will mould the appeal into the form of an application for a Writ of Prohibition.
It is clear that the Court has power in a proper case to make an Order Nisi for Prohibition returnable instanter and to make the Order Absolute forthwith. See Cameron v. Look Hop ex Parte Look Hop[clxxi]8.
I therefore make such Orders.
Solicitor for the Appellant: J. G. Smith, Acting Public Solicitor.
Solicitor for the Respondent: S. H. Johnson, Crown Solicitor.

[clxiv]* Regulation 133 (2) reads:
“133.     The following are not to be made the subject of a civil claim under these regulations:
(2)        A claim to the bride payment or any claim arising out of the payment thereof upon a marriage by native customs;”
[clxv](1864) 2 H. & C. 906, Halsbury 3rd Edition, Vol. 8, p. 80.
[clxvi]48 C.L.R. 457 at 477.
[clxvii](1914) A.C. 398.
[clxviii](1925) 1 K.B. 124 at 127.
[clxix](1876) 1 Q.B.D. 291.
[clxx]17 Q.B.D. 147.
[clxxi](1924) 18 Q.J.P.R. 30.