PNG Law Reports 1996
[1996] PNGLR 396
N1414
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
GIA KEWA PIEL
V
ERIC RANPI
Mount Hagen
Injia J
9-10 April 1996
19 April 1996
PRACTICE AND PROCEDURE - Pleading of cause of action - Underlying law - Action based on local custom - Duty of lawyers or parties to plead cause of action in clear, precise and adequate manner - Constitution, s 20, Sch. 2.1; National Court Rules, O 8 r 27.
Facts
The action was brought by the plaintiff/mother against the defendant/father in respect of a girl born in a de-facto relationship, which girl had turned 16 years of age before the action was instituted, seeking recovery of costs of maintaining the girl in her infancy and damages for loss of bride price prospect.
Held
1.       There was no reasonable cause of action based on local custom pleaded in the statement of claim and the entire pleadings should be struck out and consequently the whole action should be struck out.
2.       It is the duty of lawyers or parties to a customary cause of action to plead the cause of action in a clear, precise and adequate manner.
3.       The need to clearly, precisely and adequately plead a customary cause of action becomes even more important where there is potential conflict between a customary action and, inter alia, statutory provision, i.e. the Child Welfare Act Ch 276 or the Deserted wives and Children Act Ch 277.
Cases Cited
Resena v PNG [1991] PNGLR 174.
Counsel
P Kopunye, for the plaintiff.
J Steel, for the respondent.
19 April 1996
INJIA J:  This is a claim by the natural mother of her daughter Regina against her former de-factor boy-friend to cover damages being for the cost of maintaining or raising their female de-factor child who attained the age of 16 years before these proceedings were instituted. The plaintiff also seeks damages for loss of bride price payment.
The plaintiff’s claim as pleaded in the statement of claim is essentially that she conceived Regina in 1977 as a result of a brief de-factor relationship she had with the defendant. Regina was born on 28 August 1978. Thereafter, the defendant disappeared and went his own way. The plaintiff went on to marry Paul Piel who adopted Regina and they both looked after her. On 9 October 1994, after more than 16 years, the defendant re-appeared and “took physical custody of Regina” claiming that he was her father. In the original writ the plaintiff claimed the cost of reasonable maintenance for Regina and loss of prospective bride price. On 20 October 1995, the matter came before me for trial and whilst the plaintiff was represented by Mr Kopunye, the defendant appeared in person. I granted him leave to appear in person to defend the claim even though he had not filed notice of intention to defend and defence. The plaintiff went into evidence and she was ably cross-examined by the defendant. He put his case to her which basically was a mixture of denial of paternity and admission of paternity. At the end of the plaintiff’s evidence, I invited the defendant to make a statement of his defence, as raised in cross examination, for the Courts record. At that stage, he ran into complications and asked for an adjournment to seek legal assistance, to which request I readily granted. He engaged the services of Warner Shand Lawyers who on 27 October 1995 filed a notice of intention to defend and defence. Subsequently, on 20 November 1995, the defendant’s lawyer wrote to Mr Kopunye in which he raised two preliminary objections to the competency of the claim in line with their client’s defence. 
Mr Kopunye responded by filing a notice of motion on 27 November 1995 seeking to amend the statement of claim. The motion was supported by his affidavit sworn on 27 November 1995. The affidavit did not however disclose the fact that the matter was part-heard before me. The motion was moved before Woods, J. on 8 December 1995 who granted the orders sought.
In the original writ filed on 22 March 1995, the plaintiff claimed the following principal relief:
“(a)    K1,624.00 representing the care and maintenance of the said Regina Piel from 28 August 1978 to February 1983;
(b)      K9,060.00 representing the reasonable maintenance for the said Regina from February 1983 to 9 of October 1994;
(c)      Loss of prospective bride price.”
By defence filed on 27 October 1995, with leave of the Court, the defendant pleaded:
“7.      The Defendant denies paragraph 15 of the statement of claim and further states that the Plaintiff is not entitled to maintenance of herself or Regina Piel because;
(a)      there is no subsisting marriage.
(b)      Regina Piel is over the age of 16 and is barred under the Frauds and Limitations Act 1988 from claiming maintenance for herself.
(c)      the National Court has not jurisdiction in relation to maintenance claims under the Deserted Wives and Children’s Act Ch No 277.”
In the amended writ filed on 15 December 1995, the plaintiff claimed the following principal relief:
“(a)    K1,624.00 representing the damages being the cost of raising of the said Regina Piel from 28 August 1978 to February 1983;
(b)      K9,060.00 representing the reasonable damages being the costs of raising of the said Regina from February 1983 to 9 October 1994;
(c)      Loss of prospective bride price.”
I am now told the amended writ was served on the defendant’s lawyer on 14 December 1995 but no defence has been filed in respect of this amended writ. Instead, the defendant’s lawyer attended the trial last week and raised several objections in line with their client’s defence filed on 27 October 1995. Counsel for the plaintiff raises the following objections:
1.       This Court has no jurisdiction to deal with the claim which is in the nature of a claim for maintenance or for the care and upkeeping of the child. Such a claim would be brought in the District Court under provisions of the [Deserted Wives and Childrens Act Ch] 277 or (should I add) the Child Welfare Act Ch 276.
2.       The claim is statute-barred by virtue of s 16 of the Statute of Frauds and Limitations Act 1988 which Act applies to maintenance proceedings partly by virtue of the ruling of Woods, J. in Morgan v Faith [1995] PNGLR 273. It is submitted the period of 6 years commenced to run from the date of birth of Regina and has since expired. It is submitted that the claim is 11 years too late.
3.       The plaintiff does not plead what is wrong with the defendant’s taking of Regina. After all, it is submitted, she was well past 16 years of age and mature enough to decide for herself where to go and whom to go with. It is submitted that the plaintiff has not pleaded a recognisable cause of action at all in his statement of claim.
4.       The plaintiff’s action for loss of prospect of bride price is misconceived because Regina is still living and it is pre-mature to say the plaintiff has lost her chances of receiving bride price.
Mr Kopunye for the plaintiff responds by submitting that the plaintiff’s cause of action is based on the custom of the Mogei people as to recovering cost of maintaining a child and loss of prospects of bride price. If this cause of action is not pleaded sufficiently, he intends to seek leave of the Court to further amend the Writ to that effect. He submits the claim is not one for maintenance under the Deserted Wives and Childrens Act or Child Welfare Act. The date the cause of actions arose was on 9 October 1994 when the defendant took Regina away and the action is still current. He submits this is one of the first case of its kind and this Court should allow the matter to proceed so that when all the evidence has been adduced and issues argued the determination of those issues will assist in developing the underlying law.
Whilst this Court has jurisdiction under Constitution s 20 and Sch. 2.1 to entertain actions based on local custom, the amended statement of claim does not disclose a cause of action based under local custom. It does not say what is wrong with the taking of Regina by the defendant. And it does not say by virtue of which custom the taking of Regina is wrong. It is imperative that the pleadings disclose the cause of action in local custom in clear, precise and adequate terms. As Kapi Dep. C.J. said in Resena v PNG [1991] PNGLR 174 at p 183-184:
“As a matter of law and of good practice, a new cause of action based on custom should be separately instituted. The reason is that the parties should be allowed to plead issues of custom clearly and precisely. This will enable counsel to make proper enquiry into custom and enable the Court to reach an informed decision on these issues.”
The need to clearly plead the customary action becomes even more important in cases where there is potential conflict between a customary action and a Constitutional law or a statute, or it is repugnant to the general principles of humanity: Constitution Sch. 2.1(2). In the instant case, there is statutory law in the form of the Child Welfare Act Ch 276 which deals with affiliation proceedings and maintenance and custody of children born from de-factor relationships. There is also the Deserted Wives and Children Act Ch 277 which might cover maintenance for deserted children born out of de-facto relationship; see s 1 of the Act which defines “child” to mean a “child under the age of 16 years whether born in wedlock or not”.
Whilst the parties are at liberty to seek leave of the Court to amend the pleadings at any stage of the proceedings, even after end of all the evidence, to accord with the evidence adduced, the pleading of a recognizable cause of action is essential to the institution of proceedings in Court. The plaintiff must plead the material facts on which he relies. It is a material fact to plead what is wrong with the conduct complained of.
The plaintiff has already had a bite at the cherry once by obtaining leave of the Court to amend his defective statement of claim to avoid the defence. Such leave was sought by the plaintiff under questionable circumstances because the plaintiff’s lawyer did not disclose in his affidavit before Woods, J., that the matter was part-heard before me. The matter should have properly come before me. The plaintiff’s lawyer is now speaking of another set of future amendments to rectify a material error. A second bite at the same cherry may prove to be a difficult task. Such series of previous amendments or proposed amendments leave much to be desired of the plaintiff’s cause of action. Pursuant to Order 8 r 27 of the National Court Rules, this Court has the discretion to strike out pleadings which disclose no reasonable cause of action. In my view, the pleading in this matter discloses no reasonable cause of action and the whole pleadings should be struck out.
In arriving at this conclusion, I have also taken into account the following additional factors:
1.       Regina was a grown up young girl who was capable of making her own decisions. The circumstances of her being taken by the defendant are not pleaded in the statement of claim.
2.       The action for loss of prospect of bride price is not adequately pleaded. If the defendant is the father of Regina as the plaintiff says, and the defendant perhaps to some extent appears to admit due to change in circumstances, would both the plaintiff and the defendant be entitled to receive bride price under the relevant custom? Would Regina have a say in the distribution of bride price? If so, which custom dictate against her giving part of the bride price payment to the plaintiff? Why is prospect of bride price a total loss? All these are matters which should be pleaded with reference to the relevant custom.
3.       It is more than 16 years since the defendant left Regina and the plaintiff. Since then, Regina has been adopted by the plaintiff’s husband as his own daughter. The question of maintenance or cost of caring for Regina has never been an issue in this period.
4.       The pleadings do not adequately plead the issue of the defendant being liable for damages for something he was never a part of, that is, for the entire period of Regina’s infancy. He was really an innocent party for that period until 9 October 1994. And if his conduct on 9 October 1994 amount to “abduction” against Regina’s will, is it not a criminal offence? At that point, did it become a customary custody matter now that she was no longer subject to the maintenance and custody provisions of the Infants Act, Child Welfare Act and the Deserted Wives and Childrens Act? All these matters should be clearly differentiated and pleaded in the statement of claim.
I appreciate Mr Kopunye’s comments that this is a grey area of law which needs judicial development. However, the development of our own system of jurisprudence through the development of the underlying law under Constitution Sch. 2 should best start with lawyers or parties pleading the cause of action based on local custom in the appropriate manner, not in the present fashion where it has been done in an inadequate and vague manner which has left the defendant and this Court in much confusion. It is the duty of lawyers or parties to plead the cause of action in a clear, precise and adequate manner.
I also appreciate that the plaintiff has gone into evidence already. I am not determining the merits of her claim. I am simply ruling on the pleading before me, in the light of the objection raised, that there is no reasonable cause of action for the plaintiff to pursue. But because, her evidence cannot exist in a vacuum where the pleadings do not disclose a cause of action, I strike out the entire cause of action as pleaded in the writ and the evidence adduced by the plaintiff in support thereof.
If the plaintiff wants to pursue fresh proceedings in accordance with my ruling, I grant her liberty to do so.
For these reasons, I strike out the plaintiff’s action. As for costs, except for those occasions where I may have made previous orders in favour of one party, I order that each party bear their own costs.
Lawyer for the plaintiff: Kopunye Lawyers.
Lawyer for the defendant: Warner Shand Lawyers.