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Peter v Mathew [1995] PGNC 31; N1365 (12 September 1995)

Unreported National Court Decisions

N1365

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

OS 438 OF 1994
MARY TORONAKI PETER - Plaintiff
V
PETER MATHEW - First Defendant
GEORGE LESSY - Second Defendant
THE REGISTRAR GENERAL - Third Defendant

Mount Hagen

Woods J
14 August 1995
12 September 1995

MARRIAGE - Marriage Act - Allegation of duress and fraud - application to declare marriage null and void - Dismissed.

Cases Cited:
Maki v Pundia [1993] PNGLR 337

Counsel:

M Tamutai for the Plaintiff

W Hagahuno for the First Defendant

J Kawi for the Third Defendant

12 September 1995

WOODS J: The Plaintifseeking a decl declaration that the purported marriage under the Marriage Act Chapter 280 between herself and the first defendant on 2 March 1989 at Mendi be declared null and void. The ds apto be that the cohe cohe consent of the Plaintiff to the purported marriage was obtained by duress or fraud and further that thentiff was mistaken as to the nature of the ceremony performed.

The evidence is that that in about 1987 the plaintiff and first defendant met in Mendi where the plaintiff lived with her parents and the first defendant was stationed as a policeman. Tpparently became boy and and girlfriend. Then Peter moved intohousehouse with the plaintiff and her parents and they liveether in that crowded house with the intention that they would marry. There was talk talk of bride price having to be paid.&#16ter a year living together ther in her parents house it was becoming too difficult in such a crowded house so Mary and Peter talked ahow they should move out and get a house of their own. Part Part of the discussion was that if Peter was married he would be entitled to a police house. He wouerefore have to prod produce some sort of documentation to provwas married. 160; The Plaintiff that heat her parents refused to sanction any marriage until Peter had paid the brideprice. Shs that one day Pesked o ed o come and sign a document to enable them to get get a house. She se also told told her her that by signing a document to rece their marriage then he would have less deductions from hiom his pay and therefore be able to save more pay to save up for the bridee. She then says that that one day Peter asked her and her mother to come the office of the Provincial Secretary to sign the documents to enable him to get a house so she came and they signed some documents. She said it waer explainedained to her what those documents were and that shortly after that they did get a married house and were able to move in. After a few years thas frnction between herself and Peter and finally in 1994 s994 she left Peter and the house. In the ime there had been been oned from the cohabitation. At the timeleft Peter took took out a complaint in the villavillage court against her leaving and it wen he produced the marriage certificate that she said she fshe first realised that she had been formally married.

The plaintiff’s version of the events is supported by her parents who say there was never any consent to marry as was required under the Act as Mary was under 21 years then and such consent would not have been given until the full bride price had been paid. Thents deny signing any cony consent document, and Mary’s mother says she was aware that her daughter was having a defacto renship but there was no marriage until the bride price was to be paid. She agrees that that she pccompanied her daughter to the Provincial Secretary’s office but agrees there was no marriage ceremony performed there, they only went to sign some paperenable them to get a house.

The First Defendant deni denies the Plaintiff’s version of events. He states that theybeen lien living together in her parents house but talked about having to leave and that if they got married he could get a marrccommodation through his job. Hs that the parents first irst of all consented to the the marriage by signing a consent form a month before in February 1989 before a Magistrate at the District Court Office in Mendi and also she and him signed a Notice of Intended Marriage at the same time. Then a month later in March they went before the Provincial Secretary who is a registered marriage celebrant where the marriage took place. Peter denies twas any frau fraud or misunderstanding about the reason thet before the Provincial Secl Secretary. He states that it was always clear in their discussions that they had to get married anduce relevant documentationation to get married accommodation. On thject of bride price Pice Peter agrees that he had to pay soideprice but that the totaltotal amount was never confirmed but that he did pay some bride price over a period of time.

There wo forms of marriage recognecognised by the law in Papua New Guinea. There is the customary marriage, which is recognised in accordance with the customs of the people concerned, such customs not being in written form. Then is what we have here here the Marriage Act marriage which is defined by way of the provisions of the Act. And in accordance wiese stse statutory requiremcertain documents have been tendered into evidence, firstlyrstly the Consent by Both Parents to marriage of a Minor as Mary was underears at the time. This Consent een signed byed by they the alleged parents of the plaintiff before a Magistrate of the District Court. The parents are claiminy ahey are not their signatures or mark, however there has been no handwriting experts called to give evidence on this. Rather have been other doer documents produced with the father’s signature or writing and to an ordinary onlooker there does not seem to be anything wrong with the writing to suggest it as being done by different persons. There is the Notice of Intf Intended Marriage also signed by the plaintiff and Peter before the Magistrate of the District Court.finally there is the Certificate of Marriage signed by the parties before the Provincial Seal Secretary. If what the plaintiff er pher parents allege is true then certain senior Government officials are guilty of deceit or worse. Allegations of fraue alwees been treated seriously by the Courts and the law has required detailed allegationstions and overwhelming proof. As was in tse Maki v PundiPundia [1993] PNGLR 337 @ 338.9.

“An allegation of fraud iaud is a very serious allegation and the c have required strict adherence to requirements for pleadings in such cases. Courts hrts have nallowed owed general allegations of fraud. Courts have required a pera person pleading fraud should set out the facts, matters and circumstances relied up show that the party charged had or was actuated by a fraudfraudulent intention. The acts alleged torauduleudulent must be stated fully and precisely with full particulars. It is not enough just y thay that the person lied or swore a false affidavit, thes matters and circumstances which make such statements lies lies must be particularised. Also this ba challenge to e to the proes under an Act namely the the Land (Tenure Conversion) Act then the fault of fraud in those procedures should be particularised.&#8/p>

So how was the plaintiff misled or how was her conseconsent obtained by fraud, where was the fraud. The evidence is quitar thar that they had both talked about having to move out of her parents house and that they should try and get a house. he plff does not deny that that there was talk of the only way he could get a married househouse in his job was to be married. w cannow deny that marriagrriage was what the documents were to be for. She knew that that the documents were needed for him to to Moresby to help him get a house. So to deny any idea that they were related to geto getting married is a facade. And was their s at the time time. They had beving tong togettogether for a year albeit in her fathers house. They were obviouivingan and wife.&#160 Or was her parents agreto g to them living immorally together, but but as her father said in his affidavit; &#822the Ialibu area it is also very shameful for parents who allow their daughter to go with a th a man without going through a proper bride price ceremony.” Are infer that her parentarents were living with the shame of their daughter living with a man without being married. The court cainfer that, int, instead the reality was that in the eyes of everybody they were married, and they later had a child, and they were living in the married accommodation provided by the Police Force. So how can her parents deey the marriage. She agreed to d live with with him in married accommodation and bear his child. So how can the plai now deny that they were married.

It is not as if she did not know what the ceremonyemony was and was then surprised when he tried nsummate the marriage or expected her to go and live with him and bear his child, she did adid all these thing willingly. And ionly now, years laterlater that she suggests she was misled or forced.

Behind this whole claim is the matter of bride prilegedly not having been paid. W the evidence is not clea clear about the amount of brof bride price as each side has a different version and refers to different figures, bride price is not a condition precedent to a Marriage under the Marriage Act. It may well be a conditionition precedent to a customary marriage. Ae plaintiff is now askingsking the Court to find that the uying law of P.N.G. is that bride price should also be a condition precedent to the Marriageriage Act. However there is no ratiofor at all, the the law in P.in P.N.G. as has already been stated quite clearly recognises both forms of marriage. It isnecesto adhe requiremuirements of the Marriage Act to more suit the P.N.G. situation aion as thes the Marriage Act itself clearly recognisat situation by recognising both types of marriage, but still clearly distinguishing them ahem as based on two separate sets of principles. To say that the Mar Act prct principles are too strict and inappropriate is nonsense when the Act clearly recognises the alternate style of marriage namely the customary marriage.

I find that there has been a valid marriage in accordance with the provision of the Marriage Act Chapter 280 and there are no grounds for this Court to find the marriage should be declared null and void.

I dismiss the application and order Judgement for the Defendant.

Lawyer for the Plaintiff: W Tamutai

Lawyer for the First Defendant: Public Solicitor

Lawyer for the Third Defendant: Solicitor General