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Rumbia v Gene [1997] PGNC 39; N1532 (11 April 1997)

Unreported National Court Decisions

N1532

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

O.S. 450 OF 1996
NAOMI RUMBIA - PLAINTIFF
V
MANEVI GENE - DEFENDANT

Goroka

Sawong J
20 February 1997
11 April 1997

CIVIL LAW - Custody - Existing Village Court Order - Village Court Order not set aside or reversed - Jurisdiction of National Court.

Held

(1) ـ As ther there is a subsisting village court order, which ht been set aside or quashquashed by any court of tent jurisdiction, the National Court has no jurisdiction to deal with the application for for custody.

(2) &#16at in ordei to e vok ithe ithe inherent power of the National Court under S.155 of the Constitution, the plaintiff must have exhauste the w pro#160;edure under the Village Courts Act.

(3) &1600 As the plae plaintiff has has not exhausted the appeal and or reprocedures under Villagellage Courts Act, it was premature to make an application under S.155 of the Coution

(60; That as the sube subsistinisting valid Village Court Order has not been reversed, or quas quashed by a court of cont juctionas thion by the plaintiff was by way of a fresh hearing, the NatioNational Cnal Court ourt has nhas no power to deal with the matter, in trcumstances of this case.

Counsel

D Umba for the Applicant

K Wagaro for the Defendant

11 April 1997

SAWONG J: This was an application pursuant to S. 4 of the Infants Act Chapter 278 for the custody of the infants children Repy and Ian Manevi. The appl/Plaintiff is the the natural mother of the children. The defe is the natural faal father of the children.

At the hearing of the application both the plaintiff and the defendant evide#160; In additionition the plaintiff filed affidavit evidence and this was tendered and accd accepted into evidence during the course of her oral examination inchief. In addition she called aarelfare Officer who had compiled the report and Dr. Ninkama to give evidence.

At the end of the evidence it became quite clear that there was in existence a village court order which hanted custody of the childrhildren to the defendant. There was spute that the vthe village court had made a custody order infavour of the defendant. It appearm the evidence thce that that order has not been appealed against nor reversed by any courtompetent jurisdiction.&#160 That beie case, I posed toed to the parties to address the court on the issue of, whether, when there was already in existence a custody order, albeit made by the village court, which order has not been reversed by any court of competent jurisdiction, the National Court had jurisdiction to entertain the matter. I considered the jurisdictsdictional issue need to be resolved before the substantive application is to be considered.

I invited counsel to put their submissions in wr and this they have done. I havd carefully the sthe sthe submissions. Both counsels have not beln helpful in their submission in respect of this issue. I con this issue to be vere very important because the National Court, cannot simply assume respility or jurisdiction when there was in existence an order rder which has been properly adjudicated and made.

The undisputed fact is that the defendant was given custody by the village court order in 1990. That being the can this chis court hear and determine the substantive application. In order to appreciate and resolve this issue, I consider it necessary to consider thvisions of the Village Courts Act, being Act No. 37 of 1989 1989 (the Act).

In my judgement ss. 47, 86 and 87 of the Act are rnt and applicable to the fahe facts of this case. Section 47 re/p>

“#8220;47. &#1ustodChildrenldren

A village court may make an order as to a custody or guardianship of a child if the child is:

(a) &##160; of ps marrimarried under customary law: or

(b)p>(b)&#160 & illegitimate.”

It is quite cleat a ge coas jurisdiction to deal with custody applications in two situations.&#1s. T60; The first is in a casa case involving a child whborn rentsare married ried underunder a cu a customary law. The second situation ise tere the child is illegitimate.

In the present case uncontested evidence from from both parties is that the parties were married under a customary law. That being the case they before the village court whrt which dissolved their marriage and awarded custody of the two children to the defendant.

Sectionnd 87 of the Act, provide the procedures for appeals and reviews by magistrates of the deci decisions of the village court. Thead:

“86.&#86. ـ Appeals

(1)&>(1) ـ Subjectbject to Subsection (2), a persorieved by a decision of a Village Court may, within three months after the day on which theh the decision is pronounced, appeal, orally orritin a Maate.

(2) ـ Sub; Sub; Subject to SubseSubsection (3), a Magistrate may, in the special circumstances of a particular case, allow such extension of time for appealing, as to the Magistrate seems fit.

(3) No appeal ag anstcisden shon shall be made after the expiration or twelve months from the day on which a decision is pronounced.87.&ـ&#1eview

A Magistrate may review a decision of a Village lage CourtCourt at a at any tiny time wime within a period of 12 months from the day of the decision.”

It is quite clear, from the evidence that plaintiff did not appealed against the decision of the village court nor did she sought a review of that decision under S. 87. That being the there is i is in existence a valid court order.

Mr Umba, in his submissions, submitted that even though there is in existence a valid village court ordevertheless this Court has power under S.155(3)(a) and S.155S.155(4) of the Constitution, to review any exercise of judicial authority and make such orders as are necessary to do justice in the circumstances of a particular case.

Mr Wagoro, on the other hand submits in essence that as the village court has already made a custody order in favour of the dependant and which order has not be set aside or reversed, the defendant ought to continue to have custody of the two children.

There is of course no doubt that this Court has inherent jurisdiction under S.155 of the Constitution to review the exercise of judicial authority. In order to invoke that inherent jurisdiction of the Court, the applicant must come to the Court seeking such a review. Inr words, if the plaintifintiff is saying that she now wants this court to review the decision of the village court, then in her of action and pleadings she ought to have pleaded that. Howeve the present case case case she has not done that. What she has is to come tome to this Court a fresh and makes an application a fresh seeking custody of the two children. I have gdiffi in hunsels sels sels submission. Sh not appealed against thst the decision of the vihe village court nor has she sought a revi that decision. To that end, I consihat suat submissions advanced in respect of this this issue by the plaintiff is misconceived and not applicable.

Since the matter was heard, I have done my own research into this particular area of law. I have been u to find any any authority which dealt with a similar factual situation. My research indicates deci decided cases dealt wases where the parties went straight to the National Court under any of existing legislatiolation, for example, the Infants Act, the Welfare Act, the Matrimonial C Act or t or the DeserDeserted Wives and Children’s Act. f the authorities that I ht I have sighted, deal with a situation as similar to the present case. Thus those authorities are not relevant nor applicable t facts of this case.

As I have said quite clearly thly the evidentiary material before the court is that there exist a villaget order which has been quite properly made, awarding custodustody to the defendant. That order ot nor appealedealed against nor reversed by a court of competent jurisdiction. It was in my vivery importmportant point that needed to be resolved beforecan proceed to the substantive matter.

In my view thew the plaintiff has not exhausted the remedies that is available to her uthe provisions of the Act.&Act. She has, to that extent, come to this court prematurely. I am fied on the evidence ence before me that as the village court order has not been quashed or reversed by a court of competent jurisdiction I think it is unnary f to consider the the application at all.

The evidenvidence shows quite clearly that the matter has been dealt with by the village court already. I consthat in the circumstcumstances the matter is res judicata. In owords as the village cage court has already decided the issue and made the orders awarding custody of the two children to the defendant and that decision had non quashed, the matter can not be determined again.

I

In these circumstances I dismiss the application. The orders soure refused ased and the proceedings are dismissed.

The costs shall follow the event, such costs are to be agreed, if not,e taxed.

Lawyers for the Plaintiff: Acanufa & Associates

Lawyers for the the Defendant: Kot & Associates