Unreported National Court Decisions
N1871
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
APP. NO. 32 & APP. 33 OF 1999
BETWEEN: COPLAND OA & ESTHER KORUA
-APPELLANTS-
AND: NELSON KORUA
-RESPONDENT-
Lae
Injia J
16 June 1999
5 July  1999
2 August 1999
ADULTERY   -  Meaning  of  “spouse”   -   Customary  marriage  - Parties from Highlands region - Bride price pre-condition to valid customary marriage - Marriage by instalment payment of indefinite amount for indefinite period - No evidence of such customary bride price payment in Highlands societies - No valid customary marriage - Adultery and Enticement Act 1988 (as amended), ss.1, 2, 9(1)(c). 
Counsel
Appellants in person
Respondent in person
2 August 1999
INJIA J:  This is an appeal against a finding of liability in favour of the complainant/respondent and award of K500 against each appellant in damages for adultery, on a complaint brought by the respondent.  The decision was made by the Local Court at Lae on 26 January 1999 following a joint-trial on the complaint in which four witnesses gave evidence for the complainant and three witnesses gave evidence for the defendants.  Both defendants filed separate appeals, which were heard together.
There are two grounds of appeal in each appeal and they are the same.  They are:
1.       The Learned Magistrate erred in finding that there was a legal marriage when it was not supported by evidence before me.
2.       The amount of K500 being “the maximum” is too excessive.
The proceedings were brought by the complainant under the Adultery and Enticement Act 1988 (the “Act”).  “Adultery” is defined by S.2 of the Act  as where “a spouse engages in voluntary sexual intercourse with a  person other than his spouse”.  The word “spouse” is broadly  defined in S.2 as “includes a party to a relationship between a man and a woman which can reasonably be considered as a subsisting relationship having the status of a marriage”.  It is a defence under S.9(1)(c) of the Act for a defendant to show that he “believed on reasonable grounds that the spouse with whom the act of adultery .... was committed was not married.”  The standard of proof applicable is the civil standard, namely proof on the balance of probabilities: s.19.
In a case where the complainant relies on the existence of a subsisting marriage of one form or another, and the defendant denies the existence of any such marriage relationship, the Court must be clear about the precise kind of “marriage” relationship in issue in the proceedings.  There are three kinds of “marriage” relationships covered under the definition of “spouse” in S.1 - a registered marriage under Part V of the Marriage Act (Ch. No. 286), a customary marriage recognised by Part II of the Marriage Act and, if I may use the term “status marriage” for want of better term, described in S.1 under the definition of “spouse.”  The onus is on the complainant to prove the existence of any of these three types of “marriages” as required by  S.2 and it is for the defendant to prove the absence of any of these types of relationships as prescribed by S.9(1)(c).  The proof of the existence or otherwise of a registered marriage and customary marriage should not pose any great difficulty whereas proof of a “status marriage” does.  Recently in App. No. 501 & 502 Elma John & Luke Mane -v- John Nake, Unreported National Court judgment handed down at Lae on 14 May 1999, I laid down various considerations relevant to determining a “status marriage” and the test to be applied.  I said:
“As to what factors are relevant to be considered in deciding whether a relationship is one enjoying the “status of a marriage” are many and of course will depend on the circumstances of each case.  Some of the notable common factors include the circumstances of cohabitation including the place and period of cohabitation; the children born to the couple in this period; the acceptance of union of the couple by the immediate parents and relatives of the couple throughout the period of cohabitation; where customs of certain societies require bride price payments as a pre-requisite to a valid marriage, the demand for payment of bride price by the woman and her relatives in this period; the reciprocal exchange of gifts and undertaking of economic obligations between the couple and their respective relatives in recognition of or in furtherance of their relationship and the regard had of the relationship of the couple by members of the community the couple live in and the people they relate to.
The test is an objective one.  The Court should ask itself.  Having regard to the aggregate of all the relevant factors, is the relationship between the man and the woman one that ordinary people in the community they live in or where they come from, and the relevant people they relate to, one that is accepted or regarded as one of a husband-wife relationship, that is, one of “marriage?”
In relation to the first ground of appeal, the uncontested evidence before the Magistrate were that Nelson and Esther both come from the Watabung/Goroka area of the Eastern Highlands Province and they speak the same local dialect.  Copland comes from the Chimbu province.  All the parties lived at Kamkumung Settlement at Lae and are known to each other.  The complainant said he was “married to Esther for 7 months from April - November 1998”, to which Esther agreed by saying “me and Nelson got married  for 6 months.”  After this, she left due to his continuous physical abuse of her and she went to live with Copland as “husband and wife.”  All parties agreed that payment of bride price for a valid customary marriage was a requisite of their common local Highlands custom and that no such bride price was paid when the couple started living together.  There was also evidence showing that Nelson accepted his customary obligation to pay bride price and that he would pay it by instalments of an unspecified amount for an indefinite period.  
There was dispute however, over the actual payments made by Nelson in this period.  Nelson said he assisted Esther’s family in their daily needs and did so by paying some K6,000 in the short period, some of which were K100 to Anton Koin, K120 to Yanepa, K90 to Elisha Mefa and K60 to Esther’s mother.  Esther said Nelson did not pay bride price at all in the short period they “were married.”  He only gave K60 to her father as compensation for insulting him and K120 to her brother for accommodation for living in his house.  She strongly maintained these payments were not for bride price, hence there was no customary marriage and certainly no registered marriage.
The Magistrate found that even though bride price was not paid, he found this was an exceptional case where both of them were living together and felt they were married.   All parties to the dispute knew each other and they knew Esther was married to Nelson.  Esther ran away without dissolving her marriage to Nelson and lived with Copland and committed adultery. He found the complaint proved and awarded damages against the appellants.
It is clear to me that the Magistrate did not decide the issue of a subsisting marriage on the basis advanced by the complainant, that is, a customary marriage.  He appears to have gone  off on a different course and decided there was a marriage relationship of some kind but he made no reference to a “customary marriage” or a “status marriage”.  When a magistrate decides the issue of a subsisting marriage, he must be clear in his mind about which of the three types of marriage relationship the parties are relying on - a registered marriage, customary marriage or “status marriage” as defined in S.1.  This is  because different considerations apply to each of these three types of “marriage” relationships.  In this case, I am at a loss to understand what kind of marriage the magistrate is talking about.
In my view, it is clear from the evidence that there was no registered or church marriage.  The complainant’s case was that there was a customary marriage based on an agreement to pay bride price by instalments to Esther’s relatives, of an unspecified amount for an indefinite period, in the form of meeting their daily needs.  There is evidence to show he paid a total of K370 but not K6,000.  A sum in the vicinity of K6,000 appears to be a realistic figure for bride price, which Nelson may have had in mind and which Esther may also have had in mind.  
I agree with Esther that K370 paid was not for payment of bride price but payments made for all sorts of things.  In the light of her denial of the existence of a registered or customary marriage, I understand her reference to their 6 months relationship as one of “marriage” to mean living as a married couple together under one roof.  The payment of customary bride price is a distinct payment which has some public ceremonial significance.  The payments made by the respondent in this case lack these essential characteristics.  As in Elma John & Luke Mane -v- John Nake (ante), the parties to the relationship in the present case all come from the Highlands region.  What I said in Elma John & Luke Mane -v- John Nake on the custom of bride price in Highlands societies is apposite to the present case.  I said: 
“It could be argued that the contentions that Luke and Elma had come up with now regarding bride price could be a recent invention, to legitimise their adulterous relationship.  If this was a serious issue in their relationship of 7 years, then one would expect the relationship between John and Elma to have broken up long ago.  Seven years of cohabitation in the face of difficult times, is a long time and it can’t be lightly dismissed as a temporary “marriage” relationship pending legitimisation by the payment of bride price.
“On the other hand, the payment of customary bride price is an essential pre-requisite to the existence and recognition of a customary marriage in the Highlands societies where the parties come from.  Such factors as love between the parties, period of cohabitation, and all the other relevant factors referred to earlier take a secondary stage.  Bride price is the fundamental pillar of a customary marriage.  If the woman’s parents waive their rights to demand bride price for their daughter, that may be permissible.  But it appears, both parents, not just one, must take a common stand on bride price.  If one party is not prepared to waive his or her right to bride price, there is no waiver.  In the present case, that is exactly what has happened.  John’s unpaid bride price commitments questioned the validity of his relationship as early as 1994.  A large portion of their years of cohabitation was under cloud.  It also affected the welfare of their child Jason.  It was untraditional and uncustomary for John to turn a blind eye to the demands for bride price and seek the unilateral approval of Elma’s mother.  In the light of these factors, any reasonable person from the Highlands would have no difficulty in concluding that theirs was (not) a customary marriage.
“Of the two completing arguments, I am more persuaded by the latter argument as the most sensible of the two.  I find the requisite for customary marriage to be an overriding consideration in Highlands societies where the parties in these proceedings come from.  Both parties to the relationship, that is John and Elma, were well aware of this custom and knew that John would have to pay bride price at some latter stage.  This never eventuated at John’s initiative.  For these reasons, I consider that the relationship between John and Elma was not one which could reasonably be regarded by ordinary people from the Highlands living in their own villages or in towns such as in Lae, as (a valid) customary marriage.” 
In the present case, no such customary bride price was paid.  Further, there is no  evidence of local custom to show that the custom of the parties allowed marriage by agreement for payment of bride price by instalment payments of an unspecified amount for an indefinite period.  There is also no clear evidence to show the agreed total bride price payment and duration of periodic payments.
For these reasons, I find that on the evidence, the magistrate could not possibly have come to a conclusion that a customary marriage existed.  I find that he erred.
I allow the first ground of appeal.  In the light of this decision on the first ground of appeal, it is not necessary to consider the second ground of appeal.  I quash the decision of the magistrate.  Each party shall meet their own costs of the appeal.