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Augwi v David [2020] PGNC 412; N8674 (2 December 2020)

N8674

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]
CIA NO. 17 OF 2019

BETWEEN:
GEORGE AUGWI
Plaintiff

AND:
GRACE PUIO DAVID
Defendant

Waigani: Miviri J
2020: 09^th October, 2^nd December

PRACTICE & PROCEDURE – Judicial Review & appeals – Appeal – District Court – Dismissal of application section 16 Frauds & Limitations Act – Identifiable error in law & fact – No error identified – Initial maintenance order maintained – Appeal dismissed – Orders at first instance confirmed – cost in the cause.

Cases Cited:

International Finance Company v K K Kingston Limited [2019] SC1872

Mupang v Independent State of Papua New Guinea [2014] PGSC 43; SC1397 Josiah v Raphael [2018] PGSC 8; SC1665
Counsel:

J. Posi, for Appellant

J. Unua, for Respondents

RULING

02^nd December, 2020

1. MIVIRI, J: This is the ruling on the appeal of the appellant who appeals against the decision of the Port Moresby District Court presided by Magistrate Rebecca Kalepo in the proceedings FC No. 239 of the 2019 between Grace Puio David against George Augwi where it refused an application by the defendant to dismiss the proceedings for being time barred pursuant to section 16 of the Frauds and Limitations Act 1988 including section 36 of the District Courts Act. And by section 22 of the same Act for being frivolous or vexatious and for disclosing no reasonable cause of action and an abuse of the process of court.
   
2. It is upon the appellant to show that there is apparent and identifiable errors on the face of the Judgement or decision at first instance to vitiate it succeeding the appeal: International Finance Company v K K Kingston Limited [2019] SC1872 (13 November 2019) and Mupang v Independent State of Papua New Guinea [2014] PGSC 43; SC1397 (30 October 2014).
   
3. Section 16 Limitations of actions in contract, Tort of the Frauds and Limitations Act 1988 is in the following terms:

“(1) Subject to Sections 17 and 18, an action–

(a) that is founded on simple contract or on tort; or
(b) to enforce a recognisance; or
(c) to enforce an award, where the submission is not by an instrument under seal; or
(d) to recover any sum recoverable by virtue of any enactment, other than a penalty or forfeiture or sum by way of penalty or forfeiture,

shall not be brought after the expiration of six years commencing on the date on which the cause of action accrued.

(2) An action for an account shall not be brought in respect of any matter which arose more than six years before the commencement of the action.

(3) Subject to Subsection (4), an action upon a specialty shall not be brought after the expiration of 12 years commencing on the date when the cause of action accrued.

(4) Nothing contained in Subsection (3) shall be construed as affecting any action for which a period of limitation is specified by any other Act, and that subsection shall be read and construed accordingly.

(5) An action shall not be brought upon any judgment after the expiration of 12 years commencing on the date when the judgement became enforceable.

(6) No arrears of interest in respect of any judgment debt shall be recovered after the expiration of six years commencing on the date when the interest became due.

(7) Subject to Subsection (8), an action to recover any penalty or forfeiture, or sum by way of penalty or forfeiture, recoverable by virtue of any enactment shall not be brought after the expiration of two years commencing on the date when the cause of action accrued.

(8) For the purpose of Subsection (7) the word “penalty” does not include a fine to which any person is liable on conviction of a criminal offence.”

4. This section is comprehensive, and the language is for all intent and purposes clear that maintenance of a child is not included in it within the bounds of the prohibition set out by this section. That is clear because the life of a child is depended on the parents and therefore the obligation of the offending parent is not extinguished by law but continues to be affected until the child comes of age. It is elementary to the life of every human to begin as a child and the law must protect and ensure life is cared for.
   
5. The decision of the learned Magistrate at the court below is found at Tab 23 of the appeal book. At page 121 towards the third paragraph the learned magistrates reasons, “As to Frauds and Limitations Act, I am of the view that this Act applies when there is silence in the Act in this case the Lukautim Pikinini Act which gives jurisdiction to maintenance claims to be made.” That is what the language of section 16 of the Frauds and Limitations Act is set out above. It is resounding consideration by the learned magistrate that the Lukautim Pikinini Act maintains the child up to 18 years. Which is a separate matter in law from contract and therefore the consideration made by the learned Magistrate was not wrong in both law and fact. Because section 16 of the Frauds and Limitations Act set out above was in the given circumstances not applicable and did not bar the claim that was made. There was no error of law and fact committed by the learned Magistrate.
   
6. Maintenance and the failure to pay maintenance ordered by Court cannot be limited nor would it exceed the jurisdiction of the District Court. The life of a child is not governed by the monetary jurisdiction of the District Court. If that were the case would maintenance be ordered in the first place by a magistrate here?. Obviously, the answer is negative because the amount increases as failure is made to honour the orders made. It is therefore not illegal nor is out of the Jurisdiction of the court to order the payment of a large sum accrued over the years for non -payment from and against an original order made. And this is clear language of section 21 (3) of the District Courts Act, “ Subsection (1) shall not be taken to limit the jurisdiction of Courts in cases where, by any law, money, irrespective of amount, may be recovered before a Court.” Maintenance of a child is not one of the matters under this section prohibiting jurisdiction. The submission by the plaintiff has no merit and the learned Magistrate has made no errors both in law and fact given.
   
7. There is no error demonstrated by the learned Magistrate in this regard because both sections are not read in the way that has been submitted by the appellant. Section 91 (1) “Subject to Section 90, on the hearing of an application in respect of the maintenance of a child in the care of the Director, an allegation in the complain that -

(a) the person complained against is liable under Section 89, and is able to pay for, or contribute towards, the cost of the maintenance of the child; or
(b) a specified sum -
(i) has been expended on; or
(ii) is due or owing for or in respect of the cost of the maintenance of the child,is prima facie evidence of the matter alleged.”

8. Section 91 (1) set out above is not as is argued by the appellant. It is read taking account of section 89 which relates to liability of certain near relatives liable for the maintenance of the child. It is a section that considers the Papua New Guinean way of life with the extended family who are also considered liable for the maintenance of the child. And is jointly read with section 90 order for Payment of Maintenance. It is not confined immediate to the father or mother as it were in the old Act. The definition of father and mother is also extended. The Lukautim Pikinini Act is truly a Papua New Guinea law taking account of our lifestyle in the way maintenance of a child is considered. And better still a child in the care of the Director under Part IX of that Act.
   
9. So, there is no conflict as argued by the appellant between section 91 (1) and 92 (2) (a) proof must be led that the person alleged must be properly proved as the father of the child. Here the court was entitled on the basis of the email by the appellant set out in the decision at page 121 the last paragraph where appellant will pay some money to compensate Grace who is already married to a David for the Kid. And a proposition of a mediator between to hear and to settle the matter. This is evidence directly related to responsibility towards the child whose mother is being communicated to by the man who says he is not responsible for the child yet he is offering for the settlement of moneys in respect of that child. The subject of the proceedings is maintenance of that child. It is uncommon for a person to pay for a matter they have not caused or are responsible for.
   
10. The inference open and reasonable is that the person expressing intent to pay is somewhat responsible for the allegation hence the intent expressed to pay settlement in view. Especially here where the person is resident in Australia. Why take the pain to pay for something that you are not responsible for considering the distance from Port Moresby, Papua New Guinea to Australia. And for a person who is living there out of bounds of the mother Grace to make such an offer by written email that is before the court accepted as being authored by that person. Given in my view the learned Magistrate has made no error apparent or identifiable to vitiate her decision at first instance.
    
11. That is the case here against the appellant the ruling of the learned Magistrate in this regard stands without fault. Because she finds that the appellant has not denied but voices that there should be paternity testing. She was entitled to find as she did there is no error demonstrated in this regard by the appellant and this ground fails. Because as she rightly pointed out the Lukautim Pikinini Act is not statute barred in the maintenance and upkeep of children. Its application is extensive and wide if read with section 112 of that Act. Which was rightly pointed out by the Court there is no error demonstrated as pleaded by the appellant. This ground is without merit and fails.
    
12. Because when the appellant pleads that, when the learned Magistrate failed to consider section 91 (1) of the Lukautim Pikinini Act 2015, “LPA” which was intended to be read with section 92 (a) which required that the proceedings be instituted by a complaint and produce evidence of paternity in satisfying the pre-requisite conditions as are required under section 92 of the LPA and if the court was satisfied there was no conclusive evidence of paternity in support of the complaint then it may issue a summons under section 92 (a) of the LPA and in the absence of conclusive evidence of paternity she refused the application to dismiss the proceedings.
    
13. In the way it is pleaded is a very wrong interpretation of the law and amounts to misleading the court on the law because that is not what the law is particularized as set out above. Counsel is an officer of the Court and will assist arrival and the maintenance of the truth not otherwise. It should be a lesson to counsel to properly analyse before presentation in court. This ground is not made out and fails in the appeal.
    
14. The summary of the grounds of appeal are that paternity of the child was at the heart the initial pleading it did not satisfy and there was no basis in law for the decision that was taken by the District Court. There was no time date place as to when sexual intercourse may have taken place between the appellant and the respondent leading to the pregnancy that resulted in maintenance and the inconsistencies particularly with reference to the date of birth of the child as initially of 04^th December 2004 and then changing it to 12^th April 2004. The court was entitled at first instance of having viewed the evidence to form as it did. This is an appeal where the parties are not physically before the court reliance is placed on the material at the initial so there is no basis at this juncture even by all set out in the decision at first instance.
    
15. The learned Magistrate was entitled to find as she did on the evidence that was led. There is therefore in all the circumstances no error demonstrated in this regard against the decision of the magistrate at first instance. This ground is without merit and is dismissed forthwith. The summary of the matter is as settled by the Supreme Court, “This entrenched principle is drawn from the Latin maxim “aequitas sequitur legem”, which meaning has invariably been given adages such as "equity will not allow a remedy that is contrary to law” or “equity had come not to destroy the law, but to fulfil it” or “equity has no clash with law neither it overrides the provisions of law, nor it is the enemy of law. It adopts and follows the basic rules of law,” “ Josiah v Raphael [2018] PGSC 8; SC1665 (30 April 2018).
    
16. The equity here is to do good for the Child who has no say as to how he has ended up in this world which is the human factor fundamental to all. The responsibility is of both the mother and the father. One cannot shift the blame away to one or the other. It would not be the case that a mother or a father for the same would make a mere allegation especially a sexual one in view of the fact that both here are married and live their separate lives as found by the learned Magistrates. But why come back later on given that fact to draw blood as it were? The answer is it is the truth, and no one can outlive the truth which is there even before the birth of the child and time. That is equity and both she and the law are not enemies both serve the same lady Justice, and this will be no different. They will bear Justice. The appeal has no merit and will be dismissed with Costs to follow the event on a party to party basis if not agreed to be taxed.
    
17. The orders of the Court are:
    
    • (i) The appeal is dismissed as without merit.
    • (ii) The decision at first instance is affirmed.
    • (iii) The cost of the proceedings follows the event on a party to party basis if not agreed to be taxed.

Orders Accordingly.

__________________________________________________________________

Rageau Manua & Kikira Lawyers: Lawyer for the Appellant

Office of the Public Solicitor: Lawyer for the Defendant