Case Note - District Court's Jurisdiction to grant Restraining orders under the Adultery and Enticement Act [2005] MLJ 5; 2005-06 [2005-06] MLJ 91 (1 January 2005)

Case Note

District Court's Jurisdiction to grant Restraining Orders under the Adultery and Enticement Act*[*]

Re: Shem Emmanual & Elizabeth Norman v Elizabeth Iga (2003) unreported N2427.

Lois Stanley

Introduction

The decision in the case being reviewed is simple but yet critical. It concerns the issue of the District Court's jurisdiction to entertain and grant restraining orders in proceedings brought under the Adultery and Enticement Act.^[1] His Honour Justice Kirriwom, reminds us of the importance of jurisdiction in bringing an action and that where the court or tribunal is a creature of statute, its jurisdiction is governed essentially by the enabling statute. This case clearly answers the question whether the inferior courts can issue a restraining order sought in adultery and enticement proceedings.

Facts of the case

The facts of this case are as follows:

The appellants, Shem Emmanual (first appellant) and Elizabeth Norman (second appellant) appeared before the District Court in Lae on Complaints alleging adultery under the Adultery and Enticement Act. The first appellant is married to the respondent, Elizabeth Iga by custom. They have been married since 1996 and have three (3) children born to the marriage, two girls and a boy. The marriage was not in dispute as the evidence before the Court established the existence of a valid marriage. At the time of the proceeding, the second appellant had fallen pregnant from the adulterous relationship with the first appellant. The appellants were now living together without invalidating the marriage between the first appellant and the respondent.

In the decision now being appealed, the District Court found for the respondent and ordered a compensation payment of K500 by each of the appellants. The payment to be made to the respondent. The District Court further issued a restraining order restraining the appellants/defendants from seeing each other in the future. These orders were purportedly made pursuant to the Adultery and Enticement Act. The appellants failed to pay the K1,000 compensation and furthermore, violated the restraining order. By a subsequent order made on 8th April 2003 on the application of the respondent/complainant, both appellants were sentenced to six (6) months' imprisonment for breach of the restraining order. The sentence against the second appellant was wholly suspended on a twelve months good behaviour bond, and cash surety of K100 to be paid within two (2) weeks.

During the time of the court hearing, only the second appellant was in attendance. She informed the court that the first appellant was imprisoned for non-compliance with the compensation payment to the respondent within the period of five (5) weeks as ordered by the court. In addition, the first appellant also violated the order against them living together or seeing each other. The second appellant's explanation for them living together is that the first appellant had no other place to stay and that they were now in a de facto relationship.

The Issue

The issue on appeal was whether the learned magistrate erred in law by ordering that the appellants be restrained from living together or seeing each other, and the validity of the order for imprisonment of the second appellant for violating this order.

It was submitted by the appellants' counsel that the restraining order complained of was bad in law as the learned magistrate did not have jurisdiction to make it. He submitted that the Adultery and Enticement Act from which the proceeding arose, does not empower the magistrate to make this order, nor does the District Court Act. He further submitted that the only power closest to this type of injunctive relief which is given to a magistrate under the District Court Act is that granted by ss 209-210. These sections read as follows:

"209. Information praying for surety of the peace.

Where a written information is laid before a Magistrate that a person has—

(a) threatened—

(i) to do to the complainant or to his wife or child, or a person under his care or charge, bodily injury; or

(ii) to burn or injure his house; or

(iii) to commit a breach of the peace towards him or his wife or child or that other person,

or to procure others to commit any such injury; or

(b) used language indicating an intention to commit any such breach of the peace or to do any such injury or procure it to be committed or done,

and that the complainant is in fear of the defendant, and the complainant prays that the defendant may be required to find sufficient sureties to keep the peace, proceedings may be had under this Part.

210. Information praying for surety to be of good behaviour.

Where a written information on oath is laid before a Magistrate that a person is a person of evil fame, and the complainant prays that the defendant may be required to find sufficient sureties to be of good behaviour, proceedings may be had under this Part."

Counsel submitted, therefore, that apart from the provisions stated above under the District Court Act, the magistrate is not empowered by any provision, to make orders either to separate or restrain parties from seeing each other.

In considering the issue whether the magistrate has jurisdiction to issue restraining orders, His Honour Kirriwom stated that-

(1) the power of the District Court is limited to whatever the enabling Act expressly provides;

(2) if a remedy is unavailable in that statute, the next point of reference is the District Court Act which sets out the general powers of the District Court;

(3) according to its preamble, it is an Act to provide for the establishment of District Courts and their jurisdiction and proceedings, and for related purposes;

(4) the District Court is unlike the National and Supreme Courts which are courts of record and have unlimited jurisdiction over all matters, and can make all such orders as are necessary to do justice in the circumstances of a particular case.

In further examining the issue of jurisdiction, His Honour stated that the District Court and all other subordinate courts are courts of limited jurisdiction defined by the Act.

Ratio decidendi

The Adultery and Enticement Act 1988 is the first source of power under which the District Court is given the jurisdiction to preside over the illicit affair committed by the appellants. On a guilty finding, orders for compensation can be made, s 11, ibid. Non-compliance with the compensation order is an offence punishable by a term of imprisonment, not exceeding six months, s 18, ibid. The presiding magistrate erred in law in the issuance of his order restraining the first and second appellants from living together and seeing each other. The order is null and void and quashed for lack of jurisdiction.

Conclusion

Under the District Court Act a magistrate is only empowered to give injunctive relief pursuant to sections 209 and 210, which require a violent husband to give sufficient surety of the peace and to behave towards the wife inferentially by maintaining a physical distance from her. The District Court Act does not empower the magistrate to separate persons living together and further restrain them from seeing each other.

The Adultery and Enticement Act, was enacted purposely to remove the criminal element of adultery that existed in the old Native Administration Regulations 1924 (New Guinea) and Native Regulations 1938 (Papua), and thereby the unequal treatment of offenders based on their racial origin- adultery being a criminal offence against 'natives' only.

Whilst the main aim of the Act, viz to decriminalize adultery, was achieved, the Act omitted to provide a remedy for continuing breaches.

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^[*] School of Law, University of Papua New Guinea.

^[1] No. 5 of 1988