Bini v Lamamau [1996] PGDC 5; DC6 (24 July 1996)

Unreported District Court Decisions

[1997] PNGDC 12 - JOSEPH BINI V ROSELYN LAMAMAU & ANOTHER

[1997] PNGDC 12

PAPUA NEW GUINEA

[DISTRICT COURT OF JUSTICE]

CASE NO 288/96

JOSEPHA BINI

COMPLAINANT

V

ROSELYN LAMAMAU

FIRST DEFENDANT

PATRICK BINI

SECOND DEFENDANT

Kavieng

Karapo PM

24 July 1996

ADULTERY - Undisputed facts - Power of  Court to join action against third party - Second  defendant, though absent, was adjudged to have admitted to the adultery, through the admissions of First Defendant - Compensation and restraining orders against both defendants.

Counsel

Josepha Bini (Complainant) in person

Roselyn Lamamau (First Defendant) in person

Patrick Bini (Second Defendant) no appearance

JUDGMENT

24 July 1996

KARAPO PM:  This is a complaint by Josepha Bini, who says that on the 16th May, 1996 and to date at Konos in the Namatanai District, Roselyn Lamamau of Kimadan Health Centre, Konos New Ireland Province, did commit adultery with one Patrick Bini who is married to the Complainant.

The Defendant admitted liability.  The facts of the complaint is that while the Complainant was away in Rabaul, the Defendant was living with Patrick Bini in their house.  The Defendant had been living in the house for a period of 2 months.  The Defendant admitted having sexual intercourse with the husband in the two months they were together in the house from the 14th day of April till to date.

The Defendant is a nursing sister and is aware that the man Patrick Bini is married to the Complainant.  Patrick Bini used the police vehicle to pick her up on the 14 April and several times after for the purpose of having sexual intercourse.

The relationship or love affair is well known within the community they live in.  The children, nurses and colleagues of the Defendant also expressed their negative attitude on what Patrick Bini and Roselyn Lamamu were doing.  They say it is against custom for the children and relatives to know and witness what was happening between the Defendant and Patrick Bini.

In response to the complaint, the Defendant questioned if it was possible for this Court to order that Patrick Bini, the Complainant’s husband, be brought before this Court.  She believed Patrick also contributed to the act of adultery and should be summonsed also by the wife.  “It is unfair for myself”, the Defendant submitted.  “We should all be punished together”.

I took note of the admission on the part of Defendant Roselyn on the act of adultery.  I consulted the Adultery and Enticement Act 1988, and came across Section 8 (3) which reads:

“Where, in respect of an act of adultery, an action is brought against only one of the parties to the act of adultery, the party against whom the action has been brought may request the Court to order that the other party to the act of adultery by joined as defendant to the action and the Court may, whether or not that other party is available or cannot be located order accordingly.”

In this case before myself, the Defendant Roselyn Lamamau was the only one summonsed.  Patrick Bini, whom she committed adultery with, and husband of the Complainant, was not summonsed.  The Court was requested to make orders against him too because he is a party to the act of adultery.

After reading through Section 8(3) of the Adultery and Enticement Act 1988, I am convinced that I have the authority under that provision to exercise my power for the joinder of Defendants.   Before I granted the application to include the name Patrick Bini in the complaint I explained to the Complainant and the Defendant the effect of the provision of Section 8(3).

Although the Defendant Patrick Bini was not present physically in the Court, I acted on the authority of Section 8(3) of the Adultery and Enticement Act 1988.  I entered that he admitted the liability through the admission by Roselyn Lamamau that they had committed the adultery as indicated in the facts above.  In all, I am convinced that adultery has been committed.

After the act of Adultery has been established I am required by Section 11 (b) to make order for compensation.  Section 11 (b) of the Adultery and Enticement Act reads:

“Where an action under this Act:

(a)      ...

(b)      the Court is satisfied, on the hearing of the action, that the act of adultery or enticement, complaint of, was committed;

(c)      ...

the Court may make an order for compensation to the complaint against all or any of the defendants.”

The matter before myself, although there is only one defendant available physically in the Court, I am entitled by Section 8 (3) of the Adultery and Enticement Act to make orders in the absence of Patrick Bini.

When considering the amount to be awarded as required by Section 12  I took into consideration the following factors:

N2>(a)      that both Roselyn and Patrick are employed as nurse and policeman respectively;

N2>(b)      the facts that Patrick Bini is always the initiator of the acts of adultery, even though he knows he is a policeman married to the Complainant.  There is no excuse, on his part.  His actions, in the community he now lives in, is regarded as serious and against customs;

N2>(c)      that both defendants are educated and know there is a law against adultery.

I consider that this action needs special attention by the Court.

I therefore awarded the compensation as follows:

N2>1.       Defendant, Roselyn Lamamau to pay as compensation the sum of K400.00.

N2>2.       Defendant, Patrick Bini to pay as compensation the sum of K600.00.

N2>3.       The total sum of K1,000.00 is to be paid forthwith.

Before I closed the proceedings, the Complainant stood up and asked the Court to make further orders that will restrain the Defendants Roselyn Lamamau and Patrick Bini from seeing or talking to each other.  I considered the request and I am of the view that  I could do it or make such additional orders under Section 22 of the District Courts Act c. 40.  This Section reads:

“Subject to this Act, a Court as regards a cause of actions for the time being within its jurisdiction, shall, in the proceeding before it:

(a)      grant such relief, redress or remedy, or combination of remedies, whether absolute or conditional; and

(b)      ...

as ought to be granted or given in a similar case by the National Court and is as full and ample a manner.”

I consider that this is a civil claim for compensation and that I have the authority under Section 22 of the District Court Act to grant additional orders to the substantive claim.

I therefore make the following additional orders:

N2>(a)      the Court further orders that the defendants, Roselyn Lamamau and Patrick Bini shall cease from talking or seeing each other; and that if there is disobedience on their part will result in this Court imposing a custodial punishment if brought before this Court.

I am aware proper procedures will be adhered to, to bring the defendants before the Court if orders are disobeyed.

The restraining order is necessary to allow the Complainant and the husband to reunite again and further to keep the defendant Roselyn from disturbing Bini’s family.  The restraining order is also in line with the custom of the area and this will remain in force until some kind of ceremonies can be performed to allow for peace and harmony back in the already destroyed family and the reunion of the family.

Josepha Bini (Complainant) in person

Roselyn Lamamau (First Defendant) in person

Patrick Bini (Second Defendant) in person