Sobi v Kanane [2000] PGDC 25; DC188 (6 September 2000)

DC188

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 2501 OF 2000

BETWEEN

Itu Sobi
Informant/Complainant

V

Lance Kanane
First Defendant

Greta Sobi
Second Defendant

MR. IOVA S. GEITA
16, 28 August, 6 September 2000

Cases Cited
The following is the only case cited in the decision.
Ley v Hamilton (1935) L T 384 at 385

Counsels
Clovis Rihatta For The Informant/Complainant
Defendants In Person

REASONS FOR DECISION

GEITA I.S. – Mr. Itu Sobi issued a summons upon information against the first and second defendants, seeking amongst other consequential orders to restrain them from seeing or contacting each other pursuant to Section 210 District Courts Act Ch. No. 40. On 16 August 2000 this court pending finalisation of the complaint granted interim restraining orders.

The information being: --

1. "That it is apparent that the 1st Defendant is of evil fame and have attempted to elope with or otherwise succeeded in causing the physical removal and absence of one Mrs. Greta Sobi from her lawful spouse, children and matrimonial home and,
   
2. That the Complainant is informed and verily believes that such removal and continuous absence by the said Greta Sob; from her lawful spouse children and matrimonial home is resulting in your adulterous association involvement or otherwise with the said Greta Sobi and,
   

100. That you have been associating, keeping aw_, living with, and otherwise preventing one Greta Sobi the lawful spouse of the Complainant from her spouse, usual place of abode, and children without the consent of her spouse and children between 6th July 2000 to this day (28th July and onwards),
     

4. That Greta Sobi had either of or own volition, freewill, forcefully or obliged with (a), (b) and (c).
   
5. By so doing you 2nd Defendant have therefore caused to neglect deny or otherwise abstain from cohabitation and residence in the matrimonial home and further neglected and denied the children of their maternal love and care.
   

Therefore the Complainant being aggrieved prays to the Court under Section 210 of the District Courts Act Ch. No. 40 for orders."

Now this being an ordinary summons this court is entitled under s.141 of the District Courts Act to proceed to hear and determine the complaint That section required me to hear sworn evidence from the complainant and any witnesses he may wish to call and, if satisfied that the complaint had a cause of action and had proved i_ to make an order in favour of the complainant.

The Complainant deposed in his affidavit that he was married to the 2nd Defendant and has six children. He asserts that his wife and the 1st Defendant have been having an adulterous relationship over the past 2 years resulting in his wife absenting herself from her matrimonial home on 6th July 2000 after a short argument His wife stayed away from work and home and eventually turned up for work on 17 July 2000. The Complainant cited instances of either seeing his wife in the company of the 151 Defendant or seeing her in the 1 & 1 Defendant's official vehicle. Attempts to get his wife to return to him and family have proved unsuccessful hence this Information.

The Complainants witness's deposed in their affidavits of seeing the 1&1 and 2M defendants together within the city and at Bomana Police Officer's mess at different occasions. Other than that, there is no direct evidence to show that the 1 SI Defendant was of evil fame. I have been unable to find a judicial interpretation of the words 'evil fame' however upon consulting a dictionary this is what it said: -

...evil means wicked, sinful, bad, harmful and fame means condition of being known or talked about. (Oxford Advanced Learner's Dictionary of Current English).

If this court is to find for the Complainant there must be evidence to show that the 1st Defendant is a person who falls within the above literal definition of evil fame.

The 1st Defendant in reply deposed in his affidavit of denying any responsibility in depriving the Complainant and his family of the 2"d Defendant, their mother from her matrimonial home between 6 July to 28 July 2000. He said that the 2nd Defendant does not live with him as alleged. He rebutted the Complainant's asserting by saying that there is no direct evidence to link him to the adulterous affairs and deprivation of the 2nd Defendant. He says that on the day 2nd Defendant left her matrimonial home (6 July 2000) he was not in Port Moresby but in Popondetta. He says he was busy arranging late Chief Inspector David Lameura's funeral arrangements from 5 July and had nothing to do with the 2nd Defendant leaving her husband. The 1st Defendant maintains that the 2nd Defendant willingly left her matrimonial home, her spouse and children at her own accord on 6 July 2000. Although there is some evidence pointing to the fact that the 2nd Defendant's absence from her matrimonial home is likely to cause anxiety and distress amongst the Complainant and his children that does not necessarily mean that the 1st Defendant is a person of evil fame. I am not satisfied fully that that alone is the cause of their woes.

Likewise the 2nd Defendant deposed in her affidavit that she left the Complainant and her children at her own accord. She denies being physically removed from her house and family. She says the 1st Defendant had nothing to do with her absence from home. According to her she moved out of the house at her own free will as a result of the Complainants bad drinking habits, ill treatment and constant use of abusive language over the years since they began living together in 1976. She admits leaving the matrimonial home but says she was not living with the 1st Defendant. Rather she was with her brother and family up until the day she returned to the Complainant and both temporarily made up. When the Complainant failed to keep up to his promises of improving his bad habits the 2nd Defendant left the matrimonial home, hence the complaint

The only question which arises in this complaint is whether the Informant and his witnesses have sufficiently produced evidence in support of the matters stated in the Information pursuant to Section 211 of the District Courts Act Ch. No. 40. The Complainant has come to the court by way of an information and relied on Section 210 of the same Act for relief. The section reads,

Where a written information on oath is laid before a Magistrate that a person's 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." (Emphasis mine)

I consider that in order for the Information to succeed under Section 210, there must be evidence to prove or show that the person complained off is a person of evil fame and that if proven he must find sufficient sureties to be put on good behaviour etc. On the affidavit evidence before me I see no evidence or reference pointing to the 1st defendant being of evil fame. Rather all evidence relate to incidents and happenings of seeing the defendants together at one stage or another at different

locations and suggestions of suffering and hardships endured by the Complainant and his immediate family due to the absence of the 2nd Defendant I might add here that their mother has openly declared leaving the matrimonial home at her own accord and not by coercion or enticement from the 1st Defendant.

It seems to me therefore that the Complainant proceeded on an incorrect cause of action in the District Court I might add here that the proper cause of action would be either adultery or enticement under Sections 3 and 4 Adultery and Enticement Act 1988. Counsel for the Complainant has had ample opportunity of considering alternative cause of action however he has failed to do that I do not think it is proper at this stage to entertain alternative cause of action. Of course in this matter there was not even a cause of action in the alternative.

In the case of Ley v Hamilton (1935) L T 3B4 at 385, the court went so far as to say that when counsel has had ample opportunity of considering two alternative claims and decided to pursue the one, an appellate court should be very chary of allowing the other to be substituted.

I am therefore not satisfied that the information before me has been successfully made out It follows that the information must be dismissed and it is now up to the Complainant to decide whether or not to issue fresh proceedings. I order that the information be dismissed with costs.

Orders accordingly.

Clovis Rihatta: Complainant
In Person: Defendant