Buka v Sengep [2003] PGDC 32; DC382 (5 March 2003)

DC382

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE 146 OF 2003

Jenny Buka
Plaintiff

V

Nongonongo Sengep
Defendant

Mendi: Tatakali
2003: 05th March

Adultery and Enticement Act Second wife suing for Adultery. First and other wives not interested. Question of Locus Standi. Custom considered. Other wife(s) coming to court with unclean hands. Consent of first wife is required to pursue matter by other wife(s). Complainant lacks locus.

Counsel
Complainant: In person
Defendant: In person

TAT AKALI, DCM: This is an action for compensation under section 4 of the Adultery and Enticement Act. The complainant is the second wife of the defendant who has three wives. The first and third wives have not bothered to make any claim against the defendant. Does the complainant have locus standi?

ISSUE

There is no dispute that the complainant is indeed one of the wives of the defendant and therefore has every right to redeem any of such rights that she deems to have been breached under the Adultery and Enticement Act. The mere fact that the first and third wives have chosen not to exercise their right to sue for adultery is their choice and should be no basis to defeat this action. In other words the defendant's action should not be excused just because the question of locus standi is still outstanding.

However, does this mean that each of the wives can institute separate legal proceedings against the same defendants for this one incident of alleged adultery? After all each of the wives are individually also in a relationship which does have a status of marriage.

The Adultery and Enticement Act defines spouse as including 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. All three wives have a separate marriage relationship with this one defendant that has the status of a marriage in every sense.

Under the Marriage Act Section 3:

3. Customary marriages.

(2) Subject to this Act, a customary marriage is valid and effectual for all purposes. [Emphasis mine]

Since a customary marriage is valid and effective and valid for all purposes, does the complainant have locus standi?

The Dictionary of Modern legal usage by Bryn A. Gamer defines Locus standi as the right to bring an action or to be heard in a given forum.

Right is further defined as having title and title is defined as

1. the legal link between a person and some object of property

2. Legal ownership of property

3. ....

4. The legal evidence of a persons ownership rights

The complainant is the legal owner of this property, her husband, [who is now the defendant] and she has the right to bring this action. By the same token the other two wives are also the legal owners of this same husband and should also be able to bring similar actions.

Collins Dictionary of Law defines ownership as inter alia,

One owns not the thing but, the right of possession and enjoyment of the thing.

The plaintiff in this case has a right of possession and enjoyment of the thing which is her husband.

Ownership is further defined by Britannica as

the legal relation between a person (individual, group, corporation, or government) and an object. Because the objects of property and the protected relations are different in every culture and vary according to law, custom, and economic system and the relative social status of those who enjoy its privileges, it is difficult to find a least common denominator of "ownership." Ownership of property probably means at a minimum that one's government or society will help to exclude others from the use or enjoyment of one's possession without one's consent which may be withheld except at a price [emphasis added]

From this explanation we can deduce that we the courts representing the right-thinking members of society must help this complainant to exclude others from the use or enjoyment of her husband without her consent. Furthermore we can also see that groups and organizations or corporations can also own or possess things. The difference is that each of theses groups have a head or authority who exercises power on behalf of the group for the benefit of the group. However in a marriage relationship where there are a group of women who are married to one husband, then who becomes the head or authority? Are they all separately equal, in relation to making a claim under the Adultery and Enticement Act? The Adultery and Enticement Act is silent on this matter.

What was the intention of the Parliament in enacting this Adultery and Enticement Act. It inter alia was to encourage stability in society through steady and stable marriages. It was also to provide a control over the outrageous compensation demands and awards that were being made in regards to this sort of claims. It was also to provide a safeguard for the sanctity of marriage since Papua New Guinea is defined under our constitution as, a Christian country. As a Christian country we hold the noble principles in the bible to be our moral standard, therefore marriages are sacred and are to be a relationship between two consenting adults. The bible says at Mathew 19: 5

For this reason a man will leave his father and mother and unite with his wife, and the two will become one. No human being must separate, then, what God has joined together.

This principal is adopted and reflected Under the Marriage Act during the solemnizing ceremony

41. Explanation of marriage relationship.

(1) Subject to Subsection (2), before a marriage is solemnized by or in the presence of an authorized celebrant who is not a minister of religion of a recognized denomination he shall say to the parties, in the presence of the witnesses, the words ....

"Marriage. according to law. is the union of a man and a woman to the exclusion of all others. voluntarily entered into for life" or words to that effect."

What should happen when there are more than one women who have equal rights but choose not to exercise this right? Should only the one choosing to sue be allowed to?

In this case the three wives all have title over their one husband. They all own the husband. Two by their lack of suit or interest appear to have initially consented or later after the ac forgiven the defendant. This can be a defense under section 9 of the Act

9. Defenses.

(1) A defendant to an action under this Act, may, without prejudice to any other defenses which he may raise, raise any or all of the following defenses:-

(a) that the person entitled to bring the action has, prior to the commission of the act of adultery or enticement, consented to the act of adultery or enticement, as the case may be; or

(b) that the person entitled to bring the action has, after learning of the act of adultery or enticement, forgiven the defendant; or

(c)

(2) Where, on evidence, a defense is established under Subsection (1), the Court shall dismiss the action.

Where two of the wives have forgiven the defendant but the third one has not can she still exercise her right to sue?

If the answer is yes, then this must also mean that the other two wives can individually proceed with separate legal proceedings. The defendants will be ordered to pay compensation separately for each case. The more wives a defendant has the more he will be penalized for each adulterous act. If the intention of Parliament were to have some control over outrageous claims, then to allow the defendant to pursue this matter, in this way, would be against this intention, as the other two wives would also have equal rights to pursue this matter separately. This then would not encourage stable marriages which in turn would lead to a less stable society.

If the answer is no, then is there no existing relationship between the parties? If complainant cannot sue then how can she remedy her breach?

Do the wives get only of a portion of the total award? In this case the defendant has three wives. Do we divide the total amount awardable by the number of wives and then allow each wife to claim only their amount. For example in our case three wives divided by the total amount awardable under the Adultery and Enticement Act which is K10.00. The defendant is able to recover only a maximum of K333.33t.

This means that the more wives that a defendant has the less each wife will be awarded, so there comes a point in which the husband could cross the 'immunity barrier' where it would be ridiculous to claim against the defendant for adultery as the compensation sum would be so insignificant, simply because he may have too many wives.

Do we then allow the rule of first come first serve basis to apply, meaning that whichever of the wives comes first is lucky and may sue, while it is just bad luck to the late comers?

CUSTOM

Since the law appears to be ambiguous and unclear in relation to this issue, can custom assist us in some way? Do all the wives have equal rights? In a customary sense in our PNG highlands society wives have always been considered as mere possessions of the husband. The first wife, however, is usually accorded much more respect and has more standing than any other later wives. It is also common practice for the husband to seek the permission of the first wife for him to marry another women. The later wives are generally under and subject to the first wife in many aspects.

Taking this into consideration and in view of the practice that the first wife has more right than the other women, the first wife must take a leading role in pursing this matter through the courts.

The second or any other wives are in a sense coming to court without clean hands so as to speak. They are guilty of violating the exclusionary rule and should not be permitted to enjoy this privilege without the permission of the first wife. Whether or not the first wife is currently in good terms with her husband or not is a question of fact to be determined by voir dire.

Therefore the complainant in this case, who is the second wife, should not be allowed to sue without the express consent of the first wife. If the first wife is no longer on good terms with the husband then this is a matter to be proven in court through the normal process. The findings must therefore be that the complainant in this matter lacks locus standi.

COURT ORDER

Matter Struck Out

Parties to bear their own costs.