Male v Hans [2005] PGDC 128; DC547 (19 May 2005)

DC547

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

DCCi 128 OF 2005

BETWEEN

PAUL MALE
Complainant

AND

ANNA HANS
1st Defendant

MICHAEL MOND
2nd Defendant

Lae: C Inkisopo
2005: 19 May

CIVIL - Application of time limitation under Section 7 of Adultery & Enticement Act, 1988 – In a continuing alleged adulterous relationship, when does adulterous relationship of from time when Complainant became aware of Co-defendant’s such relationship that is subject of Complaint.

Practice and Procedure – Bona fide Naming mistake of male Co-defendant – Correct physical person intended to be sued but incorrectly named in originating process-whether Complaint rendered bad by that naming mistake – whether that mistake prejudices the Defendant’s defence – Naming mistake a mere misnomer – such misnomer remedied by entering the concerned Defendant’s proper name in the originating process – misnomer does not prejudice the Defendant’s defence nor does it promote the Complainant’s case to an unfair advantageous position.

Cases Cited

References

Counsel
Name of Lawyer, For The First Complainant
Name of Lawyer, For The Respondents

19 May 2005

REASON FOR DECISION

C. Inkisopo: This matter of one adultery came on before me today the 19 May, 2005 and after the Complaint was read and explained to both Defendants who have had their says each in relation to the Complaint and the nature of it, the Second Defendant raised two (2) issues of law and procedure upon which he applies for the Complainant to be dismissed. I heard the Second Defendant’s application and his reasons in support. I reserved my ruling to 1.30 pm today and to consider the application and its reasons and to make a ruling and this is the extract of my ruling on the application.

2. The issue the Second Defendant raised are as follows:-

ISSUES:

1. His name was not “ Michael Mond” but “Albert Mondo” The complainant has wrongly named him as “ Michael Mond” when he is “Albert Mondo”
2. This Complaint was time barred under Section 7 of the Adultery and Enticement Act, 1988.
   

On these two (2) bases, the Second Defendant asked the Court to dismiss the Complainant against him is so far as it regards the first issue and in relation to the second issue, he says his contention applies to both Defendants.

METHOD OF COURT APPROACH

3. When the matter was called in Court, the parties appear in accordance with the specifics of the Complaint – Paul Male appeared and acknowledged his such appearance as the Complainant in Court. Anna Hans the First Defendant was called and she did likewise and when the name “Michael Mond” was called, this particular Second Defendant responded and stepped forward.and said; “Your Worship, Neim blong mi ino ‘Michael Mond’. Neim blong mi stret em “Albert Mondo” and produced to the Court’s view a Kuima Security Company identification card bearing an identification photo of the person appearing in answer to the summons served on him as the Defendant in this case named “Michael Mond”. On the basis of that first real evidence, I was satisfied that this person appearing in Court in answer to the name “Michael Mond” was actually “Albert Mondo” and not “Michael Mond”.

4. The Complainant said the following in response when he was asked to respond:

“Em tasol em dispela man mi laik kotim na mi kisim em ikam long kot. Yes, neim em mi no sawe tasol mi askim ol Kuima Security na ol tokim mi olsem em “Michael Mond”. Olsem na mi kisim saman pepa long dispela neim tasol mi kisim long ol sikiriti. Em dispela man tasol mi laik kotim na ino narapela man!”

Name Mistake

5. In my humble view, I do not believe that this name/physical person dichotomy is an issue that should have this Complaint rendered bad and liable to being dismissed on that basis alone. I am also of the firm view that the mistake in name does not unfairly prejudice the Second Defendant in his defense nor does it unfairly enhance the Complainant’s case to an unfair advantage as we are not dealing in this instance with the substantive issues. To that extent, I note too that the Second Defendant has voluntarily appeared in answer to the Complaint and Summons served on him sub nomine “Michael Mond.”

6. If he was not “Michael Mond” and that he had nothing to do with the First Defendant “Anna Hans” and this Complaint, strictly speaking he need not appear because in the ordinary course of events, he was not the actual Second Defendant as named in the Complaint and Summons and that he would have nothing to do with the Complaint. However, his voluntary appearance coupled with the fact that the Complainant positively identifies the Second Defendant as the person he has an adultery case against, I find that he is the correct physical person he has summoned and taken to Court. Further to that, this person has before raising the name/physical person dichotomy, earlier on made certain remarks in answer to the Complaint that to my mind connects him to the alleged adulterous affairs with the First Defendant that the Complainant now complains of.

7. I am of the humble view that I can not now on that basis alone struck out or dismiss this Complaint but am inclined to rectifying this name to person anomaly by amending the Complaint by inserting the name “Albert Mondo” and deleting the name “Michael Mond” as the Second Defendant.

Six (6) Months Time Limitation as per Section 7 of Act

8. The Second Defendant’s second issue of six (6) months time limitation under Section 7 of the Adultery And Enticement Act, 1988 is in my humble view not a big deal. The Complaint is simply in my view not out of time. According to the Second Defendant, he met the First Defendant and began seeing her in May, 2004 and thereafter commenced living with her. As I see it, the Second Defendant in making this application was seeing the whole situation from his own stand point - from when he started seeing the First Defendant in May, 2004 and according to him, for this Complaint to be valid, it must have to have been instituted at the latest in November, 2004. Accordingly, he says that this Complaint is time barred which I consider to be a sound argument if it was not for what I am about to say.

9. Be that as it may, the Complainant is very clear and specific with his Complaint in that he has cited the date of his allegations as being in the period between January and April, 2005 as being in Lae. It is clear that he was not alleging the period commencing May, 2004 as the period the Defendants began living together in Port Moresby as both Defendants admit which is something unbeknownst to him (the Complainant). The Complainant became aware of their living together in that alleged adulterous relationship when they came to Lae in about January 2005 and began living in Lae and he took this proceeding against them based on that factual situation as known to him.

10. It seems clear to me that the Complainant took this action as soon as he became aware of both the Defendants’ presence in Lae and their living together as husband and wife He did clearly cite the period as being between January and April, 2005 which period according to me is still perfectly within the time period allowed for under Section 7 of the Act. Hence, on the sole basis of the Complaint now before me, I find the Complaint and the attendant Summons as being still within time and I make the following orders;-

FINDING

1: The name to physical person dichotomy does not go to affecting the substance of the case nor does it unfairly prejudice the Defendants’ case nor does it unfairly enhance the Complainant’s case to an unfairly advantageous position coupled with the fact that the Second Defendant personally is the person to whom the Complainant’s Complaint is directed at in view of the Second Defendant’s remarks connecting him to the alleged adulterous relationship in issue in this case. In my humble view, this name-to-person dichotomy can be rectified by simply amending the Complaint by deleting the name “Michael Mond” and in its stead, inserting the name “Albert Mondo” and I allow the amendment to be so made for this is only a minomer.

COURT ORDER

The Court accordingly rules as follows:-

1: The Second Defendant’s application for the dismissal of this Complaint is refused, and

2: The Second Defendant’s name is amended from “Michael Mond” to “Albert Mondo”,

3: The Complaint is perfectly within time and is valid and in order for all intents and purposes, and

4: The matter is accordingly set for hearing to 07July, 2005 at 1:30pm.

5: Both Summonses are extended to the set hearing date.

Paul Male Complainant
Anna Hans First Defendant
Michael Mond Second Defendant