Walama v Walama [2008] PGDC 119; DC931 (10 June 2008)

DC931

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE
SITTING IN ITS CIVIL JURISDICTION]

DC 54 of 2008

BETWEEN

RUTH WALAMA
Complainant

AND

CLEMENT WALAMA
1ST Defendant

CHRISTINE KOIKOI
2ND Defendant

Wewak: D Susame
2008: 29 May, 04, 10 June

CIVIL LAW - Adultery and Enticement – Action for Enticement – s. 3 & 5 – Requirement to prove Enticement.

Court Held: 1. Law makes no provision action for Enticement against the offending Spouse.
2. Mere suspicion is not enough. Enticement must be proved as a fact.
3. Case dismissed.

Cases Cited:
None

Counsel:
In Person, For The Complainant
In Person, For The Defendants

10 June 2008

DECISION

D Susame: This is an action for enticement under the Adultery and Enticement Act of 1988. The first defendant is complainant’s spouse. He is the Deputy Head Teacher at Mongniol Primary School, Wewak, East Sepik Province. The second defendant is also a teacher at Mongniol Primary School.

2. It is alleged in the complaint that both defendants committed enticement over a period of time commencing the year 2005 up until 16 February 2008 which prompted the complainant to commence this proceeding.

3. Who may be sued for enticement under the law?

4. The definition of the word enticement is found in s. 3 while s. 5 is an enabling provision for an aggrieved spouse to bring an action.

5. Section 3 reads: "A person commits enticement when he persuades or attempts to persuade the spouse of another person to commit an act of adultery whether or not the contemplated act of adultery is committed".

6. Section 5 reads: "A person whose spouse has been enticed may bring an action under this Act against the person who has committed the enticement".

7. It is clear from the above provisions that an aggrieved spouse may bring an action for enticement against the following persons; the first mention person who entices or attempts to entice a married person to commit adultery and the person who acts as an agent or the person who arranges a married person to commit adultery with another who is not his or her spouse. However, the law does not make provision for an enticement action against the offending spouse.

8. But he or she may sue his or her spouse for adultery by virtue of s.4 of the Act. It follows from the above discussion that the action against the first defendant cannot be maintained and ought to be dismissed. However, case against the second defendant is maintained.

9. The next issue for discussion is whether the second defendant has committed enticement?

10. Generally, at law the person who asserts a fact or raises an allegation bears the onus of proving the allegation. In an adultery or enticement case the standard of prove that is applicable is the civil standard, that is proved on the balance of probabilities by operation of the law (s.19). Thus, it is the complainant’s responsibility to prove by evidence on the balance of probabilities that the defendant did entice the complainant’s husband on 16 February, 2008.

EVIDENCE

11. To prove her case the complainant referred to several incidents to try and persuade this Court to find the defendant guilty of enticement.

12. Firstly, the complainant referred to a certain watch the defendant had given to her husband and which the husband returned when the complainant’s demand. Complainant was not able to give further details of the date watch was given and returned and description of the watch.

13. Secondly, complainant referred to a certain bus ride in 2005, her husband and defendant took to where the complainant lives when complainant and children were absent. For this complainant relies on reports from her undisclosed sources. The Court is not able to place any weight on this evidence as it is merely hearsay and inadmissible.

14. The third incident complainant made reference to occurred on 11th August 2006. At about 4:30 pm that day, complainant had seen her husband and defendant by themselves in the staff room at Mongniol Primary School. Apart from seeing them together the complainant was not able to lead evidence how the defendant enticed her (complainant’s) spouse. It was then open to the complainant to commence an action for enticement. However, the Court has heard complainant decided against filing a case because of lack of evidence.

15. Fourthly, complainant made reference to a certain phone call her husband received from the defendant on an unspecified date in October 2007. The Complainant was not able to establish if defendant was trying to or enticing her husband into committing adultery when the defendant made the call.

16. The Court has heard that of all the incidents referred above the complainant became more and more suspicious of the defendant and her husband. However, because of lack of evidence complainant was not able to commence legal proceedings against them. Therefore, there is no reason why the complainant went to the trouble of making reference to those incidents when she had no evidence to prove a case for adultery or enticement.

17. The allegation of 16 February 2008 is distinct and isolated incident from the ones complainant made reference to. It is complainant’s duty to lead credible evidence to establish the defendant by her conduct had attempted or had enticed complainant’s husband into committing adultery on the date mentioned.

18. The Court has heard complainant’s evidence that the moment she walked into the Yacht Club she saw the defendant sitting close to her husband at a table. That instant she saw the defendant standing up to leave the table and complainant’s husband placed her hand on her shoulder to make her sit. But defendant remained standing by the table when the complainant walked over and hit the table with her open hand and talked to her husband. It is from this brief factual situation the complainant claims the defendant enticed her husband.

19. The Court has also heard evidence from the complainant’s husband as well as the defendant. The defendant was a financial member of the club. She had gone to the club as earlier as 6:00 pm with her friends including a fellow teacher and her husband. The defendant became aware of the presence of complainant’s husband at about 12 midnight. The husband had been drinking the whole day with his friend who was also a member of the club. They ended up at the Club about 12:00 midnight. She saw the complainant’s husband falling asleep on the table in a public place. She left her friends and went over to the complainant’s husband and touched him by the hand to wake him up when the complainant arrived.

20. Considering all the factual circumstances that gave rise to this whole case, this Court cannot find anything peculiar and extra ordinary about the incident on 16 February 2008. There is no iota of evidence that defendant or the complainant’s husband had made prior arrangements to go out on a date or meet at the Yacht Club and that seeing the couple together at the Yacht Club came as no surprise. Evidence complainant has introduced is simply not enough for any tribunal of fact to hold that defendant had persuade or attempted to persuade complainant’s husband into committing adultery.

21. Complainant all along has always been suspicious of her husband having an affair with the defendant. The moment she walked into the Yacht Club and saw the defendant by her drunken husband and when the complainant saw her husband touch the defendant by her hand the complainant became even more suspicious and angry. Suspicion is mere belief or feeling that something is wrong without prove. Enticement on the other hand is a civil wrong and it requires proof by some material evidence.

22. The complainant has failed to introduce material evidence to prove that defendant had persuaded or attempted to persuade complainant’s spouse into committing adultery on 16 February 2008.

23. The conclusion reached from the above discussions is that the complaint against both defendants is dismissed.

__________________

For the Complainant, In Person
For the Defendants, In Person