Suli v Witmo [2010] PGDC 41; DC1035 (29 October 2010)

DC1035

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]
V/CT 34/2010

PETER SULI
Complainant

V

ETNA WITMO
Defendant

MADANG: J KAUMI

2010:1st,15th, 29th September 13th,27th, 29th October

ENDORSEMENT

VILLAGE COURT ACT- Endorsement of Village Court Order for imprisonment by District Court, Part V-Jurisdiction, Division 9-Sections 68, 74 (1) (b) and 75 (2) (3)

PRACTISE AND PROCEDURE-Incumbent upon District Court magistrates to enquire into all relevant Village Court proceedings before endorsing an order for imprisonment

. PRACTISE AND PROCEDURE-Claims for compensation for offences relating to adultery and enticement are to be dealt with under the Adultery and Enticement Act.

A Village Court presented its order to the District Court for its endorsement for the Imprisonment of a woman who failed to comply with that order.

Held:
(1) It is incumbent on District Court magistrates to scrutinize all relevant Village Court proceedings leading up to the issuance of the order for imprisonment and not merely endorse such an order as a matter of course.

(2) Claims for compensation for offences relating to adultery and enticement are to be dealt with under the Adultery and Enticement Act.

Cases cited:
The following cases are cited in the judgment:
Re: Theresia Maip [1991] PNGLR 80
Re: Kaka Ruk [1991] PNGLR 10
In the matter of Re: Kabia Maris and Nalik Village Court [1994] PNGLR 314
Wali vs Wali (2006) N 3051 (20th /04/06),

Legislations

Adultery and Enticement Act 1988
Village Court Act 1989

Abbreviations:
The following abbreviations appear in the judgment:
J Justice
N National Court judgment
V.CT Village Court
VS Versus

ENDORSEMENT
This was an application to the District Court for the endorsement of an order for imprisonment by a Village Court.

Representation:
Appellant in person
Respondent, in person

INTRODUCTION

1. Kaumi.M These proceedings started by way of an Order for Imprisonment, A29074, dated 3rd August 2010 that was brought to this Court for its endorsement by the Masemo V.Ct pursuant to section 75 (2) of the Village Courts Act which gives me the jurisdiction to deal with it.

2. At the outset I adopt as a matter of practice parts of the outline only of a judgment by Cannings J in Wali vs. Wali (1). This is for a want of a suitable precedent in our jurisdiction.

BACKGROUND

3. The complainant Mr Peter Suli had summoned Ms. Etna Witmo, the defendant (his wife) to appear before the Masemo V.Ct on 16/02/10 for allegedly committing adultery with a Maralisa Taiwan and becoming pregnant by him as a result.

4. The Masemo V.Ct on the same day 16/02/10 entered judgment against the defendant in Order C 214885 to pay compensation in the sum of K10000.00 and a court fine of K200.00 for disobeying this same Order C 214885, a total of K1,200.00 payable by 16/04/10 to the complainant. This judgment was entered in the absence of the defendant or ex parte as it would seem.

VILLAGE COURT PROCEEDINGS

5. The Masemo Village Court issued the Order for Imprisonment No. A 29074 (Form 8) dated 03/08/10 for the imprisonment of the defendant for six months.

SUBMISSIONS

6. The strict application of the rules of evidence and of the acceptance of documents into evidence are relaxed when a decision of a V.Ct is under appeal or review by the District Court and this mandated by the operation of Sections 89 (5) and 59 (1) of the Village Courts Act. This court can therefore admit and consider documents which would otherwise be not admissible.

DEFENDANT’S SUBMISSIONS

7. The defendant’s submission was contained in an affidavit sworn on 27/09/10 and filed on 28/09/10.

8. I make following general observations about this document:-

(i). firstly, it confirms that she was summoned by the defendant for allegedly committing adultery and becoming pregnant;

(ii).secondly, that she never received any summons or orders from the V.Ct though acknowledging a part heard trial for adultery before the Masemo V.Ct at Wagol on 16/02/10 with orders issued on that date;

(iii).thirdly, she denies being married to the complainant.

COMPLAINANT’ SUBMISSIONS

9. The complainant’s submission was contained in an affidavit sworn and filed on 8/10/10.

10. I note with respect that the main thrust of the of this document is the insistence by the complainant that the defendant had admitted to being remarried on the 16/02/10 during the said trial, that they are married ( both parties in these proceedings) and that they have a two years ten months old baby.

ISSUE

11. First and foremost is whether or not the Masemo V.Ct had jurisdiction in a matter that involved a claim for compensation for adultery.

RELEVANT LAW

12. The relevant legislation pertinent to the resolution of the issue is follows:-

Adultery and Enticement Act 1988,

Being an Act to regulate certain aspects of disputes relating to adultery and enticement, as a matter of national interest.

PART I. – INTRODUCTION.

1. INTERPRETATION

In this Act, unless the contrary intention appears–

"compensation" means–

(a) in relation to an action arising out of an act of adultery–compensation for the act of adultery; and

(b) in relation to an action arising out of enticement–compensation for the enticement;

"Court" means a Local Court or District Court;

Previous cases

13. There have been previous cases that have dealt with similar issues in this area of law and they are as follows:-

(a)In Mark, Re (1) the National Court held that:-

(i). Section 74 (1) of the Village Courts Act requires the proof that a person has failed to pay an order for compensation without reasonable excuse and it is only after that proof has been given that the Village Court may order imprisonment. In this case there had been no hearing to determine whether payment had been made and on the same that the period of 6 weeks allowed for payment expired, a warrant was issued for the applicant's imprisonment.

(ii). In the case of a civil claim, an order for imprisonment must be endorsed by a District Court Magistrate in accordance with s.75 (1) of the Village Courts Act. Section 68 of the Act allows a District Local Magistrate to endorse such an order in criminal procedures.

(iii). An Order for imprisonment when made arbitrary will be declared to be harsh and oppressive and repugnant to the general principles of humanity. Cases cited Re: Theresia Maip (2) and Re: Kaka Ruk (3)

(b)In the matter of Re: Kabia Maris and Nalik Village Court (4) the National Court held that:-

(i). Further the provisions of s.61 of the V.Cts Act 1989 clearly state that,"a person who fails, without reasonable excuse (proof of which is on him) to obey an order of a V.Ct for payment of a fine is guilty of an offence." There is no record that there was any hearing to give the prisoner an opportunity to show why he had failed to pay the money, whether it was by reasonable excuse or otherwise.

(ii). But a V.Ct is bound by s.58 to decide all matters in accordance with substantial justice, and the

(iii). I consider he was held in breach of the jurisdiction of the V.Ct Act. He has already paid part of the debt, and he is entitled to be released proportionately, I order his release forthwith.

14. The general principles enunciated in these National Court cases are that it is incumbent upon firstly, a V.Ct to conduct a hearing to determine from a defendant whether or not he/she has a reasonable excuse for not complying with its order (in other words a second hearing) and secondly, a District Court magistrate must carefully scrutinize all events leading up to the issuance of the order for imprisonment instead of merely endorsing such an order as a matter of course. In other words it is incumbent on District Court magistrates to scrutinize all relevant Village Court proceedings leading up to the issuance of the order for imprisonment and not merely endorse such an order as a matter of course.

DELIBERATION

15. The Adultery and Enticement Act 1988 was enacted by Parliament in 1988 to provide a forum for claims for compensation for adultery and the preamble of this legislation states that it being an Act to regulate certain aspects of disputes relating to adultery and enticement, as a matter of national interest. The Interpretation clause at section one states that compensation means (a) in relation to an action arising out of an act of adultery-compensation for the act of adultery and further that "Court" means a Local or District Court. It is clear that Village Courts have no jurisdiction to deal with such actions arising out of an act of adultery as they are not one of the Courts defined in the Interpretation clause.

16. In this instance I have considered all that transpired in this matter and am satisfied that the Masemo V.Ct acted without any legal basis and exceeded its jurisdiction.

DETERMINATION

17. The order of the Masemo V.Ct C 214885 dated 16/02/10 is quashed and its Order No.A 29074 dated 3/08/10 for the imprisonment of the defendant for six months is not endorsed by this Court.

REMARKS

18. There has been a practice by Village Courts in Madang to entertain actions for compensation arising out of an act or acts for adultery under an action called " Bagarapim sindaon" and this I find is a pseudo for an action arising out of adultery under the Adultery and Enticement Act. Clearly this practice by the Village Courts is without legal basis and must stop.

19. Whilst this Court does not find anything wrong with a spouse seeking redress for an errant partner's conduct I find that the Village Courts under the Village Courts Act can only play a mediatory role and where mediation fails the aggrieved party should be advised to institute action in the right forum, the District Court.

Appellant in person
Respondent in person

__________________________
[1] (2006) N 3051 (20th /04/06)
[2] [1991] PNGLR 80
[3] [1991] PNGLR 10
[4] [1994] PNGLR 314