Kongoni v Anis [2012] PGDC 4; DC2056 (29 November 2012)

DC2056

PAPUA NEW GUINEA
(In the Family Court Jurisdiction of the District Court held at Lae)
FC No 142 of 2012

BETWEEN:

ESTHER ANIS KONGONI
(Complainant)

AND:

GIBSON ANIS
(First Defendant)

AND:

JOYCE ROGERS
(Second Defendant)

Lae: C Inkisopo
2012: 15th October, 1st & 29th November

District Courts Act – preliminary application to dismiss proceedings -ancillary jurisdictions of District Courts - Section 22 of Act permits of such applications-

Claim for compensation – for cause of adultery under the Adultery and Enticement Act –

Practice and procedure - motion to dismiss claim on grounds of defectiveness, abuse of process and lack of legal merits-

Practice & procedure - abuse of the process – notice of motion seeking reliefs in similar terms as in substantive process -– reliefs sought best resolved through evidence received at trial proper-

Legislation/Rules/Regulations/Authorities

1: Adultery & Enticement Act of 1988
2: District Courts Act Chapter 40

Case cited/ referred to:

1: John Momis -vs- Attorney General & 1 Or [2000] PNGLR 109

Parties/Appearances

1: Ms Esther Anis Kongoni - Complainant
2: Mr Gibson Anis - First Defendant
3: Ms Joyce Rogers - Second Defendant

Held:

1: Defendants' application via Notice of Motion of 11/9/2012 is dismissed

2: Case adjourned for mention to 6th December, 2012 at 9:00am with the view to listing for trial before another Magistrate.
3: Costs be in the cause.

29th November, 2012

JUDGMENT

C Inkisopo: This is a ruling on a joint application by the Defendants by way of a Notice of Motion filed and dated 11th September, 2012 seeking the following reliefs;-

i: The Proceedings be dismissed for being defective and an abuse of process, having no legal merits (sic).

ii: Complainant pays Costs of this proceeding in the sum of K1, 370.00 as incurred and today's appearance to be calculated (sic).

Primary Facts:

2: The Complainant sues the Defendants jointly claiming compensation for the stated cause of adultery. She took out a Complaint and Summons at the Lae Family Court claiming that the Defendants "since April, 2012 did engage in voluntary sexual intercourse with each other (sic)
She therefore claims a compensation of K1, 000.00 and other orders as the Court deems fit.

3: The Defendants filed a joint Defence dated 28th August, 2012 in which the First Defendant pleaded that he is not legally married to the Complainant and that it was only a de facto relationship whilst the Second Defendant pleaded lack of knowledge of the First Defendant being married to the Complainant as her defence. The First Defendant also pleaded the defenses of "consent" and "forgiveness" as provided for under s 9 of the Adultery & Enticement Act of 1988. Hence; the Defendants deny the Complainant's claim for Adultery outright!

4: While the process of pleadings (filing of affidavits and replies made, served and cross-served on each other), were on foot and progressing, the Defendants filed a Notice of Motion dated 11th September, 2012 seeking;- (1) the dismissal of the entire proceedings for being defective and an abuse of process and no legal merits; (2) Complainant pays cost of this proceeding in the sum of K1, 370.00 incurred and today's appearance to be calculated; (3) Such other orders Court deems proper (sic).

5: The Defendants moved their Motion on15th October, 2012 by relying substantially on the affidavit of Gibson Anis sworn and filed and dated 28th September, 2012 in their defence to the claim. The First Defendant spoke for himself and for the Second Defendant in moving the Motion.

5: The First Defendant's first point of argument touched on the question of the Complainant's surname as being "Anis" as that fact has the tendency of giving a prejudicial impression in favour of the Complainant that goes to rendering the whole of the proceeding defective. He raised serious issue that "Anis" is not the Complainant's name but that of the First Defendant's and hence, the Complainant's real name for purposes of this case should be "Esther Kongoni" and not Esther Anis Kongoni. They submit that this proceeding should therefore be dismissed.

6: While I do appreciate and understand where the First Defendant is coming from; in my humble view, this proceeding is not rendered incompetent by that fact. I do not consider the 'name' issue to adversely prejudice the Defendants' defense nor does it prove or disprove marriage as such; as that issue is a matter strictly to be resolved through evidence. I therefore dismiss this argument as being untenable.

6: As a follow-on argument to the immediate above, the Defendants argue that there is no evidence; direct or indirect, of a legally recognized marriage between the Complainant and the First Defendant; either through custom, Church or by law in order for this claim to competently come before a Court of law as this. I dismiss this claim too as being without merit as that argument is self-serving and is already making it necessary and imperative for same to be resolved through evidence.

7: They further argued that there is no evidence either direct or indirect to show the actual act or acts of sexual intercourse between the Defendants. Rather, they argue that this proceeding is based purely on mobile phone text messages. They made references to this fact in each of their respective affidavits as well as that of the Complainant's to support this contention. I dismiss this argument too; as being without merit; as it is dwelling on matters strictly of evidence to be best dealt with after evidence has fully been received at trial.

8: They next argued that there can not have been any act nor ever have there been any act of adultery between the Defendants as they were not living together nor did they have any association at or prior to the date claimed in the Complaint as being "since 26th April, 2012". This Court is considering and dealing with a preliminary issue raised by the Defendants through their Notice of Motion saying that the proceeding by the Complainant dated 12th July, 2012 is defective and an abuse of the process; and lacking legal merits.

9: In addressing this issue, the Court refers to and considers the Defendants' Affidavits filed in their respective defenses to the claim (G Anis filed and dated 28th of August, 2012 and J Rogers filed and dated 11th September, 2012).

10: The questions before this Court in addressing this Application are two-pronged;-

(a) Is the proceeding defective and an abuse of the process?

(b) Does the proceeding lack legal merits?

Defectiveness & Abuse of Process

11; In order to properly address this issue, this Court must of necessity look closely at the Complaint itself and the form of it. The Court notes the Complainant to have stated her Claim by saying; "Since April, 2012 in Lae, Morobe Province did engage in voluntary sexual intercourse with each other knowing very well that the First Defendant is married to the Complainant; thereby contravening to Section 4(2) of the Adultery & Enticement Act, 1988"

12: The Complaint is made on the prescribed form and the base statement of claim in my humble view substantially complies with the specific dictates of the requirements. In my view therefore; merely stating "since" instead of a specific date to show the period the act was allegedly committed in my view is not ambiguous and could not therefore render the whole proceeding defective or incompetent. Employing the word "since" in alleging conducts or acts subject of the claim implies a continuing act or activity. The word "since" is described by the Cambridge Advanced Learner's Dictionary (3rd Edition of 2008) as an adverb saying "from a particular time in the past until a later time or until now." Apart from what has been identified and addressed, the Complaint and the form itself are in my view substantially compliant with the legal requirements of a District Court Complaint Form; and in my humble view is proper and in order. I therefore reject arguments raised in this respect.

13: The Defendants are perfectly within their rights to deny the claim and put the Complainant to the proof of her case. The Complainant's claim of a particular act or set of acts to have occurred since a particular time is in my view competent as it allows the Defendants prime opportunities to defend against the claim by advancing their sides of the story. That opportunity and the result can best be achieved by appropriate evidence adduced at the hearing stage of the proceeding.

14; The final aspect on the over-all assessment of this matter is that; the application for dismissal by way of the Notice of Motion dated 11/09/2012 is but considered an abuse of the process; because effectively it seeks to determine the issues of the Defendants' Defence in a "speedy manner". See John Momis -vs- Attorney General & 1 Or [2000] PNGLR 109. This case stands for the proposition that preliminary applications (Notice of Motion) made seeking reliefs in the same terms as that of the substantive process (Defence in this case) is an abuse of the process as it attempts to deal with the substantive matter in a 'speedy manner' at the expense of formal processes of trial and/or hearing.

15: The Defendants are also raising the defence of "no marriage" and the positive legal defences available to them under s 9 of the Adultery & Enticement Act of 1988 of "consent" and forgiveness". In this Application, the Defendants are moving this Court to dismiss the proceeding on the basis substantially of these Defences; and accordingly this Application would seem to be an abuse of the Court process.

16: On the basis of the foregoing discussions, this Application must fail.

Formal Orders:

(A) The Application is dismissed;

(B) The matter shall now adjourn to 6th December, 2012 at 9:00am for mention and listing for hearing before another Magistrate.

(C) Costs shall be in the cause.

__________________________

Lawyers/Appearances:

1: Complainant – Nil-but Self in person
2: Defendant (1) _ Nil-but Self in person
3: Defendant (2) _ Nil-but self in person