Bal v Leo [2017] PGDC 19; DC3041 (5 September 2017)

DC3041
PAPUA NEW GUINEA

[IN THE DISTRICT COURT OF JUSTICE

SITTING IN ITS CIVIL JURISDICTION

DCCi. 83 of 2017

BETWEEN

ERIC BAL

Complainant

AND

JUNA LEO & HENI FORAPI

Defendants

Goroka: P KAUMBA

2017: August 24

September 5.

Civil:CLAIM FOR COMPENSATION UNDER ADULTERY AND ENTICEMENT ACT.

Statutes used;

Adultery and Enticement Act.
District Court Act
Schedule 2.1 of the Constitution.
Customs Recognition Act.

References:
Nil

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Counsels:

Lawyer of the Complainant,In person

Lawyer of the Defendant,In person

5^thof September, 2017

DECISION OF THE COURT

P KAUMBA, Magistrate:This is a complaint filed by the complainant alleging that the defendants have been living together and are committing adultery commencing 29^th of July 2016 and continues to do so to date and he brings this case undersection 4(1) of the Adultery and Enticement Act(herein-after referred to as AEA)and claims compensation pursuant to section 12 of the aforesaid Act.

BACK GROUND.

2. The complaint was filed on the 1^st of June 2017 and the Defendants were served the complaint and summons by Lufa police and their proof of services sworn 9^th of June 2017 are on file. It came before me on the 27th of June 2017 and the court noted that the defendants were not present so I directed the complainant to advise the defendants.I also directed the clerk of court to give notice of the adjournedor the next mention date to the defendants in writing and adjourned the case to the 7^th of July 2017 for further mention.

3. On the 7^th of July 2017 the matter was set down for ex parte hearing on the 31^st of July 2017.

4. On the 31^st July 2017 the case did not proceed to hearing as set because the complainants witnesses were not in court and Defendants did not appear so hearing was vacated and matter was set for mention on the 3^rd of August 2017 and directed the complainant to get his witnesses to file affidavit in court.

5. On the 7^th of August 2017 the parties were not present and the date for ex parte hearing was vacated and the matter was set for mention on the 24^th of August 2017 at 100pm.

HEARING.

6. On the 24^th of August 20017 the case was heard. The complainant was sworn in and tendered his affidavit in to court as evidence and his witness was also sworn in and his affidavit tendered into court as evidence. The court asked the witness a few questions and his answers were taken down in writing for the courts record.

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LAW.

7. ADULTERY AND ENTICEMENT ACT.

2. ACT OF ADULTERY.
An act of adultery is committed where a spouse engages in voluntrary sexual intercourse with a person other than his spouse.

8. 4. ACTION FOR ADULTERY.

(1) A person whose spouse has committed an act of adultery may bring an action under this Act against-

• (a) The spouse;
• (b) The person with whom the spouse has committed the act of adultery; or
• (c) The spouse and the person referred to in paragraph (b),

(2) For the purposes of an action under subsection(1), all acts of adultery committed between the same persons before the commencement of the action shall be regarded as one act of adultery

.
9. TIME LIMITATION FOR BRINGING AN ACTION.
(1) An action under this Act shall be brought not later than six (6) months after the day when
the act of adultery or the enticement complained of, was committed.

(3) Where by virtue of section 4(2) acts of adultery are regarded as one act of adultery, the

period of six months referred to in subsection(1) shall commence to run on the day next following the day when the last of those acts of adultery was committed.

(4) Where in the opinion of the court, a person has reasonable excuse for not bringing an action within the period specified under subsection (1), the court may permit the person to bring the action after expiry of that period but in any event not later than three months after the expiry of that period.

10. DEFENCES.
It is not relevant in this case because the defendants did not appear in court in response to
the summons served on them.

11. MEDIATION.

(1) Before hearing an action under this Act, a Court shall endeavour to have the action settled by mediation’

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12COMPENSATION.

Where in an action under this Act-

(a) Mediation in accordance with this Act has failed;
(b) The court is satisfied , on hearing of the action, that the act of adultery or enticement ,complained of, was committed; and
(c) A defence under section 9 has not been established,

the court may make an order for compensation to the complainant against all or any of
the defendants.

13. AMOUNT OF COMPENSATION FOR AN ACT OF ADULTERY AND ENTICEMENT.

(1) An order for compensation in an action brought in respect of a act of adultery shall be for an amount of K1000.00.
(2) Where separate actions are brought by the same person or on behalf of the same person in respect of the same act of adultery, the total amount of compensation shall not exceed K1000.00.

STANDARD OF PROOF.

14. The standard of proof to be applied in proceedings under this Act shall be that applied in civil proceedings namely proof on the balance of probabilities.

DISTRICT COURT ACT.

22 General Ancillary Jurisdiction.

15. Subject to this Act, a Court has as regards a course of action for the time being in its
jurisdiction, shall, proceedings before it –

(a) Grant relief, redress or remedy, or combination of remedies, whether absolute or conditional; and
(b) Give the same effect to every defence or counter claim, whether equitable or legal, as ought to be granted in a similar case by the National Court and in as full and ample manner.

16.Section 143 Where the Defendant does not appear.
Where in the case of complaint, the defendant does not appear at the place and at the time specified in the summons , or at the place and time to which the hearing was adjourned or
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postponed, as the case may be if_

(a) It appears to the court on oath that-

• (i) the summons was duly served at least 72 hours before the time appointed in the summons for appearing; or
• (ii) an order for substituted service or other service or for substituted service of notice by advertisement or otherwise was duly complied with; and

(b) No sufficient grounds are shown for adjournment,the court may proceed ex parte to hear and determine the complaint or may adjournthe hearing to a future date.

17. SCHEDULE 2.1: RECOGNITION,ETC OF CUSTOM.

(1) Subject to subsection (2) and (3), custom is adopted and shall be applied and enforced, as part of the underlying law.
(2) Subsection(1) doesnot apply in respect of any custom that is and to certain extent that is inconsistent with a constitutional law or a statue, or repugnant to the general principles of humanity.
(3) An Act of parliament may-

(a)provide for the proof and pleading of custom for any purpose;and

(b)regulate the manner in which, or the purpose for which custom may be recognised,

(c) provide for the resolution of conflicts of custom.

CUSTOMS RECOGNITION ACT.

18. This is the Act that was made by Parliament pursuant to Schedule 2.1 subsection (3) of the Constitution.

2. PROOF OF CUSTOM.

19. (1) Subject to this section, questions of the existence and nature of custom in relation to a

matter and its application to any particular circumstances shall be ascertained as

though they were matters of fact.

(2) In considering a question referred to sub section(1) a court-

(a) is not bound to observe strict legal procedure or apply technical rules of evidence and

(b) shall-

(i) admit and consider such(including hearsay evidence and expression of opinion) and

(ii)otherwise inform himself as it thinks proper.
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3. RECOGNITION OF CUSTOM.

20. (1) Subject to this Act custom shall be recognised and enforced by and pleaded in, all
courts except so far as in particular case or in a particular context-

(a) Its recognition or enforcement would result, in the opinion of the court in injustice or would not be in the public interest; or
(b) In a case affecting the welfare of a child under the age of 16 years its recognition or enforcement would not be in the interest of the child’...

21. 4. FINDING AND APPLICATION OF LAW.

1. The Complainant and the first Defendant were married in 2004 after payment of bride price of K3000.00 plus 20 pigs and one big goat under custom of the Simbu and Eastern Highlands people.
   
2. The parties have 3 young children between the ages of 9 and 3.
   
3. On the 9^th of July 2016 the parties family were suspicious of the first defendants adulterous affairs and they gathered at the complainants house and there the couples relatives warned the first defendant to remain faithful to her husband.
   
4. The first Defendant deserted her children and went to live with the second defendant on the 29^th of July 2016 and continues to do so to date.
   
5. The defendants did not appear in court to defend the complaint even though the summons was served on them and proof of service filed in court.
   
6. According to the complainants witness who is from Megino in Lufa he knows the defendants and gave evidence orally and via affidavit that the defendants are living in one house at Forapi, Lufa, Eastern Highlands Province as spouses and there is a presumption that the parties are having an adulterous affair.
   
7. The complainant also said in his affidavit evidence that he caught the Defendants red handed near the public toilet in Goroka town on the 27^th of September 2016 and he took the first defendant to the police station and locked her up and the second defendant escaped. The complainant is using layman’s language to describe the fact that the first
   

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defendant and second defendant were seen together at the public toilet and not engaging in sexual intercourse.

8. Anyway the fact that they were seen walking around in town especially near a public toilet confirms the complainants evidence and that of his witness that the defendants are living together as spouses.
   
9. The court is of the view that there is a presumption that the defendants are committing adultery due to the findings in item 4, 5, 6 and 7 herein-above and there is no need to enquire further.
   
10. Hence the court finds that the complaint has been proven on the balance of probabilities(see section 19 of AEA supra)
    
11. The complainant also gave evidence that due to the defendant’s adulterous affair, their children and himself were subjected to spiritual and psychological pain and were made to do all the household chores themselves
    
12. The complainant is a teacher and he has to do household duties apart from attending to his teaching duties.
    
13. The complainant also says from the bar table that there is a custom of his people that when a spouse has an adulterous affair and when it is found out she or he has to apologise to her children by killing a pig and giving it to them. The people refer to this custom or tradition as washing the children’ mouth because people believe that when a spouse is involved in adulterous affair he or she brings dirt into the house and passes it to the children so they have to be ritually cleaned and that is usually done by killing a pig, chicken or goat e.t.c and give it to the children and they will share it with their uncles and aunties with at least some cash this days for their soap this days..
    
14. I admit the custom referred to item 13 above pursuant to schedule 2.1 and the Customs Recognition Act(see quote above) and will use the same to make orders in the complainants favour below.
    
15. I also admit the custom as evidence because as a local I know that these custom and tradition exists in almost all parts of Eastern Highlands and Simbu provinces.

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16. The court also notes that the defendants have no respect for a court summons and why should the court issue warrant of Arrest for police to go looking for them at tax payers cost

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17. especially when there are so many outstanding bench warrants clogging up the court system and the police warrants and summons section and are yet to be executed by police.
    
18. Hence the court finds the Defendants guilty of Adultery and orders that the Defendants shall jointly and severally pay K1, 000.00 compensation to the complainant.
    
19. The court also makes a further finding under section 22 of the District Court Act that if the current status quo is maintained after this court for adultery then the complainant can bring another complaint for adultery until such time the parties customary marriage is formally dissolved according to the customary laws of the people of Eastern Highlands and Simbu Provinces and the First Defendant shall kill a pig and give it to her children as is required by custom of the Goroka and Simbu people. Furthermore Police will supervise the execution of this order.
    
20. Cost is a discretionary matter and the court is of the view that the defendants shall pay the complainants costs of bringing this matter to court, to be taxed if not agreed.
    
21. This court’s formal orders are:
    
    1. The First Defendant and Second Defendant shall pay K500.00 each as compensation to the complainant within 14 days of this order.
       
    2. The First Defendant shall kill a K1000.00 worth pig and give it the complainant’s childrenwithin14 days.
       
    3. The officer in charge of CID Goroka Police Station shall execute theorders 1 and 2 herein-above that isif the defendants fail to heed the orders of this court referred to herein-above and effect the same in the 14 days period given.
       

Counsels:
Lawyer for the Complainant, In person
Lawyer for the Defendant,In person