Roberth v Kukoiu [2017] PGDC 3; DC3051 (23 November 2017)

DC3051

PAPUA NEW GUINEA

[IN THE DISTRICT COURT OF JUSTICE

SITTING IN ITS CIVIL JURISDICTION]

DCCi. 121 of 2017.

BETWEEN:
LUCY ROBERTH

Complainant

AND

PEPENI KUKOIU

First Defendant

AND

DICKSON KUVI

Second Defendant

CORAM: Philip KAUMBA LLB (PNG)

2017: November 7^, 23

CIVIL:

Cases Cited:

Nil

Reference:

Nil
Counsels:

Lawyer for the Complainant,In person.

Lawyer for the First Defendant,In person.

Lawyer for the Second Defendant,In person.

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23^rd November, 2017

DECISION OF THE COURT

P KAUMBA, Magistrate:The complaint was filed in the District Court registry on the23^rdof August 2017 by the complainant alleging that the first defendant has committed adultery and is continuing to commit adultery with her husband, the second defendant, commencing in or about January 2017 and continues to do so to dateand brings this case for adultery pursuant to Sections 4 and 5 of the Adultery and Enticement Act.

2. The case came before me for mention on the 29^th of August 2017 and the Defendants did not appear and I adjourned the case to the 7^th of September 2017.

3. On the 7^th of September 2017 all parties appeared and defendants denied the claim and the case was adjourned to the 12^th of October 2017 for mention and directed the defendants to file their affidavits and that of their witnesses.

4. On the 12^th of October 2017 the second defendant did not appear in court while the others did so the case was adjourned to the 19^th of October 2017.

5. On the 19^th October 2017 the defendants did not appear in court so the case was set down for ex parte hearing on the 3^rd of November 2017.

6. On the 3^rd of November 2017 I noted that the complainant has not taken out the orders of the 19^th of November 2017 and serve on the defendant. Furthermore the complainant has not advised the defendants of the ex parte hearing so I directed inter alia that the complainant shall get a notice in writing from the clerk of court and serve on the defendants and adjourned the case to the 7^th of November 2017.

7. On the 7^th of November 2017 the complainant advised the court that she has given notice to the defendants and they are not in court so the case proceeded ex parte.

THE LAW ON ADULTERY.

ADULTERY AND ENTICEMENT ACT.

8. ACTION FOR ADULTERY.

(1) A person may bring whose spouse has committed an Act of Adultery may bring action under this Act against –

(a) thespouse; or

(b) theperson against whom the spouse has committed the act of
adultery; or
(c) thespouse or the person referred to in paragraph(b).

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

9. AMOUNT OF COMPENSATION FOR AN ACT OF ADULTERY.

(1) An order for compensation in an action brought in respect of one act of adultery shall be for an amount not exceeding K1000.00.

(2) Where separate actions are brought by the same person or on behalf of thesame person in respect of the same act of adultery the total amount of compensation shall
not exceed K1000.00.

ACT OF ADULTERY.

10. An act of Adultery is committed where a spouse engages in voluntary sexual intercourse with a person other than his spouse.

STANDARD OF PROOF.

11. 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.

CUSTOMARY LAW.

12. Customary law on adultery of the Eastern Highlands people of PNG.Where a person has been unfaithful and he or she is found out then it is customary for him/her toapologise to the innocent spouse and pay compensation the innocent spouse and his/her relatives. If there are children of parties marriage then the guilty party will have to kill livestock most time it is usually killing a pig and give to the children and pay some money to the uncles and aunties of children and the innocent spouses relatives to apologise and ritually cleanse the children’s mouths.

CONSTITUTION.

13. Schedule 2.1 Recognition, etc, of custom.

(1) Subject to Subsections (2) and (3) custom is adopted, and shall be applied and enforced as part of the underlying law.

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(2) Subsection (1) does not apply in respect of any custom that is, and to a certain extent that it is inconsistent with a constitutional law or a statute, or repugnant to the general principles of humanity.

(1) An Act may-

(a) Provide for proof of custom and pleading of custom for any purpose; and
(b) Regulate the manner in which, or purposes for which custom may be recognized, applied or enforced; and
(c) Provide for resolution of conflicts of custom.

CUSTOMS RECOGNITION ACT.

2. Proof of Custom.

(1) Subject to this section, question of the existence and nature of custom in relation to a matter, and its application in or relevance to any particular circumstances, shall be ascertained as a matter of fact.

(2) In considering a question referred to in Subsection(1) a court:

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

(b) shall-

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

(ii) otherwise inform itself as it thinks proper’

3. Recognition of custom.

(1) Subject to this Act, custom shall be recognized and enforced by and may be pleaded in, all courts except as in a 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, it recognition or enforcement would not, in the opinion of the court, be in the best interest of the child.

5. Civil Cases.

Subject to this Act and any other law, custom may be taken into account in a case other than a criminal case only in relation to-

...(f) marriage, divorce or right to customary custody or guardianship of infants in a case arising out or in connection with marriage entered into in accordance with custom or...

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Where the court thinks that by not taking the custom into account injustice will or may be done to a person’.

1. FACTS.
   
   • (1) The Defendant’s denied the claim and the Court directed the parties to file their affidavits to support their respective positions within 14 days on the 7^th of September 2017.
   • (2) The complainant filed three(3) affidavits in support of her claim.
   • (3) She also filed four affidavits of her witnesses.
   • (4) The Defendants have filed their affidavits but no affidavits of witnesses.
   • (5) The Complainant and the second Defendant are married according to the customary marriage rites of the Seigu Goroka and Rongo people, Lufa, Eastern Highlands Province in 2010 after payment of K5000.00 bride price by the second defendant, his family and relatives and they have two young male children between the ages of 4 and 6.
   • (6) The Second Defendant and the complainant lived with their children at Lopi, Goroka, Eastern Highlands province in an institutional house provided by the second defendants employer Papua New Guinea Institute of Medical Research(PNGIMR).
   • (7) The Complainant was in Port Moresby in or about January 2017 to July 2017 and the second defendant took advantage of the same to bring the first defendant into the family home and had an adulterous affair with her and when the complainant returned to Goroka he moved out of the family home and is now living with the first defendant at Red Kona Goroka Eastern Highlands Province.
   • (8) The First Defendant is customary married to one AipedeKukoiu of Lufa Eastern Highlands Province and they have four(4) children. She has deserted his children and is now living with the second defendant at Red Kona Goroka Eastern Highlands Province.
   • (9) The First and Second defendants were taken to Oliguti Village Court for adultery by the First Defendants husband and the Village Court ordered the first defendant to pay K1000.00 plus one pig to her husband and his relatives. The Second defendant was ordered to pay K2000.00 plus a pig to the First Defendants husband and his relatives.
   • (10) The Second defendant paid K2300.00 to the First Defendants husband and relatives but the first defendant has yet to pay the compensation as ordered by the Oliguti Village CourtLufa Eastern Highlands Province.
   • (11) The Defendants say that they challenged the Oliguti Village Court decision in the District Court and the decision was quashed.
   • (12) The Defendants deny the complainants claim but have not appeared in court to put forward their defence.
   • (13) Since the case was instituted the second defendant has made overtures to the complainant saying that he will find money and pig to comply with requirements of custom and apologise to the complainant and her children but to date he has yet to do so.
   • (14) The complainant gave evidence on examination by the court that the people of Eastern Highlands Province have a custom where are spouse engages in adulterous affair and is found out then the guilty spouse will have to kill a livestock usually a pig in the highlands (and nowadays pay some money too) and say sorry or cleanse the children’s mouth. It is believed that when a spouse engages in adultery the spouse makes the family home unclean and gives unclean food to the children and the innocent spouse.
     
2. ISSUES
   
   • (1) Did the defendants commit adultery within the meaning of the Adultery and Enticement and are liable to pay compensation. If so then can the defendants be directed to pay compensation and also comply with custom of Eastern Highlands People to ritually cleanse the children affected by the adulterous affair?.
     
3. APPLICATION OF LAW TO FACTS AND ISSUES.
   
   • (1) The Defendant’s deny that they were committing adultery by saying they have not been caught red handed in act of having sex but the evidence from the complainant and her witnesses especially Benjamin Paul and Leta Robert show that the First and Second defendants are living together under one roof since they left their respective family homes and this raises the presumption that they are having an adulterous affair within the meaning of section 2 of AEA and the defendants failure to appear in court to rebut that presumption is not good for them.
   • (2) The decision of Oliguti Village Court ordering the defendants to pay compensation to the first Defendants husband also adds more weight to the presumption that the defendants are having an adulterous affair. The Defendants say the Village Court decision was quashed but the defendants have not produced evidence to confirm the same and I don’t believe this because District Court can only review Village Court decision and if found to be irregular or ultra vires then it can refer the case back to the Village Court for re-hearing. It is not an appeal court which can issue new orders. In any case the defendants assertions are not relevant because the issue here is whether the second and first defendants are and have committed adultery and are liable to pay compensation to the complainant and not whether first defendant and second defendant have committed adultery and they are liable to compensation to Mr AipedeKukoiu the legal husband of the first defendant.
   • (3) The Second Defendant’s payment of K2300.00 compensation to the first Defendants husband in compliance with order the aforesaid Village Court also adds weight to the presumption that the defendants are having an adulterous affair.
   • (4) The Second Defendants overtures to the complainant that he will apologise to the complainant and her children as required by custom of the parties adds more weight to the presumption of adultery and furthermore it shows that the Second Defendant is indirectly admitting that he is doing something wrong and he needs to make good the damage.
   • (5) The second defendant being seen to be together on the same bus with the first Defendants child by the complainants witnesses Leta Robert adds weight to the presumption that the defendants are having an adulterous affair.
   • (6) The Second defendant and first defendant being seen to be living in the same building by Benjamin Paul adds more weight to the presumption that they are having an adulterous affair.
   • (7) The court finds that there is more than sufficient evidence to show that there was and is consensus and voluntary act of adultery between the first Defendant and the second defendantand each defendant did it knowing that the second defendant is married to the complainant and the complainant has made out her case against the defendants on the balance of probabilities and the defendants are liable to compensate her and also ritually cleanseher children’s mouths as required by custom because the defendants used the family home at Lopi to advance their adulterous affair between January and July 2017 thereby making the family home ritually unclean and giving dirty or ritually unclean food to the children.
   • (8) For an act of adultery the court can order compensation up to K1000.00 in accordance with section 12 of the A.E.A and the court can apportion the compensation between the first defendant and the second defendant.
   • (9) The First Defendant is involved in mini finance business and the second defendant is employed by Institute of Medical Research and can afford to pay compensation to the complainant and perform other activities required by custom.
   • (10) I am of the view that the first Defendant should pay K500.00 compensation to the complainant and furthermore he shall kill a K1000.00 worth pig and give it to the complainant and her family to ritually cleanse the mouths of the complainant’s children as required by custom of the parties. The First Defendant shall pay K500.00 compensation to the complainant.
   • (11) Some people might argue that the Defendants are not required to pay more than it is provided for in section 12 of AEA but I am of the view that Section 12 AEA did not take into account the custom of the parties which is part of the underlying law of Papua New Guineaas adopted by the Constitution so this court can order the defendants to perform activities required by custom to cleanse the mouths of the parties children and the complainant and her family. Furthermore the performance of the mouth cleansing exercise is a good mode through which the guilty spouse can apologise to the innocent spouse, her children and their relatives and can be allowed to resume parental duties by the innocent party(s) relatives and the clan or community as a whole. In this case the second defendant has made overtures to the complainant that he will make good his mistake and return to the complainant’s village and if that is effected then that will be good for their young family especially the two young boys who need their father(second defendant) to grow up properly and be good citizens of Papua New Guinea. Lastly the complainants has not claimed an order for the defendants to kill a pig as required by custom to ritually cleanse the children’s mouth specifically in her complaint but this court can make an order as required by custom and under order 2 ‘Any other orders the court deems proper’ as claimed by the complainant in her complaint and summons and under sections 21(Equity jurisdiction) and 22 of the District Court Act.
     
4. ANSWER TO ISSUES BEFORE COURT.
   

Yes the first Defendant and second defendant are liable to pay compensation for adultery as required by law. Furthermore custom of the parties require that they (especially the second defendant) should kill a pig and give it to complainant and his children to ritually cleanse the complainant’s children’s mouths and appologse to them with the view to restore the trust of his family and his peers and the community at large.

5. ORDER.
   

The courts formal orders are:

1. The First Defendant shall pay K500.00 compensation to the complainant within 14 days of this order. In Default Warrant of Execution to be issued
2. The Second Defendant shall pay K500.00 compensation to the Complainant within 14 days of this order. In default warrant of execution to be issued.
3. The Second Defendant shall (in addition to complying with order No 1above)kill a pig worth K1000.00 and give it to the complainant’s children and their relatives as required by custom of the parties to ritually cleanse the complainant’s children’s mouths in the presence of the complainants family and relatives within 30 days of this order. In default the Second Defendants salary in the hands of his employer Institute of Medical Research shall be deducted fortnightlyin the sum of K200.00 and paid to the complainants father Robert Keoby the said Institute of Medical Research to enable the said Robert Keo to buy a pig and kill it and give it to the complainant, her children and their relatives.
4. The First and second Defendants shall pay the complainants legal costs to be taxed if not agreed.

Lawyer:

Complainant : Nil

First Defendant : Nil

Second Defendant: Nil