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Papua New Guinea District Court |
.
PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE
SITTING IN ITS CIVIL JURISDICTION]
DCCi 175 of 2017
BETWEEN
LIHANNA KAKITA
Complainant
AND
TONNY FOVA
First Defendant
AND
DIANNE SETH
Goroka: P Kaumba
2017: October 31
December 14
CIVIL:
Cases Cited:
References:
Nil
Counsels:
Lawyer for the Complainant, In Person
Lawyer for the First Defendant, In Person
Lawyer for the Second Defendant, In Person
14th December, 2017
DECISION
P KAUMBA, Magistrate:The complainant filed her complaint on the 8th of August 2017 alleging that she was the first defendant’s wife and the second defendant has committed and is continuously committing adultery with the first defendant knowing very well that first defendant is married to the complainant. And thedefendants adulterous affair resulted in the second defendantgiving birth to a son. Thereby contravening section 4(1)(c ) of the Adultery and Enticement Act. The Complainant sues both defendants and claim compensation pursuant to section 12 of the Act and seeks orders as follows:
(a) Both defendants pay K500.00 compensation each
(b) Costs of these proceedings
(c) Other orders as the court deems meet.
LAW.
DISTRICT COURT ACT
22 General Ancillary jurisdiction
Subject to this Act, a court as regards a cause of action for the time being within its jurisdiction, shall in proceedings before it-
(a) Grant such relief, redress or remedy or combination of remedies whether absolute or conditional; and
(b) Give the same effect to every ground of defence or counterclaim whether equitable or legal,
as ought to be given in a similar case by the National Court and in full and ample a manner.
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) it’s recognition or enforcement would result, in the opinion of the court, do injustice or would not be in the public interest; or
(b) in a case affecting the welfare of a child under 16 years, is 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 maybe taken into account in a case other than a criminal case only in relation to-
...(f) marriage, divorce or rights to customary custody or guardianship of infants in a case arising out of or in connection with marriage entered into in accordance with custom or
(g) transaction requires that-
(i) the parties intended should be,or
(ii) justice requires should be regulated by custom and not by law or
(h) the reasonableness or otherwise of an act,default or omission by a person ...
Or otherwise the courts thinks that by not taking custom into account injustice will or may be done to a person’.
ADULTERY AND ENTICEMENT ACT(A.E.A).
1 INTEPRETATION.
...’Spouse’ includes a party to a relationship between a man and a woman which can reasonably be considered as a subsisting relationship having a status of marriage.
4. ACTION FOR ADULTERY
(1) A person whose spouse has committed an act of adultery may bring an action for adultery under this Act against-
(a) the spouse; or
(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. DEFENCES.
(1) A defendant to an action under this Act, may, without prejudice to any other defences which he may raise any or all of the following defences:-
- (a) That the person entitled to bring the action has, prior to the commission of the act of adultery or enticement, consented to the act of adultery or enticement as the case may be;
- (b) That the person entitled to bring the action has, after learning of the act of adultery or enticement, forgiven the defendant;
- (c) That the defendant believed on reasonable grounds that the spouse with whom the act of adultery or enticement was not married.
(2) Where, on evidence, a defence is established under subsection(1) the court shall dismiss the action.
12 AMOUNT FOR COMPENSATION FOR AN ACT OF ADULTERY.
(1) An order for compensation in an action brought in respect of an adultery shall be for an amount not exceeding 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 exceedK1000.00.
19 STANDARD OF PROOF.
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.
CASE LAW.
Copland Oa and Anor –vs- Nelson Korua(1999) PGNc N187(2nd of August 1999) Meaning of spouse.
Elma John & Luke Mane-vs-John Nake Unreported National Court Decision 14th of May 1999.
Judgement by Justice Injia(as he then was). His Honour identified customary marriage, registered marriage and status marriage as the three relevant marriages in dealing with adultery cases and further stated that it is easy to proof registered marriage and customary marriage but it is harder to prove status marriage and in finding whether there is a status marriage in a relationship. His Honour said;
As to what are relevant to be considered in deciding whether a relationship is one enjoying the status of a marriage are many and of course depend on the circumstances of each case. Some of the notable common factors including place and period of cohabitation, the children born to the couple in this period; the acceptance of union of the couple throughout the period of cohabitation, where customs of certain societies require bride price payments as a prerequisite to a valid marriage, the demand for payment of bride price by the women and her relatives in this period, the reciprocal exchange of gifts and undertaking of economic obligations between the couple and their relatives in recognition of or in furtherance of their relationship and the regard had of the relationship of the couple by members of the community the couple live in and the people they relate to.
The test is an objective one. The court should ask itself having regard to the aggregate of all the relevant factors, is the relationship between the man and the women, one that ordinary people in the community they live in or where they come from and relevant people they relate to,one that is accepted or regarded as one of a husband and wife relationship; that is one of marriage’.
Betty Hosea –vs- Michael Maya &Another(1989) PNGLR 382.
Held: In actions of adultery under the Adultery & Enticement Act 1988 are brought either separately or jointly the total amount against one or all defendants is K1000.00.Dep Chief Justice Kapi apportioned the compensation and ordered that first appellant pay K300.00 and second appellant pay K600.00 to the complainant respondent.
ISSUES.
(1) Is the complainant is married to the first Defendant?
(2) If not then does she have right under law to issue proceedings and claim compensation for adultery?
(3) Was the second defendant aware that the first defendant is married to the complainant prior to entering into a sexual relationship with the first defendant?
(4) Has the complainant proven her claim on the balance of probabilities as
against the:
(a) first defendant and
(b) The second defendant.
SUBMISSION BY PARTIES.
The complainant has made her submission but not to the point. The defendants have not made any submissions.
ANALYSIS OF FACTS AND FINDINGS.
(1) The complainant and the first defendant entered into a sexual relationship commencing on or about 3rd of January 2011 and lived together until on or around 8th of April 2017 when the First Defendant gave K4000.00 to the complainant for her to do marketing and sustain herself in Port Moresby and not to follow the First Defendant to Lufa where he is going to campaign for the Lufa Open Seat in the 2017 National Elections.
(2) On the above-mentioned date the complainant moved into the first defendant’slife at Bomana Port Moresby where helived and they lived together there.
(3) Later they moved to Morata in Port MoresbyNCD where the complainant rented a place and the first defendant helped her to pay for the rentals.
(4) During the period of their cohabitation the complainant says that she was pregnant three(3) times andshe was advised to undergo abortion and she did aborted the pregnancy through the help of her doctors and the first defendant assisted by paying at least a quarter of the cost of abortion and treatment. The rest of medical cost came from the complainant and her employer.
The complainant has not produced any medical evidence to this court and her explanation is that when her landlord locked her out of her residence at Morata. She lost everything and that is corroborated by the First Defendant when he stated in his affidavit dated 14th of August 2017 that he lost his laptop, stereo, tv set and other valuables because the complainant took nothing out of the room when the Landlord locked the complainant out.
The First Defendant also corroborates the complainant’s evidence of pregnancy and abortion by saying in his affidavit dated 15th of August 2017 paragraph 7 that ‘the three instances of her pregnancy cases are questionable. They were unwanted pregnancy and I don’t want to father an unwanted child. I also did not want to father a child where I did not feel responsible for. In addition, the environment to raise a child was not convenient and conducive. My decision was for Rihanna Kakita to visit her doctor’.
(5) The first defendant gave K5000.00 to the complainant’s brother EronKakita as down payment for his Toyota Hilux and he complains now that he got nothing out of it because to date the complainant’s brother has yet to call him. He lost K9000.00 due to his relationship with the complainant and he says he should be left alone to recoup his loses.
(6) The complainant followed the first defendant to Goroka in May 2017 and found out that the first defendant has a wife in Goroka in the form of the second defendant and issued these proceedings.
(7) The parties and their witnesses gave evidence that they have a custom to legalise a sexual relationshipwith payment of bride price, sharing of food and exchange of gifts etc but the complainants family said they were waiting for the first defendant to call them when he is ready to make payment whereas the first defendant says the complainants family were supposed to follow up on their girl and ask for bride price payment. Custom is not usually enforced as a legal obligation. It is usually left to the person responsible to make the call and I agree that it is the duty of the first defendant to make the call. The nature of first defendant work was demanding and he moves in and out of Port Moresby so often and the complainant’s relatives waited for him to get settled and they will come and see them and formalise their relationship. The complainant is not a young virgin. She was a problem mother when the first defendant took her as a sexual partner and usually in our community such couples are left alone to decide on formalising their own marriage. The family are more concerned about virgins than problem mothers. Hence it is incumbent upon the first defendant and the complainant to formalise their marriage and they failed to do so. The First Defendant as head of the house and in a stronger social, physical and economic position was expected to take the lead but he failed to lead because he wanted the convenience relationship to continue or take its own course and end whenever it suits the couple.
(8) The defendant promised to pay bride price in early 2017 in the complainant’s affidavit and corroborated by her witness but the Complainant said he cannot recall making a promise in his oral testimony in response to a question from the second defendant.
(9) The second defendant entered into a sexual relationship with the first defendant in 2015 and at that time she knew that the first defendant was married to Bessie Tom Fova and DalcyFovaonly and never knew the existence of the complainant as the first defendant’s wife. In her cross examination and oral testimony she maintained that she never knew the existence of the complainant and was surprised to be sued by the complainant as a second defendant when she got the summons. The first Defendant and his relatives never told her about the existence of the complainant and she thought she was not committing adultery when she entered into her relationship with Mr Fova and I find her being truthful and honest in this case that is apartfrom her dishonesty and greed in trying to take the first defendant away from his legal wife knowingly.
(10) I also find that the first defendant and the second defendant have not denied any sexual relationship and that is further confirmed by birth of their son but the second defendant has a valid defence under section 9(1)(c) of the AEA, in that she believed on reasonable grounds that the first defendant was not married to the complainant. Hence the second defendant is not liable to pay compensation to the complainant.
(11) To find whether the complainant and the first defendant relationship is one defined as a marriage within the meaning of section 1 of the AEA and case law referred to herein-above, the test to be applied is an objective one that is it does not depend on the opinion of the parties or the feelings of parties. It is what a reasonable person will conclude from the facts and/or conduct of the parties and the following facts are relevant:
- (a) The complainant and the first defendant(hereinafter referred to as the couple) lived together as man and wife from 3rd of January 2011 to 8th of April 2017 which is about a total of 6 years 2 months and 8 days.
- (b) The couple lived together at Bomana Port Moresby NCD where the first defendant lived for some time and moved toMorata Port Moresby Papua New Guinea where the complainant rented a place and lived there until the landlord evicted her for non payment of rentals.
- (c) Duringthe period referred to above the complainant had three(3) aborted pregnancies and the first defendant assisted in those abortions. The Complainant has no medical reports to show for the alleged abortions because they were lost when her landlord locked her out of the house the complainant and first defendant were living inand I believe her because the first defendant corroborated her evidence(see para 11(f) below). Furthermore the doctor who did the abortion may not give her a medical report because abortion is illegal in PNG.
- (d) The complainant gave K4000.00 to the complainant to do marketing and look after herself in Port Moresby while he comes to Goroka and goes onto Lufa to campaign in the 2017 National Elections.
- (e) The complainant gave K5000.00 to the complainant’s brother EronKakitaas down payment for his Toyota Hilux and never got the money back which is questionable.
- (f) The complainant left his laptop, stereo, TV setand other valuable items in the complainant’s custody and lost them when the complainants landlord locked her out of the house she was living in at Morata,Port Moresby, NCD. If the relationship between the complainant and first Defendant,was a relationship of convenience only as the Defendant says then why leave such valuable items with the complainant in the first place.
- (g) In the custom of the highlands province it is the boy’s relatives who organise bride price and look for a bride and get it for their boy but in situations where a girl finds a boy and goes to live with the boy the girls relatives can go and see the boys relatives and make a demand for bride price. In relation to problem mothers who want to get married for the second or third time relatives usually don’t bother to demand bride price and they just leave it to the husband and wife to make the call.
- (h) The complainant in this case was already with the first defendant and this may be the complainant’s second attempt to get married and the couple weresupposed to make the call for the relatives of both sides to come together and formalise their sexual relationship with payment of bride price etc. as required by custom but they failed to do so. The fact that the couple live in Port Moresby and the couple are employed and are usually busy adds weight to the complainant’s adopted father’s oral evidence that the complainant’s relatives told him that the first defendant was always travelling out in and out of Port Moresby on duty travel and when he settles down they will talk about bride price etc. That factwas confirmed by the First defendantsaffidavit evidence that he was always required to travel out to the provinces and most of the time and the complainant was left alone in Port Moresby and he felt the three pregnancies were questionable and that he may not be responsible for the same and he suggested that complainant see her doctor.
In a village setting the people are not busy and they have time and the resources in terms of material things like garden food etc.to go to the first defendant and complainants place nasindaunimtupela(formally settle the couple down as man and wife) as required by custom of the highlands people and demand bride price payment etc. but in a city setting where life is expensive and demanding that may not be applicable.
The First Defendant is a leader in the PNG public service and Eastern Highlands Province and it seems the complainants relatives did not want to demand bride price out of respect for him, hoping that he will come good soon but that never eventuated. Hence I find that a reasonable person will conclude that the complainant and first defendant have a relationship that can be termed as status marriage within the meaning of section 1 of the AEA and case law referred to hereinabove.
(12) Hence I find that the complainant has proved her claim against the first defendant on the balance of probabilities and the first defendant is liable to pay compensation to the complainant.
(13) The Adultery and Enticement Act sets a celling for payment of compensation at K1000.00 under section 12 and I intend to apportion the compensation 70% to first Defendant and 30% to the Second defendant following on the precedent set by the Supreme Court in the case of Betty Hosea and Michael Maya and 1 or (supra)and order compensation accordingly.
(14) I also find that I have power under section 22 of the District Court Act, equity and public policy to make such other orders that are necessary in the circumstances to do justice to the parties and I intend do so.
(15) I further note that a marriage is a special contract between a man and wife and it should be taken seriously and individuals cannot just enter into relationships of convenience and forget about the duties and responsibilities that it entails. It is against public policy and morality for individuals to enter into long term relationships and not being responsible for the result or consequence of his/her action’s like taking care of the children born of the relationship. Thus putting a stress on public finance, relatives and the kind hearted people of the community where they live in. Furthermore I find that the first defendant as a leader has not being honest and fair in his dealings with the complainant and he just took advantage of her situation to advance his own personal interest.
ANSWER TO ISSUES.
(b)The complainant has not proven her case against the second defendant.
COSTS
Cost’s is a discretionary matter for the judge. I find that the first defendant caused this problem to arise and should be responsible for the costs.
ORDER
The formal orders of the court are:
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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