Kusembi v Gabi [2018] PGDC 31; DC4008 (19 June 2018)

DC4008

IN THE DISTRICT COURT OF JUSTICE AT GOROKA, PAPUA NEW GUINEA.

COMP NO 64 of 2018.

BETWEEN :

Rebecca KUSEMBI.
Complainant.

AND

Theresia Gabi.
First Defendant.

AND,

Kevin Bayamo.
Second Defendant.

Counsels;
Complainant : In person.
First Defendant : In Person. Coram: Philip KAUMBALLB(PNG).
Second Defendant: In person. 2018 June 7^th& 19.

DECISION.

BY THE COURT: The complainant filed her complaint on the 19^th of March 2018 alleging that she is the Second defendants wife and the second defendant has committed and is continuously committing adultery with the first defendant knowing very well that he is still married to the complainant. 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) Exemplary damages
(c) Costs of these proceedings
(d) And any other orders as the honourable court deems proper.

RELEVANT LAW.

1. ADULTERY AND ENTICEMENT ACT(A.E.A).

1 INTEPRETATION.

...’Spouse’ includes a party to a relationship between a man and a women 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(2^nd of August 1999) Meaning of spouse.

Elma John & Luke Mane-vs-John Nake Unreported National Court Decision 14^th 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. Deputy Chief Justice Kapi(late) apportioned the compensation and ordered that first appellant pay K400.00 and second appellant pay K600.00 to the complainant respondent.

ISSUES.

2. The issues before court are:

(1) Is the complainant married to the second defendant?
(2) If not then does she have right under law to issue proceedings and claim compensation for adultery?
(3) Was the firstdefendant aware that the second defendant is married to the complainant prior to entering into a sexual relationship with the second defendant?
(4) Has the complainant proven her claim on the balance of probabilities as against the:

• (a) first defendant and
• (b) the second defendant?.

BRIEF FACTS.

3. The brief facts of the case are as follows
   • (1) The complainant and the second defendant lived together as man and wife since 1993without performing a marriage ceremony as required by custom and they have four(4)children.
   • (2) The second Defendant and complainant have lived in at Wewak ESP and Madang, MP and now they are living in Goroka EHP.
   • (3) The complainant lives at Gahuku and defendants live at Bihute Correctional service where the second defendant works.
   • (4) The Second defendant has had an affair with a women from Nobnob Madang Province and has three(3) children.
   • (5) In 2017 the second defendant brought the women and her children referred to in paragraph 4 above to Bihute Correctional Services and the complainant reported him to the Correctional Services Commander and the commander directed the second defendant to take her out because she was not his legal wife and he let his defacto wife and children go away.
   • (6) As a result the Second Defendant got angry with the complainant and threatened to kill her.
   • (7) Now the second defendant brought the first defendant into the family home and she is living with him.

FINDINGS ONFACTS, LAW AND ISSUES.

4. Courts findings are:

(1) The complainant and the seconddefendant are not really married according to custom because no bride price payment was made.
(2) However the parties relationship has been accepted by their relatives and they have lived together since 1993 and they have(4) children and the relationship can be termed as a status marriage within the meaning of section 1 of the Adultery and Enticement Act. Hence giving the complainant legal standing to issue this legal proceedings.
(3) The first and second defendant are living together as man and wife now and the court can assume that there is a sexual relationship between the defendants.
(4) The first defendant knew that the second defendant is amarried man before going to his house and she has no defence.
(5) Furthermore the First Defendant should have asked the second defendant or his work mates or relatives and find out whether he has divorced his wife or not before making the decision to go to his house. Hence she has no defence to the complainants claim.
(6) The Second Defendant has no defence because he has failed to divorce his first wife before taking on the first defendant as his wife.
(7) The Second defendant says that the complainant left him and found it hard to look after the children so he took the first defendant to his house to look after the children but that in my view is not a good defence under the Adultery and Enticement Act.
(8) The Second defendant cannot raise this defence of consent by the complainant because he was responsible for threatening and chasing the complainant out his house and his hands are dirty.
(9) Hence the second defendants relationship with the first defendant is an adulterous affair within the meaning of section 2 of the Adultery and Enticement Act.
(10) The complainant has to prove her claim on the balance of probabilities(see section 19 AEA) and I am of the view that the complainant has discharged this onus of proof.
(11) Hence the defendants are liable to pay the complainant compensation to the complainant for their adulterous affair.
(12) In assessing the amount of compensation I take into account the fact that the second defendant has had an adulterous affair previously in Madang and has failed to properly divorce his first wifebefore taking on the first defendant as his sexual partner and this type of adulterous affair is an abomination in the eyes of God and it cannot be tolerated by this court.
(13) Under section 12 of the AEA(supra) the complainant is entitled to K1000.00 compensation and I apportion the same between the defendants as follows:

• (1) First Defendant K300.00.
• (2) Second DefendantK700.00.

(14).Orders accordingly.

ANSWER TO ISSUES.

5. Answer to issues before the court are:
1. No legal marriage under the Marriage Act or custom.
2. However the complainant and second defendant have lived together as man since 1993 and have four(4) children and their relationship is accepted by their relatives. Hencethe relationship can be termed as a status marriage within the meaning of section 1 of the AEA and she can sue the first and second defendant for compensation.
3. Yes.
4. (a) The complainant has proven her case against the first defendant on the balance of probabilities.

(b)The complainant hasalso proven her case against the second

defendant.

COSTS.

6. Decision on cost.

Cost’s is a discretionary matter for the judge. The second defendant has not been honest in his relationship with the complainant and he should pay the complainants legal costs.

ORDER.

7. The formal orders of the court are:

(1).The First Defendant shall pay K300.00 to the complainant within 21 days of this order.In default order to apprehend debtor be issuedpursuant to section 193 of the District Court Act.

(2). The Second Defendant shall pay K700.00 to the complainant within 21 days of this order. In default order to apprehend debtor be issued.

(3). The Second Defendant shall bear the complainants legal costs to be taxed if not agreed.

Lawyer:

Complainant : Nil.

First Defendant : Nil.

Second Defendant: Nil.