Benjamin v Yoba [2019] PGDC 16; DC4035 (3 September 2019)

DC4035 IN THE DISTRICT COURT OF JUSTICE AT GOROKA, PAPUA NEW GUINEA.

COMP NO 79 of 2019.

BETWEEN :

Merlyn Benjamin
Complainant.

AND

Ben Yoba
First Defendant.

AND,

Lin Gamcy
Second Defendant.

Counsels;
Complainant : In person.
Defendant : N/A. Coram: Philip Kaumba LLB(PNG).
Second Defendant: N/A. 2019 August 20^th, 27^th & September 3^rd.

DECISION.

INTRODUCTION: The complainant filed her complaint on the 11^th of July 2019 alleging that she is the wife of the first defendant and the second defendant and first defendant have committed adultery and are continuously committing adultery at Five(5) mile Port Moresby National Capital District. Thereby contravening section 4(1)(c ) of the Adultery and Enticement Act(herein-after the Act). The Complainant sues both defendants and claims compensation pursuant to section 12 of the Act and seeks orders as follows:

(a) The defendants each pay K1000.00 compensation to the complainant plus costs,
(b) Any other further orders the court may deem proper.

2. RELEVANT LAW.

ADULTERY AND ENTICEMENT ACT(ACT).

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 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.

3. ISSUES.

(1) Is the complainant married to the first Defendant?
(2) Has the complainant proven her claim on the balance of probabilities as against the:

• (a) first defendant and
• (b) The second defendant.

4. BRIEF FACTS.

(1).The complainant and the first defendant were married according to custom in 2006 and they have five(5) children -two biological and three(3) adopted from the first defendants first marriage.

(2). In 2017 the first defendant was transferred to Port Moresby to teach at Port Moresby technical college.

(3). Whilst in Port Moresby the first defendant has committed adultery and is continuing to committing adultery with the second defendant so the complainant is suing the both for adultery and claim compensation.

(4) The adulterous commenced in Goroka and the defendant’s moved to Port Moresby later.

5. FINDINGS ON FACTS, ISSUES AND APPLICATION OF LAW.

(1) The complainant and the second defendant were married according to custom in 2006 after the second defendants relatives paid K6,800.00 bride price and they two children.
(2) The complainant also looks after three(3) other children of the First Defendant from his first marriage.
(3) .The First Defendant committed adultery with the second defendant in March 2018 in Goroka.
(4) The first Defendant left Goroka on the 25^th of March 2018 and the second defendant went to Port Moresby on the 29^th of May 2018.
(5) .The complainant heard that the First Defendant was having adulterous affair with the second defendant so she went to Port Moresby to confirm the same.
(6) Whilst in Port Moresby the complainant established that in fact the first defendant was having affair with the second defendant but the first defendant promised the complainant that it was a one off affair and he will not marry the second defendant and gave K550.00 to the complainant and she returned to Goroka.
(7) . Shortly thereafter the first defendant followed the complainant to Goroka and gave K550.00 to the complainant’s relatives and undertook not to commit adultery again.
(8) On the 7^th of June 2019 the first defendant rang the complainant and told her that he has committed adultery with the second defendant and the second defendant’s relatives have forced him to marry her.
(9) On the 29^th of June 2019 the second defendant’s relatives claimed K50, 000. 00 bride price for their daughter from the first defendant.
(10) The first Defendant is now renting a house for the first defendant and are living together as a husband and wife.
(11) The complainant filed two affidavits in court and relied on those affidavits and tendered the same into court but did not call witnesses to support her claim so the court directed her to file witness affidavit within 7 days and she filed one on the 28^th of August 2019.
(12) The complainants statements are corroborated by supporting evidence of Mr Aiden Benjamin filed on the aforesaid date and thus the complainant has proven her claim.
(13) Furthermore the First Defendant and the Second Defendant have not turned up in court to defend the complainant’s claim which implies that they have no defence to the complainants claim. They can also write to the court and advise the court that they admit the claim so the complainant will not have to produce evidence to prove her claim. They did not take those options. Hence they have no respect for the court process and in our adversarial system of justice their silence is no good for their defence and their inaction can be detrimental to their defence.
(14) The court is of the view that marriage is a special contract that is it is a covenant between a man and wife sanctified by God and it should be taken seriously by those who enter into the same. They cannot just enter into marriage relationships and forget about the duties and responsibilities it entails. It is also against public policy and morality for individuals to enter into a marriage relationship with a partner and at the same time commit sexual relations outside of marriage which is wrong in law, dishonest and irresponsible on the part of the guilty party.

(15). Furthermore I am of the view that the people of this country through their constituent assembly on the 15^th of August 1975 adopted Christianity as the official religion of this country and it is against our Christian principles for a person to have sexual relationship outside of marriage and this court being a court of a Christian state cannot condone such behaviour.

(16). The complainant claimed K1000.00 from each defendant but the Act does not allow for the same(see section 12(1) AEA supra) so the court can only order the defendants to pay a maximum of K1000.00 which is peanuts to many people and people are paying the compensation and continue to engage in adulterous affairs and there is a need for National Parliament to look at this Act again and increase the compensation limit to about K5,000.00. Any way this court will have to apply the Law as it is so it is this courts order that the defendants shall each pay K500.00 to the complainant. Furthermore the court orders that the second defendant be restrained from having sexual affairs or any relationship that can be termed as marital relationship in the eyes of the reasonable members of the public with the first defendant until the first defendant’s marriage with the complainant is properly dissolved according to law or the complainant gives her consent to the second defendant becoming the second wife of the first defendant whichever occurs first pursuant to section 22 of the District Court Act.

6. ANSWER TO ISSUES.

1. Yes.
2. (a) Yes.

(b) Yes.

7. COSTS.

Cost’s is a discretionary matter for the judge.

8. ORDER.

The formal orders of the court are:

1. The First Defendant shall pay K500.00 as compensation to the complainant within 30 days of this order.
2. The Second Defendant shall pay K500.00 as compensation to the complainant within 30 days of this order.
3. The Second defendant is hereby restrained from engaging in adulterous affairs and/or having any relationship with the first defendant that can be termed as marital relationship in the eyes of reasonable members of the public until the first defendant’s marriage to the complainant is dissolved according to Law or the complainant gives her consent to the second defendant becoming a second wife of the first Defendant in accordance with customary law whichever occurs first and this order shall remain in force until it is set aside or rescinded by a court of competent jurisdiction.
4. The complainant’s costs shall be paid by the defendants jointly and severally, to be taxed if not agreed.

Lawyer:
Complainant : In person.
First Defendant : N/A.
Second Defendant: N/A.