Kendino v Kendino [2020] PGDC 6; DC4042 (1 September 2020)

DC4042

PAPUA NEW GUINEA

IN THE FAMILY COURT OF JUSTICE

HOLDEN AT

PORT MORESBY DISTRICT COURT

In the Matter of Adultery & Enticement Act

Consolidated Proceeding of

FC# 164 of 2020

Between:

CHRISTINE KENDINO

Complainant

And:

GIDEON KENDINO

First Defendant

And:

REBECCA KUMASI

Second Defendant

Port Moresby District (Family) Court: His Worship Mr. E. Komia

01^st September 2020

COMPLAINT AND SUMMONS FOR ADULTERY – Assessment of Compensation – orders seeking to restrain parties from further communicating and seeing each other – powers of the District Courts Limited to jurisdiction provided by the enabling legislation – compensation awarded – orders seeking to restrain parties refused.

Case Laws

Emmanuel v. Iga [2003] PNGLR 20 (14 July 2013)

John Gawi and Diana Apas v. Mary Gawi (1997) N1584

Legislations

Adultery and Enticement Act 1988

District Courts Act

Counsel:

Complainant: in person

First Defendant: in person

Second Defendant: in person

JUDGEMENT

01^st September, 2020

1. INTRODUCTION
   

1. The complainant is the lawfully wedded wife of the first defendant. The complainant alleges that, on or around March 2020, she received a message which prompted her to confront the first (her husband) and ask him of the text messages between the first defendant, and the second defendant. The first defendant stated that the second defendant was his partner.
   
2. I now make my ruling on this case
   

2. FACTS.
   

3. The facts are uncontested as the admissions to the adultery establishes the omission of adultery.
   

100. ISSUE
     

4. What much should the principal defendant and the co-defendants pay respectively as compensation to the complainant for their adulterous affairs?
   

4. THE LAW AND CONSIDERATIONS OF FACTS
   

5. The District Courts being a court established under statute (District Courts Act), its powers are subject and limited to what the enabling legislation or Act expressly provides (see the case of Emmanuel v. Iga [2003] PNGLR 20 (14 July 2013). In such cases as this, the Court is to deal with the matter pursuant to the Adultery and Enticement Act 1988, and is to be guided by the legislative framework of Part III – Penalties, Compensation and Enforcement of Orders, covered within ss. 10 to 20 of the Act, with adherence to the Iga Case (supra).
   
6. An Act of Adultery is defined under s. 2. of the Adultery and Enticement Act as follows;

S.2 - ACT OF ADULTERY

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

7. A person aggrieved by the adulterous actions of another person, who at the time of the complaint is lawfully married to or is believed to be the spouse of the aggrieved party may bring an action in Court. Such avenues are provided under the Act, which can be dealt with and determined by the District Court, as provided for under s. 4 of the Act.

S. 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.

7. The Adultery and Enticement Act places limitations on both the time required to bring an action for adultery in Court and also the limitation on the amount of damages to be awarded to the complainant. Time limitations for bringing proceedings into Court is established under s.7 of the Act which stipulates a six-month period from the time of the adulterous activity.
   
8. S. 12 sets out the amount that the Court can order as compensation to be paid to the complainant, by the offending parties with considerations to be given to certain aspect before considering the damages such as the employment status of the defendants, the burden the defendants would have in paying the compensation and the time factor which has to be reasonably given to the defendants considering all the factors provided for under s.16 of the Act.
   
9. Furthermore, the adulterous affairs could have occurred on multiple occasions and not only once, but the charge of K1000.00 is the ceiling amount to be paid in compensation for such adulterous affairs as decided by the National Court in the case of John Gawi and Diana Apas v. Mary Gawi (1997) N1584.
   
10. Having due regard for all those requirements and prerequisites for the compensation, I now make an assessment of the compensation demand, the amount to be paid, and the form of how the compensation should be paid to the defendant by the defendants.
    
11. From my inquiry from the bench, I note the following.
    • - The First Defendant is a medical doctor by profession
    • - The defendant is a learned person and he has accepted responsibility of his actions.
    • - The Second Defendant is also a professional
    • - The Second Defendant has been very provocative in her text messgaes through sarcastic comments.
    • - The Second Defendant is a knowledgeable person.
12. Taking those factors into consideration, I must make a fair and just assessment so as to ensure justice is served, whilst having in mind the consideration that adultery is an act that is dismantling the very fabrics of Family in our Modern Contemporary Society. Gone are those days when Morality had been highly regarded and Chasity and Sanctity of the Act of Marriages were taken to be an important and coherent part of the society neatly woven in sacredness.
    
13. It is also important for me to say that, this is a case where the complaint is primarily based on the adultery aspect of the Adultery and Enticement Act 1988, and that, there is no case filed separately for enticement, and as such, this Court now only assumes jurisdiction in dealing strictly with the Adultery complaint, hence; s.14 of the Act shall not apply for the purposes of assessing the damages. So I will not make orders in respect of enticement claims, as there is nothing before me claiming for compensation on enticement.
    
14. I also understand that, the summons and complaints filed, and from submissions made by the complainant, she also seeks an order to permanently restrain the defendants from seeing each other, texting each other or communicating with each other through any forms of communication, including social media such as Facebook, WhatsApp, Imo and other social media applications via phone. This specific remedy has this Court questioning itself, whether the Court has jurisdiction in dealing with such remedy sought for in the Complaint and Summons.
    
15. The District Court being a creature of Statute is bound by the jurisdiction provided by the enabling legislation. In a case of adultery such as this, the Court is to ascertain whether the Adultery and Enticement Act 1988, allows for such remedies to be awarded to the complainant. I seek the assistance of the case of Emmanuel v. Iga (supra), and note that, the Court has no powers to deal with such remedies. Even upon a closer examination of the Act, this Court notes that, there are no provisions that allow the District Courts, and for this matter, this Court to make such orders. If this court proceeds to make orders to restrain parties from further communicating or seeing each other, it would be acting ultra vires, and it would be an abuse of Power.
    
16. This Court also notes that, if it makes orders of such nature to restrain parties from seeing each other and or communicating, it would also be making orders which would be repugnant to the general principles of the District Court Act and the Adultery and Enticement Act.
    
17. And so, the application seeking to restrain parties from either seeing each other or communicating with each other via phone and other social media applications such as Facebook, WhatsApp, Imo, and other applications is refused.
    
18. In considering all the factors before me and finding that the defendant was involved in an act of adultery, This Court will make the following assessment:
    
    1. The first defendant shall pay K500 to the complainant, as compensation for the first act of adultery with Rebecca Kumasi.
       
    2. The Second Defendant Rebecca Kumasi shall pay K500 to the complainant as compensation for the first act of adultery with the complainants lawfully wedded husband, Gideon Kendino
    3. Costs of the proceedings follow the event, and given the behaviour of the parties and the manner in which parties have displayed before this Court, I am minded to award costs at K200 to the complainant and order for the cost shall be made specifically against the second defendant, for the misdemeanour she showed toward the complainant and sending provocative texts giving rise to this proceeding.

THEREFORE, THE COURT HEREBY ORDERS THAT:

1. The first defendant shall pay K500 to the complainant, as compensation for the first act of adultery with Rebecca Kumasi, and such compensation shall be paid within seven (7) days from the date of this Order.
   
2. The Second Defendant Rebecca Kumasi shall pay K500 to the complainant as compensation for the first act of adultery with the complainants lawfully wedded husband, Gideon Kendino, and such payment shall be made within seven (7) days from the date of this Order.
   
3. Cost of the consolidated proceeding shall be at K200.00 which shall be paid to the complainant by the second defendant within seven (7) days from the date of this Order.
   
4. The order seeking to restrain parties from either seeing each other or communicating with each other via phone and other social media applications such as Facebook, WhatsApp, Imo, and other applications is refused.
5. Time for the entry of these Orders is abridged from the date of the orders to the signing of this Orders by the Clerk of Court of the Port Moresby Family Court, which shall occur forthwith.

Complainant: in person

First Defendant: in person

Second Defendant: no appearance