Singol v Palme [2020] PGDC 9; DC4043 (28 September 2020)

DC4043

IN THE FAMILY COURT OF JUSTICE

HOLDEN AT

PORT MORESBY DISTRICT COURT

In the Matter of Adultery & Enticement Act

Consolidated Proceeding of

FC# 174 of 2020, FC# 175 of 2020, FC# 180 of 2020 and, FC# 181 of 2020

Between:

FLORA SINGOL

Complainant

And:

KERRY PALME

First Defendant

And:

CYNTHIA TAGOBE

Second Defendant

And:

TABITHA KULAIP

Third Defendant

And

SALLY PROCTOR

Fourth Defendant

And:

ERNI KOMA

Fifth Defendant

PORT MORESBY DISTRICT (FAMILY) COURT:

His Worship Mr. E. Komia

28^th September 2020

Complaint & Summons for Compensation of Adultery against husband - four separate women in the affairs, four summons and complaint – compensation amount – assessment of compensation – four different women, resulting in four different summons – relationship with one spouse and four other women does not make it one, but four adulterous acts – court has power to award compensation for the four adulterous acts.

Papua New Guinea cases cited

Zeming v. Justice Hinchcliffe [2006] PGNC 30; N2998 February 2006

Yange Lagan v. The State [1995] N1369 ,

Jonathan Mangobe Paraiya v The State [1995] N1343,

Itao v. Kamara [2011] PGNC 35, N4226 (18^th March 2011),

Niugini Civil & Petroleum Ltd v. West New Britain Development Corporation Ltd [2008] PGNC 18; N3292

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

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

Bonggere v. Papua New Guinea Law Society [2003] PNGLR 7 (21 March 2003)

Legislations

Adultery and Enticement Act 1988

District Courts Act

Counsels for the Complainant: in person

Counsels for the First Defendant: in person

Counsels for the Second Defendant: in person

Counsels for the Third Defendant: no appearances

Counsels for the Fourth Defendant: no appearances

Counsels for the Fifth Defendant: no appearance

29^th September 2020

1. INTRODUCTION
   

1. The two matters FC# 174 of 2020 – Flora Singol v. Kerry Palme and Cynthia Tagobe, and FC# 175 of 2020 – Flora Singol v. Kerry Palme and Tabitha Kolaip came before this Court for their respective first mentions on 01^st September 2020, and upon the Courts own inquiry into the complaints, the first defendant admitted to all the claims of adultery made against him, and so the Court made orders for the two matters to be consolidated and for the decision to be made on Friday 04^th, September 2020, which was further adjourned to 08^th of September 2020. Soon after that, the Court was advised by the Court Clerk, and also from the record of matters listed before it, that two other proceedings were also filed for another two separate adulterous relationships with the same first defendant, and two other ladies, namely Sally Proctor and Erni Koma.
   
2. The matter was adjourned to 14^th September 2020 at 1:30 pm for the hearing of the matters for the Court to ascertain whether the first defendant would also admit or deny the allegations contained in the summons and complaints of FC# 180 of 2020, and FC# 181 of 2020. When the matter returned, it was only the complainant that appeared in Court, and all four defendants did not make any appearance. The court then enquired with the complainant on whether the defendants were advised of the return date of all this matters. The Court was advised that, all four defendants were advised of the return date and the third defendant, advised the complainant that she would not come, whilst the first defendant advised the complainant that he would not attend the Court and that the complainants conduct in taking him to court for the adulterous activities has brought him shame and disrepute and he was not happy with her, and has since then left their matrimonial home.
   
3. The Court then made a self-executing order on 14^th September 2020, that if the defendants fail to appear in court, the matter would be heard ex parte. One important consideration is the backlog of cases at the Port Moresby District Courts, and I am sure in all other District Courts, and if I may say, National Courts as well in the Country, and the need to expedite the hearing, to ensure that the matters are quickly disposed of in a timely and cost efficient manner for all parties in Court. It is also a contemptuous act, when parties deliberately decide to avoid the court hearing dates and continue on with their life, as if nothing is happening when the court has made orders for the parties to appear. For those reasons, I will proceed to give my ruling ex parte.
   
4. These matters are complaints made against the first defendant, who is the lawfully wedded husband of the complainant and four different women, whom were alleged to have committed separate acts of infidelity with the first defendant. The four proceedings are heard together as consolidated matters, but the orders will be made on a case by case basis, after this court makes its finding.
   
5. I now make my ruling on this case.
   

2. FACTS.
   

6. The facts of the matters are as follows:
   1. The complainant and principal defendant Kerry Palme were married on 20^th December 2015, and out of their wedlock, they have three children.
      
   2. The adulterous activities of the principal defendant had started back in 2015 and continuous to live in such lifestyle, as stated in the complainant’s affidavit. Since there is no challenge made to the accusation by the first defendant, this Court takes it to be an established fact.
      
   100. On or around March 2020, the Plaintiff/ Complainant saw some text messages on the First Defendant’s phone, along with some photos, which made the complainant to draw some suspicion around the purposes of those messages and photos.
        
   4. The photos and text messages contained in the first defendant were directly involving the two defendants in FC No. 180 of 2020 and 181 of 2020. There were also instances were she had confronted the co defendants and advised them of her relationship with the first defendant and for the co defendants to stop entertaining the first defendant.
      
   5. On 12^th of July 2020, the Second Defendant in FC# 174/2020 and her family wanted to settle the matter in house, but the complainant never agreed to that settlement proposal and filed this case.
      
   6. The first defendant on some occasion was frustrated and often abused the complainant verbally and physically. This was as a result of the complainant trying to complain and find out about what the messages were about and also about what the nature of some of the incidents with the second and third defendant were about. I understand the degree of provocation, such arguments attract, but that is not a fact for me to rely on, but I will make that comment in general.
      
   7. In the other matter FC 175/2020 – the First Defendant is also alleged to have been involved in another adulterous act and relationship with the Second Defendant CT. In her affidavit, the complainant mentions that the second defendant was warned on one occasion, and on another occasion when the defendants were continuously seeing themselves, the complainant had to approach the second defendant’s family to advise the second defendant, to stop seeing her husband.
      
   8. There is confirmation of the second defendant’s further involvement with the complainant which resulted in the Second Defendant being assaulted by her own family members in a frantic act to discourage the second defendant from seeing a married man. It was as a result of this, that the complaint for a claim against adultery was filed.
      
   9. The first defendant has also been alleged to have been further involved in two other adulterous affairs, making it a total of four women that he has been committing adultery with. The two proceedings are also consolidated together.
      
7. A summary of the facts especially with respect to FC# 174 of 2020 and 175 of 2020 between the first defendant and Cynthia Tagobe and Tabitha Kolaip in essence has been found to be true and undisputed fact, based on the admittance of the first defendant. The other two proceedings FC# 180 of 2020, and 181 of 2020 between the first defendant, and Sally Proctor and Erni Koma were never admitted, nor denied by the defendants, hence this court is to determine whether there was adulterous relationship between the defendants as well, and if the finding is to the affirmative, the Court will proceed with the assessment of the compensation and then, award compensation against the Defendant.
   

100. ISSUE
     

8. Whether there were adulterous relationships between the first defendant and the two other defendants in the two other proceeding FC# 180 of 2020, and FC# 181 of 2020?
   
9. Whether the adulterous affairs between the four women and the spouse amounts to an adulterous act thereby attracting the compensation of K1000 as a penalty against all the four defendants, or shall it award an order of K1000 against the defendants in each of the proceeding?
   

4. EVIDENCE
   

10. The first defendant in the two proceedings FC# 174 of 2020 and FC# 175 of 2020 admitted to the fact that he had adulterous relationships with the two co-defendants in these two proceedings.
    
11. Nevertheless, the other two proceedings FC# 180 of 2020 and 181 of 2020, the defendants have neither admitted nor denied the claim of adultery made against them. The only evidences put before this court for the two proceedings are the affidavits of the complainant deposed and filed on 11^th August 2020. The evidences are as follows:

FC# 180 of 2020 -

12.1 The complainant in her affidavit states that the defendant has been a very unfaithful husband. Her husband (first defendant) being a policeman was engaged by the Guard Dog Security Services to provide investigation services, and then was paid for those services he rendered. During the course of the engagement with the security company, he claimed that his vehicle was serviced by the security services, and also a car studio was bought for his vehicle.

12.2 On 11^th April, the complainant found some photos of the two defendants and some text messages relating to the serving of vehicles and installation of car studios, those costs were met by the co-defendant. The more scintillating and glaring evidence is the evidence of pregnancy scan photo found in the first defendant’s laptop, and all those evidences are annexed to the complainant’s affidavit.

12.3 The court on the face of the evidence finds it highly conclusive that the defendants did engage in an adulterous relationship.

FC# 181 of 2020

11.4 The complainant also states in her affidavit that the defendants phone contained some very dirty text messages between the two defendants, and as such, she had to attend to the defendant’s workplace and confront the co-defendant. The evidences establish that the co-defendant did admit to them having their adulterous affairs and it began in 2017, and continued on until they were caught by the complainant. There is no defense filed by the defendants, neither has any one of them filed affidavits challenging the complaint and summons.

11.5 On the balance of probabilities, and the depositions made by the complainant, without any challenge from any one of the defendants, this Court is left in no other position but to strongly rely on the statements and evidences adduced by the complainant.

12. In the case of Zeming v. Justice Hinchcliffe [2006] PGNC 30; N2998 February 2006, the National Court in dealing with a Judicial Review application filed by the applicant who was dismissed as a Member of Parliament. During the cause of the tribunal hearing, the applicant had not given any evidence rebutting to the allegations made against him. The Court in its ruling, held that, in a case where the defendant chose not to give evidence and rebut the evidence supporting the allegations made against him, although it is his right to do so, it would be reasonable for any member of the public attending the tribunal and the tribunal to expect him to rebut the case against him. By his own silence, on the face of strong accusation and evidence, and during submissions, the Court held that on the totality of evidence and the allegations, the tribunal had not erred in arriving at the decision to dismiss the applicant from office.
    
13. In the case of Yange Lagan v. The State [1995] N1369 , Jonathan Mangobe Paraiya v The State [1995] N1343, Itao v. Kamara [2011] PGNC 35, N4226 (18^th March 2011), Niugini Civil & Petroleum Ltd v. West New Britain Development Corporation Ltd [2008] PGNC 18; N3292, and other similar authorities in this jurisdiction, establish the principle that, even during an ex-parte hearing, where the defendant fails to give evidence, the plaintiff must put forward his evidence for the Court to be satisfied on the balance of probabilities to support the assertion made by the claimant, plaintiff or complainant for that matter in the proceeding.
    
14. In the light of the above discussions, this Court finds that the evidences are conclusive, since there are no affidavits in response refuting the allegations and claim, neither has there been any defense filed. Coupled with that fact, the other evidences in the three other proceedings show the striking adulterous nature of the first defendant, the court is inclined to rely on the evidence of the complainant and conclude that the first defendant, had in fact, been having an adulterous relationship, with not only one, but four individual ladies. The evidence is conclusive, and the court finds in favor of the complainant.
    
15. The Court also notes from the various annexures to the complainant’s affidavit and the depositions that there were in fact adulterous relationships between the five defendants.
    

THE LAW AND CONSIDERATIONS OF FACTS

16. This District Court sitting as a Family Court has the jurisdiction under the, Adultery and Enticement Act 1988 to preside over matters and issues concerning illicit affairs committed by persons who are married, as in this case, where the complainant is married to the defendant and the marriage was solemnized under the laws of Papua New Guinea’s Marriage Act (Chapter 280), as evidenced in the complainant’s affidavit annexing a Marriage Certificate. On a finding of liability pursuant to the admission of the first defendant, the court must now decide on the adequate compensation amount, after assessing the defendant’s income and salary rates, and also other factors under s.16 of the Adultery and Enticement Act 1988.
    
17. The District Courts being a court established under statute (District Courts Act), it has powers that are subjected 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). The Iga case establishes that, although the District Court has powers under the Adultery and Enticement Act to deliberate, and award compensation against the defaulting parties, it has no jurisdiction to restrain parties from continuing to see each other. This court is again reminded of its limited powers to award compensation.

16. 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.

17. 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 Adultery and Enticement Act 1988.

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.

18. S.9 of the Act provides for the time limitations within which, an aggrieved person can bring forth an action against his or her spouse and the other person who the complaining spouse alleges, to have committed adultery with his or her spouse. The person aggrieved of the adulterous conduct of the spouse or the person involved in the affairs with the spouse, must also bring about the proceeding within six months from the time the adulterous conduct has been deemed to have occurred. In this case, the complainant claims that the alleged adulterous affairs occurred between February and July 2020, and there is no denial by the first defendant, her spouse.
19. The complainant claims in her four separate summons and complaint (which the Court then consolidated, pursuant to s.7 of the Act) that, the first defendant, who is the complainants lawfully wedded husband had on various dates had adulterous affairs with not only one person, but four, therefore there were the four separate proceedings, naming the four co-defendants or second defendants, in all the four proceeding. The complainant also advised the court that the adulterous activities continue whilst this court was deliberating on the very same issues. It may not have been more than one time or may have been more, than one time where the consensual sexual affairs were committed. When the court enquired as to whether the first defendant had a defense or had something to respond to the claim or adultery, the first defendant in two earlier proceedings (i.e. FC# 174 of 2020 and FC# 175 of 2020) now consolidated, admitted to the claim of adultery made against him and the other two defendants by the claimant or complainant.
20. So then, what would be the adequate compensation assessment this court should make? It is now incumbent on this court to decide on the assessment and make an order for payment of such compensation.
    21. The Adultery and Enticement Act places limitations on the amount of damages to be awarded to the complainant. That is clearly stipulated under ss. 12 and 13 of the Act. The limitations or ceilings for compensation establishes that, where there has been an action brought against two defendants, for an act of adultery, the amount of compensation must not exceed K1000.00, and where the claim is for enticement, the compensation must not exceed K500.00. but in an instance where a defendant entices and commits adultery with a spouse, the claimant is not entitled for total of more than K1000.00. 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 (see John Gawi and Diana Apas v. Mary Gawi (1997) N1584.
    22. But where the matters relate to not one person, but four persons having an adulterous affair with the same spouse, how does this court arrive at the proper compensation quantum in an instance where the two separate proceedings are heard before the same Magistrate? Does that render the claim of adultery to be treated as one? This would then require the court to take a purposive approach in interpreting ss. 12 and 13 of the Act.
    23. Ss.11 to 20 of the Act talks about the compensation and the amount of Compensation that this Court can impose on the Adulterous Parties, and the assessment to be made with the time frame and forms of payments.
    24. Section 11(b) of the Act states;

11. COMPENSATION.

Where in an action under this Act-

(a) ....................................................;
(b) The court is satisfied , on hearing of the action, that the act of adultery or enticement ,complained of, was committed; and
(c) ......................................................,

the court may make an order for compensation to the complainant against all or any of the defendants.

25. Section 12 of the Act states that an order for compensation in an action for an act of adultery, the amount to be charged for compensation is K1000.00. this establishes the standard for any proceeding brought into court against a spouse and his other adulterous partner, the compensation would be K1000.00.
26. In this consolidated proceeding, the main issue in contention is whether the four women involved in the adulterous affairs and the principal defendant’s adulterous relationship amounts to one act of adultery or four separate acts of adultery? The follow on from that issue would be, depending on the Court’s interpretation of ‘an act of adultery’, what would be the compensation assessment on all four of the ladies and the principal defendant, and how much should each of them pay?
    
27. Sections 11 and 12 states that the court can make orders against any or all of the defendants. Nevertheless, does it necessarily mean that, all these four ladies involved in the adulterous affairs with the one defendant turn to make the adulterous actions, one adultery case? or is it to be considered on the number of persons with which the spouse commits adultery? This court is now faced with an issue that requires deliberation on, whether the spouse’s adulterous affairs with the four women, amount to an act of adultery as mentioned under s.2 of the Act, or whether the four acts of adultery are separate acts with four women.
28. There is no provision under the Adultery and Enticement Act, that gives a clear definition of what an act of adultery is. As I queried to above, the court is faced with the current situation to correctly point out whether the phrase, “an act of adultery” refers to an adulterous relationship between a spouse and another person, on a one to one basis, or does it also apply to multiple adulterous partners with the same one spouse? What would be the safest way in which, this court should safely interpret S.2 of the Act so as to give meaning on whether the phrase “an act of adultery” adultery relates to affairs between a spouse and four separate women or one woman. It would definitely be an issue of interpretation of that word in the provisos of the Act which would then give this court the guidance to arrive at the safest definition, within the intent of the legislature. This will have a consequential effect on this Court’s assessment and Order for the payment of compensation.
28. In ensuring the legislative intent and purposes of a particular intent and legislation is properly construed and applied, the courts in our jurisdiction have been deciding on various matters. For e.g. in the case of Bonggere v. Papua New Guinea Law Society [2003] PNGLR 7 (21 March 2003), Kandakasi J, (as he then was) in dealing with the courts application of various rules of interpretation stated:

“it is well – accepted principle of statutory construction that “the express mention of one thing causes the exclusion of another”. The old latin maxim for that is expression unius est exclusion alterius”. There is always however a need for caution before applying this rule of interpretation.

Another relevant rule of statutory interpretation is in the context of the enabling legislation is in the maxim, “expression unius est exclusion alterius”, which means the express enactments shuts the door to further implication. If there is a clearer rule of statutory interpretation is that:

“... where the legislature have expressly prescribed one or more particular modes ... such expression always excludes any other mode, except as specifically authorised.

29. The interpretations of legislations must be sound and correct so as to give meaning for the legislatures intended purposes. In the lawteacher website www.lawteacher.net, an elaborative discussion on the rules of interpretation were also discussed, which I find of great help and relevance to this issue beforehand. It states:

Courts are sometimes tasked to interpret a statute due to disputes over the meaning of a word or phrase contained within a statute. These disputes may arise through a variety of reasons. It has been long held that words are not always the perfect way of communicating. Omissions may have occurred at the drafting stage, word or phraseology ambiguity, etymological change through time, oversight on specific points, or a failure to adapt legislation to new developments. This may result in the judiciary providing a role in statutory interpretation. Statutory interpretation in its broadest sense is the process of determining the true meaning of a written document. For e.g. to assist judges with statutory interpretation in that it only provides standard definitions to common provisions such as a rebuttable presumption that terminology in the masculine gender also include the feminine, and that the singular includes plural.

There are three main rules to interpret a statute; the literal, golden and mischief rule and also the integrated approach, known as the purposive approach. Each rule will be looked at individually with case examples.

The literal rule uses the plain ordinary meaning of words. In Fisher v Bell [1960] 3 All ER 731 the defendant, a shopkeeper, displayed in his window a flick knife with a price ticket, and was prosecuted for “offering for sale” an offensive weapon contrary to the Restriction of Offensive Weapons Act 1959. The High Court said the phrase “offer for sale” was to be taken literally, in accordance with its meaning in contract law, and that the shopkeeper’s display of the weapon was no more than an invitation to treat. It was presumed that Parliamentary draftsmen know technical legal language thus common law expression was not altered.

The golden rule is an extension of the literal rule and has both a narrow and wider application and is used where the literal rule creates an absurdity. This is evident in the narrow sense in Adler v George [1964] All ER 628. Adler gained access to a RAF station and obstructed a member of Her Majesty’s forces engaged in security duties ‘in the vicinity of a prohibited place’ He argued that, as he was actually in the prohibited place, he could not be said to be “in the vicinity” of the prohibited place. The literal interpretation of the Official Secrets Act 1920 would allow protesters to demonstrate within military bases but not outside them, creating an absurdity. This was clearly not the intention of this Act. Adler was found guilty of the offence because “in the vicinity of” should be interpreted to mean on or near the prohibited place. In its wider sense, the court may modify the reading of words in order to avoid a repugnant situation as in Re Sigsworth [1935] Ch 89. Section 46 of the Administration of Estates Act 1925 stated that where a person dies intestate leaving children but no spouse, the estate passes to the children. The defendant had murdered his mother, who did not have a will, and he stood to inherit her estate as next of kin by being her “issue”. The court applied the golden rule and held that “issue” would not be entitled to inherit where they had killed the deceased.

The mischief rule allows judges slightly more discretion. It looks at the gap or the mischief the statute was intended to cover. In the case of Corkery v Carpenter [1951] 1 KB 102, the Licensing Act 1872 stipulated that it was an offence to be drunk in charge of a carriage. Whilst no direct reference was made to bicycles, the court ruled that Corkery was guilty as the term “carriage” could also be applied to a bicycle.

As per Lord Dennings judgement in Notham v London Borough of Barnet [1978] 1 WLR 220, the purposive approach is one that will “promote the general legislative purpose underlying the provisions”. The purposive approach is used by the majority of European countries when interpreting their own legislation and also by the European Court of Justice in interpreting European Union law and is becoming increasingly influential. In Jones v Tower Boot Co Ltd (1997) IRLR 168 CA, the complainant suffered racial abuse at work, which he claimed amounted to racial discrimination for which the employers were liable under s32 of the Race Relations Act 1976. The Court of Appeal applied the purposive approach and held that the acts of discrimination were committed “in the course of employment” is to be given an everyday, rather than a tort law, meaning. Any other interpretation ran counter to the whole legislative scheme and underlying policy of s32.

In addition, the courts may also apply rules of language, intrinsic and extrinsic aids and presumptions to aid statutory interpretation. There are three main rules of language. These are ejusdem generis meaning of the same kind, Noscitur a sociis meaning a word is known by the company it keeps, and expressio unius est exclusio alterius, where the express mention of one thing excludes others. Intrinsic aids are taken from the Act itself and may include the long or short title of the Act, the preamble, headings, side notes and contextual punctuation. Extrinsic aids consists of previous case law, international conventions, regulations and directives, dictionaries, official reports and most recently in Pepper (Inspector of Taxes) v Hart [1993] 1 All ER 583, Hansard. Presumptions within law are numerous and may range from presumption against alterations of the common law to a presumption against ousting the jurisdiction of the courts, to name but a few.

In summary, the view that is expressed by James Holland and Julian Webb in Learning Legal Rules (Seventh edition) appears to be simplistic and literal in its context. The rules of statutory interpretation are not rules in the strict sense, as each one may point to different solution to the same problem. There is no hierarchy of rules to be applied and neither is any court bound to follow a particular rule. They are purely guidelines for the judiciary to solve problems with statutory interpretation.

30. Having considered the above, does it mean that the parliament intended for four to five women or men being involved with a spouse in their separate adulterous activities fall under the category as one adulterous act or “an act of adultery”? Arguably, one can say that, by using the phrase “an act of adultery” in sections 2, 4, 12 and 13, of the Act requires a critical look at the legislative intent.
31. Upon closer analysis of the construction of the scheme of provisions within the Act indicates that “an act of adultery” intends to apply to one spouse, and one other person that would be engaged in an illicit extra marital affair. In ss. 2, and 4(b) of the Act, the word person, intends to refer to one person, because the word person is not spelt as ‘persons’ or ‘person(s)’ which would clearly alter the meaning from singular to more than one person.
32. To my mind, I am of the view that the provisions relate to one act of adultery or an act of adultery as stated under s.13 to refer to an adulterous relationship between the spouse and another one person, who is not his or her spouse, notwithstanding the occurrences of the adulterous affairs, be it once, twice, or more than that.I am fortified in my opinion that, the construction of sections 4, 12 and 13 of the Adultery and Enticement Act 1988 relates to two persons, one of which must be the spouse of the complainant, and the other being a non-marital spouse or partner, so as to fall as an act of adultery, regardless of the number of times they have sex. If it is committed with more than one person, it would also amount to another act of adultery by the same defendant, with the other person, so the amount of compensation also falls on the other defendant, so as to hold them separately liable for another separate act of adultery.
33. It is therefore, this court’s opinion that, for a spouse to be involved in extra marital and adulterous affairs with four persons, then, the actions comprise of four different adulterous affairs, irrespective of the number of times, the four ladies had sex with the complainant’s spouse, the adulterous relationship is four, and each of them (the defendants in the four proceedings) should be penalised accordingly to Pay K1000 for each case as allowed under s.12 of the Act, for the four separate complaints filed for respective adulterous affairs.
34. Having due regard for all those requirements and prerequisites for the compensation, I will make an assessment of the compensation demand then, make a ruling on the assessment and the form of how the compensation should be paid to the defendant by the principal defendant and the two co accused.

ASSESSMENT FOR COMPENSATION

35. From my inquiry from the bench, I note the following.

- The First Defendant is a Police Officer who earns a net salary of about K700 per fortnight, as he has not given this Court any clue of how much he earns.
- The Co Defendant or Second Defendant in FC# 175 Of 2020 is an employer of the BSP bank who earns some money.
- The Co Defendant or the Second Defendant in FC# 174 Of 2020 is a young female and there is no evidence before this court, whether she is employed or not, and so this court will have to arrive safely at a compensation figure it deems just and appropriate.
- The other defendants in the two other proceedings FC# 180 of 2020 and FC# 181 of 2020, have not made any attempt to appear before the court, and as such, this court has no proper evidence to make any assessment, coupled with their arrogance and stubbornness in not heeding to court directions requesting them to appear in Court. But this court relies on the evidence of the complainant in which she establishes that the two co-defendants are working class woman.

36. 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 trait of the society neatly woven in sacredness.
37. I note that the first defendant is a Police Officer and a very knowledgeable person who can differentiate between what is good and bad, and being a person of such calibre, there is no excuse for him to dis-play, firstly such promiscuous character, and also blunt disregard of matters that are before the Court. It is simply unacceptable. Furthermore, he had been having constant problems with his wife with respect to his habits of flirting with women and living his adulterous ways. I see no reason why I could not make an assessment for him to pay separately for enticement, but the act does not allow that. So I have to assess them for the act of adultery as the cases summons and complaint have the claim for adultery.
38. The co-defendant in FC# 175 of 2020 is also a very knowledgeable person, and also knows that having sexual relationship with someone other than your wife or husband or someone who is another person’s husband or wife is an awfully bad and immoral practice. She should have put herself into the shoes of the other person when she initially engaged in communicating with the First Defendant. At this juncture, I also note that the First Defendant is married under statute, and can therefore never be practicing Polygamy, and if he thought he would get around it, s. 475 of the Criminal Code establishes the act of Bigamy, which is the act of marrying another wife or getting married to another man, when the person is still legally married to a lawfully wedded spouse under statute, as a Criminal Offence.
39. The co-defendants or second defendants in FC# 180 of 2020 and 181 of 2020 are both knowledgeable women, but have shown lack of respect for this Court. The court understands that the two persons are working class woman, and it is really saddening to see people being irresponsible for their action.
40. 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 has 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.
41. In considering all the factors before me and finding that the defendant was involved in two acts of adultery, This Court will make the following assessment:
    1. The first defendant shall pay K700 to the complainant, as compensation for the first act of adultery with Cynthia Tagobe in FC# 174 of 2020.
    2. The Second Defendant Cynthia Tagobe shall pay K300 to the complainant as compensation for the first act of adultery with the complainants lawfully wedded husband, Kerry Palme in FC# 174 of 2020.
    3. The first defendant Kerry Palme shall pay K500 to the complainant as compensation for the second act of adultery with Tabitha Kolaip in FC# 175 of 2020.
    4. The second defendant or co-defendant shall pay K500 to the complainant as compensation for the act of adultery with the complainants lawfully wedded husband, Kerry Palme in FC# 175 of 2020.
    5. The first defendant Kerry Palme shall pay K500 to the complainant as compensation for the second act of adultery with Sally Proctor in FC# 180 of 2020.
    6. The second defendant or co defendant shall pay K500 to the complainant as compensation for the act of adultery with the complainants lawfully wedded husband, Kerry Palme in FC# 180 of 2020
    7. The first defendant Kerry Palme shall pay K500 to the complainant as compensation for the second act of adultery with Erni Koma in FC# 181 of 2020.
    8. The second defendant or co-defendant shall pay K500 to the complainant as compensation for the act of adultery with the complainants lawfully wedded husband, Kerry Palme in FC# 181 of 2020

Finally, since this is a consolidated proceeding, the ruling has dealt with the issues in a consolidated manner, giving relevance to all material and evidences before the court pertaining to the adultery claim, therefore, the orders will be made on a case by case basis, which would reflect how much each of the defendants would pay as form of compensation to the complainant in the light of the Court’s finding.

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 K250 per the complaint, which would bring it to a total of K1000.00 which shall be paid by the five persons named in the summons at K200 per defendant.

THE COURT HEREBY ORDERS THAT:

In FC No. 174 of 2020 – Flora Singol v. Kerry Palme & Cynthia Tagobe

1. The First Defendant Kerry Palme shall pay K700 as compensation payment to the complainant for an act of adultery committed with one Cynthia Tagobe within 21 days from the date of this Order, and such payments shall be made to the Family Court Clerk.
   
2. The Second Defendant, Cynthia Tagobe shall pay K300.00 to the complainant within twenty-one (21) days from the date of this order, for the one act of adultery, and such payments shall be made to the Court Clerk of the Family Court Clerk.
3. If the defendants default to pay the compensation sum within the twenty- one (21) days, as ordered by this Court, a Warrant To Commit The Defendants to Bomana Imprisonment Camp for six months pursuant to S. 18 of the Adultery and Enticement Act, shall be issued by this Court.
   
4. Cost of the proceeding is awarded to the Complainant at K250, of which the first defendant shall pay K50, whilst the second defendant pays K200

In FC No. 175 of 2020 – Flora Singol v. Kerry Palme & Tabitha Kolaip

1. The First Defendant Kerry Palme shall pay K500 as compensation payment to the complainant for an act of adultery committed with one Tabitha Kolaip within 21 days from the date of this Order, and such payments shall be made to the Family Court Clerk.
   
2. The Second Defendant, Tabitha Kolaip shall pay K500.00 to the complainant within twenty-one (21) days from the date of this order, for the one act of adultery, and such payments shall be made to the Court Clerk of the Family Court Clerk.
3. If the defendants default to pay the compensation sum within the twenty- one (21) days, as ordered by this Court, a Warrant To Commit The Defendants to Bomana Imprisonment Camp for six months pursuant to S. 18 of the Adultery and Enticement Act, shall be issued by this Court.
   
4. Cost of the proceeding is awarded to the Complainant at K250, of which the first defendant shall pay K50, whilst the second defendant pays K200
   

In FC No. 180 of 2020 – Flora Singol v. Kerry Palme & Sally Proctor

1. The First Defendant Kerry Palme shall pay K500 as compensation payment to the complainant for an act of adultery committed with one Sally Proctor within 21 days from the date of this Order, and such payments shall be made to the Family Court Clerk.
   
2. The Second Defendant, Sally Proctor shall pay K500.00 to the complainant within twenty-one (21) days from the date of this order, for the one act of adultery, and such payments shall be made to the Court Clerk of the Family Court Clerk.
3. If the defendants default to pay the compensation sum within the twenty- one (21) days, as ordered by this Court, a Warrant To Commit The Defendants to Bomana Imprisonment Camp for six months pursuant to S. 18 of the Adultery and Enticement Act, shall be issued by this Court.
   
4. Cost of the proceeding is awarded to the Complainant at K250, of which the first defendant shall pay K50, whilst the second defendant pays K200
   

In FC No. 181 of 2020 – Flora Singol v. Kerry Palme & Erni Koma

1. The First Defendant Kerry Palme shall pay K500 as compensation payment to the complainant for an act of adultery committed with one Erni Koma within 21 days from the date of this Order, and such payments shall be made to the Family Court Clerk.
   
2. The Second Defendant, Erni Koma shall pay K500.00 to the complainant within twenty-one (21) days from the date of this order, for the one act of adultery, and such payments shall be made to the Court Clerk of the Family Court Clerk.
3. If the defendants default to pay the compensation sum within the twenty- one (21) days, as ordered by this Court, a Warrant To Commit The Defendants to Bomana Imprisonment Camp for six months pursuant to S. 18 of the Adultery and Enticement Act, shall be issued by this Court.
   
4. Cost of the proceeding is awarded to the Complainant at K250, of which the first defendant shall pay K50, whilst the second defendant pays K200
   

Complainant in person

No appearance by the defendants