Tabiye v Loras [2021] PGDC 241; DC8024 (8 April 2021)

DC8024

PAPUA NEW GUINEA

[IN THE DISTRICT COURT OF JUSTICE]

CIVIL JURISDICTION

DC. NO. 08 OF 2021

RUSSEL TABIYE

Complainant

V

RUTH LORAS

First defendant

&

HOMATE GIMISEVE

Second defendant

GOROKA: B GORE, Magistrate

2021: 30^th & 31st March & 1^th & 8^th of April

CIVIL: Adultery and Enticement Act 1988, claim for compensation for acts of adultery, defendants failed to appear, matter heard ex parte, claim brought out of time, no reasonable causes for delay, claim filed after 3 months allowable period under s.7 (3) the Act. Claim is time barred therefore dismissed.

CASE CITED:

Paul Male v. Anna Hans and Michael Mond DC547

LEGISLATIONS:

District Court Act & Adultery and Enticement Act

COUNSEL

Complainant represented by public solicitors

Defendants-no appearance by both

FACTS

1. The complainant and the first defendant were married by way of statutory marriage for 12 years and out of that marriage ,they have two sons aged 11 and 4 years respectively. On or about 2018, the first defendant was having an affair with second defendant and had not returned to their family home, the complainant took out a summons at the Asaroufa Village Court to have the first defendant return to their family home and the court ordered the same.
   
2. However the first defendant defied the order then summoned the complainant to the Goroka Urban Court for divorce which the court refused saying there were no grounds for divorce and ordered them to reconcile and get back together for the best interest of their two children.
   
3. The first defendant was not happy with this decision and appealed to the Goroka District Court, on the 29^th of November 2019; the District Court Magistrate Vetunawa heard the appeal, quashed the Urban Court decision and dissolved their marriage. He issued an interim order for kids to stay with both parents two weeks interchangeably. On the 23^rd of November 2019, the complainant aggrieved by that decision filed a review at the District Court that is pending before the Senior Provincial Magistrate until now.
   
4. The complainant then filed a complaint for adultery against both defendants under the Adultery and Enticement Act of 1988 in this court which is now for deliberation.
   

DEFENCE:

5. Both defendants were served, affidavits of service filed in court however they have not appeared on two occasions when the matter was mentioned. Hence court is not able to ascertain their defence. On the third appearance, the court heard the complainant through his lawyer ex parte.
   

Complainant’s case

6. The complainant filed an affidavit on the issue of time limitation under s.7 of the Adultery and Enticement Act.
   
7. The complainant said all this time he heard rumours of his wife engaging in adulterous relationship but he has not confirmed. He only confirmed the act of adultery on the 29^th of December 2019 after the first defendant rented a place at four mile and was living with the second defendant.
   
8. The gist of his submission for filling out of time was that he was waiting for the outcome of the review application filed at the District court, simply because the district court erred in law in dissolving a statutory marriage which they have no jurisdiction. The complainant all along assumes that his marriage was still intact hence awaiting decision on his review to determine otherwise. Neither did he know of such time limitation under the Adultery nor is Enticement Act, Therefore the complaint filed even after the lapse of the required three months.
   
1. THE LAW-ADULTERY AND ENTICEMENT ACT 1988
   

4.1. SECTION 7.TIME LIMITATION FOR BRINGING ACTION.

9. (1) An action under this Act shall be brought not later than six months after the day when the act of adultery or the enticement, complained of, was committed. (2) Where by virtue of Section 4(2) acts of adultery are regarded as one act of adultery, the period of six months referred to in Subsection (1) shall commence to run on the day next following the day when the last of those acts of adultery was committed. (3) Where in the opinion of the Court, a person has reasonable cause for not bringing an action within the period specified under Subsection (1); the Court may permit the person to bring the action after the expiry of that period but in any event not later than three months after the expiry of that period.
   

ASSESSMENT

10. I have heard the complainant submissions, Although, the review application has taken long that does not stop the complainant from filing a case for adultery and both can run simultaneously, unfortunately the complainant had not done that.
    
11. The only case I was able to find on paclii which discusses the issue of time barred under s.7 (3) of the Adultery and Enticement Act is that of Paul Male v. Anna Hans and Michael Mond, in that case both defendants entered into an adulterous relationship in May 2004 and was living away in Port Moresby, defendant only become aware of their adulterous relationship when defendants moved to Lae in May 2005.
    
12. A complaint and summons was filed on 19^th May 2005 alleging that their adulterous relationship started around January and April 2005.
13. The second defendant argued that the complaint was time barred because they started having adulterous relationship back in May 2004.The court in that held that the complaint was within time because the complainant alleges adultery between January and May 2005, the time complaint found out when they were living together in Lae. The application by the second defendant that the case was filed out of time was dismissed.
14. The present case is one were complaint is filed out of time by seven months after the allowable 3 months under S.7(3) of the Act. There are no reasonable causes for the delay; complainant’s explanation for waiting outcome of review application is not good enough.

COURT ORDER:

14. Having discussed all the above, court findings are as follows;

(1) The complaint is time barred hence dismissed.
(2) On interim, no orders are made on costs.

_________________________________________________________________________
Plaintiffs’ Counsel: In Person
Defendants’ Counsel: In Person