Lovave v Lovave [2022] PGDC 117; DC9054 (17 November 2022)

DC9054

PAPUA NEW GUINEA

[IN THE DISTRICT COURT OF JUSTICE

SITTING IN ITS FAMILY COURT JURISDICTION]

FC 114 of 2022
BETWEEN

JOVITHA LOVAVE
Complainant

AND

MICHAEL LOVAVE & FANTA MICHAEL
Defendant

Lae: J Morog

2022: 4; 18 October; 8; 17 November 

Adultery - Sections 2 & 4 of Adultery & Enticement Act 1988 – Time Limitation – act of sexual intercourse – circumstantial evidence - failure to discharge burden of proof.

Cases Cited
Aveava v Ikupu [1986] PNGLR 65

References

Adultery & Enticement Act 1988

Counsel

Complainant in Person

Defendant in Person

Lae, 2022

1. J Morog: This is my ruling on the complaint of adultery by the complainant who is the legal wife of the defendant after a trial.

BACKGROUND

2. The complainant and the defendant were married in church in 2013 and their marriage is a registered marriage.

3. The complainant could not locate and serve the complaint on the second defendant and so the trial proceeded only against the first defendant pursuant to section 4 (a) of the Adultery & Enticement Act 1988 (the Act).

4. The complaint here is that the defendant has been committing adultery since 2020 with a female known to the complainant as one Fanta Michael

LAW

5. I outline the relevant provisions that I relate to in my ruling as follows;

Section 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.

Section 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; 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.

Section 7. TIME LIMITATION FOR BRINGING ACTION.

(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.
Section 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.

ISSUE(S)

1. Whether or not the defendant engaged in voluntary sexual intercourse with one Fanta Michael in early June 2022?

2. If the answer to the first issue is YES then this court shall consider the issue of compensation and if the answer is NO then that is the end of this matter.
EVIDENCE

6. The parties both filed their respective affidavits which were tendered into evidence and then they cross examined each other during the trial.

Complainant

7. In her affidavit she said that on 15^th March 2021 she saw a sexually explicit text message from a mobile number given and she claims it was from Fanta. She reported the matter to Omili Police Station in Lae on the 17^th of March 2021 and the defendant admitted to having an affair.

8. In early June 2022 she said she saw the defendant in front of a Chinese Shop at 8^th Street giving money to a woman who went to the nearby Hela Guest House to get a room and he followed few minutes later into the Guest House.

9. In cross examination the defendant put to her that she was lying and it was not him at 8^th Street and she responded that she was in the bus waiting for passengers to get on and she saw him from afar.

10. Defendant then asked her why she didn’t approach him that time to confirm his actions and she responded that she was going home.

11. The defendant further asked her about the other defendant and she responded that she only heard a voice over the phone and does not know the person. That time at 8^th Street she said she only saw the hair extension and the couple she saw didn’t talk for long. The man gave money to the woman and they parted ways. Then the bus was full and drove away to Eriku.

12. The defendant then put to her that she was premising her case on assumption and she replied saying she didn’t see the actual sexual intercourse but because of his past history and the text message of 2021 she filed this case.

Defendant

11. In his affidavit the defendant said the text message issue was dealt with at the Omili Police Station and decisions made and the complainant cannot raise that matter again. Also he denies that there was never actual sexual intercourse involved in that messages back then. He also denies that it was him that she saw at 8^th Street.

12. In cross examination she insisted on him to tell his past to the court and he responded that he was never there at 8^th Street and he does not know where the Hela Guest house is too.

13. She further put to him that he was wearing a blue shorts and light blue long sleeves and he again denied and said he was never there at 8^th street as she claims.

14. She further asked him to confirm the name Fanta that he gave her as the one who sent the text message and he responded that she insisted back then to only know the name of the person who sent the text message and promised not do anything if the name was given so he gave the name Fanta. He further said that now she is using this name without knowing the surname so she just put down Michael as her surname in this case.
APPLICATION OF THE LAW

15. The law on adultery is specific on time limitation to bring an action within 6 months of the alleged act of adultery under section 19 of the Act. I find that the allegation on previous text messages in 2021 and what transpired consequent to that is of no probative value in this case at hand accordingly.

16. I say this because this is a case of circumstantial evidence and I cannot allow past instances of more than six months to form part of the circumstances to draw my inference from. If I include that as part of the circumstances then it will defeat the purpose of the specific time limit proviso of the Act.

17. In such a circumstantial case the court must consider instances or facts that exist within the six months’ time limit to be part of the circumstantial case and not those falling outside of the time limit.

18. In the case of Aveava v Ikupu [1986] PNGLR 65 it was held that;

“Adultery may be proved by circumstantial evidence. Such evidence should prove an opportunity for committing adultery as well as some evidence of "guilty passion", and the conclusions to be drawn from the proven circumstances must take account of the personal particulars of the people involved and also the accepted standards of behaviour of the time and place.”

19. I shall concentrate on the relevant evidence on the allegation that defendant had voluntary sexual intercourse with Fanta Michael around early June 2022 and thereafter.

20. The complainant conceded in her testimony that she did not see the actual sexual intercourse between the couple she saw at 8^th street but she is adamant that she saw the defendant and because of his past she assumed he had sex with Fanta in the nearby Guest House.

21. Evidence in her affidavit was that he gave money to a woman who went to the nearby Hela Guest House to get a room and he followed few minutes later.

22. In cross examination she says she does not know Fanta and in June 2022 she only saw the hair extension of a woman. It is not clear or known now who that woman at 8^th street was.

23. There was no specific day or date alleged by the complainant for the defendant to defend himself. It is only alleged that the time was sometimes in early June and that is unfair and too general. Nonetheless, the defendant has denied being there at that place at any one time.

24. Also because of this ambiguous date I give little or no weight to her contention in her cross-examination of the defendant about his attire because it is unfair if he does not know on what day he is alleged to have attired himself in such clothing so he could defend himself.

25. Also it is important to note and I repeat the response of the complainant when she was asked why didn’t she approach the couple or the man she saw at that moment to confirm or identify the mystery woman Fanta. She said she was going home and so she left and that is incredible. That was the moment or opportunity to find answers to her concern since the text message of 2021 but she didn’t approach them.

26. Perhaps if she had approached the couple that time she would now have shown some evidence of guilty passion but unfortunately there is no evidence to suggest that either at material time or thereafter.

27. I am not satisfied on the balance of probability that it was the defendant that she saw and accordingly the complainant has failed to discharge the burden of proof to prove adultery by the defendant in this case.

28. Even if it was the defendant at 8^th street it is still incumbent on the complainant to establish voluntary sexual intercourse took place. There is no evidence of that. She said she was in a PMV bus and only saw the man gave money and they parted ways briskly and the bus took off.

29. She does not have evidence whether a room was booked and whether the defendant went into that room and whether adultery took place or not. She assumed all these when she said so in her affidavit.

30. Then again I find that the complaint of adultery was not proven on the balance of probability in this case.

Orders

1. Defendant is found not liable in adultery.
2. The case is dismissed
3. Parties bear their own costs.

Complainant In Person

Defendants In Person