Gawi v Gawi [1997] PGNC 86; N1584 (22 July 1997)

Unreported National Court Decisions

N1584

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

APPEAL 91 OF 1997
JOHN GAWI AND DIANA APES - PLAINTIFF
V
MARY GAWI - RESPONDENT

Kimbe

Woods J
16 july 1997
22 July 1997

ADULTERY & ENTICEMENT ACT - acts of adultery between the same partner to be read and dealt with as one act of adultery - there cannot be a repetition of actions for continuing acts of adultery between the same partners.

Counsel

R Habuka for the appellant.

22 July 1997

WOODS J: is an appeal against an oran order of the District Court at Kimbe on the 9th April 1997 on a cont uint under the Adultery and Enticement Act 1988. A complaintbeen laid in Main Marc6 that since 23rd February uary 1996 the defendants had committed adultery and continued to do so knowing very well that the first defenda married to the complainant.

The magistrate found thnd the complaint proved and ordered compensation against the defendants in favour of the plaintiff.

The defendants have appealed against the order and the ground of appeal is that the Magistrate had erred as the Court had earlier made a similar order for the same matter and therefore the complaint was res judicata.

It appears that there had been previous proceedings between the same parties for this adulterous relationship and these proceedings had resulted in a mediation on 23rd February 1996 and orders for the payment of compensation by the same two defendants to the plaintiff.

It is noted that this new complaint in March 1996 refers to adultery having taking place since the 23rd February 1996. It would ther appear that that in spite of the mediation that took place in February 1996 the adulterous relationship between the defendants was still continuing and the marriage had completely broken down. The question therefore is whether an aggrieved partner in such marriage situation can continue to bring fresh complaints for the same and continuing adulterolationship. Section 4 (2) of thltery aery and Enticement Act states that for the purp purposes of an action under this Section all acts of adultery committed between the same persons before the commencement of the action shall be regarded as one act of adultery. Does this therefore meat ihat it is not open to a party to bring subsequent actions for further acts of adultery following one proceeding. I think thas must be the sthe situation because the section clearly suggests that all acts of adultery between the same persons are to be deemed to be the one act. It cane intended that wher where there is a continuous adulterous relationship there can be a repetition of actions. Therefore all ths of adultadultery committed after 23rd February are to be as including the acts of adof adultery before 23rd February and to be read as the one act of adultery. There has been action tander Section 4 of the Act fAct for these acts of adultery namely the mediation which resulted in the Order of 23rd February. Thre than be no repetitionition of this action. If the marriage has coely tely broken dken down then that is the end of the matte following one order of compensation under the Act then it is up to the parties to take appe appropriate proceedings under the Matrim Causes Act. A Court ourt cannoce a mara marriage to continue if the parties or one of them does not want it.

Therefore by virtue of Section 4 the fresh complaint of March 1996 could not be pursued because the problem between the parties was dealt with in February 1996.

I uphold the Appeal and quash the orders of the Magistrate. It woppear to be a matter tter for the parties to consider appropriate proceedings under the Matrimonial Causes Act.