DC153

PAPUA NEW GUINEA
[DISTRICT COURT OF JUSTICE]

Case No 169 of 2000

Christina Seke
Complainant

V

Hency Charles
First Defendant

Francis Seke
Second Defendant

Goroka: Manue F
20th June 2000

Cases Cited
David Woodhem V Janet Undai N1868 Of 1999

COUNSEL
Complainant appeared in person.
Defendants each severally appeared in person.

The complainant alleged that the first defendant has been committing the acts of adultery with the second defendant knowing him to be married to the complainant.

The alleged conduct has been on going over a period of time from October 1999 to the date the complaint was made 26.04.00.

I have taken jointly of the acts to amount to only one act of adultery. The defendants do not deny that they were in fact living together, thus such acts may safely be inferred.

The first defendant however, alleges that, he has created the new relationship on his believe that the village court had dissolved his marriage with the complainant.

His co-defendant relied on what was told to her, in that the male co-defendant had dissolved his marriage, and thus was legally safe for them to cohabit.

I will discuss what was raised as a purported defense later.

But first, perhaps some light will be shed with these facts.

In August 1999, the complainant misbehaved, consequently, the matter was mediated by a village magistrate. The same matter ended in a village court. In the court, the second defendant insisted on dissolving his marriage with the complainant, based on the mischievous conduct of the complainant.

The village court, despite objections by the complainant made an order in favour of the first defendant with a condition that he pays K500.00 to the complainant.

A week after the village court order the first and second defendant were seen living together in the matrimonial home of the complainant.

When the complainant learned of that, she confronted the first defendant and fought her. She also informed the defendant she was the wife of the second defendant. The first defendant claimed that he was exercising in co-habituating with the co-defendant on the basis that the village court had dissolved his marriage.

The right of appeal lies on any aggrieved party to such section 86 of the Village Courts Act stipulates that appeals may be made within three (3) months or be extended on application to a magistrate. The extension, however may only be limited to twelve (12) months from the date of the Village Court order. The complainant did exercise that right. The first defendant was aware of the complainant’s intentions.

-	A magistrate hearing an appeal has powers to confirm the decision, quash the decision or order the matter to be dealt with again in the village court, as he sees fit. (S.92(1).

Section 92 subsection (2) provides for grounds on which an aggrieved party may rely on.

The Hierarchy of the National Judicial System is set out in S.155 of the Constitution.

Village courts are such courts established by an Act of Parliament to deal with matters primarily by reference to custom or in accordance with customary procedures, or both.

Its decisions are subject to appeal and or be reviewed by the highest court in the order of the hierarchy of the National Judicial System.

The decisions of the village courts are not final, unless no appeal or review lies with other courts established under the constitution, including the District Court and the Local Court.

As noted earlier, the complainant lodged an appeal that was successful.

The District Court upheld the appeal on the grounds that the village court was not properly constituted, and therefore the matter was referred to the village court to deal with the matter again.

In this case the first defendant knew of the appeal from the day of the Village Court decision. He did not take note of it nor did he consider the consequences of the appeal. He went ahead to create a new relationship with the co-defendant.

In my view his actions did not amount to a person who was ignorant. He simply acted as an unreasonable person who could not reason as an ordinary person nor did he have the patience. He was passionate in getting even with the complainant for what she had done.

I further note that the new relationship had not been sanctioned by any law including customary law, whether be it in substance or procedural.

No evidence was adduced to establish that the new relationship was accepted by the relatives of the defendants and this is my view has not been sanctioned by the community at large.

Turning now to the defense raised by the first defendant, in that she was informed by the co-defendant that his marriage had been dissolved. Acting upon that information, she maintained the relationship.

The Adultery and Enticement Act 1988 does provide for such a defense Section 9 of the Act provides inter alia that:

9. DEFENSES

A defendant to an action under this Act, may, without prejudice to any other defenses which he may raise, raise any or all of the following defenses 

(a) - - - - -

(b) - - - - -

(c) That the defendant belief on reasonable grounds that the spouse with whom the act of adultery or enticement committed, was not married.

The burden rested on the defendant to proof on "reasonable grounds" that the co-defendant was not a married person.

Earlier stated as fact was that the complainant had confronted the first defendant resulting in a fight. She was also told that the second defendant is a married man to the complainant. Despite that she maintained the relationship, even to the time of the proceedings. 

Fighting over husbands is quite common in Goroka. That occurs even when a single female engages voluntarily in sexual relationships casually.

The fact that there was a confrontation between the complainant and the defendant should have alerted the second defendant that she was getting involved with a married man.

Furthermore, she alleges that she relied on what the second defendant told her. On the basis of the word alone she believed that the co-defendant was a divorcee.

Is the "believe on word alone" a reasonable ground that the co-defendant was a divorcee?

I ask that question because when a village court exercises its powers to dissolve a customary marriage, (see David Woodham And Janet Undai N1868), the divorcee’s are further required to obtain a certificate of dissolution of marriage pursuant to section 16 of the Local Court Act, cht.41 PNGRL.

The words of Section 16 are

Section 16. Dissolution of Customary Marriage

(1) 	A local court shall on application by a person married by custom, and on being satisfied that, that marriage has been dissolved in accordance with custom, grant to him a certificate that, that marriage has been dissolved.

(2) 	Subject to Part VI, a certificate under subsection (1) is conclusive evidence that the marriage has been dissolved.

No evidence was adduced to establish that such a certificate was shown to the defendant. Nor was there evidence that an application for such a certificate was pending.

In David Woodham and Janet Undai, N1868, the parties applied for a review in the court when a District Court magistrate dismissed the Joint Village Court, comprising Madang and Minj village courts, decision for lack of Jurisdiction, in dissolving the customary marriage.

The court however, held that although there is no express power in customary marriage or order compensation payment following such dissolution, there is a general power under S.47, 57 and 58 of the Act upon which the village court derives Jurisdiction to dissolve customary marriages and order compensation payments following such dissolution.

I distinguish that case to the present case in that, that case went up on review to the National Court relating to a dissolution issue while this is an issue of adultery being committed pending appeal to District Court.

In my view, a believe based on "word alone" is an unreasonable believe.

The actions taken by the complainant in confronting the first defendant should have raised some doubts in the mind of the defendant as to the dissolution of marriage of her co-defendant.

She should have by then realized that the co-defendant was still married. Actions to disassociate from the co-defendant should have been voluntarily taken then.

In the whole of the circumstances I consider that the defendants have been committing adultery.

In Person: Complainant
In Person: Defendant