DC251

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 06 OF 2003

BETWEEN

Nancy Anton
Complainant

v

Lina Bangindimi
Defendant

Wewak: T. Morabang, Spm
2002: 02, 10, 30 April, 06 May.

Compensation claim under Adultery and Enticement Act - claim of K1,000.00.

Cases

Statute
Adultery and Enticement Act 1988.

Complainant on her own behalf. Defendant on her own behalf.

DECISION

09 May, 2003.

MORABANG SPM: The Complainant had summonsed the Defendant claiming that the Defendant had had sexual intercourse with her husband Steven Anton on the 04 November 2002, at Y.C Kanda and she had sought for compensation in the sum of K1,000.00.

The Complainant stated in evidence that prior to the 04 of November 2002, on 28 October 2002, to be exact she had returned to Wewak: from her village in Angoram after attending her elder brother's funeral. Also early that morning, her husband Steven, who is the cause of this litigation, had spent weekend out. He had got himself bashed up and he got home nursing a black and swollen right eye. And he would not talk to her about how he had sustained the injury. She was however told by her younger sister that Steven had been assaulted by two men at Dagua "Bronx" compound on Friday night 25th October 2002, when he was walking with Defendant. The two men were from the Defendant's village, YAMANUMBU. This fact was later admitted by the husband.

The Complainant did not do anything until the 5th November, 2002. Early on this date the Complainant had gone to Kaindi and asked the Defendant's neighbors to show her Defendant's house because Steven didn't sleep at their own house on 04th November, 2002. When she was shown the house, she went and stood close to the house and called out,

"Steven, yu slip long dispela haus, yu kam ausait!"

She had waited a while and very slowly, Steven emerged from Defendant's house. She scolded him and he said,

"Mi save, mi rong pinis. Mi slip wantaim meri long haus bilong em
na mi kam autsait. "

The Complainant and Steven then returned to Kreer. At that time, the Complainant didn't see the Defendant. She may have been inside.

The Complainant and husband had been married through the wife's custom and relatives of both parties recognise their marriage. The Complainant called three witnesses, her two younger sisters and her husband. The sisters Julie Kavun and Merolyn Yapi had seen Steven and Defendant together at some time or other but none of them could relate to the date in question ie. the 4th November, 2002. Julie had known about Complainant going to Kaindi to look for her husband on 1st January, 2003.

On 2nd January 2003, she had gone to Police Station with Complainant to lay a complaint and after that, they went by Police Duty car to pick up Steven and Defendant. The Defendant was picked up near Marani Store while Steven was picked at Defendant's house at 9.00am He had been inside Defendant's house and he came outside and jumped on the Police car and they went to Station.

Merolyn Yapi had also seen Steven and Defendant together many times but she never said anything until one Friday night she saw Steven and Defendant entering the dance area of the Windjammer Hotel. She became angry and scolded Steven.

Then on Friday 7th February 2003, she had actually introduced herself to Defendant as being Complainant's sister but the Defendant just nodded and moved away from her.

Steven Anton also gave evidence in support of his wife. He said his wife had found him at Defendant's house on 4th November, 2002 and scolded him.

He said at that time the Defendant stayed in the house while he walked outside. He walked to the Bus Stop and caught a Bus to Kreer, to their house. Complainant followed him and continued to scold him. He said he knew he had done wrong so he didn't say anything.

The Defendant in her evidence stated that on 3rd November 2002, she had gone to visit her sister at Moem Barracks. She had stayed at the Barracks overnight watching TV.

On 4th November 2002, Complainant had gone to her house at YC Kilindi while she was at Moem Barracks. She had arrived back at her house at 11.00am and she was told by neighbours that Complainant had gone there earlier and scolded Steven and they had gone away. The neighbours were the Ward Committee Michael Gawi, Justin and his wife.

In the evening of 16th November 2002, Steven went to Defendant's house. At that time, Petrus Gawi, Michael Gawi and Justin told him that the Defendant is a problem woman. That she had left her husband and came to stay with them. They told him he is a married man and he shouldn't be visiting Defendant and they strongly urged him to desist.

But Steven told the men "I don't care about what problem the woman is in. I will take her as my second wife and I will look after her. I will talk to my wife." He then went back to Kreer.

Around 7.45pm on 17th November 2002, Steven returned to Defendant accompanied by his Complainant wife. The Defendant who had been sitting down on a boat, on seeing them stood up and greeted them by saying goodnight and offered them a form to sit on while she went to buy "buai" and at the same time bring the Committee to hear what was to be said.

She bought buai and fetched the Committee Petrus Gawi, his wife, Justin's wife and Tom Sengi and they all came and sat down with Complainant and her husband. The Complainant said in answer to the Committee's query what she thought and she said that she had been going through a lot of problems with Steven and she was tired and said it was alright Defendant could become Steven's second wife and they would stay together. The Complainant was asked the second time if she would really consent to having Defendant becoming Steven's second wife and she said "Yes, bai mitupela i stap wantaim. Em wantok meri" The Committee asked Complainant if she had anything further to say and she said 'no'.

The Committee then advised Steven that he could take the Defendant as his wife but he must look after both the women equally. Steven said 'Yes' to the Committee and added that he was fit to look after both women.

They then dispersed at around 9.00pm. The Defendant walked with Steven and Complainant to the road near Y. C, shook their hands and they walked back to Kreer and Defendant returned to her house.

There had been no more confrontations between Complainant and Defendant until 9th January, 2003 when Complainant had gone early in the morning in search for her husband at Defendant's house. Steven was not with Defendant but Complainant had used some bad words to Defendant. Defendant followed Complainant to Y. C where they exchanged punches and Complainant had returned to Kreer.

On 10th January 2003, Complainant fetched Police for Defendant. She was taken to Police Station and when Police interviewed them, they found that Complainant had been in the wrong and they advised her to summons Defendant for adultery, thus these proceedings.

The Defendant called two witnesses, then Ward Committee Petrus Gawi, and Betty Kawas. Petrus Gawi testified saying he was at the gathering on 17th November, 2002 and what he had related confirmed what the Defendant had earlier told the Court and there is no need to discuss the same thing here. Betty Kawas confirmed that Defendant had gone to visit her at Moem Barracks of! 3rd November, 2002. She slept there and returned to Y.C on 4th November, 2002.

So it is confirmed that .Defendant had slept in her own house on 4th November, 2002 and it also confirms that Steven had slept in Defendant's house on 4th November, 2002.

And in the morning of 5th November 2002, the Complainant had gone to Defendant's house searching for Steven. The Defendant didn't sleep at Moem on 4th November, 2002 as she had claimed.

She went there on 3rd November 2002, spent the night and returned to her house on 4th November, 2002.

Now sexual intercourse may be inferred to have taken place on 4th November, 2002 between the Defendant and Steven because Steven had slept in Defendant's house, if evidence had been led by Complainant that she had caught them sleeping in the room or if she had seen them coming out together or if she had seen the Defendant escaping from her own house.

It is however, unfortunate that none of these had occurred and matter is left wanting in more evidence to provide sufficient circumstantial evidence to infer that an act or acts of sexual intercourse had taken place on 4th November, 2002 whereby the Complainant would be in a better position to claim compensation.

AND finding thus, the verdict is entered for the Defendant and the matter is dismissed.

Ordered accordingly.

In Person: Complainant
In Person: Defendant