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Hosea v Maya [1989] PGNC 38; [1988-89] PNGLR 382; N757 (2 October 1989)

N757

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

BETTY HOSEA AND MICHAEL MAYA

V

EAU MAYA

Waigani
Kapi DCJ
25 August 1989
2 October 1989

ADULTERY - Proceedings for - Compensation - "Total amount of" - Maximum prescribed - Maximum applies where more than one party sued - Adultery and Enticement Act 1988, ss 11, 12(2).

The Adultery and Enticement Act 1988, s 12(2), provides:

"Where separate actions are brought by the same person or on behalf of the same person in respect of the same act of adultery, the total amount of compensation shall not exceed K1,000."

Section 11 provides:

"... the Court may make an order for compensation to the complainant against all or any of the defendants."

Held

Whether actions for adultery under the Adultery and Enticement Act 1988 are brought either separately or jointly the total amount that can be awarded against one or all defendants is K1,000.

Appeal

This was an appeal from a decision of the District Court in an action for adultery under s 4 of the Adultery and Enticement Act 1988.

Counsel

B O Emos, for the appellants.
V Kapa, for the respondent.
Cur adv vult

2 October 1989

KAPI DCJ: This is an appeal from a decision of the District Court dated 24 February 1989.

An action was brought against the two appellants for adultery pursuant to s 4 of the Adultery and Enticement Act 1988, and the first appellant was ordered by the court to pay K600 to the respondent and the second appellant was ordered to pay K1,000.

The appellants have appealed against both the finding that there was an act of adultery and against the award of compensation.

On the question of adultery, the first appellant argued that there was a defence under s 9(1)(c) of the Act in that the first appellant believed that the second appellant was not married. She gave evidence to the effect that she based her belief on representations by the second appellant that he was not married. However, she further stated in her evidence that she knew that the appellant had three children with the respondent. Apart from this, there was evidence that on repeated occasions, the respondent had confronted the first appellant and that physical fights had taken place between the two of them. On this evidence, it was open to the magistrate to come to the conclusion that she had no reasonable grounds for believing that the second appellant was not married. I would dismiss this ground of appeal.

On the award of compensation, the relevant provision under consideration is s 12(2):

"Where separate actions are brought by the same person or on behalf of the same person in respect of the same act of adultery, the total amount of compensation shall not exceed K1,000."

Although this provision speaks of separate actions, there is nothing in the Act to prevent an action against two people in respect of the same act of adultery. This is clearly implied in s 11:

"... the Court may make an order for compensation to the complainant against all or any of the defendants."

The principle is that whether actions are brought separately or jointly, as in the present case, the total amount to be awarded against both defendants is not to exceed K1,000. It follows from this that the learned magistrate was clearly in error because the total amount awarded against both appellants was K1,600.

How am I to assess the proper compensation? Section 16 is relevant and it is as follows:

"In determining the amount of compensation that may be awarded against a defendant, the Court shall take into account:

(a) the defendant’s earning capacity, and

(b) any financial hardship likely to be suffered on the making of the order, and

(c) any other matters the Court considers to be relevant including whether payment of compensation according to custom has been made in respect of the act of adultery or the act of enticement."

In respect of s 16(a) and (b), both appellants led evidence by affidavits setting out the particulars of their earning capacity and their net income. No evidence was given of any relevant custom or customary payment made by any of the parties. In considering compensation, I take into account the fact that the relationship between the two appellants continued despite efforts by the respondent to stop the relationship.

In apportioning compensation between the two appellants, I bear in mind that the second appellant should bear the greater part of the compensation. It was he who left the family but also to some extent misrepresented his marriage relationship to the first appellant.

I make the following orders that the first appellant is to pay K300 and the second appellant is to pay K600.

Orders accordingly

__________________

Lawyers for the appellants: Billy Oscar Emos & Company.
Lawyers for the respondent: K Vuatha Kapa & Associates.