DC 2096
PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE
SITTING IN ITS CIVIL JURISDICTION]
DC  85    of 2016
BETWEEN:

MARRIANNE WULARIA
-Complainant

AND:

BETTY BURUA
-Defendant

KIMBE:  M.L.KIVU

2016:  17th November,
     

FAMILY-Adultery & Enticement-Compensation-District Court’s Ancillary Jurisdiction-Equitable Remedy-Restraining Orders Sought Granted.

Cases Cited
Bini v Lamamau [1996] PGDC 5; DC6 (24 July 1996) 
Taru v Taru [2003] PGDC 17; DC180 (22 April 2003) 

SCR No 7 of 1992; Re Forestry Act 1991 and 
the East New Britain Forestry Operations Control Act 1992 

Gawi-v-Gawi [1997]PNGNC 181.

Wal Wine-v-Giglmai[1990] PNGLR 462

References
Section 1,2, 4& 12,18,20Adultery & Enticement Act
Section 22 District Courts Act
Sch.2 Constitution of the Independent State of Papua New Guinea

Appearances
Complainant In Person.
 Defendant In Person

DECISION
17th November, 2016
M.L.KIVU: This is a Complaint byMarrianneWulariaof Kokopo in the East New Britain Province of Papua New Guinea, filed in this court on the 07th November, 2016 alleging that:
“On the 04th –05th day of November, 2016 at Stay Well Lodge, Bialla, WNBP, the Defendant Betty Burua did engage in an act of voluntary sexual intercourse with IssacWularia the Complainants legal husband whilst knowing that IssacWularia is married to the Complainant thereby contravening Section 4 (1) (b ) of the Adultery & Enticement Act.”

The Complainant is seeking Orders that:
1.	Compensation for damages in the sum of K1000. Pursuant to Section 12 (2) of the Adultery & Enticement Act
2.	Defendant be refrained and restrain from communicating and committing the same offence with the complainant’s husband.
3.	Any other orders the court deems fit.
BACKGROUND
The Complainant and her husband are from East New Britain and live in Kokopo with their  children where they own businesses and well known in the province.
The Defendant Betty Buruais also from East New Britain, a young athlete and also popular as a representative of the province.
THE COMPLAINT
On the 01st November, 2016 the Complainant laid before me a complaint against her husband IssacWularia and a Susan Salaiau for adultery committed at Liamo Reef Resort. It was registered and set for mention on the 17th November, 2016 at 9.30 am. 
It appears that as the Complainant was to serve this summons on the first Defendant IssacWularia who had left Liamo Reef Resort and gone to Bialla, she found him at Stay Well Lodge with Betty Burua thus the date of Proof of service in the first case is the same as the date of complaint in this case being 04th November, 2016.
The second complaint between the Complainant and Betty Burua was then filed, registered and also set for mention on the same date as the first complaint being the 17th November, 2016 at 9.30 am.
On the 17th November, 2016 both parties appeared in person before me. I asked her to stand up which she complied and I put the complainant’s complaint to her in pidgin in the following words:
“Betty Buruaigat complaint longhia we complainant Marianne Wularia iregisterim we emi tokimdispelakotolsem long namba 4 igo long namba 5 day blodisplamun November 2016 insait long Stay Well Lodge long Biallainsait long West New Britain province, yu yet taimyu save olsemIssacWularia imarit long complainant na long laikblongyu yet, yumekimpasinkoapwantaimem. Taimyumekimdespelapasinyubrukim lo blongdispelakantri we itambuimdespelakainpasin, em Adultery & Enticement Act.
Olsemna Complainant ikotimyuna asking dispelakot longoderimyu longpeim compensation long K1000. long pasin adultery yumekim.
Emaskimkottu longorderimyu long stop longcontactimIssacWularianatu long stop long mekimdispelapasin adulterywantaimem.”
Ct: 	Yu kliatasol lo dispela complain?
Betty: 	Yes
Ct: 	Wonembekimbloyu long displa complain?
Betty: Yes emi tru.
(Betty Burua, there is a complaint before this court by the Complainant that on the 04th -05th November, 2016 at Stay Well Lodge in Bialla WNB you did engage in an act of voluntary sexual intercourse with IssacWularia the complainant’s legal husband whilst knowing that IssacWularia is married to the complainant thereby contravening Section 4 (1) (c) of the Adultery & Enticement Act.
After putting clearly the allegation to the Defendant, I then asked the Defendant if she understood the complaint and if she denied or admitted it.
She replied that she understood and admitted that yes, she knew they were married and yes, she admitted having voluntary sexual intercourse with IssacWularia.
I then proceeded to making orders against the Defendant Betty Burua.

THE LAW
The Law in this jurisdiction in relation to disputes of adultery is contained in the 
1.	Adultery & Enticement Act wherein spouse is interpretedin S.1:

(a)	“spouse” includes a party to a relationship between a man and a woman which can reasonably be considered as a subsisting relationship having the status of a marriage.

(b) 	S. 2. Of the Adultery & Enticement Act states that:
“An act of adultery is committed where a spouse engages in voluntary sexual intercourse with a person other than his spouse.”

(c) 	S. 4. (b)In relation to an action for adultery states:
4.(1) A person whose spouse has committed an act of adultery may bring an action under this Act against (b) the person with whom the spouse has committed the act of adultery

(d)	In relation to compensation for an act of adultery. S.12. (1) provides that:
12.(1) 	An order for compensation in an action brought in respect of an act of adultery shall be for an amount not exceeding K1,000.00.

		(e)	S.18. NON-COMPLIANCE WITH ORDER FOR COMPENSATION.
A person, who fails to comply with an order for compensation made against him under Section 11, is guilty of an offence.
Penalty: A term of imprisonment not exceeding six months.

(f)	S.20. ENFORCEMENT OF ORDERS.
An order of a Court shall be enforced under the District Courts Act 1963 or the Local Courts Act 1963, as the case may be.

2.	The ancillary jurisdiction of the District Court is set out in S.22 of the District Courts Act and also S.46 of the District Court Regulations and are set out hereunder:
(a)	22. GENERAL ANCILLARY JURISDICTION.
(1)	Subject to this Act, a Court as regards a cause of action for the time being within its jurisdiction, shall, in proceedings before it–

(2)	(a) grant such relief, redress or remedy, or combination of remedies, whether absolute or conditional; and

(b) give the same effect to every ground of defence or counterclaim, whether equitable or legal,

(3)	as ought to be granted or given in a similar case by the National Court and in as full and ample a manner.

	3. 	(a)	Sch.2 of the Constitution.
			“Sch. 2.2.2.Adoption of a common law.
(1) Subject to this Part, the principles and rules that formed, immediately before Independence Day, the principles and rules of common law and equity in England are adopted, and shall be applied and enforced, as part of the underlying law, except if, and to the extent that–
(a) they are inconsistent with a Constitutional Law or a statute; or
(b) they are inapplicable or inappropriate to the circumstances of the country from time to time; or
(c) in their application to any particular matter they are inconsistent with custom as adopted by Part 1”

4.	Caselaw: Wal Wine-v-Giglmai where Brunton J referred to andconsidered the caseWalsh v Lonsdale (1882) 21 Ch D 9, considered. 

Halsbury’s Laws of England (4th ed), Vol 16, par 1306: 

"<Equity> looks upon that as done which ought to be done or which is agreed to be done, but this maxim does not extend to things which might have been done; nor will <equity> apply it in favour of everybody, but only those who had a right to pray that the thing should be done."

ISSUES

1.	Whether adultery has taken place.

2.	Whether this court can grant the orders sought by the Complainant.

APPLICATION OF THE LAW TO THE ISSUES

1.	Whether the act of adultery has taken place?

In applying the law as set out to the first issue the complainant’s complaint clearly stated that:
“ on the 04-05thof November, 2016 at Stay Well Lodge in Bialla you did engage in an act of voluntary sexual intercourse with IssacWularia the complainant’s legal husband whilst knowing that IssacWularia is married to the complainant.” 
which when put to the Defendant by the court she admitted.
The wording of the complaint used “legal husband” instead of spouse so I consulted the Oxford dictionary and indeed the word “spouse” is a noun that means wife or husband.
Wife –married woman in relation to her husband.
On the basis of her admission the court is satisfied to the required standard on the requirement of Section 2 of the Adultery & Enticement Actwhich is that “an act of adultery is committed where a spouse engages in voluntary sexual intercourse with a person other than his spouse.”
I am satisfied that the act of adultery has taken place.

2.	The second issue of whether this court can grant the orders sought by the complainant is in two parts (a) and (b) due to the fact that there are two orders sought by the Complainant.

(a)	The First order sought is for compensation in the sum of K1000. 
Section 12 (1) states:
“An order for compensation in an action brought in respect of an act of adultery shall be for an amount not exceeding K1,000.00.”
Yes upon the Defendant’s admission the court being satisfied that adultery has been committed  an order for compensation in the amount claimed by the complainant is granted.
(b)	The second order sought is for an order restraining the Defendant from further communication with IssacWulariaand continuing with the offence and;
	
The Adultery & Enticement Act being an Act to regulate certain aspects of disputes relating to adultery and enticement, as a matter of national interest.
National interest is not defined in the act itself however these words are used in start of most legislation to differentiate what areas only the National Parliament can make laws on and what areas Provincial Legislatures can enact laws on pursuant to their law makings powers under Section 29 of the Organic Law on Provincial and Local Level Governments and in a case where there is a conflict of laws.
Case of [1992] PNGLR 514 - SCR No 7 of 1992; Re Forestry Act 1991 and the East New Britain Forestry Operations Control Act 1992 .
The liberal meaning of the words indicate parliament’s intention in the enactment is of interest to the nation.I can only refer to the National Goals and Directive Principles as a guide wherein specifically mentioned are:
1.	Intergral Human Development
(5) the family unit to be recognized as the fundamental basis of our society, and for every step to be taken to promote the moral, cultural, economic and social standing of the Melanesian family; (underlining for emphasis mine) and;
2.	Equality and Participation
(12) recognition of the principles that a complete relationship in marriage rests on equality of rights and duties of the partners, and that responsible parenthood is based on that equality.”
	Whilst considering this issue for guidance, I have consulted some past decisions of brother magistrates of the District Court relating to issuance of restraining orders in adultery cases and refer to in the case of:
Bini v Lamamau [1996] PGDC 5; DC6 (24 July 1996) by His Worship the late  OrimKarapo-SPM-Kavieng District Court and in the more recent case of Taru v Taru [2003] PGDC 17; DC180 (22 April 2003) by His Worship D.Wakikura on penalty for breach of restraining order issued pursuant to S.22 DCA to be a fine.)
In these two cases restraining orders were granted pursuant to the ancillary jurisdiction of the District Court and as it was appropriate in the circumstances in the case of Bini-v-Lamamau(supra) under S.22 and it was in-line with customary practices  in that part of the New Ireland Province whilst in the case of Taru-v-Taru enforcement for breach and a fine of K100 pursuant to S.200 of the District Courts Act.

Section 20 of the Adultery & Enticement Act was discussed in that enforcement of any other orders given by the court will be dealt with under the District Court Act 1963 clearly indicating that the court can make other orders apart from compensation enforcement of which is under S.18 of the Adultery & Enticement Act.

Ancillary Jurisdiction
The ancillary jurisdiction of this court is contained in section 22 of the District Court Act and states:

“22.
(1)	Subject to this Act, a Court as regards a cause of action for the time being within its jurisdiction, shall, in proceedings before it– (underlining and bolding mine and for emphasis)

(2)	(a) grant such relief, redress or remedy, or combination of remedies, whether absolute or conditional; and

(b) give the same effect to every ground of defence or counterclaim, whether equitable or legal,

(3)	as ought to be granted or given in a similar case by the National Court and in as full and ample a manner.”
The use of shall making it mandatory.

The Defendant is a young girl who does not have any children from the complainant’s husband and secondly the date of the alleged sexual intercourse is 04th and 05th November, 2016 clearly confirming it could have been a two night stand as prior to that on the 12th August, 2016 the Complainant’s husband admitted committing adultery with Susan Salaiau at Liamo Reef Resort and orders for compensation were accordingly entered.

Not only that but the fact that the complainant has not included her husband as a defendant indicates there is forgiveness and room for reconciliation and should be supported by the court.

Marriage as defined by the Oxford Dictionary is a legal union of a man and woman, in this case Marrianne and IssacWularia, the Defendant is not a party to the marriage and cannot be in a position to answer to this court on the status of that marriage but having admitted to adultery she has crossed the line of the marriage perimeter which is in place until such time the marriage is dissolved thus in the interim for peace to prevail in the marriage and family unit existsthe need for a restraining order to be issued which of course ceases to have any effect once dissolution or divorce has taken place meaning there is no longer any marriage between the parties.

Equity
This court should be morally conscious and do what needs to be done and gain the confidence of its users little wonder people are going in an adultery spree, domestic violence and maintenance cases increase and maintenance arrears staggering. 
As a court I understand I have a duty as the court of jurisdiction in this matter and by granting restraining orders where appropriate in support of what is a matter of national interest this court, apart from deterring immoral behaviour isalso getting people to understand and follow the laws in place for either reconciliation and reconfirm marital duties and responsibilities as a matter of national interest, if not an application for dissolution of marriage or divorce if the marriage has completely broken down as held by Woods J, in the case of Gawi-v-Gawi [1997]PNGNC 181.
Some questions in my mind now is if this court does not grant the restraining order sought by the complainant isn’t it contributing to break down of the marriage?

Considering the fact that most women in this country are housewives whose husbands are the sole breadwinners of the families and do not have the means to file for a divorce it’s like adding on another load apart from the question of how can the Defendants in continuing with adultery use their own adultery as a ground for divorce and free themselves from the marriage since a new union is in their interest.

At this juncture, I refer to the case of Wine v Giglmai (supra) on the principles of equity as cited by Brunton J,Halsbury confirms this view, citing Walsh v Lonsdale (supra) in Halsbury’s Laws of England (4th ed), Vol 16, par 1306: 
"<Equity> looks upon that as done which ought to be done or which is agreed to be done, but this maxim does not extend to things which might have been done; nor will <equity> apply it in favour of everybody, but only those who had a right to pray that the thing should be done."

Thus I am of the view that it is within the rights of a complainant to pray for such an order against a defendant who for now I am still trying to figure out the nature of her rights if any which for now should stop immediately upon reaching the marriage perimeter or boundary.

In the absence of a provision on restraining orders Sch. 2 of the constitution allows resort to equity. 

The principle of estoppelshould apply to the extent that while the Adultery & Enticement Act gives a wider and /or different meaning of “spouse” as that in the oxford dictionary, a woman who admits to committing adultery and having enjoyed the act of sexual intercourse as such should be estopped from questioning the marriage or demanding proof of it and exits as an adulteress.
This is because it is no longer strictlyeither customary or statutorywhich arethe valid and legal onesunderthe Marriage Act.

I am respectfully of the view that adultery is dealt with due to the fact that the marriage and the family unit are matters of national interest to provide a conducive environment for integral development and marital duties and responsibilities need to be strengthened by the district court which is the court of jurisdiction but each case should be looked at in its own circumstances so long as we are clear what or whose interest we are supposed to be protecting.

All of the above set a sound basis for this court to exercise its powers and grant the restraining orders sought by the Complainant against the Defendant which are neither  harshnor oppressive and appropriate in the circumstances.

For the Defendant to think and insist  otherwise is like claiming damages for breach of a contract she is not privy to or like the biblical story of the woman caught in adultery refusing to leave after the instructions to “go and sin no more”.(Jn 8:1-11)

On this basis I conclude this matter by making the following orders:
Court Order
1.	Pursuant to Section 12 (1) compensation of K1000. Shall be paid by the Defendant to the complainant within two (2) weeks by the 01st December, 2016.

2.	The Defendant shall refrain and is hereby restrained from further communicating and committing adultery with the Complainant’s husband IssacWularia.