N2427

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

APP. NO. 7 OF 2003

BETWEEN:

SHEM EMMANUEL
First Appellant

AND:

ELIZABETH NORMAN
Second Appellant

AND:

ELIZABETH IGA
Respondent

LAE: KIRRIWOM, J.
2003: 9TH & 14th JULY 2003

INFERIOR COURTS – District Court – Adultery and Enticement Act – District Courts Act - Jurisdiction and Powers of District Court – Limited jurisdiction – Constitution, section 172(1)

Adultery – Power of District Court – Limited Authority - Order restraining adulterous parties from ‘seeing each other’ or living together - Order lacked statutory authority and beyond magistrate’s powers– Order null and void.

Adultery and Enticement Act – Preamble – Specified objective and purpose – Limitation of the Act – Remedy after the act only – No power to prevent sexual intercourse between two consenting adults – Limitation of the law – Unenforceability

Counsel:
Mr. Togo for the Appellant
Respondent in person

14th July 2003

Kirriwom, J.: This is an appeal against an order of the District Court in Lae made 14th January, 2003 which ‘restrained the Appellants from seeing one another’ amongst other orders made as to payment of compensation of K500 each respectively, a total of K1000, by the appellants to the respondent. The orders were made under the Adultery and Enticement Act where the appellants were appearing on summons on complaints of adultery.

The respondent is the customary wife of the First Appellant. They have been married since 1996 and there are three children born to the marriage, two girls and a boy. Their ages are 5 years, 3 years and 10 months. The marriage is not disputed. By his own admission in court and the overwhelming evidence of the fact of his marriage to the respondent through serious confrontations and quarrels between the respondent and the second appellant is a testimony in itself to the second appellant that the First Appellant was the respondent’s husband and the father of her three children. Unfortunately at the time this proceeding was commenced the Second Appellant too had become a mother of the First Appellant’s child she was carrying in her belly from the adulterous relationship that was maintained between her and the First Appellant. 

At the time of hearing of this appeal only the Second Appellant was in attendance. I was informed that the First Appellant had been committed to prison for not complying with the order for payment of compensation to the respondent within the period of five weeks they were given to pay in addition to violating the order against living together or seeing each other. The First Appellant’s explanation is that he and the Second Appellant are living together as he has no other place to stay. 

The order was made on 8th April 2003 on application, four months after the compensation award was made, which was a fairly generous grace period given to the appellants by the respondent. Both appellants were sentenced to six months imprisonment (the maximum under the Act) and the sentence against the Second Appellant was wholly suspended on twelve months good behaviour bond and cash surety of K100 to be paid within two weeks.

The maximum that the court can impose for non-compliance under section 18 of Adultery and Enticement Act is six months. The order for imprisonment for not paying the compensation ordered is quite in order. However to the extent that the punishment also includes the violation of the order ‘restraining the appellants from seeing each other or being together’ has no force of law behind it and imprisonment in that respect maybe unlawful as the reasons given herein will show. But I am satisfied that the appellants have not paid the compensation which has not been denied and the court has power under section 18 of the Act to impose prison sentence. While the six months sentence is the maximum, given the First Appellant’s propensity to continue to live in adulterous relationships while maintaining a family of wife and children, which is supported by evidence, the period of incarceration ought to drive home to the First Appellant the message that defiance of the law and bigheadedness will only invite him more pain as the court has the duty to ensure that the laws of the country are obeyed. 

Despite the fact that the case has progressed to this eventuality, the primary contention of the appellants in their appeal remains to be addressed. That issue is raised by the appellants’ only ground for appeal, which is that the learned magistrate erred in law in stopping the appellants from seeing each other or staying together, as the wording of the ground itself appears to suggest. They each lodged separate appeals but pleaded the same ground worded almost in identical terms.

Mr Togo submits that the learned magistrate did not have jurisdiction to make the order complained of and therefore that order has no force of law. He submits that the relevant statute from which this proceeding arose does not empower the magistrate to make this order, nor does the District Court Act give this power to the magistrate. The only power closest to this type of injunctive relief given to a magistrate under the District Court Act is the power to require a violent husband to give sufficient surety to keep peace and to behave towards the wife inferentially by maintaining a physical distance from her pursuant to sections 209 and 210. Apart from this the District Court Act does not empower the magistrate to separate parties and restrain them from seeing each other.

The power of the District Court is limited to what the enabling Act expressly provides. Generally all courts of summary jurisdiction exercise their powers within the limitation imposed upon the court as creatures of Statute. They are not court of records. Their first source of power is the law under which the District Court is given the jurisdiction to deal with a matter, for example in this case the Adultery and Enticement Act. If a remedy sought under that Act is unavailable the next reference point is the District Court Act, which is the overall law that creates the Court and gives it power. If that Act is silent or makes no provision for the type of relief that a party seeks, there is no other source. That is why the District Court and all other subordinate courts are courts of limited jurisdiction to the matters specifically granted to them by statute.

Only the National and Supreme Courts are courts of record and have unlimited jurisdiction over all matters and can make all such orders within the bounds of law as justice of a case requires. This is spelt out in the Constitution section 155 which provides: 

"155.	The National Judicial System.

(1)	The National Judicial System consists of—
(a)	the Supreme Court; and
(b)	the National Court; and
(c)	such other courts as are established under Section 172 (establishment of other courts).

(2)	The Supreme Court—
(a)	is the final court of appeal; and
(b)	has an inherent power to review all judicial acts of the National Court; and
(c)	has such other jurisdiction and powers as are conferred on it by this Constitution or any other law.

(3)	The National Court—
(a)	has an inherent power to review any exercise of judicial authority; and
(b)	has such other jurisdiction and powers as are conferred on it by this Constitution or any law,

except where—

(c)	jurisdiction is conferred upon the Supreme Court to the exclusion of the National Court; or
(d)	the Supreme Court assumes jurisdiction under Subsection (4); or
(e)	the power of review is removed or restricted by a Constitutional Law or an Act of the Parliament.

(4)	Both the Supreme Court and the National Court have an inherent power to make, in such circumstances as seem to them proper, orders in the nature of prerogative writs and such other orders as are necessary to do justice in the circumstances of a particular case.

(5)	In a case referred to in Subsection (3)(e), the National Court has nevertheless an inherent power of review where, in its opinion, there are over-riding considerations of public policy in the special circumstances of a particular case.

(6)	Subject to any right of appeal or power of review of a decision, it is the duty of all persons (including the Law Officers of Papua New Guinea and other public officers in their respective official capacities), and of all bodies and institutions, to comply with and, so far as is within their respective lawful powers, to put into effect all decisions of the National Judicial System."

The Constitution also provides for the establishment of other courts under section 172 and it grants the power of determining their source of power to the statute that creates them where it states in subsection (1): 

"172.	Establishment of other courts.

(1)	Subject to this Constitution, Acts of the Parliament may establish, or provide for the establishment of, courts within the National Judicial System in addition to the Supreme Court and the National Court, and may define, or provide for the definition of, their respective powers, functions and jurisdictions and their relationship with other components of the National Judicial System."

In accordance with this section the Parliament has enacted the District Court Act whose preamble states that it is an Act to provide for the establishment of District Courts and their jurisdiction and proceedings, and for related purposes. 

Whilst I appreciate the desire of the learned magistrate to see a just and fair remedy by directly addressing the continuing illicit affair of the First Appellant with the Second Appellant and his promiscuous lifestyle as is apparent from his previous appearance in court for adultery in 2001 with another woman where they were both adjudged guilty and ordered to pay K1000 compensation to the respondent with the restraining order he made, unfortunately that order is devoid of a valid legal mandate. There is then the order for maintenance obtained against him on 28 January 2003 and I wonder if he will ever be able to meet these obligations seeing that he has not even paid the compensation order. He has clearly demonstrated to be a very uncaring and irresponsible father of children. But this also does not fuel any legitimacy for the court, in hindsight, to do justice to the suffering mother and the children through an injunctive order in the nature that was made, indirectly compelling the irresponsible father to return home to the respondent and the children where he belongs instead of being with the second appellant. 

The Adultery and Enticement Act was enacted to remove the criminal element of adultery that existed in the old Native Administration Regulations 1924 (New Guinea) and Native Regulations 1938 (Papua) along with the intention to universalise its application irrespective of racial origin. In the old law adultery was a criminal offence against ‘natives’ only. While the Act succeeded in both decriminalisation and universalisation of the application of the law, it has not provided for dealing with repeat offenders of the Act. How many times can a wife or a husband take her or his spouse to court with another or the same woman or man for adultery if the first adjudication failed to deter? That is what this case is all about. Despite the fact that the appellants were ordered to compensate the respondent and restrained them from seeing each other, they continued to live together. How does the wife or husband deal with the continuing offence and what power does the Act bestow upon the District Court to address subsequent or continuing acts of adultery of the parties?

A fundamental and more serious question that comes to mind is what is the purpose for the law against adultery committed between two consenting persons who clearly come within the jurisdiction of this Act? This is bearing in mind that even de facto relationship of over many years between the parties is deemed sufficient for this law to apply, as section 1 which provides the definition of ‘spouse’ is so wide to cover non-legal or non-customary relationships. Spouse is defined as ‘a party to a relationship between a man and a woman which can reasonably be considered as a subsisting relationship having a status of a marriage’. And the ‘act of adultery’ is described under section 2 as ‘voluntary sexual intercourse by a spouse with a person other than his spouse’. This provision has eliminated the ‘strict proof of marriage requirement’ under the old regime along with the discriminatory application of the law only to nationals or automatic citizens who got caught. 

The preamble states that it is an Act to regulate certain aspects of disputes relating to adultery and enticement, as a matter of national interest. Inferentially, the primary purpose of the Act is to provide some form of compensation for a wife or husband who is aggrieved as the result of adultery committed by her or his spouse, in most cases it is the wife who is often the silent sufferer of this matrimonial offence. The Act imposes penalty on both adulterous parties, including her or his own spouse, to be liable in compensation to the maximum of K1000 from both. But that is as far as the Act can go beyond which it cannot dare venture into. That will be descending into the realm of marriage and divorce, which is a different field of play and a different ball game that falls outside or beyond the powers of the District Court. Whilst this leaves very unsatisfactory result at the end, that is the way the law is designed and presently in force governing human relationships. Only the National Court has the original jurisdiction in this area of legal disciplines. 

It must also be appreciated that when recognising and accepting the limitation of the Adultery and Enticement Act in so far as its primary objective of good stable family relationships is concerned, there are some matters that the Parliament cannot in all propriety and human endeavour simply legislate on and that is to restrain or prevent sexual intercourse per se between a man and woman whatever the nature of their relationship maybe. It is simply unenforceable by nature. Any such law is open to rebuke and will be like a ‘toothless tiger’ that sees a prey but cannot strike without its teeth because come high or low water no one and nothing can stop two people determined on having sex, if and when they choose to do so. That is the law of reality. All that the law can do is punish after the event or the act of adultery has been committed and that is what Adultery and Enticement Act is all about and at best hope that the punishment imposed as compensation or imprisonment (in default of compensation) is sufficient deterrence against repetition.

It seems to me therefore that what the learned magistrate tried to do here is do the impossible task of preventing this intimate act of affection or love of two people displayed sexually in private through judicial intervention, a power that he did not, either impliedly or by express provision of any law, have in the first place.

I find therefore that the presiding magistrate erred in law in the order he made by restraining or preventing the first and second appellants from "seeing one another other", and because they were already living together, which effectively meant ‘not living together’, as he did not have the statutory mandate to make such an order. The order is therefore null and void and is quashed.

Appeal upheld.

Lawyer for the Appellant: Warner Shand Lawyers