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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CIA NO. 49 OF 2008
BETWEEN:
NEMA MONDIAI
First Appellant
AND:
RACHAEL IMBOLA
Second Appellant
AND:
JULIAN MONDIAI
Respondent
Lae : Sawong, J
2011 : 13 & 22 September
APPEAL – district court appeal – grounds of appeal based on learned magistrates error in law and in fact when he recognized de facto relationship as legal marriage by custom under Laws – factors that constitute legal marriage, customary marriage and status marriage considered – first appellants admission that he was married to the respondent for 14 years contradicts his statement that he was only in a de facto relation with respondent – no sufficient evidence to suggest first appellant's status marriage had ended and that his marriage to second appellant was legal and proper – appeal dismissed – District Court Orders affirmed and appellant to pay costs
Case Cited:
Copland Oa & Esther Korua v. Nelson Korua [1999] N 1871
Elma John & Luke Mane v. John Nake [Unreported & Unnumbered Judgment delivered in Lae, 14th May 1979]
Pauline Titus & Nathan Kigolena v. Saliau Molean, [Unreported & Numbered Judgment (CIA 137/2009)]
Counsel:
L. Tunian, for the Appellants
R. Yayabu, for the Respondent
DECISION
22 September, 2011
1. SAWONG J: This is an appeal from a decision of the District Court where the learned Magistrate found that the first and second appellant had committed adultery when there was an existing marriage between the first appellant and the respondent. He also ordered that the appellants pay compensation to the respondent totaling K1,000.00.
2. In the trial the respondent and five others gave sworn evidence on her behalf. The two appellants gave evidence on their own behalf.
3. The proceedings were brought by the respondent against the Appellants for adultery under the Adultery & Enticement Act, 1988 (the Act).
4. The brief background is as follows. The first appellant and the respondent had been married by custom in accordance with the customary practices of the Finschhafen people of Morobe Province. They have been living together as husband and wife for 14 years.
5. In or around 2005, the first appellant secretly befriended the second appellant, whilst his marriage to the respondent was still subsisting. Their relationship continued until 4th August 2007. On that day the first appellant went and paid bride price for the second appellant. Thereafter, the second appellant came to Lae and lived with the first appellant as his wife.
6. The proceedings were filed on 7th September, 2007.
Grounds of Appeal
7. There are four (4) grounds of appeal and these are:
(a) That the learned Magistrate erred in law and in fact when he recognized de facto relationship as legal marriage by custom under Laws;
(b) That the Magistrate wrongly found both defendants guilty of committing adultery when there was no evidence produced by the complainant before him.
(c) That the learned Magistrate failed to weigh the evidence of the defendants when their evidence out weighted the complainant's evidence.
(d) That the penalty imposed by the Presiding Magistrate was harsh and oppressive.
8. At the hearing of the appeal, counsel for the appellants abandoned grounds (b), (c) and (d) of the Notice of Appeal, though written submissions addressed those. She only pursued ground 1. Consequently, grounds (b), (c) and (d) are dismissed. I shall therefore address only ground (a).
9. In order to properly consider this ground of appeal, it is necessary to discuss the relevant and applicable legal principles.
10. The starting point, in my opinion is to consider the relevant provisions of the Adultery & Enticement Act. The relevant provisions are sections 1, 2 & 4 of the Act.
11. Section 4 of the Act is the enabling provision. It enables an aggrieved spouse to bring an action for adultery. It reads:
"4. Action for adultery
(1) A person whose spouse has committed an act of adultery may bring an action under this Act against –
- (a) the spouse; or
- (b) the person with whom the spouse has committed the act of adultery; or
- (c) the spouse and the person referred to in paragraph (b).
(2) For the purposes of an action under Subsection (1), all acts of adultery committed between the same persons before the commencement of the action shall be regarded as one act of adultery."
12. Section 2 of the Act prescribes what an act of adultery is. It reads:
"2. An act of adultery is committed where a spouse engages in voluntary sexual intercourse with a person other than his spouse".
13. The expression "spouse" is defined in s. 1 of the Act. It reads; "Spouse" includes 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".
14. In my opinion, s. 1 of the Act has extended the meaning of the expression "spouse". That expression, for the purposes of the Act, is no longer restricted to marriages under the Marriage Act, whether it is a customary marriage or statutory marriage. The standard of proof is on the balance of probabilities. (see s.19 of the Act)
15. That expression has been given a wider meaning to cover a "relationship between a man and a woman which can be reasonably considered as a subsisting relationship having the status of marriage".
16. The Act does not set out what are the relevant factors or circumstances needed to determine a status of a marriage. However, counsels have referred me to several authorities of Injia, J (as he then was) which are of assistance. These includes Copland Oa & Esther Korua v. Nelson Korua [1999] N 1871, Elma John & Luke Mane v. John Nake [Unreported & Unnumbered Judgment delivered in Lae, 14th May 1979], Pauline Titus & Nathan Kigolena v. Saliau Molean, [Unreported & Numbered Judgment (CIA 137/2009)]. I have read each of these authorities.
17. I am of the opinion that the principles set out in Copland Oa & Esther Korua v. Nelson Korua by Injia, J (as he then was) are relevant and applicable in this case. There His Honour said at p.2:
"In a case where the complainant relies on the existence of a subsisting marriage of one form or another, and the defendant denies the existence of any such marriage relationship, the Court must be clear about the precise kind of "marriage" relationship in issue in the proceedings. There are three kinds of "marriage" relationship covered under the definition of "spouse" in S. 1 – a registered marriage under Part V of the Marriage Act (Ch. No. 286), a customary marriage recognized by Part II of the Marriage Act and if I may use the term "status marriage" for want of a better term, described in S. 1.... The onus is on the complainant to prove the existence of any one of these three types of "marriage" as required by S. 2 and it is for the defendant to prove the absence of any of these three types of relationships as prescribed by S. 9(1)(a). The proof of the existence or otherwise of a registered marriage and customary marriage should not pose any great difficulty whereas proof of a "status marriage" does .........".
18. He then refers to his own previous decision in Elma John & Luke Mane v. John Nake where he laid down various considerations relevant to determining a "status marriage" and the factors to be applied. There he said:
"As to what factors are relevant to be considered in deciding whether a relationship is one enjoying the "status of a marriage" are many and of course will depend on the circumstances of each case. Some of the notable common factors include the circumstances of cohabitation including the place and period of cohabitation; the children born to the couple in this period; the acceptance of the union of the couple by the immediate parents and relatives of the couple throughout the period of cohabitation; where customs of certain societies require bride price payments as a prerequisite to a valid marriage, the demand for payment of bride price by the woman and her relatives in this period; the reciprocal exchange of gifts and undertakings of economic obligations between the couple and their respective relatives in recognition of or in furtherance of their relationship and the regard had of the relationship of the couple by members of the community the couple live in and the people they relate.
The test is an objective one. The Court should ask itself. Having regard to the aggregate of all relevant factors, in the relationship between the man and the woman one that ordinary people in the community they live in or where they come from, and the relevant people they relate to, one that is accepted or regarded as one of a husband-wife relationship, that, one of "marriage".
19. His Honour suggested eight factors or criteria which the Court should consider in determining whether a relationship between a man and woman amounts to a status marriage under the Act. I accept those factors, but there may be other criteria in addition to those which may assist in determining whether a relationship is one of status marriage or not.
20. I would adopt and apply as my own the above passages in this case.
21. In the present case, the only remaining ground is ground (1). During the course of oral submissions, counsel for the appellants conceded that there was no merit in this ground. For that reason alone I would dismiss this ground also.
22. However, for completeness, I wish to consider the submissions that were advanced by both parties on this ground. It was submitted for the appellants that the learned Magistrate had correctly applied the law as set out in Elma John & Luke Mane v. John Nake [Supra]. And that he was correct in finding that there was a status marriage between the first appellant and the respondent. However it is submitted that the learned Magistrate was wrong in not finding or make a ruling as to when a status marriage ceases to exist. It was submitted that a customary marriage may end the status marriage or in the alternative such a marriage may not end a status marriage but may continue or be in addition to a status marriage.
23. The argument put forward by the appellants are quite clearly misconceived. Firstly, the trial before the District Court was not conducted on the basis of the arguments now raised before this Court. A careful reading of the transcript of the proceedings shows, inter alia, that the relationship between the first appellant and the respondent was not one of a de facto relationship. The first appellant in his own evidence on oath stated that he was married to the respondent by custom. This can be found at AB p.41, lines 2-4 where he says:
"I am the Defendant in these proceedings. I know the Complainant. She is Julian Mondiai, my wife of 14 years".
24. Further at lines 10 – 14 AB p.41 the first appellant says this:
"Rachael asked me if I was married. I told her I was married to Julian Mondiai. I also told her that my marriage to Julian was by custom".
25. The pieces of evidence, I have referred to, clearly demonstrated that the first appellant and the respondent were married at the relevant and material time when the adultery was committed.
26. His evidence confirmed the evidence from the respondent and her witnesses that there was subsisting a valid status marriage. In my opinion the evidence from the respondent and the first appellant are consistent and compliment each other on that aspect. In the light of the admissions made by the first appellant, there can be no basis to criticize His Worship's finding that there was a valid subsisting status marriage between the first appellant and the respondent.
27. There is no direct evidence from either party that the status marriage between the first appellant and the respondent ended either before or when the first appellant paid bride price to marry Rachael. No where in all the evidence is there any iota of evidence suggesting that the marriage between the first appellant and the respondent had ended. If that was the case, then the respondent ought to have called evidence to show that his marriage to the respondent had been severed or ended. The fact that he may have paid bride price to Rachael's relatives did not itself amount to ending of the marriage between him and the respondent.
28. Furthermore in my opinion, there was insufficient evidence on which to conclude whether the marriage between the first appellant and the Respondent had ended. There simply was insufficient evidence to conclusively make such a finding of fact.
29. For the reasons I have given, I dismiss all the grounds of the appeal.
30. I make the following Orders:
____________________________________________________-___________
Warner Shand Lawyers: Lawyers for the Appellants
Public Solicitor: Lawyers for the Respondents
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