Kumari v Dutt [1998] FJCA 66; ABU0012U.1997S (12 February 1998)

IN THE FIJI COURT OF APPEAL
CIVIL JURISDICTION

CIVIL APPEAL NO: ABU0012/97S
(High Court Civil Action No.HBC

BETWEEN:

REENA KUMARI
F/N BISSUN DEO
Appellant

AND

RAVI DUTT
Respondent

Mr A K Singh for the Appellant
Mr for the Respondent

Date and Place of Hearing: 10 February, 1998, Suva
Date of Delivery of Judgment: 12 February, 1998

JUDGMENT OF THE COURT

The Appellant commenced maintenance and affiliation proceedings against the Respondent in the Magistrates Court at Nausori alleging that he was the father of her child born on 28 January 1995. The decision of that Court was as follows:-

“Court:

I am satisfied beyond doubt that the defendant, is the putative father of the child namely SHENAL SHIVANGNI born to the Complainant on the28th day of January 1995. Months of pregnancy have been carefully calculated, and found to be accurate. The defendant was quite sketchy with his evidence that I do not wish to believe. The defendant is ordered to pay $15 per week for the maintenance of the said child, until she attains the age of 16 years, or vary by the Court.”

The Respondent appealed against that decision to the High Court. The appeal was set down for hearing on 6 March 1996, and struck out for non appearance. The Appeal was subsequently reinstated on 29 May 1996, but without notice to the present appellant who was deprived of the opportunity of objecting to that application.

The appeal was heard in the High Court on 23 January 1997, in the absence of the appellant. She had been served with notice of the hearing on 5 December 1996. The appeal was allowed upon the grounds “... that the statutory requirement for corroboration was not met.” It is from that decision that the appellant now appeals.

The statutory requirement referred to is contained in Section 18(2) of the Maintenance and Affiliation Act (Cap.52):

“(2) If the evidence of the complainant is corroborated in some material particular by other evidence to the satisfaction of the magistrate, he may adjudge the defendant to be the putative father of the child, and may also, if he sees fit in all the circumstances of the case, proceed to make against the putative father an order for the payment by him -

(a) of a sum of money not exceeding $520 annually for the maintenance and education of the child;

(b) the expenses incidental to the birth of the child;

(c) the funeral expenses of the child if it has died before the making of the order; and

(d) such costs as may have been incurred in obtaining the order:

Provided that the magistrate in making an order for payment of a sum of money under the provisions of paragraph (a) may direct that such payment shall be made by weekly, fortnightly, monthly or quarterly instalments. (Amended by Act 9 of 1977, s.2)”

The appellant and her father gave evidence in the Magistrates Court. The father did not corroborate his daughter’s evidence nor did the brief evidence given by the Respondent. Consequently, the record of the proceedings does not in our opinion disclose the degree of corroboration required to comply with Section 18(2).

We are however concerned that the proceedings in the Magistrates Court were conducted without the benefit of legal assistance being available to either the parties to this appeal or to the Court.

Now that they are both represented several important sources of corroboration that are disclosed in the record could be considered at a rehearing of the original application. In addition the appellant was not served with the notice of motion to reinstate the appeal originally filed and as a consequence was denied the opportunity to make representations in that regard. Further she was not present or represented by Counsel at the hearing of the appeal in the High Court.

The special circumstances to which we have referred justified in our opinion the High Court exercising its jurisdiction under Order 55 Rule 5 of the High Court Rules “... to remit the matter with the opinion of the Court for rehearing and determination ...”

Justice J.D. Dillon
JUDGE OF APPEAL