Shariff v Bi [1995] FJHC 62; Hba0005j.94b (30 March 1995)

IN THE HIGH COURT OF FIJI
AT LABASA
APPELLATE JURISDICTION

CIVIL ACTION NO. 0005 OF 1994
(Labasa Maintenance Case No. 6/91)

Between:

MOHAMMED SHARIFF
s/o Sheik Jamir
Appellant

- and -

SAFIRA BI
d/o Rahmtullah
Respondent

Mr. A. Kohli for the Appellant
Mr. A. Sen for the Respondent

JUDGMENT

This is an appeal from the judgment of the learned Magistrate at Magistrate's Court, Savusavu delivered on 23 February 1994 wherein he held that the Appellant (the Respondent's husband in the lower Court) had deserted the Respondent and had wilfully neglected to provide reasonable maintenance for the Respondent and his child and ordered that the appellant pay maintenance for the respondent and the child at the rate of $7.50 per week each.

The grounds of appeal are as follows:-

"1. That the Learned Trial Magistrate erred in law and in fact in finding that the Respondent has deserted the Complainant.

2. That the finding of the Learned Trial Magistrate cannot be supported by the weight of evidence adduced by the Complainant.
   
3. That the Learned Trial Magistrate failed to direct himself to the onus of proof and the standard of proof required in determining various issues in the trial.
   
4. That the Learned Trial Magistrate failed to give reasons for disbelieving the respondent.
   
5. That the Learned Trial Magistrate erred in law and in fact in failing to consider the means of both the Complainant and the Respondent in ordering maintenance".
   

The Respondent's version of facts are as stated by the learned Magistrate on page 1 of his judgment (p. 53 of Record) as follows:-

"The complainant had got married on the 5th of December, 1988, and have a child born on 25/6/1990. A week before the 17th of November 1989 which is the alleged material date of desertion, the complainant had visited her uncle Seyd Hussein. The defendant had left her there and asked to go to the hospital and get an abortion done. She had been 6 weeks pregnant then. On being threatened she went to the hospital but the doctor had refused to carry out the abortion.

After that he had told her that he would leave her. He had forced to leave the house under threats. She had got down her uncle and aunt who had talked to the defendant. The defendant had asked them to take her away and they did so.

After she was forced to leave the Matrimonial house the defendant had not paid her anything. The defendant had been friendly with a woman called Soni who was their neighbour in Tuatua with whom he had committed adultery. She had her last periods on the 25th of September 1989 and was seven weeks pregnant when the defendant deserted her.

She had seen the defendant talking to Soni and exposing his person to her. Until 17/11/89 they had a satisfactory sex life. His change in behaviour was due to her refusal to get the abortion done. She had a no relationship with Shemshar Ali."

The appellant on the other hand states that he had been living happily with respondent at Tuvurara. He went to prison in June 1989 and came out in July 1989. Whilst in prison he heard of his wife's adultery with Shamsher Ali (his wife's sister's husband) which he believed and decided to leave her. He said that he did not have any sexual intercourse with her since going to prison and coming out of it. He says that she left Tuatua on her own.

The first four grounds of appeal can be summarized into one ground, to the effect that the learned Magistrate erred in law and in fact in finding desertion proved on the evidence before him and in doing so had applied the wrong standard of proof and has failed to give reasons for the decision he had come to in this case.

As the learned Magistrate has said there are three issues, namely (a) desertion (b) wilful neglect to provide reasonable maintenance and (c) adultery.

On desertion, the learned trial Magistrate found that "the evidence of the complainant is well corroborated by the evidence of Syed Hussein (W2) and his wife (W3). Both their witness were quite emphatic that the defendant had asked them to take away - the complainant under threats of death" (Page 55 of Record).

On the evidence before him the learned Magistrate further found that the appellant had failed to provide the Respondent and the child with any maintenance since deserting her on 17 November 1989. (page 55 of Record)

The learned Magistrate further found that there is "no evidence before court regarding any adultery on the part of the complainant apart from one allegation made by defendant." (page 57 of Record).

In this appeal the appellate court is being asked to review the findings of fact by the trial Magistrate. The findings in this case were based essentially on the credibility of witnesses. Very rarely would an appellate court be justified in interfering unless the findings of fact could not be supported on the evidence or law or any other proper ground.

I have borne in mind the following passages which set out the proper approach when an appeal calls for review of the findings of fact by a trial court based on the credibility of witnesses. In the speech of LORD THANKERTON in WATT (or THOMAS) v THOMAS (1947) 1 AER 582 at p.587) it is stated:

"I. Where a question of fact has been tried by a judge without a jury and there is no question of misdirection of himself by the judge, an appellate court which is disposed to come to a different conclusion on the printed evidence should not do so unless it is satisfied that any advantage enjoyed by the trial judge by reason of having seen and heard the witnesses could not be sufficient to explain or justify the trial judge's conclusion.

2. The appellate court may take the view that, without having seen or heard the witnesses, it is not in a position to come to any satisfactory conclusion on the printed evidence.
   
3. The appellate court, either because the reasons given by the trial judge are not satisfactory, or because it unmistakably so appears from the evidence, may be satisfied that he has not taken proper advantage of his having seen and heard the witnesses, and the matter will then become at large for the appellate court. It is obvious that the value and importance of having seen and heard the witnesses will vary according to the class of case, and, it may be, the individual case in question."
   

Commenting on the above passage Lord Reid in BENMAX v. AUSTIN MOTOR CO. LTD. (1955) 1 All.E.R.326 at page 329 he observed:

"I think that the whole passage ....... refers to cases where the credibility or reliability of one or more has been in dispute and where a decision on those matters has led the trial judge to come to his decision on the case as a whole. If that be right, then I see no reason to doubt anything that was said by Lord Thankerton. But in cases where there is no question of the credibility of any witness, and in cases where the point in dispute is the proper inference to be drawn from proved facts, an appeal court is generally in as good position to evaluate the evidence as the trial judge, and ought not to shrink from that task, though it ought, of course, to give weight to his opinion."

Bearing in mind the above-quoted passages, I find that there is sufficient evidence to support the learned Magistrate's findings. He clearly accepted the evidence given by the Respondent and her witnesses and rejected the evidence given by the applicant in relation to the issues of fact and in this case it was all a question of fact for the trial Court than for the appellate court to determine. In these circumstances no other reasons are required for his findings apart from what he has stated in his judgment. In this connection the headnote to JAN BARKAT ALI v. REGINAM (18 FLR p.129) states, inter alia:

"A magistrate is not obliged to give reasons in his judgment for his acceptance or rejection of the evidence of any particular witness, and so long as the evidence to which he has referred and which he accepts is sufficient to establish the ingredients of the offence, there has been no failure to comply with the requirements of section 154 of the Criminal Procedure Code."

The learned counsel for the appellant laid great stress on apparent contradiction in the learned Magistrate's finding that desertion took place on 17 November 1989 and his statement in the judgment (page 57 Record) namely, "for his own admission he had not returned to her since going 'to or coming' out of prison. The desertion is complete then." But the learned Magistrate ultimately made a finding after taking into consideration the evidence of PW2 and PW3 whom he believed and which he was entitled to do in preference to the appellant when he said "I believe the complainant's story and that of her witness. I do not believe the defendant's evidence."

That being so, all of Mr. Kohli's argument about the allegation that the child in question is not the appellant's as he alleged he had no access, goes by the board. There is no evidence to enable the learned Magistrate to declare that it was not the child of the marriage. The learned Magistrate has given his reasons for rejecting this argument (page 57 of Record) when he said:

"As regards the contentive of the child being not his, it has to be borne in mind that the child has been born during the subsistence of a valid legal marriage and the presumption is that the child is legitimate and that the husband is the defendant is the father of the child.....

A heavy burden lies on the defendant to displace this presumption and it is not an easy burden to discharge. On his own evidence the defendant had come out of prison at the end of July 1989. There is no acceptable evidence whatsoever before court except defendant's bare statement to show that there was no access between the husband and the wife. The date of desertion as shown by the evidence is 17th November 1989. The date of birth of the child is 25/6/1990. She had her last period on the 25th September 1989. She would have conceived during the last week of September 1989 and the period of gestation falls within the natural and acceptable period of 9 months.

The defendant have not been able to displace the presumption of legitimacy which weighs heavily in favour of the complainant."

In COTTON v COTTON AND ANOTHER (1954) AER p.105) it was held that:

"where the legitimacy of a child born in lawful wedlock was in dispute, the husband alleging that he had had no intercourse with the wife at the material time, the evidence to that effect must be such as to exclude any reasonable doubt, and in the circumstances that proof was not forthcoming."

As for ground 5, the learned Magistrate after finding desertion proved ordered the appellant to pay $7.50 per week each to Respondent and the child, a total of $15.00 per week. There was evidence before him that he was a canecutter but no further details are given.

It is always open to the appellant to return to the Court, produce evidence as to his financial means and ask for the maintenance to be reassessed. He can still do that. He could have asked and can still ask the Magistrate to get a probation officer's report as to the parties' means. Even in this case the appellant has chosen not to give any evidence as to his means so that it is not possible at this stage to say whether $15.00 per week for the Respondent and the child is excessive or unreasonable or not.

For the above reasons the Court is satisfied that on the evidence before him the learned Magistrate was perfectly entitled to find and which he did, when he found the appellant guilty of desertion and wilful neglect to maintain the Respondent and child.

I therefore find that there is no merit in this appeal which is dismissed with costs to be taxed if not agreed.

D. Pathik
Judge

At Labasa
30 March 1995

HBA0005J.94B