Prasad v Sanita [1997] FJHC 186; Hba0010j.97b (25 November 1997)

Fiji Islands - Prasad v Sanita - Pacific Law Materials

IN THE HIGH COURT OF FIJI

AT LABASA

APPELLATE JURISDICTION

CIVIL APPEAL NO. 0010 OF 1997

BETWEEN:

MAHENDRA PRASAD
s/o Ram Khelawan
Appellant

AND:

SANITA
d/o Hem Raj
Respondent

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

JUDGMENT

This appeal concerns the refusal of the Labasa Magistrate Court to vary a maintenance order made against the appellant after a contested hearing in July 1995, wherein the appellant was ordered to pay $25.00 per week to the complainant and for the two children of the marriage $22.50 each per week, making a total maintenance payment of $(25 + 45) = $70 per week.

After the maintenance order was made, the appellant appealed against the order and the amount was apparently reduced to $45.00 pending the determination of the appeal. Unfortunately the appeal was never heard, it being summarily dismissed by Scott J. in November 1995 for want of prosecution. An attempt to reinstate the appeal met with a similar fate in February 1996. With those dismissals the original amount of the maintenance order was restored in full.

The application for variation was filed on the 12th of August 1996. It was opposed by the respondent and after numerous adjournments and a contested hearing conducted intermittently over several months, the trial magistrate delivered a brief 3 page judgment on 17th of June 1997 dismissing the application with costs which he summarily assessed at $50.00.

The appellant now appeals against the judgment on the following six (6) grounds (as amended):

"1. The Learned Trial Magistrate erred in law and in fact to vary the Maintenance Order made in this action in accordance to the evidence adduced.

2. The Learned Magistrate erred in law and in fact in holding and or finding in that the Applicant was not looking for tenants for his house when there was no such evidence adduced at the trial.

3. The Learned Magistrate erred in law and in fact in varying the maintenance order when there was sufficient evidence at the trial to show that the income the Applicant had varied by the virtue of the fact that there were no longer paying tenants at his residential house.

4. The Learned Magistrate erred in law and in fact in refusing to vary the maintenance order in light of the fact that the respondent had substantial income from her father's estate and or alternatively she was entitled for the income from her father's estate and therefore she was in a position to look after and maintain herself and the children.

5. The Learned Magistrate erred in law and in fact in failing to consider that the respondent was banking her Maintenance money into Australia and New Zealand Bank and therefore the said money was not utilised for the welfare of the children thus considering that as a factor in varying the maintenance of her.

6. That Learned Magistrate erred in failing to consider the financial circumstances of the parties de novo instead of proceeding on the basis of the order of July 1995."

Section 8(1) of the Maintenance and Affiliation Act (Cap. 52) provides:

"A magistrate having jurisdiction in the place in which an order under the provisions of this Part has been made may, upon the application of either spouse and upon cause being shown upon evidence of a change in circumstances not occasioned by the default or neglect of the applicant, to the satisfaction of the magistrate, at any time alter, vary or discharge any such order and may upon any such application from time to time increase or diminish the amount of any weekly payment order to be made."

It is immediately apparent from the above that a magistrate hearing an application under Section 8(1) is given a statutory discretion to exercise 'upon cause being shown' by the applicant. Furthermore it is not just 'any' cause or evidence that will suffice, the evidence must be of such a nature and quality as to satisfy the magistrate that there has been 'a material change in circumstances not occasioned by the default or neglect of the applicant ...'

In Jaya Ben v. P.K. Bhindi (1973) 19 F.L.R. 117 the Fiji Court of Appeal in affirming the magistrate's variation by increasing the maintenance order in that case, said, of the magistrate's jurisdiction under Section 8(1), at p.118:

"The extent of that jurisdiction, under a somewhat similar statutory provision, was considered by the Court of Appeal in England in Foster v. Foster (1964) 3 ALL E.R.541, and the following extract from the judgment of Willmer L.J. at p.545 was cited with approval in McEwan v. McEwan (1972) 2 ALL E.R. 708:

'Two things seem to me to emerge from that. The first is that the jurisdiction is a jurisdiction to vary, and basically what the court has to do is to consider whether an order to vary should be made, and if so, by how much the order should be varied. Prima facie, it is not a jurisdiction to re-fix de novo the amount of maintenance. Secondly, the court is specifically directed to take into consideration any increase or decrease in the means of either of the parties. In those circumstances, it seems to me that the judge was right to take the order of Mr. Registrar Forbes as his starting point. Moreover, I think that he was entitled to proceed on the basis that the order was properly made at the time when it was made."

(my underlining)

Counsel for the appellant sought however, to rely on the judgment of Pathik J. in Kiran Devi v. Hira Sami Labasa Civil Appeal No. 6 of 1995 (unreported) in support of the proposition that a magistrate hearing an application for variation of a maintenance order has jurisdiction to assess 'de novo' the amount of maintenance to be paid by the applicant. Having myself read the judgment, I cannot agree that it supports any such proposition.

In the first place it is easily distinguishable on the facts in so far as the applicant had not appeared when the maintenance order was first made against him. Secondly, Pathik J. treated the case as falling into the 'category of an exception' to the general rule enunciated above, and finally, Pathik J. quoted extensively from Smethurst v. Smethurst (1997) 3 ALL E.R. 1110 which itself contains a clear reaffirmation of the nature of the court's jurisdiction to vary a maintenance order, in the judgment of Sir George Baker, where he said, at p.1113:

"... it is not open to a court, including a magistrate's court, to fix the maintenance de novo. There are some exceptions to that proposition ..."

In light of the above, ground (6) of the grounds of appeal is plainly misconceived and is accordingly dismissed.

Furthermore bearing in mind the nature of the jurisdiction being exercised by the magistrate, it is trite to say - that on normal principles, a discretionary judgment made after an inter partes hearing is not normally set aside by an appellate court unless the court is of the opinion that the trial court has taken into account things that it should not have, or has failed to consider matters that it should have, or has clearly made some 'error of law' or even where no error can be identified, the decision, on the face of it, is demonstrably unreasonable.

A fortiori where the discretionary judgment per se is not a final judgment and is based primarily on the court's assessment of the credibility of the applicant.

In the present case under appeal, the appellant without actually saying so, sought a reduction in the amount of maintenance ordered by the learned magistrate on the basis that, given the respondent's 'probable inheritance' from her deceased father's estate and given his own 'personal out-goings' and the 'loss of rental income', he could not afford to pay the amount ordered, and was in his own words: "... facing difficulties to cope up with payments and having enormous hardship."

Dealing with the applicant's 'personal out-goings' the learned trial magistrate said in his judgment (at p.149):

"I see from the records that all these facts were before Mr. Fernando when he heard the complaint and made the (maintenance) order. I have no doubts that he must have taken these facts into consideration before assessing the quantum of maintenance."

Needless to say the learned magistrate did not consider that he had jurisdiction to assess 'de novo' the amount of maintenance to be paid by the applicant and with that view he was plainly right.

As for the 'loss of rental income' from the appellant's two (2) properties amounting to $250 per month, the learned magistrate accepted that that 'factor' could amount to a material change in the applicant's circumstances, but '... after hearing the evidence of the applicant (the magistrate) came to a clear conclusion that the applicant is deliberately keeping the two houses vacant' and so '... no relief can be based upon it.'

In this regard Section 8(1) expressly excludes any 'change in circumstances' which has been 'occasioned by the default or neglect of the applicant.'

The only question that arises in the circumstances is, whether that was a 'conclusion' that the learned magistrate was entitled to come to on the evidence?

Counsel for the respondent submits he was, considering that both properties were originally rented out, are presently occupied, and the appellant was apparently willing to offer one of the so-called 'uninhabitable' houses to the respondent to live in. Furthermore, given that the appellant had failed to depose to any 'loss of rental income' in his affidavit of 6th August 1996, his claim on oath, in November 1996, that both houses had been vacant 'for about 1 year' in one instance and 'about 6 months' in the other, was just not believable.

Plainly in my view, the learned magistrate was justified in his 'conclusion' which was based on his assessment of the appellant's credibility. Grounds (2) & (3) accordingly fail.

As for the 'respondents probable inheritance', the learned magistrate says in rejecting this 'factor' in his judgment (at p.151):

"Firstly, in my view, this fact has not been properly proved; secondly, assuming that it has been proved, the mere fact that she is a beneficiary in the estate of her father in no way proves that she is in receipt of income from the estate."

In this regard, Watkins J. in Morgan v. Morgan (1977) Fam 122 whilst accepting that a wife's probable inheritance was a relevant consideration insofar as it was a 'financial resource (which she) is likely to have in the forseeable future', nevertheless, refused to issue a subpoena to the wife's father compelling him to testify as to his assets and what he means to do with them.

In the present circumstances, given the respondent's denial of any knowledge of an inheritance, and given that the applicant bears the 'burden of proof' and bearing in mind the extreme paucity of the evidence in this regard and the fact that the respondent's father died 'intestate' and is survived by his wife, a son and two daughters including the respondent, I cannot accept that the learned magistrate was either wrong or unreasonable in his 'view' on this aspect. Ground (4) is accordingly dismissed.

Finally and for the sake of completeness, a brief mention is made of ground (5). Here the learned magistrate did not consider that the evidence was capable of giving rise to the 'sinister' inference counsel sought to draw and with that I agree.

For the foregoing reasons the appeal must be and is hereby dismissed with costs to the respondent which I fix at $150.00.

D.V. Fatiaki
JUDGE

At Labasa,
25th November, 1997.

Hba0010j.97b