Singh v Kaur [1997] FJHC 237; Hba0007d.97l (3 October 1997)

IN THE HIGH COURT OF FIJI
(AT LAUTOKA)
APPELLATE JURISDICTION

CIVIL APPEAL NO HBA0007 OF 1997L

BETWEEN:

BALJEET SINGH
APPELLANT

AND:

SUBINDRA KAUR
d/o Jagir Singh
RESPONDENT

Mr S. Ram/Mishra for the Appellant
Mr A. Singh/Shankar for the Respondent

Date of Hearing: 3rd October 1997
Date of Ruling:

RULING

This is an appeal from the Learned Magistrate's decision of the Ba Magistrates Court of the 15th April 1997.

FACTS

The Appellant (BALJEET) and the Respondent (SUBINDRA) were married on the 10th January 1990. Shortly after marriage BALJEET left for the United States to take up residence. The initial plan was that SUBINDRA follow him after sorting out certain Immigration matters.

For one reason or another these plans did not eventuate. The parties became estranged and on the 11^th December 1995 BALJEET was granted a Dissolution of the Marriage in the Supreme Court of California County Stanislaus, USA.

On the 3rd February 1997, SUBINDRA brought an application for maintenance on her behalf under the provisions of the Maintenance And Affiliation Act (Cap 52). One assumes that because of her marriage to BALJEET such application was made pursuant to Section 6 of the Act.

The record is not exactly clear on how it came about, but it appears that BALJEET had returned to Fiji in late 1996 or early 1997 and married one SHARAN JEET KAUR.

On the 3rd February, as well as filing for maintenance, SUBINDRA filed a Notice of Motion seeking to prevent BALJEET leaving the country pending resolution of the Maintenance Application. I pause to note that in paragraph 6 of SUBINDRA's Affidavit in support of the Notice of Motion, she alleges that the Police "got hold of him (BALJEET) for a possible bigamy charge." Even if it be conjecture, I doubt one would be too hard pressed to guess who gave information to the Police, in respect of an allegation of bigamy, if indeed the Police had any interest in BALJEET. If they did, a simple check of the details of the marriage to Miss KAUR would have satisfied matters. I must say that, at first glance, the said Affidavit raises some questions as to the true motives of SUBINDRA in bringing the Notice of Motion.

BALJEET responded to the allegations as raised in the Affidavit filed on the 6th February. I shall return to this later.

On the 4th February the Learned Magistrate granted an Ex-parte order preventing BALJEET from leaving Fiji. It seems that his Passport was also ordered to be retained by the Court.

On the 17th February the matter came back before the Court inter-partes. The Learned Magistrate dissolved his previous Ex-parte order, returned the Passport and allowed BALJEET to go to the United States. No doubt, the Learned Magistrate was aware of the Court of the Appeal's ruling in CHIMAN LAL -v- PAN BAI FCA 81/144 and C. VALENTINE -v- DONNAN FCA 81/157 where the Court expressed that the greatest caution should be used when restricting a person's leaving of Fiji under the provisions of the Maintenance Act and, in the later case, where it ruled that it was beyond the jurisdiction of the Courts of Fiji to retain a foreign Passport. I understand that BALJEET in all likelihood possessed a United States passport.

Be that as it may, the Learned Magistrate released BALJEET on the giving of two sureties, one of which was signed by one GURDEV SINGH.

On the 27th February 1997, BALJEET filed a Notice of Motion seeking a ruling that the application for Maintenance be struck out as the Court had no jurisdiction to entertain the matter by virtue of the California Divorce. The reasoning behind this application was that Section 6 only allows a married woman to claim maintenance. As SUBINDRA was by now divorced, she, no longer been married, had no right to maintenance. (Although I do not have to rule on that point, I do refer to HALSBURY 4th Ed VOL. 13 para 991 which, at first glance, appears to give some support to that reasoning).

BALJEET further submitted that the divorce in California should be recognised pursuant to Section 92 of the Act.

SUBINDRA's argument was that she had no knowledge of the divorce, having never been served with the divorce papers or the Decree Nisi (final judgment). Hence, she argued, she was denied natural justice (i.e. - a right to be heard on the Divorce application) and thus the Court should invoke Section 92(6) and refuse to recognise the foreign Decree from California.

For his part, BALJEET, denied SUBINDRA,'s lack of knowledge. In his Affidavit of the 6th February he annexed what purport to be Affidavit of Service of Documents on SUBINDRA signed by GURDEV SINGH (Court Record - page 17 and 18). He also says that the California court was given an address in Fiji to which it could post documents to SUBINDRA - such documents being the Decree Nisi (see paragraph 7 on p.15 of the Record). SUBINDRA responded to this by neither admitting nor denying that the address given was hers or that the Decree was in fact sent - (Para 5 page 28).

On the 3rd April 1997 the Learned Magistrate heard the application on the papers. He called for and received written submissions. The Learned Magistrate called the parties before him again on the 14th April where he asked whether the GURDEV SINGH who signed the Bail Bond surety was one in the same as the person who signed the service documents. Counsel for Mr BALJEET said that he was.

On the Bath April the Learned Magistrate handed down his decision dismissing the Appellant's Notice of Motion of the 27th February. His Worship made no further ruling, save on costs, and ordered that the trial of the matter proper be adjourned to a later date.

It is from this decision that BALJEET appeals.

THE DECISION OF THE LEARNED MAGISTRATE

The Learned Magistrate's ruling centres on Section 92(6) of the Act. His Worship ruled that the Registrar's of Marriages acceptance of the California Decree pursuant to Section 38 of the Act was not binding on the Court. This is the correct view.

The Learned Magistrate then discusses SUBINDRA's assertion that she was not served with the Divorced process and comes to the conclusion that she was not. To achieve this, the Learned Magistrate referred to the signatures on the service document (pages 17 and 18 of the Records) purported to be of one GURDEV SINGH and compares these with the signatures of one GURDEV SINGH on the Bail Bond Surety (p.36 of the Record). As I have said on the 14th April the Learned Magistrate sought and obtained confirmation from BALJEET's Counsel, that it was in fact the same GURDEV SIGH.

On his comparison of the signatures, the Learned Magistrate found the following differences:

"I have very carefully perused the signatures in the documents mentioned above and I am of the view that the signatures in documents mentioned to (a) and (b) above are similar and appear to have been made by the same person. When I compare the signature on the document in (c) above (i.e. Bail Bond surety), I find that the signature on document (c) is very different to the signature on (a) and (b) despite the fact that I only have photocopies of (a) and (b).

I find the following difference:

i) The letter g, s and h in document (a) and (b) are different to Document (c);

ii) The dot on letter (i) is placed in different place in document (a) and (b) to document (c) and the length of the signature also appears to be different.

Having observed the difference in the signature in the documents mentioned above, I am convinced that the signature in document (a) and (b) are not of GURDEV SINGH."

The Learned Magistrate gained support for his contention from the fact that BALJEET put no material before the Court from GURDEV SINGH in response to SUBINDRA's allegation that she had not been served. On p. 75 of the record the Learned Magistrate says:

"Now coming back to the denial by the Complainant that she was not served, I would have thought that in the face of such a categorical denial at least that should have provoked some response from the Respondent - at least there should have been an affidavit filed in reply by Gurdev Singh refuting such a serious allegation, but all the Respondent says is that he had the papers served through Gurdev Singh - see para. 7 of his affidavit sworn on 11/02/97 - see Jai Prakash vs Savita Chandra, F.C.A. Civil Appeal No. 37/85, at page 3 of the cyclo-styled judgement where Fiji Court of Appeal states: "of course he did have to respond. In our view, the course events have taken and the consequences, if he did not respond, rendered it a matter of prudence that he should reply if indeed, he had a reply. And in the circumstances of the case in the absence of a reply, we hold the inference inescapeable that what the Respondent has said to be true."

Quite obviously the Learned Magistrate, having found that the signatures on the service forms being not the signatures of GURDEV SIGH, refused to accept the truth of the contents of those service documents. He thus held that SUBINDRA had not been served and that she therefore been denied natural justice. He was therefore able to apply the provisions of section 92(6).

THE ARGUMENTS ON APPEAL

The Appellant's argument can be summarised as follows:-

1. The finding, being based on the difference in signatures, fail to meet the required burden of proof bearing in mind the seriousness of the allegation (the case cited was BRIGINSHAW -v- BRIGINSHAW 16 CLR 336.

2. The finding was an improper exercise of judicial discretion in that the evidence of the Bail Bond Surety document was not properly before the Court and further, no opportunity was given to the Appellant as Applicant in the original application, to make submissions on the signatures.

The Respondent's argument can be summarised as follows:-

1. The Learned Magistrate's finding was correct in that a proper exercise of his jurisdiction.

2. There was evidence of and notice of the Appellant's fraudulent conduct in respect of the service documents. The Court should take notice that it is not certain the documents annexed to BALJEET's Affidavit of the 6th February are in fact the document. They appear to come from a typing service called "Central State Typing Service". It is also submitted that the absence of an attestation clause or a method of swearing the Affidavit as is found in most English based common law jurisdictions must raise suspicions about the authenticity of the service documents and hence the authenticity of claim that service had been effect.

RULING

I can deal with the 2nd limb of the Respondent's argument first, but before doing so, I must note that the decision appealed from was on an interlocutory application.

No point was put to me that ordinarily interlocutory rulings are non-appellable, unless of course the ruling gives finality to the proceedings. Neither party pursued this point.

As it stands, the Notice of Motion sought to put point to SUBINDRA's maintenance application. The Learned Magistrate ruled against the motion thus preserving SUBINDRA's application to another day. Arguably this did not put paid to the Appellant's (BALJEET) case because he could come and argue the applicability of the other subsections and factors raised therein in Section 6. In reality though, it must be considered that, having lost the motion, BALJEET who was put in an extremely difficult position concerning the question of ability to pay maintenance. In effect, the later trial of SUBINDRA's application would most likely be in the form of an assessment rather than an argument on liability. In that respect the dismissal of the Motion put an end to BALJEET's case and implicitly meant that SUBINDRA would succeed in all likelihood on the question of liability for maintenance - it being on a question of quantum that was left to be decided. In that sense, I consider the appeal to be properly before me.

Anyhow, neither party raised the point and in the absence of any objection, I propose to proceed on the matters raised by this Appeal as if there were no bar to me so doing.

Returning to the second point of the Respondent's argument, I fail to see it as valid. This Court has no way of knowing if the documents of service are in proper form for the case in California. But, despite the difference in form from those in Fiji, it must be assumed to be correct. The Divorce was granted so it must be reasonably implied that all matters, including service, were acceptable to the Court in California. Merely because the form of the document is different from here, it is no ground for or assuming that it is not what the Appellant says it is.

Had the Respondent wished to raise that argument previously, then information of evidence in that respect should have been put before ore the Court by SUBINDRA. The rule is simple:- the party which alleges the irregularity or impropriety of the document must put the evidence up to supportive. There being no evidence that the documents are not the proper documents as to proof of service, it is reasonable to assume that in fact they are.

The Learned Magistrate implicitly worked on that assumption - but what his Worship has found was that the documents were most likely not a true account of service, albeit that prima facie, the documents were in correct form.

I now turn to consider the Learned Magistrate's findings of fact regarding the service - which of course impacted on Section 92(6). In so doing, all the remaining arguments of both parties will be considered.

The Learned Magistrate has made a finding of fact. His Worship has exercised his discretion when undertaking this task. When an Appellate Court approaches such a finding, it is not for the Appellate Court to merely supplant the Lower Court view with its view of the facts. That can only be done if the Appellate Court finds that the Lower Court's assessment of the facts was plainly wrong or that it (the Lower Court) acted on a wrong principle (See HOUSE -v- R 55 CLR 505 and GRONOW -v- GRONOW 144 CLR p 519 per STEPHEN J. as he then was).

As to the Learned Magistrate's actual finding of the signature differences (and hence his application of Section 92(6)), I am unable to come to any conclusion either way. All that was before the Learned Magistrate were the documents referred to and nothing else. I am far from a handwriting expert, particularly in the areas of signature which, I suspect, is a rather narrow and specialist field.

Without in any way deciding the issue, I might say that the Learned Magistrate's approach, in my view, was one fraught with pitfalls. I consider it reasonable to say that my experience in trials where handwriting evidence was in issue, the general rule emerges that the lesser the amount of writing to be assessed, the greater the difficulty in coming to an accurate assessment. Also, in my experience, assessment of signatures is a special and difficult area when I would think one should proceed into with the greatest of caution. It would seem to me, that the authorities take a similar view.

The Learned Magistrate held that he was entitled to look at the signatures and come to an assessment notwithstanding the absence of expert witness. In effect he felt he could exercise his discretion and take a stab without such expert assistance. His Worship cited R -v- SMITH (1909) 3 CR APP. p87 and R -v- RICKARD (1919) 13 CR APP. as authority for or this.

Indeed SMITH & RICKARDS' case are authority that a Court can come to its own assessment on handwriting. But, with respect, the Learned Magistrate failed to take cognizance of the limitations of those cases put on the exercise of the discretion.

Both cases, whilst accepting the exercise of the discretion existed, must be understood to have placed a cautionary restriction particularly when the findings to be arrived at by such review of the handwriting, had serious consequences.

In both RICKARD and SMITH's cases, the Courts considered it unsafe to allow the exercise of the discretion to assess the handwriting in the absence of the expert or supporting evidence, where the finding was the sole reason for supporting an allegation of criminal offences.

I might also point out that later authorities such R -v- TILLER [1961] 1 ALL ER 406 and R -v- O'SULLIVAN [1969] 2 ALL ER 237 decided it was wrong for juries to be asked to compare handwriting without the assistance of an expert. (See also SHAMEEM MOHAMMED v R 29 FLR 155). I venture to comment that in civil cases where the judicial person is the arbitrator of the facts, if not incorrect, then it would likely be held that such judicial person should exercise extreme caution, in coming to comparative findings on handwriting in the absence of such expertise - particularly more so when the findings support a serious allegation.

This is the very point raised by the Appellant. By finding that GURDEV SINGH did not sign the service documents, the Learned Magistrate is, in effect, making a finding that whoever did was perjuring themselves and, by analogy, that BALJEET was probably involved in some deception of the California court. That is - either contemptuous or fraudulent activity. This is a serious allegation. The Learned Magistrate himself recognises this at p.75 of the record.

Bearing in mind the seriousness of the allegation and any finding in respect thereof, I am directed to authority such as BRIGINSHAW -v- BRIGINSHAW (SUPRA), MILLER -v- MINISTRY OF PENSION (1947) 2 ALL ER 372 and BATER -v- BATER 1950 1 ALL ER 458. In those cases it was held that in a civil case such as this the standard of proof is on the balance of probability. The above cases further establish the principle that, whilst the standard of proof is on the balance of probability if a finding is to be made which is of a serious nature, then there is a greater preponderance of evidence needed to support it.

On reading of the record and the authorities on this point, I hold the view that the serious allegations raised and the finding made, required a greater preponderance of evidence than was before the Learned Magistrate. This case required expert evidence or strong supportive evidence to enable a finding positive to SUBINDRA's allegations. Such evidence was not before the Learned Magistrate and he was operating on a wrong principle to proceed to make the findings he made in the evidence of such evidence, whether it had been expert evidence or ancillary supporting evidence.

Even if I am incorrect on that issue, Counsel for the Appellant, BALJEET makes a far stronger point.

Firstly, he submits was the bail bond surety properly before the Learned Magistrate in evidence? I doubt that it was.

This was a civil case. Our system is an adversary system. As such it is for the court to be the receiver of evidence, not the gatherer of it. In instant case, the Learned Magistrate went beyond the evidence properly before him and gathered up the bail bond surety himself and then used it as evidence. Neither party put that into evidence at the hearing nor mentioned it in their written submission. It should not have thus been considered by the Learned Magistrate. Courts can only act on evidence properly before them.

I stress "properly" in the preceding paragraph for or good reasons. I do not think that the use of the bail bond surety was, of itself fatal. The document was part of the overall court record although not strictly in evidence on the motion proper. As such the Learned Magistrate could take what is in effect "judicial notice" of it. What is of concern is the manner in which the document was used.

As the Learned Magistrate himself said "There is no evidence before me or submissions made whether I should compare the signatures" (p.74). This is of vital concern. The Appellant was given no opportunity to submit or to present any evidence to meet the eventual findings.

In CAVANETT -v- CHAMBERS [1968] SASR 97, a Magistrate informed himself as to the effect of a certain blood alcohol reading upon the Defendant's ability to drive, but then gave the Defendant no opportunity to comment.

BRAY C.J., when dismissing the appeal said:-

"It is one thing to use the section [S.64 of the Evidence Act 1929] for the purpose of discovering or verifying objective facts or figures about which there can be no real dispute, such as historical or geographical data of an uncontroversial nature or mathematical tables of life expectancy or interest calculations. Cf Arnold v Norris [1936] SAStRp 44; [1936] SASR 287, though even there I think .... the parties should be given notice of the Court's intention and an opportunity to be heard on the result of its researches. It is quite another thing for the tribunal of its own motion to seek to inform itself out of court on a question of fact or opinion vital to the issue and by no means free from controversy. This is, of course, doubly objectionable if done without the parties having any opportunity to state their views on the specific authorities consulted. But in my view, even if they are offered this opportunity, the court should not embark on such investigations except by consent. It would be preposterous to suppose, for example, that in a claim for damages or worker's compensation where divergent medical opinions have been expressed by expert witnesses on each side, the court should be at liberty without consent to pursue independent inquiries of its own on the point through medical journals or text books not referred to by the witnesses."

(See also CROSS ON EVIDENCE 3rd Australian Ed. p101 and 102.).

The above situation commented on by BRAY C.J. is fairly much what has happened here. The Learned Magistrate merely went into Court and satisfied himself that the GURDEV SINGH who signed the Bail Bond Surety was one in the same as the person who signed the service documents. His Worship gave no indication as to why he wanted this information and gave the appellant no opportunity to comment on it. In so doing the Learned Magistrate has clearly failed to properly exercise his discretion. He has in effect denied the Appellant a right of properly putting his case.

In respect of the last mentioned matter, in making his comments on the top of p. 75, I find that the Magistrate may have become confused himself as to the difference between the allegation of non-service made by SUBINDRA and the matter pertaining to the signatures.

As to the former, it was always SUBINDRA's obligation to prove the allegations she made. It was never BALJEET's obligations to disapprove it. He had put forward his evidence that service had been affected. It was SUBINDRA's obligation to put forward evidence to disprove it. The reference to JAY PRAKASH -v- CHANDRA (FCA 37/85 - CIVIL 1985 Vol. 156) is not applicable. In that case Mr PRAKASH had, on the reverse side of the cheque, simply made an admission at odds with his defence. Thus it was clear obligation to explain the misunderstanding. His failure to do so was properly weighed against him. In instant case, BALJEET says that GURDEV SINGH had served SUBINDRA. There was no inconsistency in his evidence to be explained and any further Affidavit by GURDEV SINGH would have, as the Appellant's Counsel put it, nearly regurgitated what BALJEET had said.

Of course, had the Learned Magistrate invited submissions regarding signatures and not got any explanation from GURDEV SINGH, then PRAKASH's case would well have been of some significance.

For all the above reasons, I consider the Learned Magistrate has erred in the exercise of his discretion and the appeal must be upheld.

Accordingly the Learned Magistrate's finding and orders of 15th April are vacated.

I order the Respondent to pay the Appellant's costs which I summarily assess at $175.00.

JOHN D.LYONS
JUDGE

HBA0007D.97L