| Fiji Islands - Wati v Sirilo - Pacific Law Materials |
IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION
CIVIL APPEAL NO. HBA 007 OF 1998
(Nausori Magistrate's Aff. Court Action No. 28 of 1996)
:
IUDITE WATI
Appellant
AND:
AMENATAVE SIRILO
Respondent
. Eroni Veretawatini foni for the Respondent
Appellant in person
JUDGMENT
I gave oral judgment on the day of hearing of this Appeal, namely 6 August 1998 tated that I will give my d my detailed reasons in
due course which I now hereby do.
This is an Appeal from the judgment dated 2 October 1997 of the Magistrate's Court sitting at Nausori adjudging the appellant Sirilo
Amenatave the putative father of the child namely Katarina Udre Vulitikovakacegu (female) born to the respondent Iudite Wati at Nausori
Maternity Unit on 8 June 1996. The learned Magistrate ordered the appellant to pay $10.00 per week for the maintenance of the child
until the child attains the age of 16 years or until this order is varied by the Court.
Mr. Veretawatini's submission is as follows (as contained in his written 'skeleton submission'):
The Respondent first met the Appellant on the 6th day of November, 1996 at Nausori town and accompanied her to the Police barrack
where they had sexual intercourse only once.
Surprisingly when the Respondent left for her home on that same day felt that she would become pregnant. This is very unusual for
woman to have preconceived mind that she will become pregnant.
The Respondent did not call any witness to corroborate her evidence as required by law. Under Section 18(2) of the Maintenance and Affiliation Act Cap 52 there is statutory requirement that evidence of a complainant in affiliation proceedings be corroborated (my underlying) "in
some material particular by other evidence to the satisfaction of the Magistrate."
There was no mention of this requirement for corroboration appears in the record.
The standard of proof in all matrimonial proceedings is the balance of probability but the degree of probability must be proportionate
to and reflective of the seriousness of the subject matter. Bater -v- Bater [1951] P.35
We submit that the statutory requirement for corroboration was not met and therefore decision by the lower court should be quashed.
The respondent was given the opportunity to engage counsel but she was unsuccessful in getting one. Legal Aid was also not available.
The Court explained to her what was involved in this Appeal. She was agreeable to the court proceeding with the Appeal.
The respondent who is 21 years of age is unemployed; she lives in the village and stays with her parents. She did not wish to say
anything in reply to counsel's argument.
I have considered counsel's submissions. I agree with him entirely. There is complete lack of corroboration of the evidence of the
complainant. Under section 18(2) of the Maintenance and Affiliation Act Cap 52 the complainant's evidence must be corroborated "in some material particular by other evidence to the satisfaction of the Magistrate".
Here there was no other evidence to corroborate the testimony of the complainant. Hers was the only evidence before the Court. The
evidence before the Court was insufficient to enable the learned Magistrate to make the order which he made.
There was only one act of sexual intercourse between the parties and it took place on 25 September 1995. She gave birth to the child
on 8 June 1996 which was 8 months 10 days after sexual intercourse took place between them. I fail to see how the learned Magistrate
made his calculation when he said in his Judgment that "the child was born nine months between conception and birth, or the
period of gestation." The learned Magistrate also found that "there being no other man associated with the complainant
proved by the Defendant before or during conception by the mother" when in fact there was evidence that she was not a virgin.
It is not for the defendant to prove the allegation. The onus is on the Plaintiff to prove applying the civil standard of proof.
Also there was no evidence of familiarity or they having been seen together over a period as corroborative evidence. It would certainly
be too dangerous to find the defendant to be the putative father on such flimsy and scanty evidence.
On corroboration in Hals 3rd Ed Vol 3 para 184 at p120 it is stated:
What is required by way of corroboration is independent testimony which may be direct or circumstantial confirming in some material
particular that part of the evidence of the mother which implicates the defendant. It is not sufficient that such evidence should
show possibility.
The mere one act of sexual intercourse or opportunity are not sufficient to constitute corroboration as stated by LORD PARKER, C.J. in CRACKNELL v SMITH [1960 3 All E.R. 569 at p.571:
In the result I would allow the Appeal and order a speedy retrial on the same complaint before another Magistrate in the interests
of justice so that the learned Magistrate can decide the case bearing in mind the law relating to corroboration. Further I quash
the order of $10.00 per week for maintenance and substitute it with one of similar amount as interim payment and this I do because
of my order for speedy trial. The Respondent has been told to seek legal aid which I think she needs.
