Kumar v Rekha [2002] FJHC 235; HBA0019.2002s (19 November 2002)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CIVIL APPEAL NO.: HBA0019 OF 2002

BETWEEN:

ARUN KUMAR
APPELLANT

AND:

SALEENI PAWAN REKHA
& RANDHIR PRASAD
RESPONDENTS

Mr. Ritesh Naidu - Counsel for the Appellant
In Person - First Respondent
No Appearance - Second Respondent

JUDGMENT

The appellant husband had on 28th January 2002 petitioned the Magistrate’s Court, Suva for divorce on grounds of adultery with the co-respondent. The parties were married on 25th January 2000. There are no children of the marriage.

The petition makes no mention of where adultery took place. Even though co-respondent is named in the heading of the summons, his name is not stated on the petition itself. The specimen petition, in Matrimonial Causes (Magistrates’ Courts) Rules sets out the form of petition and contents. It requires that the place of commission of adultery to be stated in the petition. Sadly this was not done in the present petition. The need for this is obvious; it enables the respondent to meet the objections. For some unknown reasons the respondents did not seek nor the court ordered better particulars of adultery.

The first ground of appeal is that the learned Magistrate erred in law and in fact in dismissing the divorce petition when there was sufficient evidence present before the court for the court to draw an inference that the Respondent had committed adultery.

The appellant submitted that PW2 one Siteri Vonobale was not cross-examined about certain conversation she had with the respondent. Failure to cross-examine a witness may amount to an acceptance of that witness’s evidence.

However, the learned Magistrate in his judgment stated that he found the evidence adduced by the petitioner and his two witnesses 'not to be reliable'. In short the learned Magistrate did not believe the evidence adduced on behalf of the petitioner. Once a Magistrate came to that conclusion, he could hardly find that adultery had been proved. The learned Magistrate was of the view that the issue of adultery was really one of credibility and indeed very often it is. It is rare that anumentary evidence of adultery in form of letters is available.

In Gavin Snow v. Nina Small 18 F.L.R. 41 the Court of Appeal held that a Magistrate who had seen and heard witnesses was in a better position to make an assessment of their credibility than a superior court considering an appeal.

At page 43 at paragraph H the Court stated:

'The advantages of seeing and hearing witnesses and of judging their demeanour in contrast to conclusions found on a written record of evidence are so well known and so often stated in the authorities as to need no repetition here.'

In Powell v. Streatham Manor Nursing Home 1935 A.C. 243 the House of Lords held:

'Where the question at issue is the proper inference to be drawn from facts which are not in doubt, the appellate court is in as good a position to decide the question as the judge at the trial is.

But the appeal, although a re-hearing, is a re-hearing on documents and not, as a rule, on oral evidence; and where the judge at the trial has come to a conclusion upon the question which of the witnesses, whom has seen and heard, are trustworthy and which are not, he is normally in a better position to judge of this matter than the appellate tribunal can be; and the appellate tribunal will generally refer to the conclusion which the trial judge has formed.'

In the present case the learned Magistrate has not believed the evidence produced on behalf of the appellant. The appellant is asking this court to set aside that negative finding and substitute that with its own positive finding that the evidence presented by the appellant and his witnesses is credible and therefore it must be believed. Where credibility is at stake, an appellate that is unlikely to interfere with the conclusions reached by the trial court on issue of credibility.

The next ground argued by the appellant was ground 3 which is that the learned Magistrate erred in law and in fact in failing to give reasons for accepting the evidence and rejecting the evidence of appellant and his witnesses.

The appellant submits that certain parts of material evidence given by PW2 was not properly evaluated by the learned Magistrate. These pieces of evidence are that the petitioner did not satisfy her sexually, that she saw a naked man lying on the respondent and the respondent later telling her that the person was a policeman. The appellant submits that the learned Magistrate should have given reasons for preferring the evidence of the respondent.

It is trite to say that where there are disputes on the facts, such disputes must be resolved by clearly expressed findings of fact. Not only must the judgment make those findings but should also say how the issues of fact have been decided.

Over the years courts have expressed the view that courts ought to give reasons for their decisions especially where parties have right to appeal. One of the clearest expression of this view is found in Pettitt v. Dunkley (1991) 1 N.S.W.L.R. 376 at page 382:

'Where in a trial without a jury there are real and relevant issues of fact which are necessarily posed for judicial decision, or where there are substantial principles of law relevant to the determination of the case dependent on their application upon findings of fact in contention between the parties, and the mere recording of a verdict for one side or the other leaves an appellate tribunal in doubt as to how those various factual issues or principles have been resolved, then, in the absence of some strong compelling reasons, the case is such that the judge’s findings of fact and his reasons are essential for the purpose of enabling a proper understanding of the basis upon which the verdict entered has been reached, and the judge has a duty as part of the exercise of his judicial office, to state the findings and the reasons for his decisions adequately for that purpose. If he decided in such a case not to do so, he has made an error in that he has not properly fulfilled the function which the law calls upon him as a judicial person to exercise and such a decision on his part constitutes an error of law.'

The New Zealand Court of Appeal in R. v. Awatere 1982 2 N.Z.L.R. 644 was more cautious. It held that in the absence of a statutory requirement to give reasons, it must be always a sound judicial practice to give a reasoned judgment and courts should always strive to do their best to give reasons which are adequate for the occasion.

The Fiji Court of Appeal in Jasmisha Ali v. Hasiman Nisha & Another [1974] VicRp 52; 1977 23 F.L.R. 77 (a divorce case with adultery as the ground) also expressed the view that mere expression of preference for one version of events to another is insufficient. The court must also state factors that weighed in determining that preference.

The learned Magistrate in evaluating the evidence said:

'After carefully assessing the evidence adduced by the petitioner and his two witnesses and upon careful scrutiny not to be reliable. Even if it were, which I find it not, it cannot be said that adultery can be inferred from circumstances. I find the petitioner’s evidence is insufficient and unreliable to lead to that conclusion.'

He does not explain why he found the evidence unreliable. Did he find the evidence inherently incredible or were their material contradictions in the evidence tendered on behalf of the appellant? A party is entitled to be given reasons as to why evidence he or she has given has been wholly or partially rejected. This has not been done in the present case.

The next ground of appeal was that the proceedings were conducted in an arbitrary and prejudicial manner and in breach of the rules of natural justice. The basis of this ground are two letters which appear in the record – the first letter dated 31st January 2002 is on page 29 to 31 of the record and the second dated 3rd January 2002 on page 37 of the record. Both are written by the respondent. They were not tendered as evidence. The appellant was not aware of their existence until he received copy record for purposes of appeal. It is not apparent whether the learned Magistrate reads these letters or not. If the learned Magistrate read the letters, then he ought in fairness to the parties have told the parties of these letters. The court can only consider evidence, which is produced by the parties during trial. The existence of the two letters on the record casts doubt on whether that basic principle has been adhered to and by itself reason enough for the appeal to be allowed. The contents of these letter touch on issue of adultery and credibility of witnesses and are not letters of insignificant kind.

The last ground is that the learned Magistrate fixed the maintenance for the respondent in the sum of $25.00 per week without examination of the means of the parties.

The relevant section when awarding maintenance is Section 84(1) of the Matrimonial Causes Act which reads as follows:

'84(1) Subject to the provisions of this section, the court may, in any matter or cause in which application has been made with respect to the maintenance of a party to the marriage, or of children of the marriage, other than proceedings for an order for maintenance pending the disposal of proceedings, make such an order on such application as it thinks proper having regard to the means, earning capacity and conduct of the parties to the marriage and all other relevant circumstances.'

Beyond occupation of parties as law clerk and domestic duties, the record is silent on what the parties earn, what type of qualifications and training skills they have gone through and their expenses. Hence the means and earning capacities were not examined. There was no basis on which the figure of $25.00 per week was arrived at. I am not for a moment saying that the figure is excessive. A proper enquiry may well disclose that the figure is too low. The maintenance order is therefore set aside.

In light of the learned Magistrate’s reference that he did not believe the petitioner and his witnesses albeit in the absence of any reasons this court finds itself unable to substitute its findings of fact in view of Magistrate’s Court. The safest course of action to take is to remit the file to the Magistrate’s Court for proceedings to be heard de novo. I therefore order that the action be remitted to the Magistrate Court for it to be reheard before another Magistrate. I do not order any costs.

{ Jiten Singh }
JUDGE

At Suva

19th November 2002