Taumani v Draubuka [2003] FJHC 127; HBA0007.2003S (11 September 2003)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CIVIL APPEAL NO.: HBA0007 OF 2003
{Suva Magistrate’s Court Affiliation Case no.: 99 of 2001}

BETWEEN:

SEVULONI TAMANI
APPELLANT

AND:

LUSIANA DRAUBUKA
RESPONDENT

Mr. G. O’Driscoll - For the Appellant
Mr. M. Waqavonovono - For the Respondent

JUDGMENT

This is an appeal against the decision of the Suva Magistrate’s Court delivered on 5th December 2001 adjudging the appellant putative father of the respondent’s child born on 26th May 2001 and ordering him to pay maintenance.

The grounds of appeal as filed are five in number but they may be reduced to three. Mr. O’Driscoll in his submissions compressed them to three. I shall deal with these grounds separately.

Ground One - LACK OF CORROBORATION OF COMPLAINANT’S EVIDENCE

The first ground is that the learned Magistrate erred in making the order when there was no corroboration or no sufficient corroboration of complainant’s evidence.

Section 18 of the Maintenance and Affiliation Act cap 52 empowers a Magistrate to adjudge a person putative father of a child “if the evidence of the complainant is corroborated in some material particular by other evidence to the satisfaction of the Magistrate”. Section 18 does not require that the whole of the complainant’s evidence to be corroborated but only in some material particular.

The respondent testified that she had first sexual relationship with the appellant in May 1998 and last time on 27th August 2000. They used to meet and have sexual intercourse several times every month. The complainant’s father also testified and said the appellant used to come and ask his daughter if they could go out together. He saw them together at times at 2.00 a.m. and at times at 10.00 p.m. Relationship lasted from 1998 to 2000. The appellant admitted to him that he was father of the child. Appellant’s parents also came and asked for traditional forgiveness.

The appellant submitted that the father does not define the type of relationship or say it was a sexual relationship. That is obvious from the record. However, one must look at the evidence as a whole in the context of the case. He sees his daughter go out at night. Obviously, a couple in prime of youth were not going out at 10.00 p.m. or 2.00 a.m. for a discourse on philosophy or politics. Such activity could be conducted in presence of others. The father must have used such language euphemistically out of a sense of politeness towards his daughter and the learned Magistrate who is an experienced Magistrate in domestic matters must have understood the cultural setting in which the words were used and that they referred to a sexual relationship. I hold that there was ample clear evidence from the father to corroborate the testimony of the complainant. The father’s evidence showed the parties had opportunity to have sex, that a relationship continued for two years and there is evidence of admission. This is corroboration in a material particular. It is very compelling piece of evidence.

I also note that in his affidavit in support of motion to set aside the appellant deposed on 19th September 2000 he had sex with the respondent and that was the first time he had sex with her. This is a significant admission as it is admission of having sexual intercourse close to the time of conception. It is evidence of familiarity between the two. An admission by a respondent in an affiliation proceeding that he had sexual intercourse with the complainant within short time of the conception of the child is capable in law of being corroboration in a material particular – Simpson v. Collinson 1964 1 All E.R. 262.

Mr. O’Driscoll also submitted that given the accepted gestation period of nine months or 270 to 280 days, the child could not be that of the appellant if sexual intercourse took place on 19th September 2000 at the earliest as appellant alleges. He relied on Preston Jones v. Preston Jones 1951 1 All E.R. 124. The court in Preston Jones was not laying down the rule that that was the only gestation period of which the courts ought to take judicial notice. Gestation period it said could be considerably less or longer. Their Lordships “did not endeavour to lay down what was the shortest or what was the longest period of gestation of which the courts will take judicial notice” – Moidin v. Vinaisi Meli [1975] 21 FLR 128 at 132.

Ground Two – INCORRECT STANDARD OF PROOF

The second ground of appeal is that the learned Magistrate used an incorrect standard of proof in reaching his decision. The record shows that the learned Magistrate used the criminal standard of proof beyond reasonable doubt before he adjudged the appellant father of the child. The standard required under Section 18(2) is proof to the “satisfaction of the Magistrate”. Indeed the Matrimonial Causes Act in Section 56 used the word “upon being satisfied” and Section 93 which deals with standard of proof in divorce matters uses the words “reasonable satisfaction”.

The issue of standard of proof has been subject of discussion in a number of cases. The Fiji Court of Appeal in Mahesh Chand v. Savita Devi [1982] 28 FLR 128 at 130 had this to say –

“It is clear that the learned Magistrate was wrong when he required sufficient corroboration to satisfy himself that respondent was telling the truth beyond reasonable doubt.”

The standard of proof required is not the beyond reasonable doubt. At the same time because of the consequences of a finding that someone is a putative father and the nature of allegations in affiliation proceedings, a court would not be reasonably satisfied on balance of probability. Because of the nature and gravity of allegations in affiliation proceedings, the proof must be clear.

I agree that the learned Magistrate did use an incorrect standard of proof. However, that could only have acted to the advantage of the appellant and not to his detriment. It could not have caused the appellant any prejudice. Therefore, this ground fails.

Ground Three – DEFECTIVE SERVICE

The third ground is that the service of the summons was defective. The summons it is agreed was served on the appellant’s father on 22nd November 2001 at Solaira District School. The return date on summons was 3rd December 2001. The learned Magistrate treated this as effective service under the provisions of Section 83 of the Criminal Procedure Code, Cap. 21.

Section 83 of the Criminal Procedure Code reads:

“Where the person summoned cannot by the exercise of due diligence be found, the summons may be served by leaving one of the duplicates for him with some adult member of his family or with his servant residing with him or with his employer.”

The records show that the proceedings had to be adjourned three times for service. This section allows for service other than personal service. If service is done on any of the persons mentioned in the section, it is deemed proper service. The only way the service can be shown to be defective as if the applicant shows that the person with whom summons was left was neither his family, servant residing with him or his employer.

The learned Magistrate was therefore correct in treating this as proper service.

ISSUE OF SINGLE WOMAN

The court had asked the respondent whether the respondent was a “single woman” in terms of Section 16 of the Maintenance and Affiliation Act that only allows affiliation proceedings to be brought by a single woman. Ms Waqavonovono could not point out anything in complainant’s evidence to show she was a single woman. However, she referred me to paragraph 10 of the appellant’s affidavit that says that the respondent was in Form 4 at Naitasiri Secondary School in 1998 and therefore unlikely to be a married woman.

The issue of single woman was not a ground of appeal. The parties had proceeded on basis of assumption and common knowledge to them that she was an unmarried woman. So this ground cannot succeed.

However, in light of the clear words of Section 16 of the Act and as a matter of clarification it is incumbent on Magistrates to get evidence of applicant being a single woman right at the beginning of evidence especially where one of the parties or both parties are unrepresented and do not know the law. In fact the first question should be “Are you a single woman?” A single woman would include a woman who has never been married, one who is living in a de-facto relationship and also a legally married woman who is separated from her husband and begun an association with another man from whom she has a child and claims maintenance in affiliation proceedings.

Accordingly none of the grounds of appeal succeeds and accordingly it is dismissed. I also order costs that I summarily fix at $150.00. Any maintenance deposited in the Magistrate’s Court is to be paid to the respondent.

[ Jiten Singh ]
JUDGE

At Suva
11 September 2003