Vunisa v Nadagalau [2005] FJHC 545; HBA0001.2005 (30 September 2005)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
APPELLATE JURISDICTION

CIVIL APPEAL NO. HBA0001 OF 2005

BETWEEN:

SANAILA VUNISA
APPELLANT

AND:

ASERI NADAGALAU
RESPONDENT

Mr. G.P. Shankar: Counsel for the Applicant
Legal Aid Commission: Counsel for the Respondent

Date of Hearing: 22 July 2005
Dates for Submissions: 12 August, 2 September & 9 September 2005
Date of Decision: 30 September 2005

JUDGMENT OF FINNIGAN J

This an appeal against a decision of a Magistrate in which the Magistrate granted maintenance of $20.00 per week for the Appellant’s wife and $30.00 per week for their child.

Although submissions were time-tabled by consent on the appearance of counsel for both parties no submissions have been filed for the Appellant. This is not really surprising because there is little if any merit in the appeal.

The appellant was not present at the hearing in the Magistrates Court. He had been present on earlier occasions especially 24 August 2004 when the Maintenance Application had been adjourned to 26 August for mention only. On 26 August he did not appear and the matter was set down for hearing on 2 September 2004. There is no explanation for his non-appearance, but among the appeal papers is a copy of what purports to be a medical certificate dated 2 September 2004 stating that on that day he was suffering from low back pain and diarrhea, and that he would be fit to resume duty on 3 September.

The grounds of appeal are that the Magistrate was wrong in not hearing evidence before making the maintenance orders and in the alternative that she failed to analyse or evaluate the evidence fully and properly and to make findings of facts or give reasons for the order. The other ground is that the amount is excessive.

Counsel for the Respondent filed brief but telling submissions. Counsel points out that the Magistrate specifically found that the Complainant had told the truth and had shown a need of maintenance and for her daughter. The Magistrate considered and relied on the evidence of a corroborative witness. The Magistrate had heard evidence that the appellant was employed at the time and earning $100 per week. Counsel points out that the Magistrate had regard to the means both of the husband and the wife in order to assess reasonable maintenance for her self and for the child as required by Section 4(c) of the Maintenance and Affiliation Act Cap 52.

Counsel points out that the appellant had the opportunity and the right to go back to the Magistrates Court and give his evidence in an application for variation of the Maintenance Order. As for this Court, there is no ground to consider the orders excessive or to find that the Magistrate was wrong to proceed with the hearing when the Defendant did not appear or seek adjournment or offer any explanation.

The appeal is dismissed with costs to the Respondent which I fix at $400.00.

D.D. FINNIGAN
JUDGE

At Lautoka
30 September 2005