Lal v Devi [1974] FJLawRp 18; [1974] 20 FLR 70 (31 July 1974)

(1974) 20 FLR 70

COURT OF APPEAL OF FIJI

VINOD LAL

v

AMBIKA DEVI

[COURT OF APPEAL, 1974 (Gould V.P., Marsack J.A., Bodilly J.A.), 15th, 31st July]

Civil Jurisdiction

Bastardy—evidence—whether mother's evidence corroborated in a material particular—Maintenance and Affiliation Ordinance 1971 s.18(2).

Evidence and proof—corroboration-bastardy proceedings—evidence of opportunity—association sufficient to corroborate mother's evidence.

Evidence and proof—bastardy proceedings—failure of father to give evidence at trial may be taken into account in deciding what weight to give to corroboration.

In proceedings for an affiliation order against the appellant, the corroborative evidence consisted of that of one witness who saw the parties go into a bulk store in Suva and remain inside for 15 minutes, and that of the respondent's mother who said that the appellant used to visit her daughter, and that her daughter did not associate with anybody else. It was contended that the visit to the bulk store was mere evidence of opportunity and that the evidence of the mother was not independent and was inconclusive.

Held: 1. The evidence ofvisit to t to the bulk store was more than evidence of mere opportunity, and it could be inferred that the parties went there fo purpose of intimate relations.

2. The evidence of the mother tended to make it prob probable that the respondent's story was true.

3. The evidence of the respondent had been corroborated in a material particular to satisfy the Maintenance and Affiliation Ordinance 1971 s.18(2).

Counsel for the appellant also contended that the failure of the appellant to give evidence could not amount to corroboration with which proposition the Court agreed. However, it was held that failure to give evidence might be taken into account in determining what weight was to be given to the corroboration.

Cases referred to:

Cracknell v. Smith [ 3 All E.R. 569; [1960] 1 0] 1 W.L.R. 1239.
Moore v. Hewitt [1947] 2 All E.R. 270; [19.7] K.B. 831.

Appeal from an order of the Magistrate's Court made under the Maintenance and Affiliation Ordinance 1971 suently upheld by the Supreme Court.

H. A. Marquardt-Gray for the appellanellant.H. M. Patel for the respt.

31st 31st July 1974.

The following judgments were read:

MARSACK J.A.:

This is an appeom thgment of the Supreme Court sitting at Suva dismisismissing an appeal by the appellant againagainst an affiliation order made in the Magistrate's Court, and further ordering that the maintenance payments be made retrospective to the date of the birth of the child concerned. This appeal by virtue of section 12(d) of the Court of Appeal Ordinance is limited to questions of law.

The respondent instituted proceedings as complainant in the Magistrate's Court against the appellant, alleging that the appellant was the father of her child born on 22nd March 1972. At the hearing the respondent gave evidence that she had had sexual intercourse with the appellant on many occasions at a bulk store in Amy Street, Suva; that she lived at Raiwaqa with her mother; that she had had no sexual relations with any other person than the appellant; and that the appellant had, before the sexual relations began, promised to marry her. The respondent's mother gave evidence that the appellant used to come and speak to her daughter and that her daughter did not associate with any other person. A girl named Shahida gave evidence that on one occasion she went with the respondent to a bulk store and garage in Amy Street where the latter met the appellant. The appellant and the respondent then went inside the bulk store, from which the respondent emerged some fifteen minutes later The appellant gave no evidence and called no witness.

In his judgment the learned Magistrate said that he had no hesitation in accepting the evidence of the respondent which, in his opinion, had reasonably been corroborated by that of the two witnesses. He adjudged the appellant to be the putative father of the child born to the respondent on 22nd March 1972 and ordered the payment of maintenance at $8 per month from the 31st May 1973.

The appellant appealed to the Supreme Court. The learned Judge dismissed the appeal; but varied the order for payment of maintenance to provide that it should be made retrospective to the date of birth. The learned Judge further ordered that the accumulated arrears of maintenance should be paid by monthly instalments "to be assessed after evidence of the appellant's income".

On the main issue, the ground of appeal put forward by the appellant, and argued before this Court, is in these terms:

"THAT the Learned Appeal Judge erred in law in holding that the evidence adduced by the Respondent amounted to corroboration in a material particular as is required in law."

Counsel referred to section 18(2) of the Maintenance and Affiliation Ordinance 1971 which provides that if the evidence of the complainant is corroborated in some material particular by other evidence to the satisfaction of the Magistrate, he may adjudge the defendant to be the putative father of the child. In counsel's submission the evidence of the respondent was not so corroborated at the hearing. He cited 3 Hals. (Third Ed.) pare. 184 p.120:

"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."

Counsel argued that the only corroboration was that of one witness as to one visit to the bulk store in Amy Street. This, in counsel's submission, was mere evidence of opportunity; and as is stated by Lord Parker, C.J. in Cracknell v. Smith [13 All E.R. 569 at p. 571: 571:

"Mere evidence of opportunity and nothing more can be no evidence of corroboration."

The evidence of the respondent's mother, counsel contendeould no weight as it s it couldcould not be called independent; and in any event it did not contribute anything to proof that the appellant was the father of the child. Furthermore, the fact that the appellant gave no evidence and called no witnesses could not in any sense amount to corroboration.

The question for determination on this appeal is whether the learned Magistrate was correct in law in accepting the evidence of the witness Shahida, coupled with that of respondent's mother, as corroboration in a material particular in terms of section 18(2) of the Ordinance.

The testimony of the witness Shahida in my view amounts to more than "mere evidence of opportunity" It is a fair inference from the fact that the appellant and the respondent went off by themselves into a place where they would not be seen by other persons, and while the friend of the respondent was kept waiting outside, that they went there for the purpose of intimate relations. The learned judge held,

"A pre-arranged meeting of that nature is corroborative evidence of the kind required by the statute."

It would not, of course, be proof that intercourse had taken place; but it could in my opinion properly be taken as corroboration of the respondent's evidence.

Then there is the evidence of the girl's mother, to the effect that the appellant used to come and speak to the respondent, and that she did not associate with any other person. In Moore v. He/i> [194; [1947] 2 All E.R. 270 the evidence tendered as corroboration was to the effect that the complainant and the defendant had been associating at different hours of the day and nightng in other's company pany for various periods of time; and ther there was no suggestion that the girl was associating with anyone else. This was held to be sufficient corroboration. In his judgment Lord Goddard, C.J. said that the test to be applied in determining whether or not there was sufficient corroboration is that evidence

"would tend to make it probable - that is the test - that the respondent's story was true."

Although in that ease there was evidence of more frequent association between the parties, I feel that the evidence in the present case did measure up to the test there laid down, and tended to make it probable that the respondent's story was true. Accordingly I am of opinion that the Court below was fully justified in holding that the evidence of the respondent had been corroborated in some material particular.

With reference to counsel's argument that the appellant's failure to give evidence or call witnesses could not in itself amount to corroboration, this is certainly so. At the same time his failure to give evidence may be taken into account in determining what weight is to be given to the corroboration. As is said by Lord Parker, C.J. in Cracknell v. Smit (160;(supra):

"If there is evidence against him, and some corroborative evidence, it may be that the justices are entitled to take into consideration the fact that he gave no evidin coring the weight tght to be attached to the corroboration."

In the present ease neither the Magistrate nor the Judge on appeal, though they referred to the election of the appellant not to give evidence, treated his failure to give evidence as amounting in any degree to corroboration of the respondent's story.

For these reasons I would hold that the learned Magistrate and the learned Judge on appeal were correct in deciding that the evidence of the appellant had been corroborated in a material particular and that the appellant was the putative father of the respondent's child.

The other ground of appeal argued was expressed as follows:

"THAT the Learned Appeal Judge erred in law in ordering that evidence of the Appellant's income be assessed after his evidence has been taken, he not being a compellable witness."

This ground as set out does not, however, accurately quote the order of the Judge, which is in the following words:

"In dismissing this appeal I order that the maintenance payments of $8.00 per month be made retrospective to 22nd March 1972 and that the arrears accumulated be reduced by monthly instalments to be assessed after evidence of the appellant's income."

It was conceded by the appellant that the learned Judge had jurisdiction to order that the maintenance be payable from the date of birth. The Judge said, however that it would be unfair to order immediate payment of the arrears and so he made provision for payment by instalments. This was definitely in the interest of the appellant. As there was no material before him upon which he could assess the amount of such instalments he directed that this should be fixed after evidence of the appellant's means. He did not order the appellant to give evidence. In my opinion the Judge's order in this matter is not open to objection. It may well be that the parties can arrange by negotiation as to how the arrears are to be paid. That would be the most satisfactory method. If this cannot be done then I would remit the matter to the learned Magistrate to fix the manner in which payment by instalments should be made; giving leave for him to hear such evidence on that point as the parties may see fit to bring before him, or to direct a probation officer to conduct an investigation under section 25 of the Maintenance and Affiliation Act 1971.

In the result, I would dismiss the appeal subject only to the reference back to learned Magistrate for the purpose of ordering how the arrears of Maintenance are to be paid. I would order the appellant to pay the respondent's costs of the appeal, to be fixed by the Registrar.

GOULD V.P.

I have had the advantage of reading the judgment of Marsack J.A. in this appeal, and am entirely in agreement with his reasoning and conclusions.

The only question is whether the magistrate and judge in the courts below were entitled to regard the evidence given as providing the corroboration of the complainant's testimony in some material particular which is required as a matter of law by section 18(2) of the Maintenance and Affiliation Act, 1971. Unless the evidence given could not in law amount to corroboration the assessment of weight to be attached to it is a matter for the courts below. This may be a border line case but I am not prepared to hold that the evidence of Shahida and Devi, taken together, could not amount to corroboration and the courts below were prepared to accept it as sufficient. In the absence of any relevant misdirection it is not a case for interference by this Court, though I would add that, in any event, I regard the decisions of the learned magistrate on the point as correct.

All members of the Court being of the same opinion the appeal is dismissed with costs, except that the question of judgment of arrears of maintenance is remitted to the magistrate as proposed in the judgment of Marsack J.A.

BODILLY, J.A.

I have had the benefit of reading the judgment by my learned brother Marsack J.A. I respectfully agree with his conclusions for the reasons he gives and I have nothing to add. I too would dismiss this appeal and order that the case be referred back to the trial Magistrate for the purpose only of determining how the arrears of maintenance are to be paid. The appellant should pay the respondent's costs of this appeal including any costs to be incurred upon remission of the case to the Magistrate.

Appeal dismissed.

Case referred teach to Magistrate's Court for determination
as to how arrears of maintenance are to be paid.