Singh v Kaur [1997] FJLawRp 38; [1997] 43 FLR 269 (3 October 1997)

[1997] 43 FLR 269

HIGH COURT OF FIJI ISLANDS

BALJEET SINGH

v

SUBINDAR KAUR

[HIGH COURT, 1997 (Lyons J) 3 October]

Appellate Jurisdiction

Evidence: Civil- recognition of foreign decree of divorce- comparison of handwriting by Resident Magistrate- examination of document not properly before the Court.

A resident magistrate hearing a contested application for recognition of a foreign decree of divorce examined a document for the purpose of comparing handwriting and as a result of the examination made a finding of fact. On appeal the High Court HELD: (i) that although the evidence of an expert is not essential when hadwriting is to be compared, the issue between the parties was so serious that an expert should have been called and (ii) that a Court should not make use of a document not placed before it by the parties without affording counsel the opportunity to address the Court on the evidential value of the document.

Cases cited:

Arnold v Norris [1936] SAS

Bater v. Bater [1950] 1 All ER 458

Briginshaw v. Briginshaw [1913] HCA 32; 16 CLR 336<336

Cavanett v. Chambers [1968] SASR 97

Chiman Lal v. Pan Bai

C. Valentine v. Donnan C.A. 38/81- FCA ReCA Reps 81/157

Gronow v. Gronow [1979] HCA 63<#160; 144 CLR 513

House v. R 55 CLR 505

Jai Prakash v Savita Chandra ( C.A. 37/85- FCA Rep1585/156)

Miller v. Ministry of Pension [1947] 2 A 372

R R v. O’Sullivan [1969] 2 All ER 23

R R v. Rickard (193 Cr. App. R

>R v. S v. Smith&#/i> (1909) 3 Cr. App. 87

R>R v. Tilley [1961[1961] 1 All ER 406

Shameem Mohammed v R 29FLR 155
&#br>Apto the the High CourtCourt from the Magistrates’ Court.

S. Ram and V.P. Mishra for the Appellant

A. Singh and G.P. Shankar for thpondent
#160;
Lyons J
:
:

This isppeal fhe Lehe Le Magistrate’s decision of the Ba Magistratetrates’ Court of the 15th April 1997 1997.

Fau>

Tpbr>Tpellaaljeet) an Rthe Rthe Respondent (Subindra) were married on d on the 10th January 1990. Shortly after marriage Baljeet left for the UnStatetake up residence. The initial plan was that Subi Subindra would follow him after sorting oing out certain immigration matters.

For one reason or another these plans did not eventuate. The parties became estranged and on the 11th December 1995 Baljas granteranted a Dissolution of the Marriage in the Supreme Court of California County Stanislaus, USA.

On the 3rduary Subindrbindra brought application for maintenance on her behalf under the provision oion of theMaintenance And Affiliation Act (Cap One assumessumes umes that because of her marriage to Baljeet such application was made pursuant to Section 6 of the Act.

On the 3rd Fry, al as f as filing for mfor maintenance, Subindra filed a Notice of Motion seeking to prevent Baljeet leaving the country pending ution of Maintenance Application. I pause to note that in paragraph 6 of Subindra’s A7;s Affidavit in support of the Notice of Motion, she alleges that the Police “got hold of him (Baljeet) for a possible bigamy charge.” Even if it be conjecture, I doubt one would be too hard pressed to guess who gave information to the Police, in respect of an allegation of bigamy, if indeed the Police had any interest in Baljeet. If they did, a simple check of the details of the marriage to Miss Kaur would have satisfied matters. I must say that, at first glance, the said Affidavit raises some questions as to the true motives of Subindra in bringing the Notice of Motion.

Baljeet respoto the alle allegations as raised in the Affidavit filed on the 6th February. I shall return to this later.

On the 4th Fry the Lear Learned Magistrate granted an ex-parte order pring Baljeet from leaving Fing Fiji. It seems that his Passport was also ordered to be retained by the Court.

On the 17thuary atter cter came back back before the Court inter partes. The Learned Magistrate dissolved his previous ex-parte order, returned assport and allowed Baljeet to go to the United States. No doubt, the Learned Magistrate wate was aware of the Court of the Appeal’s ruling in Chiman L Pan Bai&#16> (C.A. 48/81- Fps 81/144) an4) and C. Valent. Donnan&#1u> (C.A. 33/81- Fps 81/157) wh7) where the Court expressed that the greatest caution should be used when restricting a person’s lg of underprovisiovisions of the Maintenance Act and, in thin the later case, where it ruled that it t it was beyond the jurisdiction of the Courts of Fiji to retain a foreign Passport. I understand that Baljeet in all likelihood possessed a United States passport.

Be that as it may, the Learned Magistrate released Baljeet on the giving of two sureties, one of which was signed by one Gurdev Singh.

On27th February 199y 1997, Baljeet filed a Notice of Motion seeking a ruling that the application for Maintenance be struck out as the Court had no jurisdiction to entertain the matter by virtue of the California Divorce. The reasoning behind this application was that Section 6 only allows a married woman to claim maintenance. As Subindra was by now divorced, she, no longer being married, had no right to maintenance. (Although I do not have to rule on that point, I do refer to Halsbury 4th Ed Vol. 13 p91 which, ach, at first glance, appears to give some support to that reasoning).

Baljeether submitted thed that the divorce in California should be recognised pursuant to Section 92 of the Act.

Subindra&;s art was thas that she had no knowledge of the divorce, having never been served with theh the divorce papers or the Decree Nisi . , she argued, she was denied natural justice (i.e. - a right to be heard on the Divorce appe application) and thus the Court should invoke Section 92 (6) and refuse to recognise the foreign Decree from California.

Fo part, Baljeet, deniedenied Subindra’s lack of knowledge. In his Affidavit of the 6th February he annexed what purport to be Affidavit of Service of Documon Subindra signed by Gurdev Singh (court Record - page 17 e 17 and 18). He also says that the California court was given an address in Fiji to which it could post documents to Subindra -such documents being the Decree Nisi (see paragraph 7 on p.15 of the Record). Subindra responded to this by neither admitting nor denying that the address given was hers or that the Decree was in fact sent - (Para 5 page 28).

On the 3rd April 1997 the Learned Magistrate heard the application on the papers. He called for and received written submissions. The Learned Magistrate called the parties before him again on the 14th April where he askether the Gurdev Singh who who signed the Bail Bond surety was one in the same as the person who signed the service documents. Counsel for Mr. Baljeet said that he was.

On the 15th Aphe Learneearned Magistrate handed down his decision dismissing the Appellant’s Notice of Motion of the 27th February. His Worship made no further ruling, save on costs, and ordered that rial of the matter proper bper be adjourned to a later date.

It is from this decision that Baljeet appeals.

Tcision of the LearnLearned Magistrate

The LeaMagistrate&#ate’s ruling centres on Section 92(6the Ais Worship ruled that the Registrar of Marriages ages acceptance of the California Decree pree pursuant to Section 38 of the Act was inding on the Court. This ihis is the correct view.

The ed Magistrate then then discusses Subindra’s assertion that she was not served with the Divorce process and comes to the conclusion that she was not. To achieve this, the Learned Magistreferred to the signatures ores on the service document (pages 17 and 18 of the Records) purported to be of one Gurdev Singh and compares these with the signatures of one Gurdev Singh on the Bail Bond Surety (p.36 of the Record). As I have said on the 14th April the Learned Magistrate sought and obtained confirmation from Baljeet’s Counsel, that it was in fact the same Gurdev Singh.

On his comparisonhe sige signatures, the Learned Magistrate found the following differences:-

“e very carefcarefully perused the signatures in the documents mentioned above and I am of the view that the signatures in documeentioned to (a) and (b) above are similar and appear to have been made by the same person. son. When I compare the signature on the document in (c) above (i.e. Bail Bond surety), I find that the signature on document (c) is very different to the signature on (a) and (b) despite the fact that I only have photocopies of (a) and (b).

I find the wing differefference:

<#160;  n&##10;& The letter g, s and h in d in document (a) and (b) are different to dnt (c>

ii) &##160; Tt dolett letter (i) is p is placed in different place in document (a) and (b) toment nd the length of the signature also appears to be different.

Having ving obserobs thed the differences in the signature in the documents mentioned above, I am convinced that the signature in document (a) and (b) are not of Gurdev Singh.”

The Learngistrainedained support fort for his contention from the fact that Baljeet put no material before the Court from Gurdev Singh in respto Subindra’s allegation that she had not been served. On p.75 of the Record the Lear Learned Magistrate says:-

<220;Now coming back tack to the denial by the Complainant that she was not served, I would have thought that in the face of suchtegorical denial at least that should have provoked some response from the Respondent - at - at least there should have been an affidavit filed in reply by Gurdev Singh refuting such a serious allegation, but all the Respondent says is that he had the papers served through Gurdev Singh - see para.7 of his affidavit sworn on 11/02/97 - see Jai Praks Savita Chandraandra, F.C.A. Civil Appeal No. 37/85, at page 3 of the cyclo-styled judgement where Fiji Court of Appeal states: “of course he did havrespond. In our view, the course events have taken and the the consequences, if he did not respond, rendered it a matter of prudence that he should reply if indeed, he had a reply. And in the circumstances of the case in the absence of a reply, we hold the inference inescapable that what the Respondent has said to be true.”

Quite obviothe Learned rned Magistrate, having found that the signatures on the service forms being not<160;the signatures ores of Gurdev Singh, refused to accept ruth of the contents of those service documents. He thus heus held that Subindra had not been served and that she therefore been denitural justice. He was theretherefore able to apply the provisions of Section 92 (6).

rguments on Appeal

The Appellant’s argument can be summarised as follows:-

1. ¦҈&<&##160; 160; The finding, being based on the difference in signatugnatures, fail to meet the required burden of proof bearing in mind the seriousof thegatihe case cited was Briginshaw -v- Bri- Brig Briginshginshaw [1913] HCA 32; 16 CLR 336.)

20;  &#16e findis an improper exer exercise of j of judicial discretion in that the evidence of the Bail Bond Surety document was not properly before the and er, nortunity wven t Appe as AppliApplicant cant in thin the orie originalginal appl application, to make submissions on the signatures.

The Respt’s argumargument can be summarised as follows:-

1.  n&##10;& Tarned Magistagistrate’s finding was correct in that a proper exercise of his jurisdiction.tion.

2. 𧍘҈ e wase wasence of and notice tice of thof the Appe AppellanellantRt’s fraudulent conduct in respect of the service documents. The Couruld totice it is not certain the documents annexennexed to d to Baljeet Affidavit of the 6th Februaryruary are in fact the document. They appear to come from a typing service called “Central State Typing Service.” It is also submitted that the absence of an attestation clause or a method of swearing the Affidavit as is found in most English based common law jurisdictions must raise suspicions about the authenticity of the service documents and hence the authenticity of claim that service had been effected.

Ruling
&#160I
I can deal with the 2nd limb of the Respondent’s argument first, but before doing so, I must note that the decision appealed from was on an interlocutory application.

No pois put to me that that ordinarily interlocutory rulings are non-appealable, unless of course the ruling gives finality to the proceedings. Neither party pursued point.

As it stands, thece of e of Motion soug sought to put point to Subindra’s maintenance application. The Learned Magistrate ruled against the motion thus preserving Subindra’s application to another day. Arguably this did not put paid to the Appellant’s (Baljeet) case because he could come and argue the applicability of the other subsections and factors raised therein in Section 6. In reality though, it must be considered that, having lost the motion, Baljeet who was put in an extremely difficult position concerning the question of liability to pay maintenance. In effect, the later trial of Subindra’s application would most likely be. in the form of an assessment rather than an argument on liability. In that respect the dismissal of the Motion put an end to Baljeet’s case and implicitly meant that Subindra would succeed in all likelihood on the question of liability for maintenance - it being on a question of quantum that was left to be decided. In that sense, I consider the appeal to be properly before me.

Anyhow, neithety raisedaised the point and in the absence of any objection, I propose to proceed on the matters raised by this Appeal as if there were no bar to me so doing.

Returning to the sepoint of the RespondentRt’s argument, I fail to see it as valid. This Court has no way of knowing if the documents of servic in proper form for the case in California. But, despite the difference in form from those hose in Fiji, it must be assumed to be correct. The Divorce was granted so it must be reasonably implied that all matters, including service, were acceptable to the Court in California. Merely because the form of the document is different from here, it is no ground for assuming that it is not what the Appellant says it is.

Had the Respondent wished to raise that argument previously, then information of evidence in that respect should have been put before the Court by Subindra. The rule is simple:- the party which alleges the irregulari impropriety of the documencument must put the evidence up to support it. There being no evidence that the documents are not the proper documents as to proof of service, it is reasonable to assume that in fact they are.

The Learned Magistrate implicitly worked on that assumption - but what his Worship has found was that the documents were most likely not a true account of se, albeit that prima facie, the documents were in correct form.

I now turn to n to consider the Learned Magistrate’s findings of fact regarding the service - which of course impacted on Section 92(6). In so doing, all the remaining arguments th parties will be considered.

The Learned Magd Magistrate has made a finding of fact. His Worship as exercised his discretion when undertaking this task. When an Appellate Court approaches such a finding, it is not for the Appellate Court to merelplant the Lower Court view view with its view of the facts. That can only be done if the Appellate Court finds that the Lower Court’s assessment of the facts was plainly wrong or that it (the Lower Court) acted on a wrong principle (See House v. R;55 CLR 505 a60;&#160 144 CLR p er Stephen J. as . as he then was).
<160;
As to thrned Mned Magistrate&#s actual finding of the signature differences (and hence his application of Section 92 (6)) (6)), I am unable to come to any conclusion eiway. All that was before the Learned Magistrate were the dohe documents referred to and nothing else. I am far from a handwriting expert, particularly in the areas of signature which, I suspect, is a rather narrow and specialist field.

Without in ay deciding ding the issue, I might say that the Learned Magistrate’s approach, in my view, was one fraught with pitfalls. sider it reasonable to say that my experience in trials where handwriting evidence was in i in issue, the general rule emerges that the lesser the amount of writing to be assessed, the greater the difficulty in coming to an accurate assessment. Also, in my experience, assessment of signatures is a special and difficult area when I would think one should proceed into with the greatest of caution. It would seem to me, that the authorities take a similar view.

The Learneistrate held held that he was entitled to look at the signatures and come to an assessment notwithstanding the absence of expert witness. In effect he felt he cexercise his discretion and take a stab without such expertxpert assistance. His Worship cited <. Smith (1909) 3 9) 3 Cr. Ap7 and&#and R v. Rickhard&(1919)1919) 13 Cr App. R. 140 as authority for this.

Ind160;Smith; Ric’ cases are authority that a Court can can come to its own assessment on handwrindwriting. But, with respect, the Learned Magis failed to take cognizance of the limitations of those case cases put on the exercise of the discretion.

Both cases, whicceptingpting the exercise of the discretion existed, must be understood to have placed a cautionary restriction particularly whe findings to be arrived at by such review of the handwriting, had serious consequences.
In both Rickard&#16 0;Smith’s cases Courts considered it d it unsafe to allow the exercise of the discretion to assee haning in the absence of the expert or supporting evidence, where the finding was thas the sole sole reason for supporting an allegation of criminal offences.

I migho point out that that later authorities such R v. Tilley&[1961] 1 All ER 406 and O&#82llivan [190; [1969] 2 All ER 237 ddcided it wait was wrong for juries to be asked to compare handwriting without the assce ofxpert. (See alsoShameem Mohammed v R 29FLR 155). I venture to ntmmentmment that that in civil cases where the judicial person is the arbitrator of the facts, if not incorrect, then it would likely be held that such judicial person should exercise
This is the very poiiseraised by the AppelAppellant. By finding that Gurdev Singh did not sign the service documents, the Learned Magistrate is, in effect, making a finding that whoever did was perjuring themselvd, by analogy, that Baljeetljeet was probably involved in some deception of the California court. That is - either contemptuous or fraudulent activity. This is a serious allegation. The Learned Magistrate himself recognises this at p.75 of the record.

Bearing in mind the seriousness of the allegation and any finding in respect thereof, I am directed to authority such asBriginshaw v. Briginshaw (Sup#160;Miller v. MinisMinistry of Pensions [1947] 2 All ER > ;and Bater v. Bater#160;[1968] SASR 97, a Magistrate informed himself as to the effect ofrtaind alcreadingading upon upon the Defendant’s ability to drio drive, but then gave the Defendant no opportunity to comment.

&#82 is one thing ting to use the section [S.64 of the Evidence1929] for the purpose of discovering or verifying objective facts or figures about which thch there can be no real dispute, such as hical or geographical data oata of an uncontroversial nature or mathematical tables of life expectancy or interest calculations. Cf Arnold v Norris [1936] SAStRp 44; [1936] SASR 287, though even there I think ... the parties should be given notice of the Court’s intention and an opportunity to be heard on the result of its researches. It is quite another thing for the tribunal of its own motion to seek to inform itself out of court on a question of fact or opinion vital to the issue and by no means free from controversy. This is, of course, doubly objectionable if done without the parties having any opportunity to state their views on the specific authorities consulted. But in my view, even if they are offered this opportunity, the court should not embark on such investigations except by consent. It would he preposterous to suppose, for example, that in a claim for damages or worker’ s compensation where divergent medical opinions have been expressed by expert witnesses on each side, the court should be at liberty without consent to pursue independent inquiries of its own on the point through medical journals or text books not referred to by the witnesses.”

(See also Con Evidence ence 3rd Australian Ed. p101 and 102.).

The situation commentemented on by Bray C.J. is fairly much what has happened here. The Learned Magistrate merely went into Court and satisfied himself that the GuSingh who signed the Bail Bond Surety was one in the same aame as the person who signed the service documents. His Worship gave no indication as to why he wanted this information and gave the appellant no opportunity to comment on it. In so doing the Learned Magistrate has clearly failed to properly exercise his discretion. He has in effect denied the Appellant a right of properly putting his case.

In resof the last mentimentioned matter, in making his comments on the top of p.75, of the Record, I find that the Magistrate may have become confused himself as to the difference between the allegation of non-service made by Subindra and the matter pertaining to the signatures.

As to ormer, it was alws always Subindra’s obligation to prove the allegations she made. It was never Baljeet’s obligations to disapprove it. He had put forward his evidence that servicebeen affected. It was SubinSubindra’s obligation to put forward evidence to disprove it. The reference to Jay Prakash vndra&#1u> (C.A. 37/85 - FCA 85/156) i56) is not applicable. In that case Mr. Prakash had, on the reverse side of the ch simply made an admission at odds with his defence. Thus it was clear obligation to explainplain the misunderstanding. His failure to do so was properly weighed against him. In instant case, Baljeet says that Gurdev Singh had served Subindra. There was no inconsistency in his evidto be explained and anyd any further Affidavit by Gurdev Singh would have, as the Appellant’s Counsel put it, merely repeated what Baljeet had said.

Ofse, had the Learned Mned Magistrate invited submissions regarding signatures and not got any explanation from Gurdev Singh, then Prakash’s case would well have been of some significance.#160;
For all the above bove reasons, I consider the Learned Magistrate has erred in the exercise of his discretion and the appeal must be upheld.

Acngly the Learned Magi Magistrate’s finding and orders of 15th April are vacated.

Ir the Respondent to pato pay the Appellant’s costs which I summarily assess at $175.00.

(Appeal allowed; ruling of the Magistrates’ Court set aside).