Umaria v Albert [2001] FJLawRp 39; [2001] 2 FLR 118 (21 May 2001)

CHANDRA KANT UMARIA v RAUHANISI OFA ALBERT

High Court Miscellaneous Application
21 May, 2001 HBA 9 & 10/00 & HBM0024/99L

Maintenance – reinstatement of appeal dismissed for non appearance of counsel for Applicant in the lower court– whether default in affiliation payments civil or criminal in nature - principles to consider in enlargement of time to appeal – principles to consider in exercise of discretion to reinstate appeal - Maintenance and Affiliation Act ss16(c), 17, 18(2), 26, 27(2), 29; Penal Code s39; Criminal Procedure Code ss29, 308(8), 310(1), 319(1); Magistrates' Court Rules r.6 O.37; 1997 Constitution s23(1)(d)

Failing appearance by Appellant's counsel, an appeal against a finding that the Appellant is the putative father of two children, and an order for payment of maintenance was dismissed. The Appellant sought to reinstate the appeal over 4 months out of time. The appellate court found that since the Appellant had not sought leave of the Magistrates' Court thus there was no appeal afoot. There was no application for enlargement of time. The Court considered it could exercise its inherent jurisdiction rather than under O.2 r.2 as there was no irregularity. The Court found that the Appellant chose to go overseas when he had notice of the maintenance case proceeding, despite his complaint that the Court should have assessed him on means before making an order for maintenance. The Court refused to reinstate the appeal due to hardship caused to the Respondent.

Held-(1) The Court will not re-instate an appeal which was previously dismissed for non-appearance due to hardship to Respondent, the need to protect children, failure of the Appellant to pay any maintenance and defects in failing to apply for enlargement of time and delay in appealing.

(2) An appellate court has inherent jurisdiction to set aside its own order of dismissal of an appeal. A defect in commencement of appeal by failing to seek leave of the Court for enlargement of time within which to appeal must be weighed when considering the exercise of a discretion whether to reinstate an appeal to the list.

(3) Affiliation proceedings are predominantly civil in nature, but governed by a statutory amalgam of civil and criminal procedure. The appeal procedure is governed by the Criminal Procedure Code. Being civil in nature, the Appellant could not have been arrested prior to adjudication and maintenance orders.

Summons seeking reinstatement dismissed with costs. Stay on Magistrates' Court order vacated.

[note: the Maintenance and Affiliation Act has been repealed by the Family Law Act WEF 1 November 2005]

Cases referred to in Ruling
cons Arvind Sharma v Saira Bibi [1984] HAC 5/84 21 March 1984

cons Behari v Hicks (1969) 15 FLR 90

cons Chanan Swamy v Parvati Civ. App. 4/77

cons Chiman Lal v Bai [1979] ABU 29 March 1979

cons C M Stillevoldt B V v EL Carriers (1983) 1 WLR 207

cons Fulori Raqalo v Bhagwan (1973) 19 FLR 64
cons Kamoe v Kamoe [1984] HAC 3/84 6 December 1984

foll NLTB v Kaur & Anor. [1997] ABU0038/97 25 November 1997

cons Palata Investments v Butt & Sinjield (1955) 2 All ER 517

foll Ponsami v Reddy [1996] SC 0001/96 12 September 1996

cons R v County of London Quarter Sessions Appeals Committee ex p. Rossi [1956] 1 QB 682

cons R. v James Berry [1859] EngR 112; (1859) 169 E.R. 1161

cons R v Knightsbridge Crown Court ex p. Johnson [1986] Crim LR 803

foll Rex v Sunderland JJ ex parte Hodgkinson [1945] 1 KB 502

cons Satya Nadan v Ashma Devi [1990] HBC 4/89L 19 January 1990

cons Sohrab Ali v Jainul Nisha [1983] HAC 27/82 14 October 1983

appl Venkatamma v Ferrier-Watson [1995] SC 0002/92 24 November 1995

Natasha Khan for the Appellant
Ramesh Prakash for the Respondent

21 May, 2001 RULING (on re-instatement of appeal)

Gates, J

On 25 March 1999 the Lautoka Magistrates' Court ordered the Applicant to pay to the Respondent $55 per week maintenance for each of 2 children. These were proceedings brought under section 16(c) of the Maintenance and Affiliation Act Cap 52 [the Act]. The Applicant does not now contest the affiliation finding adjudging him to be the putative father of both children. His argument is with the procedure in arriving at the figures for maintenance and as to the amounts ordered.

On 30 July 1999 the applicant filed a Notice of Motion for Stay with the High Court against the Magistrate's decisions of 25 March 1999 and of 30 July 1999. The decision of 30 July 1999 was an order for payment by the Applicant of $1,000 by 2nd August 1999 with balance arrears payable by 31 August 1999, in default 3 months imprisonment. On 12th August 1999 Madraiwiwi J. ordered a stay on the enforcement decision of 30 July 1999 pending the hearing of the appeal. The matter came on for hearing in this court on 7 December 2000 at 11.30 a.m. The hearing date and time had been fixed on 17 November 2000 in the presence of counsel for the respective parties.

On 7 December 2000 Mr. Gordon appeared for Mr. Iqbal Khan for the Applicant and requested an adjournment to another date, or for the matter to be stood down till 2 p.m. No reason was given other than Mr. Khan's unavailability. Mr. Chandra Singh, appearing for the Respondent, objected. He said no maintenance had been paid for the children since March 1999, a period in excess of 20 months, and there had been a good deal of difficulty in getting the appeal listed. Accordingly I refused the application for adjournment, and dismissed the appeal with costs of $750 to be paid by the Appellant within 21 days and vacated the stay on the Magistrate's court proceedings.

On 20 December 2000 the Appellant filed a summons to re-instate the appeal. An affidavit was sworn by Mr. Khan which dealt with his reasons for not attending the court for the appeal hearing. On 12 February 2001 Mr. Chandra Singh, the solicitor for the Respondent at the appeal hearing, swore an affidavit in opposition.

In considering whether there is jurisdiction to set aside the dismissal and to reinstate the appeal, it is necessary first to decide the initial nature of these proceedings.

Are affiliation proceedings civil or criminal?

Proceedings under Part III of the Act, which are headed Affiliation provide for a complainant to apply for a summons to a Magistrate. If the Magistrate is satisfied that there is reasonable cause to believe that the man alleged to be the father of the child is the father of the child and that the application is made bona fide and not for any purpose of intimidation or extortion, he will issue a summons [section 17].

The Magistrate then proceeds to hear the complaint. If the evidence of the complainant and evidence in support is corroborated, the Magistrate may make his adjudgment (section 18(2)] and may make certain orders for payment of monies for the child's maintenance and education, incidental expenses of the birth (or funeral expenses), and costs. The subject matter of the proceedings and its consequences would appear to be civil in nature.

However section 26 of the Act provides for the application of criminal procedure. It states:

"All applications under this Act, shall be made in accordance with the provisions of the Criminal Procedure Code, and in the case of a conviction of a husband by a magistrate's court for assault upon his wife, her application may, by leave of the court, be made by summons to be issued and made returnable immediately upon such conviction and such summons may be served upon the husband in court."

Failure to meet orders can be met by the issuance of arrears warrants culminating in imprisonment for non-payment, and by virtue of section 27(2) of the Act "the provisions of section 39 of the Penal Code shall mutatis mutandis apply." Section 39 deals with payment of fines after commitment, thus securing discharge for the defaulter.

The Criminal Procedure Code applies also to appeals against such orders. Section 29 of the Act provides:

"An appeal shall lie from any order or the refusal of any order by a magistrate under this Act to the Supreme Court. Such appeal shall be in accordance with the provisions of the Criminal Procedure Code so far as the same may be applicable."

In R. v James Berry [1859] EngR 112; (1859) 169 ER 1161 at p1166 Lord Campbell CJ delivering the majority decision, said:

"The proceeding against the putative father of a bastard child to obtain an order of affiliation and maintenance is not a proceeding in poenam to punish for a crime, but merely to impose a pecuniary obligation, and is a civil suit within the meaning of 14 & 15 Vict. c. 99 ss. 2 and 3; see Regina v Lightfoot [1856] EngR 698; (6 Ell. & Bl. 822)."

Even in the dissenting judgment of Martin B at p. 1167 it was conceded:

"I think the distinction is between a Court of general jurisdiction and a special one, and not between proceedings of a civil and criminal nature."

In R. v Machen [1849] EngR 79; (1849) 14 QB 74 it was held that a refusal by justices to make an order for the maintenance of a bastard, though on the merits, was no bar to a second application. This decision was founded not on the ground that no appeal by the woman lay to quarter sessions, but on the ground that the dismissal of her previous application was in the nature of a non-suit in an action see McGregor v Telford [1915] 3 KB 237 at 239 per Scrutton J. and at p 240 per Lord Reading CJ. A right of appeal was granted to the woman by the Criminal Justice Administration Act 1914.

If fresh evidence were available, the complainant could re-apply to the Magistrates after a previous order of refusal. In Rex v Sunderland JJ ex parte Hodgkinson [1945] 1 KB 502, Humphreys J at p 504 said of the jurisdiction:

"I do not think that the considerations applicable in the case of criminal proceedings, or in civil actions, are of any assistance in this matter. Bastardy proceedings are the creation of statute and may be said to have their origin in the powers conferred upon guardians of the poor, to whom was chargeable the maintenance of un illegitimate child, to recover from the putative father the whole or part of the costs of maintenance. The main object of ordering payments by the putative father is still to provide for the support of the child." (emphasis added)

The fact that bastardy or affiliation proceedings are civil proceedings has been accepted beyond question in Fiji see Behari v Hicks [1969] 15 Fiji LR 90; Fulori Raqalo v Bhagwan [1973] 19 Fiji LR 64; and Chiman Lal v Bai (unreported) FCA Civil App. No. 73 of 1978, 29 March 1979, at p 5 where Gould VP said:

"Although by section 26 of the Act all applications under the Act are directed to be made in accordance with the Criminal Procedure Code, matters of affiliation and maintenance are generally considered as civil matters."

In Sohrab Ali v Jainul Nisha (unreported) Lautoka High Court Civil App. No. 27 of 1982 14 October 1983 Dyke J. at p 3 said:

"It is to be noted that Section 30 of the Act provides that notwithstanding Sections 26 and 29 the Chief Justice may make rules of court regulating the practice and procedure of the courts in relations to applications and appeals under the Act. To date no such rules of Court have been made. How then are Sections 26 and 29 to be interpreted? The situation is not very satisfactory and there are many situations when the Criminal Procedure Code may be inappropriate.

But in Chanan Swamy v Parvati Civil Appeal No. 4 of 1977 Stuart J. accepted that the practice and procedure in maintenance and affiliation cases must be governed by the Criminal Procedure Code."

"Bastardy proceedings", said Thompson J. in Behari v Hicks (supra at p 93H) "are civil proceedings (R. v Berry) although they have always been regarded as being to some extent akin to criminal proceedings". In conclusion, affiliation proceedings are predominantly civil in nature, although governed by a statutory amalgam of civil and criminal procedure.

2. Enlargement of Time for Appeal

The record of proceedings includes a Petition of Appeal. The Petition is not numbered, dated or signed, nor does it bear any stamp or date of lodgment in the Magistrates' Court Registry. A handwritten note overwritten on copies of the Petition in the record suggests the Petition may have been filed on 30 July 1999. If it were whilst the appeal might be within time (if filed) to forward an appeal from the decision of 30th July 1999, it is already out of time for an appeal against the decision of 25 March 1999.

It looks as if the stay application was made successfully to the High Court prior to the filing of the Petition in the Magistrates' Court, and prior to any application to the Magistrate for enlargement of time within which to appeal. In accordance with Section 29 of the Act and following Section 310(1) of the Criminal Procedure Code, the Petition should be presented to the Magistrates' Court for lodging of the appeal within 28 days of the date of the decision appealed against. The Petition of Appeal in the Magistrates' Court file bears no registry stamp or date of filing. This may have been because the registry recognised the appeal was out of time and required leave before they could process the Petition.

There is therefore no appeal afoot. No Petition was properly lodged and no enlargement, as a prerequisite to the commencement of the appeal, was sought from either the Magistrates' Court or the High Court. The grounds relate to the irregularity of the original order on 25 March 1999. Leave for enlargement was therefore necessary.

The appeal (if filed) against the first order would have been filed over 4 months after such order, that is a delay of over 3 months from the end of the 28 day appeal period. It was said in the criminal appeal of The Queen v Brown (1963) SASR 190 at 191:

"The practice is that if any reasonable explanation is forthcoming, and if the delay is, relatively, slight, say for a few days or even a week or two, the Court will readily extend the time, provided that there is a question which justifies serious consideration."

Where the delay is slight, it is generally unnecessary to go into the merits, see Palata Investments v Butt & Sinjield (1955) 2 All ER 517 at 521 where the delay was 3 days. In C M Stillevoldt B V v EL Carriers (1983) 1 WLR 207 the Court allowed an extension where the applicant's solicitors were 2 weeks late in setting down an appeal. In R v Rhodes (1910) 5 Cr App R 35 a month was considered a substantial interval of time, and in R v Marsh (1935) 25 Cr. App. R 49, 2 months was referred to as a considerable extension. In both cases the applications were refused.

I do not propose to go further into the principles for enlargement, save to say that there are 5 main matters which a court would examine in considering whether to exercise a discretion in favour of enlargement. They are:

(i) The reason for the failure to comply

(ii) The length of the delay

(iii) Is there a question which justifies serious consideration?

(iv) If there has been substantial delay, have any of the grounds such merit that they will probably succeed?

(v) The degree of prejudice to the Respondent in enlarging time.

There is no application for enlargement before me. If there was, no doubt the Respondent would wish to raise arguments against the exercise of such a discretion. But this significant defect in the commencement of the appeal process is a matter which must be weighed when considering the exercise of a discretion in connection with re-instatement of the appeal to the list.

Re-instatement of the Appeal

The appeal having been dismissed on 7th December 2000, and the order of dismissal having been sealed on 12th December 2000, is there any jurisdiction remaining which would permit the High Court to entertain an application for re-instatement of the appeal to the hearing list. That application by inter partes summons was filed on 20th December 2000. No powers are specifically provided in the Criminal Procedure Code for reinstating an appeal once brought on for hearing and dismissed.

The first part of Section 319(1) states:

"At the hearing of an appeal, the Supreme Court shall hear the Appellant or his barrister and solicitor, if he appears, and the Respondent or his barrister and solicitor, if he appears, and the Director of Public Prosecutions or his representative, if he appears, and the Supreme Court may thereupon confirm, ..." (emphasis added)

The section anticipates instances when an appeal may not be pressed. Without being informed of the nature of the impediment, the court was simply told by counsel instructed to seek the adjournment for the applicant:

"I am instructed to ask for an adjournment. Seek another date or to be stood down till 2pm."

The adjournment was objected to, one of the reasons advanced being the lack of payment of any maintenance for 21 months. Further, paternity was not being denied. If what the applicant's counsel says in his affidavit was correct about his car getting stuck in a pool of water why was this account not put forward fully to the court. Counsel applying for the adjournment was not instructed to argue the Applicant's appeal.

Appeals in civil cases are governed by Order XXXVII of the Magistrates' Court Rules Cap. 14, and under Rule VI Proceedings in the Appellate Court sub-rule 13 it is provided:

"13-(l) If the Appellant fails to appear, in person or by legal practitioner when his appeal is called on for hearing, the appeal shall, on proof of service upon him of the notice of the hearing, stand dismissed with costs.

(2) When an appeal has been dismissed owing to the non-appearance of the Appellant or his legal practitioner the appellate court may, if it thinks fit, and on such terms as to costs or otherwise as it may deem just, direct the appeal to be re-entered for hearing."

But the Act specifically through Section 29 directs that affiliation and maintenance appeals shall be made in accordance with the provisions of the Criminal Procedure Code so far as the same may be applicable.

There would appear to be a power to set aside the order of dismissal of an appeal R v Knightsbridge Crown Court ex p. Johnson [1986] Crim LR 803. This would be the exercise of an inherent jurisdiction to set aside rather than a jurisdiction to set aside for irregularity pursuant to Order 2 r. 2, for there was no irregularity here. Although judicial review was allowed of the Crown Court's decision to refuse an adjournment and dismissal of appeal, since there had been a misunderstanding between the applicant and his solicitors who had incorrectly allowed him to be overseas when the appeal was heard, it was suggested by the Divisional Court that the Crown Court had inherent jurisdiction to set aside its own order made in the absence of a party R v County of London Quarter Sessions Appeals Committee ex p. Rossi [1956] 1 QB 682. Judicial Review as a remedy therefore was unnecessary.

The Discretion to Set Aside

The order of dismissal was an order made within jurisdiction, regularly obtained by the Respondent. The parties had due notice of the appeal hearing.

The explanation given by the applicant's counsel is one which would incline me to have allowed an adjournment of the appeal hearing, albeit on terms to safeguard the prejudice caused thereby to the Respondent. However the resultant delay is a factor against the Applicant, as is also the fact that the appeal is still not yet on foot because of the failure to seek enlargement of time. This failure to comply with the rules is not a minor breach. The Supreme Court has neatly summarised the position:

"We now stress, however, that the Rules are there to be obeyed. In future practitioners must understand that they are on notice that non-compliance may well be fatal to an appeal: in cases not having the special combination of features present here, it is unlikely to be excused." (See Venktamma v Ferrier-Watson, Civil Appeal No. CBV0002 of 1992 24th November 1995 at p 3)."

This law has been reiterated in Ponsami v Reddy (unreported) Supreme Court Civil App. No. CBV0001 of 1996 12 September 1996 and in NLTB v Kaur & Anor. (unreported) Court of Appeal Civil App. No. ABU0038 of 1997 25 November 1997 per Tikaram P.

Is there a ground of appeal which justice demands should be heard? Ms Khan urges that the Applicant was not present on 25 March 1999. Because his means should have been looked into prior to the making of an order she says the court should have issued a warrant for his arrest. This was the view of Dyke J. in Sohrab Ali (supra at p 4). But the Criminal Procedure Code is to apply procedurally only so far as is applicable [section 26 of the Act]. In many instances, it is not. In Behari v Hicks (supra at p 92A) Thompson J. said:

"However, that is not to say that the proceedings are a nullity. The fact that the procedure to be followed is that prescribed by the Criminal Procedure Code does not mean that all the substantive law relating to the effect of failure to follow the procedure must necessarily apply; these are civil, not criminal, proceedings and it is only the procedure appropriate to criminal cases which has been adopted."

These remarks were made in relation to an objection of duplicity. His lordship held that no substantial miscarriage of justice had occurred even though the proceedings in the Magistrates' Court had commenced incorrectly. In Satya Nadan v Ashma Devi (unreported) Lautoka High Court Civil App. No. 4 of 1989 Sadal J. in similar proceedings found that:

"Once a trial proper has commenced the right of appeal does not accrue until the court has delivered its final judgment or decision."

Because the proceedings are civil and not criminal proceedings section 308(8) of the Criminal Procedure Code [as added by the Criminal Procedure Code (Amendment) Act 1998, Act No 37 of 1998] would not apply to an applicant under the Act to permit an appeal against an order mid-trial. Section 308(8) states:

"(8) An order by a court in a case may be the subject of an appeal to the High Courts whether or not the court has proceeded to a conviction in the case."

The Applicant has not suffered a conviction. The proceedings are civil. Their chief purpose is to provide under a special jurisdiction for the support of an illegitimate child (see ex parte Hodgkinson supra at p 504).

In commenting on the decisions in Sohrab All and Chanan Swamy Kermode J. in Arvind Sharma v Saira Bibi (unreported) Suva High Court Civil App. No. 5 of 1984 21 March 1984 at p 4 said:

"This section requires the application to be made by way of complaint and summons. This procedure follows sections 78 and 79 of the Code. The section does not provide that the hearing of the complaint shall be conducted in accordance with the Code nor does it purport to incorporate the other provisions of the Code, It is in this respect that I differ from the views expressed by the two learned judges in the two cases earlier referred to."

On the question of issuing a warrant his lordship commented (at p 7):

"In the instant case the magistrate would not have been empowered to issue a bench warrant to bring the defendant before the Court. Sections 89 and 90 of the Code provide for a warrant to apprehend an accused person. Those sections are not merely procedural provisions but confer on a magistrate the power to issue warrants for the arrest of an accused person.

The defendant in those proceedings was accused of no offence. He was a defendant in civil proceedings. His arrest to bring him before the court on an adjourned hearing would clearly be in breach of the defendant's right to personal liberty guaranteed by the Fiji Constitution (Section 5 of the Fiji Constitution)."

Section 23 of the 1997 Constitution now safeguards personal liberty. Although section 23(1)(d) would probably empower the court to have the Defendant arrested after non-payment of maintenance, he having had an opportunity of attending the civil proceedings to defend himself and to present evidence of his means. In this case the Applicant chose to go overseas when he had notification that the case would proceed on 25 March 1999. But in view of section 23 of the Constitution and because these proceedings were civil in nature, the Applicant could not have been arrested on warrant prior to the making of orders of adjudication and of maintenance. It was suggested the magistrate should have made an interim order. There was no such power in the Act, see Kamoe v Kamoe (unreported) Suva High Court Civil App. No. 3 of 1984 6 December 1984 at p 2.

Conclusion

I conclude from all of this that it is not appropriate to allow the dismissal of the appeal to be set aside. There would be considerable hardship caused to the Respondent by further delay. The children who are to be protected by this special jurisdiction would suffer further. Nothing has been offered or paid by the Applicant to the Respondent, for the obligation imposed by the State, and after the unchallenged adjudgment of the Magistrates' Court of the Applicant's paternity, which was accepted by the Applicant.

None of the grounds are sufficiently compelling, and no enlargement having been sought, no appeal is afoot to be re-instated. It is open for the Applicant to seek a variation in the maintenance orders under section 23 of the Act and in doing so to provide the Magistrates' Court with the fullest account of his means.

In the result, the summons seeking re-instatement of the appeal is dismissed with costs for the Respondent which I assess at $450. The stay on the Magistrates' Court orders is vacated forthwith.

Application refused.

Marie Chan