Ligalau v Chandra [1977] FJSC 139; Civil Appeal 7 of 1977 (26 August 1977)

IN THE SUPREME COURT OF FIJI
(WESTERN DIVISION)
AT LAUTOKA
APPELLATE JURISDICTION

Civil Appeal No. 7 of l977

BETWEEN

ILISAPECI LIGALAU
Appellant

AND

ABHAY CHANDRA
s/o Raghubir
Respondent

Mrs. M.L. Billeam, Counsel for the Appellant
Mr. G.P. Shankar, Counsel for the Respondent

JUDGMENT

This appeal arises out of an affiliation case in which the appellant ILISAPECI LIGALAU had sued one ABHAY CHANDRA seeking an order declaring him to be the father of her illegitimate child.

The complaint filed on 2nd March 1977 gave the date of birth as 13/11/76.

In evidence she stated that she first had intercourse with Abhay Chand, a youth, in May 1973 and then she lived with him at Navua for a short time in June 1975. When she discovered she was pregnant she informed the defendant and they ran away from Ba to Navua and then to Suva. Then the defendant's parents came and took them to Lautoka after which papers were signed "for a separation."

Her evidence of the sexual relationship was not apparently challenged in cross-examination.

P.W.2 Atunaisa Naruma is the complainant's brother. He described how he went with the defendant's father in September/October and brought the complainant and defendant to Lautoka. It seems at that stage the complainant was already pregnant and the defendant's parents allegedly promised to look after the child.

P.W. 2's evidence fitted in with the complainant's evidence that she became pregnant after intercourse in June, although he said he thought the child was born in May, 1976.

The complainant tendered a birth certificate showing that the child was born at Lautoka hospital on 15/11/76; being a female named Reveka Bainivalu. The information was supplied on 21.2.77.

The magistrate upheld a submission by Mr. Govind for the defendant that the defendant could not have been the father in that the period of gestation would have had to be about 17 months.

The complainant now appeals on the ground that the hospital records reveal that the child was born on 11/3/76, that there was a clerical error in entering the date of birth in the birth certificate she tendered and that the complainant is illiterate and was not aware of the mistake in the birth certificate. She requests that the case be remitted to the magistrate for a re-hearing.

At the appeal Mrs. Billeam for the appellant (complainant) filed an affidavit made by the deputy registrar of Births, Deaths & Marriages to the effect that the birth in question had been registered twice, once on 29.11.76 and again on 21.2.77 and photostats of the birth certificates are appended.

The earlier birth certificate shows the date of birth as 13.3.76 and the informant as Ilisapeci Ligalau, the complainant. The later one gives the date of birth as 13/11/76 and the informant as Reveka Bainivalu.

The affidavit of the records officer at Lautoka Hospital shows a record that the complainant gave birth to a female child at 9.a.m. on 13.3.76. There is also a photostat of her ante natal record commencing on 1/2/76.

The hospital records are roughly in keeping with the evidence of P.W.2 and the complainant and confirms the date shown in the second birth certificate which the complainant will seek to rely upon.

Mr. G.P. Shankar for the defendant/respondent has submitted that the authorities show that if fresh evidence is to be admitted it must be evidence of which the appellant was not aware at the hearing; and the appellant should also show that she was properly industrious in endeavouring to gather all the available evidence. He submitted that the complainant had the hospital records available to her and could have obtained and produced them at the trial.

Had she been represented this would probably have been done, but when an illiterate girl of 20 years appears on her own behalf she is scarcely likely to appreciate what evidence would be required. This is more so, I think, in the case of a Fijian girl, as Fijians do not have a reputation for being in any way litigious. It is conceivable that she was not aware that the birth certificate which she tendered was erroneous. It is also possible that she was not aware that the birth had been registered twice.

It is also pertinent to observe that the informant who supplied the date of birth for the allegedly incorrect birth certificate was not the complainant but one Reveka Bainivalu. The information for the allegedly correct certificate was supplied by the complainant herself.

I am satisfied that this is the kind of case in which justice cannot be seen to have been done by allowing the proceedings to remain as they are. One cannot blame the learned magistrate who could only rely upon the evidence tendered by the complainant. The action is brought not only for the complainant but for the child who at the outset of its life should not be denied the opportunity of having its parentage established if that be possible on the available evidence.

In my view the magistrate's order dismissing the proceedings should be set side and that there should be a re-hearing.

I say a re-hearing because it is only proper that she should explain in Court the history of the documents and that the defendant should be able to cross-examine her in regard to them.

Likewise it would be interesting to know if the Lautoka hospital has any records showing the birth of a child to the complainant on or about 13/11/76.

The informant Reveka Bainivalu who appears to have given incorrect information as to the date of birth should give some evidence explaining this.

I order that the order of dismissal be set aside and that the magistrate should hear the proceedings by way of a re-hearing of the complaint which no doubt will need to be amended as to the alleged date of the birth.

(Sgd.) J.T. Williams

JUDGE

LAUTOKA,
26th August, 1977.

Public Legal Adviser for the Appellant
Messrs G.P. Shankar & Co., for the Respondent

Date of Hearing: 23rd August, 1977.