CIVIL APPEAL NO. 7 OF 1977
JUDGMENT
This is an appeal against the decision of the Suva Magistrates Court dismissing an affiliation cint lodged by Vitalini Ali, the appellant,
against Tony Vijay Kirpal, the respondent.
There are three grounds of appeal as follows:
"(a) The learned trial Magistrate erred in fact in holding that your Petitioner was a person of not a reputable character.
(b) The learned trial Magistrate erred in rejecting your Petitioner's evidence on the ground that she was a person of not an reputable
character.
(c) The finding of the learned trial Magistrate was against the weight of the evidence."
In view of the course I propose to take it is not necessary to set out the facts.
The Magistrate in his written decision set out the facts which were alleged by the parties. He made no findings on these facts but
stated as follows.
"I have carefully watched the demeanour of the complainant while she was giving evidence and she did not impress me as a person
worthy of belief. She, I find, is a person of not a reputable character and as such I reject her evidence. Even her own witness has
not corroborated her testimony.
I have also considered the sworn evidence of the defendant and I have no hesitation in believing that he has told the truth."
These extracts indicate that the Magistrate found as a fact that she was a person of "not a reputable character and as such"
he rejected her evidence. This is not a proper reason for rejecting the appellant's evidence.
The statement that the appellant's witness did not corroborate her testimony also indicates that this witness's evidence was not properly
considered. The witness Maria Reysin Hage did corroborate the appellant's evidence in a number of respects and in particular as regards
the intimate relationship which existed between the appellant and the respondent and which extended over a long period of time.
The Magistrate made no other comment on this witness's evidence and this Court does not know whether he believed her or not.
It would appear the Magistrate preferred the evidence of the respondent whom he considered a truthful witness and did not believe
the appellant because of her disreputable character.
In Civil Appeal 53 of 1976 Jamisha Ali v. Hasiman Nisha and Another Henry J.A. commented on the finding of a Magistrate which was based on his preference for one party. He said:
"It is insufficient in a case such as this to say one version is preferred to another. What was the onus which was placed on
appellant? What were the factors which weighed in determining that preference? What were the probabilities which brought the scales
down in favour of appellant? It is not enough to say the tribunal which has given no reason saw and heard the witnesses. To say that
it is to take from the Supreme Court its duty to satisfy itself and to permit the magistrate to usurp that function. It must appear,
so that the Supreme Court can examine the position for itself, that the magistrate did apply a correct onus and did use the opportunity
of judging the relative credibility of the parties in the light of that onus and was justified in coming to the opinion given. A
bald statement of preference is insufficient in a case like the present one."
While the Magistrate purported to reject the appellant's evidence in its entirety he did in fact accept portion of it when he stated
as a fact that she is a married woman living in separation from her husband for four years leaving the custody of her five children
with her husband.
The appellant's child was born on the 27th February, 1977.
Had the magistrate properly considered the evidence before him he would have found that on the evidence of the respondent he had had
an intimate relationship with the appellant from January 1974 until Easter 1976, that is mid-April 1976 about a month before the
child would have been conceived.
In issue was whether the respondent continued his sexual relationship after Easter 1976 which he alleged ceased at that time or whether
this continued until early December 1976 as the appellant alleged. Had the Magistrate considered Miss Hage's evidence which indicated
that the relationship did continue after Easter 1976 and assessed her credibility this issue could have been resolved.
This Court not having heard or seen the witnesses is in no position to make any findings on the disputed facts where credibility is
very much an issue.
Regrettably this complaint will have to be heard again.
While I have no doubt that the Magistrate who heard the case could dispassionately rehear it the expression of his apparent strong
feelings as regards the appellant's character which appear in his decision makes this a case where justice should not only be done
but should be seen to be done by having the case reheard before another Magistrate.
The Magistrate's order dismissing the complaint is set aside and the complaint is remitted to the Magistrates Court Suva for rehearing
before another Magistrate.
R.G. Kermode
JUDGE
Suva,
10th November, 1977.
