Hamid v Nisha [1979] FJSC 28; Civil Appeal 5 of 1979 (20 July 1979)

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

Appellate Jurisdiction
Civil Appeal No. 5 of 1979

BETWEEN

ABDUL HAMID
s/o Rasul Buksh
(Appellant)

AND

IDUL NISHA
d/o Abdul Hassan
(Respondent)

Mr. Chand, Counsel for the Appellant
Mr. E.E. Gleave, Counsel for the Respondent

JUDGMENT

This appeal arises from affiliation proceedings in which the learned magistrate found that the defendant was the putative father of the plaintiff's child. The defendant appeals against that order on two grounds contained in para 2 of his petition, namely: -

(i) absence of corroboration of the plaintiff's evidence and

(ii) that the finding was "against the weight of the evidence".

At the hearing of the appeal Mr. Chand for the defendant (appellant) submitted that the learned magistrate had misdirected himself when he said in his judgment that the evidence of the complainant has to be corroborated "in some particular". He pointed out that S.18(2) of the Maintenance and Affiliation Act 16/71 requires corroboration "in some material particular" and that the omission of the adjective "material" amounted to a misdirection. At that stage of his judgment the learned magistrate was simply reminding himself of the law but he was not at that stage applying it. The omission of the word "material" could have been a mere slip of the pen and whether this was so would be demonstrated by his judgment in the way he applies the law. In fact at the end of para 8 in his judgment he says "I find that there was sufficient corroboration of her evidence in respect of the material particulars." Obviously, as one would expect, the learned magistrate was fully aware of the way in which the law should be stated.

The child was born on 19/2/78 and there being no suggestion that this was not a normal pregnancy conception would most probably occur during May 1977. Therefore the magistrate needed to be satisfied that in May 1977 the defendant had sexual intercourse with the complainant.

It was not disputed that with the approval of the plaintiff's parents, the parties lived together for at least 3 or 4 years after a religious ceremony of marriage although the defendant already had a legal wife. The defendant fathered two children of the complainant prior to the birth in question and on another occasion had pregnancy miscarried. They are no longer living together and the defendant says that he separated from the complainant two weeks before Christmas 1976 and that since that time he has not had sexual intercourse with her.

Throughout his period of association with the complainant the defendant had a legal wife and he said in evidence that he rejoined his legal wife in March 1977.

Being illiterate and uneducated the complainant does not know the months of the year and can only count up to ten, yet in her evidence in chief she said that the defendant had not deserted her until 20th June 1977. In cross-examination she said she did not know it was 20th June but that the defendant her mother had worked out the approximate date of the defendant's desertion after she learned that the complainant was pregnant. Any one experienced in dealing with uneducated litigants of the present class knows of the great difficulty in extracting evidence from them which will assist in giving a reasonably approximate date of some event or occasion. She says that when the defendant deserted her, leaving her near to her mother's place, she was already pregnant. The complainant lived with her mother after the defendant deserted her and she says she did not have intercourse with any one thereafter. Her mother stated that the complainant did not associate with any one after she returned home and added that she would have been aware of any such association.

There was similar difficulty in trying to get the complainant’s mother Hamidan Bibi to name the month the complainant returned to her. She said it was June but could not indicate why she chose June. In cross-examination she did not appear to know the month of December. However, she described some sickness that the complainant had, which was compatible with morning sickness, when she returned home.

Sairo Bano, the complainant’s 13 years old sister stated that the complainant came home in 1977 during the second school term. Although he claimed to have deserted the complainant prior to December 1976 the defendant said he did not begin associating with his legal wife until March of 1977. He said that he lived along during December 1976 and January and February, 1977.

The learned magistrate said that the defendant’s evidence helped to provide some corroboration of the plaintiff’s evidence. Thus the defendant said that he took the complainant back to her home. Therefore one naturally expects that she would be at home as from the date the defendant deserted her and this is what the complainant said. Her mother stated that it was not until “about June 1977” that the complainant came home, and the sister said it was during the second term of 1977 which is obviously well removed from Xmas 1976. Thus if the evidence of the defendant and of the mother and sister are true it would show that the defendant left the complainant beside her home in December 1976 but for some reason she did not enter her home until about June 1977. Where could the complainant have been between December 1976 and June 1977 if she was not with the defendant or not with her mother? The evidence of the mother and sister that it was about mid-1977 when the complainant came home indicated to the magistrate that the defendant must have taken her back to her home vicinity about mid-1977. It would have followed from that that the defendant said he lived with the complainant until he took her home/must have lived with her until mid 1977. Since they were living as man and wife it would be reasonable to conclude that he was responsible for her conceiving in February, 1977.

That was ample and proper corroboration if the magistrate regarded the mother and sister as credible witnesses. He did consider their close relationship to the complainant when he accepted their evidence.

In arguing that the magistrate’s finding could not be supported by the evidence adduced during the trial, Mr. Chand submitted that the magistrate was wrong in stating that the standard of proof was that required in ordinary civil cases, that is to say, is based upon the balance of probabilities. He pointed out that proof of adultery has to be beyond reasonable doubt and that issues of affiliation must therefore require something higher than a balance of probabilities. It is stated in Halsbury, 4th Edition, Vol.I para 634 and the notes thereto that affiliation proceedings are civil proceedings. There is nothing in the Maintenance & Affiliation Act 16/71 which suggests that proof beyond the balance of probabilities is required. Mr. Chand produced no authorities for his submission.

In my view the learnt magistrate’s approach was correct.

As I have stated there was evidence upon which the magistrate could find that the defendant was the father of the child provided he believed the witnesses. He clearly believed them and was, in my view, justified in so doing.

The appeal is dismissed.

(Sgd.) J.T WILLIAMS,
JUDGE

LAUTOKA,
20th July, 1979.

Messrs. Vijay Chand &Co., for the Appellant
Public Legal Adviser for the Respondent.
Date of Hearing: 17th July, 1979.