Ali v Nisha [1979] FJSC 29; Civil Action No. 21 of 1979 (16 November 1979)

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

Appellant Jurisdiction
Civil Appeal No. 21 of 1979

BETWEEN

FAIYAZ ALI
s/o Wahid Ali
(Appellant)

AND

JAINUL NISHA
d/o Abbas Ali
(Respondent)

Mr. Sahu Khan for the Appellant

JUDGEMENT

This is an appeal against an order made by the Magistrate's Court Lautoka under the Maintenance and Affiliation Act, 1971 declaring the appellant to be the father of a child born to the respondent on 26/1/78, and ordering him to pay maintenance in the sum of $6 per week.

The appellant appeared by counsel in this court but the respondent was in person. After hearing counsel for the appellant it was clear that there were substantial grounds for the appeal which the respondent was quite unable to counter effectively on her own. I was reluctant to decide the case without giving her every opportunity of being properly represented and having her side fully argued. I allowed an adjournment for a week for her to obtain the services of counsel. She agreed that she would engage counsel but neither she nor anyone representing her appeared at the adjourned date, nor after a further adjournment was granted. I am therefore obliged to give judgment without hearing further argument.

The respondent was taken by her mother to stay and work at the house of the appellant's mother in 1973. According to her she shared a bedroom at all material times with the appellant and his sister. She said there were 3 beds in the room. She said that she and the appellant first became friendly in 1975, but that she first sexual intercourse with him in 1977. She made several statements, some of them rather difficult to understand or fit together. She said first that the first time she had intercourse with him was in 1977, the 10th May 1977 the day she got pregnant. Then she said she had intercourse with him before that in January 1977. Next she said "Between January 1977 and May 1977 we had sexual intercourse every day, every night." Apparently sexual intercourse always took place in the bedroom, the bedroom she says she shared with the appellant and his sister. She never had intercourse with any other man. The significance of the date the 10th May 1977 was that she says it was that day that she missed her period and first discovered she was expecting a child, though how she could pinpoint this as the 10th May she didn't explain. She never went to a doctor. She still apparently continued having intercourse with the appellant for about two weeks after she became pregnant, although she said he used to come and force her when she was asleep at 2 o'clock in the morning. She said she used to refuse but the appellant forced her. Those statements must be suspect. If they were sharing a bedroom with the appellant's sister, with the appellant's mother somewhere in the same house, how could the appellant force her without the sister and mother becoming aware of what was happening. If she was being forced why did she not cry out, or at least complain the next day?

According to her she didn't tell the appellant till 3 months later that she was pregnant, and apparently she certainly told no one else, not the appellant's sister who shared her bedroom, not the appellant's mother in whose house she lived and under whose protection she must have lived, not even her own mother whom she used to visit every week. In fact the magistrate made a specific finding that, difficult though it was to believe, no one knew she was pregnant until the day she went to the hospital and gave birth to the child.

It is not disputed that the appellant never at any time admitted the child to be his. Apparently according to her even when told she was pregnant he said nothing and did nothing. Though when the respondent was being cross-examined and pressed on this aspect she first said that the appellant told her to have an abortion, but then said that what he said was that she shouldn't visit the hospital or tell anyone but should mix strong black tea and drink it.

It is rather remarkable that if the appellant was the father of her child in the circumstances she described, she never let anyone else know of this fact nor even told them that she was pregnant until she produced the baby.

So even on the respondent's own story the court must have some reservations about accepting it without clear corroboration, and of course the Maintenance and Affiliation Act 1971 requires corroboration.

The magistrate quite rightly saw the need for corroboration and further accepted that the question of corroboration wouldn't arise until he had first found that the respondent herself was a witness of truth. (What perhaps is surprising is that after the respondent had given her evidence the magistrate found there was a case to answer because at that stage there was certainly no corroboration of her evidence.) The magistrate then said that he found himself totally satisfied that the respondent was such a witness of truth, a finding about which I must have serious reservations in view of what I have said above. He went on "Although it is true that there were some inconsistencies in her evidence she was not represented by counsel and was clearly nervous and frightened. At the same time she did not deviate from the essential basis of her case at all." If the magistrate means that she has always said that the appellant was the father of the child, that may be correct but the record of her evidence seems to show a certain amount of fluctuation according to the questions being asked.

Counsel for the appellant has drawn particular attention to the next paragraph of the magistrate's judgment.

"Counsel argues that her account of the attempt at an arranged marriage with Jamal is different from that of her mother's, but I did not find the two accounts inconsistent, merely different and this is not surprising since the roles played by the mother and daughter in the arrangement were obviously different themselves."

It is difficult to understand how the two accounts can be different without being inconsistent. What the respondent said was this –"I know someone called Jamal. He asked my mother if I was interested in getting married. My mother asked me and I refused." The mother's version was as follows-"I did not say to complainant that Jamal had proposed. I did not discuss it with Complainant."

Surely the two versions cannot be reconciled, they are not only different, but are mutually incompatible.

One of the key points of the respondent's case was that the appellant slept in the same bedroom as she did and the appellant's sister. The appellant of course denied ever sharing a bedroom with the respondent. He said that she shared a bedroom with his two sisters whilst he slept in the lounge. He denied going into the bedroom at all since it was against "our custom". It was not in dispute that at all material times the respondent shared a bedroom with the appellant's sister Sofia, so Sofia's evidence was very relevant. She confirmed the appellant's evidence that until the other sister left in 1977 the three girls slept in the same bedroom whilst the appellant slept in the lounge on the balcony next to the lounge. She said that his mother forbade him to sleep at night in the bedroom or go into the bedroom - which presumably is what the appellant meant by "our custom". But she did admit under cross-examination by the court that sometimes during the day he used to lie on one of the beds. Clearly Sofia's evidence was most important, since if the respondent's evidence was to be believed at all, this sexual intercourse every day and every night, of being forced upon the respondent at 2 o'clock in the morning could hardly have taken place without Sofia being aware of it – or at least aware that something was going on. So how did the magistrate treat her evidence? The only point he picked on was the fact that Sofia said that the appellant sometimes came to the bedroom during the day time whereas the appellant said that he never went into the bedroom because it was against "our custom". The rest of Sofia's evidence, which contradicted in quiet material particulars the respondent's own story was not dealt with. The magistrate found that Sofia's evidence proved that the appellant had lied and that this lie was the corroboration necessarily to support the respondent's evidence, relying on the authority of Corfield v Hodsson (1966) 2AER 205. But of course in that case, which depended on its particular facts, the lie was proved out of the father's own mouth in the witness box and was said to show a guilty mind. In this case the lie, if it be such, can only be proved by reference to Sofia's evidence as a whole must be considered as being far more unfavourable to the respondent than to that of the apparent. And I think that the apparent lie is not quite so obvious and clear out as the magistrate suggests. Again it arose out of cross-examination of the respondent by the court and the record shows that what the respondent said was "I never shared the bedroom with her at all. I never went into the bedroom at all. It is against our custom." The emphasis seems to be on sharing the bed-room, in the sense of all sleeping in the same room and in that respect the respondent's evidence was supported by that of Sofia. It also seemed to be agreed between them that he was not supposed to go into the room, certainly when the girls were there. It is not clear in what context, and in answer to what question the appellant said he never went into the bedroom at all. He does not appear to have been channenged or asked to expand on his statement, whereas Sofia's admissions came in the course of fairly lengthy cross-examination by the court. Certainly if Sofia's evidence is to be believed the appellant's visits to the bedroom during the day were quite innocent and so it would be contrary to commonsense to say that this innocent visits, even if denied by the appellant, afford corroboration of the respondent's allegation of sexual intercourse. Why should denial of innocent visits be evidence of a guilty mind?

I have been referred by counsel for the appellant to the case of R v Chapman (1973) 2AER 624, which although a criminal case is an authority on when and in what circumstances lies may amount to corroboration, not only in criminal cases but also in cases of paternity such as the instant case.

I think it is sufficient to say that in this case, upon a careful consideration of the evidence of the respondent and its inconsistencies, its conflicts with other evidence, and its improbabilities it cannot be accepted as proof that the appellant was the father of the child without quite material corroboration even apart from the statutory requirement of corroboration. At the end of the respondent's case there was no such corroboration and the case should have been dismissed at that stage.

Even after hearing the appellant and his witnesses all that emerged that might amount to corroboration was an apparent conflict between the appellant and his sister on one point, which even if accepted is not by any means a clear indication of a guilty mind. In my opinion therefore the evidence in this case fell far short of that which is necessary to prove paternity and I must set aside the judgment of the magistrate and the order for maintenance and, order that the summons be dismissed.

(sgd.) G.O.L. Dyke
JUDGE

LAUTOKA,
16th November, 1979.