Kipit v Chongahan [1994] PGNC 71; N1202 (19 January 1994)

N1202

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

APP. 35/94

CHARLIE KIPIT

V

ELIZABETH CHONGAHAN

Lorengau: Doherty, J.
19 January 1994

Appeal against finding paternity.

HELD: Child Welfare Act 276 requirement that complaint be on oath is mandatory but technical defects not raised at the hearing, should not be used to defeat the Claim when the substance of the law has been complied to.

Mr Kua for the Appellant
The Respondent in person

DECISION

DOHERTY, J.: This is an appeal against a finding of the Children' s Court at Lorengau on 17th July 1991 when the court adjudged that the Appellant was the father of a child born to Elizabeth Chongahan on the 8th March 1991 and ordered him to pay maintenance for the child in accordance with the Child Welfare Act Ch 276.

There were three grounds of appeal, the first relates to the procedure and the others to the evidence.

I note that the Court was a Children's Court and a lay member was present in accordance with the Legislation.

The Appellant says that the original complaint was not sworn in accordance with Section 51(2)(a) of the Child Welfare Act. That provision is as follows:-

A complaint under this section shall be:-

(1) in writing; and

(2) on oath.

The section appears mandatory. "Complaint" is not defined in the Child Welfare Act, but the Act also provides for adoption of some of the District Court procedure provisions and applies them to the Part IX of the Child Welfare Act Ch. 276.

"Complaint" is defined in the District Court Act to include an information and includes an application and notice of set off. It therefore has a wide meaning as a form of originating process in the lower court. In the short time available for hearing of this appeal, I have been unable to find case law as to whether the lack of compliance with this procedural provision is fatal to the application in the lower court. I note that the record shows that the respondent put her facts in the complaint and in a supporting Affidavit form which was headed "Oaths and Affirmation Act". She says that she brought it to the District Court and they dealt with it. It is certainly notated at the end as follows:- "Sworn at Lorengau the 8th of May 1991". She has signed it but the part "Commissioner for Oaths" is left blank and has no signature.

It appears to me from the record and from what the respondent says that she did make an effort to comply with this Section.

I note that she gave sworn evidence in court and was cross-examined.

Neither of the parties was represented in the District Court and I accept that they did what they were told to do by Court Officials as they have no legal training or education. I notice too that this discrepancy was not taken in issue by the appellant when the case was raised three years ago. I note that this provision is mandatory and I consider that the respondent did what she could to comply with the legislation.

It appears to me to contrary of natural justice if I allow, three years later, a point of procedure that was not raised in the lower court which the respondent herself tried to comply with and permit it to defeat the entire claim.

I consider that she gave sworn evidence, she was cross-examined and this fulfils the spirit of the legislation. I consider that this court has an inherent power vested in it by the Constitution to ensure that the spirit as well as the letter of the law is upheld. This is a technical defect, it was not raised, I feel that it would be unfair to defeat this claim by raising it at this point.

I therefore, do not uphold the court on this appeal on this point.

The second ground is that the Magistrate could not have been satisfied that the defendant/appellant is the father of the child when the evidence adduced showed that it is impossible or unlikely that he was the father.

The child was born in March 1991. I note on the record that the lay member of the Children's Court asked if it was a full term child and was told that it was.

The respondent complained in the lower court, gave the dates in which intercourse occurred between her and the appellant. It included dates in May, June, July and August 1990. The respondent did not deny intercourse but alleged that the intercourse took place in August thereby saying that he could not be the father because he did not have intercourse at the relevant time when the child was likely to have been conceived.

He and his counsel both concede that the friendship started between him and the respondent in April 1990 and continued in thereafter. Hence there was a friendship for a period of four months from April to August 1990 but he denies intercourse at the relevant times.

The relevant provisions are contained in Section 58 Child Welfare Act Ch. 276. They provide "Where, at the hearing of a complaint in respect of the maintenance of an illegitimate child, a male person over the age, or apparently over the age 16 years admits or says that he had sexual intercourse with the mother in such circumstances that, in the opinion of the court, he may possibly be the father of the child, the court may, on the hearing and without complaint made for the purpose:-

1. order him to pay to the Director weekly, a sum for or towards maintenance of the child;
   
2. but an order shall not be made under this subsection unless the male person is given an opportunity to be heard by the court in respect of the making of the order.
   

In the case before me he admitted having sexual intercourse with the complainant, (the respondent in this court) he denies some of the dates. He concedes there was a friendship earlier than the possible date of conception.

The Child Welfare Act S 55(3) requires corroboration of the mother's evidence "in some material particular" and the third ground of appeal is that there was no corroboration. I will look at the evidence relating to grounds 2 and 3 (whether intercourse occurred in June and corroboration) together.

The prosecutrix says that the friendship started and intercourse took place on specified dates in June, May, July and August. She called as witnesses two other people, one of whom was a relative of the appellant who said that she, Rita Pangi, had arranged meetings. She said "he told me to tell the complainant that he wanted her". "I used to tell her about the defendant and the defendant would go to her." Pangi says further that he sent her four times, however, she did not know the dates and therefore it was not corroborative of the exact dates but does confirm meetings.

Another witness Augustine Polumbut said "I was a messenger for the both, I would send a word for the defendant to Elizabeth and vice versa. On the 3rd May 1990, the defendant told me on the 15th of May 1990. I also passed word, on the 20th June 1990, I passed word, on the 27th July 1990, I passed word. Their meeting place was in our house in our kitchen and backyard". (sic)

Hence, he gave evidence that the message was sent between the two to meet in the kitchen or backyard on those dates. I note that it includes one relevant date, i.e. the 20th of June.

It appears to me therefore that this is corroborative evidence of a meeting on a relevant time between the respondent and the appellant. Mr. Kua says that there was no evidence that intercourse actually occurred at this particular dates referred to by the witness. As other judges have said and I recall Judge Konilio, in particular saying in strong terms human beings do not have intercourse in public, "they are not like dogs". Whilst I accept that nobody actually saw them having intercourse it does not automatically mean that it did not occur. Other jurisdictions and other courts have said in certain circumstances a court can imply that, given the combination of a man and a woman alone in a particular place intercourse took place.

I find that evidence of Augustine Polumbut is corroborative of the allegation made by the respondent that she had intercourse with the appellant in June 1990.

The standard of proof that the Children's Court is obliged to adopt a set out in the Child Welfare Act Ch 276. I have read the relevant provisions. It is well established law that once a court which has seen and heard and assessed the witnesses makes a finding of fact based on the witnesses before them, their demeanour etc, an appellant court is reluctant to overturn findings of fact which are supported on the evidence before it. An appellant court should only overturn findings of fact by a court that has seen and assessed witnesses when they are satisfied that on the facts the conclusions could not have reasonably been reached.

In accordance with the Child Welfare Act Ch 276, respondent was given an opportunity to be heard, he conceded intercourse, he conceded a relationship and the court was entitled on the evidence before it, corroborated by Augustine Pulombut and Rita Pangi, to make the conclusion that intercourse took place during a relevant period in June.

The other ground relating to evidence was that the respondent had intercourse with another person and this gives an implication (although it is not stated in the evidence) that this other person could possibly be the father of the child.

I note that she conceded that she had a friendship with another man, although the word intercourse is not mentioned, at an earlier time in the year. The evidence was not rebutted and the man was not called nor did someone else come to give evidence on behalf of the appellant in the court to the effect that she was cohabiting or have a sexual relationship with someone else. In that case I conclude that the Children's Court was entitled to make the finding of fact they did according to the provision in the Child Welfare Act.

Section 58(2) implies that an order can be made against more than one person. It says "An order may be made under Sub section 1 against each of any number of male persons" hence there appears to be a provision that a court can make a decision against two people. They obviously did not issue any summons to anyone else. I can only presume they were satisfied on the facts before them.

I consider on the facts before me that the Children's Court did not err in their findings. I find that the complainant's evidence was corroborated as I have stated by the witnesses and I can find no error in their conclusions.

I therefore dismiss the appeal. However it would appear from the facts that the respondent is not able to pay the amount of money ordered and I intend therefore to make some further order as I am entitled to do under the provisions of the District Court Act and remit this matter for re-hearing on quantum. (After delivery of judgment by consent was remitted for rehearing on quantum).

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Lawyer for the Appellant: Public Solicitor
Lawyer for the Respondent: Appeared in person