Tarapi v Ananas [1999] PGNC 84; N1905 (22 September 1999)

Unreported National Court Decisions

N1905

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]
APP NO. 402 OF 1998
BETWEEN: NEFION TARAPI
APPELLANT
AND: AKAI ANANAS
RESPONDENT

Goroka

Kirriwom J
7 July 1999
8 September 1999
22 September 1999

Counsel

B. Tabai for Appellant

M. Karu for the Respondent

22 September 1999

KIRRIWOM J: This is an appeal against the decision of Kainantu District Court in an affiliation suit where the learned Magistrate found the issue of paternity of an illegitimate child Sebastian proved against the putative father, the appellant herein, and ordered him to pay K25 per fortnight in maintenance for child support. The decision was made on 18th June 1998 and an appeal was lodged on 16th July 1998, almost a month later.

The grounds of appeal are:

1. ҈ T60; That the learngd maatstrate fell into error in finding that I was the father when the Complainant’s evidence clearly showed that I could never have been the f.

There were several witnesses called in the trial by both sides. Affidavit evidence was also tendered in addition to oral testimony of the witnesses. There were two witnesses apart from the Complainant herself in the Complainant’s case which included a relative who testified to the Defendant’s relatives sometimes bringing food and paying social visits to the Complainant and her family and another relative who heard the Defendant claiming the child to be his after the child was born.

The defendant filed affidavits in defence from five witnesses in addition to his own which included his customary wife, his sister, niece and two cousin brothers. Their evidence generally was supportive of the defendant in that he was not the father of the complainant’s child. Both the Defendant’s niece Nancy Manakuro and sister Patricia Sopera denied taking food to the complainant on their own volition but admitted to giving her food whenever she came to their village after the fight Complainant had with the Defendant’s customary wife. His two cousin brothers deposed to witnessing the complainant abusing and harassing the Defendant during which occasions the Defendant reluctantly gave money to the Complainant to avoid nasty scenes in public.

The evidence before the Court was that the defendant and the complainant met in October and from thereon an intimate relationship was struck between them. The Complainant was a married woman separated from her husband and living apart. There was some uncertainty in the year of their meeting although the Complainant in her affidavit stated that it was in 1995 October. However there is a pen mark in blue ink crossing out the figure 5 and substituting it with a figure 4 which is hand-written with the same blue ink pen just above figure 5. In her sworn evidence the Complainant said she met the Defendant in October 1994 and in January 1995 she discovered that she had missed her monthly period. On August 13, 1996 she gave birth to the child, the subject of the maintenance proceedings from which this appeal comes. It is this piece of evidence about her discovery of her pregnancy and eventual delivery of the child that brings to question the issue of paternity of the appellant as the father of the Complainant’s child.

The Complainant, according to her evidence, maintained that relationship with the appellant from October 1994 to 13 August 1996 when the child was born, a period of two years. She went out with the appellant eight times during their two-year relationship. She discovered that she missed her monthly period in January 1995. She gave birth on 13 August 1996. It is generally accepted according to medical science that in humans, a baby grows in the mother’s womb for 9 months before the mother goes into labour and delivers. Sometimes it takes place a month earlier or a month later. Alarm bells begin ringing if the mother experiences labour pains on the 7th month or if there is no indication of the child coming after the 10th month of pregnancy. If the complainant discovered that she missed her monthly period in January 1995, conception would have taken place between November and December 1994. Accepting this evidence to be correct the delivery would have been in August 1995.

There is no ambiguity in the evidence of the complainant. She was adamant that she maintained this illicit affair or liaison with the appellant for two years from October 1994 to August 1996. In cross-examination she confirmed the amendment she made to her affidavit in which she crossed out the figure 5 and substituted it with figure 4 and claimed that figure 5 was a typing error. Thus she was conscious of what she was doing and why she was doing it. In affiliation proceedings the only person who has all the information that is necessary for the Court to have an initial grasp of the case is the Complainant. She knows when she had sex, who she had sex with, when she last saw her menstrual period and when she gave birth. The latter is usually corroborated by the production of the Clinic or Birth Record Book.

Unfortunately the evidence in this case is not as straightforward and I am having difficulty in understanding how the learned magistrate was able to conclude that the appellant was the father. The Complainant’s child was born in August 1996. Its is again unclear on the precise date because the Complaint says it was 12th August 1996 while the complainant’s own oral evidence says 13th August 1996. No clinic record book issued by the Health Department was produced in Court so the Court accepted the evidence of the mother on the date of birth of the child. Usually this evidence is adduced by the production of this Clinic Book or some other official record from the Hospital or Health Centre.

Therefore it would seem that if the child was born in August 1996, the child must have been conceived in either November or December 1995. But this is not the evidence of the complainant. She does not say that she is mistaken about the dates. There is a major discrepancy in her evidence that cannot be corrected by the Court rejecting her amended version and substituting it what the Court thinks the Complainant might have said or ought to have said. This very issue was tested in cross-examination and she stuck to her story. Therefore the Court must accept her evidence on its face value which means that the evidence is not there to support the learned magistrate’s findings that the appellant is the father of the child Sebastian.

Section 55(3) of the Child Welfare Act Ch. 276 reads:

(3) & A Court shall not make anke an order under Sub-section (1):

(a) &ـ on the the evidenvidence of the motunles evidis corated in some material particular; or

(b) &160; #160; t if the Court is satisfied fied that at ime whe child was conc conceivedeived the mother was a common prostitute; or

(c) & if the the evidence addundicahat iimpossible oble or unlr unlikelyikely that the defendant is the father of the child.

While the appellant did not raise any defence e que of mty of the complainant as envisaged under s. r s. 55 (355 (3) (b)) (b), the evidence given by the complainant herself takes the case way out of any probability for the appellant to be even considered as the father of her child. It is not good enough to say that during the two years of their illicit relationship she went out eight times with the appellant implying that she had sex with the defendant eight times. On the evidence before this Court, it is impossible and most unlikely that the appellant is the father of the child.

The appeal is allowed. The Order of the District Court is quashed. There are no orders as to costs.

Lawyer for the Appellant: Pryke & Co.

Lawyer for the Respondent: Patterson Lawyers