Filualea v Akwasitaloa [1996] SBHC 14; HC-CAC 333 of 1995 (19 March 1996)

HIGH COURT OF SOLOMON ISLANDS

Civil Appeal Case No. 333 of 1995

STEPHEN & ROLLAN FILUALEA

-v-

PIO AKWA AKWASITALOA

Before: Muria CJ

Hearing: 18 March 1996 at Auki - Judgment: 19 March 1996

Counsel: P. Lavery for Applicant; Respondent not represented

MURIA CJ:

This is an appeal against the decision of the Magistrate's Court, Malaita which allowed an appeal from the decision of the Malaita Local Court. The appellants in this case raised five grounds to support their appeal. These grounds are:

1. That as this is an Affiliation case, the issue of paternity can be determined according to the provisions of the Affiliation, Separation and Maintenance Act 1971.

Judgement of paternity can only be made if the complainants evidence is corroborated in some maternal (sic) particulars by other evidence.

2. The Court erred in law in treating the issue of paternity in respect of customary practice in respect of Malaita people in that Parliament has legislated the Affiliation, Separation and Maintenance Act 1971 to govern the law and procedures in respect of questions of paternity, Custom practice cannot there override the laws enacted by Parliament.

3. There is no evidence of date(s) to show whether Rose Akwasitaloa had menstruation before or after 4th October 1992.

4. The Magistrate's Court erred in that it failed to consider the evidence adduced by the Appellants witness in the Local Court, which though the Local Court did not take note of, reveals the characters of Rose Akwasitaloa and which without corroborative evidence has left doubt as to her credibility as a reliable witness.

5. The Magistrate Court failed to adequately address the implications of its decision of allowing only the evidence of Rose Akwasitaloa as sufficient to prove paternity in custom whereas according to the-Affiliation, Separation and Maintenance Act 1971, the requirement is that the evidence of the complainant must be corroborated. The result is thus, paternity can be easily proved in custom than under the law which is in consistent with the notion that the Law of Parliament is superior to customary law.

At the commencement of the hearing, Mr. Lavery grouped the grounds of appeal into only three main points which are: that the Local Court has no power to hear cases under the Affiliation, Separation and Maintenance Act but if it has, then the rule as to proof of paternity must apply since the case is a case of affiliation under the Affiliation, Separation and Maintenance Act. Counsel later conceded that the Local Court has power to deal with affiliation cases but relies on the alternative argument; secondly that there was no corroboration of the girl's complaint in this case; and thirdly that the Magistrate Court failed to properly consider the evidence of appellants' witnesses regarding the incidences of intercourse with two other men.

I think it is necessary that I deal first with the suggestion that the Local Court has no power to deal with affiliation cases under the Affiliation, Separation and Maintenance Act, 1971. There can be no doubt that under the present legislation a Local Court has jurisdiction to deal with cases failing under Part 11 of the the Affiliation, Separation and Maintenance Act. Section 2 of the Act defines "Court" to mean "a Magistrate Court" . . . . and "a Local Court," except under Part Ill of the Act where the Local Court does not have power to deal with cases brought under that Part. Affiliation cases are brought under Part 11 of the Act and the Local Court has power to deal with such cases.

The next question then fails to be determined is whether the present case is an affiliation case or not. The Affiliation, Separation and Maintenance Act; 1971 was enacted.

"To make better provision in Solomon Islands for the maintenance and custody of illegitimate children and for the making of separation and maintenance orders" (see long title to the Act).

It will be observed that the Provision for the maintenance of an illegitimate child is usually incorporated in an "affiliation order" which is made under section 5 of the Act. Now before an affiliation order can be made there must be a complaint by a single woman to the Court against the man alleged by her to be the father of her child. Then at the hearing of that complaint, the Court shall hear the evidence of the complainant and such other evidence in support and shall also hear evidence by or on behalf of the defendant. Having done that the Court may then adjudge the defendant to be the putative father of the child and may also order that the putative father pay such sum of money for the maintenance of the child. The essence of this affiliation order is that it is made upon complaint made to the Court pursuant to the provisions of Part 11 of the Act. Once this is done, the requirements under those provisions in Part 11 must be complied with.

Is the present case brought upon a complaint to the Court pursuant to the provisions of Part 11 of the Act for an order that the appellant, Rollan, be adjudged to be the putative father of the complainant's child and that he be ordered to pay maintenance for the child? To determine that question, it will be necessary to consider what was the nature of the complaint that was put before the Local Court for its determination in the first place.

This matter was first brought before the Malaita Local Court as Civil Case No. 4 of 1993 between Pio Akwasitaloa (the girl's father) as plaintiff and Stephen Filualea and Raulana Filualea as defendants. The nature of the Claim is that it is a claim for:

1 red money, 1 pig worth $150.00 compensation and bride price for Rosemary Mafiliu, 11 red money and 1,000 porpoise teeth = $3,300 plus costs $85.00, equivalent to $3,385.00.

The plaintiffs claim was refused by the Local Court and he appealed to the Magistrate Court which allowed his appeal although reduced the award of compensation to which he was entitled to only five(5) red money: one (1) red money for the girl's name, one (1) red money for the house of the father, and three (3) red money for the loss of the girl's virginity. The learned Principal Magistrate sitting with two assessors felt that according to the custom of the parties the award of five (5) red money as compensation was the proper award.

In the course of its judgement, the Local Court recognised that the plaintiffs (now respondent) claim was for compensation. It said:

"Court finds that the plaintiff Akwasitaloa claimed compensation to be paid by the defendant having sex (intercourse) with daughter Miss Rosemary Mafiflu."

There was no mention that the case was an affiliation proceeding to determine whether the defendant (Rollan) was the putative father of the child and that he should pay maintenance for the child. Had that been the case, the statement of claim in the Local Court would have shown it to be so and it would have been alluded to by the Court.

The Magistrate Court on appeal again repeated that the claim was for compensation arising as a result of the second respondent (Rollan) who is now one of the appellants in this appeal allegedly having sex with the daughter of the appellant who is now the respondent. In the course of his judgement the learned Principal Magistrate pointed out:

"To make it clear the Appellant's claim before the Local Court was in respect of customary practice of Malaita people where a girl becomes pregnant prior to a recognised marriage. This was not an affiliation case proceedings or claiming maintenance for the child. Therefore the Local Court was to find out whether on the evidence and at all material times it was Rollan who had sexual intercourse with Rosemary on the 4th of October 1992 and was a result she became pregnant."

Neither in the Local Court nor in the Magistrate Court was their any indication that the case was brought as an affiliation case. I for my part certainly do not see this case as a case falling under the provisions of Part 11 of the the Affiliation, Separation and Maintenance Act. The Local Court and the Magistrate Court dealt with the case as a purely civil claim for compensation. That compensation claim was based on the custom of the people of Malaita, more particularly, where the parties have come from. That custom requires compensation to be paid by a man who has sexual intercourse with a young girl causing her to become pregnant. This is totally different from a claim by a complainant under the Affiliation, Separation and Maintenance Act seeking an order from the court that a defendant be adjudged to be the putative father of the child and that he should pay maintenance for the child, in which case paternity must be first proved. In a claim under custom for compensation as in the present case, all that has to be proved and the court must be satisfied of it is that the defendant had sex with the girl and that she became pregnant. The issue of paternity is irrelevant in this case.

This is a legitimate claim in accordance with custom and must be respected. As this court stated in Sukutaona -v- Houanihou (1982) SILR 12, at 13:

"It is quite right that custom law is now part of the law of Solomon Islands and courts should strive to apply such law in cases where it is applicable."

In the present case the Local Court and Magistrate's Court had clearly recognised the application of custom law in a case such as this. It would be wrong to allow, as had been argued in this appeal, the statutory argument under Part II of the Affiliation, Separation and Maintenance Act to replace a legitimate claim in its own right under custom.

I do not need to go into the rationale of such a custom that has been relied on this case. But if I need to, all that I can say briefly is that such a custom is found on a common sense. Young girls have their value as human beings and with their dignity they are accorded their places in their families and in their communities. To commit an act of sexual intercourse with a young unmarried girl causing her to become pregnant is considered a diminution of the value of her dignity and a loss not only to herself but to her family also and in the eye of her community. Her marriage prospect and her status in the community will be affected. The custom rule which we are dealing with here is founded on such common sense so as to safe guard these.

The argument based on the Affiliation, Separation and Maintenance Act and, in particular, that on paternity is rejected.

The only other question that needs to be considered is that of corroboration. As this is a case of a complaint of sexual nature corroboration must be looked for to support the girl's story that the appellant (Rollan) had sexual intercourse with her.

Rosemary's evidence in the Local Court was in details as to what she and Rollan did. Her evidence was that on Sunday 4 October 1992, the appellant met her at the side of Kwai River near the coconut plantation. The appellant laid on top of her and they had sexual intercourse. Again on Thursday 17 November 1992 they met again and had sexual intercourse. On that second occasion, she told the appellant that she had missed her period and he replied that it was alright. As to their friendship, Rosemary said that they were friends and at the time they met, she gave Rollan her chain. He confirm he had her chain but said it was Alfred who gave it to him.

In the Magistrate Court the appellant stated that he also went with Adrian Olsen when they took Rosemary. He however said that it was not him who gave baby (made her pregnant) to her. While the appellant flatly denied in the Local Court of having to do anything with the girl, he at least agreed in the Magistrate's Court that on one occasion he was with Adrian Olsen when they took her.

The evidence of the two witnesses in the Local Court who said that on one occasion Olsen had sex with Rosemary and on another occasion Alfred had sex with her. Counsel for the appellant sought to rely on the evidence of these two witnesses to support the appellant's case. With respect I do not see the evidence of those two witnesses as in any way enhancing the appellant's case To start with, it was never put to Rosemary in cross-examination in the Local Court that the two boys, Olsen and Alfred, had sexual intercourse with her. There was no verification of that aspect of those two witnesses' evidence. The two boys were not called and as such the evidence against them having sex with Rosemary cannot be accepted. The Local Court rightly did not take note of the suggestion that the two boys had sex with the girl.

The Local Court however was wrong to reject the claim for compensation on the basis that there was no eye witness or no witness who knew where and when Rollan had sex with Rosemary. Firstly there was evidence from the girl herself that the appellant had sexual intercourse with her on 4 October 1992. She had sexual intercourse again with the appellant on 17 November 1992.

The Medical report supported the contention that if sexual intercourse took place on 4 October 1992 resulting in pregnancy then the full nine months pregnancy period would be from October 1992 to July 1993. If anything is of support from that medical report, it is exactly that which I have just stated, that is, the girl was pregnant and that the gestation period was from October 1992 to July 1993, a period of 9 months. When discarding the evidence that Olsen and Alfred also had sex with the girl, the only evidence left is that which pointed to the appellant of having sexual intercourse with the girl on 4 October 1992 and 17 November 1992 resulting in her becoming pregnant. This was the conclusion reached by the learned Magistrate, a conclusion to which I share.

Other matters raised by counsel in argument relate to the document Exh. "A" tendered by the appellants (respondents in Magistrate Court) and rejected by the learned Magistrate who was entitled to view that document with great caution. Having done so, the learned Magistrate rejected it. He was entitled to do so for the reasons he outlined in his judgement. I see no merit in this Court interfering with that decision.

As to the award of compensation I do not see any basis to interfere with that. The learned Principal Magistrate had the best of the assistance be could obtain from the two assessors who sat with him. They know best what the custom is and they had given their assistance to the Court. There was no suggestion that the award was anything but in accordance with the practice in custom and as such this Court would not be in a position to disturb it. The award of compensation by the Magistrate Court is affirmed.

The result is that this appeal is dismissed. The whole of the decision of the Principal Magistrate Court, Malaita, made on 12 December 1994 is affirmed.

ign="center">GJB Muria
CHIEF JUSTICE