Uhi v Mafi [2022] TOSC 80; AM 6 of 2022 (8 September 2022)

IN THE SUPREME COURT OF TONGA
APPELATE JURISDICTION

NUKU’ALOFA REGISTRY

AM 6 of 2022

BETWEEN:

FALANI LOPETI UHI Appellant

-and-
DOMINIQUE MAFI Respondent

JUDGMENT

BEFORE: LORD CHIEF JUSTICE WHITTEN QC
To: Mrs F. Fa’anunu for the Appellant

Ms L. Tonga for the Respondent
And to: Senior Magistrate Pahulu-Kuli
Appeal filed: 19 July 2022
Submissions: 29 August 2022, 6 September 2022
Judgment: 8 September 2022

The appeal

1. This is an appeal against a refusal by Senior Magistrate Pahulu- Kuli to strike out the Respondent’s application for an affiliation order pursuant to s. 2 of the Maintenance of Illegitimate Children Act.

Background

2. The Appellant is married with four adult children.
3. In 2017, the Appellant commenced an extra-marital affair with the Respondent which produced two boys, born on 26 December 2018 and 19 December 2019. Both were registered as illegitimate with their father unnamed.
4. The Appellant has admitted paternity on oath. He has also provided, and continues to provide, maintenance for the boys.^[1] He has refused, however, to have his name added to the register of the boys’ births as their father.
5. On 13 December 2021, the Respondent applied to the Magistrates Court for an affiliation order pursuant to s. 2 of the Maintenance of Illegitimate Children Act, specifically, that the Appellant’s name be added to the boys’ birth register as their father.
6. On 2 March 2022, the Appellant applied to have the claim struck out.
7. On 21 June 2022, the learned Magistrate refused that application.

Relevant legislation

8. Section 2 of the Maintenance of Illegitimate Children Act provides, relevantly:

PART I - AFFILIATION AND MAINTENANCE ORDERS

2 Procedure on application for affiliation order

(1) On complaint on oath made before a Magistrate —

(a) by the mother of an illegitimate child that any person is the father of that child;

(b) by any reputable person other than the mother of the child that any person is the father of an illegitimate child and has failed or intends to fail to provide for its adequate maintenance or to pay the expenses of and incidental to the birth or death of that child; or

(c) by the Attorney General where he has reason to believe that any person is the father of an illegitimate child and has failed or intends to fail to provide for its adequate maintenance or to pay the expenses of and incidental to the birth and of and incidental to the death (if the said child has died) of that child and that no other person has made or is about to make complaint in accordance with this section,

a Magistrate may issue a summons against the person so alleged to be the father of the child to show cause why an affiliation order should not be made against him.

(2) The Magistrate hearing the complaint, on being satisfied of the truth thereof, may make an order —

(a) adjudging the defendant to be the father of the child; and

(b) directing that the defendant’s name be entered in the register as the father of the child.

(3) In such order or in a separate order, unless the child is dead before the making of the order, the Magistrate may also order the defendant to pay at such times as the Magistrate thinks fit a reasonable sum of money towards the future maintenance of such child until it attains the age of 16 years and may also order the defendant to pay such sum as the Magistrate thinks fit on account of the expenses of the birth of such child whether born alive or dead, and the expenses of and incidental to the funeral of the child if it is dead before the making of the order, and any sum on account of the past maintenance of the child before the making of the order.

...

(5) No affiliation order shall be made if the complaint is made more than 3 years after the birth of the child unless the person alleged to be the father has contributed in any way to the maintenance of the child or has since the birth of the child co-habited with the mother as man and wife, in which case the complaint may be made at any time after the expiration of 3 years if within the 12 months immediately preceding the making of the complaint the person so alleged to be the father has contributed in any way to or provided for the maintenance of the child or has so co-habited with its mother:

Provided always that if at any time the person so alleged to be the father of the child has been absent from the Kingdom, the period of his absence shall not be counted in computing the respective periods of 3 years or one year.

...

9. Section 3 of the Births, Deaths and Marriages Registration Act provides, relevantly:

3 Persons responsible for informing births and deaths

(1) The head of the family, the closest adult relative living on the same island of a person who dies and has no head of the family, the occupier of the premises in which the death occurred, shall in that order be responsible for informing the sub-registrar of the district of every death. In the absence of such person the Town Officer shall inform the sub-registrar of the death.

Except in the case of a hospital, the responsible person shall also inform the Town Officer of the town in which the death occurred and shall bring to his notice any unusual circumstances and in particular if the death was sudden.

Persons who are considered to be head of the family for the purposes of this section are shown in Table I of Schedule 2 hereto. Closeness of relationship for the purposes of this section is shown in Table II of Schedule 2.3

Births to be registered within 3 weeks

(2) Every person being the parent of a child born in wedlock or the mother of a child born out of wedlock shall within 3 weeks of the birth of such child inform the sub-registrar of the district of such birth and in default of so doing shall be liable on conviction to a fine of $100.

...

Registration of illegitimate child

(9) In the case of an illegitimate birth no person shall as father of such child be required to give information under this Act concerning the birth of such child and the registrar shall not enter in the register the name of any person as father of such child unless at the joint request of the mother and of the person acknowledging himself to be the father of such child, and such person shall in such case sign the register together with the mother.

Decision below

10. The grounds for the Appellant’s strike out application below were that:
    • 10.1 section 2 of the Maintenance of Illegitimate Children Act only allows applications for affiliation orders where the Defendant is not providing adequate child maintenance;
    • 10.2 the Magistrates Court can only make an affiliation order if the natural father is not providing for the two children;
    • 10.3 the Magistrates Court does not have authority to make an affiliation order here because the [Appellant] is providing maintenance for the two children;
    • 10.4 the only reason the [Respondent] brought the matter to court was ‘to give more problems to the [Respondent] and his family’; and
    • 10.5 the [Respondent’s] claims are an abuse of process.
11. The Magistrate refused the application for the following reasons, in summary:
    • 11.1 ss 2(1)(a), (b) and (c) specify the people who may apply for an affiliation order;
    • 11.2 as the natural mother, the [Respondent] has the right to make and carry on with her application for an affiliation order pursuant to ss 2(1)(a);
    • 11.3 the correct procedure for the application had been followed;^[2]
    • 11.4 ss 3(2) of the Birth, Deaths and Marriages Registration Act requires any parent to register their child (legitimate and illegitimate) within 3 weeks of birth, or be penalized;
    • 11.5 that provision does not bar an application for an affiliation order;
    • 11.6 her Worship did not accept the submission that the court is only able to make affiliation orders if the natural father does not provide for the children;
    • 11.7 ss 2(1) of the Maintenance of Illegitimate Children Act does not limit an application for an affiliation order by a mother of illegitimate children to only where their father does not provide for them;
    • 11.8 ss 3(9) of the Birth, Deaths and Marriages Registration Act ‘can only work when there is consent between the father and mother to register the father as the natural father of the two children’;
    • 11.9 ss 2(1) of the Maintenance of Illegitimate Children Act applies when the alleged father to any illegitimate child does not wish for his name to be registered as well as to claims for maintenance over illegitimate children as provided by ss 2(3);
    • 11.10 the births of the two boys fell within the 3-year limitation period prescribed by ss 2(5); and
    • 11.11 the application for an affiliation order was not an abuse of process.

Submissions on this appeal

12. On this appeal, counsel for the Appellant submitted, in summary:
    • 12.1 notwithstanding that ss 2(1)(a) of the Maintenance of Illegitimate Children Act does not contain the same requirement of failure to provide as found in ss (b) and (c), this Court ought to interpret ss 2(1)(a) in accordance with the intention of the Act and that of Parliament and not one which defeats that intention;
    • 12.2 however, if the court adopts a literal interpretation to ss 2(a), the proviso demands for ‘the father to show cause why an affiliation order should not be made against him’, in which case:
      • 12.2.1 the Appellant’s wife and their children were unaware of the affair until early 2021 when the Respondent disclosed it on her Facebook page by posting photographs of the boys and the Appellant as their father;
      • 12.2.2 the disclosure has caused the Appellant’s family ‘utter shock’ and emotional distress, and left the Appellant ‘no choice but to admit the affair’;
      • 12.2.3 the adequate maintenance of the Respondent’s children is the ‘utmost and paramount concern’ of the Act;
      • 12.2.4 the Respondent’s motives ‘are wrong and intended to hurt the Appellant and his family more’; and
      • 12.2.5 to order that the Appellant’s name be entered in the register ‘will only escalate and aggravate the emotional distress that the Appellant’s family is experiencing’.
13. Counsel for the Respondent submitted, in summary:
    • 13.1 ss 3(2) and (9) of the Birth, Deaths and Marriages Registration Act deal only with registrations of births, who is responsible to attend to registration, the time for registration and how a father of an illegitimate child could join in the registration of the birth of that child, and do not interfere with or hinder the right for an affiliation order in favour of an illegitimate child;
    • 13.2 even though both relate to the record of identity of a child, the registration of a birth may be distinguished from an application for an affiliation order because the latter is about ‘adjudging whether the defendant is the father of the child and directing that the father's name be entered in the register as the child’s father’;
    • 13.3 by ss 2(1)(a) of the Maintenance of Illegitimate Children Act, the Respondent was entitled to apply for an affiliation order even though the Appellant is providing adequate maintenance for the children;
    • 13.4 whether the Magistrates Court is satisfied of the truth of the application or to exercise its discretion to make orders pursuant to ss 2(2) is yet to be heard and determined;
    • 13.5 the application for an affiliation order is in the best interests of the children and consistent with Article 8 of the UN Convention on the Rights of the Child,^[3] namely:

“1. State Parties undertake to respect the right of the child to preserve his or her identity, including nationality, name and family relations as recognised by law without unlawful interference.
2. Where a child is illegally deprived of some or all of the elements of his or her identity, State Parties shall provide appropriate assistance and protection, with a view to re-establishing speedily his or her identity.”

Consideration

14. For the reasons which follow, the Appellant has failed to demonstrate any error in the Magistrate's decision or her reasoning.
15. Firstly, on a plain textual analysis of ss 2(1) of the Maintenance of Illegitimate Children Act, the Respondent, as the mother of her illegitimate boys was entitled pursuant to ss (a), to file the application for an affiliation order. That provision does not contain the superadded requirement found in ss (b) and (c) of a failure to provide where the applicant is any reputable person other than the mother or the Attorney General.
16. In endeavouring to ascertain Parliament’s intention (as the Appellant contends), such a clear omission may be understood by application of the linguistic maxim expressio unius est exclusio alterius (to express one thing is entirely to exclude another). As an aspect of the principle expressum facit cessare tacitum (to state a thing expressly ends the possibility that something inconsistent with it is implied), the expressio unius principle is applied where a statutory proposition might have covered a number of matters but in fact mentions only some of them: Attorney General v Ikamanu [2021] TOCA 3. While rules of construction, such as the above ‘implied exclusion rule’, may be regarded as mere guides to be handled warily,^[4] I consider the omission here to be deliberate and for good reason.
17. That ss (a) does not include the failure to provide requirement in the case of an application by the natural mother is consistent with the fact that the relief available in affiliation applications, namely, orders adjudging the defendant as the child's father and directing that his name be entered into the register as the child’s father, and maintenance for the child, are separately provided for in the Act. Subsections 2(2) and 3(2) provide for the first, whereas ss 2(3) and (4) and 3(3) and (4) provide for the second. In other words, an application for an affiliation order may seek, and the Court may grant, one or the other (bearing in mind that a maintenance order is unlikely to ever be made against a person unless has admitted paternity or is adjudged to be the child’s father) or both. Applications by those described in ss (b) and (c) are more likely to be concerned with maintenance which necessarily will require either an admission or finding that the defendant is the child’s father.
18. Secondly, in my view, there is no conflict between the above and s 3 of the Birth, Deaths and Marriages Registration Act which primarily provides as to who and when births and deaths are to be notified to the relevant sub-registrar.
19. Subsection (9) precludes the father of an illegitimate child from being required to give information under that Act concerning the birth of the child. An application for an affiliation order under the Maintenance of Illegitimate Children Act does not involve requiring the defendant to give information under the Birth, Deaths and Marriages Registration Act. Here, the Appellant has already admitted on oath that he is the boys’ father and thus there can be no further information required in relation to paternity.
20. The second limb of ss (9) prohibits the registrar, when performing his functions under that Act, from entering the name of the father unless requested to do so jointly by the mother and father. It does not prohibit the mother of an illegitimate child applying for an affiliation order under the Maintenance of Illegitimate Children Act nor the court making an order under that Act.
21. To that point, it can be seen that ss 3(9) regulates the consensual entering by the registrar of a father’s name at the time of registration of the child whereas ss 2(2) permits the court to order that his name be entered where the father’s consent is not forthcoming.
22. To the extent that there may be any tension between the two Acts, the following observations may be instructive. Both were assented to on 29 July 1926. However, ss 3(9) of the Birth, Deaths and Marriages Registration Act was substituted in 1933 whereas the current form of ss 2(1) and (2) of the Maintenance of Illegitimate Children Act is the product of amendments in 1998 and 1999 respectively. Those amendments also postdate Tonga’s accession to the United Nations Convention on the Rights of the Child. Accordingly, Parliament is presumed to have intended those later amendments to the Maintenance of Illegitimate Children Act in the full knowledge of the earlier ss 3(9) of the Birth, Deaths and Marriages Registration Act.
23. Thirdly, while it is unnecessary to determine the issue raised by Ms Tonga as to whether the affiliation powers of the court reflect the principles in Article 8 of the Convention, I incline to the provisional view that they do and that if it were necessary to reconcile any conflicts between the two Acts (as submitted by the Appellant), an interpretation which gives effect to ensuring two of the most fundamental rights of any child – identity and support – ought be preferred. Conversely, any interpretation which deprives an illegitimate child of that aspect of his/her identity by which his/her father is to be recorded in the register of his/her birth, simply because the father or his other family may be embarrassed by it, would defeat the essential purpose of the Maintenance of Illegitimate Children Act: to recognize and protect the rights and interests of illegitimate children, who are amongst Tonga’s most vulnerable.
24. Fourthly, the various impacts of this matter on the Appellant’s wife and other grown children are not matters to be considered on this appeal. As Ms Tonga correctly submitted, any question of whether the Appellant can show cause why an affiliation order should not be made against him, as provided by ss 2(1), is yet to be considered or decided by the Magistrates Court.

Result

25. The appeal is dismissed.
26. The Appellant is to pay the Respondent’s costs of the appeal to be taxed in default of agreement.
    

NUKU’ALOFA	M. H. Whitten QC
8 September 2022	LORD CHIEF JUSTICE

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^[1] Of an amount agreed by the parties in 2021.

^[2] Citing Fonua v Tonga’onevai [1997] TLR 106.

^[3] Ratified by Tonga in 1995.
^[4] Pohiva v Nuku'alofa Magistrates Court [2015] TOSC 22 at [25], citing Burrows and Carter “Statute Law in New Zealand” 4^th Ed at 213 and 214.