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Yaling v Koloba [1999] PGNC 78; N1928 (6 September 1999)

Unreported National Court Decisions

N1928

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

APPEAL NO. 162 OF 1998
BETWEEN: GEYA YALING
APPELLANT
AND: SALOME KOLOBA
RESPONDENT

Lae

Injia J
3 August 1999
6 September 1999

FAMILY LAW APPEAL - Maintenance proceedings - After birth of Child - Denial of paternity - Normal birth - No evidence of abnormal birth - Normal gestation period - Judicial Notice of - Child conceived before sexual intercourse between parties - Appeal allowed - Child Welfare Act (Ch. No. 270), s.55.

Cases Cited

Bosville v. Attorney General [1870] UKLawRpPro 38; [1886] 2 P.D. 177.

Burnaby v. Baillic [1889] UKLawRpCh 104; (1889) 42 Ch. D. 282.

Gaskill v. Gaskill [1921] P. 425.

Wood v. Wood [1921 P. 103.

Hadlum v. Hadlum [1949] P. 197.

M.T. v. M.T. [1949] P. 331

Preston Jones v. Preston Jones [1951] A.C. 391.

Tony Mong v. Yong Mong N1650 (1997)

Counsel

Appellant in person

Respondent in person

6 September 1999

INJIA J: The appellant is appealing against a decision made by the District Court at Lae on 7 April 1998 which found the appellant to be the father of the illegitimate male child one John Geya born to the respondent on 17 July 1996 and ordered the appellant to pay maintenance of K50 every fortnight commencing on 24 April 1998. The orders were made on a complaint brought by the respondent under Section 51 of the Child Welfare Act (Ch. No. 270).

There are three grounds of appeal which are:

1. ҈& T60; The leae learned Magistrate erred in law and fact in finding that the appellant was the father of the child John Geya when the evidence was unrle, iisten insufficient to support the finding.

2. ;ټ Th0; The learned trate erre erred in law and in fact in finding that the appellant was the father of John Geya when it was unsafe to do so.

3. ;ټ Tount ofnt 0f K50 K50 per fortnight to be paid as maintenantenance to support the child John Geya is excessive in the circumstances.

Thet andnd grounds of appeal can be dealt with together because they raise simi similar ilar issuesssues of evidence. The appellant in his written submissions handed up in court raised an additional ground as to jurisdiction of what he described as the District Court constituting itself the “Morobe Family Court” but this ground of appeal is not part of the notice of appeal and no leave was sought at the hearing to include this ground of appeal. Therefore, this additional ground of appeal does not arise for the consideration of this Court: But see Tony Mong v. Young Mong, N1650 (1997) for discussions on this point.

The child the subject of these proceedings is illegitimate. Proceedings for maintenance after the birth of an illegitimate child are governed by the Child Welfare Act. Section 51 prescribes the procedure for instituting proceedings for maintenance by a mother of an illegitimate child after the birth of the child. The elements requiring proof to ground an order for maintenance are specified in S.55(1). Subsection (3) provides three distinct defences pertinent to subsection 55(1)(b)(i).

Section 55 provides:

“55. Maintenance odderecoon ainplaint after birth

(1) Where a court hearing a complaint under Section 51 is satisfied that:

(a) ҈& The chie chilillegillegte; a>

(b) ;ټ The defendapt:(

(i)  < 1s t is this the father ofer of the child; and

(ii0;҈& is over the age of 16 year years; and

(iii) &#has eft left left the chhe child without means of support.

the Court may order the dant to pay the Director, weekly, such sum for the maintenantenance of the child as the court thinks proper.

(2) &#160ourtcordering a defendefendant to pay for maintenance of a child under subsection (1) may at the same time order the defendant t to trectoh sum exceeding K150.00, for confinement expenses, as the court thrt thinks inks propeproper.

(3) &#160ourtcshall not make anke an order under Subsection (1):

(a) ;&#16 the evidenvidence of e of the mother, s herence rrobo in some material particular; or

(b) ҈#160;&#160  if the court is satisfied fied that at the then tild wnceivedeived the the mothemother was a common prostitute; or

(c) ;ټ if the the evidenvidence adduced indicates tt is sible or unlikelyikely that that the defendant is the father of the child.”

In the instant case, there was no dispute attrial the appellant want was abos above the age of 16 years, that the child John Geya was born to the respondent on 17 July 1996, that the child was born to the respondent with whom the appellant had sexual intercourse with on three occasions before the child’s birth, that the child was illegitimate and that he had refused to maintain the child. The appellant’s only defence was based on s.55(1)(b)(i) and (3)(c). The appellant whilst admitting that he had sexual intercourse with the respondent on three (3) separate occasions between 16 November 1995 and 10 December 1995, he maintained in the Court below and repeated before this Court, that it is impossible or unlikely that he is the father of the child. The appellant said he was told by the respondent on 16th November, 1995 when they had their first sexual intercourse, that she had already missed her monthly menstrual period. This, he submits, means she had already conceived the child through sexual intercourse with another man before 16 November 1995, given the normal human gestation period of 9 months. The respondent admitted that their first sexual encounter was on 16 November 1995. The respondent also said she missed her menstrual period “in November, 1995” but did not specify the exact date. She did not dispute the appellant’s evidence of telling him on their first sexual encounter on 16 November 1995 that she already missed her menstrual period. The learned Magistrate accepted the respondent’s evidence and concluded that the child was conceived as a result of sexual intercourse between the parties “in November and December 1995 and nine (9) months later that is in July 1996, she gave birth, so that is in line with human reproduction period.”

At the trial, there was no expert medical evidence before the Magistrate to show that the normal human gestation period is exactly 9 months. The Child Welfare Act is silent on this point. I cannot locate any local case on this point. Cases decided by equity courts in England before our independence (September, 1975) are of some assistance. It is common knowledge that the normal human gestation period for humans is 280 days or 9 months and it has never “been doubted that the Court has judicial knowledge of the normal period of human gestation.” Preston Jones v. Preston Jones [1951] A.C. 391 at 401, 410, 413. But credible expert medical evidence on human gestation does not rule out the possibility that there may be cases of abnormal gestation which may result in a child being born pre-maturely or well after the normal gestation period: see Bosville v. Attorney General [1887] UKLawRpPro 26; (1887) 12 P.D. 177, 183 (270-275 days); Burnaby v. Baillic (1889) 42 Ch. D.282, 296 (273-280 days); Gaskill v. Gaskill [1921] P.425 (346 days); Hadlum v. Hadlum [1949] P.193; (349); Wood v. Wood [1921] P.103 (346); Preston Jones v. Preston Jones, supra, (360 days); M.T v. M.T [1949] P.331 (340 days). In all these cases, there was evidence from the mother supported by expert medical evidence before the Court to support a finding of an abnormal birth. In my view, in the absence of such evidence, the Court in those cases were and indeed any other court, is entitled to take judicial notice of and infer the normal gestation period.

In the present case, there was no evidence, medical or otherwise, to show that the gestation period was abnormal. In the circumstances, the normal gestation period must be inferred. So allowing for the maximum normal gestation period of 280 days or 9 months and given the fact that the child was born on 17 July 1996, it was highly likely that the respondent got pregnant as a result of her sexual intercourse with a man other than the appellant, which occurred before 16 November 1995 and say on or about 17 October, 1995. The learned Magistrate erred in fact when he found that “defendant had sexual relations with the complainant in November and December 1995 and nine (9) months later that is in July 1996, she gave birth so that is in line with human reproduction period.” From 16 November 1995 to 17 July 1996 is exactly 8 months and not 9 months as calculated by the Magistrate.

Further, there was evidence before the court which lent support to the appellant’s contention that the child was fathered by another man. It was admitted by the respondent at the trial that she had a child from another man before, but the man’s identity was not disclosed by the respondent. Even his brother Sgt. Koloba who gave evidence said she did not sue the first man because “she does not know, she is a villager”. After the child was born, the appellant maintained all along that he was not the child’s father and refused to maintain the child. Even when interrogated by his superiors, he made no clear admissions of paternity to his superiors or anyone else.

In all these circumstances, there was a real likelihood that the child John Geya was fathered by a man other than the appellant. I find that the Magistrate erred.

Having arrived at this view in relation to the first and second grounds of appeal, it is unnecessary to consider the third ground or appeal. For these reasons, the appeal is allowed. The decision of the Magistrate is quashed. Each party shall bear their own costs of this appeal.

Lawyer for Appellant: In person

Lawyer for Respondent: In person