Supreme Court
Appeal No. 1 of 1982
19th March, 1982.
Moe, C.J.

Mr. Allan Pitts, for the Appellant.
Mr. Denys Barrow, for the Respondent.

Inferior Court Appeal - Family Law - Appeal against decision of Magistrate refusing to make an Affiliation Order - Appellant swearing in Information and Complaint that Respondent had paid maintenance money for her illegitimate children as the children's putative father within 12 months of the Children's birth - Section 6 (c) of the Illegitimate Children Ordinance, Chapter 189 - Evidence at trial before Magistrate showing Respondent never paid money to children within 12 months of their birth - Defect in Information and Complaint - Whether defect material - Section 128(2) of Summary Jurisdiction (Procedure) Ordinance, Chapter 24 - Time at which a party to affiliation proceedings should raise objections as to defects in Information and Complaint - Section 127 of the Summary Jurisdiction (Procedure) Ordinance.

J U D G M E N T

This is an appeal from a decision of a Magistrate who dismissed the Appellant's application for an Affiliation Order against the Respondent. A complaint of the Appellant taken before a Justice of the Peace was in the following terms:

"The Information and Complaint of MILDRED BANNER taken this 25th day of August A.D. 1981 before the undersigned, one of Her Majesty's Justices of the Peace in and for the said Colony, who saith that she was delivered of two illegitimate children named ALICIA b. 12.6.72 and MARCO b. 27.9.73 and that one ISMAEL VEGA is the putative father being now prepared to give proof upon oath that the said ISAMEL VEGA did within twelve months next after the birth of the said children paid money for their maintenance she now applies to the Court for the following order to be made:-

(a) that the putative father pay to the mother of the children such weekly sum not exceeding $30.00 for the maintenance and education of the said children until they attain the age of 16 years pursuant to section 6(c) of the Illegitimate Persons Ordinance, Chapter 189 of the Laws of Belize, 1958."

It appears that a summons was issued and served on the Defendant who appeared at a hearing on the 11th December, 1981 and denied paternity. The Complainant and one witness gave evidence and the Complainant closed her case. As the Magistrate stated in his reasons, the record shows that the Complainant in her evidence before the Court both in examination in chief and cross-examination stated that the Defendant did not pay any money at any time for the maintenance of the children. At the close of the case for the Appellant, it was submitted on behalf of the Respondent that the evidence of the Complainant did not satisfy section 6(c) of the Ordinance, CAP 189 and thus no case had been made out for the Court to make an Affiliation Order against the Respondent. For the Appellant it was submitted (1) that by virtue of section 8 of the Ordinance the Court is to determine whether the Respondent is the father of the children as alleged by the Complainant. If that is proved the Complainant is entitled to an order against the Respondent irrespective of whether within 12 months next after the birth of the children he paid money for their maintenance or not.

(2) Once the Respondent had appeared in answer to the summons there is no onus on the Complainant to give evidence that the Respondent paid any money for the children's maintenance within 12 months next after their birth.

(3) Even if her evidence refuted her previous sworn statement of payment of money for the children's maintenance within 12 months next after their birth, if the Respondent is proved to be the putative father the Applicant is entitled to an affiliation order.

A reply on behalf of the Respondent was that the application should not be before the Court because the requirements of Section 6(c) of the Ordinance have not been satisfied by the evidence in Court, thus the summons should not have been issued and therefore the Court did not have jurisdiction to entertain the complaint. If it did it would condone fraud.

The Magistrate dismissed the application. He took the following view as stated in his reasons for decision:- "When, as in this case, the Complainant in her oral evidence denies that the condition precedent to the issue of the summons ever existed, then she would have only falsely sworn earlier and would have abused the due process of law. In such a circumstance, the court would at no stage have assumed valid and proper jurisdiction in law. Any other conclusion would, in my view, be to condone false swearing in legal proceedings. I am of the view that it has happened in the present case. The Complainant therefore fails and her application is dismissed."

The Appellant's grounds of appeal were:-

(i) The decision was unreasonable or could not be supported having regard to the evidence.

(ii) The decision was erroneous in point of law.

(iii) The decision was based on a wrong principle or was such that the Inferior Court viewing the circumstances reasonably could not properly have so decided.

Before this Court, the Appellant reiterated the above submissions and in addition urged that

(i) the objection to the jurisdiction of the Magistrate ought to have been raised at the beginning of the trial.

(ii) that having gone through the hearing by the Court, the Respondent had waived any defect in the Court's jurisdiction.

The Respondent contended

(i) that in this case the objection to jurisdiction could not have been taken at any other time (i.e. other than at the close of the case for the complainant).

(ii) That the Magistrate has an inherent jurisdiction not to allow the process of the Court to be abused and there were grounds in this case on which the Magistrate could have exercised that jurisdiction. That is, the summons was issued on the basis that the Complainant would prove at the trial matters giving rise to jurisdiction. She did not give that evidence at the trial.

I consider first the making of the application for the issue of summons. Section 6 of the Ordinance CAP 189 provides "Any single woman who --- may be delivered of an illegitimate child may - (c) at any time after the birth of that child upon proof that the man alleged to be the father of that child within the twelve months next after the birth of the child paid money for its maintenance, make application to the magistrate of the district in which she resides for a summons to be served on the man alleged by her to be the father of that child."

It is to be noted that the application for a summons is made upon proof that the man ---- paid money----. It appears there was no such proof yet a summons was issued. In Reg. v George Simmons 23 J.P. 309, no proof had been given to the summoning justice that the Defendant had paid money for the maintenance of the child within 12 months next after its birth and in fact no money had been paid. Cockburn C.J. referring to R v. Berry 23 J.P. 86 held that the matter was not of substance essential to the jurisdiction, but matter of process only and as such could be waived by the Defendant. At the hearing the Defendant took no objection on the point. In R. v. Berry (Supra) where a summons was granted by a Justice on the application of a mother against a Defendant, more than twelve months having elapsed since the birth, stating that the mother alleged that the Defendant had paid money, instead of saying she had given proof as in the statutory form, the Defendant appeared, and without objecting to the summons, or the proceedings on which it was founded, denied the paternity and gave evidence that he never paid any money for the maintenance. Lord Campbell C.J. had this to say: "According to strict regularity, before the summons issue, there ought to have been evidence on oath of the payment of the money, although it is not expressly required by the statute to be on oath ----. Further it would have been proper that the summons should have been in the form given by the Act of Parliament ----. If the Defendant had appeared and objected to the regularity of the summons, the objection ought to have prevailed; I am of opinion that when he actually appeared and instead of objecting to the regularity of the summons he asked the court to give judgment in his favour on the merits and tendered evidence to absolve him from liability, he waived any irregularity there might be in the process and that when he had thus submitted himself to the jurisdiction of the court the court had jurisdiction to hear and decide the suit. No irregularity in the process to bring the Defendant into court in a civil suit can be taken advantage of by the Defendant after he has appeared and pleaded and there has been judgment against him." A judgment of Matthew J. in Reg. v. Fletcher 48 J.P. 407 is to the same effect. In the instant case there was clearly an irregularity in the process to bring the Respondent before the Court. What happened thereafter? The Respondent was served with the summons, appeared before the Magistrate, took no objection at the start of the hearing to the absence of proof of payment before the issue of process, and went into a hearing of the case. He however has taken a stand and objected to the Magistrate determining the matter by way of a no case submission.

I turn first to the Respondent's submission at the close of the Complainant's case that there was variance between the information and complaint (sworn to for the purpose of process) and the evidence adduced. Counsel for the Appellant relied on section 136 of the Supreme Court of Judicature Ordinance CAP. 5 but I think it more appropriate to refer to section 128(2) of the Summary Jurisdiction (Procedure) Ordinance CAP. 24 which section would have been guiding the Magistrate at the time of dealing with the matter. That section provides -

"(2) No objection shal1 be taken or allowed, in any proceeding in the court, to any complaint, summons, warrant or other process for any alleged defect therein in substance or in form, or for any variance between any complaint or summons and the evidence adduced in support thereof:

Provided that if any variance or defect mentioned in this section appears to the court at the hearing to be such that the Defendant has been thereby deceived or misled, the court may make any necessary amendments and, if it is expedient to do so, adjourn, upon such terms as it thinks fit, further hearing of the cause." By that section all defects in substance and form in a complaint, summons, etc., are deemed immaterial. Such a provision has been interpreted to mean defects or variances in a matter not essential to the jurisdiction of the Magistrate. In Atterton v. Brown [1945] K.B 122 Humphreys J. pointed out "Technical objections even if they touch the substance of the charge are not to prevail. An objection is effective where the error alleged is fundamental. The courts have always been more particular about the necessity for accuracy and more rigid in their decisions with regard to convictions than they have been with regard to processes of the court, whether informations or summons issued as the result of information which are designed to bring persons before the court." See also D'Oliviera v. Chase 7 W.I.R. at page 20.

To my mind the Respondent's submission that there was variance between the information and complaint and the evidence adduced is closely interwoven with his further objection that the court did not have jurisdiction because the evidence showed that the matter ought not to have been before the court. If he is correct the evidence would have disclosed there is a defect as to a fundamental matter. Firstly, could this objection to jurisdiction properly be taken at the close of the complaint's case? This is covered by section l27 of Summary Jurisdiction (Procedure) Ordinance CAP. 24 which provides - "It shall not be competent for any person to impeach in any proceeding or in any other manner whatever, any order made by the court on the hearing of a complaint on the ground that the court had no jurisdiction to make the order unless that objection was taken on the hearing of the complaint or at the time of the making of the order." That section permits objection to the jurisdiction of the court even at the time of the making of the order. In this case the objection on this point was taken during the hearing of the complaint and was thus in order. See D'Oliviera v. Chase (Supra).

The question now is, did the Magistrate have jurisdiction? In this case, is proof of payment of money for the maintenance of the child within 12 months next after the birth of the child fundamental or essential? The Appellant relied on the Jamaica Court of Appeal Judgment No. 3 of 1972 - George Smith v. Gloria Finnikine in which the Court of Appeal was dealing with provision of the Affiliation Law of Jamaica similar in terms to the provisions of the Illegitimate Persons Ordinance CAP. 189 under consideration. Reference was made to the following passage in the said judgment -

"It is in our view clear beyond doubt that S. 3 of the Affiliation Law is directed to the making and laying of the complainant and that in relation to a complaint which is sought to be made more than twelve months after the child's birth proof must be given, not to the court hearing the complaint but to the person before whom the complaint is made, that is to say the officers mentioned in the section, that payment was made within twelve months. It is to found the jurisdiction of the officers mentioned to take the complaint that the provision is made. If such proof is not given then there is no jurisdiction to take the complaint. The complaint as stated in the section is: "alleging someone to be the father of the child". It is to this complaint that there must be evidence and corroboration in some material particular. The payment of money before the complaint was made is, in our view, not an essential ingredient to be proved before the Resident Magistrate though that evidence may be given to corroborate the allegation that the man is the father of the child."

I do not think the judgment of Smith J.A., as he then was, is an authority for the proposition that there is no need for proof of payment of money within the prescribed time. Indeed Smith J. did say "proof must be given --- to the person before whom the complaint is made --- that payment was made within twelve months.--- If such proof is not given then there is no jurisdiction to take the complaint." The passage of the judgment relied upon was evidently dealing with the submission that the "material particular" required to be corroborated under the relevant provision is the payment of money during the first twelve months after the child's birth. What is the position where there is evidence that there was no such payment was not in issue, for in that case there was the evidence that the man alleged to be the putative father had paid money.

I think the position in law is succinctly put by Lord Denning M.R. in G(A) v G(T) [1970] 3 A.E.R. 846 in which the issue was whether a complaint was properly brought under section 2(1) of the Affiliation Proceedings Act l957 U.K. in terms similar to the relevant provision of the Illegitimate Persons Ordinance of Belize. He had this to say, "When a single woman has an illegitimate child and seeks to make the father pay for it she is under a time limit. Section 2(1) of the Affiliation Proceedings Act provides that she must make a complaint to the Justices within twelve months from the child's birth; or alternatively, she can make her complaint at any subsequent time if she can prove that the man 'has within the twelve months next after the birth paid money for its maintenance' - The question is has she proved it." The Court of Appeal of Jamaica held in Davis v. Rumble, Case No. 142/77, that in that case there was evidence that in fact no money had been paid and therefore there was no jurisdiction for the complaint to have been heard by the Resident Magistrate.

In the instant case the Complaint was made later than twelve months from the children's birth and there is evidence that in fact no money has ever been paid at any time for the maintenance of the children. The Respondent's objection that the Magistrate had no jurisdiction to hear the complaint must be sustained. It is unnecessary to refer to the other points raised as to false swearing, condoning it and abuse of the process of the court. The order of the Magistrate dismissing the complaint is affirmed and the appeal is dismissed.

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