017-NLR-NLR-V-31-GRANGE-v.-PERERA.pdf
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Present: Fisher C.J. and Drieberg J.
GRANGE v. PERERA.350—D. C. Kalutara, 14,154.
Seduction—Claim for damages—Defendant denies seduction—Corrobora-tion of plaintiff's evidence—Material particular.
Where, in an action to recover damages for sedaction, thedefendant denies the sedaction, the plaintiff’s evidence mustbe corroborated in some material particular.
A
PPEAL from a judgment of the District Judge of Kalutara.The facts appear from the judgment.
V. Perera (with Ameresekera), for appellant.
N. E. Weerasooria (with Molligodde), for respondent.
August 29, 1929. Fisher C.J.—
In this case the plaintiff (respondent) sued the defendant(appellant) for damages for seduction. The plaint is dated July12, 1927, and alleges (paragraph 3) that “on or about January,1927, the defendant at Palatota aforesaid on a promise of marriageseduced the plaintiff and carnally knew her on several occasionsthereafter and the plaintiff is at present bearing a child to thedefendant. ” On July 24, 1927, the plaintiff gave birth to a child.On July 16, 1928, the action came on for trial and the plaintiff’sAdvocate then stated that “ the sed iction took place on December25, 1926, and the statement in paragraph 3 of the plaint re thedate is an error.Considerable stress was laid by Counsel for the
appellant on this departure from the date originally given, and itwas urged that it indicated that the plaintiff’s case against thedefendant was false. But the first question we have to consideris whether, apart from the other matters which have been put’ forward to support the view that the plaintiff’s case is false, thereis any reliable evidence to corroborate the plaintiff’s allegationthat ,the defendant seduced her. It seems to be clear that underRoman-Dutch law an action for seduction, where, as in the presentcase, the seduction was denied on oath by the defendant cannotsucceed unless the plaintiff’s evidence is corroborated. In Nathan’sCommon Law of South Africa,, Vol. III. (1906), section 1638, at page1679, the law on the subject is stated to be as follows: —
1638. In cases of seduction, where the defendant allegesthat the girl whom he is alleged to have seduced wasnot a virgin at the time when carnal intercourse tookplace, the presumption will be that she was a virgin, and
1929.
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the defendant must prove that she had actually hadsexual intercourse with another man (XLVI1I., 5, 4). Onthe other hand, the general rule laid down by the Koman-Dutch authorities is that in an action for seduction oraffiliation (i.e., for maintenance of a child of whom thedefendant is the father, or for the lying-in expenses ofthe plaintiff the plaintiff’s oath that the defendant isher seducer or the father of her illegitinate child must,if the defendant on oath denies the imputation of seduc-tion or paternity, be corroborated by evidence aliunde,that is, by extrinsic evidence (XLVIII., 5, 6; Grot., Int.III., 36, 8; Van Leewen’s Roman-Dutch Law, IV., 37, 6;2 K. 303)). Failing such evidence aliunde, the man’s oathwill be entitled to preference (Classon v. Durrheim, Buch.1868, p. 244), and the benefit of the doubt will be givenin his favour (Botma v. Retief, Buch. 1875, p. 120). It isimpossible to lay down any general rule as to the exactnature of the evidence which is required to fix a personwith the paternity of a child . . ■. . The plaintiff whoseeks to fix the paternity of an illegitimate child on a manmust clearly prove it, and must be corroborated by some. independent testimony; and in case of doubt judgmentmust be given in favour of the defendant ” (Le Roux v.-Neethling, 9 S. G. 247).
The corroboration required must, in my opinion, be corroborationin some material particular, that is to say, (a) by evidence as tosome fact or state of things pertaining to the view that the relation-ship or conduct of the parties supports the allegation of the plaintiffthat it resulted in sexual intercourse, or (b) by evidence as toconduct or action on the part of the defendant which constitutesan acknowledgment by him that the situation and relationshipbetween him and the plaintiff was such as the plaintiff deposes to.With regard to (a) corroboration on points which merely go toBhow that the parties were on ordinary and normal terms of friend-ship is not enough. The materiality of the point deposed to, if itis to be relied upon to corroborate the plaintiff, lies in the fact thatit indicates that the relationship was not merely friendly andplatonic. In this case there was no reliable independent evidenceof any acts of familiarity between the parties, nor is there anythingin the correspondence which is referable either to the promise tomarry, which the plaintiff alleges, or to . anything which indicatesthat the parties were on other than merely friendly terms. Theplaintiff herself said in her evidence “ There is no term of endear-ment in any of the letters addressed to us, ” and the mere fact ofthere being correspondence was not, and could not, under thecircumstances, be relied upon by the appellant’s Counsel as
1929.
Fishbr.C. J.
Orange t>.Perera
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corroboration of the plaintiff’s story. The absence of any independentevidence as to the defendant’s presence in Palatota at the materialtime is very significant, having regard to the fact that as a formerschool teacher in the village he must have been well known to alarge number of persons and his presence there at Christmas couldhardly have escaped notice.
With regard to the view taken by the learned Judge his judgmentseems to show that he did not give sufficient prominence to thequestion of corroboration. In his judgment he says:“The case
is ultimately one of plaintiff’s word against that of the defendantconsidered in the light of the letters produced by both sides, ” andlater on he says: “ Having carefully considered the evidence inmy opinion on the whole jthe truth is with the plaintiff. ” Thecase was originally closed on August 1, 1928, and it was announcedthat' judgment would be delivered on the 16th of that month.Meanwhile, however, the learned Judge thought it desirable tohear further evidence from the plaintiff and on August 27, 1928,she gave evidence which was chiefly directed to letter alleged tohave been written by her which was put forward by the defendant(D 2), dated November 21, 1925. On the first occasion she admittedthe writing of the letter, it had been read to her and she had beencross-examined as to its contents. On being recalled, however,and examined by the Court the letter was again read to her andshown to her and she then said “ I have now read this letter. Ideny having written it. At the trial I was only shown my sig-nature. I read the letter now and say that the signature is notmine . . . . After, reading the letter I say the signature isforged. I know that the letter is against my case. “ From thecourse adopted by .the learned Judge one can fairly infer that butfor the explanation given by the plaintiff of the letter D 2 on thesecond occasion he would not have been prepared to hold that shehad proved her case. Commenting on the evidence she gave onthe second occasion he says: “ I am inclined to accept the plaintiff’sexplanation …. I am therefore not satisfied that theletter D 2 was written by the plaintiff. The case is ultimatelyone of plaintiff’s word against that of the defendant considered inthe light of the letters produced by both sides. ’’ I think thecourse adopted was somewhat unfortunate as the learned Judgetook a hostile view of the conduct of the defendant,. and acceptedthe explanation of .the plaintiff in the face of her very direct evidencegiven on the first occasion when she admitted the execution of theletter, without giving the defendant an opportunity of meetingand dealing with the question of the letter being forged whichhad never been suggested up to that moment and was now raisedby the learned Judge for the first time. It is difficult to draw theconclusion that the letter D 2 was a forgery, and even had it been
1929.
Fishes C.J.
Orange v.Perera
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1929.
Fisher C.<T.
Orange v.Perera
duly proved so to be I do not think it would have supplied thedeficiency incorroboration of the plaintiff’s evidence. False
evidence put forward to meet a charge of this nature does not ofitself necessarily constitute evidence that the charge is true thoughof course it goes to the credibility of the person putting it forward.It is not enough in a case of this sort to say “ 1 believe the plaintiffrather than the defendant. ” To found a judgment for the plaintiffthe Court must be in a position to say “ I believe the plaintiff’sevidence that the defendant seduced her and it is corroboratedby reliable evidence on a material point.” I do not think it isnecessary to deal with the arguments adduced to show that intrinsi-cally the plaintiff’s case is unreliable, but after a consideration ofthe whole of the evidence I am of opinion that there is no corrobora-tion of plaintiff in any material – particular and ■ that her actionshould have been held to have failed on that ground.
The appeal must be allowed and judgment entered for thedefendant with costs in this Court and in .the Court below.
Drieberg J.—I agree.
Appeal allowed.