032-NLR-NLR-V-58-J.-K.-WARAWITA-Appellant-and-JANE-NONA-Respondent.pdf
1954Present: Sansonl, J.
J. K. WARAWITA, Appellant, and JANE NONA, Respondent-S. C. 1,563—A. 31 G. Colombo, 20,010
Maintenance—Illegitimate child—False statements made bg defendant—Corroborativeevidence.
In an application Tor maintenance in respect of an illegitimate child, evidenceof mere opportunity for intimacy between the mother and the defendantdoes not amount to corroboration, but a raise statement made by the defendantdenying such opportunity may remove a doubt that may exist on thoquestion of corroborative evidence.
A•^APPEAL from a judgment of tlio Additional ^Magistrate's Court-,Colombo.
H. V. Perera, Q. C., for the defendant-appellant.
No appearance for the applicant-respondent.
Cur. adv. vult.
November 2, 1954. Saxsoxi, J.—
This is an appeal by the defendant against an order which condemnedhim to pay maintenance for four illegitimate children born to the appli-cant. The applicant’s case briefly was that she had worked for some
time as a domestic servant for the defendant and his family in the latter’shouse in Ambalangoda till 193S, after which she went to live in a houseon a land of 10 acres belonging to him at Porowagama. She said thatshe was placed in charge of that land by the defendant and while shewas there he often visited her and even stayed with her in that house ;she claimed to have been his mistress for some years. About 1917,according to her, one Sadiris came to live in that house at the instanceof the defendant, and she and Sadiris then lived there as man and wifetill 1951 and she had three children by Sadiris before they were turnedout of the land by the defendant. In 1953 she instituted theseproceedings asking for maintenance for four children aged 12, 10, S and5 years respectively who she said were the defendant’s children. Theapplicant produced a postcard of 1950 and a letter of 1911 said to havebeen received by her from the defendant : they contain instructionsregarding the working of the land, such as would normally be sent by anestate owner to one in charge of his estate. I shall have to refer againto these documents.
The defendant’s position was that the applicant first came to workon his land in 1945 together with Sadiris, and that she did so becauseher elder sister and brother-in-law were already there from 1941. He firstsaid that he used to write to the applicant’s sister but not to the appli-cant, but he later changed his story by saying that he wrote the postcard- of 1950 to the applicant and the letter of 1941 to her sister. Ishould add that the person addressed in both writings is Jane. Hedenied that the applicant had ever been his mistress.
In order to corroborate her evidence the applicant called a witnessParlis who lived about 9 miles away from that land. Parlis said that thedefendant brought the applicant to live on that land from his house inAmbalangoda, that she was living alone on the land and was frequentlyvisited by the defendant, and that she had four children by him. Healso said that the defendant once told him that he would board andeducate these children. According to Parlis, Sadiris was brought bythe defendant to live on the land some time after the applicant had comethere.
The learned Magistrate held that the defendant was the father of thefour children in question, and that lie had been maintaining them fromtheir birth until 1951. He clearly preferred to believe the applicantand Parlis rather than the defendant.. It was submitted for the defend-ant that the evidence of the applicant as to paternity had not beencorroborated, but I think that the evidence of Parlis affords some corro-boration though not perhaps of a very weighty nature. I agree thatas the defendant was the owner of the land on which the applicant wasliving he could well have visited the land frequently, given instructionsto applicant as to its working, and treated her and her childrengenerously, consistently with his position as owner. This case shouldnot lead estate owners in general to feel that if they adopt a generousattitude towards their employees, and pay regular visits to their lands,they would find themselves in the same position as the defendant.
But there is ail aspect of the evidence given by the defendant, as com-pared with that given by the applicant-, which seems to me to be deci-sively in the applicant’s favour. It i3 clear that the defendant wasnot speaking the truth when he said that the applicant came to live onthis land only in 1945, that it was to the applicant’s sister and not tothe applicant that he sent the written instructions regarding the workingof the land in 1941, and that the applicant was known as Caroline andcame to be known only later as Jane. In themselves these details werenot very important, and if the defendant had spoken the truth in regardto them it might have been difficult to say that the relationship betweenhim and the applicant was anything more than that of an employer andemployee. Parks’ evidence might then have been of a merely equivocalnature and it might well have been argued that the evidence establishedonly the mere opportunity for intimacy. The situation is different whenit becomes clear that the defendant has been lying on these matters.He has attempted to disclaim any knowledge of the applicant prior to1945, obviously in order to render it impossible for him to be the fatherof the two cider children, and highly improbable that he is the father ofthe two younger children.
It is in such a situation that the dictum of Lord Dunedin in Dawson,v. Mclcensie quoted by Lawrence, J., in Jones v. Thomas servesas a valuable guide, for he said : t: Here opportunity alone does notamount to corroboration, but two things may be said about it. One isthat the opportunity may be of such a character as to bring in the cle-ment of suspicion. That is, t-liat the circumstances and locality of theopportunity may be such as in themselves to amount to corroboration.The other is, that the opportunity may have a complexion put upon itby statements made by the defendant which are proved to be false. Itis not that a false statement made by the defender proves that the pur-suer’s statements arc true, but it may give to a proved opportunity adifferent complexion from what it would have borne had no such falsestatement been made ”. Lord Hewart. L.C.J., in Jones v. Thomas(supra) said : “As I read those dicta it is only when the untrue state-ments are of suen a nature, and made in such circumstances, as to leadto an inference in support of the evidence of the mother that they canbe regarded as corroborative evidence, and not that the mere fact ofthe alleged father having knowingly made false statements is in itselfcorroboration within the statute ”, More recently" Lord Goddard,
C.J., in Cred land v Knowler 3 quoted these dicta and said : !S In otherwords one has to look at the whole circumstances of the case. Whatmay afford corroboration in one case may not in another. It dependson the nature of the rest of the evidence and the nature of the lie thatwas told ”. In this case the learned Magistrate was satisfied that theapplicant’s evidence was corroborated, and to quote Lord Goddardagain : “ What this Court lias to decide Is whether or not there wasevidence which could corroborate the evidence of (the applicant)because, if there was such evidence, it was for the appeal committeeto decide whether they regarded it as corroboration. That is always
– (1031) 1 K. B. 323.s 4S.
[/sos) s. c. as.
the position •when an appeal is brought on the question of corroboration,whether in a case, tried before a jury or by justices. It is not for thisCourt to say whether the tribunal of fact ought to be satisGed. Wehave to decide whether the evidence given is such as in Jaw can be re-garded as corroboration ; and it is for the tribunal of fact, the jury orjustices, whichever it may be, to decide for themselves whether it didcorroborate-
Applying these principles, I think the false statements made by thedefendant remove any doubt that maj' have existed on the question ofcorroborative evidence, and I disni'–1 this appeal.
Appeal dismissed.