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Alfred v Brandy [1990] SBHC 97; [1990] SILR 20 (15 March 1990)

[1990] SILR 20

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 44 of 1990

BEVERLY ALFRED

v

SILAS BRANDY

High Court of Solomon Islands
Ward CJ
Civil Case No. 44 of 1990

Hearing: 15 March 1990
Ruling: 15 March 1990

Affiliation, Separation and Maintenance Act - Part III - validity of marriage and legitimacy of child - jurisdiction of Magistrate, section 22 of Magistrates’ Courts Act - transfer to High Court - directions.

Facts:

The Plaintiff brought an application for maintenance under Part III of the Affiliation, Separation and Maintenance Act against the Defendant. The Principal Magistrate declined jurisdiction under s 22 of the Magistrates’ Courts Act, on the basis that the validity of the marriage and the legitimacy of the child were at issue. He then referred the matter to the High Court.

Held:

1. The Magistrate was right to decline jurisdiction and refer the matter to the High Court since the question of whether money had been paid as bride price or compensation, might raise questions as to the validity of the marriage.

2. As a challenge to the presumption of legitimacy had been raised by the Defendant, the Magistrate was also right to decline jurisdiction and refer the matter to the High Court.

3. When a case is reported to the High Court for directions, the High Court must direct in what mode and where the cause shall be heard and determined. Where the evidence has already been heard by the Magistrate the case may be returned to the Magistrate for him to state his findings of fact. The case may then be returned to the High Court for argument and judgment.

Cases referred to:

None

Legislation referred to:

Affiliation Separation and Maintenance Act - Part III
Magistrates’ Courts Act sections 22, 40

P. Watts for the Plaintiff
A. Radclyffe for the Defendant

WARD CJ:

This case was brought under Part III of the Affiliation, Separation and Maintenance Act and was heard by the learned Principal Magistrate. At the end of the case, he considered that the validity of the marriage and the legitimacy of the child were at issue and, therefore, under section 22 of the Magistrates’ Courts Act, he did not have jurisdiction. It was reported, under section 40, for transfer to this court.

It is now before me for directions and both counsels insist the case could have been completed by the Magistrate. Mr. Radclyffe for the Defendant, suggests that the issues to be decided are simply:

(a) was there a marriage.

(b) if not, was the Defendant the father of the child.

As to the first, he states the issue is not whether the marriage was valid under law but whether the red money and cash were paid under duress. If the Magistrate decides there was a marriage, he need go no further and, if he finds there was not, he must simply decide the question of paternity and the complainant can amend her summons so it is brought under Part II of the Act.

Thus he suggests this case does not contravene section 22(3) of the Magistrates’ Courts Act. I am afraid, having perused the record, I cannot agree. Whist the Magistrate could decide whether or not the money paid was bride price or compensation and whether or not the Defendant knew of or wished for that to be paid and a marriage contracted, the answers he reaches may raise questions of validity of the marriage.

Similarly, the record, at the lower court, shows Mr. Radclyffe twice stated that, even if there is found to be valid marriage, there would be a challenge to the presumption of legitimacy. His client’s case was that he was not the father. If the marriage is found to be valid, there is a clear challenge to the presumption and Mr. Radclyffe cannot now abandon that position.

The learned Principal Magistrate was right to report the case and decline jurisdiction.

When a case is reported under section 40, the High Court shall direct in what mode and where the cause shall be heard and determined. The lack of jurisdiction did not appear until the evidence had been heard by the Magistrate. Had the pleadings shown these matters, the learned Magistrate would no doubt have declined jurisdiction at an earlier stage but they did not and he had no reason to suspect anything unusual about the case. However, the fact remains that he has heard the evidence and it would be unfair to the parties to rehear it.

I therefore direct that the case be returned to the learned Magistrate and he states his findings of fact on the evidence he heard. The case is then to be returned to this court where it will be listed for argument and judgment.