Sealy v Raphael

• Jurisdiction: Barbados
• Court: Court of Appeal (Barbados)
• Judge: Waterman, J.A.
• Judgment Date: 30 June 2006
• Neutral Citation: BB 2006 CA 19
• Docket Number: Magisterial Appeal No. 5 of 2003
• Date: 30 June 2006

Court of Appeal

Simmons, C.J.; Waterman, J.A.; Williams, J.A.

Magisterial Appeal No. 5 of 2003

Sealy

and

Raphael

Appearances:

Mr. Cecil N. McCarthy for the appellant.

Ms. Caroline Herbert for the respondent.

Civil practice and procedure - Res judicata — Appeal from order for maintenance dismissed after respondent advised court that she no longer wished to proceed — Respondent brought new proceedings for maintenance — Whether respondent was estopped from brining new action — Original case not heard on the merits — No res judicata — Decision not to proceed does not prevent filing a fresh application.

Family law - Paternity — Finding of magistrate that appellant was the father of the child — Appellant claimed finding was against the weight of evidence — Appellant refused to take blood test — Adverse inference drawn — Court of Appeal will only disturb findings of fact where there is no evidence to support finding — Magistrate heard the parties and resolved inconsistencies judicially — No reason to interfere — Appeal dismissed.

Waterman, J.A.

1 This is an appeal from an order made by the magistrate of District “B” Oistins, Ms. Michelle Weekes, in which the magistrate adjudged the appellant to be the father of a male child, Florian Cecil Raphael, born on 3rd January, 1995. The appellant was ordered on 24th March, 2003 to pay the sum of $100 per week for the maintenance of the child with effect from 16th April, 2001. The appellant has appealed on the grounds that (a) the magistrate erred in law in holding that the respondent was entitled to commence a new application for maintenance after the respondent had informed the Court of Appeal in Appeal No. 51 of 1996 between the same parties that she was no longer proceeding with the matter, and (b) the decision was against the weight of evidence.

The Evidence

2 The evidence led at the trial shows that the parties agreed that they were friendly, and had an intimate relationship, that the respondent used to visit the appellant at his home and that sexual intercourse took place there on a number of occasions. However, the respondent alleged that their relationship commenced in 1992 and that she became pregnant sometime in April 1994. The appellant on the other hand alleged that the relationship ended in August or September 1993, and did not continue into 1994. He denied paternity and never paid maintenance. The evidence also showed that at the time the parties were friendly, the appellant was involved in an intimate relationship with the respondent's cousin and had a child from her. The evidence further disclosed that at the time the respondent was pregnant in April 1994 she was not in an intimate relationship with any man other than the appellant.

3 The magistrate stated that “[b]oth sides acknowledged from the outset that Mr. Sealy had refused and continued to refuse to have a blood test which would assist in determining paternity and that legally he could not be compelled to do so”. The notes of proceedings state: “Miss Herbert asking for blood test but [Sealy] still refusing to have blood test … had previously refused to have a blood test”. Under cross-examination the appellant said, “[m]y counsel asked me if I would have a blood test. I did not have a blood test”. There is thereafter a note by the magistrate, “counsel McCarthy, issue of blood test irrelevant cannot be compelled to do it”. In the light of the above and although we were not addressed on the issue, we are of the view that as the appellant could not be compelled to take the blood test the magistrate, in the circumstances, could have drawn an inference adverse to him from his refusing to be tested.

The Relevant Law

4 Section 8(1) of the Maintenance Act, Cap. 216 (the Act) provides, inter alia, that where the applicant has been delivered of a child, the application for maintenance may be made at any time before the child attains the age of 18 years. Section 9 of the Act provides as follows:

“On the hearing of an application under this Act, the magistrate shall hear

• (a) the evidence of the applicant and such other evidence as may be adduced by her or on her behalf; and

• (b) any evidence tendered by or on behalf of the defendant;

and, if satisfied on the evidence that the case for the applicant has been proved, the magistrate shall adjudge the defendant to be the father of the child; but where the magistrate is not so satisfied, the magistrate shall dismiss the application.”

Ground 1

5 This ground of appeal arises out of a previous appeal to this Court (Appeal No. 51 of 1996) which was allowed on the basis of a procedural error in the magistrate's Court. The magistrate had awarded maintenance in the absence of the father. The Court ordered that the magistrate's decision should be vacated but as the mother had informed the Court that she intended not to continue the case, the Court did not remit it to the magistrate to be reheard.

6 Counsel for the appellant submitted that the decision of the respondent to abandon the proceedings and to so indicate in the face of the Court amounted to an estoppel and a bar to further proceedings in the matter. Counsel cited The Queen v. May and Others (1880) 5 Q.B.D. 382 in support of his submissions.

7 In that case, upon the hearing of an appeal to quarter sessions against an order of affiliation, it appeared that the...