Appeal dismissed; corroboration of paternity evidence required under Illegitimate Children Law.

[*895] 1969 June 27

(JOSEPHIDES, LOIZOU, HADJIANASTASSIOU, JJ.)

APPELLATE JURISDICTION

Georghia Constantinou,

Appellant,

v.

Panayiotis Symeonides,

Respondent.

(Civil Appeal No. 4759).

Illegitimate children - Affiliation order - Evidence required for the making of - Sections 8 and 9(1)(2)(3) of the Illegitimate Children Law, Cap. 278 - Corroboration - What is corroboration in such cases - Principles applicable - No corroborative testimony in the instant case - Findings of trial Judge reasonably open to him.

Affiliation Order - See under “Illegitimate Children”.

Bastardy - See under “Illegitimate Children”.

Court of Appeal - Appeals turning on findings of fact and credibility of witnesses - Principles on which Court of Appeal acts.

C. Myrianthis, for the Appellant.

A. HjiIoannou with C. Indianos, for the Respondent.

JUDGMENT

The Judgment of the Court was delivered by:-

JOSEPHIDES, J.: In this case the mother of an illegitimate child, born on the 28th May, 1966, applied to the District Court for an affiliation order against the respondent, under the provisions of section 8 and 9 of the Illegitimate Children Law, Cap.278, and her application was dismissed. She now appeals against that dismissal. [*896].

Under the provisions of section 9(1) of Cap. 278 there must be evidence as to the paternity of the child implicating the alleged father and such evidence has to be corroborated in a material particular. Under the provisions of subsections (2) and (3) of section 9, the alleged father is deemed to be the father of the child if he has cohabited with the mother, to the exclusion of all other male persons, at any time during the period of possible conception which is, approximately, between the sixth and the tenth month before the birth of the child.

Here, apart from the evidence of the mother, there is no independent testimony that she was seen associating, let alone cohabiting, with the respondent, to the exclusion of all other male persons, or at all, at any time during the period of possible conception. What is corroboration in such cases is summarised in Halsbury’s Laws of England, volume 3, page 120, paragraph 184, and in Stone’s Justices’ Manual (1967), volume 1, page 434 to 436. The principles are well known and we need not reiterate them. Our law, section 9, reproduces substantially the English statute on the point.

The trial Judge in this case, apart from the mother of the illegitimate child, heard two other ladies called to corroborate her evidence. The one was her aunt and the other a second cousin. Their evidence was only in respect of an alleged incident that the respondent was seen in a compromising position in a room with the mother (appellant) in the house of a certain Hambou Constantinou on the 28th January, 1966. This date is only four months before the [*897] date of the birth of the illegitimate child. It is true that the trial Judge, in rejecting the evidence of these two witnesses, did not analyse the evidence nor did he give particulars of the contradictions between their evidence and that of the mother and the contradictions between the one and the other, and in that respect we must say that his judgment leaves much to be desired. But we have read the evidence as a whole, all the evidence as appearing on the record, and we are satisfied that there are many material contradictions in the corroborative evidence, if it can be called corroborative evidence at all. We need not enter into details. We need only refer to the pages in the record where such material

contradictions may be found: see pages 12 Z, 13B, 15B, 16E to the bottom of the page, page 17B, and E, and page 19B.

It is well settled that in an appeal the onus is on the appellant to satisfy this court that the trial Judge is wrong, that is, either that his findings are not warranted by the evidence as a whole, or that the reasoning behind them is unsatisfactory. Matters of credibility of the witnesses are within the province of the trial Judge, and we are of the view that, on the evidence before him, it was reasonably open to him to make the findings which he did make in the case: see, inter alia, the case of Imam v. Papacostas

(1968) 6 J.S.C., at pages 627 8, where the principles are summarized; a recent case on the point is that of HadjiPetri v. Hadji-Georghiou (1969) 5 J.S.C. 729, at page 733. [*898].

Having read the whole evidence, we are indeed, satisfied that the trial Judge could not have reached any other conclusion.

For these reasons the appeal is dismissed. No costs are claimed. No order as to costs.

Appeal dismissed; no order

as to costs.