Frederick Smithen Defendant/Appellant v Marlin Nisbette Complainant/Respondent [ECSC]

• Jurisdiction: Saint Kitts and Nevis
• Judge: SIR LASCELLES ROBOTHAM, Chief Justice,Chief Justice
• Judgment Date: 03 October 1988
• Judgment citation (vLex): [1988] ECSC J1003-1
• Docket Number: MAGISTERIAL APPEAL NO. 12 of 1987
• Court: Court of Appeal (Saint Kitts and Nevis)
• Date: 03 October 1988

[1988] ECSC J1003-1

IN THE COURT OF APPEAL

Before:

The Honourable Sir Lascelles Robotham—Chief Justice

The Honourable Mr. Justice Bishop

The Honourable Mr. Justice Moe

MAGISTERIAL APPEAL NO. 12 of 1987

Between:

Frederick Smithen

Defendant/Appellant

and

Marlin Nisbette

Complainant/Respondent

Appearances:

Emile Ferdinand for the Appellant

Henry Browne for the Respondent

SIR LASCELLES ROBOTHAM, Chief Justice

1 On October 28, 1987, the appellant was adjudged to be the putative father of a male child born of the respondent on June 10, 1978. He was ordered to pay towards the maintenance of the said child, the sum of $15.00 per week until the child attains the age of 16 years.

2 The complaints was not made to the Magistrate's Court until the 13th October, 1987, when the child was 9 years old, and no previous complaints had been filed. When the matter came on for hearing, paternity was denied.

3 This issue on appeal to this Court, is not that there was no evidence on which the appellant could have been adjudged the putative father, but that the Magistrate had no jurisdiction to hear the case, as none of the statutory conditions precedent to the issuing of a summons as set forth in section 123 of the Magistrate's Code of Procedure Act Chapter 46 had been fulfilled or satisfied.

"Any single woman who may be with child, or who may be delivered of a child, may either before the birth of such a child, or at any time thereafter upon proof that the man alleged to be the father of such child has within twelve months next after the birth of such child paid money for its maintenance of otherwise assisted to provide for its support, or at any time within twelve months next after the return to the State of the man alleged to be the father of such child, and upon proof that he ceased to reside in theState within twelve months next after the birth of such child, make application to a Magistrate for a summons to be served upon the man alleged by her to be the father of the child……..and such Magistrate shall upon such application being made issue his summons to the person alleged to be the father, to appear before the Magistrate and to show cause why he should not be compiled to maintain such child."

Section 123 reads—

4 Having quoted in extenso the relevant section, it is now necessary to examine the chronological order of the dates and events leading up to the application for the summons, as disclosed by the evidence of the respondent, and her witness. The respondent gave evidence before the Magistrate stating that the child was born on 10 June, 1978. At the date of the birth, the appellant was away from the State of St. Kitts and Was actually living in St. Martin. When in fact the appellant did return to St, Kitts, the child was 1 year and 6 months old. The respondent's mother Clementina Nisbette stated that the appellant never contributed towards the Hospital fees, as he was in St. Martin when the child was born. She further said that when he came back in 1981 and the child was 1 year and 6 months old. he gave her $60.00 U.S. towards the purchase of food and clothes for the child. It is therefore...