Smithen v Nisbette

• Jurisdiction: Saint Kitts and Nevis
• Judge: Robotham
• Judgment Date: 02 October 1988
• Neutral Citation: KN 1988 CA 1
• Docket Number: Magisterial Appeal No. 12 of 1987.
• Court: Court of Appeal (Saint Kitts and Nevis)
• Date: 02 October 1988

Court of Appeal

Robotham, C.J., Bishop, J., Moe, JJ.

Magisterial Appeal No. 12 of 1987.

Smithen

and

Nisbette

Appearances:

Emile Ferdinand for the appellant.

Henry Browne for the respondent.

Family law - Paternity — Putative father — Maintenance of child — Magistrate's Code of Procedure Act, Cap. 46, section 123 — As statutory condition precedent to issuing of summons was not being fulfilled, appeal must be allowed.

1 SIR LASCELLES Robotham, Chief Justice

2 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.

3 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.

4 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.

5 Section 123 reads–

“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 the State 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.”

6 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...