Appeal and Revision-Issue of fact-When Court of Appeal will interfere with
finding of lower court

Evidence-Paternity suit--Corroboration of mothers testimony necessary by
evidence which the court believes

Personal Law-Paternity suit-s-Corroboration of mothers testimony n~cessary

by evidence which the court believes                             

In a claim for a declaration that "the respondent is the father of the

. appellant's child, the testimony of the appellant requires corroboration by
evidence which the court believes. The judge who saw and heard the wit-
Ilesses is in the best position to form an opinion as to the truth of state- .
ments by witnesses giving such evidence. The members of the Court of
Appeal, who have seen the record but not the witnesses, are not in the
same 'position as the judge who heard the case, and therefore the Court of

• Court: Bell C.1., Owen and David-Davis 1.1.

Appeal will not reverse a finding of fact, when the case has been fully
heard, and the evidence is such that the court below could ~nably 111'-
rive at its findings of fact. ,

Appeal

January 19, 1929. Bell C.J.: In this case there are two issueS
of fact, firstly did the respondent promise to' marry the appellant,
secondly is the respondent the father of the appellant's child? On
each issue the court found in favour of the respondent; that he had
not promised to marry the appellant, and that he was not the father
of the appellant's child. 'It is unnecessary to say anything on the first
issue other than that on the evidence before, it the court not have come
to any other decision.

The-second issue requires fuller consideration.. I agree with the
learned judge that on an issue of this kind there must be corroboration
of .the statement of the mother as to the paternity of the child, . There-
fore the court must first decide whether the 'appellant has produced
any evidence which amounts to corroboration, and then consider
whether such evidence, in view of the evidence for the defence, can be believed.           

In my opinion there is in this case evidence' for the appellant,
which, if unrebutted and' believed, would amount to corroboration..
There is the evidence' of Theodore as to familiarity between the ilP-
pellant and the respondent; there. is the evidence of the appellant's
mother as 'to the respondent's acts in fetching th,e.· doctor on the day
the child was born. But the court .. did not believe Theodore's evidence,
and, as regards the acts of the respondent on the date of the birth
the court believed the story of the. defence and not that of the ap-

        pellant's witnesses.'                                .

It is unnecessary to review the evidence at length: On important
points the story as told by the two sides is mutually contradictory. It is
easy for the respondent to say that the evidence of 'the appellant's
mother bears evt?JY sign of preparation and, for th~, appellant to retort'

¥ ~at of 'the respondent's bro .. the~ be~ .. ~~ s8me chara~?stics.: . "
~~ Judge who saw and heard the witnesses 1,8 m the best POSlti()ll to
form an opinion of the truth of their statements. We who have ·seen ,
the record, but not the witnesses, even, if we jind some, of the re-
spondent's statements, no less than some of the' appellant's, hard-to
believe, and even if we. are doubtful whether we should form ~e saQle
opinion as the learned judge if we had to arrive at a ilecisioh oil the