Re Gun Soon Thing [HCM]

www.ipsofactoJ.com/archive/index.htm [1997] Part 1 Case 15 [HCM]

Coram

Re Gun Soon Thin

ABDUL MALIK ISHAK J

1 JANUARY 1997

When the question is whether a man is alive or dead, and it is proved that he has not been heard of for seven years by those who would naturally have heard of him if he had been alive, the burden of proving that he is alive is shifted to the person who affirms it.

I must take this opportunity of saying that nothing can be more absurd than the notion that there is to be any rigid presumption of law on such questions of fact, without reference to accompanying circumstances, such, for instance, as the age or health of the party. There can be no such strict presumption of law. In Doe d Knight v Nepean (1833) 5 B & Ad 86; 22 Digest 165 at p 1412, the question arose much as in R v Twyning, Gloucestershire (Inhabitants) (1819) 2 B & Ald 386; 15 Digest 740 at p 7992. The claimant was not barred, if the party was presumed not dead till the expiration of the seven years from the last intelligence. The learned judge who tried the cause held that there was a legal presumption of life until that time, and directed a verdict for the plaintiff, because, if there was a legal presumption, there was nothing to be submitted to the jury. But this court held that no legal presumption existed, and set the verdict aside. That is quite consistent with the view which we take in the present case; and R v Twyning, Gloucestershire (Inhabitants) (1819) 2 B & Ald 386; 15 Digest 740 at p 7992 may be explained in the same way. I am aware that in this latter case, Bayley J found his decision on the ground of contrary presumptions, but I think that the only questions in such cases are, what evidence is admissible, and what inference may fairly be drawn from it. It may be said, suppose a party were shewn to be alive within a few hours of the second marriage, is there no presumption then?

The existence of the party at an antecedent period may or may not afford a reasonable inference that he was living at the subsequent date .... Thus, the question is entirely for the jury. The law makes no presumption either way.

There is no presumption of law as to continuance of life, but each case must be determined on its own facts.

As soon as it was established .... that the former husband .... had not been heard of for seven years, then undoubtedly there was evidence for their consideration that he was dead, and it was more than evidence because it was a presumption and conclusive evidence until it was rebutted by evidence which showed, in fact, that he was alive.

.... in order to raise a presumption that a man is dead from his not having been heard of for seven years, you must inquire amongst those who, if he was alive, would be likely to hear of him, and see whether or not there has been such an absence of hearing of him as would raise the presumption that he was dead.

No witness was called who had ever known the third; and, except the mention of him in the lease (which described him as aged ten years), there was no proof that he had ever existed. No evidence of search for him was given. Held that, to raise the presumption of his death, there should have been evidence that he had not been heard of by those persons who would naturally have heard of him had he been alive, or that search had been ineffectually made to find such a person; and that the mere fact that no witness called had heard of him was not sufficient.

The mere lapse of time does not raise a presumption of death, unless you go further and show that the person has been absent, and not heard of by those who would have heard of him if he had returned.

The undisputed facts were that in 1929, the wife married a man whose photograph she identified in court; she lived with this man for two years, after which he was imprisoned for one month for misappropriation of money; and after coming out of prison, the wife’s father gave him some money with which he absconded to India. The wife has not heard from him since.

Then it is alleged that in 1940, the respondent went through a ceremony of marriage with the appellant in Bagan Serai. This is disputed by the appellant, but the learned magistrate found as a fact that the ceremony of marriage took place, and I see no reason to interfere with his finding on this point.

In para 7 of his grounds of judgment the learned magistrate says:

The court is satisfied also that a marriage did take place between the complainant and the respondent in 1940; and consequently that the complainant is the respondent’s wife.

It appears to me that the learned magistrate has here becomes confused between a ceremony of marriage and a valid marriage. From the mere fact that a ceremony of marriage was gone through, it does not necessarily follow that the respondent is the appellant’s wife. Once it appeared, as it did in this case, that the respondent had been legally married to some other man, then, unless it could be proved either that the first marriage had been legally dissolved or that the first husband was dead at the time when she purported to marry the appellant, prima facie, the respondent was not the appellant’s wife.

It was contended on behalf of the respondent that because the first husband had not been heard of by the wife for a period of over seven years that he must be presumed after the expiration of the period of seven years to be dead. I cannot accept this contention.

In the first place, although where a person has not been heard of for a term of not less than seven years, there may be a presumption that he is dead, the onus of proving the death of that person at any particular date must rest with the person to whose case that fact is essential. This proposition was laid down by the Privy Council in the case of Lai Chand Marwari v Mahant Ramrup Gir 42 TLR 159. In the course of the judgment in that case Lord Blanesburgh said:

But the law really is that on the facts now assumed there is no presumption as to Bhawan Gir being dead either in 1902 or 1904. There is only one presumption, and that is that when these suits were instituted in 1916, Bhawan Gir was no longer alive. There is no presumption at all as to when he died. That, like any other fact, is a matter of proof. And their Lordships would here observe that it strikes them as not a little remarkable that the theory on this point, on which the plaintiff’s pleader hazards his whole case, is still so widely held, although it has so often been shown to be mistaken .... Now upon this question there is, their Lordships are satisfied, no difference between the law of India as declared in the Evidence Act and the law of England and, searching for an explanation of this very persistent heresy, their Lordships find it in the words in which the rule both in India and in England is usually expressed.

His Lordship then quoted a passage from Re Phene’s Trusts (1870) 5 Ch D 139:

Probably the true rule would be less liable to be missed and would itself be stated more accurately, if instead of speaking of a person who had not been heard of for seven years, it described the period of disappearance as one “of not less than seven years”.

From this authority, I think it is clear that no presumption arose as to when the first husband died, but there might have been a presumption that at the date when these maintenance proceedings were commenced, the husband was no longer alive, if it had been proved that he had not been heard of by those people who were likely to have heard from him had he been alive. Even this presumption, however, does not necessarily arise from the mere fact that the respondent had not heard from her former husband. There is no doubt that in the circumstances laid down in s 108 of the Evidence Ordinance, the court may presume death, but it does not follow that in every case it will do so. If the circumstances of a man’s disappearance are such that it is unlikely that his relatives would have heard from him in any event, then the court will not presume his death (see Watson v England (1844) 60 ER 266, Bowden v Henderson (1854) 65 ER 437). It appears to me that in circumstances in which the respondent’s first husband left this country, it is unlikely that he would have communicated either with his wife or her father. To paraphrase the judgment of the Vice Chancellor in Watson v England (1844) 60 ER 266, it is reasonable to presume that all along he has been concealing himself and that he never intended to return home. The mere fact of his not having been heard of since affords no inference of his death; for in the circumstances of the case it is very probable that he would never be heard of again by his relatives.

As to the first ground, it must surely be correct that as a matter of evidence and in the absence of other admissible evidence to the contrary, a death certificate or certified extract thereof is primary evidence of the death of the person named therein. A grant of representation to his estate is at best secondary evidence of the death of the person for whose estate the grant is made.

In so far as judicial notice is concerned, the provision of s 57(1) makes it mandatory for the court to take judicial notice of all laws and regulations having the force of the law, public Acts passed by Parliament, the course of Parliamentary proceedings and other matters that are enumerated in sub-s (1)(a) to (o) of the section. The list, however, is not exhaustive since it is impossible to make a really complete list although a long list of facts which the English courts take judicial notice has been prepared. The important point to note is that s 57 does not prohibit the courts from taking notice of other facts not mentioned therein. The matters which the court will take judicial notice must be the subject of common and general knowledge and its existence or operation is accepted by the public without qualification or contention. The test is that the facts involved must be so sufficiently notorious that it becomes proper to assume its existence without proof .... Judicial knowledge is continually extended to keep pace with the advance of art, science and general knowledge.