Found agreements between mother & putative father enforceable

A MOTHER, seeking maintenance from the putative father of her child was induced by the father not to attend court and to rely on an oral Agreement for the payment of $10 per month, which he dishonoured.

The resulting effect was that neither of them attended court on the day of the hearing, causing the magistrate to dismiss the summons.

The mother, Nora Williams, instituted new proceedings against putative father, Sedial Persaud, claiming $110, representing 11 months payment for the child as per agreement, but the magistrate dismissed the claim as illegal and unenforceable.

The woman appealed to the Full Court, which upheld the magistrate’s decision.

She then resorted to the highest Court in the land – the Guyana Court of Appeal – which court was constituted by Chancellor E. V. Luckhoo & Justices of Appeal Persaud and Victor Crane.

The Appellate Court found that the agreement was enforceable and valid and set aside the decisions of the Magistrate and the Full Court.

The appellant was granted the sum claimed as well as costs for the courts below and the Court of Appeal.

The facts of the case disclosed that on the 9th October 1964 the appellant gave birth to a child, of whom she alleged that the respondent Sedial Persaud was the father. On her application, a summons was issued and served on the respondent requiring him to attend court on the 1st April 1965.

On that day he denied paternity, and the matter was adjourned to the 29th April. Neither party appeared on that date, as the respondent had asked her to settle the matter and promised to give her $10.00 per month “for the child”. The magistrate struck out the summons for non-appearance.

On the 6th May 1965, the parties enter into a written agreement purporting to record what they had orally agreed to. In the agreement the respondent to pay to the appellant on or before the twentieth of each month a sum of $10.00 per month, ‘from the month of May 1965 to assist her to maintain one of her children” The appellant, in turn, pledged and agreed that “as long as this amount is paid to her she will not proceed by way of Court for its recovery”. However, nowhere in the agreement was it stated that it was because of the oral agreement that the parties did not appear at court on the 29th April.

Despite frequent demands by the appellant, no money was paid by the respondent under the agreement, and in April 1966, she instituted proceedings in the magistrate’s court for $110.00, representing payments for 11 months under the agreement. The defence was a denial of the indebtedness and in the alternative a plea that the agreement was void and/or illegal and/or enforceable. Only the appellant gave evidence. The magistrate dismissed the claim and on appeal, the Full Court upheld his (magistrate’s) decision. On further appeal to the Court of Appeal, that court held:-

(i) an agreement between a mother and putative father of her child for its support in consideration for a forbearing to continue affiliation proceedings is recognized by the law, as valid and enforceable;

(ii) the fact that no consideration was expressly stated in the agreement is no bar to a successful suit if there is evidence of a collateral oral agreement which embodies consideration;

(iii) collateral agreement apart, there is nothing to prevent the court from looking at the history of the transaction which led to the making of the document for the purpose of determining whether there is consideration;

(iv) from the evidence the appellant refrained from attending court on the 29th April, to proceed with her cause because of the respondent’s promise, and this constituted sufficient consideration;

(v) the fact that her forbearance preceded the agreement did not constitute it a part consideration.,

The appeal was allowed. Attorney-at-law, M. S.E. Brotherson represented the appellant while Doctor F.W.H. Ramsahoye appeared for the respondent.

In delivering his judgment, Chancellor Luckhoo said, ”The appellant, a single woman (whom I shall refer to as ‘the promisee,’) gave birth to a bastard child “Seenauth” on the 9th October 1964. She alleged that the respondent (whom I shall refer to as ‘the promisor), was the father of that child, and made application on oath on the 4th of March, 1965, for a summons to be served on him to appear before the magistrate to answer her complaint (he having contributed to the support of the said child within 12 months next after birth) as provided for under section 3 of the Bastardy Ordinance, Chapter 40.

“The promisor was duly summoned to appear before the magistrate touching the premises on the 1st April 1965, when paternity was denied and the matter was put down for the 29th April 1965.

“The promisee did not attend court on the 29th April, 1965, as she ought to have done, for the reason that the promisor had asked her “to settle the matter”, and promised to give her $10 per month “for the child”, When the matter was called up before the magistrate on that day, both parties were absent, no doubt in compliance with the oral agreement reached, and the matter was struck out by the magistrate.

“On the 6th May, both parties entered into an agreement in writing which purported to record what was orally agreed upon.,

That agreement showed that the promisor had agreed to pay to the promisee “the sum of $10 per month commencing from the month of May 1965 to assist her to maintain one of her children”. Further, it was stipulated that “this amount must be paid on or before the 20th day of each month “ and the promisee specifically agreed to accept the said sum from the promisor and further agreed and pledged “ that as long as this amount is paid to her she will not proceed by way of court for its recovery”. But it was not there stated that the non-appearance of the parties at court on the 29th April was because of an oral agreement to contribute specified sum for the support of the child.

“The promisor paid no money under this written agreement despite demands made by the promisee, who consequently in April 1966 sued him for $110 under that agreement being the sum due for the months of June 1965 to March 1966, 11 months at $10 per month.

“The defence on this claim before the magistrate was a general denial of indebtedness. In the alternative, it was said that if an agreement was entered into as alleged “such agreement is void and/or unenforceable”.

“The promisee gave evidence in the course of which she tendered the agreement and, by consent, a certified copy of the case jacket in the bastardy proceedings accompanied by her application on oath. She testified that the child mentioned in the document is the child mentioned in the affidavit ., Under cross-examination, she denied the suggestion put to her that the agreement was made because the promisor was “sorry” for her as she had nine children to maintain. She also denied another suggestion that she had summoned the promisor” as he had some worth”.

“Her simple and straightforward evidence remained unchallenged, as the promisor led no evidence, and no objection was taken to any of the evidence which she had led.

“The magistrate dismissed the claim for reasons, which I find
nebulous and almost incomprehensible.

“On appeal to the Full Court, it was contended on behalf of the promisee that the written agreement “ was a binding enforceable contract,” and for the promisor, the document did not disclose any consideration, and if it did, such consideration was past consideration”, Chancellor Luckhoo explained.
In giving judgment for the appellant, the Chancellor also noted that the Full Court had given no reason or advanced any authority in support of its conclusion in upholding the decision of the magistrate.

Other judges of the Court of appeal concurred with the judgment of the Chancellor.