| Fiji Islands - Kaur v Singh No. 1 - Pacific Law Materials |
IN THE COURT OF APPEAL, FIJI
ON APPEAL FROM THE HIGH COURT OF FIJI
CIVIL APPEAL NO. ABU0011 OF 1998S
(High Court Civil Action No. HBA0007/97L)
BETWEEN:
SUBINDAR KAUR
F/N JAGIR SINGH
Appellant/Respondent
AND:
BALJEET SINGH
F/N BAKSHISH SINGH
Respondent/Applicant
In Chambere Hon. Jus. Justice Ian R. Thompson, Justice of Appeal
Hearing: Tuesday, 24 November 1998, Suva
Date of Decision: Frid7 November 1998
Counsel: Mr. A. Singh for Appellant/Respondent
Mr. V. Mishra for for Respondent/Applicant
DECISION IN CHAMBERS
On 27 February 1998 the appellant filed her notice of appeal against a judgment of Lyons J. delivered in the High Court on 22 January
1998. The respondent now applies for an extension of time for filing a respondent’s notice that he desires to contend that His
Lordship’s decision should be varied.
Rule 19(4) provides that any such notice is to be served on the appellant within 21 days of service of the notice of appeal on the
respondent. There is no evidence of the precise date of the service of the notice of appeal but it is clear that it had been served
before 30 April 1998 when the respondent was represented at the hearing by the Deputy Registrar of the
appellant’s application for an order fixing the amount and nature of the security to be given by her. So the respondent’s
notice should have been served well before the end of May at the very latest.
The appeal is against a judgment of the High Court in its appellate jurisdiction. The appeal to this High Court was from an interlocutory
decision of Ba Magistrates’ Court. In that Court the present appellant was complainant in proceedings brought under the Maintenance and Affiliation Act (Cap. 52). She claimed to be married to the respondent, to have been deserted by him and to be entitled to be maintained by him.
A claim for a maintenance order against a husband can be made under the Act only so long as the marriage exists; the claimant must
be a married woman (section 3). The respondent moved for the appellant’s claim to be dismissed on the ground that their marriage
had already been dissolved by a court in the State of California in the United States of America. The decision under appeal in the
High Court was in respect of that motion.
Section 92 of the Matrimonial Causes Act (Cap. 51) provides for the recognition in Fiji of dissolution of a marriage effected in accordance with the law of a foreign country.
However, section 92(6) is as follows:-
"(6) A dissolution or annulment of a marriage shall not be recognised as valid by virtue of subsection (1) or (3) where, under
the common law rules of private international law, recognition of its validity would be refused on the ground that a party to the
marriage had been denied natural justice."
In the Magistrates’ Court the parties presented their evidence in respect of the motion by affidavit. The respondent exhibited
to his affidavit a copy of his petition to the American court and a copy of its decree dissolving the marriage. There was also exhibited
the declaration of service of the petition which was filed in the American court. It was made by the plaintiff’s brother, Gurdev
Singh; he stated that he served the petition on the appellant. The appellant swore in her affidavit that she was not served with
the petition. Gurdev Singh did not serve an affidavit for the purposes of the proceedings in the Magistrates’ Court; the respondent
swore in his affidavit that he "had the papers served on [the appellant] through Gurdev Singh", a fact of which, quite
clearly, he could have had no first-hand knowledge.
On its face the decree of the American court is a valid decree which should be recognised in Australia. But, if the appellant’s
allegation of non-service is true, it was obtained by the respondent by deceiving the court as to service and the appellant was denied
natural justice. In that event the divorce should not be treated in Fiji as validly dissolving the marriage of the appellant and
the respondent. Once the issue was raised, the magistrate could not grant the respondent’s motion to strike out the claim until
he had decided whether or not the appellant’s allegation was true.
He did not require the deponents of the affidavits to give oral evidence; presumably the respondent was in California which is apparently
now his home. However, the appellant and Gurdev Singh should have been available. Instead he embarked on an examination of the signature
on the declaration of service and a comparison with other signatures of Gurdev Singh, a matter on which neither counsel had addressed
him. He did not have assistance of any evidence of an expert in handwriting. However, he came to the conclusion that the signatures
differed from one another. He also took into account the fact that no affidavit by Gurdev Singh had been filed. In giving his ruling
on the motion he "held" that the appellant was not served with the petition, refused to recognise the decree of the American
Court and dismissed the motion.
In the High Court Lyons J. noted that the decision appealed from was on an interlocutory application. He held that the magistrate
should not have undertaken an examination of the signatures as counsel had not addressed him on the issue and he had not had assistance
from an expert in handwriting. He found that the magistrate ought not to have made findings of fact based on his opinion regarding
the signatures and that his decision must be set aside. Quite properly he said that the onus rested on the appellant to prove that
the decree of the American court was not valid. He found that she had not established non-service of the summons. He said that the
respondent had adduced evidence of service and that it had been necessary then for the appellant to disprove it. He did not expressly
state that he found, or that the magistrate should have found, that there was service. He said simply that the magistrate had erred
in his discretion (apparently the discretion to consider whether the signatures were different) and that the appeal must be upheld.
He directed that the magistrate’s finding and orders were to be vacated. He did not order that the motion was to be granted.
The grounds of appeal in this Court are essentially that Lyons J. should have held on the evidence that was presented in the Magistrates’
Court that, even though the magistrate may have erred in relying on his examination of the signatures, there was no admissible evidence
which rebutted the appellant’s sworn evidence that she was not served with the petition. So the learned judge should have upheld
the magistrate’s finding and erred in law in basing his findings of fact on inadmissible evidence, namely the affidavit evidence
of the respondent regarding service, a fact not within his own knowledge, and the declaration made by Gurdev Singh for the proceedings
in the American court. What the respondent is seeking to do by his respondent’s notice is to have this Court hold that the learned
judge should have expressly found that the decree of the American court was valid and should be recognised, and that he should, therefore,
have ordered that the motion for dismissal of the claim be granted.
I have to say that I am most disappointed at the course the proceedings in this Court and the lower Courts have taken to date. The
complaint was filed in the Magistrates’ Court in February 1997. Mr Prakash has relayed to this Court criticisms by the respondent’s
American attorneys of the time it is taking for the matter commenced by the complaint to reach finality. Counsel for both parties
have acknowledged to me that the proceedings went off the rails in the Magistrates’ Court. I do not wish to be taken to have
prejudged the appeal but it is, I believe, clear that either there was unrebutted evidence of non-service of the petition or, if
the declaration made by Gurdev Singh for the purposes of the proceedings in the American court is to be regarded as evidence in the
Magistrates’ Court proceedings because it is exhibited to the respondent’s affidavit, there is a conflict of affidavit
evidence, oath against oath, with no other evidence supporting either. The issue of the validity of the decree of the American court
was so fundamental in the proceedings that it was quite inappropriate for it to be decided on the basis of conflicting affidavit
evidence presented in respect of an interlocutory application for dismissal of the claim. Quite clearly the matter needs to be returned
to the Magistrates’ Court to be dealt with properly. That is the effect of Lyons J.’s order as it stands. He had no sounder
basis for making a conclusive finding of fact that the petition was properly served than the magistrate had for finding that it was
not. In my view, therefore, he could not properly have made the orders which the respondent’s notice would seek to have this
Court decide that he should have made.
For an extension of time to be granted to file a respondent’s notice, the respondent must show that the case he wishes to present
stands a reasonable chance of being successful. In my view in the present instance it does not. I am, therefore, not willing to grant
the application.
Before concluding this statement of the reasons for my decision I would again point out to the parties that it is they by their conduct
of the proceedings who are delaying finality being reached in respect of the claim for maintenance. I suggest again that, if they
wish to avoid further delay, they should give serious consideration to having the matter returned by consent to the Magistrates’
Court forthwith for the interlocutory application to be dismissed and the issue of the validity of the decree of the American court
to be properly tried as one of the issues to be decided in determining of the appellant’s claim for maintenance.
Order: The application for an extension of time to file a respondent’s notice is dismissed. The respondent is to pay the appellant’s
costs of the application, which I fix as $150.
Mr Justice I.R. Thompson
Justice of Appeal
27 November 1998
Solicitors:
Messrs. G.P. Shankar and Company for the Appellant
Messrs. Mishra Prakash and Associates for the Respondent
ABU0011E.98S
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