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Gibson v Nakacia [2001] FJHC 148; Hba0017j.2001 (15 November 2001)

IN THE HIGH COURT OF FIJI
(AT SUVA)

CIVIL APPEAL NO. HBA 17 OF 2001S

Between:

IVAN HAROLD GIBSON
Appellant

and

SALASEINI NAKACIA
Respondent

Appellant in person
Rt. Joni Madraiwiwi for the Respondent

JUDGMENT

The Appellant (husband) and the Respondent (Wife) were married in April 1993.

In July 1999 the wife petitioned for divorce on the grounds of cruelty. The petition showed that there were two children of the family then aged 6 and 5. Apart from a decree nisi the wife sought custody of the children with reasonable access to the husband. She also sought transfer to her of the husband’s undivided half share in a property at Wailekutu, Lami. No Answer was filed.

On 5 January 00 the petition came on for hearing. The husband was absent although he had been present on four previous occasions.

The only evidence given by the petitioner was as follows:

“I agree that paragraph 1 to 9 in my petition is true and correct. I tender the marriage certificate as exhibit No. 1, the children’s birth certificates as exhibit No. 2 and 3. I am asking for the orders contained in my petition dated 21/7/99 i.e. Orders (a) to (e). The Respondent has been served a copy of the petition on 14/12/99 and he has appeared in Court and (been) given an opportunity to answer. He has failed to answer the petition as of today.”

Having heard the petition the Court delivered the following judgment which is set out in its entirety:

“the Respondent has not answered the petition despite being served on 14/12/99. I therefore grant the orders sought by the Petitioner as contained in paragraphs (a), (b), (c) and (d) in her petition dated 21/7/99. The decree nisi to be made absolute within 30 days.”

As will be seen from the petition, prayer (c) sought transfer of the Respondent’s share of a property at Wailekutu, Lami.

The following May, for reasons which are not known, the Resident Magistrate adjourned to 26 June “for settlement of matrimonial property”.

On 26 June the Resident Magistrate made the following note on the file:

“property order both parties (2 undivided share)”

This is the husband’s appeal against the order transferring his share in the property at Wailekutu to the wife. In his letter of appeal dated 18 May 2001 (page 7 of the record) the husband states that he misplaced the date of the hearing. He seeks to have his half share in the property held in trust for the children of the marriage until they reach “a mature age”.

Just prior to the hearing of the appeal on 13 November a document headed “Respondent’s submissions” and signed by the Respondent in person was filed. The submissions asked for the appeal to be dismissed on the ground that the Resident Magistrate was wrong to grant the Appellant leave to appeal out of time. Ratu Joni relied entirely on these submissions however no cross-appeal by the wife is on the file.

Perusal of the record of the proceedings in the Magistrates’ Court reveals what I find to be an alarming state of affairs which I hope is not typical.

Proceedings for divorce in the Magistrates’ Courts are governed by the Matrimonial Causes Act (Cap. 51) and the Rules thereto.

Under Section 56 of the Act a Court may pronounce a decree of divorce if “satisfied of the existence of any ground in respect of which relief is sought.”

Under Section 93 of the Act “a matter of fact shall be taken to be proved if it is established to the reasonable satisfaction of the Court”.

Under Section 86 (1) the Court is given power to make such property adjustment orders as it considers “just and equitable in the circumstances of the case”.

Under Section 58 a decree nisi shall not become absolute until a certificate of satisfaction in relation to the children of the family (or a Section 58 (1) (b) (ii) certificate) has been granted.

By Rule 21 (1) a Resident Magistrate hearing a petition for divorce or an application of ancillary relief must place on the file:

“a minute of the Judgment ..... being a minute setting out the matters for determination in the cause, the decision on those matters and the reasons for the decision .....”.

In the present case, as is apparent from his judgment, the Resident Magistrate dissolved the marriage merely because the Petitioner had asked for dissolution and the Respondent had failed to file an answer. That was the wrong approach. Whether or not an Answer is filed the Resident Magistrate is required by Sections 56 and 93 to ask himself whether he is satisfied that the Petitioner has proved the existence of a ground for divorce. This was not done.

The Resident Magistrate did not comply with Section 58, a serious omission in view of the ages of the children and the matters set out in paragraphs 6 (I) and 6 (iii) of the Petition.

The Resident Magistrate heard no evidence at all relating to the property at Wailekutu. He therefore had no material upon which to base a decision, as required by Section 86 (1) that the transfer of the husband’s one half share to the wife was “just and equitable in the circumstances of the case”. No judgment containing the reasons for ordering the transfer of the property was placed on the file.

The appeal against the property adjustment order must be allowed. This aspect of the Petitioner’s case is to be remitted to the Magistrates’ Court for retrial before another Resident Magistrate. Resident Magistrates must remember that property adjustment orders are orders of utmost seriousness having far reaching consequences. They must not be made without the fullest enquiry. Such an enquiry will typically include examination of the parties means and needs, the needs of any children of the family, the history of the acquisition of the property and whether the parties are possessed of any other properties which should be taken into account. Failure to adhere to this general approach will lead to property adjustment orders being wrongly decided and set aside on appeal.

M.D. Scott
Judge

15 November 2001