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Whippy v Gee Kong [2001] FJHC 190; HBC0038.2000 (9 May 2001)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0038 OF 2000

BETWEEN:

ALICE MARGARET WHIPPY
Plaintiff

AND

PETER SPENCER LEE GEE KONG
Defendant

Dr. M.S. Sahu Khan for the Plaintiff
S. Lateef and I. Razak for the Defendant

Date of Hearing: 2nd February 2001
Date of Judgment: 9th May 2001

JUDGMENT

This is an application on behalf of the Plaintiff seeking to declare null and void the Decree Nisi and Decree Absolute in Matrimonial Cause No. 23 of 1997. The application is made by Originating Summons issued on the 31st of January 2000 and in support various allegations are made seeking among others the following orders which are the most relevant:

(2) That the hearing of the purported Petition on the purported ground of desertion was null and void.

(3) That the Magistrate's Court had no powers or jurisdiction to hear the Divorce Petition on the ground of desertion.

(4) That the whole proceedings before the Magistrate's Court on 4th June 1997 was null and void.

(5) That the learned Magistrate had no jurisdiction or powers to hear the Divorce Proceedings in the manner he did.

(6) That the learned Magistrate had no powers or jurisdiction to grant Decree Nisi and/or Absolute on the evidence before the Court.

(7) That the Decree Absolute granted on 18th of June 1997 is null and void.

Various affidavits have been filed on behalf of the parties and the Court has been provided with a record of the First Class Magistrate's Court at Suva.

When the hearing began Mr. Razak raised a preliminary question of the jurisdiction of this Court to hear the Summons. He said that by the Decree Nisi becoming absolute the Divorce Proceedings were concluded in the Magistrate's Court and the Plaintiff, the Respondent in that Court, cannot now attempt to re-open those proceedings in this Court.

MATERIAL FACTS

I find the following facts.

The Defendant filed Matrimonial Cause No. 23 of 1997 in the Suva Magistrate's Court on the 21st of January 1997 seeking dissolution of his marriage to the Plaintiff.

On the 4th of June 1997 the parties executed Terms of Settlement on all ancillary issues pertaining to custody, access, maintenance and matrimonial property.

The Terms of Settlement were drafted, explained and voluntarily signed by both parties in the presence of their own solicitors.

On the morning of 4th June 1997 the parties agreed to amend the ground of divorce from adultery and cruelty to desertion.

The case was then formally proved and the Terms of Settlement were accepted by the Court which then made various orders.

The Court granted a Decree Nisi and abridged the time for Decree Absolute to 14 days after hearing evidence.

The Decree Nisi was granted on 4th June 1997 and a Decree Absolute was granted on 18th June 1997.

Both parties collected their Decrees in June 1997. After this the Plaintiff then collected her lump sum settlement of $14,000.00 by two instalments and she continued to collect weekly maintenance for the children of the marriage.

As agreed between the parties the Defendant transferred his interest in the matrimonial property to be held on trust by the Plaintiff for the three children of the marriage.

The Plaintiff received her interest in the property unconditionally. This was finalised in December 1999 after the Defendant had fully paid the mortgage over the property.

On 17th September 1999 the Plaintiff had written to the Defendant's counsel saying that she expected the matrimonial property to be transferred to her by 20th September 1999.

On 13th December 1999 the Plaintiff again wrote to the Defendant's solicitor confirming that she had received the title to the matrimonial property at 10 Vatuvia Road, Lami.

JURISDICTION

The Plaintiff's Summons contains allegations of irregularity of procedure and allegations that the learned Magistrate made errors of fact and law which I shall deal with
now. Ground 5 seeks an order that the learned Magistrate had no evidence on which to grant the Decree Nisi and Decree Absolute and he thereby exceeded his jurisdiction in making his Orders on the 4th of June 1997. This is an allegation that the learned Magistrate made an error of law in not assessing correctly the evidence before him.

The Defendant submits that this ground should not be considered by this Court but ought to have been raised in an appeal since it contains allegations that the learned Magistrate made errors of fact and law.

The Defendant states that the Plaintiff did not bring an appeal in time and she is thus now estopped from arguing this ground in this Court.

The remaining grounds in effect claim that the proceedings of the Magistrate's Court ought to be set aside on the grounds of irregularity.

It is alleged that the learned Magistrate did not follow proper practice and procedure in allowing the amendment to the Petition and he erred in hearing the Petition on the amended ground of desertion. I shall deal in more detail with the Defendant's submissions on this question after I have mentioned the Plaintiff's submissions to which I now turn.

THE PLAINTIFF'S SUBMISSIONS

The Plaintiff denies that this is an appeal. She says she is seeking a number of declarations from the Court and thus the procedure of Originating Summons is correct. The Plaintiff agrees that the Magistrate's Court had jurisdiction to hear the Petition but not by allowing the Defendant's counsel to take a short cut as occurred here.

It is submitted that:

(1) the amended Petition should have been filed even if leave to amend was granted;

(2) the amended Petition should have been served on the Respondent and Co-respondent;

(3) after service of the amended Petition this should have been put to the Respondent and Co-respondent and it was not;

(4) no discretion statement was included either in the original or the amended Petition and counsel for the Petitioner should have drawn the Court's attention to the irregularity so as to ensure that the Matrimonial Causes Rules were complied with.

Thus it is said the failure to do this renders the whole proceeding a nullity. Further, the Court after allowing the amendment should have called on the Petitioner to give evidence of desertion and as to why the discretion of the Court should be exercised in favour of the Petitioner after which the Court was duty bound to exercise its discretion as to whether it should grant the Petition on the amended ground. This Court was referred to Rule 95 of the Matrimonial Causes Rules which says that an amendment is not effective until served. I was also referred to Craig v. Kanseen (1943) 1 ALL E.R. 108 in which it was held by the Court of Appeal that the failure to serve a Summons upon which an order was made was not a mere irregularity, but a defect which made the order a nullity, and therefore the order was set aside. This case was followed by the Court of Appeal in Wiseman v. Wiseman (1953) 1 ALL E.R. 601. At p. 602 Somervell L.J. said:

"If, as submitted, this order was a nullity, the subsequent proceedings based on it would, I think, be of no effect."

At this point I said to counsel for the Plaintiff, "Are you not saying that the Respondent/Plaintiff was brow-beaten into settling the case? That everything was done hastily so that she did not know what she was doing?" Counsel did not answer my question directly but then cited another English Court of Appeal decision Sharma v. Sharma and Another (1959) 3 ALL E.R. 321 where it was held that the Judge in an undefended divorce suit should assess the evidence given before him and should base his judgment on that evidence. Therefore the Magistrate's Court should not have granted the Decree Nisi without hearing evidence.

I do not disagree with counsel's first proposition but for reasons which I shall give later I am of the opinion that the learned Magistrate in this case did assess the evidence. I also note counsel's failure to answer my question as to the Plaintiff being coerced into settling the matter and say at once that I am not satisfied any such brow-beating or coercion took place for reasons which I shall give shortly.

Counsel then submitted that the learned Magistrate had no right to shorten the period of 28 days for the Decree Nisi to become Absolute to 14 days. Such a submission runs foul of Section 59 of the Matrimonial Causes Act under which the Court
may in a particular case, if it is of opinion that there are special circumstances which justify its so doing, make an order reducing the period of 28 days. However I take counsel to mean that because of his failure to comply with the rules of procedure mentioned above the Magistrate had no right to shorten the period and that his order so doing was therefore a nullity. Counsel then referred to Rules 277 and 278 which say that non-compliance with the rules does not render proceedings void and that the Court may relieve a party from the consequences of non-compliance. Counsel argues, rather ingeniously I think, that these two rules only apply when the same Court is dealing with the matter. Counsel submits that these rules do not apply in this Court but only in the Magistrate's Court.

I find this a very strange submission because the Plaintiff's case as I understand it is not that the High Court but the Magistrate's Court committed error. The submission can only have any weight if I accept the argument that because of failure to serve the amended Petition on all parties and the other arguments advanced the proceedings in the Magistrate's Court were a nullity. For reasons which I shall give later I reject this submission also.

I was also referred to Section 62 of the Act which states that a Decree Nisi which has not become Absolute may be rescinded if there has been a miscarriage of justice. As to this I say first that I am not satisfied there has been any miscarriage of justice in this case but in any event the Decree having become Absolute, Section 62 cannot apply. I shall elaborate on that remark later.

Finally counsel relies on Rule 287 which states that the Court cannot make any order by consent for a Decree of Dissolution of Marriage. I agree, but as counsel for the Defendant submits, under Section 63 of the Act the Court may upon application made ex-parte dispense with the service of any process under the Act if it thinks it expedient to do so. The material satisfies me that the learned Magistrate was right in finding, as by clear implication he did, that it was expedient to dispense with service. Finally on this question under Section 59(2)(b) of the Act a Court can abridge time for making of a Decree Absolute if it is satisfied there are special circumstances. In my judgment the Magistrate committed no error in abridging time in this case.

For the reasons which follow I shall dismiss the Plaintiff's Summons, accepting as I do the Defendant's submissions. This involves a reference to some case law and the conduct of the Plaintiff in her delay in bringing these proceedings. I begin by referring again to Section 62 of the Act. In Hurlstone v. Hurlstone and Another (1956) 1 ALL E.R. 804 the wife sought leave to appeal from the Decree Absolute almost 14 days after it had been granted. She alleged that she had been told by the husband and believed that the proceedings for divorce had been discontinued. The Court of Appeal in England held that the wife had had the time and opportunity to appeal from the Decree Nisi before it became Absolute and accordingly her application was refused. Similarly in the case of Meier v. Meier (1948) 1 ALL E.R. 161 the Court of Appeal of England held that no appeal lay against a Decree Absolute by a spouse who had had time and opportunity to appeal against the Decree Nisi unless good reason were shown on which the Court could properly exercise its inherent jurisdiction to intervene in order that justice might be done. In this case no such reason was shown and the application for rescission of the Decree Absolute by the husband was refused. At p.162 Scott L.J. said:

"The policy of Parliament requires that a decree absolute should be protected unless there is some ground on which the court could reasonably exercise its inherent jurisdiction to vary the order in the interests of justice. In this case, in my opinion, there is none. The principle onwhich Parliament has treated a decree absolute as sacrosanct is one on which this court must act. In my opinion, therefore, this motion fails."

The principle of "time and opportunity" established in these two cases was followed again by the English Court of Appeal in Whitehead v. Whitehead (1962) 3 ALL E.R. 800 and Stevens v. Stevens (1965) 1 ALL E.R. 1003.

In my judgment the Plaintiff had more than sufficient opportunity to either file an appeal or set aside the proceedings in June 1997 if she was unhappy with the outcome of the proceedings. She neither filed an appeal nor made an application under Section 62 to set aside the proceedings. Having failed to file an appeal she could not bring fresh proceedings to set aside the Decree Absolute. In Edwards v. Edwards (1951) 1 ALL E.R. 63 a Divisional Court held that the Court had no jurisdiction to entertain an application by a party to a suit, after the Decree Absolute had been pronounced in circumstances of procedural regularity. At p.66 Pilcher J. said:

"A decree absolute is a judgment in rem affecting the status of the parties. From the moment when it is pronounced either party to the dissolved marriage may, subject to any right of appeal, re-marry, and it is purely fortuitous that the husband in the present case has not re-married."

Shortly afterwards he said:

"Counsel for the wife were only able to refer us to two decided cases in which the rescission of a decree absolute, once pronounced, had ever been ordered."

No such case was cited to me probably because by definition a Decree Absolute is meant to bring finality to a matrimonial cause.

At p.67 Pilcher J. quoted with approval from a judgment of Lord Merriman P. in Everitt v. Everitt (1948) 2 ALL E.R. 545 at p.549:

"It may be that the legislature intended that a decree absolute could only be set aside by appeal to the Court of Appeal, and that to avoid uncertainty in connection with re-marriage, a motion to a judge under the inherent jurisdiction of the court and an application to the Divisional Court under r.36 are alike ruled out."

Pilcher J. then continued on p.68:

"It is equally clear on the admitted facts that she cannot hope to contend successfully that she has a right to appeal to the Court of Appeal against the decree absolute under s.31(1)(e) of the Supreme Court of Judicature (Consolidation) Act, 1925, because, on the admitted facts, she had abundant time and opportunity to appeal against the decree nisi if she had taken the appropriate steps."

Should the Proceedings in the Magistrate's Court be set aside

on the Ground of Irregularity?

In my judgment there was no irregularity in this case because the amendment to the pleadings and the formal proof on 4th June 1997 took place in the presence of the Plaintiff and her solicitor and with their consent. This is shown clearly by the Court Record which reads as follows:

"04 JUNE 1997

Petitioner-Present/Mr. Lateef/Present

Respondent-Present/Mr. Jamnadas/Present

Mr. Lateef:

100% Settlement

Stood down till 10.00 a.m.

Mr. Lateef:

Settled

(a) Maintenance

(b) Custody

(c) Matrimonial Property

Record:

- Of settlement filed

- Could be accepted

- Signed voluntarily by both counsel

- Terms of settlement 2nd last page to be dated

- By consent

- Proving of divorce

- Ground of divorce

- Amended desertion

Mr. Jamnadas:

- Agree with my friend

- Withdraw answer

(sgd) E. Sauvakacolo

Resident Magistrate"

In my view nothing could be clearer. According to the Court Record, and contrary to the Plaintiff's statement in paragraph 17 of her affidavit of the 31st of January 2000 that she was not called inside the Court when the hearing took place, I prefer to accept the Court Record. It is not denied by the Plaintiff that she did not challenge the jurisdiction of the Magistrate's Court at the time, that she did not seek adjournment from the Court to file an amended answer. The Record states that the grounds of divorce were amended by consent to desertion. The fact that an amendment was made and the Plaintiff's consent to the amended ground can be seen by the endorsement on the Court Record.

If she had objected to the amendment, no formal proof could have taken place. She does not deny that the Defendant's witnesses were present in Court and the Defendant could have proceeded to prove his case on the grounds of adultery if that had been necessary. I emphasise again that at all times the Plaintiff was represented by experienced counsel.

This factor was referred to by Cooke J. (as he then was) in Carrell v. Carrell (1975) 2 NZLR 441 who said at p.445:

"If counsel appearing for a party informs the Court that he consents to an order on behalf of that party the Court and the other party is entitled to rely on the authority of counsel even if his client is not present. A fortiori it is so if his client is personally present and makes no demur."

In my judgment that remark is particularly apposite to this case.

There is another factor which weighs with me in my decision to dismiss the Originating Summons, namely the suspicion which I consider attaches to the circumstances surrounding the final transfer of the matrimonial property to the Plaintiff. This was done in December 1999 and the Plaintiff received confirmation of this fact on 13th December 1999. I consider it relevant to ask why the Plaintiff waited until the Defendant had paid off the mortgage over the property and the Terms of Settlement were fully complied with before she commenced the present action? It seems to me very strange that her challenge to her divorce proceedings was only made after she obtained the maximum benefit out of the Terms of Settlement. In my judgment it is seriously arguable that the Plaintiff has not come before this Court with clean hands. Instead she has attempted to achieve by a side wind that which she must have known she could not hope to achieve otherwise than by making an appeal so late that it would be foredoomed to failure.

If ever there was a case for the application of the maxim vigilantibus, non dormientibus jura subveniunt in my judgment this is it.

For these reasons I dismiss the Plaintiff's Summons and order her to pay the Defendant's costs which I fix at $400.00.

JOHN E. BYRNE
JUDGE

Cases referred to in Judgment:

Carrell v. Carrell (1975) 2 NZLR 441 at p.445.

Craig v. Kanseen (1943) 1 ALL E.R. 108.

Edwards v. Edwards (1951) 1 ALL E.R. 63.

Everitt v. Everitt (1948) 2 ALL E.R. 545 at P.549.

Hurlstone v. Hurlstone and Another (1956) 1 ALL E.R. 804.

Meier v. Meier (1948) 1 ALL E.R. 161.

Sharma v. Sharma and Another (1959) 3 ALL E.R. 321.

Stevens v. Stevens (1965) 1 ALL E.R. 1003.

Whitehead v. Whitehead (1962) 3 ALL E.R. 800.

Wiseman v. Wiseman (1953) 1 ALL E.R. 601.