IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

ACTION NO. HBM0013 OF 2005

BETWEEN:

MUNITA DEVI
APPLICANT

AND:

MUKESH PRASAD and
RAJENDRA PRASAD
RESPONDENTS

Mr S. Sharma for the Appellant
Mr Iqbal Khan for the Respondents

Date of Hearing:	21 July 2005
Date of Judgment:	21 July 2005

ORAL JUDGMENT OF FINNIGAN J

This is an appeal against a decision of a Magistrate. On 1 April 2005 the Magistrate in Chambers on an ex-parte motion filed in reliance on the Maintenance and Affiliation Act granted an interim order for custody. The effect of the order was to remove the child from his mother and place him in the custody of his father and grand father without prior notice to the mother of the Application.

I have been greatly assisted by the efforts of Counsel for both Appellant and Respondent, both of whom had mastered the facts and had prepared good legal submissions. From the file and from what Counsel have told me I intend to allow this appeal.

The worst thing about it is that the Magistrate appears to have acted without jurisdiction. There is no jurisdiction given to him under the Maintenance and Affiliation Act to make any order for custody. There is no jurisdiction given to him to make any order for custody except under the Matrimonial Causes Act and then either in the context of a divorce petition or leave granted for a custody application by itself. In case I am wrong about that, I am satisfied that the Magistrate in any event should not have made this order on its merits. He acted on the slimmest evidence. He acted without hearing the other party. There was no urgency shown in the affidavit of the Applicants. What was at stake was the interest and welfare of a child.

The next worst thing is that the Applicants the father and grandfather did not regularize the interlocutory relief they had obtained by filing any substantive action at all. Neither did the mother for her part file any motion to set aside what the Magistrate had done or file any other substantive proceedings inter partes.

The next worst thing is the delay that has occurred until today. The Magistrate set the matter down for 26 May, and could have rectified his action by 26 May 2005 or even earlier had the matter been brought before him. The Court is now faced with it on 21 July 2005. The child is with his father and grandfather. I do not say whether that is right or wrong, but legally the action that placed him there was wrong at law. On the merits it was done without sufficient evidence on an ex-parte application and in my view without sufficient evidence for a change in the custody of the child. It could not be said on the evidence before the Magistrate to be in the child’s best interests. Both parties should have been heard first. No urgency was shown.

I declare the Magistrate’s order to be a nullity. In case I am wrong then out of caution if the order is indeed valid it is discharged.

The child may legally reside with either parent. I am not in a position to make any decision about the best interests of the child. I make the order allowing the appeal. I am unable to make the order sought for the return of the child to his mother. I am unable to make the order sought for interim maintenance. Even if I did I would be repeating the error of the Magistrate.

It is for the parties to decide what they wish to do. For a legal remedy they must go back to the Magistrate’s Court. In my opinion, unless there are special circumstances, the child’s grandfather has limited rights and without good reasons should not interfere in the matter.

By consent I make an order for $500.00 costs to the Appellant.

Postscript

After announcing that decision I became aware of the judgment of the Court of Appeal in Roxy Motorparts Ltd [in liquidation] and Another –v- Habib Bank Limited Civil Appeal No. ABU0060 of 2004, Judgment 15 July 2005. I commend the clear statements of the Court of Appeal to all persons considering ex-parte interlocutory proceedings.

D.D. Finnigan
JUDGE
At Lautoka
21 July 2005