HIGH COURT OF FIJI (AT SUVA)

CIVIL APPEAL NO. HBA 0024/97

BETWEEN:

EMOSI MOLIVEITAVI RACULE
Appellant

AND:

SALOME TUIVATUROGO
Respondent

S. Matawalu for the Appellant
R. Chand for the Respondent

JUDGMENT

On 25 September 1996 the Appellant (the husband) filed a Petition of divorce against the Respondent (the wife) on the grounds of cruelty. He alleged that the wife’s behaviour had driven him out of the matrimonial home in October 1995 since when the parties had lived separate and apart. The 2 children of the family were said to be aged 18 and 19 at the date of the presentation of the Petition and the only relief sought, apart from the exercise of the Courts discretion in respect of admitted adultery was dissolution of the marriage.

On 15 November 1996 the wife filed an Answer. Her case was that far from the Petition being true it was in fact the husband who had offended throughout the marriage. She alleged regular drunkenness, violence, abusive behaviour, neglect and philandering. She suggested that the petition was but a lame excuse to enable the husband to divorce her and to marry the woman with whom he was living. The wife sought dismissal of the Petition, maintenance, a property settlement and a non molestation order.

On the 5th occasion when the matter was mentioned in the Suva Magistrates Court it was listed for hearing on 7 February 1997.

On 7 February both parties attended but there was no appearance by either Counsel. No explanation for this non appearance has been offered.

The entire record of what then occurred is as follows:

"- 2 children - Respondent admits allegation
Formal Proof

- Form 7 LMS
- Form 6 NSS with mother

Court:

1. Decree Nisi granted and Decree Absolute at the expiry of 30 days from today.

2. Custody of the 2 children of the marriage be granted to the Respondent (mother) with reasonable access to the Petitioner:

3. Petition to pay:

(a) $15.00 maintenance per week per child x 2 - $30.00 per week with effect from today till 2 children are 18 years of age.

(b) Petitioner to pay:

(i) School fees

(ii) Uniforms

(iii) Stationeries

(c)	(i) That the Matrimonial Property and the car be transferred to the two sons names.

(ii) The Respondent (mother) and the two sons to continue occupying the matrimonial property.

(d) Attachment of Earnings Order processed.

Sgd: E. Sauvakacolo
Resident Magistrate"

On 26 September 1997 the following grounds of appeal were filed by Mr. Matawalu:

"The Learned Trial Magistrate erred in law and in fact in making an order or transfer of the matrimonial property and vehicle No. CO 690 to the children of the marriage ... which order exceeds the jurisdiction of the Magistrates Court."

On 12 November 1997 the record was certified. It was then sent to the High Court and the matter came on for hearing on 4 June 1998.

Mr. Matawalu submitted that the Resident Magistrate, by ordering the transfer of the family's matrimonial property had exceeded the limits of his jurisdiction as defined by section 16 of the Magistrates Court Act (Cap 14) (as amended by the Magistrates Court (Civil Jurisdiction) Decree 35/88). He did not refer to Aisha Bi v. Hussein (Civ App 4/94) which is authority for the proposition that the ordinary civil jurisdictional limit does not apply to proceedings for ancillary relief brought under the provisions of the Matrimonial Causes Act (Cap 51).

An even more fundamental difficulty was, however that Mr. Matawalu was quite unable to point to any valuation of the property in question having been placed before the Resident Magistrate; he accepted furthermore the proposition that an appellate court will not, save in the most exceptional circumstances admit fresh evidence available but not adduced at first instance (see generally Ladd v Marshall [1954] 1 WLR 1489; [1954] 3 All ER 745).

As will have been seen from the record of the proceedings on 7 February 1997 set out above it was not only evidence of valuation of property which was wanting: no evidence at all was recorded and no judgment was written. There was in fact a total failure to comply with the requirements for the taking of evidence laid down by section 61(1) of the Magistrates Court Act and for the delivering of judgments as required by section 21(1) of the Matrimonial Causes Act. There was in truth no proper hearing at all. The recorded admission by the Respondent of the matters alleged against her causes considerable unease when taken together with her vehement denials set out in the Answer. The order for maintenance of the children until reaching 18 when they were already over 18 at the time of the hearing does not suggest the exercise by the Court of adequate and due care. What prompted the order for transfer of the matrimonial property (not it should be noted, to the Respondent but to her sons) - is entirely unexplained as was the failure to grant the wife’s applications for maintenance for herself and for a non molestation order.

The whole way in which this divorce was handled was deeply unsatisfactory and gives rise to every serious concerns indeed as to the disposal of matrimonial causes in the Magistrates Courts. Although the Decree Nisi has now become absolute and cannot, in the circumstances be set aside, all the other orders made by the Resident Magistrate must be quashed. The Respondents claims for ancillary relief are remitted to the Acting Chief Magistrate for rehearing.

M.D. Scott
Judge

9 June 1998