Chand v Wati [2006] FJCA 15; ABU0076.2005S (24 March 2006)

IN THE COURT OF APPEAL FIJI ISLANDS
ON APPEAL FROM THE HIGH COURT OF FIJI

CIVIL APPEAL NO. ABU0076 of 2005S
(High Court Civil Action No. HBA007 of 2004L)

BETWEEN:

RAVI CHAND
Appellant

AND:

ANMOL WATI
Respondent

Coram: Ward, President
Stein, JA
Ford, JA

Hearing: Tuesday, 21 March 2006, Suva

Counsel: Ms A. Seruvatu for the Appellant
Mr S. Shah for the Respondent

Date of Judgment: Friday, 24 March 2006, Suva

JUDGMENT OF THE COURT

Introduction

[1] The appellant appeals against a judgment of the High Court (Connors J.) dated 10 August 2005 which upheld a maintenance and property order made against him in the Magistrates' Court at Lautoka on 16 October 2003. Section 12(1)(b) of the Court of Appeal Act (Cap.12) gives a general right of appeal to this Court from any decision of the High Court under the Matrimonial Causes Act (Cap.51).

[2] The matrimonial property order made by the magistrate awarded the respondent a 40% share in the matrimonial home and domestic chattels to be held under constructive trust. The maintenance order varied an earlier consent order of the court dated 10 December 2001 by requiring the appellant to pay further maintenance in the sum of $80 per week.

[3] In his decision, the magistrate also dissolved the marriage and made other orders none of which were in contention in the High Court apart from an order awarding aggravated damages against the appellant in the sum of $30,000.00. At the outset of the High Court appeal, the respondent conceded that there was no provision in the Act allowing for an award of aggravated damages and so the appeal in the High Court proceeded on the maintenance and matrimonial property issues only.

The Background

[4] The couple were married on 16 December 1977. They have two children, a son born on 15 January 1979 and a daughter born on 7 January 1983. The respondent left the matrimonial home on 7 August 2001 and in March 2002 she petitioned for divorce upon the grounds that since the marriage the appellant had, "habitually been guilty of persistent cruelty towards her." At the hearing the son gave evidence in support of the respondent and the magistrate found the cruelty allegation "proven beyond reasonable doubt".

[5] There is one other background matter which needs to be referred to because it figured prominently in submissions before us and, from what we gather, in argument in the courts below. The respondent had given evidence in the Magistrate's Court that on 14 February 2001 the appellant had given her $40,000.00 which was for her own personal use but it was not maintenance. In his written submissions, counsel for the respondent referred to the payment as a "Valentine's gift". The respondent told the court that she was "kicked out" of the family home on 7 August 2002 but on the previous day, 6 August, the appellant had ordered her to go to the bank and she was then made to transfer the $40,000.00 back into his account. She said that she made the transfer but, after consulting a womens' group, she instructed the bank to stop the transaction.

[6] In relation to this evidence, the magistrate said:

"The petitioner stated after being beaten one-day, the respondent told her to meet him at the bank. She went. At the bank the respondent told her to sign the transfer $40,000.00 given by him on 14/2/01, which then she (had) in her account. When she refused, he started to swear and shout at her in the bank. She obviously was forced to sign. Later she went and lodged a complaint to the Womens' Rights Movement. At the Nausori Magistrates' Court, she did not see the magistrate when she wanted to. It appears that there had been an element of duress wielded on the petitioner by the respondent and that at the said magistrates' Court the facts of how the money was given to her was not presented to the magistrate. And curiously, the $40,000.00 given to the petitioner on 14/2/01 was made into a maintenance order dated 10/12/01 some 10 months later."

The Appeal

[7] There are six substantive grounds of appeal in the appellant's written grounds of appeal but counsel, sensibly, accepted that the appeal could be reduced to two issues, namely, the assessment of maintenance and the division of the matrimonial property.

The Maintenance Order

[8] In essence, the appellant's principal submission in relation to the appeal against the variation of maintenance order was that maintenance had already been dealt with by the consent order made in the Nausori Magistrates' Court on 10 December 2001. Paragraph (ii) of the consent order stated:

"That the amount of $40,000 (forty thousand dollars), given by the Defendant, to the Complainant to keep in her own account, with the Bank, shall be given solely to the Complainant for her personal use, and maintenance."

[9] Although the order does not specifically describe the payment as a lump sum maintenance payment, it seems clear that that is how it was regarded by the resident magistrate who signed the order and we have not been persuaded that there is any reason to treat it otherwise. No application has ever been made to set aside the consent order.

[10] The appellant acknowledged that there is express power in section 87 (2) of the Matrimonial Causes Act to increase or decrease an amount ordered to be paid by a court order but he stressed that in terms of the legislation, before varying an existing order, the court needed to be satisfied:

"(a) that, since the order was made or last varied, the circumstances of the parties or either of them or of any child for whose benefit the order was made, have changed to such an extent as to justify its so doing; or

(b) that material facts were withheld from the court, or the magistrate's court, as the case may be, or material evidence previously given before such court was false."

[11] The appellant submitted that these requirements had not been satisfied in the present case and, in particular, that there was no evidence to support the finding that the respondent's circumstances had changed to such an extent as to justify the increased maintenance award

[12] In response, counsel for the respondent submitted that the appellant ought to have known that the consent order of 10/12/01 "was not a final maintenance order or lump sum payment as respondent could knock (on) the door of the court . . . " The respondent further submitted that grounds had been established justifying an increase in the maintenance payable under the consent order and the judge had considered the evidence and concluded that the magistrate was entitled to form the views that he had formed with respect to the need for maintenance.

[13] The particular grounds counsel for the respondent referred to in this regard as justifying an increase in maintenance since the consent order was made are those set out in the following passage from the penultimate paragraph of the magistrate's decision:

" Then she said she is now renting in Lautoka with her two children. She is not working. Since the consent order was made she has been living on that money. She had developed body pains, hence her requests for maintenance. She recalled that the respondent received $489 a fortnight when they were together. From this discussion, the court is of the respectful view that there has been (1) change in circumstances; (2) improprietary or inadequacy of the consent order in that there was the element of duress and undue influence on the petitioner; and (3) omission of evidence in that the petitioner waited to see the magistrate but did not to fully present the facts. With respect, I find there is ground for variation of the maintenance consent order, in that the respondent to pay further maintenance in the sum of $80 a week effective immediately."

[14] In relation to this passage from the magistrate's decision, counsel for the respondent was unable to point to any evidence supporting the statement that the respondent "had developed body pains, hence her requests for maintenance." The respondent made no statement in her evidence in chief about her health. In answer to a question in cross-examination she said that she suffered headaches and backache but she had never sought medical help. We cannot see how this one answer would justify the statement made by the magistrate.

[15] Likewise, counsel was unable to identify any passage in the evidence supporting the magistrate's findings of "improprietary or inadequacy of the consent order." We can only conclude that in making his reference to "duress" and "undue influence", the magistrate had in mind the undoubted duress the respondent had been subjected to by the appellant at the bank on 6 August 2001 but that conduct cannot be carried over so as to taint the legality of the consent order made on 10 December 2001.

[16] There was no evidence before the court as to the circumstances surrounding the making of the consent order. It would appear that the respondent was unrepresented at that stage but, in the absence of persuasive evidence to the contrary, we can only assume that the magistrate who signed the consent order would have taken the normal precautions to satisfy himself that, as an unrepresented litigant, the respondent did truly consent to the making of the order. As we have observed, there is no evidence to the contrary and no attempt has ever been made to have the consent order set aside.

[17] Quite apart from those observations, it would appear from the transcript of evidence that by the time of the actual hearing, the respondent may well have been having second thoughts about her claim for maintenance. Nowhere in her examination in chief, for example, does she give evidence as to her needs and means in relation to maintenance. The figure of $80 per week appears to have been plucked out of the air.

[18] The following exchanges which then followed in cross-examination would seem to indicate that all the respondent was seeking at the time of the hearing was a divorce and a matrimonial property settlement:

Page 103 of record:

"Q. You are in court because you want money?

A. I want a divorce and matrimonial property."

Page 105 of record:

"Q. You filed the divorce proceedings you want more money from my client?

A. That is not the case. My children are over 18. They are working. I received $40,000.00.

Q. The matrimonial property, you want the property.

A. Yes. . . . . .

It is not true that I need more money. I don't have any place to stay that is why I need the property settlement."

[19] Given these exchanges in cross-examination and the other misgivings we have expressed regarding the matters relied upon for varying the consent order, we fail, with respect, to see how the magistrate could conceivably have reached the conclusions he did. To that extent, we disagree with the judge's findings that upon the material before him, the magistrate was entitled to form the views that he did in relation to maintenance.

[20] The position we have reached is akin to that described in the following passage from the often cited case of Coghlan v Cumberland [1898] UKLawRpCh 74; [1898] 1 Ch 704:

"Even where, as in this case, the appeal turns on a question of fact, the Court of Appeal has to bear in mind that its duty is to rehear the case, and the court must consider the materials before the judge with such other materials as it may have decided to admit. The court must then make up its own mind, not disregarding the judgment appealed from, but carefully weighing and considering it; and not shrinking from overruling it if on full consideration the court comes to the conclusion that the judgment is wrong."

[21] We have come to the conclusion that the judgment under appeal was wrong in so far as it upheld the variation of maintenance order made by the magistrate.

Matrimonial Property

[22] The appeal against the award to the respondent of a 40% share in the matrimonial property can be disposed of relatively briefly. The property in question (the former matrimonial home) comprises of two flats at Waqadra, Nadi. We were told from the Bar that they return a net income of $900 per month.

[23] The appellant's principal submission under this ground of appeal reads:

"That the learned magistrate did not have the requisite jurisdiction in law to make an order for distribution on a 60/40 basis pursuant to s. 86 of the Matrimonial Causes Act as the jurisdiction to make such orders rests in the High Court."

[24] That statement is clearly wrong. Section 86 sets out the powers of the court in proceedings with respect to the settlement of property and section 11(1)(b)(iii) of the Act specifically authorises the institution of settlement proceedings under section 86 in the Magistrates' Court.

[25] Counsel for the appellant advanced no other submissions in support of the property ground of appeal apart from objecting to the judge's decision to make a variation to the terms of the magistrate's order. The variation is dealt with in the following passage of the judgment:

"Order 5 which currently reads "The petitioner is entitled to 40% share of the matrimonial home and domestic chattels in the matrimonial home in Waqadra, Nadi, and that the respondent hold the same under constructive trust for the Petitioner" is varied by the addition of "such entitlement shall include 40% of the net income from the property."

[26] In his notice of appeal, the appellant objected to the additional wording because no cross-appeal had been filed on this issue by the respondent.

[27] The additional words do not add anything to the substance of the original order. The legal position is that a person who holds an interest in property on a constructive trust is a constructive trustee in respect of that interest. He cannot claim for himself any profits earned by that interest.

[28] We suspect that the judge included the additional words out of an abundance of caution so as to ensure that the parties, as lay persons, would understand that the respondent's 40% interest in the property created by the constructive trust automatically included the 40% interest in the rental income.

Orders

[29] The appeal against the High Court judgment of 10 August 2005 affirming the variation of maintenance order is allowed and the order dated 16/10/03 awarding the respondent an additional $80 per week is quashed with effect from today's date.

[30] The appellant has paid $2,100.00 into this court on account of arrears of maintenance. We understand that the issue of arrears is presently being addressed in proceedings before the Lautoka Magistrates' Court. We order that the said sum of $2,100.00 is to be transferred from this court to the Magistrates' Court at Lautoka and is to be treated as a payment by the appellant in settlement of, or on account of, arrears as the case may be.

[31] The appeal against the matrimonial property order is dismissed.

[32] Given the nature of the case and the fact that the appellant has been only partially successful, we make no order as to costs.

Ward, President
Stein, JA
Ford, JA

Solicitors:
Messrs. Patel Sharma and Associates, Suva for the Appellant
Sheik H. Shah ESQ, Labasa for the Respondent