Jayatilleka v Jayatilleka [1993] FJHC 59; Hbm0001d.1993s (20 July 1993)

IN THE HIGH COURT OF FIJI
At Suva
Civil Jurisdiction

MISCELLANEOUS ACTION NO. 1 OF 1993

In the Matter of the Matrimonial Causes Act Cap. 51.

- and -

In the Matter of Suva Magistrate Court Divorce No. 4 of 1993.

Between:

TAMARA JANAKI JAYATILLEKA
Petitioner

and

TANTRIGE KITHSIRI R.G. JAYATILLEKA
Respondent

RULING

On the 11th of January 1993 a petition seeking a decree of dissolution of marriage was issued out of the Magistrate Court, Suva on behalf of the petitioner. It was addressed to the respondent who is resident in Sri Lanka.

The petition alleges without any particulars, 'wilful desertion' by the respondent for a period of not less than 2 years and 'persistent cruelty' as the dual grounds for dissolution of the marriage. There is also a prayer for the custody of 2 children of the marriage and for an abridgement of the time when the decree nisi can become absolute.

On the 14th of January 1993 the single page handwritten Magistrate Court record reveals that counsel appeared before the Magistrate Court and verbally requested leave to serve the petition and summons out of the jurisdiction. This was granted along with the returnable dxtended to d to "... 29.1.93 at 2.00 p.m.".

Rule 13 of the Matrimonial Causes (Magistrate Court) Rules

"(1) Unless otherwise directed, a copy of every petition, indorsed with a summons ... issued under the seal of the Court, shall be served personally upon every respondent ..."

and sub-rule (4) provides:

"Service of a copy petition and summons shall be effected not less than 8 clear days before the day appointed in the summons for the hearing of the petition."

Then Rule 16 provides:

"(1) Unless otherwise directed a petition shall not proceed to hearing unless every person required to be served with a copy of the petition and the summons -

(b) is shown by an affidavit (which shall be filed) to have been served with a copy of the petition and Summons personally ...."

and Sub-rule (2) provides:

"(2) An affidavit of personal service shall state the date on which and the place at which the copy of the petition was served and the means of knowledge of the deponent as to the identity of the person served."

In this latter regard there is a faxed copy of an 'affidavit of service' sworn on the 27th January 1993 which purports to evidence personal service on the named respondent of a true copy of the summons and petition in the action on the "twentyth (sic) day of January 1993".

I use the term "purports" advisedly because there are several "defects" in the 'affidavit of service' which clearly contravene the Matrimonial Causes Rules.

For instance, the affidavit speaks of a petition and summons dated 14th January 1993 but the original summons and petition are dated 11th January and 6th January 1993 respectively.

The affidavit contains a date of service which appears to have been altered so as to satisfy the '8 clear days' requirement of Rule 13(4) (op cit). The alteration however does not appear to have been acknowledged or witnessed and in any event is in breach of Rule 290(1)(a) of the Matrimonial Causes (High Court) Rules.

Furthermore this being a process served out of Fiji, the summons ought to have given the respondent 42 days within which to file an answer to the petition if he had so desired (See: Order 11 High Court Rules).

The 'affidavit of service' also failed to disclose "... the means of knowledge of the deponent as to the identity of the person served".

Then there is the not insignificant prayer in the petition:

"3. THAT the time for the granting of the decree Absolute be abridged to a period of one (1) day."

Even accepting that the Magistrate Court has power to make such an exceptional order, Rule 24 of the Matrimonial (Magistrate Court) Rules requires the application, where not made in the presence of the respondent at the time of the hearing, to be made by way of summons supported by affidavit and served on the respondent 8 clear days before the hearing. In this respect too the grant of the order abridging the time is completely unfounded and quite irregular.

Indeed the perfunctory manner in which the Magistrate Court dealt with the petition in disregard of the Matrimonial Causes Rules and the unseemly haste with which the decree nisi was granted leaves one with an unfavourable impression and is an unfortunate reflection on the persons involved in the entire proceedings.

In the present case notwithstanding the technical breaches of the Matrimonial Causes Rules which may be excused, the record of what transpired on the hearing date in the Magistrates Court indicates that no evidence whatsoever was led from the petitioner in support of the petition, as is clearly contemplated by Rule 18(2) of the Matrimonial Causes (Magistrate Court) Rules and Order XXXI of the Magistrate Court Rules, nor does there appear to be any minute on file of the judgment (if any) of the Magistrate Court as required by Rule 21(2) of the Matrimonial Causes (Magistrate Court) Rules.

In the absence of any evidence led in support of the petition or of any judgment in the case it is difficult to understand how the Magistrate Court could have been reasonably satisfied that either of the two grounds advanced in the petition for the dissolution of the petitioner's marriage had been proved as required by Section 56 read with Section 93 of the Matrimonial Causes Act (Cap. 51).

More importantly however in the absence of any evidence as to the whereabouts or present state of the 2 children of the marriage it is difficult to envisage how the Magistrate Court could declare in terms of Section 58(1)(b)(ii) of the Matrimonial Causes Act (Cap. 51) that:

"... proper arrangements ... have been made for the welfare, and, where appropriate, education or advancement of those children".

In all the circumstances having regard to the numerous irregularities in the proceedings and the manner in which the decree nisi was granted, I am satisfied that this is a proper case for this Court, of its own motion, to exercise its powers under Rule 277 of the Matrimonial Causes (High Court) Rules.

Accordingly the decree nisi and decree absolute (if issued) are hereby recalled and rescinded and the 'affidavit of service' and all proceedings thereafter are wholly set aside as irregular. The matter is returned to the Magistrates Court, Suva to be dealt with in accordance with this ruling should the petitioner wish to proceed further in the matter.

(D.V. Fatiaki)
JUDGE

At Suva,
20th July, 1993.

HBM0001D.93S