Nisha v Ali [1993] FJHC 73; Hba0011j.92s (31 August 1993)

IN THE HIGH COURT OF FIJI
(AT SUVA)
APPELLATE JURISDICTION

CIVIL APPEAL NO. 11 OF 1992

BETWEEN:

SHAHIDAN NISHA
f/n Sabar Ali
(Original Respondent/ Complainant)
Appellant

AND

MOHAMMED ASHRAF ALI
f/n Lal Mohammed
(Original Petitioner/ Defendant)
Respondent

Mr. S. Matawalu for the Appellant
No Appearance for the Respondent

Dates of Hearing: 11th February and 7th July 1993
Date of Judgment: 31st August 1993

JUDGMENT

This is an appeal from a decision of the First Class Magistrate's Court at Nausori given on the 6th of April 1992. The Appellant and Respondent were former husband and wife who were divorced in 1987. There are two children of the marriage, a boy Mohammed Faiyaz Asraf Ali who was born on the 22nd of November 1980 and a girl, Shainaz Shabina Shabnam Ali who was born on the 2nd of April 1982.

The Respondent is legal owner of a property situate at 52 Lagakali Road, Kalabo, Nasinu which at all material times has been occupied by the Appellant and her two children with the consent of the Respondent.

In previous proceedings in the Nausori Magistrate's Court, on the 16th of May 1986 an order was made by consent allowing the Appellant to continue to reside in the matrimonial home with the two children of the marriage, requiring the Respondent to pay $5.00 per week maintenance to each of the two children and allowing custody to remain with the Appellant subject to one day weekly access to the Respondent.

On the 7th of November 1986 a further order by consent was made that the Respondent pay the two children an extra $5.00 per week maintenance to each with effect from 11th of November 1986.

On the 13th of September 1988 the Respondent issued a Summons in the Nausori Magistrate's Court seeking an order for immediate eviction from the matrimonial home of the Appellant.

The Appellant filed a defence seeking orders that the Appellant remain with her children in the matrimonial home until the younger child reaches the age of sixteen years and that the Respondent increase maintenance payments to the children to $20.00 per week each.

After several adjournments the hearing of the claim and counter-claim eventually began in the Nausori Court on the 2nd of March 1992 and concluded the same day.

Present counsel for the Appellant made oral submissions to the Court at the end of the evidence which are recorded in the transcript of proceedings in an unintelligible fashion and consist of fourteen cryptic sentences which convey nothing to this Court.

By contrast, counsel for the Respondent made written submissions, five pages long and these were filed in the Court on the 19th of March 1992. Judgment was delivered by the Learned Magistrate on the 6th of April 1992.

After stating what he said were the two main issues in the case namely:

(i) whether the Respondent was prepared to increase maintenance for his two children; and

(ii) that the matrimonial home to be vacated by the Appellant and the two children in favour of the Respondent,

the Learned Magistrate continued as follows:

"After carefully assessing the evidence adduced by both sides, the Court have come to the conclusion that the Defendant/Petitioner in accordance with Sec. 87(1) of the Matrimonial Cause be given his right and justice to the use of this house.

On the other hand and in accordance with Sec. 85(a) & (b) the Court shall regard the interest of the children as the paramount consideration.

For this the Defendant/Petitioner should be in a position to pay for a maintenance to cater for the interest of the two children as indicated in his evidence in chief. He should also give time for the Complainant/Respondent to look for a house to house the two children in question.

The Court therefore ordered:

(1) That the Defendant/Petitioner is to pay $22.50 maintenance per child per week x 2 a total of $45.00 per week.

(2) The Complainant/Respondent is given two months to vacate the house in question and vacant possession be granted to the Defendant/Petitioner by Monday 8th day of June, 1992.

(3) Custody of the two children to continue with Complainant/Respondent (mother) with reasonable access to the father.

(4) Paying of $22.50 maintenance per child to be effected from 8/6/92.

(sgd) E.C. SAUVAKACOLO

MAGISTRATE - NAUSORI"

The Appellant has filed Notice of Appeal against this decision on two grounds namely:

(1) that the Learned Trial Magistrate erred in law and in fact in holding that the evidence supported the Orders made;

(2) that the Learned Trial Magistrate erred in law and in fact in not taking into account the evidence of the Appellant. The Appellant also reserved the right to add and argue further grounds of appeal based upon the Court record.

When the case came before me first on the 11th of February 1993 I was informed by the Respondent's former solicitor and counsel Mr. Chand that the Respondent had left Fiji without giving Mr. Chand any forwarding address. I then directed that written submissions be provided but on the 8th of July 1993 the Civil Registry of this Court received a letter from Mr. Chand stating that he had still been unable to ascertain the whereabouts of the Respondent and had not received any instructions from him. He therefore withdrew from the appeal.

In his submission on behalf of the Appellant her counsel first argues that the judgment being appealed contains no record of the Learned Magistrate's finding of the facts which would enable him to conclude "that the Defendant (Respondent) in accordance with Section 87(l) of the Matrimonial Causes Act be given his right and the justice to the use of his house". Indeed, his counsel also submits, the judgment contains no finding of fact on any issue and it is therefore submitted that on the basis of this omission alone the judgment should not be allowed to stand.

Counsel also submits that at no stage during the proceedings did the Learned Magistrate address the question of the welfare of the children as is required by Part XIII of the Matrimonial Causes Act Cap. 51.

Part XIII of the Matrimonial Causes Act deals with maintenance, custody and settlements. Section 85(1) states that in proceedings in which application has been made with respect to the custody, guardianship, welfare, advancement or education of children of a marriage, the Court shall regard the interest of the children as the paramount consideration and, subject to that, may make such order in respect of those matters as it thinks proper.

Although the Learned Magistrate states that he has regard to Section 85(1) of the Matrimonial Causes Act he makes no specific findings of fact as to the situation of the children but simply ordered that the Respondent increase maintenance payments to them to $22.50 per child per week. In this I consider that the Learned Magistrate erred in not making a finding of fact as to the condition of the two children although it may be possible to assume from his order that he found as a fact that their situation warranted an increase in their maintenance payments.

Furthermore as counsel for the Appellant submits in my judgment the Learned Magistrate erred in law in invoking Section 87(1) of the Matrimonial Causes Act when there were no facts found to support such an action.

Section 87 gives the Court general powers relating to orders for maintenance, the execution of any necessary deed or instrument, and discharging or modifying or reviving any orders previously made. It is just possible that the Learned Magistrate relied on Section 87(1) (l) which gives the Court power to make any other order which it considers necessary in the interests of justice.

If this be so then in my view the Learned Magistrate should have made findings of fact to support his conclusion that the Appellant vacate the matrimonial home.

On this ground alone I uphold the appeal but there is another reason also why I consider the appeal must be upheld and that is the failure of the Learned Magistrate to provide any intelligible record of the submission made to him during the hearing by the Appellant's counsel.

Without such a record it is impossible for this Court on appeal to know precisely what matters weighed or appear to have weighed with the Learned Magistrate when coming to his decision.

For these reasons I uphold the appeal and quash that part of the order of the Magistrate's Court at Nausori of the 6th of April 1992 directing that the Appellant vacate the matrimonial home, the subject of the proceedings. I also order the Respondent to pay the Appellant's costs in this Court and in the Court below.

JOHN E. BYRNE
J U D G E

HBA0011J.92S