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IN THE HIGH COURT OF FIJI
AT LABASA
REVISIONAL JURISDICTION
LABASA MATRIMONIAL CAUSE NO. 7 OF 1997
BETWEEN:
JAMES DONOVAN
s/o Khem Raj
Petitioner
AND:
FANE SIVOKI
Respondent
Mr. A. K. Singh for Petitioner
. Chand for Respondent
ORDER ON REVISION
The learned Nausori Magistrate V.D. Nadakuitavuki Esq., acting on his own motion and under the provisions of Sections 32 and 37 of
the Magistrates' Courts Act, Cap.14 has referred this Matrimonial Cause file to me for this Court's consideration as he has with respect discovered certain irregularities
in the manner in which the divorce proceedings were instituted by the Petitioner and dealt with by the learned Magistrate Moses Fernando
Esquire at Magistrate's Court, Labasa.
Factual Background
Although the parties live in Suva/Nausori area the divorce action was instituted by the Petitioner at Magistrate's Court at Labasa;
Decree Nisi was granted by the said Court on 20 February 1997 and Decree Absolute was pronounced in Labasa Court on 21 March 1997.
The custody of the three children was granted to the Petitioner.
Since the Respondent removed these children from the Petitioner's flat at Samabula, a Motion was filed on 2 April 1997 at Magistrate's
Court Nausori for the writ of 'habeas corpus ad subjiciendum' to issue to produce the two children before the Nausori Court.
Matter for determination
The learned Magistrate at Nausori asks this Court to review this case on question of law, under the provisions of Section 37 of the
Magistrates' Courts Act, Cap. 14.
He feels that there is a miscarriage of justice and he makes certain observations in his memorandum of 6 May 1997 addressed to this
Court.
After this matter was referred to me for my consideration, counsel for the parties were asked to appear before me which they did.
The sole purpose was to obtain their views on the apparent irregularities.
Petitioner's counsel's view
Mr. A. K. Singh, who now appears for the Petitioner, agreed that custody order was not properly made. As for divorce proceedings he
said that it was handled by counsel in Labasa. He said that since the parties are from Nausori "perhaps proceedings should have commenced at Nausori Magistrate's Court". Mr. Singh said that he is not sure if the Petitioner has remarried.
Respondent's counsel's view
Mr. R. Chand for the Respondent said that his client could not afford to go to Labasa for divorce proceedings. He says that there
should have been a Probation Officer's Report before any order was made for the custody of children.
Consideration of the issues
Under the powers conferred upon the High Court by the said section 37 I have considered the issues raised by the learned Magistrate.
Section 37 provides:
"37. In addition to and without prejudice to the right of appeal conferred by this Act, a magistrate may reserve for consideration
by the Supreme Court, on a case to be stated by him, any question of law which may arise on the trial of any suit or matter, and
may give any judgment or decision subject to the opinion of the Supreme Court, and the Supreme Court shall have power to determine,
with or without hearing argument, every such question."
Firstly, I find that in this case since the parties reside in the Suva/Nausori area and there are three children involved the Petition
should have been filed in the Eastern Division and not in the Northern Division.
Under s32 of the Magistrates' Courts Act, which provides as follows, the learned Magistrate at Labasa ought to have reported to the High Court the pendency of this Petition
for he could not possibly have heard it as it was outside his Magisterial Division:
"32. Subject to the provisions of the Criminal Procedure Code, a magistrate may, of his own motion, or on the application of any person concerned, report to the Supreme Court the pendency of
any cause or matter which in the opinion of such magistrate ought for any reason to be transferred from his court to any other magistrates'
court or to the Supreme Court. The Supreme Court shall direct in what mode and where the cause or matter shall be heard and determined."
Secondly, on the affidavit evidence before the Nausori Court the Respondent strongly refutes the ground of desertion stating that
the separation was as recent as 22 February 1997 when the Respondent was being forced to leave their matrimonial home.
Thirdly, I find that the Petitioner failed to disclose in his Petition that he had committed adultery with one SITERI FISHER sometimes
in the year 1996 at Labasa as to enable the Labasa Court to exercise its discretion in the matter as provided under s.27 of the Matrimonial Causes Act, Cap. 51.
Fourthly, the Probation Officer's Report should have been obtained before making an order for the custody of the children.
Having considered the facts there is no doubt that the Petition for divorce should have been filed at the Magistrate's Court at Nausori
as the parties reside in the Eastern Magisterial Division. The Magistrate's Court at Labasa is without jurisdiction to hear the petition.
Under Reg.4(1) of the MATRIMONIAL CAUSES (MAGISTRATES' COURTS) RULES it is as provided:
"4-(1) Subject to the provisions of the Act and these Rules, proceedings for dissolution of marriage and for judicial separation
may be instituted by filing a petition, addressed to the Supreme Court, in the Court nearest to the place where the petitioner or
the respondent ordinarily resides."
On this aspect I would refer to NEWCOMBE v AME PROPERTIES LTD and Another (Sup. Ct of W.A. (Full Court) 1995 125 FLR 67 at 68) where it was held, "the commencement of proceedings without leave, where leave was required, constituted a nullity and the Writ was properly set
aside" (POUNTNEY v GRIFFITHS 1976 AC 314). In that case there was a statutory provision that "an applicant to seek leave of the District Court before commencing such proceedings". MALCOLM C.J in NEWCOMBE (supra at 76) said:
"An application for an Order to set aside the writ as having been issued in relation to a matter beyond the jurisdiction of the
Court is an entirely appropriate procedure to adopt: cf ROTHMANS OF PALL MALL (Overseas) Ltd v SAUDI ARABIAN AIRLINES CORPORATION
(1981) Q.B. 368
By analogy in the light of the said provisions of Reg. 4(1) I would adopt the same view in the case before me.
In a case where decree absolute has been made, although there is no equivalent provision as in s62 for rescission of decree nisi on
ground of miscarriage of justice, I find that in this case there has been a miscarriage of justice by reason of instituting the proceedings
in the wrong Division, by suppressing the fact of adultery on the part of the Petitioner thus preventing the Court from exercising
its discretion before making an order for decree nisi and by the failure of the learned Magistrate is not obtaining "all available facts relating to the children of the marriage" before making an order under section 58.
The said section 62 provides:
"62. Where a decree nisi has been made but not become absolute, the court may, on the application of a party to the proceedings,
if it is satisfied that there has been a miscarriage of justice by reason of fraud, perjury, suppression of evidence or any other
circumstances, rescind the decree and, if it thinks fit, order that the proceedings be reheard."
On the requirement to report facts relating to children of marriage Section 58 provides, inter alia:
"58. - (1) A decree nisi of dissolution of a marriage or of nullity of a voidable marriage does not become absolute unless the
court, by order, has declared that it is satisfied-
