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High Court of Fiji |
IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION
CIVIL APPEAL NO. HBA0005 OF 2000L
MUKESH KUMAR & ANOR
V
VIJAYANTIMALA
Gates J.
Mr Anu Patel for the Appellant
Mr V. Mishra for the Respondent
8 October 2003
JUDGMENT
Introduction
[1] This is an appeal in a divorce matter where the main ground of complaint is of the refusal to grant an adjournment when the appellant’s counsel had withdrawn, and of hearing part of the case in the absence of the appellant. Other grounds allege improper evaluation of evidence, the reaching of conclusions without evidence, non-fulfilment of section 58 of the Matrimonial Causes Act, and insufficient evidence of means for the making of a maintenance order. The appellant seeks a retrial.
[2] The appellant was the respondent in the lower court. He was the husband of the Petitioner. I shall refer to the parties in this judgment as the Petitioner and the Respondent.
[3] On 18 July 1984 the parties were married in Lautoka and from 1986 to 1989 they lived at Ravouvou Street. The Petitioner was aged 18 years at the time of the marriage. They had one child, Moushami, who was born in 1992. She suffered from episodic asthma and had to receive treatment in New Zealand occasionally, and regularly has to take medication.
[4] The Petitioner worked with the Respondent helping to build up the Respondent’s Tyre, Spare Parts and Motor sales business. She had given up a previous job to do so. She received no pay for this work. She was a Director and Company Secretary of the family company.
[5] The business prospered. Various properties were purchased from this prosperity and all were registered in the name of the Respondent. Savings were made and a $500,000 Life Insurance Policy taken out. The couple were financially comfortable.
[6] The couple were to relocate their residence to 8 Cumpoy Place, a property with three apartments which the Respondent had purchased. In 1998 the Petitioner, as agreed, moved into an apartment there with the child. The Respondent did not. The marriage then broke down as the Respondent started associating with the Co-Respondent. The Magistrate described the relationship of the parties thereafter as acrimonious. An application was made for a restraining order by the Petitioner early in 1999, and the police had to be contacted.
The Magistrates Court Proceedings
[7] On 3 February 1999 a summons was taken out by the Petitioner at the Lautoka Magistrates Court for the hearing of her divorce petition. The petition cited as grounds, adultery, cruelty and constructive desertion. Previous proceedings were given as Maintenance Case No. 88 of 1998, whereby a maintenance order had been made for payment by the Respondent of $50 pw for the child. At the time of filing of the petition, the Respondent was in default.
[8] At the hearing on 26 August 1998, the Petitioner gave formal evidence of adultery, a ground admitted in the Respondent’s
answer. Evidence was not given of the ground of cruelty. The Petitioner gave full evidence of the properties owned by the Respondent,
her daughter’s medical condition, matters concerning custody, access (which she did not resist), of her financial needs, and
expenditure, and details of the family business and of its earnings. The Respondent did not cross-examine the Petitioner nor did
he adduce evidence or make submissions. I shall return to this aspect further on.
[9] In concluding her judgment the Magistrate said:
"Given these circumstances the Court finds the Petitioner to have proved the ground of adultery against the Respondent and is satisfied that proper arrangements have now been made for the welfare, education and advancement of the child of the marriage and makes the following orders that:
The Appeal
[10] The Magistrate’s decision was delivered in court on 16 November 1999. The Petitioner was present with her counsel. The Respondent was present without counsel.
[11] On 17 November 1999 a Notice of Appeal was filed said to be pursuant to Order XXXVIII Rule 1 of the Magistrates Court Rules Cap. 14. On 30 November 1999 Grounds of Appeal were filed, stamped received 1.12.99. A stay application was made in the Magistrates Court and refused on 13.12.99 on grounds of the Respondent’s failure to purge his contempt, the non-payment of maintenance ordered in the decision. The Magistrate relied on Anand Kumar Singh v Esteen Urmila Singh (unreported) Lautoka High Court Civil Case No. 6 of 1988; 6.11.90. Saunders J said this of the non-payment of maintenance in that case:
"Petitioner is in contempt of Court. He has failed to pay maintenance ordered by the Court to be paid for the children. Hadkinson v. Hadkinson (1952) 2 All ER page 567 is in point. Although disobedience of an order of the Court is not of itself a bar to the Petitioner being heard, his disobedience is such that, so long as it continues, it impedes the course of justice in the cause by making it more difficult for the Court to enforce the orders which it may make, particularly as it affects the children. This Court, in its discretion, refuses to hear him until the impediment is removed."
[12] The Magistrates Court proceedings for divorce and ancillary relief were brought under the Matrimonial Causes Act Cap. 51. Appeals from decrees made under that Act can be brought to the High Court by virtue of section 91(2). Section 62 is not, with respect, the applicable appeal provision, as suggested. Even if "or any other circumstance" were not to be construed ejusdem generis with "miscarriage of justice by reason of fraud, perjury, suppression of evidence", the section would appear to provide access to the court for cancellation of a decree in the limited circumstances when the decree can be shown to have been obtained illicitly or improperly. The High Court is empowered [section 91(3)] to affirm, reverse, or vary the decree appealed against and may –
"(a) make such decree as in its opinion should have been made at first instance or on appeal, as the case may be; or
(b) order a rehearing at first instance on such terms and conditions, if any, as it thinks fit."
[13] No rules having been made for appeals under the Act, Order 55 of the High Court Rules applies. Appeals are re-hearings therefore and are to be brought by originating motion.
[14] A preliminary point was taken on the appeal by Mr Mishra. It was said that the co-respondents had not been served. I ruled at the time that they should have been: Gillooly v Gillooly [1950] 2 All E.R. 1118. The English Court of Appeal held there was a right for the wife to appear as a respondent to an appeal, though she had not defended herself by answer to the petition or at the hearing. Early in the proceedings in the instant case the Co-Respondent, who had been served, was represented by counsel. Later, no interest was taken in the proceedings, nor attendance made for judgment. Had the Co-Respondent wished to be heard on the appeal I would have heard her. The issues in the appeal appeared to have no bearing on her interests, in contrast to the wife in Gillooly who wanted to be heard on the merits.
Is Contempt a Bar to Further Proceedings?
[15] Mr Mishra also urged that the principles of Hadkinson v Hadkinson [1952] p.285 should prevent the Respondent from being heard. It was said the Respondent owed, at the time of the appeal hearing, $1,211 for maintenance. At p.289 Romer LJ said: "... no application to the court by such a person will be entertained until he has purged himself of his contempt." The contempt occurs in the same proceedings between the same parties: Clark v Dew [1829] EngR 748; [1829] 39 ER 40: Bettinson v Bettinson [1965] 1 All ER 102.
[16] However one of the three exceptions to this rule is when an applicant seeks to set aside an order upon which his alleged contempt is founded. This was not the case in Hadkinson, but it did apply in Ravind Kumar v Sulochana Devi (unreported) Lautoka High Court Civil App. No. HBA0009D.93L; 29 March 1996 before Lyons J. It also is the case here.
[17] In Hadkinson Denning LJ said (at p.295)
"I need hardly say that it is very rare for this court to refuse to hear counsel for an appellant. No matter how badly a litigant has behaved, nevertheless, generally speaking, if he has a right of appeal, he has a right to be heard; for the simple reason that, if he is not heard, his right of appeal is valueless."
[18] At p.298 Denning LJ concluded:
"It is a step which a court will only take when the contempt itself impedes the course of justice and there is no other effective means of securing his compliance."
[19] In Leavis v Leavis [1921] P.299 the court refused to permit the respondent to proceed with a stay application on the ground that the court was not satisfied he was unable to comply with the orders to pay costs and alimony. Hill J. said (at p.301):
"I have come to the conclusion that it is a matter of discretion for the Court to consider, upon all the circumstances of the case, whether the summons of the respondent should be heard and that it is matter material to the exercise of that discretion to consider whether those circumstances are due to the fault or to the misfortune of the respondent. In the present case I am quite unable to perceive any cause of the present position but the fault of the respondent."
[20] It must not be imagined that a party ordered to make maintenance payments by a magistrate has a right to ignore the order on the ground that he or she disagrees with the decision and intends to appeal. The obligation is to obey first. It was summarised by Romer LJ in Hadkinson (at p.288) in these words:
"It is the plain and unqualified obligation of every person against, or in respect of whom, an order is made by a court of competent jurisdiction, to obey it unless and until that order is discharged. The uncompromising nature of this obligation is shown by the fact that it extends even to cases where the person affected by an order believes it to be irregular or even void."
[21] Where the orders of the court make provision for a child’s welfare the rule is even more strict. Romer LJ went on to say (at p.292):
"Where, however, the order relates to a child the court is (or should be) adamant upon its due observance (cf. the recent case of Corcoran v. Corcoran12). Such an order is made in the interests of the welfare of the child and the court will not tolerate any interference with or disregard of its decisions upon these matters. Least of all will the court permit disobedience of an order that a child shall not be removed outside its jurisdiction.
[22] Failure to pay maintenance for a child’s welfare may be thought to impede the course of justice less than the removal of a child out of the jurisdiction in defiance of a court order, but it is nonetheless a serious impediment to justice. It is a significant factor also to be taken into account when considering how to exercise the discretion whether or not to hear an appeal such as this, which seeks orders of setting aside and re-trial. A child cannot be left dangling unprovided for whilst enforcement proceedings are undertaken. The court’s machinery and process is frequently too slow to achieve a sufficiently acceptable and safe remedy. The phrase used by Denning LJ was "no other effective means of securing his compliance" (Hadkinson p.298).
[23] Denning LJ summed up the position (at p.298):
"Applying this principle I am of opinion that the fact that a party to a cause has disobeyed an order of the court is not of itself a bar to his being heard, but if his disobedience is such that, so long as it continues, it impedes the course of justice in the cause, by making it more difficult for the court to ascertain the truth or to enforce the orders which it may make, then the court may in its discretion refuse to hear him until the impediment is removed or good reason is shown why it should not be removed.
The present case is a good example of a case where the disobedience of the party impedes the course of justice."
[24] Because the non-provision for the child’s welfare and the failure to comply with the court’s order can be regarded adversely as factors of the utmost significance, an applicant can anticipate that a court will not advance his or her case until compliance is attended to. The onus will be upon the would-be appellant to satisfy the court, once non-compliance is raised, that there has indeed been compliance. This has not been done. The community expects that the courts will prevent children becoming the deprived by-products of failing marriages, and will prevent one party becoming marooned with an unlawful, one sided, and unfair responsibility for child support.
Not According Right to Counsel
[25] This ground was expressed as "not giving the appellant sufficient time to engage another counsel" [Ground 1]. On 4.3.99 when the matter became inter partes the Respondent was present in court. On that day Mr Gordon appeared for both the Co-Respondent (his client) and the Respondent (Mr A.K. Narayan’s client). The matter was stood down for dates suitable to Mr Narayan to be obtained. Later the hearing date was fixed for 18.5.99. Mr Mishra said there had been two breaches of the interim order for the child’s maintenance and he was considering contempt proceedings.
[26] Mr Narayan appeared at mentions on 8.4.99 and on 27.4.99, when there was talk of possible settlement on the motion. The matter was put off till 30.4.99. Meanwhile the Respondent filed an Answer and Cross Petition on 22.4.99. Counsel told the court on 30.4.99 that there were Orders in Terms to be signed by both parties which would be filed with the court on 3.5.99.
[27] On 18.5.99, the day fixed for the hearing, the Respondent was present with his counsel. Mr Narayan sought an adjournment. He said he had not been able to serve the 1st party cited, the Terms had not been filed, and the child was to be examined by a doctor. The matter was stood down twice during the morning whilst the parties haggled over maintenance for the Petitioner. It was agreed eventually that there be a consent order for interim maintenance for the Petitioner in the sum of $50 and the interim order for the child of $50 be extended. Accordingly the hearing was postponed and set down for a whole day hearing on 26.8.99.
[28] The parties and their counsel attended for the hearing on 26.8.99. Mr Narayan sought another adjournment. Mr Narayan initially raised matters to do with the child’s doctor’s appointment, and late notification by the Petitioner’s solicitors of a document of which they required proof. The real thrust of the application however was that Mr Narayan was double booked. He had a trial in the High Court. He said he was unable to brief another counsel. The application was naturally opposed by the Petitioner’s counsel.
[29] The Magistrate ruled that she would proceed with the hearing as fixed. In her ruling she noted that the case had been set down 3 months in advance, it was the only case in the list for that day, and no notice had been given to the court of the application. She observed that another counsel could have been briefed. She was prepared to start the case and adjourn in order to hear the New Zealand witness. The Respondent’s counsel then asked to withdraw and was given leave to do so.
[30] The case was stood down till 11.30 am. At 11.30 am the Respondent again attended but without alternative counsel. The trial commenced. The Petitioner gave her evidence in chief. When it was the Respondent’s moment to cross-examine, he asked the court for an adjournment since he wanted counsel to be present. It was not clear from this whether he meant to continue with Mr Narayan on the adjournment date, an occasion when Mr Narayan would not be double-booked, or whether he was to engage a fresh counsel. The Magistrate has recorded that she ruled (p.221):
"In fairness to Respondent, court should adjourn. It is no fault of his that his solicitor let him down, so will adjourn now. Time is about 4 pm."
[31] The continuation was set for 2.9.99 at 11.30 am, and a social welfare report on custody and access ordered.
[32] If at all possible, a court will strive to see that a litigant can run his case with his choice of counsel. It is not an absolute right. It is an obligation to permit, not to ensure, legal representation: Robinson v The Queen [1985] 1 AC 956 at p.973. In criminal proceedings the Accused has a right under the Constitution to be defended by a legal practitioner. The Magistrates Courts Rules for civil proceedings refer throughout to the representation of litigants by legal practitioners. Those rights can be presumed to carry with them choice also.
[33] The Bill of Rights in Chapter 4 of the Constitution allows for choice of legal practitioner also [see for a detainee, section 23(3)(d) right of consultation, and section 23(3)(f) right of representation before a tribunal; for arrested or detained persons section 27(1)(c) for right to consult, or section 27(1)(e) right of representation to challenge unlawfulness; and section 28(1)(d) right of charged persons to be defended or even to have a lawyer provided free under a scheme for legal aid].
[34] The Fiji Law Society Code of Ethics at 5.6 states:
Subject to the provisions of this Code, a barrister should conduct cases in such manner as in his discretion he thinks will be most to the advantage of his client.
[35] That same Code made in 1984 adopted the International Code of Ethics (as amended) Mexico City 1964. Rule 6.10 from the International Code provides:
A lawyer should only withdraw from a case during its course for good cause, and if possible in such a manner that the client’s interests are not adversely affected.
[36] This statement finds echo in the Schedule to the Legal Practitioners Act [19 of 1997] which deals with conflicts where a practitioner is likely to be a witness but who may exceptionally continue to act if "withdrawal from the matter will jeopardise the client’s interest" [Rule 3.04(iv)].
[37] In Avinash Chandra Pillay v The State (unreported) Misc. Case No. HAM026.03S; 4 July 2003, applicant’s counsel did not appear on a bail application. For three court dates, counsel was said to be in turn, ill, injured by a moth, or appearing in the Nadi Magistrates Court. Shameem J. accordingly proceeded in defence counsel’s absence. Counsel was however allowed time to file written submissions, an order with which he complied. Her ladyship observed (p.2):
"It is unfortunate that in this case, counsel for the Applicant did not appear to argue his client’s case. I have had to proceed to judgment on the basis of his written submissions and the oral submissions of his client. His conduct in this case constitutes more than discourtesy to the court, it amounts to a derogation of counsel’s duty to his client."
[38] It is an essential part of that duty that counsel should avoid withdrawing during, or at the commencement of, a trial so as not to jeopardise his client’s case: Shiu Narayan v Reginam [1980] 26 Fiji LR 165 at p.178. That case cited the rule adopted by the General Council of the Bar in England which was set out in Archbold’s Criminal Pleading and Practice (4th ed.) at para. 350(a): "1. It is the paramount duty of defending counsel to ensure that an accused person is never left unrepresented at any stage of his trial". The duty is no different in civil proceedings.
[39] In this matter the Respondent had previously been granted a postponement of trial. The postponement date had been set down with the consent of the Respondent’s counsel and in the Respondent’s presence. The Respondent could not complain that he did not know of this fixture, months in advance, or that he did not have ample time to prepare his case, and arrange the attendance of his witnesses (if any). It was the only case in the list. It was a special booking, a proper factor for the court to take into account: GSA Industries P/L v NT Gas Ltd [1990] 24 NSWLR 710 at p.713 per Kirby P.
[40] Such cases are notoriously ones where Respondents may wish to put off the evil day, the day when orders of maintenance and property settlements are likely to be made. Courts must properly bear in mind the possibility that a party seeking an adjournment may also be reluctant for the case to reach conclusion.
[41] To mitigate the effects of the withdrawal of the Respondent’s counsel and the fact that the case was to proceed that day, the Magistrate indicated she was prepared to adjourn during the trial to allow for the attendance of the Respondent’s witness from New Zealand. At first she stood the matter down till 11.30 am. This would have allowed about 2 hours for the engagement of another counsel, perhaps with assistance from Mr Narayan’s office.
[42] The issues on the Petitioner’s petition no longer concerned adultery, which the Respondent had admitted. From his meetings with Mr Narayan, the Respondent would have known what issues remained in dispute and what evidence was to be adduced. The main issues appeared to be matrimonial finances, maintenance payments, and property settlement. Custody and access were not in any serious dispute.
[43] The Respondent would have been fully aware of all of the facts concerning the family business and matrimonial finance, as well as the details of the acquired real estate and bank accounts. At the end of the first day the Magistrate granted the Respondent a further short adjournment of a few days in order to allow him another opportunity to obtain counsel: Shiu Narayan (supra). In the circumstances, I am satisfied that the Magistrate did not deny him his right to counsel: cf. Frank Robinson v The Queen (supra).
The Medical Certificates
[44] On 2 September 1999 on the resumption of the hearings there was no appearance by counsel for the Respondent and none by the Respondent. An employee from the Respondent’s business attended and presented a medical certificate citing painful arthritis. This certificate apparently did not contain the doctor’s opinion that the Respondent was "not fit to attend court". Mr Mishra for the Petitioner objected to it. He also suggested that the Respondent was not a person to be believed. He cited the Respondent’s sworn affidavit on 21.4.99 in these proceedings wherein he had denied that a conviction for throwing object had been confirmed by an appeal court. Mr Mishra produced a copy of the judgment in question of Jayaratne J. of 7.2.89 in support of his contention that the Respondent should not be believed on his incapacity. This showed that the conviction had been confirmed, though the sentence of immediate imprisonment had been reduced to one of a suspended term.
[45] The Magistrate accepted the objection and sent a message back to the Respondent that the case, listed for 11.30 am that day, would proceed at 2.15 pm. At 2.30 pm another employee of the Respondent’s attended with another certificate. This medical certificate did state that the Respondent was not fit to attend court that day. But the certificate did not comply with the Criminal Procedure Code Form 62 imposed by the CPC (Forms) (Amendment) Rules 1998 [Legal Notice No. 116 of 1998] Rule 2(2) of which states:
"(2) Form 62 must be used when a person is required to attend court, in order to provide the appropriate evidence to enable a court to excuse his or her absence on grounds of ill-health."
[46] In appropriate and exceptional circumstances a court could accept evidence of unfitness to attend court in some other form. It should be cautious however before doing so. The Magistrate regarded the use of the medical certificates as another delaying tactic to draw out the proceedings. She therefore ordered the case to proceed. In the circumstances here, did the Magistrate exercise her discretion not to accept the certificates correctly?
[47] The Petitioner testified, as Mr Mishra had foreshadowed, that she had seen the Respondent in the Magistrates Court registry the day before. He was walking up the steps. The day before that she had seen him in the High Court building. He was walking, and "there was nothing wrong with his walk". Whilst she had lived with him during the period from 1982 to 1998 he had not suffered from arthritis. "He hardly ever went to the doctor", she said, "as he was never sick".
[48] The 1998 CPC form was no more than a formal procedure by which the doctor could address the correct issues. In Chandra Datt Sharma v Reginam (unreported) Suva Criminal App. No. 21 of 1979; 16 March 1979, Grant CJ found that the Magistrate had exercised his discretion properly in refusing to accept a medical certificate. The certificate had simply stated the appellant was suffering from chest pain, and was unfit to work. There was evidence, as here, from one side only, that the appellant was seen doing something not suggestive that he was incapacitated from attending court.
[49] Grant CJ said at p.3:
"It will be noted that the medical certificate states that the appellant is unfit for work. It does not state that he is unfit to attend court; and it hardly needs stating that a man who may be unfit to work may be well able to attend court."
[50] His lordship referred to the case of Ram Sundar v Reginam (unreported) No. 100 of 1978 and cited part of the judge’s observations:
"I regard the magistrate as being quite in order in refusing to treat the sick note in question as a valid excuse for not attending. Vague documents of this kind should not be encouraged as a mode of deferring court proceedings. One has to bear in mind that the prosecution have to be ready with witnesses and an adjournment can be expensive as well as very inconvenient to the witnesses and others."
[51] Grant CJ concluded (at p.4):
"I fully agree with the approach of the learned Judge, as those with experience in the courts know how easy it is for an accused person, or a witness, who wishes to avoid attending court on the date fixed for the hearing of the case, to obtain a medical certificate; and it is in the discretion of the Magistrates Court whether or not to accept same."
[52] His lordship said: "There is no rule of law or practice that a Magistrate must accept a mere medical certificate". The Magistrate had had the opportunity of seeing and observing the Respondent. She was within her rights to reject the certificate as unconvincing: In re M (An Infant) [1968] 1 WLR 1897; Dick v Piller [1943] 1 KB 497 at p.499. In Intaz Ali v Zohra and Ano (unreported) Fiji Court of Appeal Civil App. No. 77 of 1981; 30 July 1982 Speight JA delivering the judgment of the court said (at p.8):
"These matters all concern the refusal to adjourn the matter because of the supposed illness. It is said and here we condense grounds sub-paragraphs (a) – (d) that the Judge improperly ignored the medical certificate and that by so doing he deprived the defendant of an opportunity to be heard. The answer to this is purely factual. The Judge heard witnesses describing the apparent state of good health of the defendant at the time when he was according to the certificate supposed to be ill. The Judge adjourned the matter for a day because of the unsatisfactory nature of the situation so that the defence could put in better proof. This was not done to his satisfaction. He was charged with assessing the situation as it then appeared to him to be and he concluded that the defendant was evading and that the certificate which had been obtained was of doubtful veracity.
It can also be said that the subsequent wilful evasion by the defendant of the very fair terms on which the adjournments were granted and notices given of continued hearings vindicates the assessment made by the learned Judge that the defendant was an evasive prevaricator."
[53] As was made plain in Chandra Datt Sharma and in Intaj Ali, a litigant aggrieved at a decision made in his absence must first follow the remedy of seeking to have the orders set aside before the court that made them [see Magistrates Court Rules Cap. 14 Order XXX r.5; Rule 279 Matrimonial Causes (High Court) Rules Cap. 51. In Intaj Speight JA commented (at p.9):
"The Court had inquired of counsel why the matter came before it as an appeal against a matter which had been finally heard ex parte. There is ample provision in the Rules for a defendant who has not been heard to apply for a judgment obtained by the default or ex parte to be set aside."
The Discretion to Adjourn
[54] The Respondent claims the refusal to adjourn the continuation on 2.9.99 constituted a miscarriage of justice [Ground 2]. He claims the discretion was exercised incorrectly, and thereby there was a breach of natural justice [Ground 3].
[55] An appeal court can review a decision of an inferior court which has refused an adjournment. In Re Yates’ Settlement Trusts [1954] 1 All E.R. 619 Sir Raymond Evershed MR said of this jurisdiction (at p.621):
"There is, I think, no doubt that, if a judge adjourns a case, just as if he refuses an adjournment of a case, he has performed a judicial act which can be reviewed by this court, though I need not say that an adjournment, or a refusal of an adjournment, is a matter prima facie entirely within the discretion of the judge. This court would, therefore, be very slow to interfere with any such order, but, in my judgment, there is no doubt of the jurisdiction of this court to entertain appeals in such matters."
[56] In GSA Industries (supra at p.715) Samuels JA said:
"The refusal to grant an adjournment is a classic exercise of judicial discretion. Hence it is only in rare circumstances that it is amenable to review by an appellate court."
See too Maxwell v Keun [1928] 1 KB 645 at p.653 per Atkin LJ.
[57] In the instant case, the Magistrate had allowed an adjournment for the Respondent to cross-examine the Petitioner. In that time he could have briefed fresh counsel, or reverted to his previous counsel or he could have continued to conduct the case himself. But no counsel appeared for him on the resumption day and no counsel for judgment, and no counsel to seek to set aside the order refusing the adjournment. It is possible to conclude he never intended to brief counsel for the continuation. The Magistrate did not accept his medical certificates and it is to be inferred from them that he himself did not intend to take further part in the proceedings. No injustice flows from such a choice. He was allowed access to the well but chose not to drink.
[58] The Magistrate’s discretion did not fail. The conclusion she reached was a matter for her having taken all of the circumstances into account. No material has been pointed to which she incorrectly took into account. The inference of an intention to delay the proceedings was properly open to her. This is not a case where an appellate court must substitute its own view of the matter. Further adjournment was not necessary to avoid injustice as was the case where the plaintiff sought to put in vital evidence in a Workmen’s Compensation case, the Respondent’s manager called as a witness being less than helpful: Jones v S.R. Anthracite Collieries Ltd [1921] 124 LT 462. The Respondent had sufficient opportunities to present his case, with or without counsel, and he failed to avail himself of them. This ground fails.
The Property
[59] It is said there was no evidence or insufficient evidence that the family company had made substantial profits from which various properties were acquired during the marriage [Ground 5]. Complaint is also made of the evaluation of this evidence and that the orders in respect of property settlement were inequitable [Ground 6]. Finally it is claimed there was no evidential basis for accepting the Petitioner’s evidence regarding the matrimonial property [Ground 7] or of the acquired properties [Ground 8]. These grounds may be conveniently dealt with together.
[60] The Petitioner was examined in chief by her counsel at the hearing. She gave the composition of the shareholding of the family company, Chase Corporation. It had been operating since 1988 and her husband, the Respondent ran it. He had 90% of the shares, and with her and one other, comprised the Directors. The Petitioner had 5% of the shares. She was also involved in the running of the company from 1989 to 1998, and was the company secretary. She worked daily from 8 am to 5 pm unpaid, and attended to banking, invoices, and also worked in the shop.
[61] The Petitioner gave evidence of the profitability of the company. Some of the figures related to trading 3 years prior to the trial. She exhibited a balance sheet for the year 1996 and gave directors fees of $34,368 for 1995 and $53,000 for 1996, all for the Respondent. She gave evidence of contracts with PWD, vehicles, 17 trips overseas by the Respondent, and of properties purchased during the marriage. All of this suggested a growing and prosperous family business. No evidence is before me to suggest otherwise, nor has it been suggested that the Petitioner has been untruthful in stating the properties were purchased from funds acquired since the marriage. The evidence was properly evaluated. These grounds fail also.
[62] Ground 9 also fails. This alleges section 58 of the Act was not complied with. There was more than sufficient evidence before the Magistrate that the child of the marriage was being cared for, and that proper arrangements were being made for her welfare and education. There was no evidence of the Petitioner’s prior adultery brought to court. Though no order was formally made, it is to be inferred by the Magistrate’s findings, judgment and orders that the cross-petition of the Respondent stood dismissed.
[63] Similarly the Magistrate did have evidence before her, albeit minus the Respondent’s contest, that the Respondent was in a position to meet a maintenance order for the child of $100 per week. From the standard of living followed by the parties and from the special health requirements of the child, it was within bounds for the Magistrate to make the order for maintenance that she did. I find the arrangements for division of property to have been equitable and fair.
[64] The appeal is dismissed in its entirety, with costs to the Petitioner of $1,000. All orders of the Magistrate are confirmed. The decree nisi is also confirmed and is to be made absolute forthwith. The Respondent is to attend to orders V and VI forthwith, the transfer of title to the Petitioner of Native Lease 21213 [8 Cumpoy Place] and the settlement of the mortgage debt owing on that property.
Orders accordingly.
A.H.C.T. GATES
JUDGE
Solicitors for the Appellant: Messrs S.B. Patel & Company, Lautoka
Solicitors for the Respondent: Messrs Mishra Prakash & Associates, Lautoka
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