Hanghangkon v Hanghangkon [2004] FJHC 520; HBA0022J.2002S (23 January 2004)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL APPEAL NO. HBA0022J OF 2002S

BETWEEN:

AARON HANGHANGKON
of 30 Sawau Street, Suva, Student.
APPELLANT

AND:

KESAIA HANGHANGKON
of 143 Ragg Avenue, Namadi Heights, Suva, Domestic Duties.
RESPONDENT

Counsel for the Appellant: D. Sharma: R. Patel & Co.

Counsel for the Respondent: Ms U. Fa-Tuituku )
): Law Solutions
Adi K. Nailatikau )

Date of Judgment: 23.01.04
Time of Judgment: 10.00 a.m.

JUDGMENT

This is an appeal under the Matrimonial Causes Act (Cap 51) from the Magistrates’ Court, Domestic Court Division.

The Appellant is a national of Vanuatu. On 13 May 1983 he married the Respondent, a Fiji national, in Port Vila, Vanuatu. According to the Respondent’s Petition in the Court below, the Appellant and Respondent, as husband and wife, cohabited in Port Vila between May 1983 to 1998, thence to Suva between 1998 to June 1999 and again from October 2000 to January 2001. There are five (5) children from the marriage.

On 28 March 2002 the Respondent filed her Petition in Suva for dissolution of the marriage on the ground of the Appellant’s adultery. Amongst other things, the Respondent’s in her Petition sought the full custody of all the children with excess to the Appellant and:

'(d) that in the Petitioner’s absence from this jurisdiction at any time, her parents JEKE VAKARARAWA and MERE KAU be appointed guardians of the said children of the marriage.

(e) Maintenance of $200.00 per week in respect of the five children of the marriage, effective from 1 January 2001.

(f) That the Mitsubishi Dual Cab Utility motor vehicle registration No. DF 241 (Mitsubishi L200) registered under the Respondent’s name to be transferred to the Petitioner forthwith.

(g) In respect of the matrimonial assets:

• (i) That the two vacant blocks of land in Tassriki, Port Vila, Vanuatu described in Lease Title 11/0D42/054 to be transferred solely to the Petitioner and the matrimonial home be transferred to the Respondent; and
  

(ii) That the fixed term deposit held in the ANZ Bank account No. 387145 to be shared equally between the Petitioner and the Respondent on a 50/50 basis.'

Presumably by the time the matter was ready to proceed, the Appellant had returned to Vanuatu. An ex-parte motion for substituted service was filed and granted by the Court on 5 June 2002 allowing a Notice of the proceedings against the Appellant, to be published in the Port Vila 'Trading Post' newspaper. An affidavit of proof was filed by the Petitioner on 26 July 2002. In the meantime, in a faxed letter dated 9 July 2002 to the solicitors for the Petitioner, the Appellant requested that copies of the Summons and the Petition as well as Notice of Motion be sent across to him in Port Vila. The Petitioner’s solicitors obliged on 11 July 2002. There followed three (3) more call days in which the Court was able to verify that service on the Respondent had been effected at Vanuatu by advertisement. The Court finally heard the matter on 26 August 2002 in the absence of the Respondent. There was only one witness called in favour of the Petitioner. The witness who is the Petitioner’s nephew, testified to the Respondent’s adultery on various occasions, while offering himself to the Court to be the guardian of children of the Petitioner.

The Petitioner herself, testified that she remained with her five children in her parents house. From the sketchy records of the Court, this Court is able to ascertain that the cost of maintaining the Petitioner and the children is $200.00 per week, the rent is $350.00 per month, the school fees amounts to $600.00 per term. The Petitioner is unemployed but some evidence is given to the Court to the effect that the Petitioner is living, at the time of the hearing of the petition, in a de-facto relationship with another, away in Australia, and that the de-facto partner was responsible for paying the children’s school fees. The Petitioner further testified that there were matrimonial property including 2 vacant blocks of land in Port Vila, Vanuatu, and a fixed term deposit held in the ANZ Bank in Port Vila. There was also a motor vehicle (Mitsubishi Dual Cab Utility) registered under the Respondent’s name.

In a very short judgment, the learned Magistrate alluded to the fact that the Respondent, despite adequate opportunities given, still failed to attend the hearing. The learned Magistrate then proceeded, 'After carefully assessing the evidence adduced by the Petitioner and her witness, affidavit in support and submission by the Petitioner’s counsel', to grant the divorce and ordered custody of the children in favour of the Petitioner. The Court further ordered that the two vacant block of land in Port Vila be transferred to the Respondent; that the motor vehicle be transferred to the Petitioner; and that the ANZ fixed term deposit be shared equally between the parties.

On 12 September 2002, the Respondent through Counsel filed its Notice of Intention to Appeal. The ground advanced for the appeal is that 'the learned Magistrate had erred in law and in fact in making the property orders outside the jurisdiction'. He further reserved the right to add further grounds later upon receipt of the Court records. Earlier, Counsel for the Respondent/Appellant had sought from the same Court an Order to set aside or stay the Order of 2 September 2003 on the ground that the Petitioner had not disclosed her own adultery in her Petition, in addition to the out of jurisdiction issue raised in the appeal. The Magistrate correctly ruled that he was functus and therefore no longer had jurisdiction.

GROUNDS OF APPEAL

Counsel for the Appellant first raised the issue of the Respondent/Petitioner failing to disclose to the Court of her adultery at the time of filing of the Petition. He argued that nowhere in the Petition was there any reference to this fact, which she later admitted in her evidence before the Court. The disclosure therefore had only occurred after the Petition had been filed. Clearly the Petitioner, having failed to disclose her adultery at the time of filing of her petition as required by the law, is not entitled to a maintenance order.

The Respondent Counsel in reply submitted that the issue of the Petitioner’s adultery had been brought to the attention of the Court during the hearing. At any rate, Counsel argued, the Petitioners failure to comply can be rectified under Order 2 rule 1 of the High Court Rules.

The requirement that the Petitioner disclose her adultery is clearly set out under Rule 38 of the Matrimonial Causes (Supreme Court) Rules 1971. It states:

'38. Where a petitioner for a decree of dissolution of marriage on a ground specified in any of the paragraphs (a) to (m), inclusive, of section 14 of the Act has committed adultery since the marriage but before the filing of his petition, his petition shall state that the court will be asked to make the decree notwithstanding the facts and circumstances set out in his discretion.'

Section 14 of the Matrimonial Causes Act (Cap 51) (the Act) to which the above Rule refers, sets out the grounds for dissolution of marriage. It includes inter alia, adultery committed by the Respondent to the petition.

In my view, the failure to include one’s own adultery in the Petition as required under Rule 38, is not an omission or oversight that is curable under Order 2 rule 1 of the High Court Rules. It is a requirement of the law that any person who comes before the Court seeking redress, must make full disclosure of all matters and information within her or his knowledge that will assist and enable the Court in arriving at a proper and fair adjudication of the issue before it. Rule 38 goes further. In addition to disclosure of the Petitioner's own adultery, it further requires the petition to plead for the Court'’ favour notwithstanding the admission of adultery. The rationale for the filing by the Petitioner of this so-called discretion statement and the procedures to be followed is clearly set out under Rules 162 to 166 of the Matrimonial Causes (Supreme Court) Rules 1971. It is therefore not enough for the Petitioner to argue, as submitted by Counsel, that adultery was conceded at the hearing.

There is a further factor to be borne in mind relating to this issue. Section 27 of the Act, gives the Court the discretion to refuse to grant a decree of dissolution of marriage, if the Petitioner has committed adultery and not condoned by the Respondent. It is a necessary requirement for any Petition, where the Petitioner has admitted in turn her or his own adultery, that the conditions of Rule 38 are met. In this instance, the Petitioner/Respondent, had not complied with the law in the filing of her petition.

What effect does the non-compliance by the Petitioner have on the proceedings? In the first place, it deprives the Court of the opportunity to exercise its discretion under section 27, whether to grant or refuse the decree of dissolution. It furthermore denies the Court from taking it into account, when considering the issue of maintenance. However, given the fact that in all likelihood the Court would most probably, in the light of the matter being uncontested, have granted the decree notwithstanding the Petitioner’s non-compliance, and there being no Order for the maintenance of the Petitioner, a re-hearing based on this ground would only prove futile.

The second ground for appeal advanced by Counsel is that the learned Magistrate had, by purporting to make orders affecting the ownership of land outside of Fiji, acted beyond his competence and jurisdiction. Counsel for the Respondent argued to the contrary, adding that Vanuatu being a member of the Forum (an organisation of States of the South Pacific), has reciprocal agreement with Fiji with regards of enforcement of judgments in each other’s jurisdictions.

There is no doubt that the Court does possess the power to order settlement of property as between a Petitioner and Respondent. But such power is prima facie limited to the property of spouses who are domiciled within the jurisdiction of the Fiji Courts. It does not extend to any property owned by the party or spouse who is no longer within the jurisdiction or in respect of which the Courts of jurisdiction cannot give an effective judgment (see: Tallack v. Tallack and Broekema [1927] P.211). Reciprocal enforcement of Court Judgments or Orders arrangements referred to by the Respondent are of general application and for which the Reciprocal Enforcement of Judgments Act (Cap. 39) apply. Such arrangements do not apply or extend to protect extra-jurisdictional exercise of powers by our Courts that are intended to dispose of or otherwise settle properties outside of Fiji. Clearly the learned Magistrate had erred in settling the property in Vanuatu.

There is in addition a fixed term deposit held in the ANZ Bank account, the location of which is not clear to this Court. The learned Magistrate had ordered that the deposit be divided equally between the Petitioner and the Respondent. Counsel for the Appellant submitted that in making the Order, the Court paid little regards to the factors that needed to be taken into consideration, including the interests of the children, as provided for under section 86 of the Act.

Lastly the Appellant argued that the learned Magistrate’s powers and jurisdiction extend only to $15,000 being the limit of his civil jurisdiction. Counsel for the Respondent referred this Court to Aisha Bi & Or. v. Mohammed Fida Hussain (1995) FLR Vol.41 85 where the High Court decided (per Pathik J.) that the matrimonial jurisdiction of Magistrates was not confined to the limits of their civil jurisdiction.
This Court agrees with the decision.

There is finally an issue that is of concern to the Court in this appeal. The Court readily concedes that this appeal is made much more difficult by the inadequacy of the records. There are insufficient details of the evidence taken and any subsequent analysis of the same. As a result judgment of the Court will not reveal how and why it had arrived at the decision that it did. It would be useful for example, for the Court to include in instances where they are relevant, the questions asked of witnesses. So too is the assessment made by the Court on the evidence and characters of witnesses. These provide valuable information at the appeal stage.

In the final, this Court is satisfied that there is merit in the appeal. Counsel for the Appellant argued that the matter be heard de novo. However, given the fact that the divorce proceedings had been uncontested, this Court will not disturb Orders (1) (2) and (3) made by the learned Magistrate. Order (4) on the settlement of the joint property (vacant blocks) at Port Vila, Vanuatu is to be vacated and is hereby set aside. I order that the questions of ownership of the utility vehicle and the fixed deposit term held at the ANZ Bank, the subjects of Orders (5) and (6), be and is hereby remitted back to the Magistrate’s Court for the learned Magistrate to take whatever appropriate actions as are deemed necessary, taking into account section 86 of the Act, and after receiving submissions from Counsel.

Costs is awarded against the Respondent to be taxed if not agreed.

F. Jitoko
JUDGE

At Suva
23 January 2004