Faruk v Begum [1987] FJSC 8; MISC 025.1986 (25 September 1987)

IN THE SUPREME COURT OF FIJI

Miscellaneous Proceedings Cause No. 25 of 1986

BETWEEN:

MOHAMMED FARUK
Petitioner

AND:

SHAHNAAZ BEGUM
Respondent

Mr. H. Lateef for the Petitioner.
Mr. G.P. Lala for the Respondent.

RULING

In September 1984, the petitioner brought an action for divorce in the Magistrate's Court at Suva (Matrimonial Cause 265/84). The respondent filed an answer denying the alleged matrimonial offence, but, seeking orders for the custody and maintenance of herself and the children of the marriage. In an amended answer filed on the 20 August 1985 the respondent also prayed for an order that the petitioner settle property for the benefit of herself and the children pursuant to Section 86(1) of the Matrimonial Causes Act (Cap. 51).

On the 1st August 1986 the matter came up before Mr. M.C. Rai, a magistrate. He received submissions from counsel regarding the jurisdiction of the magistrate's court to make orders under Section 86(1) where the value of the property to be settled is in excess of the ordinary civil jurisdiction of that court.

The magistrate reached the conclusion that it was not the intention of the Matrimonial Causes Act 1982 (No. 6 of 1982) to give magistrate's courts extended jurisdiction in matrimonial cases to settle property irrespective of its value. He therefore, decided on the 2nd September 1986 to state a case for the opinion of this Court on the following question.

"Have magistrates' courts jurisdiction under section 86 of the Matrimonial Causes Act to settle the question of a matrimonial property the value of which exceeds the amount restricted by section 16 of the Magistrates' Courts Act."

From a note on the record it appears that the magistrate acted under section 91(4) of the Act. The relevant subsection reads:

"91.- (1) ....

(2) ....

(3) ....

(4) Without prejudice to the right of appeal conferred by subsection (1), a magistrate (other than the District Officer, Rotuma) may reserve for consideration by the Supreme Court, on a case to be stated by him, any question of law which may arise at the hearing before him of proceedings under this Act, and may make a decree in such proceedings subject to the opinion of the Supreme Court; and the Supreme Court may determine any such question with or without hearing argument."

On the 11 August 1986, the magistrate adjourned the proceedings sine die pending the decision of the Supreme Court on the case stated to it. On the 25 September, I expressed the view in a minute to the Chief Registrar that there was no need to adjourn the hearing of the petition as the opinion of this Court was required in respect of ancillary relief only and an order may be made by the magistrate subject to that opinion.

Subsequently the magistrate heard the action and I am advised that he found that the ground for dissolution of the marriage was not proved and he dismissed the petition.

Counsel for both parties agree that section 89 of the Act precludes he magistrate from making an order under section 86 as the petition has been dismissed. The case stated on a matter of law upon which the opinion of the Court is required was properly made at the time. If the Court were to state its opinion now, it would not benefit either party. The opinion of this Court is of no value unless it is binding on inferior courts. The problem presented by the case stated is that there is no longer a lis pendens.

In Tindall v. Wright 127 L.T. 149 a Divisional Court held that it would not decide an academical question, as their decision would be merely obiter, since the appeal must in any event, be dismissed. The judgment reads at 152 -

"Lord Hewart C.J. - In this case, Mr. Wootten, with his usual frankness, has drawn the attention of the court to the fact that, even if we saw our way to enter upon the second question raised by the case stated, there is a decision, which he is not prepared to seek to distinguish, upon the first point raised by the case stated, and which is conclusive against him. In these circumstances, if we were to enter upon the problem, however attractive it may be, whether this carriage was in fact a hackney carriage at this time within the meaning of the Finance Act 1920, we should be offering a decision, at the request of the parties, which would be essentially in the nature of an obiter dictum and would not be binding upon any other court. The court does not see its way to take the course which is proposed, and I will mention only two reasons for our abstaining. No doubt it does seem a little flaw on the first view of the matters in which the parties upon the one side and upon the other side desire that a particular problem should be solved although the case from which it arises is disposed of in another way - that this court should refrain from entering on the inquiry and giving a decision. But in the first place the decision so given might easily lead not to enlightenment but to embarrassment for those who have to consider a similar problem afterwards. In the second place it is one of the duties of this court to set an example to inferior courts. If an inferior court were to take the course which we are now being invited to take, it is not disputed that the decision of that court might be, and ought to be, open to review, and it might well be removed by certiorari. In those circumstances, in my opinion, it is not desirable, even though there may be an occasional exception to the contrary, that we should in this matter depart from what I conceive to be a general rule binding upon this court and observed by it when any question of this kind arises."

It follows that if I were to express any views on the question raised by the case stated I would be going beyond my proper function and they would not assist in the solution of the problem raised.

I therefore decline to make any order.

(F.X. Rooney)
JUDGE

Suva,
25th September, 1987.