In re Case Stated [2001] VUSC 68; Civil Case 028 of 2001 (6 July 2001)

IN THE SUPREME COURT OF

THE REPUBLIC OF VANUATU

(Civil Jurisdiction)

CIVIL CASE No.28 of 2001

IN THE MATTER OF:
Case Stated on Referral to Supreme Court for Opinion by a Magistrate

Coram: Chief Justice Lunabek

Counsels: Mr. Kalkot Mataskelekele for the Petitioner

Mr. Stephen Joel, Public Solicitor, for the First Respondent (not appearing)

Ms Jennifer La’au for the Second Respondent

Date: 6 July 2001

CASE STATED ON REFERRAL TO SUPREME COURT

This is a case stated by Magistrate Obed Alilee for the consideration of the Supreme Court on a question of law arising from a civil trial before the learned Magistrate in accordance with Section 11(1) of the Courts Act [CAP.122].

The question posed by the Magistrate on 16 January 2001 are:

1. Whether the Magistrate’s Court has jurisdiction to hear a Petition for a nullity of the marriage under the Matrimonial Causes Act [CAP.192]; and

2. The interpretations of sections 1(c) and 2 of the Magistrate’s Court (Civil Jurisdiction) Act [CAP.130] which are particularised as follows:

(a) Does “judicial separation” in Section 1(c) of the Magistrate’s Court (Civil Jurisdiction) Act [CAP.130] includes “Nullity of Marriage”?

(b) Do the restrictions in Section 2 of the Act [CAP.130] include suits concerning Nullity of Marriage, as a matter related to or part and parcel of “Civil Status” suits?

Section 11 of the Courts Act [CAP.122] provides:

“11(1) A Magistrate may at his discretion reserve for the consideration of the Supreme Court on a case to be stated by him any question of law which may arise on the trial of any criminal or civil proceedings. The Magistrate shall not deliver his judgment on the proceedings before him until he has received the opinion of the Supreme Court and the Supreme court shall have power to determine every such question with or without hearing argument.

(2)…”

The case was then listed on 14 June 2001 at 2.00pm to hear submissions from counsels. On 14 June, no counsels and parties appear. The matter is then adjourned to 22 June 2001 for counsels’ submissions at 1.30pm. One of the counsels did not appear. The matter was then adjourned to 6 July 2001 at 10.00am o’clock as a final adjournment. On 5 July 2001 the Public Solicitor, on behalf of the First Defendant, sent a fax message to the Court indicating that he would not be available and the hearing be rescheduled. On 6 July 2001, the Court proceeds with the matter.

I am informed by both counsels (Mr. Kalkot Mataskelekele and Ms Jennifer La’au) that the learned Magistrate has already ruled that he has jurisdiction to hear a “nullity of marriage” suit.

After the ruling, then, he proceeds to hear evidence.

This is consistent with what the learned Magistrate say in his letter of 16 January 2001 to the Supreme Court of Vanuatu seeking the Supreme Court’s opinion on the case stated by him. The learned Magistrate says:

“When I started hearing the case (Nullity of Marriage), I was sure that it fell within the Magistrate’s Court’s jurisdiction. As the trial drew on, I am not so sure anymore.”

I am of the view that that is the position. The Magistrate has already made a ruling that he has jurisdiction to hear the Nullity of the Marriage Petition. There is no question for the Supreme Court to consider on that point. To clear the doubt I consider the following for future course/event.

From the outset, by perusing the relevant Sections of the Matrimonial Causes Act [CAP.192], Section 19(5) seems to confirm that the Magistrate has jurisdiction to entertain a Petition for Nullity of Marriage.

In effect, Section 19(5) of the Matrimonial Causes Act [CAP.192] says:

“In any proceedings for Nullity of Marriage, evidence on the question of sexual capacity shall be heard in camera unless in any case the Magistrate is satisfied that in the interest of justice any such evidence ought to be heard in open Court.” (Emphasis added)

The remaining two (2) questions asked are as follows:

(a) Does “judicial separation” in Section 1(c) of the Magistrate’s Court (Civil Jurisdiction) Act [Cap.130] include “Nullity of Marriage”?

The answer is: NO.

(b) Do the restrictions in Section 2 of the Act [CAP.130] include suits concerning Nullity of Marriage, as a matter related to or part and parcel of “Civil status” suits?

Section 2 of the Magistrate’s Courts (Civil Jurisdiction) [CAP.130] does not make express reference to “Nullity of Marriage” as a matter covered by the restrictions thereunder. The answer is: NO.

If there is any uncertainty or conflict between the provisions of the Magistrate’s Courts (Civil Jurisdiction) Act [CAP.130] and those of the Matrimonial Causes Act [CAP.192], as stated then, the provisions of the Matrimonial Causes Act being those of the recent law will prevail as reflecting the new intention of Parliament to this effect.

I am, therefore, of opinion that the learned Magistrate must proceed with the case pending before him and deliver his judgment as a matter of urgency.

DATED at PORT-VILA, this 6^th DAY of JULY, 2001

BY THE COURT

LUNABEK Vincent

Chief Justice