Daniels v Daniels

• Jurisdiction: Guyana
• Judge: George, J.,BOLLERS, C.J.,MITCHELL, J.
• Judgment Date: 20 June 1969
• Neutral Citation: GY 1969 HC 14
• Court: High Court (Guyana)
• Date: 20 June 1969

High Court (Full Court)

Bollers, C.J.; Mitchell, J.; George, J.;

Daniels

and

Daniels

Appearances:

R. McKay for the appellant.

B. DeSantos for the respondent.

Divorce - Application for re-hearing — Roman-Dutch Law — Procedure — By motion to single judge — Matrimonial Causes Ordinance Cap. 166 s. 2(1), 12(1), 31 — Matrimonial Causes Rules Cap. 166 r. 53 — Federal Supreme Court (Appeals) Ordinance 1958 No. 19 of 1958 ss. 9 — 13.

The appellant applied by summons to a judge in chambers to have a decree nisi of divorce which was granted to the respondent set aside. In her affidavit in support she said that after being served with the petition she at the respondent's request (i) resumed co-habitation (ii) informed her lawyers that she was no longer defending the suit as the parties were reconciled. The respondent agreed to discontinue the proceedings he had started. On hearing that the respondent was granted a decree nisi ex parte, the appellant removed from the matrimonial home. The judge in chambers declined jurisdiction. On appeal.

• HELD: that (i) in these circumstances a court exercising a Roman-Dutch common law jurisdiction would order a rescission of the decree and a re-hearing of the petition.

• (ii) applications for re-hearing should be made to a single judge by motion in open court and not by way of summons in chambers.

George, J.

1 This is an appeal from the decision of a judge in chambers, who declined jurisdiction on an application by way of summons by the appellant to have the decree nisi in a matrimonial cause which was obtained by the respondent on the 2nd October, 1967, set aside. The other substantial relief which she sought, and which is really complementary of the first, was that she be at liberty to serve and file an entry of appearance and an answer to the petition.

2 The following facts were disclosed in the appellant's affidavit in support of her summons: A copy of a petition for divorce was served on her on the 21st June, 1967. The following day she consulted a legal practitioner and made arrangements to defend the suit. A few days later, and before any action had been taken to this end her husband, the petitioner, requested that they resume cohabitation. This they did on or about the 9th July, 1967. He also asked her to instruct her legal advisers that she no longer proposed to proceed with the suit as they had reconciled their differences. He further intimated to her that he would discontinue the proceedings he had instituted. Her affidavit further stated that she and the respondent lived and cohabited in the same house until the 18th October, 1967, when she left the matrimonial home after learning that he had obtained a decree nisi, ex parte, on the 2nd October, 1967. This decree she contended was obtained without her knowledge and further stated that if she had known that the respondent had intended to proceed with the petition she had every desire to defend it and would in fact have done so. The respondent in his affidavit by way of reply denies all that the appellant had deposed to.

3 The issue involved in this appeal is not whether or not the appellant's allegations are true but whether assuming their truth a judge sitting in chambers has the necessary jurisdiction to adjudicate.

4 The trial judge in his written ruling had this to say:

“The main ground on which her application rests as revealed in her affidavit in support is that there was condonation following on which there was a resumption of cohabitation. This was brought about she says by a ruse on her husband's part…”

5 After stating the facts on which the ruse was based, he proceeded to examine the legal position and came to the conclusion that the appellant was not a person who could properly invoke the jurisdiction of the High Court to have the decree set aside. His conclusion was based on an examination and analysis of s. 12 of the Matrimonial Causes Ordinance, Cap. 166. Great reliance was placed on the case of Squires v. Squires [1959] 2 All E.R. p. 85. In this case a decree nisi was granted to the wife (petitioner) on the 7th July, 1958, on the ground of cruelty. The husband did not defend the suit but was represented by counsel at the hearing. After the decree nisi had been handed down, he issued a summons requiring the wife to show cause why it should not be rescinded. The ground on which he based his application was that since the decree nisi, and between the 4th and 23rd August, 1958, they had resumed cohabitation and that sexual intercourse had taken place between them on various dates between that period. Accordingly he claimed the cruelty had been condoned and that there had been an effective reconciliation. It was assumed that an application for a rescission was in fact one under s. 12(2) of the Matrimonial Causes Act, 1950 (U.K.), and in this regard STEVENSON, J. had this to say at p. 91:

“The present summons is in form a summons to rescind the decree. No point has been taken that the form of this summons disqualified it in itself from being considered as a possible proceeding under s. 12(2)”.

6 The relevant portion of s. 12(2) of the Matrimonial Causes Act, 1950 is in the same language as s. 12(1) of the Matrimonial Causes Ordinance, Cap. 166. It reads as follows:

“… any person shall be at liberty … to show cause why the decree should not be made absolute by reason of its having been obtained by collusion,, or by reason of material facts not brought before the court”.

7 The court in Squires v. Squires construed the words “any person” in the U.K. Act as not applying to a respondent, and the learned trial judge followed this decision.

8 The rationale for the inclusion in legislation on matrimonial causes of a provision such as s. 12(1) has been aptly put by Lord MERIVALE, P, in Sloggett v. Sloggett (1928) P. 148: a suit based on adultery. He said that,

“It is a matter of public interest that a decree for dissolution of marriage should not be obtained on evidence which has been manufactured so as to indicate adultery where none in fact has taken place”.

9 In other words, the function of the section is to ensure the protection of the public which is presumed to have an interest in ensuring that the marital status is not changed contrary to the justice of the case or as a result of collusion, or withholding any other material fact from the court's attention.

10 Besides sub-s. 1 of s. 12, sub-s. 5 empowers the Attorney General to intervene for similar reasons; and I have no doubt that if facts such as those in Squires v. Squires were brought to his attention, he would not hesitate to take action under the latter subsection. If, therefore, these two provisions are the only ones in the Matrimonial Causes Ordinance empowering a challenge of a decree nisi in the High Court, then the learned trial judge was correct and the appellant's case must fail, notwithstanding that she alleges that the respondent obtained the decree by means which would amount to fraud. (See Ogilvie v. Ogilvie, 9 W. I. R371). I accordingly now propose to consider whether these are in fact the only provisions which enable proceedings to be brought in the High Court to set aside a decree nisi.

11 The general jurisdiction of the High Court in matrimonial causes is set out in s. 2(1) of the Matrimonial Causes Ordinance, Cap. 166. This subsection reads as follows:-

“Subject to any...