Mohammed v Mohammed; Cornwall v Cornwall and Oliver; Paul v Paul; Lewis v Lewis

• Jurisdiction: Trinidad & Tobago
• Judge: Kelsick, J.
• Judgment Date: 17 December 1965
• Neutral Citation: TT 1965 HC 1
• Docket Number: No. 74 of 1965; No. 88 of 1965; No. 92 of 1965; No. 93 of 1965
• Court: High Court (Trinidad and Tobago)
• Date: 17 December 1965

High Court of Justice

Kelsick, J.

No. 74 of 1965; No. 88 of 1965; No. 92 of 1965; No. 93 of 1965

Mohammed

and

Mohammed

Cornwall

and

Cornwall and Oliver

Paul

and

Paul

Lewis

and

Lewis

Appearances:

Sampath-Mehta for petitioner Mohammed.

Panday for petitioner Cornwall.

R. Persadsingh for petitioner Paul and Lewis.

Statute - Interpretation — Meaning of “practice and procedure for the time being in force”. All 3 cases are uncontested divorces. At hearing the petitioners established adultery and the trial judge decided to exercise his discretion in their favour. Important issue to be determined is the meaning to be ascribed to the phrase “the practice and procedure for the time being in force in the High Court of Justice in England” for the purpose of deciding what period of time should be inserted in the decree nisi before which they may be absolute. The phrase means the practice and procedure actually in force in England at the date of the granting of the decrees nisi and accordingly the proper interval between a decree nisi and a decree absolute in Trinidad and Tobago is a period of 3 months as prescribed by reference in the Matrimonial Causes (Decree Absolute) General Order 1946 (S.R. & O. 1946 No.1305) U.K. as amended by the Matrimonial Causes (Decree Absolute) General Order 1957 (U.K).

Kelsick, J.

1 On 3rd December, 1965, I heard the evidence in the above uncontested divorces, and on the facts as I found them I was satisfied that the adultery in the respective petitions had been committed. I so indicated to counsel for the petitioners; and I also intimated that I would exercise my discretion in favour of those petitioners who had filed discretion statements.

2 However I did not then pronounce the decrees nisi, since I was desirous of hearing argument as to the minimum period (to be inserted in these decrees) before the decrees should be made absolute.

3 In Wilberforce Thomas v. Jean Thomas and David Blackman (No. 85 of 1964), judgment in which was delivered on 28th August, 1965, at Port-of-Spain, I fixed this interval at six months. On that occasion I did not have the benefit of argument from counsel for the petitioner, who was not present when the judgment was delivered. On further reflection it appeared to me that per incuriam I had not given consideration to the operation of section 20 (2) of the Judicature Ordinance Ch. 3 No, 1; the effect of which appears to be that the period should be the same as that at present prescribed in respect of such decrees when made by the high Court of Justice of England.

4 Section 9 of our Supreme Court of Judicature Act, 1962 (No.12 of 1962), (hereinafter referred to as ‘the 1962 Act’) reads as follows:–

“There shall be vested in the High Court all such original jurisdiction as in vested in or exercisable by the High Court of Justice in England under the provisions of the Supreme Court of Judicature (Consolidation) Act, 1925, including the jurisdiction —

• (a) in relation to matrimonial causes and matters.”

5 As I pointed out in Thomas' case the jurisdiction of our High Court to grant divorcees a vinculo on the ground of adultery by the respondent spouse is accepted as being derived through the said section 9, from section 176 of the Supreme Court of Judicature (Consolidation) Act, 1925 of the United Kingdom (hereinafter referred to as ‘the act of 1925’). The practice and procedure to be followed in exercising this jurisdiction is laid down in section 14 of the 1962 Act which is in the following terms:–

“The jurisdiction vested in the High Court shall so far as regards procedure and practice be exercised in the manner provided by this act or by rules of Court and where no special provision is contained in this act or in rules of Court with reference thereto any such jurisdiction shall be exercised as nearly as may be in the same manner as that in which it might have been exercised by the former Supreme Court under the Judicature Ordinance.”

6 Other related provisions of the 1962 Act are sections 78 (2) and 80 (1), the relevant parts of which are as follows:–

• “78(2); The Divorce and Matrimonial Causes Rules, 1938 (sic “1932”) …. and any other rules made under any Ordinance shall continue in force with the necessary modifications and adaptations as if made under “section 77” and may be added to amended or revoked by rules of Court made by the Rules Committee under “section 77”.

• “80(1); Save as is otherwise provided by this act or by rules of Court, all forms and methods of procedure which, under or by virtue of any law, custom, general order or rules whatsoever, were formerly in force in any of the Courts the jurisdiction of which is vested in the High Court … and which are not inconsistent with this act or with rules of Court, may continue to be used in the High Court … in the like canes and for the like purposes as those in and for which they have been applicable in the former respective Courts.”

7 Rule 91 of the Divorce and Matrimonial Causes Rules, 1932 (as amended in 1965 by rules set out in G.N. No, 62 of 1965) provides that:–

“In any matter of practice or procedure which is not governed by statute or dealt with by these rules the rules of the Supreme Court in respect of like matters shall be deemed to apply.”

8 There is no specific provision fixing the interval between decree nisi and decree absolute in the 1962 Act or in the said rules of 1932, or in any rules of the Supreme Court, or in any general order or in any prescribed forms. Accordingly we are thrown back by section 14 of the 1962 act on the practice which obtained under the Judicature Ordinance Ch. 3 No. 1 immediately before the commencement of the 1962 Act.

9 Section 23 of Ch. 3 No. 1 provided that:–

“The jurisdiction by this Ordinance vested in the Court shall be exercised so far as regards procedure and practice in the manner provided by this Ordinance or other statutory provision.”

10 Section 20 (2) of Ch. 3 No. 1 stated that the jurisdiction vested in the Supreme Court (including the jurisdiction in matrimonial causes and matters) –

“Shall be exercised as nearly as possible in accordance with the practice and procedure for the time being in force in the High Court of Justice of England, so far as such practice and procedure is not displaced by rules of Court made in pursuance of this Ordinance.”

11 As there were no rules of Court on this subject made in pursuance of Ch. 3 No. 1, the practice and procedure to be applied is that “for the time being in force in the High Court of Justice in England.” That expression can mean either the practice and procedure at the commencement of the Act of 1925, or of section 20 of Ch. 3 No. 1, or the practice and procedure in force at the time of the granting of the decree nisi.

12 In Stroud's Judicial Dictionary Vol. 4 at p. 3030 under the caption “Time Being” the following passage occurs:–

“The phrase “for the time being” may according to its context, mean the time present, or denote a single period of time, but its general sense is that of time indefinite and refers to an indefinite state of facts which will arise in the future, and which may, (and probably will) vary from time to time.”

13 Numerous references are to be found in the statutes of Trinidad and Tobago in which the substantive or adjectival law of England is incorporated by reference end applied to Trinidad and Tobago. Sometimes the law or practice in England is applied simpliciter, or as at a specific date, as in the following Ordinances:–

• (a) The Jury Ordinance Ch. 4 “section 19”:–

  “any matter, which according to the law of England, would be good cause of challenge to the polls shall be a good cause.”

• (b) The Administration of Estates Ordinance Ch. 8 No.1 “section 23”:–

  “the undisposed of residuary estate of such person … shall be distributed …. in the same manner and in the same proportions as the personal estate of such person dying domiciled in England and intestate would be distributed by the law of England.”

  Section 1 of this Ordinance provides that it shall be read as one with the Wills and Probate Ordinance Ch. 8 No. 2 in which “Law of England” is defined in “Section 2” as meaning the law of England in force an 16th May, 1921.

• (c) The Wills and Probate Ordinance, Ch. 8

14 No. 2 sections 6,7,11,12,42,43; in which the “Law of England” as in force on 16th May, 1921 (see above) is incorporated into the corpus of the local law. Contrast the wording of “section 4” (see below) which directs the practice and procedure of the Court in probate matters:–

• (a) The Landlord and Tenant Ordinance, Ch. 27 No. 16,

15 sections 4, 5, 6, 8, and 9. In these sections reference is made to “the law of England”; but this expression is not defined therein. I am given to understand that the practice is to apply the law in force at the time the question arises to be dealt with.

16 The words, however, “for the time being in force” often qualify the law or procedure of England when it is so extended to this country. Examples of such legislations are as follows.

17 Section 27 of the Indictable Offences (Preliminary) Enquiry Ordinance, Ch. 4 No. 1, states that the discretion of the Court in dealing with applications for bail is to be exercised in accordance with the principles for the time being in force in England in respect of similar applications.

18 Section 2 (a) of the Court Funds Investment Ordinance, Ch. 5 No. 3 enjoins the High Court to invest moneys paid into the Court or under its control:–

“in the securities that now are, or may from time to time hereafter be, authorised by rule of the High Court of Justice in England, or by any rule from time to time amending the same, or by any Imperial Statute for the time being in force in England for the investment of cash under the control of the said Court.”

19 The Habeas Corpus Ordinance, Ch. 5 No. 10, section 2 applies...