Nicholas v Nicholas
| Jurisdiction | Trinidad & Tobago |
| Judge | Maharaj, J. |
| Judgment Date | 28 July 1994 |
| Neutral Citation | TT 1994 HC 95 |
| Docket Number | SM–525 of 1993 |
| Court | High Court (Trinidad and Tobago) |
| Date | 28 July 1994 |
High Court
Maharaj, J.
SM–525 of 1993
Mrs. Lynette Maharaj for the petitioner.
Mrs, Joanna Koorn for the respondent.
Family law - Husband and wife — Divorce — Application by respondent by ordinary summons seeking an order that the order of the court granting a divorce to the petitioner be set aside on grounds that the court had no jurisdiction to entertain the petition for divorce as neither parties being domiciled or habitually resident in Trinidad and Tobago at the commencement of the suit and the respondent had no or insufficient notice of the hearing of the petition for divorce.
Before I deal with the issues before this court I would like to set out what took place in respect to the petitioner's petition; and the orders this court made on the granting of the decree nisi.
The petition was filed on the 24th day of November, 1993. Upon an ex parte application made by the petitioner's attorney on the 24th November, 1993 I ordered that the petition and the accompanying documents be served on the respondent at her address in Canada.
That the time for filing an Acknowledgement of Service by the respondent be 21 days from the date of posting of the petition.
Before my order above I granted leave to the petitioner to proceed to file his petition without a true copy of his marriage certificate and ordered that he should do so within a specified time.
On the 24th February, 1994 the petitioner filed a true copy of his marriage certificate as was translated in English.
I pause to note that the petitioner and the respondent were married on the 31st July, 1969 in Prouman at the Greek Orthodox Church, Lebanon.
I have perused that affidavit of Miss Joyce Ramharack who is attached to the firm of Ramesh Laurence Maharaj and Co. This disclosed that the petition was posted by registered mail to the respondent on the 1st December, 1993. The Registered slip from the post office supports this.
It appears that an acknowledgement of service was not filed by the respondent. Further, she did not file any answer or cross-petition.
The request for a special procedure trial, as an undefended cause, was made by the petitioner's attorneys on the 7th March, 1994.
On the 28th March, 1994 the Assistant Registrar was satisfied that Rule 28(1) of the Matrimonial Causes Rules, 1973 had been complied with and directed the cause to be heard as an undefended matter. Rule 28(2) states:– “The Registrar shall give directions for trial by fixing the date, place and as nearly as may be, the time of the trial and shall give notice thereof to every party to the cause and set down the cause for trial accordingly.”
A perusal of the above notice shows that it is dated the 28th March, 1994. It is addressed to the petitioner's attorneys and to the respondent in Canada. Both attorneys agreed that the Assistant-Registrar posted this notice to the respondent on the 29th March, 1994.
According to this notice the divorce was listed to be heard on Thursday 21st April, 1994 at 9.30 a.m. in the Matrimonial Court in San Fernando.
On this date Mrs. Lynette Maharaj appeared for the petitioner. The respondent was absent and unrepresented. The court perused the documents filed and was satisfied that the matter could have proceeded as an undefended cause.
I heard evidence of the petitioner from the witness box. He gave evidence in respect to the respondent's unreasonable behaviour. He supported paragraph 3 of his petition in relation to domicile and habitual residence in this country and throughout the period of one year ending with the date of the presentation of the Petition.
I am aware that presentation of the petition means the filing of the petition. See Alston v. Alston, (1946) P. 203;Tolstoy on Divorce 9 edit. P.83 Before I made my order in the divorce proceedings I considered L.N. No:29 of the Matrimonial Causes (Amendment) Rules, 1982 and in particular the substitution made in respect to R.7 of M.C.R. That is,
-
“(c) Where it is alleged that the court had jurisdiction based on domicile–
-
(i) the country in which the petitioner was domiciled, and
-
(ii) if that country is not Trinidad and Tobago the respondent is domicile
-
-
(d) Where it is alleged that the court has jurisdiction based on habitual residence–
-
(i) the country in which the petitioner has been habitually resident throughout the period of one year ending with the date of the presentation of the petition.”
-
In the Divorce Proceedings the petitioner recognised the signature of the respondent as having received the petition in Canada in December, 1993. See “J.R.4”
I considered section 7 of L.N.29 above and the words set out therein in respect to domicile and residence.
I ordered:–
-
(a) The marriage of the petitioner and the respondent on the 31st day of July, 1969 is hereby dissolved on the grounds of the respondent's unreasonable behaviour.
-
(b) That the decree nisi is hereby granted but not to be made absolute until 6 weeks from the date hereof.
-
(c) There are 3 children of the family namely:–
-
(1) Daniel Issa born on the 30th April, 1972
-
(2) Atef Fredrick Nicholas born on the 3rd May, 1973
-
(3) Renee Venus Nicholas born on the 23rd August, 1979 to whom section 47 of the M.P.P.A. 1971 applies.
-
-
(d) That this court is satisfied that the arrangements for the said three children are satisfactory and this court grants the declaration in accordance with section 47 of the Act above.
(e) There shall be no order as to costs.
By Ordinary Summons dated 31st May, 1994 the respondent/wife sought the following reliefs:–
-
(i) An order that the order made by this court on the 21 st day of April, 1994 be set aside on the grounds that
-
(a) the court had no jurisdiction to entertain the Petition for Divorce neither the petitioner nor the respondent being domiciled or habitually resident in Trinidad and Tobago at the commencement of the suit.
-
(b) The respondent had no or no sufficient notice of the hearing of the Petition for Divorce.
-
-
(ii) The costs of this application be provided for.
It is instructive to note that the above Summons of the respondent was listed to be heard on the 4th July, 1994. This took place before Warner, J. On the 6th July, 1994 Warner, J., transferred the proceedings before this court. I adjourned the matter to the 8 th July 1994. The respondent's attorney was in court. I adjourned the matter to the 18th.
On the 28th June, 1994 the petitioner filed his summons to set aside the Ordinary Summons of the respondent aforesaid on the ground of irregularity as the respondent's Summons did not comply with certain sections of the M.P.P.A. Ch 45:51 and several sections of the M.C.R. as set out therein”
No affidavit was filed in support of the petitioner's summons. At the hearing thereof Mrs Maharaj said that an affidavit was not necessary as she was relying essentially on the sections of the Act and the rules. It appears to this court, that the petitioner was relying on Chitty's Q.B.F P.985 precedent 1519 where it is stated:– “…If the irregularity be apparent on the face of the proceedings, no affidavit is necessary….”
On the morning Or the 18th July, 1994 Mrs. Koorn drew to the court's attention that her Instructing attorney had filed on the 15th July, 1994 a notice seeking an amendment in terms of the draft marked “A” and annexed in respect to the respondent's summons. Further her Instructing attorney had filed an affidavit on even date in support of the respondent's summons.
This court inquired whether both summonses could be heard together.
-
(1) Attorneys agreed that the petitioner's summons to set aside the respondent's ordinary summons must be heard first.
-
(2) The court also inquired from both attorneys, as their reliefs were grounded on ordinary summonses, whether the matter could be heard in Chambers or in open court. Both attorneys agreed that the matter be heard in Chambers.
By virtue of the agreement of the attorneys this court proceeded to hear the petitioner's summons dated the 28th June, 1984 in Chambers.
-
(1)(a) Attorney relied on O. 2, r.2 of R.S.C. 1975. That the petitioner's summons was grounded to set aside the respondent's summons on the grounds of irregularity and to dismiss same for non-compliance.
-
(b) In fact on the court's records is a letter from the petitioner's attorney to the respondent's Instructing attorney and in essence opposing any adjournment which the respondent was seeking on the 4th July, 1994.
That the fact that the respondent had filed an affidavit at a late stage, that is, one month and fifteen days after the respondent's summons was filed and one month and 9 days after the first hearing date was listed, was wholly unacceptable to this court. The court had indicated that it had seen the affidavit for the first time while the court was actually sitting on the 18th when it was drawn to its attention.
This court expressed the view that to bring to the court's attention an affidavit on the morning of the case and while the court...
To continue reading
Request your trial