Stephenson v Stephenson

• Jurisdiction: Jamaica
• Judge: Harrison, J.
• Judgment Date: 09 January 1997
• Court: Supreme Court (Jamaica)
• Date: 09 January 1997
• Docket Number: F- 1994/S.152

Supreme Court

Harrison, J.

F- 1994/S.152

Stephenson

and

Stephenson

Miss N. Anderson for the petitioner.

Mrs. C. Bravo instructed by Playfair, Junor, Pearson and Company for the respondent/applicant.

Practice and procedure - Service of divorce petition — Notice of motion was filed seeking an order to set aside decree nisi and decree absolute made in a husband's petition for dissolution of marriage — Preliminary objection was made as to the court's jurisdiction to hear the motion by counsel for the petitioner — Court held that failure to serve the petition on the wife/applicant would make the proceedings a nullity, and if established would entitle her ex debito justitiae to have both decree nisi and decree absolute set aside — Court had an inherent jurisdiction to set aside its own orders in proceedings which were a nullity — Preliminary objection was over — ruled.

Harrison, J.

1 On the 12 ^th of September, 1996 a Notion of Motion was filed in the Registry of the Supreme Court seeking an order to set aside Decree Nisi and Decree Absolute made in her husband's petition for dissolution of marriage. The decree nisi which was granted on the 23 ^rd day of January, 1995 was pronounced absolute on the 7 ^th day of April, 1995. The hearing for the Motion to set aside was set for hearing on the 9 ^th January, 1997.

2 At the hearing of the Motion, Miss Anderson made a preliminary objection was to the court's jurisdiction to hear the Motion The short point was that the respondent ought to have proceeded by way of an appeal to the Court of Appeal rather than by motion. I heard arguments and my riling for the 16 ^th January when the objection was over-ruled. The court decided to hear the Motion but the applicant/respondent was unable to proceed due to certain differences with a particular witness. The motion was adjourned sine die subsequently and leave to appeal granted regarding my ruling on the preliminary objection. I did promise to put my reasons in writing for overruling the preliminary objection so I now seek to fulfill that promise.

3 Miss Anderson argued that the court ought not to hear the Motion as the decree nisi was made absolute on the 7 ^th April, 1995. She placed great emphasis on the provisions of sections 18 and 19 of the Matrimonial Causes Act (“The Act”) and the cases of Gatherer v. Gatherer 10 J.L.R. 187 and Loftman v. Loftman 10 J.L.R. 170. Section 18 of the Act states as follows:

“18 - Notwithstanding anything contained in this Act, where a decree nisi has been made in proceedings for a decree of dissolution of marriage, the court may, on the application of a party at any time before the decree becomes absolute, rescind if the court is satisfied that the parties have become reconciled.”

4 Section 19 of the said Act states as follows:

“Where a decree nisi has been made, but has not become absolute, the court may, on the application of a party to the proceedings or on the intervention of the Attorney General, if it is satisfied that there has been a miscarriage of justice by reason of fraud, perjury, suppression of evidence or of any other circumstances, rescind the decree and if it thinks fit, order the re-hearing of the proceedings.”

5 The motion is yet to be heard, so I cannot go into the merits or otherwise of the application. The procedure is what is being objected to, but in order to deal with the point raised, one has to look at the grounds upon which the respondent is seeking to set aside the decree nisi. It is being alleged inter alia, in the Notice of Motion that a material irregularity has arisen, The respondent has deponed that she was never served with the husband's petition for the dissolution of their marriage and that she had no knowledge of the existence of the petition until after the final decree had been pronounced.

6 It was considered opinion therefore, that in light of the irregularity complained of, section 18 of the Matrimonial Causes Act had no relevance at all. Section 19 on the other hand, deals with recision of a decree for miscarriage of justice. The section sets out the circumstances in which a party to the proceedings or the Attorney General may move the court. It would seem however, that the section envisages a situation where application is made before the degree becomes absolute. Are there any provisions then in the Matrimonial Clause Rules for an application to set aside the decree nisi after it has become absolute? Rule 42 speaks only of a rescision under section 19 of the Act. It provides that a party to proceedings who makes application for rescision under section 19 of the Act of a decree nisi shall file an affidavit stating the facts and circumstances upon which he or she relies. There is therefore, no express provision for the question posed above. Is it the end of the matter? Was it intended in these circumstances for the applicant's only recourse to be by way of an appeal? I think not, and I will try to justify this approach. Of course, one must also examine Rule 3 of the Matrimonial Causes Rules and see whether it can be of any help. This rule states:

“Subject to the provisions of these Rules and of any enactment, the provisions of the code will apply to the proceedings under the Act as they apply to other proceedings in the Supreme Court, with the necessary modifications.”

7 The Code referred to above has been defined to mean the Judicature Civil Procedure Code as amended by subsequent enactment and Rules of...