Gibson v Gibson

• Jurisdiction: Barbados
• Judge: Field, J.
• Judgment Date: 21 December 1962
• Neutral Citation: BB 1962 HC 21
• Court: High Court (Barbados)
• Date: 21 December 1962

High Court

Field, J.

Gibson

and

Gibson

Mr. H.B. St. John for the wife instructed by Messrs. Hutchinson & Banfield.

Mr. D. Ward, Q.C., for the husband instructed by Messrs. Haynes & Griffith.

Family law - Divorce — Jurisdiction to set aside decree nisi — Practice and procedure — Inherent jurisdiction.

Facts: The husband who was the petitioner obtained a decree nisi against his wife on the grounds of adultery on a petition to which the wife did not enter an appearance. The co-respondent cited entered an appearance but filed no answer. In an affidavit in support of her motion to set aside the decree, the wife alleged non-disclosure of material facts by the husband and misrepresentation by her husband to the effect that the petition was no longer valid as they were living together at the time of service of the petition on her. The applicant relied on the inherent jurisdiction of the court to entertain the motion to order a new trial of the petition.

Held: the proper course to adopt for the wife to obtain the intervention of the Queen's Proctor or some bona fide member of the public. Motion refused.

Field, J.

1 This is a motion by a wife seeking to set aside a decree nisi obtained by her husband and to have a new trial ordered. The grounds on which the application is made are set out in an affidavit by the wife and are: (a) that the petitioner's husband failed to disclose material facts at the hearing of the petition (the material facts which it is alleged were not disclosed were that the husband and wife had resumed cohabitation at the date of service of the petition); and (b) that the wife did not defend the petition (she did not enter an appearance) because when the petition was served on her on February 2, 1962, they were then living together and her husband told her that the lawyers said that the petition was no longer good as they were living together.

2 The petition filed by the husband on January 26, 1962, alleged adultery and named a co-respondent. The wife did not enter an appearance, while the co-respondent entered an appearance but f fled no answer. In these circumstances the petition came on for hearing as an undefended suit on May 2, 1962, a decree nisi was granted.

3 Counsel for the applicant (the wife) relies on the inherent jurisdiction of the court to entertain such an application and cited the case of Tam-Kai v. Tam-Kai (1960) 2 W.I.R. 229, and the cases therein referred to, particularly Craig v. Kanssen [1943] 1 All E.R. 108 and Chief Kofi Forfie v. Barima Kwabena Seifah [1958] 1 All E.R. 289.

4 Counsel for the husband objects to the court entertaining the motion, submitting that there is no inherent jurisdiction in the court to do so. He referred to the case of Walrond v. Walrond (1961) 3 W.I.R. 433. He also contends that the court for matrimonial matters set up by virtue of the Matrimonial Causes Act, 1935 could exercise only such jurisdiction as was given to it by that Act and that there was no power of authority under that Act whereby the original court or the Supreme Court as successor to that court can entertain the application in its present form.

5 Counsel for the wife's answer to this is that Walrond's case has no application to the present circumstances and that the original divorce court had by s. 6 of the Matrimonial Causes Act, 1935, jurisdiction as conferred by the Act or by the High Court of Justice of England where the Act was silent on matters of practice and procedure to which this application relates.

6 After first hearing counsel for each side I invited the Attorney-General to come in and this he did when further argument was heard. I am grateful to them for their assistance in this matter.

7 Let us see what the various cases referred to attempted to decide. Tam-Kai's case was an application by a respondent to set aside a decree absolute where there had been no service of the petition on the respondent. The court in that case held (a) failure to serve the petition on the wife was a defect which would make the proceedings a nullity and, if established, would entitle the wife ex debito justitae to have the orders set aside; (b) the court had inherent jurisdiction to set aside its own orders in proceedings which were a nullity.

8 The court followed the principles enunciated in Craig v. Kanssen and Chief Kofi Forfie v. Barima Kwabena Seifah. I should point out here that the present application before me is to set aside a decree nisi on the ground that material facts were not brought before the court, whereas in Tam-Kai's case the ground was that an irregularity in service rendering the trial a nullity was the ground for application. In the present case there was a perfectly good trial valid on the face of it. For reasons which will appear later I do not consider that the decision in Tam-Kai's case is applicable to the circumstances of the present application.

9 Walrond's case stands on a different footing. There was an application to the Full Court of the Supreme Court by a respondent husband against whom a decree nisi was pronounced seeking to set aside the decree and to order a new trial on the ground that there was an error in the court pronouncing the decree. That application to the Full Court was purported to be made under and by virtue of the provisions of O. 46, r.14 of the Rules of the Supreme Court, 1958. The court in that case held that it had no jurisdiction in the matter because (a) as error in the court was alleged, the matter was on for appeal to the Federal Supreme Court by virtue of reg. 15(2)(g) of the Federal Supreme Court Regulations, 1958; and (b) O. 46, r.14 of the Rules of the Supreme Court, 1958 applies to matters in which by s.36 of the Supreme Court of Judicature Act the Full Court was given jurisdiction on appeal. The question of the inherent jurisdiction of a single judge of the Supreme Court did not arise for consideration.

10 To return to the question of the inherent jurisdiction of the court in this matter. Apart from Kam-Tai's case neither counsel nor the Attorney-General was able to refer me to a decision of the High Court of England directly applicable to divorce matters. I have not found any case directly in point.

11 There are, however, certain cases which I will now mention which may give guidance on this question. Those cases are Lewis v. Lewis (1861) 2 Sw. & Tr. 394, Oasey v. Oasey & Atkinson (1876) 1 P.D. 56, referred to in Rutter v. Rutter (No. 2) [1921] P. 421. In Rutter's case (7) Sir Henry Duke (afterwards Lord Merivale, P.) stated:

“I have to consider the power of making absolute decree nisi, and to inquire to what extent it is open to a suitor who has obtained a decree nisi to discard it and ask for the dismissal of that decree. According to the practice of the court the parties are not domini litus, and have not the same power of...