This
court application was dealt with by myself on the eve of Christmas on
the Family Court unopposed roll.
The
brief background to the application is as follows:
1.
The plaintiff sued the defendant (his wife of 30 years) for divorce.
The marriage
was blessed with four (4) children, all adults and self-supporting.
2.
There were no ancillary issues concerning maintenance and related
issues except for the issue of property-sharing in respect of which
the plaintiff averred that the parties had shared their property upon
separation and sought an order that each party retains what was
possessed by that party upon divorce.
3.
When the defendant was served with summons, she did not enter
appearance to defend.
The
plaintiff followed up on the non-appearance to defend by filing and
serving the defendant with a “Notice to Plead and Intention to
Bar.”
I
do not know why the plaintiff refers to the notice as 'Notice to
Plead and Intention to Bar' because, in terms of Rule 272(1)(a) as
read with Form No.30, the notice is, in the Rules, styled 'Notice
to Plead'. The body of the notice to plead, in terms of Rule
272(1)(a), should put the defendant on terms to “plead, answer or
except, or make a claim in
reconvention…,.”
The
plaintiff's notice, in this case, calls upon the defendant to file
their (sic)
plea.
Although
I did not take issue with the wording of the notice, I nonetheless
remind legal practitioners and parties of the need to comply with the
wording of the notice, as provided for in the Rules, because the
filing and service of the notices is a peremptory requirement in
terms of Rule 272(1)(a). Since it is peremptory to file and serve it,
such notice should be drafted in the wording as given in the Rules.
4.
After serving the notice which I have commented upon, the plaintiff,
in compliance with Rule 272(2)(b), caused personal service of the
notice of set down of the application for a final order of divorce.
5.
Counsel for the plaintiff,
upon the matter being called, stood up and submitted that the
plaintiff's papers were in order. I was satisfied that save for the
defective notice to plead which I could, and did, condone, the papers
were in order. I accordingly granted a decree of divorce and other
relief as set out in the draft order and proceeded to deal with the
rest of the roll.
6.
When the Registrar stood up and advised me that I had completed the
roll, I noticed that there was a group of people comprising an
elderly woman and three elderly men who were whispering to each
other. The woman was making reference to some paper which she was
holding as the parties whispered to each other.
7.
I considered it prudent to make enquiry of the group as to whether
they had any issues to do with the completed Court Roll because I had
noticed their presence from the time the court commenced proceedings
for the day. Upon enquiry by the Registrar, the elderly woman stood
up and identified herself as the defendant in the instant matter. I
advised the woman that I had already granted the divorce in the
matter and ancillary relief. She indicated that she had thought that
she would be called and given an opportunity to speak. I asked her
whether she had advised the plaintiff's legal practitioner of her
presence and she said that she had not done so as she did not know
him.
8.
I was faced with a situation in which I was functus
officio
but at the same time having power to use the provisions of Rule 449
to revisit my order. However, the powers provided to the court or
judge under Rule 449 are exercisable on application. The Rule refers
to an application being made by the affected party.
The
Rule does not refer to a “court application” being made.
The
distinction is material because a court application is referred to
and defined in the Rules but 'an application' is not.
I
was inclined to interpret the Rule as allowing an affected party to
make an application which could be made orally. I was also fortified
in my reasoning that I could hear the defendant because Rule
449 is very wide and allows the court or judge, mero
motu,
to revisit its/his order for purposes of correction, rescission or
variation of the same for reasons set out in sub-paragraph(s) (a),
(b) and (c) of the said Rule.
9.
I decided to hear what the defendant had to say, being mindful of
Rule 272(2) which provides that the judge or court should not vary,
correct or rescind the order granted unless parties who may be
affected have been given notice of the proposed order. I was
satisfied that I would not offend the Rule if I was to hear the
defendant's application, and then, only if I was satisfied that
there were good grounds to vary, rescind or correct my order, would I
cause that notice of my intended order be given to affected parties
before I alter my previously given order.
10.
Happily, the granting of the indulgence to hear the defendant was a
blessing in disguise.
She
wanted the court to explain to her the order which had been granted.
The order, as set out in the draft order which I had already
endorsed, was explained to her. She had no qualms with the order and
was satisfied with it. She and other members in her group exchanged
handshakes and were all smiles. When I enquired as to why she had
appeared apprehensive initially, the defendant responded that she did
not trust her husband and was afraid that the husband could have
altered the order which he had prayed for in the summons which she
had not defended. My order therefore remained extant….,.
The
order of this court therefore remains that:
The
plaintiff is granted an order in terms of the Draft Order.
