Seisay v Seisay (CIV APP 16 of 1978) [1979] SLCA 12 (20 December 1979)

097682) 1SLBALR Sesy Seay Ey SEISAY v SEISAY cA COURT OF APPEAL FOR SIERRA LEONE, Divorce Petition Civil Appeal, Hon Mr Jastice Beccles Davies JA, Hon Mr Justice Cole JA, Hon Mr Justice Navo JA, 20 December

[0] Family Law Divorce ~ Matrimonial Causes Rules ~ Procedure ~ Efect of non fulfiment of rue 6 of Matrimonial Causes Rules ~ Omission by petitioner to state in alfidavt whether cruelty had been condoned ~ Whether viva voce evidence rectified defect - General rule is that evidence in divorce proceedings should be oral ~ Matrimonial Cause Rules rx 61), 25(1) {2} Civil Procedure ~ Affidavit ~ Effet of omission in affidavit ~ Viva voce evidence to rectify mmission Rule 6(1) & @) of Matrimonial Causes Rules (Public Notice No. 96 of 1950) requires an affidavit wo be file with every petion fr judicial separation verifying the facts of which the <deponent has personal cognizance and deposing as 10 the belie inthe tut ofthe oer fats alleged inthe petion, and such afdavit according to sub-ule @), where the ground ofthe petion is cruelty, should also state whether the petitioner had in any way condoned the erly. In this case, the appellan argued that there had been a breach ofthe mandatory provision of Rule 62) of Matrimonial Causes Rules asthe respondents affidavit had omited to state ‘whether she had in any way condoned the alleged eri, and that therefore the proceedings ‘were a nullity and ought to be set aside. ‘The respondent patitioner onthe other hand contended that her oral evidence at the bearing had spersedd the affidavit. eld, per Beccles Davies JA, dismissing the appeal:

1. The combined effect of rue 25(1) and 4 ofthe Matrimonial Cause Rules 1950 and ss 7 and 14() ofthe Matrimonial Causes Act (Cap 102) i tat the general rule upon a presentation of a petition for judicial separation is thatthe evidence of the witnesses, including that ofthe parties, should be viva voce. This is subject however to an order being made by the judge that some puricular aspect ofthe case shall be proved by affidavit evidence. which he ist ibe wo reuse te itrest of justice demand it

2. The affidavit under 6 of the Matrimonial Causes Rules was merely a preliminary step that gave the security of the cath ofthe party that the proceeding is bona fide. The viva voce evidence in cout takes over fom the evidence an affidavit where there is no order that such affidavit shal be treated as evidence atthe hearing. Deane v Deane (1858) 1 SW Tr 90 applied

3. The onl evidence ofthe petitioner atthe hearing that there was no condonation ofthe respondents cruelty had conected the defect in he affidavit.

4. The appellan’s point if twas going tobe raised, should be done at any stage before the hearing and no ater the petitioners evidence avering that very point. (Cases referred to Deane v Deane (1858) 1 SWT90 ‘Legislation referred to | Matrimonial Causes Act 1857 41, 46 [UK] |

Er) ‘Sia Leone Bar Asin Law Repos [197482] SLBALR

‘Matrimonial Cause Rules (Public Notice No 96 of 1950) rr 6(1).25(1)

Matrimonial Causes Rules 19376 [UK]

‘Matrimonial Causes Act (Cap 102) Laws of Sierra Leone 1960 ss 7 14(1)

Rudes ofthe High Court Order L, XL VU 1

Appeal

‘This was an appeal on a submission on a point of law made by the respondent in a suit for

judicial separation, saying that there had been a breach of the mandatory provisions of rules

(1) & Q) of the Matrimonial Causes Rules 1950, with the result that the whole proceedings

‘were a nullity. The facts appear sufficiently in te following judgement.

[Mr TS Johnson for the appellant.

‘Ms A Dworzak forthe respondent.

[BECCLES DAVIES JA: Mrs Josephine Seisay (to whom I shall for convenience refer as

“the petitioner”) instituted proceedings for judicial separation from her husband Mr Solomon

‘George Seisay (to whom T shall refer as “the respondent”). The petition was founded on

ccnelty. The matter eventually proceeded to tral. At the close ofthe petitioner's case, Mr : ‘Johnson, the respondent's counsel, made what he described as “a submission on a point of

law”. The submission was that there had been a breach of the mandatory provisions of rules

6{1) and (2) of the Matrimonial Causes Rules (Public Notice No. 96 of 1950). The rule

provides:

6(1) There shal be filed with every petition an affidavit by the petitioner verifying the

facts of which the deponent has personal cognizance and deposing as to the belie inthe

tnuth of the other facts alleged in the petition and except in the case of a petition for restitution of conjugal right, stating whether the petition is presented or prosecuted in collusion with the respondent or any of the co-respondents.

‘The pertinent portion of sub-rule (2) states:

(@) The affidavit shal also state:

(a) In the case of every petition for judicial separation ....where the ground of the

petition is cruelty, whether the petitioner has in any manner condoned the cruelty

“The affidavit swom to by the petitioner in support of her petition was inthe following terms:

“L Josephine Seisay of HS 32 Goverment Quarters Freetown inthe Wester Area ofthe

Republic of Sierra Leone Nursing Sister Ministry of Health, the above mentioned

petitioner make oath and say as follows:

1, That the statements contained in paragraphs 1.2, 3(1) 4, 5.6.21, 28 and 24 are true

2. That the statements contained in paragraphs 7, 8, 9. 10. 11, 12, 13, 14.16, 17, 18.19,

20,22 and 25 are rue to my knowledge information and belie.”

“The affidavit omitted to state whether the petitioner had “in any manner condoned the cruelty.” Mr Johnson submited that that omission had been a breach of the mandatory provision of rule

6. Therefore the proceedings were a nullity and ought to be set aside. Miss Duworzak contended thatthe viva voce evidence ofthe petitioner had superceded the affidavit ‘An unconditional appearance was entered to the petition. An answer was filed. The Registrar's Cerificate was eventually obtained and the cause entered for trial. Nothing was done by the

(174211 SLBA Sciay» Seay 2 respondent's solicitor to mise the issue now before this court Mr Johnson solicitor and Counsel fo the respondent has been frank withthe court. He tod this court that he had not averted his mind tthe ul under review: was during the tal that he had done 0.

‘The pestoner and her witeses had given evidence and the case forthe petitioner was then closed. The isue to be determined now is whether the omission in the affidavit as to ‘weer the alleged crue had been condoned cx not was fat air orl evidence had been ven on that same issue by the petitioner. Whats the value of the afdait in support of the Petition atthe hearing?

‘Rule 25(1) and (4) of the Matrimonial Cause Rules 1950 provides:

25(1) Subject to the provisions ofthe Act and this Rue, the witnesses atthe tal or

hearing of any matrimonial case shal be examined viva voce ad in open Cour:

Provided that a judge may on sppiaton made to him:

2) subject to the provisions of para (2) ofthis rue, ode that any particular fats to be

Specified in the onder may be proved by afdavit b) order thatthe affidavit of any

‘wines may be ead atthe tal or hearing on such conditions 3s the ge may think

reasonable

‘Sub Rule (2) is ot relevant for present purposes, Sub-ule (4) then provides:

(4) Nothing in any order made unde this Rule sal fet the power ofthe jue atthe

tial or hearing to refuse to admit evidence tendered in accordance with any such oder if

inthe intrest of justice he should thik it to dos.

I proced othe Matrimonial Causes Act (Chapter 102 of the Laws of Siea Leone) in so far as iis pertinent tothe iste Before tis court. I wil refer ily to Section 14 (1). provides:

141) A. petition for juicial separtion may be presente to the cour citer by the

Ihusband or wife on any grounds on which a peiton for divorce might have been

presented and the provisions ofthis Act relating tothe diy of the court on the

‘resetation of petition for divorce, andthe eeumstancesin which such a petition hall

fr may be granted or dismised shall apply in like manner to a petition for judicial

separation.

‘The dty ofthe court on the presentation ofa peiton fr divorce which she same a on «presentation of ptton for juiialsepration and "he cumstances in which such & Petition shall or may be granted or dismised” are stout ns

7. That section provides, iter aie

7

(0) Ona petition for divorce it shall be the duty ofthe court o inquire, sofa a it

reasonably cn, into the fats allege and whether there has been any conivance or

‘ondonation on the part ofthe petitioner and whether any collusion exis between the

ties and alot ng into any courte charg which s made again the pine

(2) Ifthe cour is saison the evidence that

(i the case forthe Petitioner hasbeen proved

Gi. where the ground ofthe petition is crucky the petitioner has notin any manner

condoned the ect and

Gi) he patton isnot presented or prosecise in collusion with the respondent. the

‘our shall prmounce a decree

» Sia Leone Bar Assxitin Law Repos (ug74-2]1 SUBALR | cs» but if the Court is not satisfied with respect to any of the aforesaid matters, it shall dismiss the petition

‘The combined effect of the above cited provisions is that the general rule upon a ‘resentation of a petition for judicial separation is that the evidence ofthe witnesses including ‘that ofthe partis should be viva voce. This is subject however to an order being made by the {judge that some particular aspect ofthe case shall be proved by affidavit evidence, which he is ‘at liberty to refuse if the interests of justice demand it

‘At the hearing ofthe petition, the judge has to satisfy himself from the evidence, that is viva voce evidence subject to the order for affidavit evidence which Ihave just deal with that inter alia there is no condonation, connivance, or collusion. Despite the defect inthe affidavit. ‘the petitioner had gone on to give viva voce evidence that there was no condonation of the respondent's cruelty. Tam not saying thatthe evidence is true as that is a matter for the judge under section 7

‘Miss Dworzak cited Deane v Deane (1858) 1 SW & Tr

90. It is a very helpful case. The heainote to that case reads:

“The affidavit ofthe petitioner required by section 41 will not be taken as evidence atthe

: hearing, but the parties must produce sufficient evidence to prove the petition independently of such affidavit. The cout is bound by the Rules of Evidence as observed

‘at Common Law, Section 48."

Section 41 referred to in that head note iss 41 ofthe Matrimonial Causes Act 1857 (20 & 21 Viet 85). reads:

41, Every person seeking ... a decree of Judicial Separation, shall together with the

Petition or other application forthe same. ile an affidavit verifying the same so far as he

‘or she is able to do so, and stating that there is not any collusion or connivance between

the despondent and the other party tothe marriage.

‘The above section was expanded by rule 6 ofthe English Matrimonial Causes Rules 1937 ‘which is virwally the same as Rule 6 of the Sierra Leonean Matrimonial Causes Rules (Public Notice 96 of 1950), I have referred to Deane's casein onder to demonstrate the effect of the ‘contents of the affidavit in support of the petition. In Deane's case the Judge Ondinary (Sir ‘Creswell said inthe course of his judgment

“The affidavit of the petitioner under Section 41 isa preliminary step merely ~it gives

‘the security ofthe oath of the party thatthe proceeding is bona fide. No person i allowed.

to.commence a proceeding without pleading on oath tothe truth ofthe facts (within his

‘other knowledge) upon which the proceeding is founded: but Ihave considered the point

you mention, and am of the opinion that Iam not at liberty to take any notice at the

hearing of the affidavit of the party so given. The 48° Section of the Divorce Act is precise in its directions, that “the rules of evidence observed in the superior cours of

‘common law at Westminster shall be applicable to and be observed in the trial of all

{questions of fact in the Coun. This confines me within te limits of 14 and 15 Vict C99.

And you must deal with this case as if there were no evidence at present before the court

ought to mention in passing the old practice in the Ecclesiastical Court. Evidence was, ‘almost always taken by means of writen documents verified by afidavit. It was section 46 of the Matrimonial Causes Act 1857 (UK) which altered the rule by directing that oral evidence in open cour should be the rule, subject to affidavit evidence being allowed in exceptional circumstances, and the deponents being liable to be examined and eross- examined in open. cour.

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