Victoria Davies v Franklyn B. Davies (CIV APP 9 of 1999) [2000] SLCA 2 (24 July 2000)

E Iu GIVssRPs 9/99 IN THE COURT OF APPLAL FOR STRRRA 1ZOHE ‘BETWEEN: — VICTORIA DavIES. + APPELLAW? sn FRAUKLYN BRODIS DAVIES + HESPONENE ‘BEIWEEN: — HON MRS. JUSTICE V.asD. watGH? = = J.a, “HON, UR, JUSTIOE N.D, ALHADT ~The HON, MR, JUSTICE ME. TOLLs~THOMPSON— Tobe A» THJAN~COLE Esq,} FOR APERALTANT P.§. CONTEH ESQ., FOR THE RESPONDENT i TURGBOGEL DELIVERED THIS 24TH Dey OF JULY, 2000 WRIGH. Type,

This is an Appeal by the appellent from the Judgement of Nylander ¢ delivered on the 8th September, 1999,

The Respondent filed a Petition for the dissolution “of Marriage on the Grounds of Desertion & Cruelty. In the *ppellantés enswer she alleged adultery and arose petitioned n the grounds of cruelty.

Beaye was. granted to amend the Notice and Grounis of 42peal as contained in the gecords. ‘the Grounds of Appeal ere as follows:—

1. Phat the Learned frial Judge was wrong in making the

Decree Nisi Pronounced on the Sth Septenber, 1999

7 absolute on the 2nd Decenber, 1999 even though the the Appellant had filed an sppeal dated 2nd October,

; ee 14s 2 That the Learned wriel Judge was wrong in Lew in malcing the Dooree tiiei Pronounced on the 8th September 1999 absolute on ma Decenber, 1999 even though an Appearance had been entered for an intervener dated 7th October, 1999. 3+ That the Leamed Trial Juage was wrong in lew end in fact in delivering Judgenent in favour of the Respondent in thet | (a) The Petition and the evidence adduced in " Court discloses’na, or insufficient = evidence, (b) The Respondent failed to discharge the ‘burden and(of standard of proof),

4. ‘That the Seemed Tris] Judge was wrong in law and in fact in delivering Judgment in favour of tthe Respondent in that a cardinal principle of naturel i:Stice to wit, andi alten parten was not observed.

Se Thet the Learned Trial Judge erred in hearing

"the cause during the High Court vacation. ; Ground 6 was abandoned, A. Tojan-Caole Esqs, Learned Counsel for the 4ppellent stated that the Decree Nisi wes made on the 8th September, 1999 end the Decree absolute was Pronounced on the 2nd December, 1999 even though the Notice of Appeal wes filed on the 2nd October, 1999. There was on Affidavit filed by Learned Counsel for the 4ppellant deposing that ne had filed a Notice of Apposl exhibiting the Notice of Appeal on the 6th Qotober, 1999, Ee sulmitted that it was wrong in law to have pronounced the Decree Nisi absolute while an Appeal was pending. Bven though these a Notice of Appearance was entered

i 3s {46 ‘by en intervener on tho 7th October, 1999 and a Affidavit filed by the intervener the Learned ?rial Judge Pronounced :e Decree Absolute on the 12th Decenber; 1999s A, Tejan-Cole Esq., submitted that the evidence does not support a divorce being granted on cruelty or desertion and the standard of proof'was not discharged. Ho further submitted that there was no date of oommencenent of the trial contrery to Order 25 Rule 4 of the High Court Rules and elso that the said Notice of Trial and entry for trial dia not comply with Kigh Court Rules _ Order 2 Bile: 3, He said that there was Ho application for a Speedy Hearing even though the High Court Rules Qrder 25 Rule 9 provides that an ection shoulé take its turn in the catse list unless otherwise ordered, I agree with Learned Counsel that the above Rules had been flouted.

Learned Counsel. for the Respondent P.8. Conteh Bag, conceeded to the Appeal and also that there was a Notice = of Appeal filed before the Deoree Absolute was granted

| @d filed therefore naking it a millity.

Tt ig clear from the evidence that the Decree Misi was Pronounced on the 8th September 1999 and made absolute on the 2nd Deceabe= oven thovgh the Appellant had fied an”Appeal on the 2nd October 1999. It was wrong for the Learned Priel Judge to Pronounce the

H Decree Wisi Absolute after e Notice of an Appeel had. been filea, See Civ.app. 61/95 and 11/96 Strong V. Stronge unreparted Judgrcnt of the Court of Appeal.

The Matrimonial Ceuses Tules Pulte 36(3), stutoo:~ "No application under this Rule shall be entered in the cause list unless an L

n45 . (Gt etfidevit hes been filed that search had beon made in the proper.books of ‘the Divorce Registry up to within four Gaye .of the time eppointed and that at such time no person hed intervened or obtaincd leave ta intervene in the cause end that no eppearance had been entered or ony effidavits filed ty or on behalf of eny person wishing to show couse against the decree nisi being made ~ absolute and, in case leave to intervene had doen obtained or appearance ¢ntered or effidavite filed by or on behalf of sch person, affidavits showing what proceedings, if any, have taken thereon" It was therefere wrung in lew for the Leamea trial * Judge to Pronounce the Decree Wisi Absolute even though en Appearance was filed by an intervener, Looking at the Petition filed there are no parti- | Culers of the cruelty or desertion. Set me here review the evidence of the Respondent on , ‘the desertion and cruelty elleged, He said in the Loner Court, "Respondent left the matrimonial home on 30/3/89, Thefe*had nét been any provious proceedings of divorce, Responient left to attend a house warming cerauony of her Sisters' guest hou-e. She never returned since then, 4 first all wee well in the home. Respondent fail to Perform her matrimonia’ duties to mo, She did not take Care of the hone, nuvor »ropared foad. I made several attenpts for Respondent t: return but to no avail, My Conjugal rights were thore ore denied. The Respondent | an

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