W. ROBINSON FERNANDO, Appellant and S. HENRIETTA FERNANDO, Respondent

016-NLR-NLR-V-74-W.-ROBINSON-FERNANDO-Appellant-and-S.-HENRIETTA-FERNANDO-Respondent.pdf


SAMERATVICKRAME, J.—Fernando v. Fernando
57
1971 Present: Samerawickrame, J., and Pandita-Gunawarderie, J.TV. ROBISON FERNANDO, Appellant, and S. HENRIETTAFERNANDO, Respondent
S. C. 2-1S[6S (F), 90/68 Inly, and 260/08 (F) —D. C. Panadura, 9SG7/D
Jurisdiction—.Difference in effect between patent and latent want of jurisdiction—Conciliation Boards Act No. 10 of J95S—Section 11 (1) (a)—Omission tocomplj with its requirements—-Whether defendant can waive objection relatingto it—Courts Ordinance, 8. 62.
Objection relating to tho want of jurisdiction in a Court to hear a case may bowaived by tho defondnnt. if the want of jurisdiction is not apparont on’the faceof tho record but depends upon tho proof of facts.
Aftor tho plaintiff’s cose was closed and after tho defendant and two witnesseshad givon ovidonco tho trial Judge allowed an application mado by thodefendant to amend tho answer in order to raise tho pica that tho Courthad no jurisdiction to try tho enso as tho dispute had not been referred to thoConciliation Board and no certificate from tho Chairman had been annexedto tho plaint as required by section 14 (1) (a) of tho Conciliation Boards Act.
Held, that, having regard in particular to tho prejudice to tho plaintiff andthe late stage at which tho amendment of the answer was sought to bo mado,the defendant was precluded bj' delay and acquiescence from raising thoobjection to jurisdiction and that she had in fact waived it.
_/.PPEAL from a judgment of the District Court, Panadura.
H. IF. Jayeiuardene, Q.C., with M. S. M. Nazeem and P. Edussuriya,for the plaintiff-appellant in S. C. 248/GS (F) and for the plaintiff-respondent in S. C. 96/68 (Inty.) and S. C. 260/68 (F).
Ranganathan, Q.C., with S. Sliarvananda and K. Kanagaratnam,for the defendant-respondent in S. C. 24S/6S (F) and for the defendant-appellant in S. C. 96/63 (Inty.) and S. C. 260/6S (F).
Cur. adv. vull..Janunr3’30,1971. Samerawickrame, J.—
The plaintiff-appellant filed this action against his wife the defendant-respondent seeking a divorce on the ground of malicious desertion.The defendant-respondent filed answer denj’ing the allegations in theplaint and counter-suing for a decree for judicial separation. Afterthe plaintiff’s case was closed and after the defendant had given evidence,an application was made to amend the answer to raise the plea that theCourt had no jurisdiction to try the case as the dispute had not beenreferred to the Conciliation Board and no certificate from the Chairman ofthe Panel of Conciliators had been annexed to the plaint ns required bySection 14 (1) (a) of the Conciliation Boards Act No. 10 of 1958.Objection to the application was taken on behalf of the plaintiff on tlioground that the defendant had waived such an objection to jurisdictionThe learned District Judge made order allowing the application to amendthe answer and thereafter upheld the plea to jurisdiction raised on
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SAMERAWICKRAME, J.—-Fernando v'. Fernando .
behalf of the defendant and dismissed plaintiff’s action but ordered thedefendant to pay costs to the plaintiff and to return to the plaintiffall alimony pendente lile she had obtained from him.
Learned counsel for the plaintiff-appellant submitted—
that a divorce action is not based upon a cause of action and that
accordingly there was no dispute which may be a cause of actionwithin the meaning of s. 6 (6) of the Conciliation Boards Act;
that the defendant had waived objection to jurisdiction of the
District Court.
It will be convenient to consider first whether the- defendant-respondent was precluded by her conduct from raising an objection tojurisdiction.
Where the want of jurisdiction is patent, objection to jurisdictionmay be taken at any time. In such a case it is in fact the duty of theCourt itself ex mero molu to raise the point even if the parties fail to doso. In Farquharson v. Morgan1 Halsbury L.C. said, “It has longsince been held that where the objection to the jurisdiction of aninferior court appears upon the face of the record it is immaterial howthe matter is brought before the Superior Court, for the Superior Courtmust interfere to protect the prerogative of the Crown by prohibitingthe inferior court from exceeding its jurisdiction. That is to say, wherothe want of jurisdiction appears upon the libel, as in an ecclesiasticalcourt, or upon the face of the record, and does not depend upon a merematter of fact, and a cause is entertained by an inferior court which isclearly beyond its jurisdiction, no consent of parties will justify theSuperior Court in refusing a prohibition. ”
In the same case, Lopes L.J. said, “ The reason why, notwithstandingsuch acquiescence, a prohibition is granted where the want of jurisdictionis apparent on the face of the proceedings is explained by Lord Denman(G N. & M. 17G) to be for the sake of the public, because ‘the case mightbe a precedent if allowed to stand without impeachment’ and I wouldadd for myself, because it is a want of jurisdiction which the court isinformed by the proceedings before it, and which the judge should haveobserved, and a point which he should himself have taken.
The position however appears to be different where the want ofjurisdiction is not apparent on the face of the record but depends uponthe proof of facts. In such a case, it is for a party who asserts that thoCourt has no jurisdiction to raise the matter and prove the necessaryfacts. A Court has to proceed upon the facts placed before it and itsjurisdiction must therefore depend upon them and not upon tho factsthat may actually exist. It is appropriate in this connection to cite adictum of Nagalingam, J. in the caso of Marjan v. Burak 2;— " As
* (194$) 51 ->V. L. R. 31 id 31.
‘ 70 Lato Tiroes 152 at J5i.
S-A-MERAAVICKRAME, J.—Fernando v. Fernando
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stated by Huktn Chand (1S94 ed. page 240) jurisdiction “ does not dependupon facts or the actual existence of matters or things but upon the• allegations made concerning them”. Hukm Chand quotes a passagefrom Van Fleet in support :—
“ If certain matters and things arc alleged to be true and reliefprayed which the tribunal has power to grant if true, that gives itjurisdiction over the proceedings. . . A great deal of trouble has arisenfrom the mistaken conception that jurisdiction depends upon factsor the actual existence of matters and things instead of upon allegationsmade concerning them ”.
In the case of National Coal Co. v. L. P. Dave 1 Choudhary, J. said“ .. . . where tho want of jurisdiction is not apparent on the face of theproceedings but the absence of jurisdiction depends on a fact in thoknowledge of a party, then if he does not bring that fact forward butallows the Court to proceed with the judgment lie ought not to bepermitted to impeach the jurisdiction in any collateral proceeding.”
In Kandy Omnibus Co., Lid. v. T. ]V. Roberts 2 Sansoni, J. drew adistinction between patent and latent want of jurisdiction and he said,“ When a Court has jurisdiction in particular cases which depend onthe existence of a certain state of facts a person who admits, or doesnot challenge, the existence of those facts can estop himself from denyingtheir existence at a subsequent stage of the proceedings. ”
There is no question in this case of any inherent want of jurisdiction.Section 62 of tho Courts Ordinance confers jurisdiction on DistrictCourts in all matrimonial matters. There was nothing on the face oftho plaint or answer or of the proceedings until the application to amendthe answer which could afford any reason to the Court to think it lackedjurisdiction. Tho objection to jurisdiction which the defendant soughtto raise depended on the following facts which were set out in theamendment to tho answer :—
That the matrimonial house was at No. 12, Molpe Road, Moratuwa.
That these premises wero situate within tho Moratuwa Urban
Council area.
That a Panel of Conciliators had been constituted for the Moratuwa
Urban Council area as and from 2.6.65 and such Panel ofConciliators was in existence at the date of action.
That the cause of action alleged in the plaint was that the defendant
had left the matrimonial houso and had refused to come backand had thereby maliciously deserted the plaintiff.
That tho defendant’s position was that she was compelled to
leave and that she did not maliciously desert.
(G) That tho dispute was not referred to the Panel of Conciliatorsand a certificate from the Chairman has not been produced.These matters, particularly those set out at 2 and 3 above wero notbefore the Court prior to the application to amend the answer.
1 A. I. B. (1956) Patna 294 at 297.* (1954) 56 N. L. B. 293 at 303.
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SAMERAWICKRAME, J.—Fernando v. Fernando
Tho question for consideration therefore is "whether at that timetho defendant had precluded herself by waiver, delay or acquiescencefrom raising tho objection to jurisdiction. Tho following matters arerelevant:—•
By making a counter claim for a decreo for judicial separation tho
defendant had invited tho court to exercise jurisdiction inthis action.
Tho defendant had applied for and obtained an order for monthly
payment of alimony pendente lite and had received paymentsfor a period of over two years.
A period of nearly three years had passed since the institutionof the action.
■ (iv) The plaintiff had led all evidence and closed his case and thodefendant had given evidenco and called two other witnessesto give evidence.
(v) The plaintiff had been put to much expenso as there wero severaldates of trial apart from other interlocutory proceedings.
Having regard to these matters and, in particular the prejudice to theplaintiff and the late stage at which the amendment was sought to bemade, I am of the view that the defendant was precluded by delay andacquiescence from raising the objection to jurisdiction and that she hadin fact waived it.
In view of the finding at which I have arrived it is not necessary toconsider the submission of tho learned counsel for the appellant that adivorce action is not based on a cause of action.
I set aside the order allowing the amendment and the order dismissingthe action and send the case back for decision on tho other issues. Asthe defendant may have closed her case in reliance on this point it willbe in the discretion of the District Judge to permit her to lead furtherevidence if he thinks it fit to do so. Tho order directing the defendantto pay the costs and to re-pay tho amount received as alimony pendentelite are set aside. The defendant will in any event not be entitled tocosts incurred in relation to the amendment of the answer to raise thoobjection to jurisdiction and the proceedings had in comiection withit or to costs relating to the raising of issue Iso. 7 and the leadingof evidence thereon and the proceedings had in connection with them.
The plaintiff-appellant will bo entitled to costs of appeal.
In view of the order I have made, appeals numbered S. C. 9G/CS Inty.-and- S. C. 260/CSF filed by tho defendant have bccomo unnecessaryand they arc formally dismissed without costs.
Pandita-Gc^awardene, J.—I agrco.
Case sent back Jot further proceedings.