Ernest Uchai v. Eunice Elikanoa Civ. App. 16-A-67, 26/10/68, Platt J.

Ernest Uchai v. Eunice Elikanoa Civ. App. 16-A-67, 26/10/68, Platt J.

This appeal came from the ruling of the learned Senior Resident Magistrate who refused to entertain an application by the appellant for a discharge of the order by which the respondent, the wife of the appellant, was granted maintenance under the District Courts (Separation and Maintenance) Ordinance, Cap. 274. The application was dismissed on the basis that the points raised in the application were already adjudicated upon. The appellant, on this appeal, argued that s.8 (1) was not restricted to mere increases or decreases in the amount to be paid as maintenance, or indeed to a discharge under the provisions of s. 8(2) of the Ordinance, but that the appellant was permitted to challenge “any such order” upon bringing fresh evidence which may indicate that the marriage was a customary marriage.

Held: (1) It is possible for the Magistrates upon fresh evidence to alter, vary or discharge the order that they had previously made. (See Rex v. Middlesex Justices (1933) 2. K.B. 1; see also In Re Wakeman (1947) 2 Ch. 607 and 613.)

            (2) Fresh evidence is not restricted as to subject matter: it may concern not only matters connected with sums of maintenance to be awarded, but also matters affecting the position of the parties. Thus fresh evidence has been admitted to show that the order must be discharged because at the time of the wife’s marriage her former husband was still alive. (See Halsbury Vol. 12, pages 492 and 493, not (j) and the authorities there cited)

            (3) In the present case the question was whether the marriage of the parties was a customary union or a monogamous union falling within the definition in s. 2 cap. 364. As the District Courts (Separation Maintenance) Ordinance applies only to monogamous marriages by virtue of s. 2(2) it follows that the distinction is vital.

            (4) The first Magistrate held that the marriage fell within the definition, while appellant argues that it was customary union; therefore if there was fresh evidence on this matter, then it ought to have been admitted.

            (5) The appeal is allowed not so much because the learned Magistrate was wrong in applying the doctrine of res judicata, since it may still apply, but because it appears to have been applied prematurely, before the appellant had been given the opportunity of putting his allegedly fresh evidence before the court.