Finch v Finch and Another (Divorce Cause No. 19 of 1954) [1955] EACA 202 (1 January 1955)

#### DIVORCE JURISDICTION

### Before CRAM, Ag. J.

### MOIRA FINCH, Petitioner

# RUPERT C. F. FINCH AND ANOTHER, Respondents

### Divorce Cause No. 19 of 1954

Divorce—International Private Law—Reciprocity—Civil Procedure and Practice— Judgments Extension Ordinance, Cap. 14—Decree of divorce with costs— Application to transfer decree for execution in Tanganyika—Whether order for costs amounts to a decree—Whether transfer competent—Judgments Extension Ordinance, Cap. 7, Laws of Tanganyika—Administration of Justice-Act, Part II, 1920-Costs.

A petitioner obtained a decree of divorce with costs against her husband, the respondent, in the Supreme Court of Kenya. The husband disappeared without paying the costs but his wife discovered he had obtained employment in Tanganyika Territory. She applied by summons in chambers for an order to transfer the "decree with a certificate of non-satisfaction to the Resident Magistrate's. Court at Dar-es-Salaam, in Tanganyika". At the hearing, the Court enquired the nature of the reciprocal provisions enabling the transfer of a decree of divorce for execution; whether the petitioner had obtained a decree or merely an order for costs and, if a mere order, whether there was reciprocity to transfer the order for execution to the courts in Tanganyika. The applicant referred to the Judgments. Extension Ordinance, Cap. 14, Laws of Kenya.

Held (18-7-55).—(1) Jurisdiction in matrimonial causes had no emergence either in the-<br>common law or in equity and did not stem from the application to Kenya of any Order in Council but was statutory depending upon the Matrimonial Causes Ordinance, Cap. 145, section 3 of which, subject to the provisions of the Ordinance and Rules,<br>applied the law of England. In England, as in Kenya, orders for costs made in divorce-<br>proceedings did not result in decrees but remained

(2) An order for costs in a divorce proceeding fell within the definition of "judgment"<br>for the purposes of section 12 (1) of Part II of the Administration of Justice Act, 1920, Which was extended to Kenya, with reciprocity to be found in the Judgments Extension<br>Ordinance, Part I, Cap. 14. While the Administration of Justice Act, Part II, 1920, had been applied to Tanganyika by Order in Council no reciprocal legislation was to be found there nor had Part I of the Kenya Ordinance been applied by proclamation of the<br>Governor of Kenya in Council to Tanganyika. While the statutory mode of enforcement<br>of such an order for costs out of the jurisdiction a of the order and to register the same in the executing court quaere if there was reciprocity for this purpose with Tanganyika.

(3) The Judgments Extension Ordinance. Part II, Cap. 14, Laws of Kenya, with its reciprocal counterpart the Judgments Extension Ordinance, Cap. 7, Laws of Tanganyika, provided for reciprocity between these possessions for the transfer for execution of decrees only, decrees restricted to those for "debt damages and costs" only and for no other sort. A decree of divorce was a decree of another sort and its transfer was not provided for.

(4) As there was no reciprocity for the transfer of orders for costs for execution noorder for transfer could be made and the application was dismissed with an order thannone of the costs thrown away be payable by the respondent.

Cases cited: Ivimey v. Ivimey, (1908) 2 K. B. 260 C. A.; Morse v. Muir, (1939) 2 K. B. 106: Richardson v. Richardson, (1927) P. 188, 228.

Authority cited: Annual Practice, 1955, p. 720.

Compared in pari materia: Judgments Extension Ordinance, Cap. 7, Laws of Tanganyika: Administration of Justice Act, 1920, Part II, section 12 (1).

# Wilcock for applicant.

RULING.—The applicant, a woman who had obtained a decree of divorce in the Supreme Court of Kenya, applies by summons in chambers for an order that the "decree with certificate of non-satisfaction be transferred to the Resident Magistrate's Court at Dar-es-Salaam in the Tanganyika Territory". The supporting affidavit recites that the respondent was ordered to pay the costs of the cause but failed to do so and is now residing outwith the jurisdiction at Dar-es-Salaam.

Although the summons *ex facie* does not invoke any particular law, the only law it can conceivably invoke is in the realm of reciprocity for it is impossible at international public law that the legislature of this Colony could legislate for another possession such as Tanganyika, although of course it could agree to pass reciprocal legislation at the same time as like law was made in Tanganyika. Before this Court can accept the invitation to make an order transferring this divorce decree to Tanganyika for enforcement it must be satisfied that the courts there have jurisdiction so to receive it. This discovery implies an investigation of the law obtaining vis-à-vis Tanganyika and Kenya. If the mutual law provides for the transfer of a decree of divorce then this Court, from reciprocity, may competently make the order.

The Judgments Extension Ordinance, Cap. 7 of the Laws of Tanganyika. 1947 (applied to Kenya by the Governor of Tanganyika by G. N. 71 of 1951) at section 2 provides:-

"Where a decree has been entered up in Her Majesty's High Court of Kenya Colony and Protectorate ... or in any court subordinate to any such. courts for any debt, damages or costs and where it is desired that such decreeshall be executed upon the person or property of the defendant in the Territory, such decree may be transferred to Her Majesty's High Court of Tanganyika (hereinafter called the High Court) or to any of the courts. subordinate thereto (hereinafter called subordinate courts) for execution and the provisions of the Code of Civil Procedure for the transfer and execution of decrees shall apply in one Court and were transferred for execution to another Court within the jurisdiction of the High Court. ..."

This is the counterpart of section 6 of the reciprocal ordinance, Cap. 14. in Kenya.

Plainly, therefore, what the High Court and subordinate courts of Tanganyika can competently receive for execution from Kenya, are decrees for certain sums of money and no other sort of decrees. The legislation does not contemplate by this simplified procedure, urged by a community of interest, the transfer of a decree of divorce.

What the applicant obtained was a decree of divorce along with an ancillary order for costs and she wishes not enforcement of the decree of divorce but execution of the order for costs. Jurisdiction to make orders for costs in matrimonial causes in the Divorce Division of the High Court in England springs. nowadays, from section 50 of the Supreme Court Judicature (Consolidation) Act. 1925, but it is less obvious where the corresponding jurisdiction is to be found in Kenya. The Matrimonial Causes Rules, rule 66 (1) states (ex post facto of the court's original order) that, after a certificate of taxation has been signed, an order to pay costs may issue. But where the applicant asks simpliciter for a transfer of a decree of divorce containing an order for costs to a subordinate

court in Tanganyika for execution, unless he can show authority to receive the same in a subordinate court, or in the High Court, there, this Court has no jurisdiction to make any such order.

Jurisdiction in matrimonial causes has no historical emergence in either the common law or in equity and I may take it that the Courts of Kenya do not derive their matrimonial jurisdiction from the Orders-in-Council but, as in England, from statute. Indeed, section 3 of the Kenya Ordinance expressly applies the law applicable in matrimonial proceedings in the High Court of Justice in England. Historically, orders for costs after divorce were made in the Chancery Division and were enforceable only by Chancery procedure: see lvimey v. Ivimey, (1908) 2 K. B. 260 C. A. In that case, Cozens Hardy, M. R., made it clear that the order for costs claimed by the successful petitioner in a divorce suit was not a judgment but a mere order and he ruled that the order could not be enforced in the King's Bench Division because the rules in the Divorce Court were a thing apart and procedure in enforcement must be under these rules since the Rules of the Supreme Court did not apply.

Goddard, L. J., in Morse v. Muir, (1939) 2 K. B. 106 was confronted with a similar problem and he remarked:-

"... an order by the Divorce Division is not the equivalent of a judgment on which an action can be brought in this Court, and, as the orders of the Divorce Division must be enforced by the appropriate steps, and under the rules of the Divorce Division, if you cannot sue on an order ordering the defendant to pay a sum for costs, it seems to follow as a matter of common sense ... that you cannot sue for interest on those costs.... Yesterday when the case was being argued it appeared to me that *Ivimey* $v$ . Ivimey was a conclusive authority against ... the contention... Looking into the matter last night, however, I found that under the Matrimonial Causes Rules which came into force on 1st January, 1938, it is provided by rule 81 that: 'subject to the provisions of these Rules and of any statute, the Rules of the Supreme Court shall, notwithstanding the provisions of Order 68 thereof, apply with the necessary modifications to the practice and procedure in any matrimonial cause or matter to which these rules relate'. It is not necessary for me to give a decided or conclusive opinion on this matter, but it may well be that Order 42, rule 24, does now apply to orders in the Divorce Division, and they are accordingly put in the same position as judgments."

That is the learned Lord Justice emphasizes that, in a matrimonial cause in England, an order for costs is an order and not a judgment however much it may be put in the position of a judgment by the application of the Rules of the Supreme Court by rule 81 of the English Matrimonial Causes Rules. Does that rule have the same effect in Kenya? I must confess to perennial difficulty in assessing how far and how much English procedure and evidence, as applied to Kenya by section 3 of the Matrimonial Causes Ordinance is valid here, because it is subject to the local Ordinance and Rules. This local matrimonial law originated as the imported personal law of Christian European immigrants and even today all parties whose matrimonial disputes are governed by this sort of personal law enjoy the benefits of the developing matrimonial law of England which is applied to them in the Colony. That is what might, otherwise, be a mere eddy enjoys the surpassing values of the full stream of English decisions and, indeed, is swept along in the full current of the social and moral development of a liberal and Christian state so that day-in and day-out the matrimonial law of this Colony keeps station in the stream without the necessity of a single pronouncement of the local Courts. But that development is checked at one point and

that is in the law of procedure. English law of procedure is subject to the Kenya Rules made under the Ordinance and these Rules have for long remained static although simplifications have been achieved in England and anomalies ironed out. The present Rules were provided by the legislature in 1939, which also set up a Rules Committee identical with the Rules Committee set up under section 81 of the Civil Procedure Ordinance. The powers of the Rules Committee have been sparingly exercised and no such rule as rule 81 of the R. S. C. England has been made. But there would be obvious difficulties in applying to Kenya, without modification the whole of the English Rules of the Supreme Court and complications by applying the whole of the Civil Procedure (Revised) Rules, 1948. One of. the difficulties of assimilating developing English practice to Kenya with its static Rules is exemplified by the present application. An order for costs obtained in divorce cause in Kenya is enforced, within the jurisdiction by application to a judge in chambers under rule 56. The Matrimonial Causes Ordinance, at section 35, enacts that orders may be enforced as if they were orders made by the court in the exercise of its civil jurisdiction and this brings me to section 28 of the Civil Procedure Ordinance which legislates for the intra-territorial enforcement of orders as if they were decrees (but of course are not). Reading the rule and these two sections together, they must be taken to envisage that orders may be enforced within the jurisdiction although they never became decrees but only decrees can be transferred to Tanganyika. I observe that the applicant has not sought to try to extract the order for costs as a decree as would be competent where costs were ordered in a judgment on a plaint. With a sense of relief I do not have to consider what might be the effect of the Rules Committee prescribing rules for matrimonial causes and so possibly identifying such causes with "suits". "Suits" it is to be noticed are by section 2 of the Civil Procedure Ordinance to "mean all civil proceedings commenced in any manner prescribed". "Prescribed" means "prescribed by rules" and "rules" means "rules and forms made by the Rules Committee to regulate the procedure of Courts". For the Rules Committee in both cases is identical. It may be however that the wording of each Ordinance would work to keep the two jurisdictions separate.

The issue here, fortunately, is simpler. The applicant has a decree of divorce with an order for costs. She has not obtained a separate decree for costs if that is competent. She cannot ask for an order for transfer of the decree of divorce for the purpose of execution of the order for costs because neither the High nor subordinate courts in Tanganyika are empowered to receive nor the courts in Kenya, from reciprocity, empowered to order, transfer of a decree of divorce. Still less do I see any power to receive or to transfer an order for costs simpliciter for execution.

I have come to the conclusion therefore that this application is misconceived and, if as was suggested by the applicant's advocate that he was following a practice, then, any such practice is also misconceived and has no basis in law to be followed. The application is dismissed with an order that none of the costs thrown away may be charged against the respondent.

I am asked to consider a remedy. In England, the procedure to enforce an order for costs in a divorce cause is plain enough, provided there is reciprocity. "Judgment" is defined in section 12 (1) of Part II of the Administration of Justice Act, 1920, as: $-$

"In this part of the Act, unless the context otherwise requires:—

The expression 'judgment' means any judgment or order given or made by any court in any civil proceedings whether before or after the passing of this Act, whereby any sum of money is made<br>payable..." It is to be noticed that the definition is confined to the purposes of the Act. According to the Annual Practice, 1955, page 720, it is settled law that the definition cited includes an order to pay costs in divorce proceedings.

Section 13 of the Act provides for a declaration by Order-in-Council that Part II of the Act applies to any territory under Her Majesty's protection and section 14 for extension where reciprocal provisions have been made by the legislature of any part of Her Majesty's Dominions outside the United Kingdom for the enforcement within that part of Her Dominions of judgments obtained in the various High Courts in the United Kingdom.

Part II of the Act was extended to the Colony of Kenya by Order-in-Council contained in Volume 5, Laws of Kenya, at page 117, and to the Protectorate of Kenya by Order-in-Council appearing at page 119 of the same Volume. These Orders recite that Part II of the Act is "extended" which implies the enacting of reciprocal legislation in Kenya. The Orders recite that reciprocal legislation is in existence and it is to be found in Part I of the Judgments Extension Ordinance, Cap. 14, Laws of Kenya, Section 2 of the Ordinance defines "judgment" in identical terms with the 12th section of Part II of the Act. That is orders for costs in divorce proceedings obtained in the United Kingdom can be enforced in Kenya and vice-versa. The procedure is to obtain a certified copy of the order and register the same as a "judgment" in the registry of the executing Court. This procedure was recognized in *Richardson v. Richardson*, (1927) P. 188; 228.

But does reciprocity exist vis-à-vis Kenya and Tanganyika, where one would ordinarily expect to find it? I observe that at page 107 of Volume 5 of the Laws of Tanganyika an Order-in-Council applicable to more than one possession which *prima facie* appears to recite that the legislature in Tanganyika has made reciprocal provisions to meet an extension of Part II of the Administration of Justice Act, 1920. I have, however, been unable to find any such reciprocal legislation in the Laws of that Territory. The Judgments Extension Ordinance, Cap. 7, Laws of Tanganyika, is in one part only, equivalent to Part II of the corresponding Kenya Ordinance but contains no part reciprocating with Part II of the Act or Part 1 of the Kenya Ordinance. The Order-in-Council, however, is so framed as to include an intention of not extending but, merely, applying the Act to Tanganyika procedure lawful by section 13 of the Act. Before the Kenya Ordinance can extend reciprocity to Tanganyika it must be extended by proclamation of the Governor of Kenya in Council to Tanganvika, in accord with section 5 and any such extension would imply reciprocal legislation in Tanganyika, which at present, does not seem to exist.

The applicant, if so advised, may test the validity of these remarks by extracting a certified copy of the order from the Supreme Court Registry in Kenya and by endeavouring to register the same for enforcement in the Registry of the High Court in Tanganyika and, if I am right this attempt may lead to reciprocity in legislation to the advantage of both possessions.