In Re: Ian Douglas Hunter; A debtor: Ex Parte: Minnie Florence Jean Hunter (Miscellaneous Civil Proceeding No. 61 of 1955) [1955] EACA 120 (1 January 1955)

### ORIGINAL CIVIL

## Before CRAM, Ag. J.

# : IN RE IAN DOUGLAS HUNTER: A DEBTOR: EX PARTE MINNIE FLORENCE JEAN HUNTER

# Miscellaneous Civil Proceeding No. 61 of 1955

Alimony-Enforcement-Jurisdiction-Colonial and Other Territories (Divorce Jurisdiction) Acts, 1926 to 1950-Indian and Colonial Divorce Jurisdiction Acts, 1926 and 1940—Uganda Divorce Jurisdiction Order-in-Council, 1953— Kenya Divorce Order-in-Council, 1928—Uganda (Non-Domiciled Parties) Divorce Rules, 1953-Order for permanent alimony obtained in court of residence, Uganda-Order registered in English court of domicile-Cesser of petitioner's residence in Uganda-Respondent alleging domicile of choice in Kenya-Maintenance Orders Enforcement Ordinance, Cap. 16, section 3 -Order registered in Kenya for enforcement-Whether respondent entitled to show cause against registration of order—Procedure—Whether Kenva court power to vary order-Inherent jurisdiction-Whether Kenya court jurisdiction to suspend or restrict order pending recourse to courts of domicile—Costs.

A petitioning wife obtained a decree of divorce in the High Court of Uganda with ancillary order for permanent alimony. Both parties were resident in Uganda but domiciled in England. After decree both petitioner and respondent came to reside in Kenya where the respondent claimed acquisition of domicile of choice. The decree and order were obtained under the provisions of the Colonial and Other Territories (Divorce Jurisdiction) Acts, 1926 to 1950, applied to Kenya, sub nomine the Indian and Colonial Divorce Jurisdiction Acts, 1926 and 1940, and duly registered under the Acts in the Divorce Division of the High Court in England. On application by the respondent for a modification order the Uganda Courts declined jurisdiction because of cesser of residence of the petitioner and rule 24 of the Uganda (Non-Domiciled Parties) Divorce Rules, 1953. The petitioner caused the order to be registered for enforcement in Kenya, under the provisions of the Maintenance Orders (Facilities for Enforcement) Act, 1920, and its reciprocal counterpart in Kenya the Maintenance Orders Enforcement Ordinance, Cap. 16, section 3, and the Maintenance Enforcement Orders, Rules of Court, Part XVIII. Under its inherent jurisdiction the Court entertained an application by the respondent by summons in chambers for leave to show cause before any order for alimony made by the High Court of Uganda should be registered in and enforced against him in Kenya or, alternatively, if registered, the order should not be enforced in its entirety both as regards arrears and future payment.

Held (14-12-55).—(1) Although there was a projection of temporary matrimonial jurisdiction from the metropolitan country, depending upon residence, by reason of the application of the Colonial and Other Territories (Divorce Jurisdiction) Acts, 1926 to 1950, to Uganda, the English Courts retained a concurrent but enduring jurisdiction from the domicile of the married pair in England. The order for permanent alimony made in Uganda was properly registered in the Divorce Division of the High Court in England. The jurisdiction of the Uganda Courts to vary the order ceased with the cesser of residence of the petitioner in Uganda but the jurisdiction of the Courts of the domicile to make a modification order remained.

(2) According to the theory of domicile in English matrimonial law, the court pronouncing or registering the decree alone had statutory jurisdiction to vary the order after cesser of residence and although the marriage had expired, a statutory fictional jurisdiction was permanently retained in the Courts of the domicile at the time of decree.

(3) Jurisdiction to alter the order did not follow the new residence or new domicile of the ex-husband so that the jurisdiction of the English Courts was not affected by the ex-husband's change of domicile to Kenya. The acquisition of a domicile of choice<br>in Kenya by the ex-husband, therefore, did not confer upon the Kenya Courts jurisdiction to vary the order.

(4) The registration of an order for alimony, registered in the English Courts, in<br>the Supreme Court of Kenya, for enforcement, is an administrative act initiated by<br>the Secretary of State. The party against whom the order has no right to show cause against the registration nor does the fact that on registration the order becomes an order of the Supreme Court give him a right of appeal, in Kenya, either from the order itself or from the registration of it.

(5) Section 3 of the Maintenance Orders Enforcement Ordinance, Cap. 16, does not give the Kenya Courts power to discharge or vary an order for maintenance or to usurp the jurisdiction to do so resident in the court of the fictional matrimonial domicile.

(6) The Kenya Courts, under the Ordinance Cap. 16, as well as from inherent jurisdiction to prevent abuse of the process of the Court, have a power, in a proper case, to suspend enforcement of the order or to order payment into Court with or without part-payment out, pending recourse to the court of the fictional matrimonial domicile for a modification order, but such power is exercised with care to prevent abuse and only on sufficient cause shown and under proper safeguards.

Semble: The Kenya Courts would not refuse simpliciter to enforce a registered order.

Cases cited: Niboyet v. Niboyet, (1878) 4 P. D. 1 C. A.; Le Mesurier v. Le Mesurier, (1895) A. C. 517 P. C.; Keys v. Keys and Gray, (1921) P. 204; In re Antrobus, A Debtor,<br>(1895) A. C. 517 P. C.; Keys v. Keys and Gray, (1921) P. 204; In re Antrobus, A Debtor,<br>(1954) 27 K. L. R. 94; Bailey v. Bailey, (1884) 13

Compared: In pari materia the Maintenance (Facilities for Enforcement) Act, 1920, section $1(1)$ .

### Wilcock for respondent/ex-husband.

## Shaylor for petitioner/ex-wife.

RULING.—It is common ground that, in a divorce cause depending before the High Court of Uganda, at Kampala, both parties were Europeans, resident in Uganda but domiciled in England. For reasons which are irrelevant, it is more difficult to establish a domicile of choice in case of a European in Uganda than in Kenya and, as the law of Uganda contains, at Cap. 112 of the Revised Editions of the Laws of Uganda, 1951, an Ordinance which throws a much heavier burden of proof upon the wife than in the United Kingdom or in this Colony and as the wife was the petitioner, it is not surprising to find that she invoked an Act recently applied to Uganda, although older in the legal history of the Commonwealth, the Indian and Colonial Divorce Jurisdiction Act of 1926, as amended in 1940. For the purposes of the instant application it is useful not to overlook that the Act was passed to ensure the validity of divorce decrees made by the Indian Courts under the Indian Divorce Act, 1869, which enabled a petitioner professing the Christian religion to obtain a decree when the parties were resident only and not domiciled in India, at a time when divorce jurisdiction was held to be based on residence: Niboyet v. Niboyet, (1878) 4 P. D. 1 C. A. When, however, it was finally decided that domicile is the sole and exclusive ground of jurisdiction: Le Mesurier v. Le Mesurier, (1895) A. C. 517 P. C. The extra-territorial validity of decrees made under the Act of 1869 was denied in Keyes v. Keyes and Gray, (1921) P. 204. Whereupon the Act of 1926 was passed to remove doubts as to the validity of divorce decrees made by the Indian Courts. For the same reason the Kenya Divorces (Validity) Act, 1922, was passed to validate divorce decrees of the Kenya Courts under the Kenya Divorce Ordinance, 1904.

The Indian and Colonial Divorce Jurisdiction Acts, 1926 and 1940, were applied to Uganda sub nomine the Colonial and Other Territories (Divorce Jurisdiction) Acts, 1926 to 1950, by the Colonial and Other Territories (Divorce Jurisdiction) Order-in-Council of 1953, as then 1926 Act was to Kenya by the Kenya Divorce Jurisdiction Order-in-Council, 1928, while the 1940 Act was self-applied to Kenya by section 5 $(b)$ thereof.

In consequence of section 1 $(4)$ of the 1926 Act, rules were made by the Secretary of State for the Colonies, with the concurrence of the Lord Chancellor; in Kenya, intituled the Kenya (Non-Domiciled Parties) Divorce Rules, 1928, and, in Uganda, intituled the Uganda (Non-Domiciled Parties) Divorce. Rules, 1953.

Section 1 $(1)$ of the Act enacts (with necessary substitution, in case of $Uganda$ : —

"Subject to the provisions of this Act a High Court in Uganda shall have jurisdiction to make a decree for the dissolution of a marriage, and, as incidental thereto, to make an order for damages, alimony or maintenance, custody of children and costs, where the parties to the marriage are British subjects domiciled in England or in Scotland, in any case where a Court in Uganda would have such jurisdiction if the parties to the marriage were domiciled in Uganda."

Section 1 (1) (c) as amended in 1940 reads: —

"No Court shall grant any relief under this Act except in cases where the petitioner resided in Uganda at the time of presenting the petition and the place where the parties to the marriage last resided together was in Uganda or to make any decree of dissolution of marriage on the ground of adultery, cruelty or other crime except where the marriage was solemnized in Uganda or the adultery, cruelty, or crime complained of was committed. in Uganda."

The Acts further provide for the law, principles and rules to be applied to be those in force in the High Court in England.

The petition, therefore, contained averments that the respondent was domiciled in England but last resident in Uganda with the petitioner and that the petitioner, at the time of presenting the petition, was resident in Uganda. In fact, it is admitted that both parties were then resident in Uganda. It is common ground that the respondent although he entered an appearance did not oppose the petition either on the grounds of jurisdiction or on the merits. It is also not a matter of dispute, that, after the learned Chief Justice of Uganda ordered decree absolute, the respondent appeared and contended an issue of alimony. The learned Chief Justice ordered the respondent to pay alimony to the petitioning wife at the rate of $£35$ per month, for life.

It is further common ground that proper steps were taken to register the order for alimony, in the High Court in England. Section 1 (2) of the principal Act, as amended in 1940 runs: -

"Where a decree or order is made under this section, the proper officer of the court making the decree or order shall transmit a certified copy. thereof-

(a) if the parties to the marriage are domiciled in England, for registration in the High Court in England ... and upon receipt of a copy of a decree or order purporting to be so certified and transmitted, the decree or order shall be registered accordingly."

Section 1 (3) as amended in 1940 runs: $-$

Where a decree or order has been registered in accordance with the $\therefore$ last preceding sub-section proceedings may be taken thereunder as if it had been a decree or order made on the date on which it was made in the High Court in Uganda by the High Court in England... and in the case of an order, proceedings may be taken for the modification or discharge thereof as if it had been such an order as aforesaid:

Provided that the High Court in England ... shall not, unless the Court for special reasons sees fit to do so, entertain any application for the modification or discharge of any such order if and so long as the person on whose petition the decree for the dissolution of the marriage was pronounced is resident in Uganda:

and (iii) nothing in this sub-section shall be construed as preventing the taking of any proceedings in Uganda under or in relation to any decree or order under sub-section (1) of this section at any time after the making thereof."

Since the order was registered both parties have ceased to reside in Uganda. After cesser of residence the respondent made an application in the High Court of Uganda to vary the order for alimony but the learned Chief Justice of Uganda felt compelled to dismiss the application on being referred to rule 24 of the Uganda (Non-Domiciled Parties) Divorce Rules, 1953, viz.:-

"Proceedings relating to alimony ... shall be conducted in accordance with the provisions of the Divorce Ordinance of Uganda (Chapter 112 of the Revised Edition of the Laws, 1951) and of the rules made thereunder. ...

Provided further that the High Court of Uganda shall not entertain an application for the modification or discharge of an order for alimony. unless the person on whose petition the decree for the dissolution of marriage was pronounced is at the time such application is made is resident in Uganda."

The tenor of the Colonial and Other Territories (Divorce Jurisdiction) Acts, 1926 to 1950, is that, while the petitioner remains in residence within the territory wherein he or she obtained decree of divorce, the Courts of that territory, unless in special circumstances, are available to modify or discharge any order for alimony but once the petitioner has so ceased to reside then the indicated *forum* is that of the domicile of the husband at the time the petition was presented.

The respondent did not satisfy the order for alimony and the petitioner, discovering that the respondent had come to live in Kenya, caused the order for alimony to be registered in the Supreme Court of Kenya for enforcement under the provisions of the Maintenance Orders Enforcement Ordinance, Cap. 16. Why this procedure was the appropriate remedy available to the petitioner is dealt with in $In$ re Antrobus: A debtor, (1954) 27 K. L. R. 94. The order for alimony falls within the definition of "maintenance order" contained in section 2 of Cap. 16 but, unlike the decree of divorce, which is in rem, it is merely an order *in personam*. Further, the order by English matrimonial. law, which is common to the courts of divorce jurisdiction in England, Uganda and Kenya, the order can be varied, at any time, at the discretion of the court that made it, not only with regard to the future but also with regard to past instalments, which have accrued due and are in arrear. In the result the order in personam not being a final judgment could not be enforced by suing out a writ at common law. Had the petitioner attempted to sue out a writ upon the

order for alimony she would have been inevitably non-suited because of the rule laid down in Bailey v. Bailey, (1884) 13 Q. B. D. 855 C. A., Robins v. Robins, (1907). 2 K. B. D. 13, Harrop v. Harrop, (1920) 3 K. B. 386 and Beatty v. Beatty, (1924) 1 K. B. 807 C. A. The long title of Cap. 16 runs: "An Ordinance to Facilitate the Enforcement in the Colony of Maintenance Orders made in England, Eire and Northern Ireland and Vice Versa", plainly indicating reciprocity. The Ordinance became law in 1921 and in 1920 there was enacted in England the Maintenance Orders (Facilities for Enforcement) Act. 1920, the long title of which is: "An Act to Facilitate the Enforcement in England and Ireland of Maintenance Orders Made in Other Parts of Her Majesty's Dominions and Protectorates and Vice Versa". As was said in In re Antrobus one of the express purposes of the Act and the Ordinance, like their counterparts throughout the Commonwealth, was to enable enforcement of a maintenance order made ancillary to a decree of divorce which could not otherwise be enforced out of the jurisdiction of the metropolitan or dominion or colonial jurisdiction where it was made since it was an order subject to revision by the court pronouncing the order.

The order came to the Colony through the diplomatic channel required by section 1 of the Maintenance Orders (Facilities for Enforcement) Act, 1920, and was registered because of the provisions of section 3 of the Maintenance Orders Enforcement Ordinance, Cap. 16, and the Maintenance Enforcement Orders Rules of Court, Part XVIII, page 474, Vol. 5, Laws of Kenya, and was registered by the Registrar of the Supreme Court in the prescribed Register. As laid down in In re Antrobus, the procedure available to the petitioner was to obtain a distress warrant for execution against the property of the respondent. Before, however, any such warrant issued the respondent was given leave to apply by summons in chambers to be heard on two issues which seemed important enough in the absence of authority to justify the exercise of the inherent jurisdiction of the Court lest an issue of the distress warrant amount to an abuse of the process of the Court.

The first issue was that the respondent should be heard before any order for alimony made by the High Court of Uganda be registered in and enforced against him by the Supreme Court of Kenya and, further, that the order should not be enforced in its entirety against him even if registered both as regards arrears and future payments.

The reasons in support of the summons were stated in an affidavit that by reason of rulings of the Supreme Court in Kenya and the High Court in Uganda and because the petitioning wife no longer resided in Uganda and whereas both parties now reside in Kenya it would appear that so long as the petitioner avoided residence in Uganda no court existed with jurisdiction to entertain an application to vary the order for alimony; that it seemed inequitable and contrary to natural justice that an order should be enforced by the Supreme Court without opportunity being afforded to the respondent to be heard showing cause why the order should be varied.

The application falls under three main heads: first, that for some reason arising out of the application of the peculiarities of the Colonial and Other Territories (Divorce Jurisdiction) Acts, 1926 to 1950, to Uganda and by cesser of the residence of the petitioning wife, there is no jurisdiction to vary an order, which by English law is essentially variable and so the inherent jurisdiction of the Court is invoked either to declare that the order ought not to be registered or, second, because of the peculiarities of the Maintenance Orders Enforcement Ordinance, Cap. 16, the Court has statutory authority, as the enforcing Court, to vary the order, as if it were the Court pronouncing the order and, third, because the respondent has now taken up, what he declares to be permanent residence in Kenya, he has acquired a domicile of choice and this Court, by reason of the peculiarities of the Indian and Colonial Divorce Jurisdiction Acts, 1926 to 1940, stemming from the metropolitan country and applied to both Uganda and Kenya, has power in that matrix of law to vary the order as the Court of the domicile.

With respect to the arguments adduced, they seem to me not fully to appreciate the pattern of law within the Commonwealth. The Queen in Council and Parliament are the principal founts of law but, in the wide sense, Parliament cannot legislate in a dependency although it can provide general Acts which may be applied to dependencies of the Crown by Order-in-Council. I do not propose, nor is it necessary for the purpose, to enter into the distinction between the "application of" and the "extension of" Acts of Parliament to colonies and protectorates under the provisions of the British Settlements Acts and Foreign Jurisdiction Acts but, whether or not the effect is to create reciprocity between the United Kingdom and the dependency, reciprocity is not so created between the dependencies inter se. Any such reciprocity is the mutual creation of the legislatures of the dependencies. The object for enacting the Indian and Colonial Divorce Jurisdiction Act of 1926 was, first, to validate decrees of divorce passed under a jurisdiction believed to depend upon residence, after the House of Lords had discovered the true basis of matrimonial jurisdiction was in domicile alone, and second, to project a jurisdiction by residence in matrimonial causes where the parties, although domiciled in the United Kingdom. were at that time debarred by time and distance from seeking recourse in the courts of the domicile, because they resided in India or other dependencies. At one and the same time, the courts of the domicile and the courts of the residence had jurisdiction, although of course it could be exercised, at one and the same time, by one only of the two. The Act of 1926 was applied by Order-in-Council to the majority of the Crown dependencies but in no sense did such application create a jurisdiction *inter se*. The projection of jurisdiction ob convenienti from the metropolitan country to the dependency of Uganda, as well as to Kenya did not enable a person domiciled in Kenya but resident in Uganda to have recourse, in a matrimonial cause, to the Courts of Uganda; although that person could have applied in Kenya for relief he could not have approached the United Kingdom Courts although resident within their jurisdiction. In such instance, the Uganda Courts would have no shred of jurisdiction. At the time, therefore, the petitioner obtained her decree based on binary jurisdiction by residence in Uganda and by domicile in England, the Kenya Courts had no jurisdiction. When she ceased to reside in Uganda, the Uganda Courts too ceased to have jurisdiction. The only Court with jurisdiction, thereafter, was the High Court in England. That Court, under the scheme of the Act of 1926 as amended, had jurisdiction to discharge or vary the order for maintenance.

That is, after the registration of the decree in the High Court in England and after the petitioner ceased to reside in Uganda and, meantime, ignoring the issue of a possible acquisition of a domicile of choice by the ex-husband the only Court with jurisdiction to discharge or vary the order for alimony was the High Court in England. The mere residence of the petitioner or respondent in Kenya should not possibly affect the issue. But what of the case where the respondent alleges he has, after the decree of divorce, abandoned his domicile of origin in England and acquired a domicile of choice in Kenya? He is estopped by the decree of divorce from maintaining that at the time of divorce he had no English domicile. He had entered an appearance and submitted to the jurisdiction of the Uganda Courts under the applied Acts. He cannot now be heard to defeat the jurisdiction which he accepted by his appearance upon which a decree in rem was obtained by maintaining some contrary domicile. In my view, the fallacy of the respondent's argument lies in this that he considers that. because the domicile of the married pair is the domicile of the husband during the subsistence of the marriage that jurisdiction follows the domicile of the ex-husband after the marriage. But the petitioner, the ex-wife, has no longer ex lege the domicile of her ex-husband because her own domicile has revived. Ignoring this, the respondent attempts to maintain that, in some way, the court with jurisdiction to vary the order is the court of his new domicile of choice. Under the statutory rule, both in England and in Kenya, it is the court which. pronounced the decree and the order which has power to discharge or vary the order. In my view, the mere acquisition of a domicile of choice by the ex-husband, after decree of divorce, cannot affect jurisdiction, and this holds. good even although the English Court did not pronounce the decree of divorceor make the order but merely registered the same as the court of the domicile. Of necessity, by reason of the rule of domicile within the Commonwealth. by a legal fiction, jurisdiction is arrested in the court of domicile at the time of dissolution of marriage. It cannot be altered by subsequent acquisition of a new domicile by the ex-husband.

It is useless, therefore, for the respondent to come here and submit that: he is defeated in his remedy for an order to vary the order for alimony because there is no court with jurisdiction and to appeal on grounds of natural justice to the inherent jurisdiction of this court to vary, which would only avail himif, in fact, there was no forum at all available. The proper forum is, plainly, the court of the "arrested" domicile, the High Court in England, the opinion of which he has never tested and which he apparently can, at any time, competently take.

But there remains one more issue, more subtle and with no authority in Kenya that there is statutory jurisdiction to vary the order provided by the Maintenance Orders Enforcement Ordinance, section 3. The Ordinance, I may say, at the outset, provided for the enforcement of the order for alimony of a competent court made ancillary to a decree for divorce—see In re Antrobus. I propose to call this a "registered order" as opposed to the other remedy<br>provided by the Ordinance for confirmation of a provisional order of an extraterritorial court of summary jurisdiction enjoying reciprocity with Kenya.

The pattern whereby maintenance orders are enforced within the Commonwealth, contrasts with the design of application of the Indian and Colonial Divorce Jurisdiction Acts to dependencies. In the former case, reciprocity is. envisaged not only between the metropolitan country and each several dependency but also reciprocity between the dependencies inter se, whereas, in the latter, noreciprocity is intended even between the metropolitan country and any one dependency to which the Acts are applied. The English Maintenance (Facilities. for Enforcement) Act of 1920 has been extended virtually to all overseas dependencies of the Crown, including the self-governing Dominions, by Orderin-Council but the Act is extended only when Her Majesty-in-Council has been satisfied that reciprocal provisions have been enacted by the legislatureof the dependency. In turn, that reciprocal legislation enacted within each dependency provides for reciprocity by local orders so that, in the course of time, a web of reciprocity has been woven virtually throughout the whole Commonwealth. It is to be observed that none of these Acts or Ordinances: purport to legislate extra-territorially but offer facilities for enforcement of externally obtained orders intra-territorially. The reciprocal legislation in Kenya, Cap. 16.

extends facilities for the enforcement of maintenance orders made in the United Kingdom but section 10 empowers the Governor to extend the Ordinance to any other possession of the Crown on being satisfied there is reciprocity.

Section 3 of Cap. 16, with necessary alterations, is identical with section I of the Act of 1920, viz.: $-$

"Where a maintenance order, has ... been made against any person by any court in England, ... and a certified copy of the order has been transmitted by the Secretary of State to the Governor, the Governor shall send a copy to the prescribed officer of a court in the Colony for registration; and on receipt thereof the order shall be registered in the prescribed manner, and shall, from the date of such registration, be of the same force and effect. and subject to the provisions of this Ordinance, all proceedings may be taken on such order as if it had been an order originally obtained in the court in which it was so registered and that court shall have power to enforce the order accordingly....'

For interpretation of the like section of the English Act I refer to *Pilcher* $v$ . Pilcher, (1955) 2 A. E. R. 644. There a maintenance order made in a Gibraltar Court was registered for enforcement in England and was there resisted on various grounds *inter alia* that the respondent could resist registration of the order or. if registered, the English Court could vary or discharge the order or otherwise that the respondent could appeal from the order after registration in the English Courts against the order itself or against the act of registration.

A cursory reading of the section tends to suggest that the court in which the order is registered is statutorily afforded the same powers as the court which pronounced the order and therefore vary or discharge the order. Against any such construction is ranged the whole theory of English matrimonial jurisdiction founded upon domicile, for which deficiency the Ordinance and its counterparts were enacted to palliate, that the court which alone can alter or vary the order is the court of the matrimonial domicile and as that state of matrimony in case of divorce has come to an end it is necessary to embalm the deceased matrimonial domicile permanently in the pronouncing court. A Continental jurist might feel impelled, on having this explained to him, to exclaim that it was the theory of domicile which necessitated such remarkable legal fiction and consequential remedial legislation. The law of divorce is, in the main, statutory and both the Matrimonial Causes Act, 1950, and the Matrimonial Causes Ordinance, Cap. 145, expressly legislate a power to the court pronouncing a decree of divorce, with ancillary order for alimony to vary or discharge the order. On the other hand, however much in conflict with legal theory, legislation might give intentionally or otherwise to the registration court a power to vary or discharge the order of the pronouncing court. The objections which an ex-wife could extend to the court of her husband's residence having jurisdiction to alter her order for alimony might be countered by those of her ex-husband were he compelled to submit to the jurisdiction of a court of arrested legal domicile.

$\ddot{\phantom{0}}$

Lord Merriman, in Pilcher's case, stated: -

"The registration of the order, whatever its consequences may be appears to be an administrative act initiated by the Secretary of State. The party against whom the order to be registered was made has no right to show cause against the registration, nor does the fact that on registration the order becomes an order of the ... court give him a right to appeal either from the order itself or from the registration of it."

This opinion, in my view, precludes the respondent from being permitted to show cause why the order should not be registered or, from attempting to appeal against such registration or, after registration, from appealing against the order on the merits to the superior appellate courts of the registering court. The opinion embraces the well-known rule that a maintenance order, like an affiliation order, cannot be questioned as to validity in the executing court. I must accept that the order is a valid order and because it has proceeded through the diplomatic channel I must also accept that it is a genuine order. This court cannot impede the registration of the order because of the mandatory legislation. I, therefore, reject the prayer that the respondent be given leave to show cause why the order should not be registered.

Lord Merriman distinguished between an order obtained extra-territorially, sent to the United Kingdom to be registered for enforcement and an order obtained provisionally, sent to the United Kingdom for confirmation before it can be enforced. And he was at pains to point out how the dual scheme of the 1920 Act tended to complicate interpretation of section 1 (1). He cited the magistrate as saying: $\rightarrow$

"That section 1 (1) of the Maintenance Order (Facilities for Enforcement) Act. 1920, under which the order was registered gave no power at all to the court in which the order was registered to vary it. This is clearly a matter of interpretation of statute..."

And he went on: $-$

"Compared with the corresponding provisions of the Maintenance Orders Act, 1950, section 18, section 1 (1) of the Act of 1920 appears to contain a certain amount of tautology. For example, it is not obvious why, having enacted that the order is of the same force and effect as if it had been originally been made in a ... court in England, it was necessary to enact that all proceedings may be taken on such order as if it had been originally obtained in a ... court in England, or, having enacted that all proceedings may be taken on it, to enact further that the court shall have power to enforce the order accordingly. Looking to the words of this sub-section alone, even reading them in the light of the title of the Act. viz.: $-$

'An Act to facilitate the enforcement in England and Ireland of maintenance orders made in other parts of Her Majesty's Dominions and protectorates and vice versa'

which, it may be observed, plainly, does not comprehend all the provisions of the Act, we are by no means convinced that the words: -

'all proceedings may be taken on such order as if it had been an order originally obtained in (a . . . court in England)'

are necessarily limited to the power to enforce such an order, a power which is specifically mentioned in the words which follow next in the sub-section. By contrast, with section 1 (1) of the Act of 1920, section 4 deals with what is called provisional orders obtained by a wife in a part of the Queen's Dominions outside the United Kingdom between which and this country reciprocity in this respect obtains and section 3 of the Act applies to the converse position... Nor is there any provision in section $1(1)$ at any stage of the proceedings for the 'shuttlecock' procedure provided in section 4. It appears to us therefore, that the marked contrast between the wording, the scope and the machinery of the two sections, except only with regard to enforcement, almost necessarily suggests that some limit must be put on the apparent generality of the words 'all proceedings may be taken on such an order'. As the argument of counsel for the wife about the construction of the sub-section was based on the assumption that the word 'on' in this last phrase presupposes the continuing existence of an order, he was at one time disposed to suggest that the section might give power to the registering court to order the variation as distinct from the discharge or revocation of a registered order. This distinction does not appear to us sound. For any complaint for variation or discharge is necessarily based on the fact that at the moment of the complaint there is a subsisting order to the variation or discharge of which the court is asked to direct its mind. We appreciate, however, that absurd results may follow if the proper construction of the sub-section excludes the possibility of a registered order being discharged or even varied by the registering court. For example, the husband may have conclusive evidence that the wife has died; ... If it is thought that this situation calls for a remedy consideration might be given to the advisability of applying to orders registered under section 1 (1) of the Act of 1920 some procedure similar to the 'shuttlecock procedure' which applies to orders confirmed<br>under section 3 or section 4 of the Act or, under section 22 of the<br>Maintenance Orders Act, 1950, to orders registered under that Act, with or without amendment of the rules so as to enable process or notice of process to be served out of England or Wales by registered post.... Recognizing as we do that neither registered nor confirmed orders are free from certain anomalies and difficulties, the essential differences between the scope of the two sections by which they are governed remains. They seem to us to be such that the true conclusion if that section $1$ (1) is limited to enforcement and does not permit of complaints for alteration, variation or discharge registered by virtue of that section. In this respect we agree with the opinion expressed by (the magistrate). . . .

This interpretation of a statute, *in pari materia*, on appeal to the Probate Division, is to be followed. The rules made under the Ordinance, Cap. 16, support such a view, i.e. the Maintenance Orders Enforcement Rules of Court, Part 18, Vol. V, Laws of Kenya, page 474. These Rules, while providing means for summoning a husband before the court in case of a proposed confirmation of a provisional order and for the variation or recission of any such a provisional order, do not mention procedure for variation or revocation or appeal from any registered order. In the instant matter, the Court, out of its inherent jurisdiction, the law in the Colony being without benefit of decision, gave leave to the ex-husband to be heard.

The "tautology" referred to by Lord Merriman appears equally in section 3 of Cap. 16 and accepting with great respect his interpretation, the word "and" linking the phrases "all proceedings may be taken on such order" and "that court shall have power to enforce the order accordingly" must be read conjunctively and as so marrying the two phrases together as to afford the court one power only and that to enforce and not many powers including those to discharge or vary. That is, the second phrase limits the generality of the first and the whole must be read as meaning "that court shall have power to enforce the order by all proceedings as if such order had been an order originally obtained in the court in which it was so registered".

But, although this Court may be shown to have no power to rescind, vary or discharge a registered order, it may well retain under the wording of the section or, as part of its inherent jurisdiction to prevent abuse of the process of the Court, power to suspend enforcement pending recourse to the pronouncing

Court or, less stringently, to order payment, after enforcement, into Court, again pending recourse. While it may be mandatory to register the order under section 3 of Cap. 16, nowhere does the section state that it is mandatory to enforce the same without concern for natural justice. No doubt when an order is registered and the Court is moved to issue a distress warrant, in the absence of any just and equitable considerations, the Court has a duty to and must issue process. But assuming the instance proponed by Lord Merriman, that the ex-husband can prove to the registering court that his ex-wife has died, what then? The order for permanent alimony was in personam and, as regards future alimony, expired with the ex-wife. Can it be said that on such proof that this Court with open eyes would issue process against the property of the ex-husband who had complied with the order up to the date of death and, would see some third-party, fraudulent or otherwise, carry off the spoils? I think not. On such proof being tendered to the pronouncing court, that court would rescind or discharge the order for alimony. It would seem to me therefore, in such a case, that this Court would have power to order suspension of enforcement to enable an ex-husband, so taken by surprise, to make application to the pronouncing court. It would seem inconceivable that this Court would make itself a party to an injustice of the nature outlined. That is, the Court must retain some discretion in enforcement of maintenance orders, the more obviously so were an order some years old comes to be registered for enforcement from half-a-world away. On the other hand, it would also be unjust, if the holder of an order, having, at last, traced her ex-husband to the Colony, should have her remedy suspended, on a submission that circumstances had changed to an extent which in all probability would cause the pronouncing court to vary or discharge the order, but that no attempt whatsoever had been made by the ex-husband to apply to have the order modified and, to the contrary, he had seemed to cvade payment by making himself scarce. Such "blocking" allegation combined with continual shifts of residence would lead to disfruition of the order. In the result, it would seem that this Court retains a discretion although in a limited field. It cannot vary or discharge the order or usurp the function of the pronouncing court, but within the narrow field of enforcement, it may consider facts submitted by either party and, in a proper case, it might conceivably suspend execution and, in another, order payment into Court pending recourse, but I should be loath to rule that this Court has power to refuse to enforce simpliciter which might be tantamount to discharge. I have not to decide this issue on the facts in the instant matter.

The second prayer is that the order of the Uganda Courts should not be enforced in its entirety. This may be ambiguous. But, if it is a prayer that this Court, on the facts, should vary the order or restrict it tantamount to variation then I am compelled to refuse it as beyond the competency of this Court. If, however, it is intended that the whole rigour of the order should not be enforced because, if time were given, the pronouncing court would vary the order, then I may be entitled to look at the facts and consider suspension or payment into Court. My own view is that no such secondary meaning was in the mind of the respondent from the affidavit and arguments adduced, but as the prayer may cover such intent I propose to consider the facts. The procedure is summary and it may well save time and money if I do so now.

The order was for alimony at the rate of £35 per month but, apparently, was intended to cover the maintenance of a child as well as the wife. Then it is said that the order was complied with after the remarriage of the petitioner to a third party up to some six weeks after the remarriage. Thereafter, the respondent elected to modify the order to suit his own interpretation of circumstances and paid at the rate of £10 per month, only, in respect of the child. The respondent made abortive attempts to have the order varied in Kenya, in Uganda and now again in Kenya and although he considered going to the United Kingdom Courts, on legal advice, he says, he abstained from any such approach. He founds, obstinately, and I consider wrongly, on this that he has no remedy in any court since both the petitioner and himself are now resident in Kenya where he claims to have established a domicile of choice. Wilful obstinacy to take an obvious remedy tends to suggest that the respondent is trying to stave off the evil hour of payment. He admits that he himself remarried about the time he ceased to fulfil the order and avers that the respondent was subjected to a decree of nullity of marriage some seven months after her remarriage.

In my judgment, the respondent has failed to have recourse to the proper forum and at the same time he has taken the law into his own hands and modified the order of the Uganda Court to suit his own interpretation. It is of little avail for him to come here and, for excuse, submit his own interpretation of the law, in error. There is no element of surprise. He has dillied and dallied with approaches to courts without jurisdiction and it is only right and proper that he should be condemned in the costs of this ill-founded application which are to be taxed and paid forthwith. He has never tested the jurisdiction of the English Courts wherein any remedy he may have seems to lie. On the other and, the facts and circumstances he alleges may or may not induce the proper court to make a modification order. In these circumstances, it would not be a proper exercise of discretion to order suspension of enforcement pending recourse. The respondent is ordered to pay the full sum of alimony and arrears into Court, forthwith, pending recourse, failing which a distress warrant may issue. I further order that, provided that within 15 days, the respondent files an undertaking to pursue his remedy forthwith in the English Courts, payment out to the petitioner be restricted to a rate of $£20$ per month. Further, the respondent is to keep the petitioner's advocates advised of the progress of his application for a modification order until service thereof on the petitioner and, if he fails to do so or to pursue his remedy, the petitioner has liberty to apply to this Court.