Nazareth v De Souza (Divorce Cause No. 7/1937) [1937] EACA 199 (1 January 1937)

### ORIGINAL CIVIL

#### BEFORE WEBB, J.

# HORTENCIA FELICIA DE SOUZA BY HER ATTORNEY, JOHN MAXIMIAN NAZARETH, Petitioner

$v$ .

## JOHN SEBASTIAN DE SOUZA. Respondent DIVORCE CAUSE No. 7/1937

Divorce Jurisdiction—Practice—Joinder of claim for arrears of alimony and costs of former proceedings with prayer for judicial separation—Judicial Separation—Decree of Foreign Court—Res judicata-Power of Attorney-Proceedings instituted by Attorney -Power of Attorney unstamped—"Instrument acted upon"—Duty of public officer-Divorce Ordinance (Cap. 170)-Stamp Ordinance (Cap. 57) sections 37, 44 (2).

Hearing of petition.

The petitioner, who has obtained a decree for judicial separation and for payment of alimony against the respondent in the High Court of Bombay, presented a petition, through her Attorney, praying for judicial separation and alimony and also claiming payment of the arrears of alimony due to her under the former decree and the costs awarded to her thereby. At the time of the institution of these proceedings the Power of Attorney had not been stamped as required by the Stamp Ordinance (Cap. 57).

Held $(21-9-37)$ .—(1) That the joinder of a money claim with a prayer for judicial separation was not authorized by the Divorce Ordinance (Cap. 170) and was irregular, but that the inclusion of such a claim in the petition did not render the petition a nullity.

(2) That, as a decree for judicial separation has effect only within the limits of the territorial jurisdiction of the Court pronouncing it, the matter was not res judicata.

\*(3) That the omission to stamp the Power of Attorney rendered the proceedings purported to be instituted under it a nullity.

$*(4)$ That a Power of Attorney is not merely evidence of an agreement but is itself the instrument which confers upon one person authority to act for another.

\*(5) That it is the duty of a "public Officer", before he acts upon a<br>Power of Attorney, to satisfy himself that it has been duly stamped and that it appears to have been executed by the donor: the officer who receives and files legal proceedings instituted under a Power of Attorney "acts<br>upon" it within the meaning of section 37 of the Stamp Ordinance (Cap. 57).

Nazareth for the petitioner.

Khanna (for Hopley) for the respondent:—

The petition is bad in form: a claim for arrears of alimony and the costs of the former proceedings cannot be joined with a prayer for judicial separation. The Divorce Ordinance (Cap. 170) and the Divorce Rules, 1932, show the different forms of relief that may be The Court only has jurisdiction when the petition is in asked for. order: Rule 32.

\*For decision on appeal see foot-note on page 81.—Ed.

The matter is *res judicata*: Civil Procedure Ordinance, section 9: Henderson v. Henderson (67 E. R. 313); Ricardo v. Garcias (8 E. R. 1450). The Power of Attorney was unstamped and should not have been acted upon by the officer who received and filed the petition: Stamp Ordinance (Cap. 57) sec. 37. Subsequent stamping was ineffective.

Nazareth.—Unless the petitioner obtains a decree for judicial separation and alimony she will have to bring a fresh action in respect of each instalment that is unpaid.

This is a suit upon a foreign judgment. The matter is not res judicata: Foote, Private International Law, 5th Ed. 159. A decree for judicial separation does not effect a change of status: Armitage v. Armitage (1898 P. 178); and it has no effect outside the jurisdiction of the Court pronouncing it: Halsbury 2nd Ed. 6, 301; A. G. Alberta v. Cooke (1926 A. C. 444), Anghinelli v. Anghinelli (1918 P. $247).$

The attorney's authority to sue existed independently of the actual instrument, which has now been duly stamped under penalty: Stamp Ordinance, secs. 37, 42, 44: Donogh, Indian Stamp Act, 8th Ed. 351. Authority to institute proceedings need not be proved until the hearing.

### Khanna, in reply, referred to re Mackenzie (1911 1 Ch. 578).

JUDGMENT.—The first point raised is that, as the petitioner has joined in her petition a claim for arrears of alimony and for the costs awarded to her by the High Court of Bombay with her prayer for judicial separation, the petition is bad in form and should be dismissed. In my opinion the petition is irregular in form in this respect: the Divorce Ordinance lays down the different forms of relief which a petitioner may ask for, and I do not think that she may join with these what is a simple money claim. At the same time I do not think that the effect of this irregularity is to render the petition a nullity: so to hold would mean that the Court should say, in effect, to the petitioner: "You have asked for relief to which you may be entitled, but because you have also asked for something which the Court cannot grant in these proceedings, we will reject your petition without even considering the claim which you were entitled to make". The claim that has been improperly joined can be rejected.

Then it is said that, as the petitioner has already obtained a decree for judicial separation in the High Court of Bombay, the matter is res judicata and she is debarred from bringing a second petition for the same matter. I am satisfied, on the authority of A. G. Alberta v. Cooke (1926 A. C. 444), Armitage v. Armitage (1898 p. 178) and Anghinelli v. Anghinelli (1918 p. 247), that a decree for judicial separation has effect only within the limits of the territorial jurisdiction of the Court which pronounced it: see Halsbury 2 Ed. 6, 301: and therefore a foreign decree is not of itself a bar to proceedings in this Colony. As to whether the Court, after hearing evidence, might hold that in the circumstances no justification has been shown for the filing of a second petition I express no opinion.

The next, and in my opinion the most serious point is this: the petition is expressed to be brought by "Hortencia Felicia de Souza by her attorney John Maximian Nazareth", and the petition states<br>that her place of residence is Dadar, Bombay. The Power of Attorney was executed at Bombay and it appears that it was not stamped in this Colony until the 24th July, 1937, while the petition was filed on the 4th May, 1937. Section 37 of the Stamp Ordinance (Cap. 57) says: "No instrument chargeable with duty shall be admitted in evidence ... or shall be acted upon ... by any public officer unless<br>such instrument is duly stamped". On behalf of the petitioner it has been argued (1) that the instrument is only evidence of the authority conferred and accepted by the assent of the parties and that as it is now duly stamped it is admissible in evidence; (2) that the subsequent stamping has a restrospective effect and validates anything previously done under the power conferred by the instrument, and (3) that no "public officer" (i.e. the official who received and registered the petition) has "acted upon", or was required to act upon, the Power of Attorney. In my opinion the document which is called a Power of Attorney is not a mere piece of evidence of an agreement between two persons but is itself the instrument which confers upon one person the power to act for another. It is thus defined in Wharton: "Power of Attorney, a writing usually, but not always necessarily, under seal authorizing another person, who is called the attorney of the person appointing him, to do any lawful act in the stead of another... The nature of this instrument is to give the attorney the full power and authority of the maker to accomplish the act intended to be performed". I am also of opinion that the stamping, under penalty, of an instrument does not have a retrospective effect: section 44 (2) provides that: "Every instrument so endorsed shall thereupon be admissible in evidence, and may be ... acted upon ... as if it had been duly stamped ... " not that it "shall be deemed to have been duly stamped", or any similar expression. Lastly, in my judgment, when a plaint, or petition, which shows upon its face, as this petition did, that the plaintiff, or petitioner sues by an attorney, is presented for filing, it is the duty of the officer to whom it is presented to demand the production of the Power of Attorney, and to refuse to accept the plaint or petition if the Power of Attorney appears to be manifestly invalid. I do not suggest that it is his duty to construe it, but he should satisfy himself that it is duly stamped and that it appears to have been executed by the donor. I confess that I have not been able to find any authority on the point, but it seems to me that the law must be so, otherwise it would be in the power of any "man of straw" to institute proceedings as the purported attorney of another when in fact there was no Power of Attorney in existence at all. I am therefore of opinion that it was necessary that this Power of Attorney should be "acted upon" when the petition was filed, and, as it was then incapable of being so acted upon, the petition is not properly before the Court.

One other matter has been raised which I had better deal with in case my opinion on some or all of the other questions should be held to have been wrong. This is the question to what extent the judgment of the High Court of Bombay is admissible as evidence on behalf of the petitioner. The difficulty arises from the fact that here "judgment" and "decree" are terms of art; at the same time the Civil. Procedure Ordinance speaks of a "foreign judgment": sec. 2 (8); and

sec. 9 says that "a foreign judgment shall be conclusive as to any matter thereby directly adjudicated upon between the same parties". Phipson on Evidence, 7 Ed. 399, says: "But, while domestic judgments generally operate as a merger of the original cause of action, so that execution can issue thereon, foreign judgments do not, and the plaintiff must therefore sue either upon the foreign judgment itself, which will then be treated as res judicata, or upon the original cause of action, when the foreign judgment is considered as evidence merely, but not conclusive of the debt": Hawksford v. Giffard (12 App. Cases 122). Here, as I understand it, the petitioner wishes to rely, not only upon the "decree" of the High Court of Bombay, but also upon the "judgment" of the judge who heard the case, as evidence of the facts upon which the decree was based. It may be that a decision upon this point is premature at this stage, but, for what it may be worth, my opinion is that section 9 uses "judgment" in the sense of "decree", and that it is the decree, and only the decree, of the High Court of Bombay which is conclusive as to any matter thereby directly adjudicated between the parties.

$\overline{I}$ I therefore hold that the petition herein was improperly filed and must be dismissed: and, as the omission to have the Power of Attorney stamped was due to the negligence of the attorney I must in all the circumstances order that he is personally liable for the respondent's costs other than those of an incidental to the Orders of the 29th June, 26th July, and 6th and 17th August.

The Court of Appeal for Eastern Africa consisting of Sir Joseph Sheridan, C. J. (Kenya), Sir Charles Law, C. J. (Zanzibar) and Francis, Ag. C. J. (Uganda) allowed the petitioner's appeal and held inter alia-

1. That the defect in the stamping of the Power of Attorney was not a defect which rendered the document incapable of admissibility in evidence and thus not curable by subsequent stamping. The document on being<br>subsequently duly stamped became admissible in evidence. Such stamping related back to the date of the Power of Attorney so as to validate the proceedings taken under it prior to the stamping.

2. (per Law, C. J. and Francis, Ag. C. J.) that in any case as the attorney was not a party to the suit he should not have been ordered personally to pay the respondent's costs.

The decision will be reported fully in 5 E. A. C. A.— $Ed$ .