Nam Lau Bik Yiu v. Nam Yuk Tong and Another

CACV000115/1984

Divorce - appeal against decree absolute - jurisdiction of Court of Appeal - s.14(2)(d) Supreme Court Ordinance.

Where the Respondent in divorce proceedings establishes that she had not been served with the petition, the decrees nisi and absolute are nullities and she is entitled to have them set aside ex debito justitiae. On the facts the Court of Appeal had jurisdiction to entertain her appeal under s.14(2)(d) of the Supreme Court Ordinance.

IN THE COURT OF APPEAL

BETWEEN

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Coram: Sir Alan Huggins, V.-P., Cons and Fuad, JJ.A.

Date of Hearing: 5th July 1985

Date of Judgment: 5th July 1985

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JUDGMENT

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Fuad, J.A.:

1. By this appeal, Madam Nam Lau Bik Yiu seeks to set aside a degree nisi of dissolution of marriage granted by Sir George Souyave in the District Court on 5 December 1981 on a .petition filed by her husband Nam Yuk Tong, and the decree absolute subsequently granted on 19 January 1982.

2. Leave for Madam Nam to appeal out of time was granted by this Court on 1 May 1984. The background to the appeal is fully set out in the judgment I delivered on that occasion, and for ease of reference I set it out again:

"             The parties were married in February 1970. They had a daughter in September 1970, and their son was born in October 1971. The husband presented a petition for divorce on the 17th of September 1981, dated the 2nd September. The ground upon which the Petition was based was the irretrievable breakdown of the marriage, and the facts upon which the irretrievable breakdown was founded were that the parties to the marriage had lived apart for a continuous period of not less than two years immediately preceding the presentation of the Petition and that the Respondent had consented to the decree being granted.

A notice on Form 3 was sent to the wife to an address at No. 129 Sai Yee Street, 6/F., Mongkok. On the 23rd of September 1981 a Form 4 (which is an acknowledgement of service) was filed on behalf of the husband, giving the date of service as the 21st of September 1981 and stating that the address at which service had taken place was Flat N, 2/F., New Lucky Building, 15 Jordan Road which. we know was the then Kowloon office of the husband's solicitors Messrs. Jenkins, Oliver & Au, for that is their address given on the Petition. The acknowledgement of service also stated that the wife did not intend to defend the case and it was purported to be signed by the wife in the form Lau Bik Yiu. The address given of the wife is the same; as that on the Petition, that is to say the flat in Sai Yee Street.

The hearing took place in the District Court before Sir George Souyave on the 5th December 1981, when he granted a decree nisi. The court file for which we called indicates that the Judge was told by the husband that he recognised the signature of his wife. on the acknowledgement of service form. On the 19th January 1982 the decree was made absolute.

In the wife's affirmation, which today is not controverted, (although the husband has been served with notice of this application he has not appeared, and is not represented) she states that she had in fact lived continuously with her husband until the 19th July 1980, whereas in the Petition it was stated that they had been living apart from about the 5th May 1979 - that is a whole year's difference. She says that she left Hong Kong for the United Kingdom with her husband's relatives for a sight-seeing visit on the 28th July 1980, after a short visit to Taiwan in the same mouth, and she had then gone to Ireland, again with her husband's relatives, this time to help them to run a restaurant. She had lived there from the 28th September 1980 until June 1982. Her husband had agreed to her going there and the plan was that both children would join her in Ireland, and be educated there. She denies that she consented to the divorce in her affirmation.

The wife also says she knows nothing about the address on the 6th floor of the flats in Sai Yee Street; she had never been there. She says she did not know anything about the New Lucky Building flat but had been told by her solicitors that it was the Kowloon office of the husband is solicitors. She had looked at the signature on the acknowledgement of service form and it was not her signature. She produced photocopies of the relevant pages of her passport which give support to the dates of her absence from Hong Kong, prima facie, , at least.

The wife says that she only discovered the proceedings brought by her husband some time in June 1982 after her return to Hong Kong on the 4th June 1982. She adds that her solicitors found out about the divorce after she had approached them with a view to instituting her own proceedings against her husband for divorce."

3. I should mention here that when we gave leave to Madam Nam to appeal out of time, we ordered the lady with whom Mr. Nam had gone through a form of marriage after the decree was made absolute to be made a party to this appeal. That lady was duly joined anal she has not appeared at the hearing before us today (though properly served) and is not represented.

4. In pursuance to the leave we granted (on 18 January this year) to Madam Nam to adduce fresh evidence, she has made a new affirmation dated 26 June repeating the essential facts I reviewed in my earlier judgment. Her evidence, as regards its important particulars, is fully supported by the endorsements on her passport. And we have before us affirmations made by Mr. T.C. Lai, a handwriting expert, who stated his opinion, after being shown a number of letters written by Mr. Nam and comparing the handwriting upon them with specimens of Madam Nam's signature and the signature on Form 4, as follows:

"I am of the opinion that it is very likely that the signature. on Form 4 was made by the same person who wrote the letters in question."

And in the second affirmation, he gave the opinion that the signature on the form was not likely to have been made by Madam Nam.

5. For my part, I entertain no doubt whatever on the uncontroverted evidence that Madam Nam was never served with the petition and that the District Court acted upon false testimony. I would have reached this conclusion without the opinion of the handwriting expert. We are not concerned with who did sign the form of acknowledgment once we know that she did not.

6. Since Madam Nam did not appeal from the decree nisi because she had not had the time and opportunity to do so, this Court has jurisdiction to entertain her appeal under s.14(2) (d) of the Supreme Court Ordinance, Cap. 4: Everitt v. Everitt.⁽¹⁾

7. On clear authority, (Woolfenden v. Woolfenden;⁽²⁾ Wiseman v. Wiseman⁽³⁾ and Purse v. Purse ⁽⁴⁾ are all helpful) the decrees nisi and absolute were both nullities, and Madam Nam is entitled to have them set aside ex debito justitiae; and the fact that Mr. Nam has re-married cannot affect her rights.

8. I think it necessary to point out, in fairness to the Judge, that the provisions of r.14 (5) (b) of the Matrimonial Clauses Rules (which provide that a petition shall be deemed to be duly served if Form 4 purports to be signed by .the Respondent spouse and his or her signature is proved at.the hearing) were fully satisfied so that there was no reason for him to have been put upon enquiry into the matter.

9. I would allow the appeal and set aside the decree nisi and the decree absolute. In the usual run of case . where a person has not been properly served,no doubt, it would be right to order a new trial (as happened, for example, in Everitt v. Everitt ⁽¹⁾ and Wiseman v. Wiseman ⁽³⁾ but here since Mr. Nam brought his petition squarely under s.11A(1) (d) of the Matrimonial Clauses Ordinance, Cap.179, and since I am entirely satisfied on the evidence that Madam Nam did not consent to a decree being granted, I am inclined to propose that no order for a re-trial be made.

10. From some of the letters exchanged between Madam Nam and the Legal Department after she discovered what had happened during her absence abroad, it appears that there has been some investigation by the appropriate  authorities into the question whether or not Mr. Nam had committed a criminal offence in connection with the material and evidence which misled the District Court. But we do not know how far this went and I think that the safest course would be to order that all the papers should be forwarded to the Attorney General for such action as he deems appropriate. If this has not already happened, the Attorney General may wish to have investigated the question who purported to: serve Madam Nam on 21 September 1981 at the address, apparently, of Mr. Nam's then solicitors, for rule 14(3) of the Matrimonial Clauses Rules provides:

Sir Alan Huggins, V.-P.:

11. I agree that this decree must be set aside. Clearly there are grounds for saying that the Respondent to the petition was not duly served, and I agree with the order which my brother proposes.

Cons, J.A.:

12. I agree likewise.

(1)    [7948] 2 All E.R. 545

(2)   [1948] P 27

(3)    [1953] P 39

(4)    [1981] Fam. 143

Representation:

Miss Alice Mok (D.L.A.) for Appellant.

Nam Yuk Tong - absent.

Leung Yiu Foon, Woman Named - absent.