Francis V Francis (1965)

LawGlobal-Hub Lead Judgment Report

BAIRAMIAN, J.S.C

This appeal is from the ruling of 29th March, 1965 given by Caxton-Martins J. in the High Court of Lagos in Suit 45/63 that the registrar’s certificate should be amended. The facts are these: the wife filed her answer and the co-respondent entered appearance but did not file his answer in time; the registrar granted the petitioning husband his certificate that the divorce suit was ready for trial; later the co-respondent obtained leave to file his answer out of time and did so; eventually the trial began and evidence was heard but, before it was concluded, the wife, who had begun giving evidence, applied to have the petition dismissed on the ground that the trial was null and void because the registrar’s certificate was not renewed after the co-respondent filed his answer.

The learned judge ruled that it was a small omission which could be cured by amending the certificate; he ordered it to be amended, and an amended or new certificate was prepared by the registrar. Mr. Akintoye for the wife has argued that the trial could not have begun without a new certificate and the trial partly had was null and void. We think that this is a misconception.

The certificate issued was in order when it was issued; thereafter the co-respondent could not have filed an answer without leave: see Matrimonial. Causes Rules, 1957, rule 20; but the Rules do not say that when an answer is delivered by leave out of time, a new certificate is required. The wife knew about the answer filed by the co-respondent before the trial began; she does not allege any embarrassment, and we cannot see why the trial should not go on: all that she is trying to do is to cause delay. If she had been genuine she would have drawn attention to the need for a new certificate before the trial began. We do not think there was any need for a new certificate-at any rate no authority has been cited that this was such an occasion – nor was there any need for amending the certificate. We doubt whether what was done can be called an amendment, and are inclined to agree that it was a new certificate that was granted; but, as we said, we do not think that a new certificate was needed in the circum-stances. In our view, the trial was competent and should be continued.

The appeal is dismissed with costs allowed to the husband because in our view the appeal is frivolous, and we allow him fifteen guineas costs; but this is not to affect the discretion of the judge in the court below, and no execution for these costs is to be made without the judge’s leave.

Other Citation: (1965) LCN/1264(SC)