Misc. Civ. Cause 8-D-67; 26/5/67
Georges, C.J.
Applicant, the father, sued
respondent, the mother, for custody of a child. The service of summons was
defective in that it failed to state affirmatively that respondent should
appear and did not specify the date, time or place for appearance. Service was
rejected by respondent. Later, the magistrate sent a letter to respondent
advising her of the hearing. However, there was no indication in the record that
the letter was posted, correctly addressed or received. Applicant was awarded
custody of the child. Respondent the filed this appeal within the required
time, but the notice of intention to file the appeal was filed out of time.
HELD:
(1) This case justifies extension of the time for filing notice of intention to
appeal.
(2) A court can proceed to deal with a matter ex parte only
where there is proof that there was service of a proper summons on the absent
party.
(3) The magistrate’s letter did not cure the defect in the service of
summons because there was not indication that it was received. The Court
stated, obiter, that it was in any event quite undesirable that a party should
be summoned to appear in court by a
letter signed by the magistrate.
The
Court also stated, obiter; Although there were allegations that respondent
could not take proper care of the child, there was not allegation and no
evidence that the father was in a better position to do so. Thus, the evidence
would in any event have been insufficient to support the award.
No comments:
Post a Comment