C.of A.
(CIV) No.14 of 1985

IN THE
LESOTHO COURT OF APPEAL

In the
Appeal of

S.
MOHAMMED Appellant

and

S.M.
MOHAMMED Respondent

HELD AT
MASERU CORAM

Aaron
J.A.

Odes J.A.

Schreiner
A.J.A.

JUDGMENT

Aaron,
J.A.

Appellant
in this matter instituted proceedings against her husband in the High
Court, in which she claimed an order for the restitution
of conjugal
rights, failing which a decree of divorce, with custody of the minor
children of the marriage, or alternatively, for
a decree of judicial
separation, also with custody of the minor children.

Her
husband, the respondent in this appeal, was described in paragraph 2
of the declaration as being "a Kenyan male adult of
House No.677
Race Course, Maseru Urban Area, in the Maseru district". From
paragraph 3 it appears that the parties were married
in the United
Kingdom during July, 1968, and from further particulars Furnished by
appellant, that she had been working in California
as a nurse from
March, 1973 to July, 1984.

The
declaration does not contain any allegation that the parties are
domiciled within Lesotho, but para. 4 alleges that "immediately

prior to the said marriage,

2

Plaintiff
was domiciled in Lesotho". What the pleader apparently had in
mind was to make the allegation necessary to establish
jurisdiction
in respect of the claim for a restitution order under s.2(1)(b) of
the Matrimonial Causes Jurisdiction Act, 1978.
But if that were
indeed his intention, the pleader did not go far enough, because that
section has two requirements not only must
the wife have been
domiciled in Lesotho immediately prior to the marriage, but she must
also have been ordinarily resident in Lesotho
for the period of one
year immediately preceding the date on which the relevant proceedings
are instituted There was no averment
in the declaration to cover the
second requirement.

Respondent
requested further particulars which elici­ted from appellant the
reply that "she only came to reside in Lesotho
in January,
1985". As summons had been issued on 15th July, 1985, this was
less than a year before the proceedings were instituted.
Respondent
then noted an exception to appellant's summons and declaration in
terms of rule of court 29(1), in that "the said
plea (sic) lacks
necessary averments to maintain an action". Various grounds were
stated, of which it is necessary to mention
only the first

"Plaintiff has not averred that she was ordinarily resident in
Lesotho for the period of one year immediately preceding the
date on
which the above proceedings were instituted".

The
exception was set down for hearing on 21st August, 1985, but the date
was changed first to 23rd August, 1985, and later to 24th
October,
1985 by the issue of fresh notices of set down.

Before
the matter could be heard, there was another development. On 6th
September, 1985, appellant brought an ex parte application
as a
matter of urgency against her husband in which she asked for a rule
nisi to issue, calling upon him,to show cause, if any,
why respondent
should not be directed, pending the finalization of the divorce
proceedings,

3

to desist
from assaulting or in any way interfering with appellant and the
children of the marriage, from disposing of the parties'
assets, and
from going to and/or visiting the parties' home at Race Course Maseru
Urban Area, and also to direct respondent to
release the parties'
private motor vehicle into appellant's possession. She also asked
that the rule nisi operate with immediate
effect as a tem­porary
interdict.

This ex
parte application came before KHEOLA, J. and rule nisi was issued as
prayed, with the return day set as 23rd September,
1985. Respondent
filed an opposing affidavit, and also gave notice in terms of rule 8
(18) of Legal Notice 9 of 1985, that the
return day of the rule nisi
was being anticipated, and that the matter would be heard on 16th
September, 1985.

In his
opposing affidavit, respondent referred to the fact that the
application was pendente lite and recorded his contention that
the
court had no jurisdiction to entertain the main proceedings. He went
on to state that the exception would be set down to be
heard
simultaneously with the appli­cation , a further notice of set
down in respect of the exception was then served and filed

The
matter appears to have come before the High Court on 18th September,
1985, when COTRAN C.J. heard both the exception and the
opposed
application for interim relief.

As far as
the exception was concerned, it would appear that counsel for
appellant argued that respondent had followed the wrong
procedure,
and that instead of taking an exception, he should have objected to
the jurisdiction by way of a special plea A similar
argument was
advanced in the written heads filed by appellant in the course of
this appeal. It is frequently correct that an objection
to
jurisdiction must be raised by special plea this is when the facts
rele­vant to the question of jurisdiction are in issue,
and must

4

first be
determined before the court can be in a position to rule on
jurisdiction There is no exception "that the court had
no
jurisdiction", because that raises an issue of fact and law
which must be determined at the trial (cf. Ritchie Motors v.
Moolman,
1956(4) S.A. 337 (T)). But if the summons and declaration do not
contain the necessary allegations of fact, or if it appears
ex parte
the facts alleged in the declaration that the court cannot have
jurisdiction, then the defendant is entitled to except
to the
declaration on the ground, not that "the court has no
jurisdiction", but on the ground that "the declaration
does
not disclose a cause of action", or "does not disclose that
the court has jurisdiction", (Viljoen v Federated
Trust Ltd,
1971(1) S.A 750 (0) at 759-60) The judge a quo followed this
approach, and correctly held that the exception procedure
could be
used to test the validity of the declaration in the present case.
This portion of the judgment was not challenged before
us in
argument, despite the contention advanced in the heads.

COTRAN,
C.J. held that the exception was a good one. In so far as the claim
for a restitution order was concerned, this was in my
view perfectly
correct for the reasons already given, and indeed Mr. Pheko who
argued the matter before us on behalf of appellant,
conceded this. He
contended, however, that in so far as the alternative claim for
judicial separa­tion was concerned, the declaration
did contain
sufficient averments to establish jurisdiction, and that accordingly
the exception should not have been allowed in
respect of that portion
of the declaration relating to the claim for judicial separation At
common law, there is a clear distinction
between what is required to
establish jurisdiction in a claim for divorce and that which is
required to establish jurisdiction
in an action for judicial
separation. A decree of divorce affects the status of the parties,
and the only court which has jurisdiction
to pronounce a judgment
affecting status is the court of domicile In the case of a decree of
judicial separation, however, no change
of status is involved, and
the courts assume jurisdiction at common law if both parties are

5

resident
in the area of the court's jurisdiction at the time when proceedings
are instituted (Murphy v. Murphy, 1902 T.S. 179, Stewart
v .Stewart
1919 CPD 225). In South Africa, the Appellate Division has held that
the Courts assume jurisdic­tion on the basis
of the principle of
effectiveness, and that as it is well recognized that a court can
give an effective judgment if the defendant
is physically present
within the area of the court's jurisdiction, the physical presence of
the defendant within the area of a
court's jurisdiction is regarded
in common law as a sufficient ground for exercising jurisdiction in
an action for judicial separation.
Physical presence on the part of
the defendant alone at the time when action is instituted suffices,
it is not necessary for both
parties to be resident (Eilon v. Eilon,
1965(1) S.A. 703 at 725 F - 726 A) In Hahlo, The South African Law of
Husband & Wife,
4th Ed, at 557, this view is challenged, but it
is not a matter which need be decided in the present case.

Mr.
Gwentshe, who appeared for respondent, conceded that under the common
law, residence of the parties in the court's area at the
time when
action was instituted suffices, but he contended that the common law
had been changed by the Matrimonial Causes Jurisdiction
Act, No.21 of
1978. He drew attention to the wording of s. 2(1)(a), which is in the
following terms "2(1) Without prejudice
to the jurisdiction
which the High Court otherwise has,the High Court shall have
jurisdiction to entertain an action instituted
by a wife against her
husband –

1. for
   divorce, restitution of conjugal rights or judicial separation if
   the wife has been ordinarily resident in Lesotho for a period
   of one
   year immedia­tely prior to the date on which the proceedings are
   instituted and if -

   
   

(i) .....

(ii) in
an action for judicial separation, the husband is at that date
resident in Lesotho ....."

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In
summary, Mr. Gwentshe's argument was that these provisions were more
restrictive than the common law in so far as judicial separation

actions are concerned, they require not only residence by both
parties in Lesotho but also that the wife should have been ordinarily

resident in the country for a period of one year immediately prior to
the institution of proceedings. Because the provisions of
the statute
are more restrictive than those of the common law, he argued that the
statute must be read as having changed the common
law.

In my
view, this argument cannot be supported. In the first instance, it
completely disregards the opening words of s. 2(1) "without

prejudice to the jurisdiction which the High Court otherwise has
.....". The argument further runs counter to what is said
in the
long title to the Act' "To extend the jurisdiction of the High
Court in matrimonial causes". It has always been
accepted that
the purpose for which the Act was introduced was, as COTRAN.C.J. said
in his judgment in the Court a quo to give
"relief from the
rigour of the common law to married women formerly domiciled in
Lesotho if certain conditions are fulfilled".

It is in
my view possible to read s.2(1)(a) of the Act as expanding the
jurisdiction of the High Court in judicial separation actions
if the
residence which 15 required for common law jurisdiction is construed
as meaning actual physical presence, while the husband's
residence
under s. 2(1)(a) (ii) means residence in the sense of having a home
there, even if he has temporarily left it. In this
regard, the
distinction between the words "ordinarily resident" when
used of the wife and "resident" when used
of the husband,
may be relevant. But whether this view is correct or not, need not be
decided in this case Suffice it to say that
whatever the correct
interpretation of s. 2(1)(a) may be, I am satisfied that it was not
intended to restrict the common law position,
and that the High Court
may still exercise jurisdiction on the basis that the parties

7

are both
resident in the area of the court's jurisdiction at the time the
action is instituted.

Mr Pheko
contended before us that the declaration went far enough to allege
residence on the part of the parties in the court's
area when it gave
their addresses at certain houses in Maseru. The allegation is bare
but in my view it suffices, and is in any
event not excipiable, for
where a possible reading of the declaration discloses a cause of
action (or, as here, may contain a necessary
allegation) then it
cannot be excepted to as disclosing no cause of action or omitting
that necessary allegation (Kennedy v. Steenkamp.
1936 CPD 113 at 115)
it follows, therefore, that the exception was correctly allowed in so
far as it related to the claim for a
restitution order, but should
have been dismissed in so far as it related to the alternative claim
for judicial separation. The
learned judge a quo aid not distinguish
between the two claims, but simply allowed the exception to the
declaration as a whole.
In so doing, he erred. It follows that in so
far as the excep­tion is concerned, the appeal must partially
succeed.

We were
informed from the Bar that, although it does not appear expressly
from the judgment, application was made on behalf of appellant
for
leave to amend the declara­tion, but that this was refused. There
seems to be some indirect support for this is the way
in which the
judgment is worded and it was also not disputed by Mr. Gwentshe, who
appeared for respondent in the court below, as
well as on appeal. We
can, therefore, accept that this was so. It does not seem to us that
there was sufficient reason to refuse
leave to amend, and that the
learned judge in the court a quo erred in this respect also.

I come
now to to the discharge of the rule nisi. The learned judge a quo did
not state separately the reasons why he discharged
the rule nisi, but
he does at one passage of his judgment state that the "application
cannot be divorced from the main action".
As the relief being
sought in the application was asked tor "pending the
finalization and divorce proceedings in CIV/T/470/85",it
seems
logical to

8

infer
that when he allowed the exception, and refused appl­icant leave
to amend the declaration, he regarded the main action
as terminated,
so that there was no longer room for any relief "pending the
determination of the proceedings".

In view
of the conclusions that we have already come to, namely, that the
declaration was not excipiable in so far as the claim
for judicial
separation was concerned, and that in any event, leave should have
been given to appellant to amend her declaration,
it follows that the
conclusion was wrong, and that the learned judge should have
proceeded to deal with the application on its
merits The question now
arises as to what this court should do concerning the merits of the
application. We were informed during
argument that the respondent has
now left the country. As it seems unlikely that he will return, there
no longer appears to be
a need for relief of the kind sought. It
will, therefore, be sufficient if no order is made on the
application, save that respondent
is ordered to pay the costs of
appeal incurred in connection therewith.

As far as
the costs in the court below are concerned, respondent succeeded in
his exception to the claim for res­titution of
conjugal rights,
failing which a decree of divorce. This was the more substantial
issue, and respondent was, therefore, successful
in the greater part
of his excep­tion, and is entitled to the costs relating to the
exception. As far as the rule nisi is concerned,
there were disputes
of fact which cannot be decided on motion and the question of costs
should, therefore, be reserved for decision
at the trial, when oral
evidence can be heard from both parties.

The
appeal is accordingly allowed, with costs, and the judgment of the
court below is altered to read

"1.
The exception to the plaintiff's

declaration,
in so far as it relates to the claim for restitution of conjugal
rights, failing which a decree of divorce and ancillary
relief, is
upheld.

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2. Insofar
   as it relates to the claim for judicial separation and ancillary
   relief, the exception is dismissed.

   
   

3. Plaintiff
   is granted leave to amend her, declaration, such amendment to be
   effected on or before 22nd April, 1986.

   
   

4. Defendant
   is ordered to pay the costs relating to the exceptions.

   
   

5. The
   rule nisi in CIV/APN/212/85 is dis­charged, the costs connected
   therewith are reserved for decision by the trial court".

   
   

There is
one other matter to which I must refer. The learned judge a quo took
the view that Mr. Pheko had failed to disclose to
KHEOLA.J. that an
exception had been taken to the declaration in the main proceedings,
and that he had in this manner surreptitiously
obtained the rule
nini. For this reason he ordered Mr. Pheko not to submit a bill for
professional fees to appellant. The result
of this may be to benefit
respondent, if he is later ordered to pay appellant's costs in
connection with the application. I also
do not share the view adopted
by the learned judge that there was a failure to disclose to
KHEOLA,J. that an exception had been
noted - particularly if this is
intended to mean a deliberate failure to disclose. The affidavit
filed by appellant in the application
referred to the main action,
and invited the court's attention specifically to the declaration.
This would have meant that KHEOLA.J.would
have had the file before
him, and could be expected to see that an exception had been noted.

For these
reasons, the order made against Mr. Pheko is set aside.

Signed by S Aaron

S
AARON

JUDGE OF APPEAL

I agree
Signed by M.W. Odes

M.W. ODES

JUDGE OF APPEAL

I agree
Signed by W.H.R. Schreiner

ACTING JUDGE OF APPEAL

Delivered
on this 9th day of April, 1986 at Maseru.

For
Appellant Mr. Pheko,

For
Respondent Mr. Gwentshe.