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R U L I N G
This ruling is in respect of an
objection raised by Counsel for
the defendant to the hearing of
this suit on the ground that the
plaintiff from the cause of
action should have come to Court
by petition instead of a writ of
summons.
The plaintiff issued a writ on
28th February, 2011
in which she claims in substance
for maintenance for three
children she has with the
defendant. By rule 2 of Order
65 of the High Court (Civil
Procedure) Rules, 2004 (C.I. 47)
“all proceedings for
divorce, nullity, presumption of
death and dissolution of
marriage, maintenance orders and
child custody orders under the
Act, shall commence by
petition”. (my emphasis)
The plaintiff in paragraph 5 of
her statement of claim avers as
follows:
“The plaintiff contends that
since the dissolution of the
marriage between herself and the
Defendant sometime in March,
2008 to date, the Defendant in
breach of his obligations as a
father, only contributes a token
amount towards the maintenance
of the upkeep of the children,
contrary to the Children’s Act,
1998 (Act 560).”
The preamble to the Children’s
Act, 1998 (Act 560) provides as
follows
“AN ACT to reform and
consolidate the law relating to
children “to provide for the
rights of the child, maintenance
and adoption, to regulate child
labour and apprenticeship, for
ancillary matters concerning
children’s generally and to
provide for related matters”.
(my emphasis).
By section 47(1) of Act 560 a
parent or any person who is
legally liable to maintain a
child or contribute towards the
maintenance of the child is
under a duty to supply the
necessaries of health, life,
basic education and reasonable
shelter for the child. Then
section 48(1) of Act 560
provides that a parent of a
child, the guardian of the
child, or any other person who
has custody of a child may apply
to a family tribunal for a
maintenance order for the child.
So by the provisions of the
Matrimonial Causes Act, 1971
(Act 367) and the Children’s
Act, 1998 (Act 560) an
application may be made for a
maintenance order. However the
procedure for applying for a
maintenance order under the two
provisions are distinct. If a
party seeks a maintenance order
in the Court, and the Circuit
Court for that matter, the party
has to proceed under Order 65
rule 2 of C.I. 47 that is by
petition. If however, a party
chooses to proceed under the
Children’s Act, 1998 (Act 560)
that party has to apply to the
Family Tribunal.
There is thus nowhere in the law
in this country for the issuance
of a writ of summons to claim a
maintenance award.
The plaintiff in the instant
case is in this Court by way of
a writ of summons claiming
maintenance orders. By Order
65, rule 2 of C.I. 47 the
plaintiff mandatorily has to
come by petition to this court
and not by writ of summons as
she seeks to do. This Court
therefore has no jurisdiction to
entertain the instant action.
When the objection was raised
Counsel for plaintiff seeks
refuge under Order 81 of C.I. 47
praying that non-compliance with
the procedure should not render
the writ void. In my view Order
81 of C.I. 47 would only apply
where the non-compliance is not
fundamental to the whole
action. In the instant case
however by both substantive and
procedural law the plaintiff has
to commence this action by
petition and not by writ of
summons. Section 16 of Act 367
provides that either party to a
marriage may petition the Court
for maintenance. Then Order 2,
rule 2 of C.I. 47 provides as
follows:
“Subject to any enactment to the
contrary all civil proceedings
shall be commenced by the filing
of a writ of summons.” (my
emphasis)
The combined effect of section
16 of Act 367; rule 2 of Order 2
of C.I. 47 and rule 2 of Order
65 of C.I. 47 mandatorily
require that a party proceeds by
way of a petition for a
maintenance order and not by
writ of summons. As a result of
these mandatory provisions,
Order 81 of C.I. 47 would not
avail the plaintiff.
Accordingly the objection by
Counsel for the defendant to the
hearing of this case is upheld.
The plaintiff’s entire action is
therefore dismissed.
UUTER PAUL DERY
JUSTICE OF THE HIGH COURT
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