Court name
Court of Appeal of Turks and Caicos Islands
Case number
CL-AP 41 of 2016

Chang v. Chang (CL-AP 41 of 2016) [2017] TCACA 9 (20 November 2017);

Law report citations
Media neutral citation
[2017] TCACA 9
Coram
Stollmeyer, JA
Mottley, P
Weekes, JA

IN THE COURT OF APPEAL

TURKS AND CAICOS ISLANDS CIVIL DIVISION CL-AP 41 OF 2016

BETWEEN WILSON CHANG APPELLANT AND IJEIH CHANG RESPONDENT

BEFORE:

The Honourable Mr Justice Mottley                                President

The Honourable Mr. Justice Stollmeyer,         Justice of Appeal

The Honourable Mdme Weekes      Justice of Appeal

APPEARANCES:

Mr. George Missick for the Appellant

No Appearance of the Parties

20 November 2017; 25 April 2018

JUDGMENT

Stollmeyer, JA

[1]           On 20 November 2017, we dismissed this appeal with no order as to costs. This is the written judgment.

[2]           The appeal is from the decision of Schuster J ("the Judge") on 20 July 2016, dismissing Wilson Chang's petition for annulment of his marriage to Ijeih Chang on 24 May 2014, at Seven Star Resort, Providenciales, Turks and Caicos Islands.

[3]           The grounds of appeal as set out in the Notice of Appeal filed 12 December 2016 are:

(i)            the learned Judge erred in law in finding as a reason in reaching his conclusion that neither the petitioner or respondent took appropriate and/or realistic steps to seek to have the TCI marriage annulled for any good reason when the learned Judge should have been considering whether either party to the marriage did not validly consent to it, whether in consequence of duress, mistake, unsoundness of mind or otherwise. If the Judge had properly applied the law to the facts of the matter he would not have reached the conclusion that he did;

(ii)           the learned Judge erred in considering and agreeing with the opinion of the Attorney General's Chambers, who was not a party to the proceedings and where the Appellant was not given an opportunity to respond to the said opinion. In the circumstances the Appellant was deprived of a fair hearing;

(iii)          the decision of the learned Judge was perverse in that, on the basis of the evidence in the case, no reasonable Court could have reached such a decision.

[4]           The grounds can be summarised as follows:

(i)            the Judge erred in law in finding that neither party took appropriate or realistic steps to have their marriage annulled, and failed to consider whether either of them did not validly consent to the marriage;

(ii)           the Judge erred in considering and agreeing with the opinion of the Attorney General's Chambers and not giving the Appellant an opportunity to respond to that opinion, so depriving him of a fair hearing;

(iii)          the decision of the Judge was perverse because on the evidence no reasonable Court could have come to the decision to refuse a petition for annulment.

[5]           In his submissions, Mr. Missick argued only that the Judge did not address the principal issues, namely:

(i)            that the ceremony held on 24 May 2014 did not effect a legal marriage; and

(ii)           that neither party validly consented to the marriage.

[6]           The Judge, however, dealt with the first of these issues at paragraphs [5] and [10] of his written decision. He then deals with the second issue at paragraph [15] of his judgment and summarises his findings at paragraph [16] of the judgment. He finds, both as a fact and as a matter of law, that there was a valid marriage and, more to the point, he came to the conclusion that the evidence did not show that the parties participated in the marriage ceremony under a mistake of fact.

Background

[7]           The facts can be taken from the Petition filed 9 September 2015, which is supported by affidavits of both the Appellant and the Respondent. Briefly, they are as follows.

[8]           The parties both reside in the United States of America. At some time prior to May 2014, they decided to marry and arrangements were made for them to do so at the Seven Stars Resort Providenciales, Turks and Caicos Islands. They in fact participated in a marriage ceremony on 24 May 2014.

[9]           Shortly before this date, there was a sudden death in Wilson Chang's family (referred to by Mr. Missick in his written submissions as "...an unfortunate family incident..."), and the parties decided to postpone the marriage to a later date. They also decided not to cancel the arrangements for their families and friends to visit the Turks and Caicos Islands, and so did not cancel the existing reservations for the celebrations. The wedding planner, who has not been identified, was told of this change but also was told that the parties would continue with the other planned and paid for activities for them and their guests.

[10]         Neither party, according to the Petition, "...believed, intended and understood the purported ceremony as giving rise to the status of a lawful marriage." In other words, they were mistaken as to the nature of the ceremony in which they participated.

[11]         The parties have not lived together since 24 May 2014, nor have they purported to live as man and wife. Their surnames, as set out in the Petition, are the same by coincidence. It is to be noted, however, that their affidavits in support of the Petition give the same residential address for each of them.

[12]         At some time in June 2014, after the parties had returned to the United States of America, Wilson Chang received in the mail a certified copy of a marriage certificate which set out that the parties had been married on 24 May 2014.

[13]         Having let the matter life fallow for over a year, Wilson Chang filed a petition for annulment on 9 September 2015. This is directly contrary to his assertion in the Petition that he immediately took steps to have the purported marriage annulled after receiving the certified copy of the marriage certificate. No reason is given for the delay in filing the Petition.

The Petition

[14]         The Petition is for annulment of the marriage and is brought under the provisions of Section 16 of the Matrimonial Causes Ordinance 11:04 and in particular under the provisions of Section 16(c). The relevant parts of the Section are:

"16. A marriage celebrated on or after date of commencement of the Ordinance shall be voidable on the following grounds only, that is to say—

a.             ……………;

b.             ……………;

c.             that either party to the marriage did not validly consent to it, whether in consequence of duress, mistake, unsoundness of mind or otherwise;

d              …………..;

e              ……………;

f.              ………….."

[15]         Certain other sections of the Ordinance are relevant to proceedings of this nature.

[16]         Section 19 of the Ordinance provides:

"19. Sections 5(5), 12 and 13 shall apply in relation to proceedings for nullity of marriage as if for any reference in those provisions to divorce there were substituted a reference to nullity of marriage."

[17]         Section 20 of the Ordinance provides:

"20. A decree of nullity granted on or after 28 December 2012 in respect of a voidable marriage shall operate to annul the marriage only as respects any time after the decree has been made absolute, and the marriage shall, notwithstanding the decree, be treated as if it had existed up to that time."

[18]         Section 45 of the Ordinance provides:

"45.(1) The court shall not make absolute a decree of divorce or of nullity of marriage, or grant a decree of judicial separation, unless the court, by order, has declared that it is satisfied—

(a)           that for the purposes of this section there are no children of the family to whom this section applies; or

(b)           that the only children who are or may be children of the family to whom this section applies are the children named in the order and that—

(i)            arrangements for the welfare of every child so named have been made and are satisfactory or are the best that can be devised in the circumstances; or

(ii)           it is impracticable for the party or parties appearing before the court to make any such arrangements; or

(iii)         …………

[19]         Attention is drawn to these provisions in the legislation, and to Section 20 in particular, to emphasise that where a voidable marriage is annulled the annulment does not take effect retroactively to the date of the marriage. Consequently, either party can have recourse to the remedies in the Ordinance relating to financial payments and property settlements, and the welfare any children of the marriage are to be taken into account.

[20]         The Petition being based solely on the element of there having been a mistake of fact, a decree granted is effective only from the date of the decree, hence inter alia the requirement for a declaration under Section 45.

[21]         The Petition came on for hearing before the Judge, on 20 November 2015, at which the parties and Mr. Missick were present. The Judge considered it would be beneficial to obtain the Attorney General's written opinion on the matter, considering it unusual, but did not seek the Attorney General's formal intervention in the matter as he might have done under Section 12 of the Ordinance. Instead, Mr. Missick wrote to the Attorney General on 29 March 2016, and received a written response from Ms. Clemar Hippolyte, Senior Crown Counsel in the Attorney General's Chambers, of 8 April 2016. That opinion was made available to the Court and considered by the Judge who, in his written decision agreed with it. According to Mr. Missick, it was when the petition came back for hearing on the last occasion that the Judge delivered his judgment without hearing anything further on behalf of the parties, they not being present. It is apparent from his written decision, however, that the Judge regarded the Attorney General's opinion as supporting a decision to which he had already come.

[22]         It may well be that the Judge took an unusual step in considering the Attorney General's opinion, but it is clear from that opinion that the Attorney General considered only what had been put before the Judge by way of evidence and nothing more. Further, the decision of the Judge was predicated on the facts as he found them and there was therefore nothing further to be considered. The Attorney General put forward an analysis that supported the position taken by The Judge. The parties had previously presented a case to the Judge and had been heard. Consequently, we do not consider that they were deprived of a hearing.

[23]         It is difficult to see how the Appellant, or the parties, can now complain about the Attorney General's opinion being considered in the light of it having been requested by Mr. Missick, who would have received it well in advance of the resumed the date of hearing thus affording him more than adequate opportunity to take issue with it, if he so chose. Indeed, he does not take issue with the Attorney General's opinion. He takes issue with the Judge's decision on the facts. As has been said, the opinion is sought because the Judge considered the Petition "... unusual...considering the facts of the case...." He had obviously already considered the evidence before him and had come to his findings of fact.

[24]         It would appear that the Judge chose only to consider the opinion and not have the Attorney General intervene in the proceedings. Again, no issue is raised on this. Indeed, no issue is raised as to the manner in which the proceedings took place before the Judge who, again perhaps unusually, proceeded on the basis of the affidavit evidence before him and did not give directions for a trial on oral evidence as is provided in the Matrimonial Causes Rules1. No issue was raised in this connection and the Appellant was clearly content to have the matter proceed in that manner.

Analysis

[25]         Certain matters are clear from the evidence. First, there is a marriage certificate, which on its face is valid in all respects. Nothing has been put forward to impugn its validity. Second, there is no evidence to support the parties' contentions as to mistake from either the wedding planner or the Marriage Officer, Rev. Sherlock H. Padmore. A letter of 12 February 2016, from Paul Jobling, Director of Finance at the Seven Stars Resort, does not appear to have been put before the Judge - it was merely attached to the letter to the Attorney General of 29 March 2016, written by Mr. Missick. There is nothing to indicate that this letter was put before the Judge and there is no reference to it in his written decision. The letter states merely that a symbolic ceremony was carried out at Seven Stars Resort and ".inadvertently a marriage licence was applied for by us. This was an error on our part as they did not constitute a formal wedding ceremony."

______________________

1 see Rule 19(1)

[26]         Quite apart from this letter apparently not having been put before the Judge it is in any event of no probative value. It was in all probability inadmissible as evidence.

[27]         On the evidence, it is difficult to accept that the parties did not know what they were participating in on 24 May 2014. It is equally difficult to accept that they did not know what they were signing when that ceremony took place. The document they signed was clearly a marriage certificate. There is nothing to show that they did not know what they were signing and what it was must have been obvious to two people who gave their occupations as "finance" and “engineer” respectively. There is nothing to indicate any unfamiliarity with the English language. Indeed, it is not raised as an issue.

[28]         This case is easily distinguished from those in which evidence was given that the marriage officer had been told in advance that the ceremony would be merely symbolic, and there is no supporting evidence from anyone, either present at the ceremony or involved in the planning, to indicate that anyone was aware of the intention of the parties not to be married on the day in question.

[29]         Mr. Missick in his submissions relied heavily on the decision in Hudson v Leigh2 in support of his contentions that the parties should be regarded as having operated under a mistake of fact. Hudson v Leigh is to be distinguished, however. There the "husband" petitioned under Section 55 of the English Family Law Act for a declaration that the ceremony in which the parties participated was not a marriage. His Petition was granted. The "wife" Petitioned for a divorce. Her petition was dismissed. The factual matrix of Hudson v Leigh, is also markedly different to that in the instant case. There, the parties participated in a religious ceremony in South Africa which was not intended to be a valid marriage in law. It was to be followed by a civil ceremony in England which would constitute a valid legal marriage. One Reverend B was an authorised marriage officer in South Africa. It was made clear to him when arrangements were being put into place for the religious ceremony there that the parties did not want a marriage ceremony and he did not use the usual formula fDor one, although the words he did use were interpreted as those of a marriage ceremony by some present at the ceremony. He was told that the parties would not be signing the Marriage Register. None was in fact signed and Reverend B made no return to the appropriate registration authority in South Africa. He was fully aware that the parties did not intend the ceremony to constitute a valid marriage in law.

__________________________

2 [2013] 2 WLR 632

[30]         Additionally, several persons present at the ceremony in South Africa gave evidence at the trial, albeit only on affidavit. The parties gave evidence and were cross-examined

[31]         The trial judge there came to the conclusion based on the evidence before him that neither party intended nor believed the ceremony to be legally binding. That, however, was a finding given obiter and was not dispositive of the case.

[32]         The trial judge on the other hand, was satisfied that the ceremony did not sufficiently fulfill the formal requirements for a valid marriage in law and it was his decision to make a Declaration that the South Africa ceremony did not create the status of marriage as between Miss Hudson and Mr. Leigh that disposed of the case.

[33]         What is of assistance in the present case is the trial judge's observations that while "... questionable ceremonies "... must be addressed on a case by case basis, there are - among others - four factors to be considered. At paragraph 78 of his judgment he said:

"In the result, it is not in my view either necessary or prudent to attempt in the abstract a definition or test of the circumstances in which a given event having marital characteristics should be held not to be a marriage. Questionable ceremonies should I think be addressed on a case by case basis, taking account of the various factors and features mentioned above including particularly, but not exhaustively: (a) whether the ceremony or event set out or purported to be a lawful marriage; (b) whether it bore all or enough of the hallmarks of marriage; (c) whether the three key participants (most especially the officiating official) believed, intended and understood the ceremony as giving rise to the status of lawful marriage; and (d) the reasonable perceptions, understandings and beliefs of those in attendance. In most if not all reasonably foreseeable situations, a review of these and similar considerations should enable a decision to be satisfactorily reached.

[34]         In the context of the present case, it is clear that the ceremony which took place was a marriage ceremony. Second, it bore all the hallmarks of marriage. Third, even if the parties did not intend or believe it to be a ceremony giving rise to the status of marriage, the officiating official certainly did. The parties signed the Marriage Register, as did Reverend Padmore, the officiating official, and his evidence is of the utmost importance. Two of the witnesses present also signed the Marriage Register. There is nothing to indicate that any of those persons signing the Register did not know what they were signing, or that they thought they were signing something other than the Marriage Register. Fourth, and perhaps tellingly, no other person present or involved in the arrangements has given any evidence as to what they did, thought or otherwise.

[35]         Indeed, that lack of supporting evidence can in this case properly be the subject of an inference adverse to the Appellant given that none of the persons present at the ceremony gave evidence, and that their absence and the absence of their evidence is unexplained. For example, Cross on Evidence (8th Edition) at page 40 refers to a passage in O'Donnell v Reichard 3 where it was stated:

"Where a party without explanation fails to call as a witness a person whom he might reasonably be expected to call, if that person's evidence would be favourable to them, then although the jury may not treat as evidence what they may as a matter of speculation think that that person would have said if he had been called as a witness, nevertheless it is open to the jury to infer that the person's evidence would not have helped the party's case; if the jury draw that inference, then they may properly take it into account against the party in question for two purposes, namely (a) in deciding whether to accept any particular evidence, which has in fact been given either for or against that party, and which relates to a matter with respect to which the person not called as a witness could have spoken; and (b) in deciding whether to draw inferences of fact, which are open to them upon evidence given, then again with respect to matters to which the person not called as a witness could have spoken."

3 (1975) VR 916, 926; and see also Benham Ltd v Kythira Investments Ltd [2003] EWCA Civ 1794 paras 25 & 26(1)

[36]         It is therefore difficult to see how the reasons and conclusions of the Judge. can be faulted. There is a valid marriage certificate signed by the parties, the Marriage Officer and witnesses. There is no evidence that the parties took part in the marriage ceremony under a mistake of fact, other than their unsupported ipse dixit and that evidence is lacking in detail. It was by way of affidavit and untested, and while it might be said that it should be accepted in the absence of evidence to the contrary, it is cast into doubt by the lack of testing and of corroborative evidence. There is no evidence from Reverend Padmore, the officiating official who Bodey J in Hudson v Leigh correctly describes as a "most especially" key witness4, nor is there any evidence from any of the other persons present. The lack of supporting evidence does nothing to add weight to what the parties say, and indeed serves only to detract from what they say. The unexplained delay in the Appellant taking steps to file his petition, and the contradictions in his evidence do nothing to assist his case.

[37]         The Appellant has not persuaded me that the decision of Schuster J cannot reasonably be explained or justified. He has not demonstrated that he made a material error in law; or made a critical finding of fact which had no basis in the evidence or which reflects a demonstrable misunderstanding of the relevant evidence; or that there has been a demonstrable failure to consider relevant evidence - any or all of which might allow this court to interfere with the findings of fact made by him. The decision of the Privy Council in Sandra Juman v The Attorney General of Trinidad and Tobago and Another5 referring to the judgment in Henderson v Foxworth Investments is instructive:

"14 ... The limited role of an appellate court when asked to review the factual findings of a lower court has been expounded and emphasised in authorities too many to mention. Their effect was summarised by Lord Reed in Henderson v Foxworth Investments Ltd [2014] 1 WLR 2600, para 67, as follows:

“in the absence of some other identifiable error, such as (without attempting an exhaustive account) a material error of law, or the making of a critical finding of fact which has no basis in the evidence, or a demonstrable misunderstanding of relevant evidence, or a demonstrable failure to consider relevant evidence, an appellate court will interfere with the findings of fact made by a trial judge only if it is satisfied that his decision cannot reasonably be explained or justified.”

4 see paragraph 78 of the judgment

5 (2017) UKPC 3,

[38[         Further, it therefore cannot be said that his findings of fact and his decision are perverse.

Disposition

[39]         For these reasons the appeal was dismissed.

Stollmeyer JA

I Agree

Mottley P

I Agree

Weekes JA