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1943 Supreme(SC) 25
Privy Council At Palestine
Sir Madhavan Nair, Sir George Rankin , Clauson, Porter , Justice Lords Macmillan, JJ.
Hanna Eissa Kawas -Appellant
Versus
Bishara Elias Kawas and others -Resopndent
Privy Council Appeal No. 41 of 1942
Decided On : 24-06-1943
Brown, Windsor, T.L. Wilson and Co., Phincas Quass, S.A. Kyffin, C.S. Rewcastle
Consensual jurisdiction over guardianship requires the consent of all interested parties. The inability of minors to provide consent does not waive this requirement; absence of consent, regardless of the reason, renders the appointment of guardians by the specialized court invalid.
Headnote:(A) Palestine Order in Council, 1922 - Sections 43, 51 and 54 - Guardianship of minors - Jurisdiction of Ecclesiastical Courts - Consent of parties - Validity of appointment of guardians - Agreement entered into by guardians on behalf of minors - Validity of such agreement - In matters of personal status, including guardianship, the jurisdiction of the Courts of Christian communities is contingent upon the consent of all parties to the action - Where a consensual jurisdiction requires the consent of all parties, this must include all whose interests are concerned in the proceedings - The inability of minors to give effective consent does not justify proceedings without their consent; absence of consent, whether due to unwillingness or inability, is fatal to the jurisdiction. (Paras 2-3)
(B) Jurisdiction of Supreme Court - Where an application for the appointment of guardians does not fall within the scope of a "suit" or "action" requiring consent, and no other provision confers jurisdiction on the Ecclesiastical Court, the application must be made to the Supreme Court sitting as a High Court of Justice, which has jurisdiction to determine petitions or applications not within the jurisdiction of any other Court and necessary for the administration of justice. (Para 3)
Facts of the case:
An action was brought by the widow and children of a deceased partner seeking an account of business transactions and payment of the deceased's share in partnership assets. The defendant sought to rely on a prior agreement made with the widow and another individual who had been appointed as guardians of the minor children by an Ecclesiastical Court. The validity of this appointment was challenged, as it determined whether the agreement quantifying the shares was binding on the respondents.
Findings of Court:
The appointment of the guardians was invalid. The Ecclesiastical Court lacked jurisdiction because the mandatory consent of all parties, including the minors, was not obtained. Alternatively, if the proceeding was not a "suit" or "action," the Ecclesiastical Court had no authority to entertain the application, which should have been directed to the Supreme Court. Consequently, the agreement made by the invalidly appointed guardians was not binding.
Issues: Whether the appointment of guardians by the Ecclesiastical Court was competently effected under the Palestine Order in Council, 1922, and whether the subsequent agreement was valid and binding.
Ratio Decidendi: Consensual jurisdiction requires the consent of all interested parties. The inability of minors to consent does not waive this requirement; rather, it renders the proceedings invalid if consent is not obtained. If the matter is not a litigious action, jurisdiction rests with the Supreme Court for petitions necessary for the administration of justice.
Result: Appeal dismissed.
Legal Category Hierarchy
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family law
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guardianship
- appointment of guardians
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guardianship
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private international law
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jurisdiction
- consensual jurisdiction
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jurisdiction
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partnership law
- accounting and assets
Lord Macmillan.-
This is an appeal by the defendant in an action against him by the widow and two sons of his deceased brother in which they claim from the defendant an account of the transactions of a business carried on in Honduras by the defendant in partnership with the deceased and another brother, whose share was acquired by the defendant. Payment is also claimed of the deceased's share in the partnership assets as the same may be ascertained from the accounts. The case was contested by the defendant on various grounds but the only defence with which their Lordships are concerned is founded on an agreement dated 10th March 1925, made between the appellant on the first part and one Shaheen and the deceased's widow of the second part, in which the second parties are described as the legal guardians of the deceased's two sons then in minority "by virtue of a legal certificate of guardianship emanating from the Ecclesiastical Orthodox Court of Jerusalem." By this document it was agreed that the share of the widow in the partnership assets amounted to £250 and that of the two minor children to £1750. The agreement contained provisions relating to the manner of payment of these sums and the widow appears to have received certain sums in pursuance of it. If this agreement is valid and binding, it affords a complete answer to the respondents' claim for it quantifies and provides for the payment to them of the deceased's share in the partnership assets. But the Courts in Palestine have held that the appointment of Shaheen and the deceased's widow as guardians of his two sons was invalid and consequently that the agreement which they made as such guardians with the appellant is of no avail to him as a defence except in so far as it concerns sums received by the widow on her own account. Having thus disposed of the obstacle interposed by the existence of the agreement of 1925, the Courts below fixed the share of the deceased in the partnership on his death in 1922 at $24,500, on which sum they allowed interest at 6 per cent. to the date in 1927 when the partnership was due to expire, and gave judgment for payment accordingly subject in the case of the widow to deduction of the sums admittedly received by her. The respondents accept the judgment of the Courts below and have not cross-appealed.
The only question argued before their Lordships and the only question which it is necessary for them to decide is whether the appointment of Shaheen and the deceased's widow as guardians of the two minor sons of the deceased was competently effected; if it was not, the agreement of 1925 is invalid and the judgment below must stand. The certificate whereby the deceased's widow was appointed guardian to the minor sons and Shaheen was appointed to assist her in performing her duties as guardian was granted in 1925 on her application by the Ecclesiastical Court of the Greek Orthodox Patriarchate, Jerusalem. The jurisdiction of this Ecclesiastical Court to make the appointment is challenged and the question has to be determined by examination and interpretation of the Palestine Order in Council of 1922 . Section 54 of the Order in Council provides as follows:
"The Courts of the several Christian communities shall have-(i) Exclusive jurisdiction in matters of marriage and divorce, alimony and confirmation of wills of members of their community other than foreigners as defined in Art. 59. (ii) Jurisdiction in any other matters of personal status of such persons, where all the parties to the action consent to their jurisdiction. (iii)........"
"Matters of personal status" are defined in S. 51 of the Order to mean "suits regarding marriage or divorce, alimony, maintenance, guardianship, legitimation and adoption of minors, inhibition from dealing with property of persons who are legally incompetent, successions, wills and legacies, and the administration of the property of absent persons."
Now it will be observed that in conferring jurisdiction in matters
