EKUBAN vs. EKUBAN [1965]DLHC1800

Date	1965-10-06
Suit No.
Citation No.	[1965]DLHC1800

BOISON J.

R. KORSAH FOR THE APPLICANT.

A. LAMPTEY FOR THE RESPONDENT.

[1965]DLHC1800
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													<main id="main" class="content" style="min-height: 60rem" >EKUBAN <o:p></o:p>vs. <o:p></o:p>EKUBAN <o:p></o:p>[HIGH COURT, ACCRA]<o:p></o:p>[1965] GLR 597<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

DATE:
6 OCTOBER 1965.<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

R. KORSAH FOR THE APPLICANT.<o:p></o:p>

</div>CORAM:
<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

BOISON J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF BOISON J.<o:p></o:p>This is a
motion for review of an order of this court dated 16 September 1965. The order
in effect held that a petition in divorce and matrimonial causes is a writ
within the meaning of Order 8, r. 1 of the Supreme [High] Court (Civil
Procedure) Rules, 1954. The grounds of the application were:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">(a) that
the appearance filed by the respondent was bad in law in that the appearance
was under protest and generally and according to Latey on Divorce (13th ed.),
p. 1295, appearance may be under protest. The protest may be general or
limited. In either case the grounds of protest must be stated concisely. This
was not done in this case.<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">(b) That
in the case of ordinary and originating writs, the form specifically states
that service should be effected within twelve months from the date of the writ.
There is no such limitation or condition in the case of petitions and the fact
that the definition of “plaintiff” includes “petitioner” and “pleadings”
includes “petition” does not necessarily make a “petition” a writ of summons
within Order 8, r. 1.<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">(c) That
the English rules of practice in divorce and matrimonial causes apply in Ghana
and that by these rules on page 611 of Latey, there is no time limit within
which a petition may be served.<o:p></o:p><o:p>&nbsp;</o:p>Opposing
the application it was contended that no new facts or material have come to
light since the order was given within Order 39, r. 1 (b), and that the
argument about the form of appearance is irrelevant and that as there was no
proof of service of the petition on the two women named (or certificate
dispensing with service on them) the petition is null and void. It was further
contended that in this court we are not bound by Latey in so far as our rules
are not silent on the point at issue.<o:p></o:p>In this
court, matrimonial causes (or more strictly speaking proceedings for
matrimonial reliefs or remedies) are governed by Order 55 of the Supreme [High]
Court (Civil Procedure) Rules, 1954, 1 the Matrimonial Causes Acts, 1923 2 and
1937, 3 and the Supreme Court of Judicature (Consolidation) Act, 1925 4 as
amended by subsequent enactments. All these are United Kingdom enactments and
the practice and rules under these Acts are therefore in force in Ghana. Under
Order 55 there is no specific period within which to serve a petition. Latey on
Divorce, p. 611 puts the matter beyond doubt that there is no time limit within
which to serve a petition. Order 39, r. 1 (b) reads as follows.<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“Any
person considering himself aggrieved —. . . (b) by a judgment or order from
which no appeal is allowed; and who from the discovery of new and important
matter or evidence which, after the exercise of due diligence, was not within
his knowledge or could not be produced by him at the time when the judgment was
given or the order made, or on account of some mistake or error apparent on the
face of the record, or for any other sufficient reason, desires to obtain a
review of the judgment given or order made against him, may apply for a review
of the judgment or order to the Judge who gave judgment or made the order.”<o:p></o:p><o:p>&nbsp;</o:p>In this
case I am satisfied that there is a mistake or error apparent on the face of
the record or alternatively sufficient reason has been shown by the applicant
which makes it reasonable and justifiable for me to review the order of this
court of 16 September 1965. The order of 16 September 1965 is therefore reviewed
as follows: The order is reversed and the petition herein is not null and void.
The petition is therefore good and valid as from the date it was filed in the
registry. Costs of ¢48.00 for petitioner-applicant.<o:p></o:p>

<o:p>&nbsp;</o:p></main>