HAPPEE vs. HAPPEE AND ANOTHER [1970]DLHC2120

Date	1970-12-03
Suit No.
Citation No.	[1970]DLHC2120

EDUSEI J.

I. K. WINNEY FOR THE RESPONDENT.

PETITIONER ABSENT AND UNREPRESENTED AT THE FINAL HEARING.

[1970]DLHC2120
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													<main id="main" class="content" style="min-height: 60rem" >HAPPEE <o:p></o:p>vs. <o:p></o:p>HAPPEE AND ANOTHER <o:p></o:p>[HIGH COURT,
SEKONDI]<o:p></o:p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;[1971] 1 GLR 104<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:
3 DECEMBER 1970.<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">

I. K.
WINNEY FOR THE RESPONDENT.<o:p></o:p>

PETITIONER
ABSENT AND UNREPRESENTED AT THE FINAL HEARING.<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">

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

</div><o:p>&nbsp;</o:p>JUDGMENT OF EDUSEI J.<o:p></o:p>The
petitioner and respondent were married on 21 July 1951, at the District
Registry, Sekondi. The petitioner who is a marine engineer is a native of the
Netherlands and is domiciled in that part of the world. He has, however, been
resident in this country ever since 1951 except for occasional visits to
Holland and other parts of Europe, presumably on holidays.<o:p></o:p><o:p>&nbsp;</o:p>The
petitioner presented a petition for divorce on the grounds of the respondent’s cruelty.
In answer to the petition, the respondent prays for judicial separation on the
grounds of her husband’s cruelty and of his adultery with one Hannah
Ankumah-Sey.<o:p></o:p><o:p>&nbsp;</o:p>It is
beyond dispute that this court has no jurisdiction to entertain the husband’s petition
since he is not domiciled in Ghana but in the Netherlands. It is the domicil of
the husband that gives the court jurisdiction in divorce proceedings. I
indicated my lack of jurisdiction, since the husband is domiciled in the
Netherlands to counsel and both conceded. I invited counsel to argue whether
this court has jurisdiction to entertain the cross-prayer of the respondent for
judicial separation. In order that arguments by counsel might be formulated
with more precision I adjourned the case. On the adjourned date counsel for the
respondent argued that the court had jurisdiction to hear the cross-petition of
the respondent and sought refuge in section 18 (1) (b) of the Matrimonial
Causes Act, 1950 (14 Geo. 6, c. 25), which Act by the decision of Ashong v.
Ashong, Court of Appeal, (unreported); digested in (1968) C.C. 26 does apply to
Ghana. The relevant part of section 18 of the Matrimonial Causes Act, 1950, is
as follows: [His lordship here read the provisions of the English Matrimonial
Causes Act as set out in the headnote and continued:] Section 18 (1) (b) of the
Matrimonial Causes Act, 1950, gives the court jurisdiction to entertain
proceedings for divorce and nullity of marriage. There is no dispute of the
fact that the respondent has ordinarily been resident in this jurisdiction for
a period of three years immediately preceding the commencement of her
cross-petition, but the point which falls for determination is whether this
court has jurisdiction under the said section to entertain the suit which is
for judicial separation. Divorce in the ecclesiastical courts was of two types
(a) divorce a vinculo and (b), divorce a mensa et thoro; and since the
Matrimonial Causes Act, 1857 (20 &amp; 21 Vict., c. 85), these two types of
divorce were known as (a) divorce and (b) judicial separation. However, divorce
throughout the Matrimonial Causes Act, 1937 (1 Edw. 8 &amp; 1 Geo. 6, c. 57),
means divorce a vinculo (dissolution of marriage) and the Matrimonial Causes
Act, 1950, which repealed the Matrimonial Causes Act, 1857 (20 &amp; 21 Vict.,
c. 85), retains the distinction between the two types of divorce: See sections
3, 4 and 14 of the Matrimonial Causes Act, 1950. Divorce a vinculo means a
“dissolution of the marriage,” and the parties are free to remarry; divorce a mensa
et thoro (judicial separation) signifies that, though separated, they are still
in the eyes of the law man and wife and they cannot remarry. It seems to me
therefore that section 18 (1) (b) of the Matrimonial Causes Act, 1950, which
speaks of “divorce” does not avail the respondent for she is praying for
judicial separation and not a dissolution of the marriage, and this court
cannot exercise its jurisdiction under that section of the Act. But all is not
lost to the respondent. My own researches have revealed that the jurisdiction
of this court to entertain suits for judicial separation as stated by text-book
writers appears to depend on (a) domicile within the jurisdiction (b) residence
of both parties within the jurisdiction at the time of the institution of the
suit or (c) the existence of a matrimonial home within the jurisdiction at the
time when the events occurred on which the claim for judicial separation is
founded or at the time cohabitation ceased: see Dicey’s Conflict of Laws (5th
ed.) at p. 288, r. 64 (1); see also The Law and Practice of Divorce by Tolstoy
(6th ed.), p. 18 where residence of the respondent alone is stated to be
sufficient to found jurisdiction. The requirement of (a) above referred to is
clearly inapplicable to this case: the parties are not domiciled in this
country. I shall deal with requirement (b). The pleadings and the verifying
affidavits of both the petitioner and the respondent show quite clearly that
they were resident in this country at the time of the institution of the
petition and cross-petition. Paragraph 5 of the petition states “that both the
petitioner and the respondent reside in Takoradi in the Western Region of
Ghana.” So far as I am aware this is the first time on which this particular
point has come up for c</main>