CRABBE vs. CRABBE [1971]DLHC2102

Date	1971-06-18
Suit No.
Citation No.	[1971]DLHC2102

ABBAN J.

DR. EKOW DANIELS (WITH HIM DR. A. K. FIADJOE) FOR THE PETITIONER.

E. N. MOORE (WITH HIM K. K. DEI-ANANG) FOR THE RESPONDENT.

[1971]DLHC2102
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													<main id="main" class="content" style="min-height: 60rem" >CRABBE <o:p></o:p>vs. <o:p></o:p>CRABBE <o:p></o:p>[HIGH COURT,
ACCRA]<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] 2 GLR 164<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:
18 JUNE 1971.<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">

DR. EKOW
DANIELS (WITH HIM DR. A. K. FIADJOE) FOR THE PETITIONER.<o:p></o:p>

E. N.
MOORE (WITH HIM K. K. DEI-ANANG) FOR THE RESPONDENT.<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">

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

</div><o:p>&nbsp;</o:p>JUDGMENT OF ABBAN J.<o:p></o:p>The
petitioner herein seeks divorce on the sole ground that his marriage with the
respondent has broken down irretrievably and there is no possibility of a
reconciliation and that the petitioner and the respondent have been living
apart from each other continuously for a period of over five years immediately
preceding the presentation of the petition.<o:p></o:p><o:p>&nbsp;</o:p>Learned
counsel for the respondent having taken a preliminary objection against the
petition, the same was set down for legal argument. The contention of learned
counsel for the respondent is that the petition is incompetent because the
ground on which the petitioner is asking for divorce is unknown to the
matrimonial law operating in Ghana. Counsel argued that this particular ground
is recognised only by the British Divorce Reform Act, 1969 and that since this
British Act cannot be said to have automatic application to Ghana the court has
no power or jurisdiction to apply its provisions and to hold that the petition
is competent.<o:p></o:p><o:p>&nbsp;</o:p>It was
further contended by learned counsel that the legislative power in this country
is vested in Parliament alone by virtue of article 69 (1) of the Constitution,
1969, and so long as Parliament has not adopted this Divorce Reform Act, 1969,
it is beyond the power of any court in this country to hold that this Act which
was passed by the British Parliament after the Constitution had come into
existence should be applicable to Ghana. Counsel submitted that if the Act is
held to be applicable to Ghana it will amount to allowing the British
Parliament to legislate for an independent Ghana and this will not only
undermine the Constitution but also be contrary to the provisions of the
Constitution itself. Learned counsel conceded, rightly in my view, that the
doubt as to the applicability of English matrimonial law to Ghana was cleared
by Ashong v. Ashong, Court of Appeal, 13 March 1967, unreported; digested in
(1968) C.C. 26 and by paragraph 93 of the Courts Decree, 1966 (N.L.C.D. 84).
However, counsel argued that this was the position before the Constitution came
into existence and with the coming into operation of the Constitution,
provisions of the matrimonial laws for the time being in force in England can
no longer apply to Ghana. Counsel also appreciated that [page 167] paragraph 93
(2) of N.L.C.D. 84 forms part of the existing law of Ghana. But he submitted
that this particular decree ought to be interpreted “with such modifications”
and “ exception” so as to exclude any matrimonial laws passed by the British
Parliament after 22 August 1969, the date on which the Constitution came into
being; and that any interpretation which will have the tendency or the effect
of allowing British Acts to operate in Ghana should be frowned upon. In the
circumstances, learned counsel for the respondent submitted that the Divorce
Reform Act, 1969, which came into effect in England on 1 January 1971, cannot
be said to apply to Ghana and that the matrimonial laws which were in force in
England before 22 August 1969 should be the only matrimonial laws applicable to
Ghana; and since the present petition is based on a ground not recognised under
the provisions of those laws, the petition is incompetent and should be
dismissed.<o:p></o:p><o:p>&nbsp;</o:p>Learned
counsel for the petitioner holds the contrary view. In brief, learned counsel
argued that section 17 of the Court Ordinance, Cap. 4 (1951 Rev.), which
engaged the attention of the Court of Appeal in Ashong v. Ashong (supra) was
saved by the Courts Act, 1960 (C.A. 9), as amended and lately by paragraph 93
of N.L.C.D. 84. So that at the time the Constitution came into existence the
law relating to divorce and matrimonial causes which was for the time being in
force in England applied to Ghana. Counsel argued that this position or state
of the law never changed after 22 August 1969 and has still not changed,
because article 126 (4) of the Constitution has made paragraph 93 of N.L.C.D.
84 part of the existing law of Ghana. That being the case, learned counsel for
the petitioner submitted that the court ought to construe the said paragraph 93
of the Courts Decree, 1966 (having regard to Ashong v. Ashong) in such a way as
to make applicable to Ghana, the Divorce Reform Act, 1969, whi</main>