CRABBE vs. CRABBE [1971]DLHC9283

Date	1971-06-18
Suit No.	[1971] 2 GLR 164
Citation No.	[1971]DLHC9283

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]DLHC9283
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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><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,serif;
mso-fareast-font-family:Calibri;mso-fareast-theme-font:minor-latin;mso-bidi-font-family:
&quot;Times New Roman&quot;;mso-bidi-theme-font:minor-bidi"><o:p>&nbsp;</o:p><span style="font-size:10.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,serif;
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&quot;Times New Roman&quot;;mso-bidi-theme-font:minor-bidi">[HIGH COURT, ACCRA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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</div><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,serif;
mso-fareast-font-family:Calibri;mso-fareast-theme-font:minor-latin;mso-bidi-font-family:
&quot;Times New Roman&quot;;mso-bidi-theme-font:minor-bidi">COUNSEL:<o:p></o:p>DR.
EKOW DANIELS (WITH HIM DR. A. K. FIADJOE) FOR THE PETITIONER.<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0cm 0cm 1.0pt 0cm">

E.
N. MOORE (WITH HIM K. K. DEI-ANANG) FOR THE RESPONDENT.<o:p></o:p>

<p class="MsoNormal" style="line-height:115%;mso-pagination:widow-orphan;
text-autospace:ideograph-numeric ideograph-other;border:none;mso-border-bottom-alt:
solid windowtext 1.5pt;padding:0cm;mso-padding-alt:0cm 0cm 1.0pt 0cm">ABBAN J.<o:p></o:p>

</div>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>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>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>Learned
counsel for the petitioner holds the contrary view. In brief, learned counsel
ar</main>