CLERK vs. CLERK [1975]DLCA373

Date	1975-11-28
Suit No.
Citation No.	[1975]DLCA373

ARCHER J.A

ANIN J.A

FRANCOIS J.A.

MISS A. A. AYISI FOR THE APPELLANT.

T. K. AGADZI FOR THE RESPONDENT.

[1975]DLCA373
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													<main id="main" class="content" style="min-height: 60rem" >CLERK <o:p></o:p>vs.<o:p></o:p>&nbsp;CLERK<o:p></o:p>&nbsp;[COURT
OF APPEAL, ACCRA]<o:p></o:p>[1976] 1 GLR 123<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

DATE:
28 NOVEMBER 1975.<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">

MISS A. A. AYISI FOR THE APPELLANT.<o:p></o:p>

T. K. AGADZI 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">

ARCHER, ANIN AND FRANCOIS JJ.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF FRANCOIS J.A.<o:p></o:p>Francois
J.A. delivered the judgment of the court. The parties herein were married some
46 years ago and have five children who have all attained the age of maturity.
Towards the twilight of their lives they have found it impossible to live
together. An earlier petition of the husband was dismissed in December 1964
(see [1964] G.L.R. 712). The present petition was filed on 29 July 1971. The
ground relied on was the irretrievable break-down of the marriage, and the
enactment under which proceedings were commenced was the English Divorce Reform
Act, 1969 (c. 55), which heralded our own Matrimonial Causes Act, 1971 (Act
367).<o:p></o:p><o:p>&nbsp;</o:p>The
English Divorce Reform Act, 1969, s. I provides that the sole ground on which a
petitioner can secure a divorce is the irretrievable break-down of a marriage.
The petitioner must however prove specific facts within one or other of five
heads to secure a dissolution. Under section 2 (1) (e), the relevant section
herein, the respondent succeeded on the plaint “that the parties to the
marriage have lived apart for a continuous period of at least five years
immediately preceding the presentation of the petition.” Nothing in this appeal
turns on the substantial number of years the parties have lived apart. This is
beyond controversy. Indeed the merits are not attacked in this appeal. Horns
are locked over strictly procedural matters. The wife-appellant assails the
decree of dissolution on the ground that the petition was not signed by the
petitioner but by his solicitor. She urges that this infringes the High Court
(Civil Procedure) Rules, 1954 (L.N. 140A), Order 55, r. 4 (6) which requires a
petitioner to sign his petition himself. In her view this is a fundamental
error which vitiates the entire proceedings.<o:p></o:p>Though
the respondent-petitioner was allowed to cover up the traces with an amended
petition duty signed by him, it appears he failed to file it within the time
limited by Order 28, r. 7 of L.N.140A. This has given rise to the appellant’s
second prong of attack, namely, that the respondent’s dilatoriness has rendered
the amendment void.<o:p></o:p><o:p>&nbsp;</o:p>Turning
to the first limb of attack, we can only observe that the principles which
animated the authors of the Divorce Reform Act, 1969, would be sadly subverted
if a dissolution based on over ten years’ estrangement could be annulled on the
technical ground that the petitioner had failed to sign on the dotted line. For
in the English Law Commission Report entitled Reform of the Ground of Divorce:
The Field of Choice, para. 15 (Cmnd. 3123), the authors have stated this
desideratum:<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">“when,
regrettably, a marriage has irretrievably broken down, [attempts should be
made] to enable the empty legal shell to be destroyed with the maximum
fairness, and the minimum bitterness, distress and humiliation.”<o:p></o:p><o:p>&nbsp;</o:p>The
argument under the first limb is not novel. A similar view as that pressed by
counsel was raised and thoroughly discredited by this court in Armar v. Armar,
Court of Appeal, 21 April 1969, unreported; digested in (1969) C.C. 73. Upon
almost identical facts this court held that a petitioner’s failure to sign a
petition was not a defect which could not be remedied by invoking Order 70 of
the High Court (Civil Procedure) Rules, 1954 (L.N. 140A). In that case Amissah
J.A. delivering the judgment of the court said, “In my view whether a defect is
fundamental or not depends on all the circumstances of the case; prejudice to
the other party being an important consideration.” Amissah J.A. saw no
objection to the petition being amended “by the substitution of the signature
of the petitioner for that of his solicitor which has erroneously been
subscribed.” We respectfully endorse this view, and add that in the present
case we see no evidence of disadvantage occasioned by the irregularity, nor
erosion of natural justice: see also Omane v. Poku [1973] 2 G.L.R. 66 at p. 71,
C.A.<o:p></o:p><o:p>&nbsp;</o:p>