CLERK vs. CLERK [1980]DLHC1570

Date	1980-04-28
Suit No.
Citation No.	[1980]DLHC1570

CECILIA KORANTENG-ADDOW J.

TSATSU TSIKATA FOR THE PETITIONER.

E. N. MOORE FOR MISS A. A. AYISI FOR THE RESPONDENT.

[1980]DLHC1570
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													<main id="main" class="content" style="min-height: 60rem" >CLERK <o:p></o:p>vs. <o:p></o:p>CLERK<o:p></o:p>[HIGH COURT, ACCRA] <o:p></o:p>[1980] GLR 583<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:
28
APRIL 1980<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">

TSATSU TSIKATA FOR THE PETITIONER.<o:p></o:p>

E. N. MOORE FOR MISS A. A. AYISI 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">

CECILIA KORANTENG-ADDOW J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF CECILIA KORANTENG-ADDOW J.<o:p></o:p>The
petitioner, Rev. Carl Henry Clerk, and the respondent, Martha Ayerkor Clerk,
were married on 6 June 1929. The respondent was then a girl of eighteen years
of age. The petitioner was a teacher, but in the course of time he rose to
become a minister of the Presbyterian Church and subsequently a Synod Clerk, a
post from which he retired. There are five issues of the marriage—all adults
now; the youngest, Henry Daniel, is about 32 years old. Since 1962 the couple
have lived apart. In 1964 the petitioner sought divorce, but the petition was
not granted. In July 1971 fresh divorce petition was presented by the
petitioner and by that prayer the marriage was dissolved on 30 April 1973 on
the ground that the marriage had broken down irretrievably. The respondent appealed
against the order for a decree nisi and the decree absolute. By its judgment
dated 28 November 1975, the Court of Appeal dismissed the appeal: see Clerk v.
Clerk [1976] 1 G.L.R. 123, C.A.<o:p></o:p><o:p>&nbsp;</o:p>In this
application filed on 23 March 1976, the respondent-applicant (hereinafter
called the respondent) is seeking an order for the petitioner-respondent
(hereinafter called the petitioner) to make (1) adequate financial provision
for her; (2) adequate property settlement and any other order or orders which
to the court would seem fit. Particularly, she is asking the court to order a
transfer to her of house No. F.539/1, Russia Hill, Osu. Before the dissolution
of the marriage, the parties had lived apart for about fifteen years. The
petitioner left the matrimonial home but the respondent remained in occupation
for all that time. The parties in this case have used all manner of stratagems:
the petitioner to recover possession of this house and the respondent to retain
possession of the same house which the parties have used since 1955 as the
matrimonial home. In 1965 the respondent sought an order of perpetual
injunction restraining the petitioner from interfering with her occupation of
the matrimonial home on the grounds that she had beneficial interest therein
since she contributed materially towards its construction. She also claimed
that as a wife she was entitled to remain in possession. At that time the
marriage was subsisting; a petition by the petitioner filed in 1964 had been
dismissed by Archer J. (as he then was): see Clerk v. Clerk [1964]<o:p></o:p>

G.L.R.
712. The order for injunction was granted by Campbell J. (as he then was) on
the ground that the property being the matrimonial home, albeit owned by the petitioner,
the respondent was entitled to reside therein and could not be ejected so long
as the marriage subsisted. The petitioner’s counterclaim for declaration of
title was granted but his claim for possession was dismissed. The court held
that the house No. F. 539/1,’[p.588] of [1981] GLR 583-599’Christiansborg, Osu,
was acquired by the petitioner from his own funds and in his name exclusively
but so long as the marriage subsisted the respondent could remain in
possession.<o:p></o:p><o:p>&nbsp;</o:p>The
petitioner has contended that on the basis of the judgment given by Campbell
J., the respondent’s application for transfer should be dismissed and that with
the dissolution of the marriage he should be entitled to the possession of the
house.<o:p></o:p><o:p>&nbsp;</o:p>On the
motion coming on for hearing before Griffiths-Randolph J., he referred the
matter to the registrar of this court to conduct inquiries into the means of
the parties. When the registrar submitted his report, Griffiths-Randolph J.
could not give his ruling before his new appointment as the Speaker of
Parliament. The argument on the report was submitted before me by Mr. Moore who
held brief for Miss Asabea Ayisi for the respondent. Contrary to the views he
addressed to the Court of Appeal in Ashong v. Ashong [1967] G.L.R. 135, C.A.
and before Abban J. in Crabbe v. Crabbe [1971] 2 G.L.R. 164, Mr. Moore
submitted that English law is the applicable law in the case. In fact, both
parties contended that the petition having been brought under the English
Divorce Reform Act, 1969 (c. 45), and the divorce having been granted on
principles of English law, the same law should be the law applicable in dealing
with the ancillary relief.<o:p></o:p>