WILMOT vs. WILMOT [1980]DLHC1639

Date	1980-02-13
Suit No.
Citation No.	[1980]DLHC1639

TWUMASI J.

SEKYI HUGHES FOR THE APPLICANT.

J. A. DAWSON FOR THE RESPONDENT.

[1980]DLHC1639
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													<main id="main" class="content" style="min-height: 60rem" >WILMOT <o:p></o:p>vs. <o:p></o:p>WILMOT<o:p></o:p>[HIGH COURT, SEKONDI]<o:p></o:p>&nbsp;[1980] GLR 521<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:
13 FEBRUARY 1981<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">

SEKYI HUGHES FOR THE APPLICANT.<o:p></o:p>

J. A. DAWSON 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">

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

</div><o:p>&nbsp;</o:p>JUDGMENT OF TWUMASI J.<o:p></o:p>In this
civil proceeding, the petitioner-husband, Isaac Kweku Wilmot (hereinafter
referred to as the respondent), a chief engineer attached to the Black Star
Line and resident at Takoradi, seeks an order for the dissolution of the
marriage between him and his wife, Aba Baffoe Wilmot (hereinafter referred to as
the applicant), an Entomologist working at the Ministry of Health, also engaged
in a part-time lecturership at the University of Ghana, Legon, and resident in
Accra.<o:p></o:p><o:p>&nbsp;</o:p>Counsel
for the applicant, Mr. Sekyi Hughes, argued a motion which sought to question
the propriety of the proceedings being instituted in the Sekondi Registry of
the High Court instead of the Accra Registry and, ultimately, the jurisdiction
of the High Court Sekondi. By the same motion, counsel requested this court to
transfer the case to Accra for hearing and determination. It became readily
apparent that counsel for the applicant based his application on what he
conceived to be the proper interpretation of the provisions of Order 5, r. 1 of
the High Court (Civil Procedure) Rules, 1954 (L.N.140A). The sole ground for
the application was that the applicant was residing and carrying on business in
Accra. For the purposes of the rules of court, he treats the respondent as the
plaintiff and the applicant as the defendant in any civil action. Needless to
emphasise, Order 5, r. 1 should be read as amended by the High Court (Civil
Procedure) (Amendment) Rules, 1977 (L.I. 1107), and, when it is so read, it
becomes crystal clear that short of the substitution of the words “Judicial
Division” used in the old rule for the word “Region” the amendment
substantially re-enacts the old rule. “Judicial Division” as used in the
principal rules meant a judicial division of the Supreme Court established in
1876 and the word “Region” as used in the L.I. 1107, means any region in
contemporary Ghana.<o:p></o:p><o:p>&nbsp;</o:p>In its
conceptual sense, the jurisdiction of every court has two major connotations of
varying degrees of importance: Firstly, there is the jurisdiction of a court to
try well-defined causes and matters. This is the court’s substantive
jurisdiction. Secondly, there is the jurisdiction with regard to venue. This is
its procedural jurisdiction. Order 5, r. 1 unambiguously comprehends both
concepts. The rules regarding venue are obviously designed to achieve some
measure of convenience in the administration of justice throughout the country.
This is the policy rationale behind the elaborate criteria under Order 5, r. 1
for the institution of actions in the various registries in the regions. This
arrangement is advantageous to both litigants and counsel as well as the
judicial machinery. It is clear from the new Order 5, r. 1 particularly
sub-rule (8) that, what appears to many people to be the High Court’s
jurisdictional omnipotence, exists only under well-defined conditions. This is
borne out by the fact that a vigilant defendant can incapacitate the High Court
by a timeous objection to its jurisdiction with regard to venue. The High
Court’s jurisdiction is venue-neutral only: (a) where upon a report by a court,
the Chief Justice refuses to exercise his discretion to transfer a case to the
appropriate venue, and (b) where an unwary defendant relaxes in his objection
to the jurisdiction or in rare cases, where he submits to the jurisdiction. A
case in point is Wiredu v. Mim Timber Co., Ltd. [1963] 2 G.L.R. 167, S.C. The
parties never raised objection to the jurisdiction of the court throughout the
trial. They were therefore precluded from challenging the jurisdiction of the
court and the validity of the proceedings. A further searchlight thrown at case
law on the point takes us to the decision of Annan J. (as he then was) in Anang
v. Northern Assurance Co., Ltd., High Court, Tamale, 2 May 1967, unreported;
digested in (1967) C.C. 98 where the High Court, Tamale, refused an application
to report the pendency of a case commenced at the Tamale Registry to the Chief
Justice in Accra, the latter being the proper place where the writ ought to
have been issued. In delivering himself of the reasons for the refusal of the
application, Annan J. took as his point of departure, a retrospective look at
the judicial divisions which, in his view, had ceased to exist with the repeal
in 1960, of the Courts Ordinance, Cap. 4 (1951 Rev.). The learned judge stated,
by necessary implication, that the demise of the judicial divisions meant that
the provisions of Order 5, r. 1 had no longer any validity.<o:p></o:p><o:p>&nbsp;</o:p>What is
susceptible to criticism about the reasoning in the above case is that the
learned judge overlooked the fact that even though on paper the old judicial
divisions had been abolished, they existed de facto and that for all practical
purposes, Order, 5 r. 1 was still applicable. Indeed, the Supreme Court did
recognise this fact in 1963 in Wiredu v. Mim Timber Co., Ltd. (supra), at a
time when judicial divisions under Cap. 4 were supposed to have been abolished.
The decision in Anang v. No</main>