GARRETT vs. GARRETT [1991]DLHC2239

Date	1991-01-24
Suit No.
Citation No.	[1991]DLHC2239

BROBBEY J.

E. D. KOM FOR THE PLAINTIFF.

NANA AKUFO-ADDO FOR THE DEFENDANT.

[1991]DLHC2239
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													<main id="main" class="content" style="min-height: 60rem" >GARRETT<o:p></o:p>vs.<o:p></o:p>GARRETT<o:p></o:p>[HIGH
COURT, ACCRA]<o:p></o:p>[1991] 1
GLR 32<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">

<p class="MsoNormal" align="right" style="margin-bottom:5.0pt;text-align:right;
mso-pagination:none;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">Date: 24 JANUARY 1991<o:p></o:p>

</div>COUNSEL:<o:p></o:p>E. D. KOM
FOR THE PLAINTIFF.<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">

NANA
AKUFO-ADDO FOR THE DEFENDANT. <o:p></o:p>

</div>JUDGMENT
OF BROBBEY J.<o:p></o:p>The
parties are a married couple. There are two cases pending in court involving
both of them. The husband was the first to file his case against his wife on 5
July 1989. It was numbered as case No. 1190/89. That was soon followed by a
divorce petition filed by the wife against the husband on 9 August 1989. It was
numbered as D. &amp; M.C. 1410/89. Both cases raised property claims which the
parties contest.<o:p></o:p>Before
the commencement of the trial, Nana Akufo-Addo who appeared for Mrs. Mary Rose
Garrett raised a preliminary legal point. For convenience, Mrs. Garrett will
hereafter be referred to as the defendant and Mr. Garrett as the plaintiff.<o:p></o:p>The
essence of the point raised by counsel for the defendant is this: The plaintiff
was officially declared a bankrupt in 1985. The bankruptcy order was made in
England under the English Bankruptcy Act, 1914 (4 &amp; 5 Geo, c. 59). By
sections 18(1) and 53 of the said Act, property of an undischarged bankrupt,
whether situate in or outside England, vests in the trustee in bankruptcy. The
properties claimed in the two cases were acquired at the time when the
plaintiff was an undischarged bankrupt. All these properties were vested in the
trustee in bankruptcy. The plaintiff consequently lacked legal capacity to
litigate over them, he finally submitted.<o:p></o:p>Opposing
the application, Mr. Kom who appeared for the plaintiff contended that the
Bankruptcy Act, 1914 is not applicable to Ghana. The British court which
pronounced the plaintiff bankrupt had no authority to make extra-territorial
decisions binding on in-dependent sovereign countries like Ghana.<o:p></o:p>Secondly,
the properties in dispute were realties situated in Ghana and therefore the law
applicable to them should be the lex situs.<o:p></o:p>There is
no doubt that in 1985 the plaintiff was declared a bankrupt in England under
the English Bankruptcy Act, 1914. That statute is not applicable to Ghana
because it is not a statute of general application. The legal position in this
country now is that all laws passed in the United Kingdom after 1874 are not
statutes of general application in Ghana; such laws will only be applicable
here to the extent that a statute in Ghana makes them applicable. A classic
authority on this point is Lartey (Decd.), In re; Lartey v. Affutu-Nartey
[1972] 2 G.L.R. 488 at 489, C.A. There is no law which makes the English
Bankruptcy Act, 1914 applicable to Ghana.<o:p></o:p>Ghana has
its own Insolvency Act, 1962 (Act 153). That Act has never been in operation
because no legislative instrument has been passed to bring it into operation as
required by section 78 thereof.<o:p></o:p>The
properties in the instant case are realties. The law is well settled that in
deciding on the law applicable to a dispute involving land or real property,
the lex situs should prevail. This point also raises another fundamental issue
as to whether or not English courts can pass decisions with extra-territorial
effect. I will deal with the principles on the lex situs and extra-territorial
decisions together. In Dicey and Morris on the Conflict of Laws (9th ed.) at
526, r. 80 it is stated that:<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">“All
rights over, or in relation to, an immovable (land) are (subject to the
Exceptions hereinafter mentioned) governed by the law of the country where the
immovable is situate (lex situs).”<o:p></o:p>The
exception referred to in the passage is the Bankruptcy Act, 1914 but it is my
view that that Act is inapplicable here. The inapplicability is further
emphasised in the same book at 679 where it is stated that:<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">“. . .
the question whether property of the bankrupt situated in such a [foreign]
country does or does not pass to the English trustee in bankruptcy must depend
. . . on the lex situs. For no Act of Parliament can of its own force and
effect transfer property situated e.g. in France from the bankrupt to the
trustee.”<o:p</main>