KIVERTY VICTORIA OBENG vs. WELBECK MENSAH YEMOH [2017]DLHC3323

Date	2017-07-04
Suit No.	SUIT NO. GJ 1747/2016
Citation No.	[2017]DLHC3323

ERIC K. BAFFOUR ESQ. JUSTICE OF THE HIGH COURT

[2017]DLHC3323
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													<main id="main" class="content" style="min-height: 60rem" >KIVERTY VICTORIA OBENG<o:p></o:p>vs.<o:p></o:p>WELBECK MENSAH YEMOH<o:p></o:p>[HIGH COURT
(COMMERCIAL DIVISION), ACCRA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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SUIT NO. GJ
1747/2016&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;4TH
JULY, 2017<o:p></o:p>

</div>CORAM:<o:p></o:p>ERIC K. BAFFOUR, ESQ. JUSTICE OF THE HIGH COURT<o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
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<p class="MsoNormal" align="center" style="text-align:center;line-height:115%;
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</div>Defendant/Applicant in an application captioned Motion on Notice of
Preliminary Objection, prays the court that this court lacks jurisdiction to
entertain the suit of Plaintiff as the subject matter of complaint of Plaintiff
has been determined and settled by the Brentford County Court of England. To
defendant he got married to the plaintiff customarily in 1990 which said
marriage was converted into a monogamous one in Ealing, London England in 1997.<o:p></o:p>Plaintiff in December, 2005, filed for divorce on the
grounds of irreconcilable differences. And in 2008 a decree absolute was issued
by the court dissolving the marriage. And as part of the ancillary reliefs, the
Applicant claim that the Brentford County Court of England decreed the
distribution of the properties between them. And that both parties failed to
mention the property at Baatsonaa, Accra but it was informally agreed between
them that Plaintiff was to have custody&nbsp;
of the matrimonial home at Newmarket, Middlesex whiles he take custody
of the property at Baatsonaa, Ghana. He accordingly transferred his interest in
the Middlesex property to the Plaintiff. That Plaintiff/Respondent has reneged
on the agreement signed consequent upon the grant of the divorce by issuing
this writ in Ghana demanding a share in the property at Baatsonaa. And to
Applicant as Plaintiff has couched her reliefs and pleadings without reference
to the earlier proceedings in England, this court is bereft of any jurisdiction
to entertain the suit and deal with it as it had previously been the subject of
a matter for determination. He again complains that the present suit is
vexatious and constitute an abuse of the judicial process with Plaintiff having
received the matrimonial home as financial settlement. To Applicant there is no
way the court could entertain the suit without re-opening the proceedings that
transpired in England. And even though the Baatsonaa property is in Ghana, it
is the English courts that have a jurisdiction over the property per the
agreement between the parties.<o:p></o:p><o:p>&nbsp;</o:p>Not surprising the Plaintiff/Respondent has ardently opposed
the application as frivolous and grossly incompetent. To Plaintiff the issue of
the Baatsonaa house never came up in the ancillary reliefs in the property
settlement before the County Court, England. Besides, she had not reached any
agreement with Defendant/Applicant to transfer the property in England into the
sole name of Plaintiff as Applicant had long stopped paying any monthly mortgage
on the property. <o:p></o:p><o:p>&nbsp;</o:p>A number of legal issues comes to the fore for
determination in this application. First, it appears unclear as to which of the
rules of court, the applicant has mounted this application. He complains that
the claim of Plaintiff is an abuse of the judicial process which would
necessitate that the application should be anchored under Order 11 Rule 18 of the
High Court (Civil Procedure) Rule, C.I. 47. However, in another breath he
claims that this court is stripped of jurisdiction to determine this suit on
the basis of res judicatam. The two are not necessarily the same. Nonetheless,
the two are not mutually exclusive.<o:p></o:p><o:p>&nbsp;</o:p>Jurisdiction has been
said in the case of KUMNIPAH v AYIREBI
[1987/88]GLRthat <o:p></o:p>“Jurisdiction means the
power or authority to adjudicate. Where it is lacking, any judgment or order
emanating from the court or judge is a nullity and a person affected by it is
entitled to ignore it”
Per
Amuah Sekyi JA.<o:p></o:p><o:p>&nbsp;</o:p>And in the case of ACHEAMPONG v THE REPUBLIC [1987-98] GLR 26 SC that: <o:p></o:p><o:p>&nbsp;</o:p>‘The jurisdiction of a court is the authority of
that court to entertain or decide a case. It connotes the limit or extent of
the power of the court’ -&nbsp;&nbsp; Brobbey J.<o:p></o:p><o:p>&nbsp;</o:p><o:p>&nbsp;</o:p>