SUPREME COURT, ACCRA
DATE: 12TH NOVEMBER, 1962
BEFORE: VAN LARE, BLAY AND AKUFO-ADDO, JJ.S.C.
CASE REFERRED TO
Volkers v. Volkers [1935] P.33
NATURE OF PROCEEDINGS
Appeal by respondent-husband from a decision of the High Court, Kumasi (Apaloo, J.) granting the wife-petitioner an order of judicial separation on the ground of her husband’s adultery.
COUNSEL
P. Jones (with him Amankwatia) for the respondent-appellant.
Heward-Mills, Jnr., for the petitioner-respondent.
JUDGMENT OF BLAY J.S.C.
The suit seems to have a very chequered history. The petition of the appellant’s wife was filed on the 14th December, 1957, and in it she prayed for an order of judicial separation from her husband, the appellant. The main ground for the petition was that her husband had committed adultery with one Elizabeth Kessie. The petitioner named Elizabeth Kessie as the woman who in part had motivated the filing of the petition, and she was a person named therein.
[p.123] of [1962] 2 GLR 122
The petition, according to the record of proceedings, was served on the respondent on the 10th January, 1958. It does not appear from the record that the petition was ever served on Elizabeth Kessie, the person named therein. Indeed it appears that service of the copy of the petition was never intended to be effected on the person named and was therefore never addressed or directed for service upon her. The effect of this omission will appear hereinafter. The respondent, that is, the present appellant, having been served with the petition, filed an answer thereto in which he denied every allegation made against him by the petitioner. His answer also contained a cross-prayer for the dissolution of his marriage with the petitioner. This was filed on the 16th January, 1958. To this answer and cross-petition the petitioner filed a reply on the 29th January, 1958.
The next step taken by the petitioner was an application by motion for an order of alimony pendente lite. This application was heard by Sarkodee-Adoo, J., as he then was, and refused on the 3rd March, 1958.
It appears that no further step was taken by the petitioner until May 1959, when her solicitor, without obtaining the registrar’s certificate as provided by the rules of court, filed notice of intention to set the cause down for trial. This was done on the 6th May, 1958. Nothing, however, appears to have been done on that date, and between May 1958, and March 1960, no further step was taken in the cause for reasons hard to discern. However, on the 12th March, 1960, the petitioner was again galvanised into action and she, by her solicitor, set down the cause for hearing on the 31st March, 1960. For some reason again difficult to discern, the cause came before Christian, Commissioner of Assize and Civil Pleas, as he then was, and was adjourned to the 10th May, 1960. The record is silent as to what happened on the 10th May, 1960. However, on the 14th June, 1960, the petitioner, again by her solicitor filed a motion praying for the grant of alimony pendente lite. The application was this time heard by Gwira, Commissioner of Assize and Civil Pleas, as he then was, and the petitioner was granted an order for £G20 a month to be paid by the respondent as from the 1st of July, 1960.
The suit next came on for mention before Apaloo, J., on the 10th October, 1960, when for the first time Reindorf, holding brief for Amankwatia for the respondent, pointed out that as the registrar’s certificate had not been obtained, hearing could not proceed. The court thereupon adjourned hearing to the 1st December, 1960, and ordered the petitioner to obtain the registrar’s certificate before that date.
On the 21st December, 1960, the respondent, despite the fact that his answer contained a cross-petition for dissolution of his marriage with the petitioner, filed by his solicitor a motion praying that the petition be struck out for non-prosecution, instead of proceeding under the provisions of Order 55, rule 30 and setting down the cause for trial or hearing.
This motion to strike out was eventually dismissed by Apaloo, J., on the 23rd January, 1961. And on the 5th April, 1961, hearing of the suit was commenced and completed the same day. The learned trial judge then adjourned the case to the 10th April, 1961, for judgment and it is from the judgment delivered on that day that this appeal has been brought. This then is the history of the unfortunate battle between the petitioner and the respondent as far as I can gather from the record of proceedings before this court.
[p.124] of [1962] 2 GLR 122
Unfortunately in my opinion this fierce and lengthy struggle between husband and wife has yielded no benefit to either party through procedural omissions. Matrimonial causes are governed by strict rules of procedure which are contained in Order 55 of the Supreme [High] Court (Civil Procedure) Rules of 1954. In my view, unless the relevant rules of Order 55 are complied with, a court is not competent to proceed with the trial or hearing of a cause brought before it.
At the beginning of this judgment, I referred to the omission to serve a copy of the petition on the woman-named therein. This point is governed by rule 10 of Order 55 which reads as follows:
(1) Unless otherwise directed, a petition shall not proceed to trial or hearing unless the respondent and every co-respondent thereto and every person named therein has entered an appearance or unless it has been shown by an affidavit in accordance with Form 8 which shall be filed that the respondent, co-respondents and persons named have been duly served with the petition and by certificate issued out of and filed in the Divisional Court Registry that they have not appeared.
(2) After service of a petition has been effected, a certificate of service in accordance with Form 9 shall, unless otherwise directed, be filed except in those cases where an affidavit is required by the preceding paragraph of this Rule.”
The Order is mandatory and in my opinion it was not competent for the court to hear and determine the petitioner’s Petition when the woman-named therein had not been served. I hold therefore that the whole trial was a nullity.
This point was not taken by counsel for the appellant but upon the Bench drawing his attention to the relevant rule of the Order, he abandoned all the grounds of appeal filed by his client personally and relied solely on the point raised by the Bench. Counsel for the respondent, while agreeing that the court below was not competent to hear the petition, nevertheless contended that the judgment in favour of his client, namely the petitioner, dismissing her husband’s cross-prayer for dissolution of marriage on the ground of cruelty should stand. He referred to Halsbury’s Laws of England (3rd ed.), Vol. 12, page 342, para. 717 and cited the case of Volkers v. Volkers1(1). in support of his contention that even though a petition may be stayed or dismissed for want of prosecution, the court was competent to try and determine a cross-prayer contained in a respondent’s answer. I reject this contention as inapplicable to the present case where the cause should not have proceeded to trial at all.
In the result I would allow the appeal and set aside the whole judgment from which the appeal is brought and remit the cause to the court below to re-hear in whole after service of the petition has been effected on the woman-named as required by law.
JUDGMENT OF VAN LARE J.S.C.
I agree.
JUDGMENT OF AKUFO-ADDO J.S.C.
I also agree.
DECISION
Appeal allowed.
Cause remitted to High Court for rehearing.
J. D.
