AMPONSAH vs. AMPONSAH [1997-98] 1 GLR 43

CASES REFERRED TO

(1) Akati v Nartey [1980] GLR 218.

(2) Gatty v Attorney-General [1951] P 444; [1951] 2 TLR 99; 95 SJ 610.

(3) Zanelli v Zanelli [1948] WN 381; 64 TLR 556; 92 SJ 646, CA.

(4) Cruh v Cruh [1945] 2 All ER 545; 115 LJP 6; 173 LT 67.

NATURE OF PROCEEDINGS

APPLICATION by the husband-respondent to the High Court to decline jurisdiction over the divorce petition of the wife-petitioner on the ground that since both of them had acquired American citizenship they were not amenable to the matrimonial laws of Ghana. The facts are sufficiently stated in the ruling.

COUNSEL

Gustav Addington for the husband-respondent-applicant.

Kofi Koomson for the wife-petitioner-respondent.

JUDGMENT OF HEWARD-MILLS J.

The respondent to a divorce petition has applied to this court asking it to decline jurisdiction because both he and his wife have now acquired American citizenship and, according to him, are not subject to Ghanaian matrimonial laws. He claims they are both resident and domiciled in Los Angeles, America and are presently in Ghana merely to set up a business and to visit their elderly parents. They have a limited right of stay subject to the extension of their visas by the immigration authorities. Finally, he avers that the petitioner’s claim for properties which, according to him, are solely owned by him makes it inequitable to hear the matter in Ghana. This is because all records relating to owner-

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ship are in America and he would be put to great expense and difficulty to procure the necessary evidence.

The applicant claims to be governed by continental law which obliges a wife to take up the domicile of the husband. According to him, his domicile and therefore that of the wife is in Los Angeles in the United States of America where their matrimonial home is and is unaffected by the wife’s intention to settle in this country. The applicant did not enlighten this court as to the particular state laws he relied on.

However, it is a fundamental principle of law that it is the status of the plaintiff (ie the petitioner in this case) and the issues raised in the statement of claim that determine the jurisdiction of the court. I refer to the case of Akati v Nartey [1980] GLR 218 and the cases cited therein. The essence of those cases is that the defence merely disputes the claim but does not dictate it. The defence therefore cannot be used to oust the court’s jurisdiction. Secondly, if it is still the law of the American State of Los Angeles where the applicant claims to be resident and domiciled, that the domicile of a wife is that of the husband, then it lags far behind the progressive laws of this country. Section 31 of the Matrimonial Causes Act, 1971 (Act 367) obliges the court to look at the status of either party and not just that of the husband. To buttress the point, section 32 of Act 367 clearly states: “For the sole purpose of determining jurisdiction under this Act, the domicile of a married woman shall be determined as if the woman was above the age of twenty-one and not married.” So that the status of the petitioner in this case must be determined independently of the applicant and not be dictated by the latter.

Section 31 of Act 367 confers general matrimonial jurisdiction on a court where either party to the marriage:

“(a) is a citizen of Ghana; or (b) is domiciled in Ghana; or (c) has been ordinarily resident in Ghana for at least three years immediately preceding the commencement of the proceedings. “

In considering the case of the petitioner, her naturalisation as an American citizen has changed her political allegiance, but the

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dictates of citizenship are different and distinct from those relating to domicile. According to Tolstoy on Divorce (5th ed) whereas naturalisation is a question of law, domicile is a question of fact. The latter depends on an intention to make a permanent home in a particular country. The couple may have set up a home in America, but long residence unaccompanied by a fixed and settled intention to make that home permanent, does not endow that residence as a place of domicile: see Gatty & Gatty v. Attorney-General [1951] P 444. The case of the petitioner-respondent is that the parties are resident and domiciled in Cape Coast. They had returned from America with the intention of permanently setting up home together in Ghana. She had given up her jobs, shipped their personal effects home and set up a business to generate income for their upkeep. It was when she joined up with the husband who had preceded her that she discovered he was no longer interested in the marriage.

Despite the acquisition of new citizenship there is no evidence that the parties had abandoned their domicile of origin acquired at birth, and had intended to or had acquired a new domicile of choice. The limited right of stay due to their visa regulations, does not mean an automatic loss of domicile until and unless they are actually deported from this country: see Zannelli v Zannelli (1948) 64 TLR 556 and also the case of Cruh v Cruh (1945) 115 LT 6 cited in Tolstoy, Law and Practice of Divorce and Matrimonial Causes (5th ed), p 11.

The assertions of the petitioner show clearly that even if a new domicile of choice had been acquired in America, it had now been abandoned. That in, effect, revives her domicile of origin which is deemed to have been held in abeyance during the existence of her domicile of choice.

For the above reasons the application to the court is denied with costs of ¢50,000 to the petitioner-respondent in this application.

DECISION Application dismissed.

EAA.