HIGH COURT, ACCRA
DATE: 18 JUNE 1971
ABBAN J.
CASES REFERRED TO
(1) Ashong v. Ashong, Court of Appeal, 13 March 1967, unreported; digested in (1968) C.C. 26. (2) Barnes v. Barnes [1971] 1 G.L.R. 202.
[p.166] of [1971] 2 GLR 164
(3) Huxham v. Wheeler (1864) 10 Jur. (N.s.) 545; 12 W.R. 713; 10 L.T. 342; 3 H. & C. 75; 159 E.R. 454.
(4) Commissioner for Special Purposes of Income Tax v. Pemsel [1891] A.C. 531; 61 L.J.Q.B. 265; 65 L.T.621; 55 J.P. 805; 7 T.L.R. 657; 3 Tax Cas. 53, H.L.
(5) Sussex Peerage Case (1844) 11 C1. & F. 85; 6 State Tr. (N.s.) 79; 3 L.T. (o.s.) 277; 8 Jur. 793; 8 E.R. 1034.
NATURE OF PROCEEDINGS
PRELIMINARY OBJECTION by the respondent against a petition for divorce based on the British
Divorce Reform Act, 1969.
COUNSEL
Dr. Ekow Daniels (with him Dr. A. K. Fiadjoe) for the petitioner.
N. Moore (with him K. K. Dei-Anang) for the respondent.
JUDGMENT OF ABBAN J.
The petitioner herein seeks divorce on the sole ground that his marriage with the respondent has broken down irretrievably and there is no possibility of a reconciliation and that the petitioner and the respondent have been living apart from each other continuously for a period of over five years immediately preceding the presentation of the petition.
Learned counsel for the respondent having taken a preliminary objection against the petition, the same was set down for legal argument. The contention of learned counsel for the respondent is that the petition is incompetent because the ground on which the petitioner is asking for divorce is unknown to the matrimonial law operating in Ghana. Counsel argued that this particular ground is recognised only by the British Divorce Reform Act, 1969 and that since this British Act cannot be said to have automatic application to Ghana the court has no power or jurisdiction to apply its provisions and to hold that the petition is competent.
It was further contended by learned counsel that the legislative power in this country is vested in Parliament alone by virtue of article 69 (1) of the Constitution, 1969, and so long as Parliament has not adopted this Divorce Reform Act, 1969, it is beyond the power of any court in this country to hold that this Act which was passed by the British Parliament after the Constitution had come into existence should be applicable to Ghana. Counsel submitted that if the Act is held to be applicable to Ghana it will amount to allowing the British Parliament to legislate for an independent Ghana and this will not only undermine the Constitution but also be contrary to the provisions of the Constitution itself. Learned counsel conceded, rightly in my view, that the doubt as to the applicability of English matrimonial law to Ghana was cleared by Ashong v. Ashong, Court of Appeal, 13 March 1967, unreported; digested in (1968) C.C. 26 and by paragraph 93 of the Courts Decree, 1966 (N.L.C.D. 84). However, counsel argued that this was the position before the Constitution came into existence and with the coming into operation of the Constitution, provisions of the matrimonial laws for the time being in force in England can no longer apply to Ghana. Counsel also appreciated that [page 167] paragraph 93 (2) of N.L.C.D. 84 forms part of the existing law of Ghana. But he submitted that this particular decree ought to be interpreted “with such modifications” and “ exception” so as to exclude any matrimonial laws passed by the British Parliament after 22 August 1969, the date on which the Constitution came into being; and that any interpretation which will have the tendency or the effect of allowing British Acts to operate in Ghana should be frowned upon. In the circumstances, learned counsel for the respondent submitted that the Divorce Reform Act, 1969, which came into effect in England on 1 January 1971, cannot be said to apply to Ghana and that the matrimonial laws which were in force in England before 22 August 1969 should be the only matrimonial laws applicable to Ghana; and since the present petition is based on a ground not recognised under the provisions of those laws, the petition is incompetent and should be dismissed.
Learned counsel for the petitioner holds the contrary view. In brief, learned counsel argued that section 17 of the Court Ordinance, Cap. 4 (1951 Rev.), which engaged the attention of the Court of Appeal in Ashong v. Ashong (supra) was saved by the Courts Act, 1960 (C.A. 9), as amended and lately by paragraph 93 of N.L.C.D. 84. So that at the time the Constitution came into existence the law relating to divorce and matrimonial causes which was for the time being in force in England applied to Ghana. Counsel argued that this position or state of the law never changed after 22 August 1969 and has still not changed, because article 126 (4) of the Constitution has made paragraph 93 of N.L.C.D. 84 part of the existing law of Ghana. That being the case, learned counsel for the petitioner submitted that the court ought to construe the said paragraph 93 of the Courts Decree, 1966 (having regard to Ashong v. Ashong) in such a way as to make applicable to Ghana, the Divorce Reform Act, 1969, which for the time being is in force in England; and that such a construction will be within the spirit of article 126 (5) of the Constitution which provides that existing law should be interpreted with such modification and adaptation so as to bring it in line with the provisions of the Constitution.
Learned counsel also contended that the application of the Divorce Reform Act, 1969, to Ghana without the sanction of Parliament will in no way amount to allowing British Parliament to legislate for Ghana. Because even though the legislative power in Ghana is vested solely in Parliament by article 69 (2) of the Constitution, it is the Constitution itself which says by necessary implication that until Parliament enacts otherwise or until paragraph 93 is amended or repealed, the matrimonial laws for the time being in force in England should apply to Ghana. Counsel therefore argued that since the Divorce Reform Act, 1969, is the only law which for the time being is in force in England so far as divorce and matrimonial causes are concerned, this court has no alternative but to apply the provisions of that Act. Counsel relied on Barnes v. Barnes [1971] 1 G.L.R. 202 and submitted that since the ground on which the petition herein is
[p.168] of [1971] 2 GLR 164
based is recognised by the said British Act, the petition is competent and ought to be entertained.
I think the most important question which calls for an answer in this matter is this: at the time the present petition was filed, that is on 15 February 1971, what was the law governing divorce and matrimonial causes and proceedings in Ghana? There is no doubt that Ashong v. Ashong (1968) C.C. 26, C.A. settled the controversy as to the proper law relating to divorce and matrimonial causes in Ghana. It may be recalled that at the time that Mrs. Juliana Ashong initiated her proceedings for maintenance in the High Court, the Matrimonial Causes Act, 1950, was the law then in force in England and the court held it was applicable to Ghana. Reading the considered judgment of the court Amissah J.A. said, “In conclusion, I am of opinion that whether tested by the first or second consideration posed, the argument that the Act of 1950 does not apply to Ghana cannot be accepted.”
In Ashong v. Ashong the court was called upon to interpret section 17 of the Courts Ordinance, Cap. 4, which even though it has since been repealed, its provisions can nevertheless be identified in the Courts Decree, 1966 (N.L.C.D. 84), para. 93. This Decree was not in existence at the time the summons in Ashong v. Ashong was issued in the High Court. But by the time the case went on appeal to the Court of Appeal, the Courts Decree, 1966, had come into being and the Court of Appeal in the course of its judgment referred specifically to paragraph 93 of this Decree in the following manner, “Although the Ordinance itself has been repealed the section has been saved by each enactment on the structure and jurisdiction of the courts in the country, the latest saving provision being paragraph 93 of the Courts Decree, 1966 (N.L.C.D. 84).”
It is necessary at this stage to set out the provisions of paragraph 93 (2) of the Courts Decree, 1966, which are relevant to this case. It reads as follows: [His lordship here read the provisions of the Courts Decree, 1966, para. 93 (2) as set out in the headnote and continued:]
The combined effect of the decision in Ashong v. Ashong and paragraph 93 (2) of the Courts Decree, 1966, is that the law relating to divorce and matrimonial causes and proceedings which is for the time being in force in England is applicable to Ghana. The question then is has the Constitution which came into existence on 22 August 1969, changed the position? Article 126 (1) (d) of the Constitution says the “existing law” should form part of the laws of Ghana; and article 126 (4) of the Constitution spells out the content of the said “existing law” to include “written and unwritten laws of Ghana as they existed immediately before the coming into force of this Constitution, and any Decree … issued or made before that date . . .” The words used in this article 126 (4) of the Constitution to my mind, are clear and unambiguous and they must be construed in their ordinary sense. It is only in cases where the intention of the legislature is not clear that the natural import of the words should be adhered to; but where it is clear as to what the legislature intended, the court is bound to give effect to it, notwithstanding some apparent deficiency in the language
[p.169] of [1971] 2 GLR 164
used. See Huxham v. Wheeler (1864) 159 E.R. 454 at p. 456 per Pollock C.B. See also Commissioner for Special Purposes of Income Tax v. Pemsel [1891] A.C. 531, H.L.
In the latter case Lord Halsbury L.C. at p. 543 cited with approval the following dictum of Tindal C.J. in the Sussex Peerage Case (1844) 11 C1. & F. 85 at p. 143:
“[T]he only rule for the construction of Acts of Parliament is, that they should be construed according to the intent of the Parliament which passed the Act. If the words of the statute are in themselves precise and unambiguous, then no more can be necessary than to expound those words in their natural and ordinary sense. The words themselves alone do, in such case, best declare the intention of the lawgiver.”
In my considered opinion, the true intention of the body that enacted the Constitution for this country, namely, the Constituent Assembly, as far as can be gathered or ascertained from article 126 (4), is that all the decisions of the courts of competent jurisdiction which were binding at the time the Constitution came into force should continue to have such binding effect and that any Decree or Act which on the said date, that is 22 August 1969, was on the Statute Book of Ghana should also continue to apply to Ghana. Consequently, I hold that Ashong v. Ashong which has not been overruled and paragraph 93 of the Courts Decree, 1966, (which has not been “modified, amended or revoked”) have not been affected with the coming into force of the Constitution. In fact article 126 (5) says their operation should not be affected and as part of the “existing law,” the court has no power to abrogate their application; all that the court could do is to apply them, and in so doing try to interpret their provisions with such “modifications adaptations and qualifications¼” in order to bring them in line with the provisions of the Constitution. In the circumstances I think that the true interpretation of paragraph 93 of the Courts Decree, 1966, having regard to the decision in Ashong v. Ashong is that any law relating to divorce and matrimonial causes which happens to be in force in England at any given moment will have automatic application to Ghana. It therefore follows that the Divorce Reform Act, 1969, presently operative in England applies to Ghana. I am convinced that the construction I have put on paragraph 93 of N.L.C.D. 84 is most consonant with, and within the spirit of, the Constitution; and I have no doubt that it is also in conformity with the general design of the body which enacted the Constitution.
It is worthy to note that a holding that this British Act applies to Ghana does not in any way amount to allowing the British Parliament to usurp the powers and the functions of the Ghanaian Parliament. It must always be borne in mind that article 69 (2) which conferred the legislative powers in Ghana on Parliament made it quite clear that that power is not absolute. That is, the legislative powers of Parliament are limited and cannot be exercised without reference or regard to the other provisions of the Constitution. In this respect, the extent of that power can only be
[p.170] of [1971] 2 GLR 164
determined by looking at the other provisions of the Constitution, such as article 126 (4). This article indirectly limits the legislative powers of Parliament and indirectly allows British matrimonial laws to operate in Ghana without prior consent or approval of Parliament. Nothing can be done about this and the court cannot prevent the operation of such laws in Ghana. So that until Parliament revokes or amends paragraph 93 of the Courts Decree, 1966, or enacts new divorce and matrimonial laws for this country, the British Divorce Reform Act, 1969, which for the time being is in force in England, will continue to be applicable to Ghana. See Barnes v. Barnes (supra).
The Divorce Reform Act, 1969, came into effect in England on 1 January 1971 and by section 2 (1) of this Act, a petition for divorce can be presented by either party on the ground that the marriage in question has irretrievably broken down and the parties have lived apart continuously for five years. The section reads as follows:
“2. (1) The court hearing a petition for divorce shall not hold the marriage to have broken down irretrievably unless the petitioner satisfies the court of one or more of the following facts, that is to say—
(a) that the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent;
(b) that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent;
(c) that the respondent has deserted the petitioner for a continuous period of at least two years immediately preceding the presentation of the petition;
(d) that the parties to the marriage have lived apart for a continuous period of at least two years immediately preceding the presentation of the petition and the respondent consents to a decree being granted;
(e) that the parties to the marriage have lived apart for a continuous period of at least five years immediately preceding the presentation of the petition.”
The petition herein was filed after this Act had come into force in England. The grounds upon which the petition is based as set out in paragraphs (7) and (8) of the petition clearly fall within the purview of section 2 (1) (e) of the Act referred to above. In the circumstances, I hold that the present petition is based on grounds known to the law which governs divorce and matrimonial causes in Ghana and as such the petition is competent and is properly before the court. The objection is therefore overruled. The petition will be heard on its merits.
DECISION
Objection overruled.
Petition to be heard on its merits.
[Reported by S. OSAFO, LL.B. (GHANA).]
