EKUBAN v. EKUBAN [1965] GLR 597

DIVISION: HIGH COURT, ACCRA

DATE: 6 OCTOBER 1965

BEFORE: BOISON J.

NATURE OF PROCEEDINGS

APPLICATION for review of an order made by the High Court on 16 September 1965. The facts of the case are set out in the ruling.

COUNSEL

R. Korsah for the applicant.

A. Lamptey for the respondent.

[p.598] of [1965] GLR 597

JUDGMENT OF BOISON J.

This is a motion for review of an order of this court dated 16 September 1965. The order in effect held that a petition in divorce and matrimonial causes is a writ within the meaning of Order 8, r. 1 of the

Supreme [High] Court (Civil Procedure) Rules, 1954. The grounds of the application were: (a) that the appearance filed by the respondent was bad in law in that the appearance was under protest and generally and according to Latey on Divorce (13th ed.), p. 1295, appearance may be under protest. The protest may be general or limited. In either case the grounds of protest must be stated concisely. This was not done in this case.

(b) That in the case of ordinary and originating writs, the form specifically states that service should be effected within twelve months from the date of the writ. There is no such limitation or condition in the case of petitions and the fact that the definition of “plaintiff” includes “petitioner” and

“pleadings” includes “petition” does not necessarily make a “petition” a writ of summons within

Order 8, r. 1.

(c) That the English rules of practice in divorce and matrimonial causes apply in Ghana and that by these rules on page 611 of Latey, there is no time limit within which a petition may be served.

Opposing the application it was contended that no new facts or material have come to light since the order was given within Order 39, r. 1 (b), and that the argument about the form of appearance is irrelevant and that as there was no proof of service of the petition on the two women named (or certificate dispensing with service on them) the petition is null and void. It was further contended that in this court we are not bound by Latey in so far as our rules are not silent on the point at issue.

In this court, matrimonial causes (or more strictly speaking proceedings for matrimonial reliefs or remedies) are governed by Order 55 of the Supreme [High] Court (Civil Procedure) Rules, 1954, 1 the

Matrimonial Causes Acts, 1923 2 and 1937, 3 and the Supreme Court of Judicature (Consolidation) Act,

1925 4 as amended by subsequent enactments. All these are United Kingdom enactments and the practice and rules under these Acts are therefore in force in Ghana. Under Order 55 there is no specific period within which

[p.599] of [1965] GLR 597 to serve a petition. Latey on Divorce, p. 611 puts the matter beyond doubt that there is no time limit within which to serve a petition. Order 39, r. 1 (b) reads as follows.

“Any person considering himself aggrieved —. . .

(b) by a judgment or order from which no appeal is allowed; and who from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the judgment was given or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the judgment given or order made against him, may apply for a review of the judgment or order to the Judge who gave judgment or made the order.”

In this case I am satisfied that there is a mistake or error apparent on the face of the record or alternatively sufficient reason has been shown by the applicant which makes it reasonable and justifiable for me to review the order of this court of 16 September 1965. The order of 16 September 1965 is therefore reviewed as follows: The order is reversed and the petition herein is not null and void. The petition is therefore good and valid as from the date it was filed in the registry. Costs of ¢48.00 for petitioner-applicant.

DECISION

Application granted.

S. K. D.-B.