GALL v. GALL [1965] GLR 313
30 April 1965 · ARCHER J · ≈ 10 min read
[1965] SLR (HC) 22Other citation styles and permanent link
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DIVISION: HIGH COURT, ACCRA
DATE: 30 APRIL 1965
BEFORE: ARCHER J.
CASES REFERRED TO
(1) Travers v. Holley [1953] P. 246; [1953] 3 W.L.R. 507; [1953] 2 All E.R. 794, C.A.
(2) Carr v. Carr [1951] 1 W.L.R. 422; [1955] 2 All E.R. 61; 99 S.J. 260.
(3) Robinson-Scott v. Robinson-Scott [1958] P. 71: [1957] 3 W.L.R. 842; [1957] 3 All E.R. 473.
(4) Russell v. Russell [1924] A.C. 687; 131 L.T. 482; 40 T.L.R. 713, H.L.
NATURE OF PROCEEDINGS
APPLICATION by originating summons for maintenance under section 23 of the Matrimonial Causes
Act, 1950, of the United Kingdom.
COUNSEL
Miss A.A. Ayisi for the applicant.
G.M. Francois for the respondent.
JUDGMENT OF ARCHER J.
On an ex parte motion by the applicant in this matter, I ordered provisionally the issue of an absconding warrant for the arrest of the respondent on 26 April 1965, on a revelation by counsel for the applicant to the effect that the respondent would leave the jurisdiction the following morning. At the hearing of the application I made my views clear as to whether or not the Matrimonial Causes Act, 1950,1 passed by the
United Kingdom Parliament applied in Ghana so as to enable the applicant to take an originating summons under section 23 of the said Act for an order of the court enjoining the respondent to pay the applicant maintenance. Counsel for the applicant argued that the Matrimonial Causes Act, 1950, applied in Ghana because the Matrimonial Causes Act, 1937,2 referred to by Order 55 of the Ghana Supreme
[High] Court (Civil Procedure) Rules, 1954,3 had been repealed in the United Kingdom. Moreover, where the facts disclosed a case for judicial separation then the application could be entertained.
After these submissions I reserved my ruling which I now propose to deliver. From the outset I shall make my opinion clear by saying that the English Matrimonial Causes Act, 1950, does not apply in
Ghana and cannot apply in Ghana for the following reasons. The present jurisdiction of the Ghana courts in matrimonial causes is derived from section 154 (3) of the Courts Act, 1960,4 which reads:
[p.315] of [1965] GLR 313
“Notwithstanding the repeal by this Act of sections 16 and 17 of the Courts Ordinance (Cap. 4) [which relate to infants and persons of unsound mind and to probate and matrimonial causes respectively], those sections shall continue to apply in Ghana until other provision is made by law, and in so far as section 85 of that
Ordinance applied heretofore in relation to those sections, it shall continue so to apply notwithstanding its repeal by this Act.”
Section 154 (3) is one of the saving clauses in the Courts Act. Section 17 of the repealed Courts
Ordinance5 reads:
“The jurisdiction hereby conferred upon the Supreme Court in Probate, Divorce and Matrimonial Causes and proceedings may, subject to this Ordinance and to Rules of Court, be exercised by the Supreme Court in conformity with the law and practice for the time being in force in England.”
It is significant to note that the word “may” is used in section 17 and not the mandatory word “shall.”
Moreover, whatever law and practice may be in force in England is subject to rules of court made in
Ghana. These rules are embodied in Order 55 of the 1954 High Court Rules. Rule 1 of Order 55 makes specific reference to the Matrimonial Causes Act, 1937, and the Supreme Court of Judicature
(Consolidation) Act, 1925,6 as amended by any subsequent enactment.
“The Acts” are defined to mean the Matrimonial Causes Act 1925 and 1937 but to my knowledge there has never been passed in the United Kingdom a Matrimonial Causes Act, 1925. There was a Matrimonial
Causes Act, 1923, which was repealed by the Supreme Court of Judicature (Consolidation) Act, 1925.
The definition of “The Acts” in rule 1 is therefore ostensibly wrong.
Secondly, the Rules Committee signed and made the 1954 Rules including Order 55 on 26 May 1952, when the United Kingdom Matrimonial causes Act, 1950, was already in operation. On 29 July 1954 they were published as a Supplement to the Gazette. The Rules Committee were aware of the English 1950
Act when they made the rules in 1952, yet they did not frame the rules in conformity with the law embodied in the 1950 Act.
Thirdly, the English Matrimonial Causes Act, 1950, is a consolidating Act according to its preamble and relates to matrimonial causes in the High Court in England and to declarations of legitimacy and of validity of marriage and of British nationality, with such
[p.316] of [1965] GLR 313 corrections and improvements as may be authorised by the Consolidation of Enactments (Procedure) Act,
1949. The schedule to the 1950 Act speaks for itself. It is clear that such a piece of legislation was not intended to have extra-territorial effect in Ghana and it is obviously wrong to argue that because the
Matrimonial Causes Act, 1937, has been repealed by the 1950 Act therefore the 1950 Act applies in
Ghana. Indeed the repeal has also no extra-territorial effect; for the Ghana Rules of 1954 refer to the law contained in the 1925 and 1937 Acts and no more. The provisions of these two Acts are still law notwithstanding the repeal because they can be found in corresponding sections of the 1950 Act. It is therefore wrong to rely on any section in the 1950 Act.
Fourthly, section 23 of the 1950 Act is a novel section conferring new powers on the English High Court.
This power did not exist before 1949.
The common law gave the wife and still gives the wife power to pledge her husband’s credit for the purchase of necessaries if he did not supply her with them himself. If the wife commenced matrimonial proceedings in the ecclesiastical courts, the husband could be compelled to pay her alimony pending suit and also permanent alimony if she were granted a divorce a mensa et thoro. This power now rests in the
English High Court and also in the Ghana High Court and extends to granting alimony after a decree of nullity or divorce. The wife’s power to pledge the husband’s credit was not only precarious but inadequate and if she was unwilling to take matrimonial proceedings then she was substantially remediless at law. Section 4 of the Matrimonial Causes Act, 1878, gave courts of summary jurisdiction power to make a maintenance order in favour of a wife whose husband has been convicted of an aggravated assault upon her and to order that she should not be bound to cohabit with him. A further provision was made by the Married Women (Maintenance in Case of Desertion) Act, 1886. These Acts were superseded by the Summary Jurisdiction (Separation and Maintenance) Acts, 1895 to 1949, now repealed and replaced by the Matrimonial Proceedings (Magistrate’s Courts) Act, 1960. None of these statutes applies in Ghana. The amount of maintenance which can be ordered under these Acts was very limited and by section 5 of the Law Reform (Miscellaneous Provisions) Act, 1949, the English High
Court was given additional power to make an order for maintenance if it would have jurisdiction to entertain proceedings by the wife for judicial separation. The Law Reform (Miscellaneous Provisions)
Act, 1949, did not apply in Ghana. Section 23 of the Matrimonial Causes Act, 1950, repealed and replaced section 5 of the Law Reform (Miscellaneous Provisions) Act, 1949, and it is therefore
[p.317] of [1965] GLR 313 incongruous to argue that section 23 of the Matrimonial Causes Act is an amendment to any section in the
Matrimonial Causes Act, 1937.
It has also come to my notice that the Ghana High Court has in some cases assumed jurisdiction under section 18 (1) of the Matrimonial Causes Act, 1950, which enables the English courts to entertain divorce proceedings instituted by a wife who has ordinarily resided in the United Kingdom for three years although by virtue of her marriage she is domiciled outside England. There is no statutory basis for the assumption of jurisdiction by the Ghana High Court in similar circumstances. The jurisdiction by the
Ghana High Court can only be justified by rules of private international law or conflict of laws founded basically on reciprocity on the authority of Travers v. Holley,7 and followed in Carr v. Carr8: see also
Robinson-Scott v. Robinson-Scott.9 It is therefore wrong to hold that this jurisdiction is based on section
18 (1) of the Matrimonial Causes Act, 1950.
To take another examplerule in Russell v. Russell10 whereby spouses were forbidden to give evidence in rebuttal or support of the presumption that a child born in wedlock to a married woman was begotten by her husband, still applies in Ghana notwithstanding section 32 (1) of the 1950 Act which provides that evidence of a husband or wife shall be admissible to prove that marital intercourse did or did not take place between them during any period. The Ghana High Court cannot therefore assume and exercise such powers conferred on the English High Court by the 1950 Act without express authority conferred by an
Act of Parliament or by rules of court.
It seems to me that in Ghana, there are only three ways in which a wife can enforce her right to be maintained by her husband:
(a) By pledging her husband’s credit under her agency of necessity at common law;
(b) If the spouses are living apart by consent, then by enforcing any contractual right to maintenance that she is given by the agreement; and
(c) By obtaining an ancillary order in some other matrimonial proceedings in the High Court under rules 37 and 49.
It is therefore obvious that the present originating summons is without any statutory basis and cannot be heard by the High Court
[p.318] of [1965] GLR 313 in Ghana. Section 17 of the repealed Courts Ordinance is not mandatory in language. The Rules
Committee have not taken steps to bring the law and practice in Ghana in conformity with the law and practice now in force in the United Kingdom. Until they do so, Order 55 of the 1954 Civil Procedure
Rules prevails. That Order refers specifically to the English 1925 and 1937 Acts and only the law in these
Acts apply now in Ghana.
If it is argued that section 17 of Cap. 4 should be read to mean the law and practice in force at present in the United Kingdom, the situation will be absurd and the Ghana courts will have to apply the following pieces of legislation (to mention a few) now in force in the United Kingdom in addition to the
Matrimonial Causes Act, 1950, namely:
Maintenance Agreements Act, 1957,
Matrimonial Causes (Property and Maintenance) Act, 1958,
Matrimonial Proceedings (Children) Act, 1958,
Divorce (Insanity and Desertion) Act, 1958,
The Marriage (Enabling) Act, 1960, and finally
The Matrimonial Causes Act, 1963.
If it is also contended that the practice for the time being in force in England should apply in Ghana then the English Matrimonial Causes Rules of 1957 must be observed in Ghana. The situation will be intolerable. However, the Rules Committee made Order 55 by adopting the English Matrimonial Causes
Rules of 1944.
I have also considered section 6 of the Interpretation Act, 1960,11 especially subsection (2) which reads:
“Where an enactment is repealed or revoked and another enactment is substituted, by way of amendment, revision or consolidation, a reference to the repealed or revoked enactment shall be construed as a reference to the substituted enactment.”
The word “enactment” is defined in section 32 of the Interpretation Act to mean an Act or statutory instrument or any provision of an Act or statutory instrument. An “Act” is defined in the same section to include the Constitution, an Act of the Constituent Assembly or of Parliament, or any legislative measure of an authority formerly exercising power to make laws for the territory or any part of the territory comprised in the Republic but does not include a statute of general application, continuing to apply by virtue of section 154 of the Courts Act, 1960. It follows therefore that section 6 (2) of the
[p.319] of [1965] GLR 313
Interpretation Act cannot apply to United Kingdom Acts. Moreover, if the English 1925 and 1937 Acts are statutes of general application, which in my view they are not, an “Act” is defined to exclude these statutes of general application.
In conclusion, therefore, I rule that the English Matrimonial Causes Act, 1950, does not apply in Ghana and therefore a spouse cannot take out an originating summons under section 23 of that Act for an order of maintenance. A spouse can only apply where matrimonial proceedings are pending for alimony pending suit or permanent alimony after the dissolution of the marriage under Order 55. While no matrimonial proceedings are pending, the spouse can only pledge her husband’s credit at common law or enforce a contractual agreement between the parties for maintenance.
The High Court in Ghana has no jurisdiction to entertain the originating summons until the Rules
Committee have amended Order 55 or until other provision is made by law under section 154 (3) of the
Courts Act. The originating summons discloses no cause of action and there is no justification for the application under Order 35, rr. 1 and 2 and accordingly I order that the respondent and his surety be discharged from their bail bond forthwith. It is further ordered that the passport of the respondent should be returned to him by the senior registrar of the High Court immediately.
Although the originating summons has not come before me for hearing, I think this is a proper case in which to apply rule 6 of Order 63 which enables the court in all causes or matters to make any order which it considers necessary for doing justice, whether such order has been expressly asked for by the person entitled to the benefit of the order or not. Accordingly as the originating summons has no legal basis, the originating summons is hereby summarily dismissed.
DECISION
Application dismissed.
A.K.F.
