HAPPEE v. HAPPEE AND ANOTHER [1971] 1 GLR 104

DIVISION: IN THE HIGH COURT, SEKONDI

DATE: 3 DECEMBER 1970

BEFORE: EDUSEI J.

CASES REFERRED TO

(1) Ashong v, Ashong, Court of Appeal, 3 March 1967, unreported; digested in (1968) C.C. 26.

(2) Armytage v. Armytage [1898] P. 178; 67 L.J.P. 90; 78 L.T. 689; 14 T.L.R. 480.

(3) Anghinelli v. Anghinelli [1918] P. 247; 87 L.J. P. 175; 119 L.T. 227; 34 T.L.R. 438; 62 S.J. 548, C.A.

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(4) Sim v. Sim [1944] P. 87; [1944] 2 All E.R. 344; 113 L.J. P. 72; 171 L.T. 257; 60 T.L.R. 556.

(5) Winterfield v. Bradnum (1878) 3 Q.B.D. 324; 38 L.T. 250; 26 W.R.472, C.A.

NATURE OF PROCEEDINGS

PETITION for divorce on the grounds of cruelty and cross-petition for judicial separation on the grounds of cruelty and adultery.

COUNSEL

I. K. Winney for the respondent.

Petitioner absent and unrepresented at the final hearing.

JUDGMENT OF EDUSEI J.

The petitioner and respondent were married on 21 July 1951, at the District Registry, Sekondi. The petitioner who is a marine engineer is a native of the Netherlands and is domiciled in that part of the world. He has, however, been resident in this country ever since 1951 except for occasional visits to Holland and other parts of Europe, presumably on holidays.

The petitioner presented a petition for divorce on the grounds of the respondent’s cruelty. In answer to the petition, the respondent prays for judicial separation on the grounds of her husband’s cruelty and of his adultery with one Hannah Ankumah-Sey.

It is beyond dispute that this court has no jurisdiction to entertain the husband’s petition since he is not domiciled in Ghana but in the Netherlands. It is the domicil of the husband that gives the court jurisdiction in divorce proceedings. I indicated my lack of jurisdiction, since the husband is domiciled in the Netherlands to counsel and both conceded. I invited counsel to argue whether this court has jurisdiction to entertain the cross-prayer of the respondent for judicial separation. In order that arguments by counsel might be formulated with more precision I adjourned the case. On the adjourned date counsel for the respondent argued that the court had jurisdiction to hear the cross-petition of the respondent and sought refuge in section 18 (1) (b) of the Matrimonial Causes Act, 1950 (14 Geo. 6, c. 25), which Act by the decision of Ashong v. Ashong, Court of Appeal, (unreported); digested in (1968) C.C. 26 does apply to Ghana. The relevant part of section 18 of the Matrimonial Causes Act, 1950, is as follows: [His lordship here read the provisions of the English Matrimonial Causes Act as set out in the headnote and continued:] Section 18 (1) (b) of the Matrimonial Causes Act, 1950, gives the court jurisdiction to entertain proceedings for divorce and nullity of marriage. There is no dispute of the fact that the respondent has ordinarily been resident in this jurisdiction for a period of three years immediately preceding the commencement of her cross-petition, but the point which falls for determination is whether this court has jurisdiction under the said section to entertain the suit which is for judicial separation. Divorce in the ecclesiastical courts was of two types (a) divorce a vinculo and (b), divorce a mensa et thoro; and since the Matrimonial Causes Act, 1857 (20 & 21 Vict., c. 85), these two types of divorce were known as (a) divorce and (b) judicial separation. However, divorce throughout the Matrimonial Causes Act,

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1937 (1 Edw. 8 & 1 Geo. 6, c. 57), means divorce a vinculo (dissolution of marriage) and the Matrimonial Causes Act, 1950, which repealed the Matrimonial Causes Act, 1857 (20 & 21 Vict., c. 85), retains the distinction between the two types of divorce: See sections 3, 4 and 14 of the Matrimonial Causes Act, 1950. Divorce a vinculo means a “dissolution of the marriage,” and the parties are free to remarry; divorce a mensa et thoro (judicial separation) signifies that, though separated, they are still in the eyes of the law man and wife and they cannot remarry. It seems to me therefore that section 18 (1) (b) of the Matrimonial Causes Act, 1950, which speaks of “divorce” does not avail the respondent for she is praying for judicial separation and not a dissolution of the marriage, and this court cannot exercise its jurisdiction under that section of the Act. But all is not lost to the respondent. My own researches have revealed that the jurisdiction of this court to entertain suits for judicial separation as stated by text-book writers appears to depend on (a) domicile within the jurisdiction (b) residence of both parties within the jurisdiction at the time of the institution of the suit or (c) the existence of a matrimonial home within the jurisdiction at the time when the events occurred on which the claim for judicial separation is founded or at the time cohabitation ceased: see Dicey’s Conflict of Laws (5th ed.) at p. 288, r. 64 (1); see also The Law and Practice of Divorce by Tolstoy (6th ed.), p. 18 where residence of the respondent alone is stated to be sufficient to found jurisdiction. The requirement of (a) above referred to is clearly inapplicable to this case: the parties are not domiciled in this country. I shall deal with requirement (b). The pleadings and the verifying affidavits of both the petitioner and the respondent show quite clearly that they were resident in this country at the time of the institution of the petition and cross-petition. Paragraph 5 of the petition states “that both the petitioner and the respondent reside in Takoradi in the Western Region of Ghana.” So far as I am aware this is the first time on which this particular point has come up for consideration in the courts of this country. The requirement of the residence of both parties in the jurisdiction to found jurisdiction in suits for judicial separation, has, however, been considered in England. Since our divorce laws, unlike our customary laws of divorce, have been the creation of common law as expounded by the ecclesiastical courts and statute law it is not out of place to have reference to the practice then obtaining in the ecclesiastical courts. In the case of Armytage v. Armytage [1898] P. 178 Gorrel-Barnes J., after saying that the parties were legally domiciled in Australia went on to assert (at p.

195) that the wife as a matter of fact “has been forced to separate herself from her husband and establish herself in a home of her own in this country. She and her husband are both within the jurisdiction.” Further, the judge said, at p. 196 that,

“in my opinion, no valid reason can be urged against the Courts of a country, in which a husband and wife are actually living, pronouncing a decree which will protect the one against the other so long as they remain within the jurisdiction.”

The court therefore assumed jurisdiction in judicial separation proceedings.

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The principle enunciated in the case of Armytage v. Armytage was approved and followed by the English Court of Appeal in Anghinelli v. Anghinelli [1918] P. 247, C.A. In that case both parties, although not domiciled, were, in fact, resident at the actual time within the jurisdiction of the English courts. It is clear therefore that both cases support the proposition as stated in the textbooks that the court has jurisdiction to entertain a suit for judicial separation where both parties are resident in England at the time of the institution of the suit. But in the case of Sim v. Sim [1944] P. 87 the respondent (husband) alone was resident in England (Newcastle) and the petitioner (wife) in Scotland (Edinburgh) and the English court held that it had jurisdiction to entertain the wife’s suit for judicial separation notwithstanding the fact that she was not at the material time resident within the jurisdiction, i.e. the residence of the respondent alone clothed the court with jurisdiction. In the course of his judgment Pilcher J. stated at p. 94 that: “I am satisfied that Mr. Mortimer’s submission is correct, namely, that the ecclesiastical courts regarded an unseparated wife as prima facie physically resident where her husband was resident, and also that, while the residence of the party against whom relief was sought was regarded by the ecclesiastical courts as all-important the actual residence of the party seeking relief never seems to have been regarded as important or inquired into, probably because an unseparated wife was regarded as resident in law where her husband was resident.”

It does seem to me therefore that the actual residence of the respondent does give the courts jurisdiction in proceedings for judicial separation; and in any case the wife petitioner by invoking the process of the court has submitted to its jurisdiction.

There is one final matter that merits attention in this ruling. It is true that the proceedings were initiated by the husband petitioner, and it is in the answer of the wife respondent that she is cross-praying for judicial separation. A cross-petition like a counterclaim is, in my view, to all intents and purposes an action by the respondent against the petitioner. It is an independent and separate action, and as Brett L.J. said in Winterfield v. Bradnum (1878) 3 Q.B.D. 324 at p. 326, C.A., “the true mode of considering the claim and counterclaim is, that they are wholly independent suits which, for convenience of procedure, are combined in one action.” The cross-petition of the wife respondent in the instant proceedings, who seeks relief against the husband petitioner who is resident in the jurisdiction is, in my view, justiciable, and I therefore hold that this court has jurisdiction to entertain the respondent’s cross-petition for judicial separation, and that the case shall proceed.

DECISION

Cross-petition to proceed.

N. A.Y