HIGH COURT, HO
DATE: 4TH MARCH, 1959
BEFORE: MR. COMMISSIONER MINNOW
COUNSEL
Arthur for petitioner (wife).
Coussey for respondent (husband).
JUDGMENT OF MR. COMMISSIONER MINNOW
In this matter the petitioner, who prays for restitution of conjugal rights, alleges that she and the respondent are man and wife, married under the Marriage Ordinance. It appears that because of some difference between them they have been living apart since 1955. In her petition, the petitioner states that she had made every endeavour to return to her husband, and to resume the enjoyment of her conjugal rights.
The Reply of the respondent is that “the petitioner is not sincere in her request, and it is only an attempt to stop the period of desertion required by Law for the institution of legal proceedings from running its full course that this action is being taken.”
On the 28th February, 1959 the respondent filed notice of amendment of his Reply dated the 7th February, 1958, and on the 3rd March, 1959, Counsel for petitioner not opposing, the Court granted leave to amend. The amendment was to delete paragraph 1 of the Reply (admitting the marriage), and to substitute therefor: “That the Respondent denies that the Petitioner and the Respondent were lawfully married under the Ordinance and will contend that the Court has no jurisdiction.”
Counsel agreed to take the amended paragraph as a preliminary point, and he further agreed that the Reverend Herman Nyalemegbe of the Presbyterian Church, who performed the alleged marriage ceremony, be called to give evidence in order to settle the point whether or not the marriage that he celebrated between the petitioner and the respondent was lawful, i.e. was under the Marriage Ordinance.
The Reverend Herman Nyalemegbe was duly sworn. He stated that he performed some marriage rites at the Presbyterian Church at Avetile-Peki in respect of the petitioner and the respondent on the 17th August, 1950. He said: “In August, 1950 the respondent, who was then as now, a Minister of the Presbyterian Church, came to me at Peki-Dzake, and asked me to bless his marriage with the petitioner. I asked the respondent whether he wanted marriage under the Ordinance, or simply a ‘blessing’ of the marriage as approved of by our (Presbyterian) Church. The respondent asked for a `blessing’. I blessed the marriage between the petitioner and the respondent. No banns were published. There was no Return of the Marriage sent to the Principal Registrar of Marriages.”
It is quite clear from this evidence that the marriage between the parties was not contracted under the Ordinance. From the respondent’s reply, however, there is no doubt that the petitioner was made by the respondent, the Reverend Theophilus Kwadjo Setse, an ordained Minister of the Presbyterian Church and a tutor at Achimota School, to believe that the marriage was under the Ordinance. By this make-believe the petitioner has, since 1950, been living in blissful ignorance, and in a fool’s paradise.
The reverend gentleman, who has three children by her, takes advantage of the fact of the form of marriage not to concede to her prayer. From the facts before the Court, the Court rules that it has no jurisdiction in the matter.
The petition is dismissed. As to costs, until the respondent filed his amendment on the 28th February, 1959, he accepted (whether genuinely or not) the fact that he and the petitioner were married under the Marriage Ordinance. This confirms the finding of the Court that he, the respondent, had all the time made the petitioner to believe, and she had so believed, that whatever remedy she sought must be through this Court. In the circumstances
DECISION
I order that the expenses incurred by the petitioner in this action be paid by the respondent. I assess them at 40 guineas.
