KUMI v. KUMI [1968] GLR 88

DIVISION: HIGH COURT, ACCRA

DATE: 31 JANUARY 1968

BEFORE: CAMPBELL J.

NATURE OF PROCEEDINGS

APPLICATION in limine to dismiss a petition for divorce. The facts are sufficiently set out in the ruling.

COUNSEL

K. Ohene-Ampofo for the petitioner.

G. Aduamah for the respondent.

JUDGMENT OF CAMPBELL J.

The facts grounding the preliminary objection to this suit are as follows, namely that the petitioner issued an originating summons on 15 June 1967 seeking leave to file a petition for divorce before the expiration of three years from the date of the celebration of her marriage to the respondent. This is permissible under Order 55, r. 2 (1) of the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A). On 7 November 1967 a petition for divorce on substantially the same grounds as contained in the affidavit accompanying the originating summons was filed in court under Order 55, r. 3 (1) [p.90] of [1968] GLR 88 and leave was sought of the court to withdraw the originating summons when it came on for hearing later in the day of 7 November 1967. Leave to withdraw was given but whether the said summons was in consequence dismissed is not apparent. Counsel for the respondent has not entered an appearance to this petition nor has he filed an answer thereto. He, however, submits in limine at the hearing of the petition that it must be dismissed as it is not properly before the court, or if it is before the court, it is void having been filed at a time when there was a subsisting proceeding before the court. This subsequent petition he says is not permitted as the procedure in matrimonial causes forbids the presentation of a subsequent petition during the subsistence of another petition relating to the same parties and touching on the same subject-matter. He has not referred me to the appropriate Order of the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A), which states this to be the practice, nor has he cited any authorities in support of his contention. He did refer me to Order 55, r.4(1)(f) which lays down in mandatory terms what must be stated in a petition in a matrimonial cause other than for jactitation of marriage. This aforesaid Order provides that the petitioner must in his petition state: “Whether there have been in the Supreme Court any, and if so what, previous proceedings with reference to the marriage or the children of the marriage by or on behalf of either of the parties to the marriage, the date and effect of an decree or order made in such proceedings…”

Counsel for the petitioner on the other hand in opposition, submits that the originating summons withdrawn on 7 November 1967 may be likened to a preamble to the petition filed on that date, since the petition and the affidavit accompanying the originating summons are substantially the same as regards the grounds for divorce alleged. He further submits that the originating summons with the accompanying affidavit were merely pleadings as defined in Order 1 of the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A), and were not “proceedings” which later necessarily involve some final determination of the issues involved resulting in some final order or decree of the court. Further he says that the respondent through his counsel has no locus standi not having entered an appearance or filed an answer to the petition of 7 November 1967. Adverting to the submission of counsel for the petitioner that the respondent or his counsel has no locus standi not having entered an appearance or filed an answer, it is clear that this court has powers

[p.91] of [1968] GLR 88 to enlarge the time wherein an appearance may be entered or an answer filed on application being made to that effect, and on such enlargement being granted, counsel could enter an appearance under protest as provided for in Order 55, r. 13 and thereafter apply for determination of the very question raised herein before filing an answer. This being the case it would certainly conduce to the more speedy determination of the real issues involved in this suit to treat the respondent’s appearance to the originating summons as an appearance to this petition, especially as counsel for the petitioner has himself forcefully submitted that the contents of this petition are substantially the same as the affidavit to the originating summons. I therefore rule that the respondent or his counsel in the circumstances of this case may properly be heard though he has not entered appearance to this particular petition. Counsel for the petitioner submits that the originating summons which he asks the court to treat as a preamble to the petition of 7 November 1967 was not in the nature of “proceedings” in a matrimonial cause or matter. I have no hesitation in ruling that whatever other character the aforesaid originating summons may be capable of assuming, it was a “proceeding”’ in a matrimonial cause or matter. Even a summons issued but withdrawn prior to hearing thereof is a “proceeding” for purposes of Order 55, r. 4 (1) (f): see Penny v. Penny [1952] 2 All E.R. 938. Having ruled that the originating summons filed on 15 June 1967 was a “proceeding” within the meaning of Order 55, r. 4 (1) (f), the crucial issue is whether it precluded the filing of the petition of 7 November 1967 involving the same parties and touching on the same subject-matter. Order 55 of L.N. 140A is silent on this question however Order 74 provides that:

“74. Where no provision is made by these Rules the procedure, practice and forms in force for the time being in the High Court of Justice in England shall, so far as they can be conveniently applied, be in force in the Supreme Court of Ghana.”

The practice of the High Court of Justice in England relating to this issue is that a previous proceeding by or against a wife does not render void a subsequent petition between the same parties and touching on the same matrimonial matter. However such subsequent petition will be stayed and no decree nisi granted until the previous proceeding has been disposed of by a final order or dismissed. This practice evolved as a result of the clear rules formerly incorporated in the Matrimonial Causes Rules 1950 (S.I. 1950, No. 1940), and [p.92] of [1968] GLR 88 now incorporated in the Matrimonial Causes Rules, 1957 (S.I.1957 No. 619), r. 3 (2) which provides as follows:

“Except with the leave of a judge a petition shall not be filed if there is before the court another petition by the same petitioner which has not been dismissed or otherwise disposed of by a final order.”

There is no such prohibitive rule in existence here. It is reasonable to infer that, if in a country where such a prohibitive rule exists, the effect of a contravention thereof is not to render the subsequent petition void “ab initio” but merely to render it liable to be stayed, then a fortiori where no such prohibitive rule exists as in this country, the consequence of filing a subsequent petition ought not to be more severe. The practice in the High Court of Justice in England is to stay the subsequent proceeding, but it is not inherently void because of a pre-existing proceeding not yet disposed of-see Onslow v. Onslow, Jones and Campbell (1889) L.T. 680. In this particular case, adopting the practice of the High Court of Justice in England as one which can be conveniently applied here, I rule that the petition of 7 November 1967 is not void, it is properly before the court and may be proceeded with as if the originating summons had already been withdrawn. Should the said originating summons remain as merely withdrawn and not dismissed in the record of this court, leave is hereby granted to the petitioner to apply for the formal dismissal thereof. The respondent is further granted enlargement of time of ten days within which to file an answer, his appearance to the originating summons being treated as an appearance to this petition. The suit is adjourned sine die, to be listed for hearing in the ordinary way on the issue of the registrar’s certificate.

DECISION

Submissions overruled.

S. K. T.