GH - CRABBE v. CRABBE

JUDGMENT OF ABBAN J.

The petitioner herein seeks divorce on the sole ground that his marriage with the respondent has broken down irretrievably and there is no possibility of a reconciliation and that the petitioner and the respondent have been living apart from each other continuously for a period of over five years immediately preceding the presentation of the petition.

Learned counsel for the respondent having taken a preliminary objection against the petition, the same was set down for legal argument. The contention of learned counsel for the respondent is that the petition is incompetent because the ground on which the petitioner is asking for divorce is unknown to the matrimonial law operating in Ghana. Counsel argued that this particular ground is recognised only by the British Divorce Reform Act, 1969 and that since this British Act cannot be said to have automatic application to Ghana the court has no power or jurisdiction to apply its provisions and to hold that the petition is competent.

It was further contended by learned counsel that the legislative power in this country is vested in Parliament alone by virtue of article 69 (1) of the Constitution, 1969, and so long as Parliament has not adopted this Divorce Reform Act, 1969, it is beyond the power of any court in this country to hold that this Act which was passed by the British Parliament after the Constitution had come into existence should be applicable to Ghana. Counsel submitted that if the Act is held to be applicable to Ghana it will amount to allowing the British Parliament to legislate for an independent Ghana and this will not only undermine the Constitution but also be contrary to the provisions of the Constitution itself. Learned counsel conceded, rightly in my view, that the doubt as to the applicability of English matrimonial law to Ghana was cleared by Ashong v. Ashong, Court of Appeal, 13 March 1967, unreported; digested in (1968) C.C. 26 and by paragraph 93 of the Courts Decree, 1966 (N.L.C.D. 84). However, counsel argued that this was the position before the Constitution came into existence and with the coming into operation of the Constitution, provisions of the matrimonial laws for the time being in force in England can no longer apply to Ghana. Counsel also appreciated that [page 167] paragraph 93 (2) of N.L.C.D. 84 forms part of the existing law of Ghana. But he submitted that this particular decree ought to be interpreted "with such modifications" and " exception"

JUDGMENT OF ABBAN J.

CRABBE v. CRABBE

Areas of Law

JUDGMENT