HAPPEE v. HAPPEE AND ANOTHER

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 divorc