EKUBAN V. EKUBAN
by BOISON J.
Jurisdiction
HIGH COURT
Judge
BOISON J.
Catalog Type
Case
Judgement Date
Oct 06, 1965
Summary
The petitioner-applicant filed a motion seeking a review of an earlier court order which had held that a petition in divorce and matrimonial causes constituted a writ within the meaning of the Supreme Court (Civil Procedure) Rules. The application for review was grounded on the contention that the respondent’s appearance was defective in law because it had been entered under protest without stating concise grounds. The applicant further argued that there was no prescribed time limit for the service of a matrimonial petition, and therefore the earlier ruling was erroneous. The respondent opposed the motion, arguing that no new facts or material had emerged since the initial order was made and that the issue concerning the form of appearance was immaterial to the validity of the proceedings. The issue before the court was whether there was sufficient ground, such as an error apparent on the face of the record, to justify a review of the earlier order, particularly regarding the classification and validity of a divorce petition and the rules governing its service. The court held that matrimonial causes are governed by Order 55 of the Supreme Court (Civil Procedure) Rules, together with the Matrimonial Causes Acts and the Supreme Court of Judicature (Consolidation) Act, all of which were applicable in Ghana. It found that under these rules, there was no specific time limit prescribed for the service of a matrimonial petition. The court was satisfied that there was an error apparent on the face of the record or sufficient reason to review the earlier decision. Accordingly, the court reversed the previous order and held that the petition was valid and effective from the date it was filed. Costs of ¢48.00 were awarded to the petitioner-applicant.
Full Content
BOISON J.: This is a motion for review of an order of this court dated 16 September 1965. The order in effect held that a petition in divorce and matrimonial causes is a writ within the meaning of Order 8, r. 1 of the Supreme [High] Court (Civil Procedure) Rules, 1954. The grounds of the application were:
(a) that the appearance filed by the respondent was bad in law in that the appearance was under protest and generally and according to Latey on Divorce (13th ed.), p. 1295, appearance may be under protest. The protest may be general or limited. In either case the grounds of protest must be stated concisely. This was not done in this case.
(b) That in the case of ordinary and originating writs, the form specifically states that service should be effected within twelve months from the date of the writ. There is no such limitation or condition in the case of petitions and the fact that the definition of “plaintiff” includes “petitioner” and “pleadings” includes “petition” does not necessarily make a “petition” a writ of summons within Order 8, r. 1.
(c) That the English rules of practice in divorce and matrimonial causes apply in Ghana and that by these rules on page 611 of Latey, there is no time limit within which a petition may be served.
Opposing the application it was contended that no new facts or material have come to light since the order was given within Order 39, r. 1 (b), and that the argument about the form of appearance is irrelevant and that as there was no proof of service of the petition on the two women named (or certificate dispensing with service on them) the petition is null and void. It was further contended that in this court we are not bound by Latey in so far as our rules are not silent on the point at issue.
In this court, matrimonial causes (or more strictly speaking proceedings for matrimonial reliefs or remedies) are governed by Order 55 of the Supreme [High] Court (Civil Procedure) Rules, 1954, 1 the Matrimonial Causes Acts, 1923 2 and 1937, 3 and the Supreme Court of Judicature (Consolidation) Act, 1925 4 as amended by subsequent enactments. All these are United Kingdom enactments and the practice and rules under these Acts are therefore in force in Ghana. Under Order 55 there is no specific period within which to serve a petition. Latey on Divorce, p. 611 puts the matter beyond doubt that there is no time limit within which to serve a petition. Order 39, r. 1 (b) reads as follows.
“Any person considering himself aggrieved —. . . (b) by a judgment or order from which no appeal is allowed; and who from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the judgment was given or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the judgment given or order made against him, may apply for a review of the judgment or order to the Judge who gave judgment or made the order.”
In this case I am satisfied that there is a mistake or error apparent on the face of the record or alternatively sufficient reason has been shown by the applicant which makes it reasonable and justifiable for me to review the order of this court of 16 September 1965. The order of 16 September 1965 is therefore reviewed as follows: The order is reversed and the petition herein is not null and void. The petition is therefore good and valid as from the date it was filed in the registry. Costs of ¢48.00 for petitioner-applicant.
Appearances
R. KORSAH FOR THE APPLICANT; A. LAMPTEY FOR THE RESPONDENT.