ASHONG V. ASHONG

AMISSAH J.A.

This is an appeal from a decision of Prempeh J., given on 1 March 1963 (unreported). It arises out of a summons issued by one Mrs. Juliana Ashong against her husband Mr. D. C. Ashong. By that summons she prayed the court that it should order her husband, who had wilfully neglected to provide reasonable maintenance for her, to make such payment to her for her maintenance as may be just. After reading the affidavit in the matter including one on the annual income and expenditure of Mr. Ashong and hearing the oral evidence of both parties, and arguments, the judge ruled that Mr. Ashong should pay the sum of £G115 representing maintenance for Mrs. Ashong at £G10 per month from the date of the filing of the petition until the date of the ruling and thereafter at the rate of £G20 per month. Against this ruling Mr. Ashong has now appealed. He shall hereafter be referred to as the appellant, the expression respondent being reserved for his wife, Mrs. Ashong.

Several grounds of appeal were filed during the pendency of this appeal. At the hearing, counsel for the appellant asked for leave to argue the supplementary grounds filed on 26 November 1966. Leave was granted and his arguments were confined to those three supplementary grounds. The first of these grounds, which was by far the most vigorously contested was that the learned trial judge had no jurisdiction to hear an application based on section 23 of the English Matrimonial Causes Act, 1950 (14 Geo.6,c.25). To put the argument briefly, it was contended for the appellant that the proceedings before the High Court were brought under section 23 of the Matrimonial Causes Act, 1950, but that this Act could only apply within the jurisdiction of Ghana if made to do so by section 17 of the Courts Ordinance, Cap. 4 (1951 Rev.). Although the Ordinance itself has been repealed, the section has been saved by each new enactment on the structure and jurisdiction of the courts in the country, the latest saving provision being paragraph 93 of the Courts Decree, 1966 (N.L.C.D. 84). The construction of the relevant part of section 17 of the Ordinance, therefore, is of the greatest importance on this question. It reads as follows:

“The jurisdiction hereby conferred upon the Supreme Court in Probate, Divorce and Matrimonial Causes and proceedings may, subject to this Ordinance and to Rules of Court, be exercised by the Supreme Court in conformity with the law and practice for the time being in force in England . . .”

According to the argument of counsel for the appellant, the law and practice in England apply here only subject to our own Ordinance and rules of court. But Order 55 of the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A), which deals with matrimonial causes excludes the operation of the English Matrimonial Causes Act of 1950. This it apparently does by implication in the interpretation rule of the Order. That rule, namely, rule 1 of the Order, provides that:

“In this Order the following expressions have the meaning hereinafter respectively assigned to them; ‘The Act of 1937’ means the Matrimonial Causes Act, 1937. ‘The principal Act’ means the Supreme Court of Judicature (Consolidation) Act, 1925, as amended by any subsequent enactment. ‘The Acts’ means the Matrimonial Causes Acts, 1925 and 1937.”

So, the argument went on, as the rules committee signed these rules in 1952 and they were promulgated in 1954, the committee must have been aware of the English Act of 1950 and if the intention was that that Act should apply, the committee would have plainly said so. By virtue of this Order, therefore, our courts have to apply the Supreme Court of Judicature (Consolidation) Act, 1925 (15 and 16 Geo. 5, c. 49), and the Matrimonial Causes Act, 1937 (1 Edw. 8&1 Geo. 6, c. 57), notwithstanding that the 1937 Act has been repealed in England.

This argument looks very attractive. But to be sustained, it must pass two crucial tests: it must first show that in this respect the powers of the rules committee were wide enough to entitle it not only to prescribe rules of practice, and procedure but also to legislate on substantial legal matters. Secondly, the argument must successfully demonstrate that by stating what meaning certain expressions do have when used in the Order, the rules effectively excluded the application of the Matrimonial Causes Act of 1950 to Ghana.

With regard to the first of the two stated tests, there cannot be any doubt that if any rule is to have a limiting or exclusionary effect on the application of the law and procedure in matrimonial causes for the time being in force in England as made applicable to this country by section 17 of the Ordinance, then that rule must be made in the proper exercise of the powers of the committee. If a rule is made in excess of the powers of the committee, it will be struck down on the ground that it is ultra vires. Thus the question for consideration, in its simple form, is this: had the rules committee power to make rules to exclude the application of the law of England applied to this country by section 17 of the Ordinance? At the time that these rules were promulgated, the powers of the committee were conferred by section 107 (1) of the then Courts Ordinance, Cap. 4 (1936 Rev.). In a nutshell, they were to make rules of court other than or additional to those in the schedules attached to the Ordinance but not inconsistent with it or with any other Ordinance for carrying the Courts Ordinance into effect and in particular for regulating and prescribing matters relating to practice and procedure in the courts. The applicability or otherwise of the Matrimonial Causes Act of 1950, being a law as distinct from practice for the time being in force in England, to Ghana, is certainly not a matter of or merely relating to practice or procedure. The Act incorporated the extension of the jurisdiction of the English courts, in divorce cases, made by the Law Reform (Miscellaneous Provisions) Act, 1949 (12, 13 and 14 Geo. 6,c. 100). Before the 1949 Act, the English courts could not, for example, entertain petitions from deserted wives who were resident but not domiciled in England. With its passage, the courts acquired jurisdiction to hear and determine petitions of such deserted wives upon certain specific conditions. The extent of a court’s jurisdiction is a fundamental matter, which cannot be characterised as a matter of practice or procedure. If the rules committee had, therefore, while exercising powers to regulate and prescribe practice and procedure, purported to exclude all laws subsequent to 1937, it would not have achieved its desired goal, because the exercise of the power for this purpose would have been ultra vires.

But the committee had power not only to make rules to regulate or prescribe procedure but also to make rules for carrying the Courts Ordinance into effect. The outstanding question then is whether the suggested exclusion of the law in England after the Matrimonial Causes Act of 1937 can be a valid exercise of the power of the rules committee to make rules for carrying the Ordinance into effect. For my part, I fail to understand how the abridgment or exclusion of the operation, in this country, of the law in matrimonial causes for the time being in force in England as provided by section 17 of the Ordinance, can ever qualify for description as carrying the Ordinance or any of its provisions into effect. Had the rules committee purported to exercise its power in this matter, I would not have hesitated in saying that it acted outside the scope of its authority. And rules produced as a result of the exercise of such power could not be valid rules to which the operation of the current law and practice of England in the matters specified by section 17 would be subjected.

Of course, the position with regard to alterations of the current rules of practice in England by rules made by our committee would be different. As said before, the powers of the committee include particularly the power to make rules regulating practice and procedure for our own courts. If, therefore, in the purported exercise of this power, the committee makes rules which are inconsistent with the current English rules of practice, the latter would have to yield to our own rules.

This view of the matter, far from doing violence to the language of section 17 of the Ordinance, in my view, brings out its purport and intendment. The manner in which the intention of the legislature is expressed is to take the “law and the practice” of England together and make their application in Ghana subject to the “Ordinance and to Rules of Court.” As the rules of court govern procedure and practice, they can only control, if at all, the application of the current “practice” in England, while the Ordinance controls the application of the current law in England. This is not an unusual form of expression in the English language. And unless it can be shown that rules may be made to qualify or exclude the operation of laws, the expression does not seem to me to support the appellant’s contention.

Mr. Moore, for the appellant, painted a picture of the ridiculous situation which would arise if the specific English laws for the time being in force were to apply in their totality to this country. He, of course, used this argument to support his contention that the rules of court may exclude some of these laws. But it is not necessary to read a power in the rules committee to exclude incongruous laws into the provisions of the Ordinance to ensure that such laws are not applied here. Because if it is correct that the application of the current English laws is controlled not by the rules but by the Ordinances, then such laws which are incongruous to apply in this country would be excluded by the terms of section 85 of the Ordinance which provides in part that, “All Imperial laws declared to extend or apply to the jurisdiction of the Courts shall be in force so far only as the limits of the local jurisdiction and local circumstances permit.”

If Mr. Moore’s arguments were accepted, then, the situation would indeed be startling. For it would mean that section 17 of the Ordinance has by implication given the rules committee absolute power to determine what the substantive rules of probate, divorce and matrimonial causes in this country should be. Nobody should be surprised to wake up next day to find that in the exercise of its powers the committee has ruled that divorce by consent should be the order of the day or that adultery should no more be a ground of divorce or that our courts have jurisdiction to grant divorces to petitioners who are neither domiciled nor resident in this country. But these, I should have thought, are matters exclusively for the legislature. However eminent the members who compose the rules committee are, I do not think the enactment of such laws are tasks for which their qualifications or the machinery of their committee make them particularly suited. But even more to the point, I do not think that the committee itself has ever claimed the jurisdiction, now attributed to it, over this field of legislation.

That leads me to the next point: whether in providing for the interpretation of terms in Order 55, r. 1, the rules committee was by implication excluding the application of certain laws to Ghana. This brings into question the object of the interpretation rule. The rule appears to me to do no more than define the meaning of certain expressions when they appear in the Order. But this is far from saying that it hereby proclaims that the application of other Acts in Ghana are excluded. For one thing, the other Acts may be specifically mentioned in the Order itself, as occurs in rules 4 (1) (j) and 6 (2) (d) where the Matrimonial Causes (War Marriage) Act, 1944 (7 and 8 Geo. 6, c. 43), though not included amongst the Acts in the interpretation rule is expressly mentioned in full. But what is more important, one would have to go to the body of the Order for the instances where the expressions defined are used to find out what they are supposed to say or do therein, before one can claim that their user means the exclusion of the application of any other Act. My examination of the Order has yielded some interesting results. It should be borne in mind that rule 1 opens by saying that, “In this Order the following expressions have the meaning hereinafter respectively assigned to them”; and further that the Order from beginning to end is dealing with practice and procedure. I find that the expression, “The Act of 1937,” apart from when it is interpreted, is used only one other time in the Order and this again is in the same interpretation rule. It comes in the interpretation of “undefended cause” which is said to mean,

“a matrimonial cause in which no answer has been filed or in which all the answers filed have been struck out, but does not include a cause in which (a) the Court is asked to exercise its discretion under Section 178 (2) of the principal Act, or (b) relief is sought under section 176 (d) of the principal Act or section 7 (1) (b) of the Act of 1937.”

Does the fact that an “undefended cause” does not include a cause in which relief is sought under a specific section of the Supreme Court of Judicature (Consolidation) Act, 1925, as amended or the Matrimonial Causes Act, 1937, mean that the application of all other Acts in matrimonial causes for the time being in force in England, whatever they provide for, is excluded? It would be an extraordinary proposition to advocate. The curious thing is that after taking the trouble to interpret this particular expression, the only time that the 1937 Act is referred to in the main body of the Order, that is, in rule 6 (2) (b), it is given its title “the Matrimonial Causes Act of 1937” in full.

It will have been observed that the expression “the principal Act” also features in the interpretation of the “undefended cause.” Apart from that instance it can also be found in rule 25 which provides that: “Subject to the provisions of the principal Act and this Rule, the witnesses at the trial or hearing of any matrimonial cause shall be examined viva voce and in open Court.” Finally it appears in rule 32 (2) which provides that:

“Where in any cause there has been a finding of adultery against one of the parties to the cause, but the Judge has refused to exercise his discretion under section 178 (2) of the Principal Act, that finding and the refusal shall be set out in the decree and where in such a case the Judge exercises his discretion the decree shall state that it is made in the exercise of the discretion conferred on the Court by the said section.”

Again one may ask, do these provisions either by themselves or taken together exclude the application of any other law in matrimonial causes for the time being in force in England? I do not think so. The best argument one can make out of this, and it would be the argument of a drowning man, is that as the court’s discretion is to be exercised, according to rule 32 (2), under section 178 (2) of the Supreme Court of Judicature (Consolidation) Act, 1925, then discretion cannot be exercised in this particular connection under any other Act and this would in turn support the contention that Acts now in force in England which have not been mentioned in the Order are excluded. But Mr. Moore himself conceded in his arguments on some other point, that portions of the 1925 Act which dealt with matrimonial causes have been incorporated with amendments in the matrimonial causes have been incorporated with amendments in the Matrimonial Causes Act, 1950. In fact, according to his argument, due to the interpretation of “the Principal Act” to mean the Supreme Court of Judicature (Consolidation) Act, 1925, “as amended by any subsequent enactment,” only that part of the 1950 Act which incorporates the 1925 Act with amendments will apply. If that is so, then in my opinion, the mere reference to a section of the 1925 Act dealing with discretion would not exclude but would rather bring in the corresponding section in the 1950 Act. As stated earlier, however, to argue that the reference to the exercise of discretion under a particular section of the 1925 Act completely excludes the application of all other current laws whatever they say, is to clutch at straw in a desperate situation. After all, the exercise of discretion by the court in this connection is not the sum total of the jurisdiction of the court, nor is it the embodiment of all laws applied by the court.

I have searched, but without success, for the use of the expression “the Acts” in the main body of the Order. In the circumstances I have tried to understand the argument that the 1950 Act is excluded by Order 55. It certainly is not excluded in the interpretation rule because that rule does no more than provide some sort of shorthand for longer expressions which may be found subsequently in the Order. And as we have seen in one case the shorthand provided is quite unnecessary because it is never used. Indeed in one other instance the shorthand is positively misleading: “The Acts” is said to mean “the Matrimonial Causes Act, 1925 and 1937.” But there was no Matrimonial Causes Act in England in 1925. Obviously what was intended for 1925 is the Supreme Court of Judicature (Consolidation) Act, 1925. In my view, even if the rules committee had the power to exclude the application of the laws, as distinct from the practice, for the time being in force in England, it would not have exercised its power of excluding laws subsequent to 1937 in this furtive manner. Further, I cannot see how the interpretation given to expressions, when and where they appear, can by itself exclude any rights conferred on individuals by the Matrimonial Causes Act of 1950 or by any other Act passed after 1937. (See in this context the case of Jobbins v. Middlesex County Council [1949] 1 K.B. 142 at pp. 160 and 163, C.A. where both Scott and Wrottesley L.JJ. pointed out that a definition section ought to be construed as not cutting down the enacting provisions of an Act unless there is absolutely clear language having the opposite effect.) In conclusion, I am of the opinion that whether tested by the first or second consideration posed, the argument that the Act of 1950 does not apply to Ghana cannot be accepted.

Two other grounds of appeal were briefly argued. One was that the learned trial judge erred in ordering that the appellant should pay ¢48.00 (£G20) a month without assigning any reasons.

But it is obvious that what the judge had awarded was what he thought was reasonable and just having regard to the evidence which he heard on the dependency of the respondent and on the appellant’s means. This was what the respondent had prayed the court for and the award cannot be made referable to any other reason. In the circumstances the learned judge’s omission to state the reasons for the award is understandable.

Finally it was urged that the learned trial judge erred in making the order for payment of the gum of ¢276.00 (£G115) when there was no application before him. But there was application. The request for maintenance had been made to the court from the date the surmons was filed. It would be deplorable if the time that the court’s own machinery took to produce a decision on the application should be counted against the suppliant. I do not see any merit in this ground.

One aspect of the order of the judge which has puzzled me is the fact that the judge ordered that the arrears should be calculated at the rate of £G10 a month while the prospective payments were to be made at the rate of £G20 a month. I do not understand the criterion applied by the judge in this respect. If £G20 a month is reasonable for the future, the same amount should have been reasonable in the past unless there had been a change for the better in the circumstances of the appellant during the pendency of the summons. On the other hand, if £G10 was reasonable it should continue to be so until such change. However, upon consideration I have come to the conclusion that any alteration adopting either one or the other figure in the order would be arbitrary. I am not much attracted to the idea of halving the total and making the resultant £G15 a month operate uniformly. With some misgiving, therefore, I would allow the order to stand as it is.

For the reasons given, I would dismiss the appeal.

OLLENNU J.A.: I agree.

LASSEY J.A.

I also agree.

Appearances

E. N. MOORE FOR THE APPELLANT; K. NARAYAN FOR THE RESPONDENT.