AMPONSAH v AMPONSAH

[1997-98] 1 GLR 43

Division: HIGH COURT, CAPE COAST

Date: 7 March 1997
Before: HEWARD-MILLS J

Courts—Jurisdiction—Exercise of—Jurisdiction determined by status and claim of plaintiff rather than

defence of defendant.

Conflict of laws—Divorce—Domicile—Jurisdiction—Petitioner wife and respondent Ghanaians by birth

naturalised Americans—Difference between naturalisation and domicile—No evidence of abandonment
of domicile of origin—Evidence by petitioner of intention of parties to live permanently in
Ghana—Whether High Court with jurisdiction to entertain petition—Matrimonial Causes Act, 1971 (Act
367), s 31.

HEADNOTES
The petitioner was the wife of the respondent. The parties were Ghanaians by birth but had lived in
America and acquired American citizenship. They both came home to establish a business and were
granted a resident visa. Following differences between them, the petitioner filed for divorce. The
respondent, however, raised a preliminary objection to the jurisdiction of the High Court on the grounds
that since (1) they had acquired American citizenship they were not subject to the matrimonial laws of
Ghana; and (2) all records relating to their properties were in America, he would be put to great expense
and difficulty to procure the necessary evidence. The court however found that the parties had returned
home with the intention of permanently setting up home together in Ghana and were resident and
domiciled in Cape Coast.
Held, dismissing the application:
(1) it was a fundamental principle of law that it was the status of the plaintiff, ie the petitioner in the
instant case, and the issues raised in the statement of claim that determine the jurisdiction of the
court and not the defence which merely disputed the claim but did not dictate it. Accordingly, the
respondent could not use his defence to oust the jurisdiction of the court. Akati v Nartey [1980]
GLR 218 cited.
(2) Section 31 of the Matrimonial Causes Act, 1971 (Act 367) conferred general matrimonial
jurisdiction on a court where either party to the marriage (a) was a citizen of Ghana; or (b) was
domiciled in Ghana; or (c) had been ordinarily resident in Ghana for at least three years
immediately preceding the commencement of the proceedings. In the instant case, even though the
naturalisation of the petitioner as an American citizen had changed her political allegiance, the
dictates of citizenship were different and distinct from those of domicile. Naturalization was a
question of law but domicile was a question of fact and depended on the intention
[p.44] of [1997-98] 1 GLR 43

to make a permanent home in a particular country. Since there was no evidence that the parties had
abandoned their domicile of origin acquired at birth and intended to or had acquired a new domicile of
choice, the limited right of stay due to their visa regulations did not mean an automatic loss of domicile
until and unless they were actually deported from the country. Moreover, the petitioner’s evidence
showed clearly that even if they had acquired a new domicile of choice in America, they had now
abandoned it. In the result, her domicile of origin which was deemed to have been held in abeyance had
been revived. Accordingly, the Court had jurisdiction over the matter. Cruh v Cruh (1945) 115 LJP 6;
Zanelli v Zanelli (1948) 64 TLR 556, CA and Gatty v Attorney-General [1951] P 444 cited.

CASES REFERRED TO
(1) Akati v Nartey [1980] GLR 218.
(2) Gatty v Attorney-General [1951] P 444; [1951] 2 TLR 99; 95 SJ 610.
(3) Zanelli v Zanelli [1948] WN 381; 64 TLR 556; 92 SJ 646, CA.
(4) Cruh v Cruh [1945] 2 All ER 545; 115 LJP 6; 173 LT 67.

NATURE OF PROCEEDINGS
APPLICATION by the husband-respondent to the High Court to decline jurisdiction over the divorce
petition of the wife-petitioner on the ground that since both of them had acquired American citizenship
they were not amenable to the matrimonial laws of Ghana. The facts are sufficiently stated in the ruling.

COUNSEL
Gustav Addington for the husband-respondent-applicant.
Kofi Koomson for the wife-petitioner-respondent.

JUDGMENT OF HEWARD-MILLS J.
The respondent to a divorce petition has applied to this court asking it to decline jurisdiction because both
he and his wife have now acquired American citizenship and, according to him, are not subject to
Ghanaian matrimonial laws. He claims they are both resident and domiciled in Los Angeles, America and
are presently in Ghana merely to set up a business and to visit their elderly parents. They have a limited
right of stay subject to the extension of their visas by the immigration authorities. Finally, he avers that
the petitioner’s claim for properties which, according to him, are solely owned by him makes it
inequitable to hear the matter in Ghana. This is because all records relating to owner-

[p.45] of [1997-98] 1 GLR 43

ship are in America and he would be put to great expense and difficulty to procure the necessary
evidence.
The applicant claims to be governed by continental law which obliges a wife to take up the domicile of
the husband. According to him, his domicile and therefore that of the wife is in Los Angeles in the United
States of America where their matrimonial home is and is unaffected by the wife’s intention to settle in
this country. The applicant did not enlighten this court as to the particular state laws he relied on.
However, it is a fundamental principle of law that it is the status of the plaintiff (ie the petitioner in this
case) and the issues raised in the statement of claim that determine the jurisdiction of the court. I refer to
the case of Akati v Nartey [1980] GLR 218 and the cases cited therein. The essence of those cases is that
the defence merely disputes the claim but does not dictate it. The defence therefore cannot be used to oust
the court’s jurisdiction. Secondly, if it is still the law of the American State of Los Angeles where the
applicant claims to be resident and domiciled, that the domicile of a wife is that of the husband, then it
lags far behind the progressive laws of this country. Section 31 of the Matrimonial Causes Act, 1971 (Act
367) obliges the court to look at the status of either party and not just that of the husband. To buttress the
point, section 32 of Act 367 clearly states: “For the sole purpose of determining jurisdiction under this
Act, the domicile of a married woman shall be determined as if the woman was above the age of
twenty-one and not married.” So that the status of the petitioner in this case must be determined
independently of the applicant and not be dictated by the latter.
Section 31 of Act 367 confers general matrimonial jurisdiction on a court where either party to the
marriage:
“(a) is a citizen of Ghana; or
(b) is domiciled in Ghana; or
(c) has been ordinarily resident in Ghana for at least three years immediately preceding the
commencement of the proceedings. “

In considering the case of the petitioner, her naturalisation as an American citizen has changed her
political allegiance, but the

[p.46] of [1997-98] 1 GLR 43

dictates of citizenship are different and distinct from those relating to domicile. According to Tolstoy on
Divorce (5th ed) whereas naturalisation is a question of law, domicile is a question of fact. The latter
depends on an intention to make a permanent home in a particular country. The couple may have set up a
home in America, but long residence unaccompanied by a fixed and settled intention to make that home
permanent, does not endow that residence as a place of domicile: see Gatty & Gatty v. Attorney-General
[1951] P 444. The case of the petitioner-respondent is that the parties are resident and domiciled in Cape
Coast. They had returned from America with the intention of permanently setting up home together in
Ghana. She had given up her jobs, shipped their personal effects home and set up a business to generate
income for their upkeep. It was when she joined up with the husband who had preceded her that she
discovered he was no longer interested in the marriage.
Despite the acquisition of new citizenship there is no evidence that the parties had abandoned their
domicile of origin acquired at birth, and had intended to or had acquired a new domicile of choice. The
limited right of stay due to their visa regulations, does not mean an automatic loss of domicile until and
unless they are actually deported from this country: see Zannelli v Zannelli (1948) 64 TLR 556 and also
the case of Cruh v Cruh (1945) 115 LT 6 cited in Tolstoy, Law and Practice of Divorce and Matrimonial
Causes (5th ed), p 11.
The assertions of the petitioner show clearly that even if a new domicile of choice had been acquired in
America, it had now been abandoned. That in, effect, revives her domicile of origin which is deemed to
have been held in abeyance during the existence of her domicile of choice.
For the above reasons the application to the court is denied with costs of ¢50,000 to the
petitioner-respondent in this application.

DECISION
Application dismissed.
EAA.