9/11/23, 6:15 AM Abu-Jaudeh v Abu Jaudeh (1972) GLR | The CONFLICT of LAW

31st August 2012 Abu-Jaudeh v Abu Jaudeh (1972) GLR

ABU-JAUDEH v. ABU-JAUDEH [1972] 2 GLR 444-459
IN THE HIGH COURT, ACCRA
29 JUNE 1972

KINGSLEY-NYINAH J.A.
Conflict of laws—Domicile—Proof of—Lebanese national resident in Ghana for 23 years—Evidence of family connections
with Ghana—No evidence of severance of ties with country of origin—Whether change of domicile proved to found divorce
jurisdiction.
Evidence—Statutory declaration—Change of domicile—Statutory declaration renouncing domicile of origin and stating
intention to acquire domicile of choice—Value as evidence of change of domicile.
HEADNOTES
In an action to determine whether the plaintiff a Lebanese national with a Lebanese domicile of origin was domiciled in
Ghana so as to vest the court with jurisdiction to hear his petition for divorce, the plaintiff said in evidence that he had lived
and worked in Ghana for 23 years; that his father and grandfather also lived and worked in Ghana and are buried here; that
he has property here; that he had applied for Ghanaian citizenship in 1969; that he had disposed of part of his property in
the Lebanon and was in the process of disposing of the rest; that his brother was living and working in Ghana and had
acquired Ghanaian nationality; that he had applied for Ghanaian nationality for his son and intended that his son should
take over his business in Ghana. There was also evidence that the plaintiff had made frequent trips to the Lebanon where
his children were being educated; that he had persuaded his wife, the defendant, to take out a Lebanese passport; that he
was treasurer of the Lebanon club and that he had promised his wife that one day they would return to and settle in the
Lebanon.
Held:
(1) matrimonial domicile is not easier to acquire than domicile in the ordinary sense. Residence and domicile are two
perfectly distinct things and long residence per se although relevant is rarely a decisive factor in determining domicile for
the purposes of divorce jurisdiction. A person whose domicile is the object of inquiry must prove animus manendi and must
have formed a fixed and settled purpose of making his home in the [p.445] country of residence. On the evidence the
plaintiff's residence was a residence of convenience for the signal object of his business and it was not sufficient to confer
jurisdiction upon the court. Le Mesurier v. Le Mesurier [1895-1899] All E. R. Rep. 836, P.C.; Boldrini v. Boldrini [1931] All
E.R. Rep. 708, C.A.; Bell v. Kennedy (1868) L.R. 1 Sc. & Div. 307, H.L.; Re Steer (1858) 3 H. & N. 594, Udny v. Udny
(1869) L.R. 1 Sc. & Div. 441, H.L.; Attorney-General v. Yule and Mercantile Bank of India (1931) 145 L. T. 9, C. A.; Cruh v.
Cruh [1945] 2 All E.R. 545; M'Lelland v. M'Lelland 1942 S.C. 502; Hopkins v. Hopkins [1951] P. 116; Niboyet v. Niboyet
(1878) 4 P.D. 1, C.A. and King v. Foxwell (1876) L.R. 3 Ch.D. 518 cited.
(2) A bare assertion that a resident has applied for Ghanaian citizenship is not evidence that he intends to live in Ghana
permanently as her citizen. Such an assertion must be supported by proof, for instance a statutory declaration renouncing
his domicile of origin and showing his intention to acquire a Ghanaian domicile, Gulbenkian v. Gulbenkian [1937] 4 All E.R.
618 and Wilson v. Wilson (1872) L.R. 2 P. & D. 435 cited.
CASES REFERRED TO
(1) Le Mesurier v. Le Mesurier [1895] A.C. 517; 64 L.J.P.C. 79; 72 L.T. 873; 11 T.L.R. 481; [1895-1899] All E.R. Rep. 836,
P.C.
(2) Simpson v. Simpson and Rossi [1960] G.L.R. 105, C.A.
(3) Boldrini v. Boldrini [1932] P. 9; [1931] All E.R. Rep. 708; 101 L.J.P. 4; 146 L.T. 121; 48 T.L.R. 94, C.A.
(4) Bell v. Kennedy (1868) L.R. 1 Sc. & Div. 307, H.L.
(5) Re Steer (1858) 3 H. & N. 594; 28 L.J. Ex. 22; 32 L.T (o.s.)130; 157 E.R. 606.
(6) Udny v. Udny (1869) L.R. I Sc. & Div. 441, H.L. (included in Webb and Brown, Casebook on the Conflict of Laws (1960
ed.) p. 6).
(7) Gulbenkian v. Gulbenkian (1937) 158 L.T. 46; 54 T.L.R. 241; [1937] 4 All E.R. 618.
(8) Wilson v. Wilson (1872) L.R. 2 P. & D. 435.
(9) Attorney-General v. Yule and Mercantile Bank of India (1931)145 L.T. 9, C.A.
(10) Majolagbe v. Larbi [1959] G.L.R. 190.
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(11) Cruh v. Cruh (1945) 115 L.J.P. 6; 173 L.T. 367; 62 T.L.R. 16; [1945] 2 All E.R. 545.
(12) M'Lelland v. M'Lelland, 1942 S.C. 502.
(13) Hopkins v. Hopkins [1951] P. 116; 66 T.L.R. (Pt. 2) 896; [1950] 2 All E.R. 1035.
(14) Niboyet v. Niboyet (1878) 4 P.D. 1; 48 L.J.P. 1; 39 L.T. 486,C.A.
(15) King v. Foxwell (1876) L.R. 3 Ch.D. 518; 45 L.J.Ch. 693.
NATURE OF PROCEEDINGS
ACTION to determine whether the plaintiff had acquired a domicile of choice in Ghana before Kingsley-Nyinah J.A. sitting
as an additional judge of the High Court.
COUNSEL
J. K. Agyemang (Miss Rose Ocansey with him) for the plaintiff.
Dr. Ekow Daniels for the defendant.
[p.446]
JUDGMENT OF KINGSLEY-NYINAH J.A.
On 28 August 1954, the principal parties to this suit were joined together in matrimony at the Deputy Registrar's Office,
Kumasi Municipal Council, Kumasi, as husband and wife. Fourteen years subsequently, and exactly two grown-up children
later, the husband disillusioned and bewildered, instituted proceedings against his wife and another man (the co-
respondent) on 12 March 1968 asking for a dissolution of their marriage on the serious grounds of cruelty and adultery.
From the violence of the allegations canvassed by husband and wife against each other in their separate pleadings, it is
easy to infer that that love which at the start was so warm, so tender and so beautiful, and which drew husband and wife
together into wedlock-that love has now completely soured and is dishonoured, tarnishing the alluring glamour of earlier
years.
The embers of their earlier love having now so completely died out without the slightest hope of a rekindling towards
meaningful reconciliation, one would have thought that both parties would have pressed for an expeditious loosening of the
bonds of their hapless marriage so as to be able to enjoy the freedom they seem so much, now, to desire and which, I
think, will do both of them tremendous good. Instead, however, the wife respondent has stymied the main action for divorce
by raising the issue of jurisdiction as a bar to her husband's suit being heard and determined in these courts here in
Ghana. Her main ground is that the petitioner, her husband, is not truly and sufficiently domiciled in Ghana to avail himself
of this country's matrimonial jurisdiction in a suit for divorce.
Although the raising of this preliminary point appears, at first view, to have been engineered to delay, unnecessarily, the
hearing and determination of the main and substantive action for divorce, I would say that the objection was properly taken
because the validity of a decree of divorce is determined by the law of the domicile of the contesting spouses. In Le
Mesurier v. Le Mesurier [1895-1899] All E.R. Rep. 836, P.C. it was held as summarised in the headnote that:
"According to international law the domicil for the time being of married persons affords the only true jurisdiction to dissolve
their marriage. Such jurisdiction is not conferred by a `matrimonial domicil' based on a residence which, though not `casual
or that of a traveller,' is not of sufficient permanence to enable the parties to acquire a true domicile"
(The emphasis is mine).
The matter of the precedent objection above referred to was first raised before Anterkyi J. who, after hearing arguments on
both sides, delivered a ruling on 14 July 1969 unreported; digested sub nom. Najem (orse Abu Jaoudeh) v. Abu Jaoudeh
(1969) C.C. 134 in which he said inter alia:
[p.447]
"A preliminary point has been raised by Dr. Ekow Daniels for the respondent, that, as the parties are Lebanese, their mere
residence in Ghana is insufficient for inferring that the husband is domiciled in Ghana, and, therefore, for the court to
assume jurisdiction, because the court cannot legally assume jurisdiction by consent of the parties. Mr. Agyemang for the
petitioner counters this contention by arguing that the point does not arise, inasmuch as the respondent did not, in her
answer, deny the averment of the husband petitioner that the parties are domiciled in Ghana; and that, moreover, by
paragraphs (24)-(28) of the answer it is clearly portrayed that the respondent has also cross-petitioned, and in that regard
her residence for three years in Ghana suffices for the purpose of the court assuming jurisdiction."
After referring to the co-respondent who made no denial that the petitioner was domiciled in Ghana; and citing Simpson v.
Simpson and Rossi [1960] G.L.R. 105, C.A. to show that to establish a change of domicile by choice much more than a
mere declaration of intention is required, his lordship considered paragraphs (4) and (36) of the husband's petition. And he
then continued his ruling thus:

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"These averments raise the inference that there is no prima facie intention on the part of the petitioner to make Ghana his
domicile of choice, even though the prayer and the answer of the parties do not disclose the place of birth of each of them.
In this regard the court cannot infer that the parties are domiciled in Ghana from the mere averment of the petitioner that
they are so domiciled."
His lordship accordingly upheld the preliminary objection and, declaring "that the question of domicile must be first argued,"
he ordered:
"(1) That an issue as to the domicile of the petitioner be tried herein;
(2) that the petitioner be the plaintiff and the respondent the defendant;
(3) that the evidence to be given at the hearing be oral."
The plaintiff-husband is a Lebanese national who arrived in this country over twenty years ago. Since then, he has resided
and worked here, taking to wife the defendant by whom he has had two children, Sammy and Ramzes. But while the
defendant-wife contends that her husband has not changed his original Lebanese domicile to enable him take advantage
of the matrimonial jurisdiction of the courts of this land, the plaintiff-husband argues to the contrary and states that he has
lived here, in this country, sufficiently long enough to have acquired such permanency of residence as to vest this court with
necessary jurisdiction to hear and determine his petition for divorce.
[p.448]
The true question for decision in this case is, therefore, whether upon the evidence before me, and having regard to the
authorities, and the very peculiar circumstances of this matter, the court ought, justly and properly, to find, or to infer as a
decisive fact, that in the course of all the many years that the plaintiff has been resident here, he has shown any
determination to make, and he has in verity made, Ghana his permanent and fixed home where he has had the intention of
settling permanently. It is only when the plaintiff-husband has convincingly shown either that he has had his permanent
home in this country; or that he must be taken to have had, all these years, a clear intention to make his permanent home
within the territorial limits of the common law of this country - it is only then, that the plaintiff-husband must be found, as a
clinching fact, to be truly domiciled in Ghana for the purposes of valid matrimonial jurisdiction. And for this conclusive fact of
domicile to avail him in the circumstances of this precedent inquiry, it is necessary that the plaintiff demonstrates, with
perfect clearness, that the twin essentials of residence here in Ghana, and the intention to make that residence fixed, are
both fully met, and purposefully present in him.
Boldrini v. Boldrini [1931] All E.R. Rep. 708, C.A. is a case in point. There the husband, who was of Italian nationality (like
the plaintiff here who is of a Lebanese nationality), was registered as an alien in England and, as such, was subject to the
provisions of the Aliens Restriction Act, 1914 (4 & 5 Geo. 5, c.12), and, the Aliens Order, 1920. In a suit by the husband for
dissolution of his marriage, the wife contended (as the defendant here asserts) that the court had no jurisdiction on the
ground that the husband's domicile was not English (Ghanaian, in our present inquiry). It was held that:
(i) on the facts, the husband had discharged the onus on him of proving that he had acquired an English domicile of choice;
and
(ii) the fact that he was an alien, subject to the provisions of the Aliens Restriction Act, 1914, and the Aliens Order, 1920,
did not preclude him from acquiring an English domicile of choice.
It is trite law that the original domicile of a person remains forever attached to him until he acquires a new domicile of his
own free and voluntary choice. And to effectively procure that new domicile of choice, it has been held necessary and
essential not only actually to reside in another country, but also to have, and then to exhibit, the intention of stopping here,
in that other country, permanently or indefinitely: See Bell v. Kennedy (1868) L.R. 1 Sc. & Div. 307, H.L. In Re Steer (1858)
3 H. & N. 594, Pollock B. in the course of his judgment said, inter alia, at p. 599:
"No doubt, both on principle and authority, a person cannot get rid of his domicile of origin by merely residing in another
country, but the domicile continues unless he has manifested an intention of abandoning it, and acquiring another as his
sole domicile."
[p.449]
(The emphasis is mine). And in Udny v. Udny (1869) L.R. 1 Sc. & Div. 441, H.L. Lord Westbury stating the circumstances
which constitute a domicile said, inter alia, at p. 458:
"Domicile of choice is a conclusion or inference which the law derives from the fact of a man fixing voluntarily his sole or
chief residence in a particular place, with an intention of continuing to reside there for an unlimited time."
(The emphasis is mine). On the question of the change of domicile. there occurs at p. 36, para. 11, of Rayden on Divorce
(9th ed.), the following statement of the law:

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"Any person not under a disability may, at any time, acquire a new domicil by residing in another country with the intention
of continuing to reside there for an indefinite time coupled with the absence of genuine intention of returning to reside
permanently in the country in which he was hitherto domiciled."
(The emphasis is mine). With this I respectfully agree.
From all these authorities the fact is clear that the word "domicile" must not be straitjacketed into the narrow concept of
domestic residence, or the place where the contesting spouses have their matrimonial home at the time of action taken. On
the contrary, domicile must be thought of and considered in the broader, more general meaning of international domicile.
Even where there is no other residence shown to be either in existence, or else in the contemplation of the parties, it is
never permitted for the fact of domicile to be inferred from mere residence in a given locality: See Bell v. Kennedy (supra).
Domicile in a matrimonial suit must, therefore, not be confused with, or loosely taken to mean residence, simpliciter. It must
be interpreted and understood to mean either the permanent home of the spouses; or that place where it may justly be
presumed the petitioner has demonstrated the purpose of fixing his permanent residence. Lord Westbury has said that
residence and domicile are two perfectly distinct things. See Bell v. Kennedy (supra).
That residence and domicile are not the same and must be kept separate and distinct is emphasized by Order 55, r. 4 (1)
of the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A), which provides that the petition for divorce shall
state: "(d) The occupation of the husband and the residence and domicile of the parties to the marriage at the date of the
institution of the cause." (The emphasis is mine). This distinction notwithstanding, it is necessary, in order to vest proper
jurisdiction that both these separate factors meet, and be clearly shown to be intentionally present in, one or other or both
of the spouses seeking a dissolution of their marriage.
In Bell v. Kennedy (supra) the appellant, Mr. Bell, who had been domiciled in Jamaica but had left that island with the
intention of returning, was held not to have acquired a domicile in Scotland, [p.450] though it was proved that he had taken
a furnished house there for a year, and was de facto residing there. It was so held because there was insufficient evidence
that Mr. Bell had an intention of permanently residing in Scotland.
In Halsbury's Laws of England (3rd ed.), Vol. 7, there occurs at pp. 102-103 and footnote (m) the following statement which
I hereby adopt for the purposes of this case:
"Residence which falls short of domicil will not give jurisdiction ... (It was once thought that a matrimonial domicil could be
more easily acquired than a domicil in the ordinary sense, and that the courts of the country in which the matrimonial home
was for the time being situate had jurisdiction to divorce, provided that such residence had not been acquired solely for the
purpose of invoking the jurisdiction, but this view has been decisively repudiated (Le Mesurier v. Le Mesurier, [1895] A.C.
517, P.C.))."
In this case, therefore, the evidence as to residence must necessarily transcend the merely popular but narrow sense
indicative of where a person lives, works, eats and sleeps. The evidence must satisfy the legal conviction of this court that
from the fact of the parties' actual occupation of, and their presence (whether by themselves or by their family, or their
servants) in, the various matrimonial homes here in Ghana, the further vital fact may justly be inferred, namely, that they
have intended to make Ghana their last and permanent stop, their domicile of free and voluntary choice.
In Udny v. Udny (1869) L.R. 1 Sc. & Div. 441, H.L., Lord Westbury declared:
"There must be a residence freely chosen, and not prescribed or dictated by any external necessity, such as the duties of
office, the demands of creditors, or the relief from illness; and it must be residence fixed not for a limited period or particular
purpose, but general and indefinite in its future contemplation. It is true that residence originally temporary, or intended for
a limited period, may become general and unlimited, and in such a case so soon as the change of purpose, or animus
manendi, can be inferred, the fact of domicile is established."
(The emphasis is mine).
We now turn to the facts upon which the plaintiff relies for jurisdiction. He says:
(a) That he was born in Dabouh, in the Ivory Coast, on 17 October 1930 of Lebanese parents who, while resident in this
country (then known as and called the Gold Coast), had gone on a holiday visit to their relations in the Ivory Coast.
(b) That his father lived and worked as a merchant at Nkawkaw but died in 1941 and lies buried in Accra, having arrived in
this country in 1928.
[p.451]
(c) That not only his father, but his grandfather before him also lived and died in this country.
(d) That while his father was yet alive, and then at his death, he owned property here and in the Lebanon.

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(e) That some eight years after the death of his father, and after he had completed his schooling, in the Lebanon, he
followed his family traditions and came down to Ghana in 1949.
(f) That he lived in Accra from 1949 until 1954, when he married the defendant, his wife, up in Kumasi.
(g) He lived and cohabited with his wife in Kumasi for six years before they moved down together to Accra.
(h) And here in Accra he has been living and working over the past ten years, as a businessman, trading principally in
bicycles, bicycle spare-parts and accessories.
(j) That between 1955 and 1958, two sons, Sammy Abou-Jaudeh and Ramzes Abou-Jaudeh, were born to him and his wife
while they were both of them still resident in this country.
(k) That he has property here in this country: ("a plot of land at Nungua, and a house at Osu numbered F. 901/2" where he
has been living since the institution of this action).
(l) That whenever he has gone out of Ghana on business and on pleasure trips, (totalling in all only eight months), he has
always returned to his home here in Ghana.
(m) That while a part of his father's properties in Lebanon has devolved on him, he has either sold, or is in the process of
selling, his patrimony.
Giving evidence which was directed at establishing his claim to Ghanaian domicile, the plaintiff said, inter alia, "I have
already applied for Ghanaian citizenship. I put in my application some sixteen months ago (February 1969). I have been
interviewed in connection with that application."
Let me say, straightaway, that although I accept the fact that the plaintiff's father and his grandfather may indeed have
lived, worked and died here, and lie buried in Ghana, that fact alone is never enough to demonstrate in the plaintiff, or to
establish for him, the decisive intention in himself to make this country his permanent domicile of new and later choice.
There is no evidence in this instant case of the nature or character of the sojourn, here, in this country, of either the
plaintiff's father or his grandfather before him. But assuming even, that the plaintiff's grandsires had died here after having
given up their original Lebanese domicile, for the later and Ghanaian one, that fact, I hold, can never avail the plaintiff as
any conclusive data from which his own decided intention to remain here and thus to make Ghana his permanent home of
subsequent choice may reasonably be inferred. He must himself demonstrate by the clearest possible evidence, his very
own intention to reside and to settle in Ghana permanently.
[p.452]
At very first blush, the plaintiff's evidence that he had applied for Ghanaian citizenship looked attractive. But upon
reflection I find myself not impressed by it to hold it to his benefit as a decisive fact establishing an intention, on his part, to
remain permanently in this country and so make Ghana his fixed home. The plaintiff having made that averment on oath, it
was his duty to support it with the necessary proof, documentary, or otherwise. There ought to have been adduced, by the
plaintiff therefore, in decisive support of his contention, such vital facts concerning his application for Ghana citizenship as,
for instance:
(a) Who his sponsors are, and of what nationality;
(b) How long they had personally known the plaintiff and are therefore qualified to vouch, from their personal acquaintance
and knowledge of him, for any meaningful declarations he had made pointing to his intention, sooner or later, to make
Ghana his domicile of choice.
This aside, the plaintiff could also support his claim with a written and duly signed declaration by himself that he intends to
renounce, and that he has, in very fact, surrendered his original Lebanese domicile and citizenship and that he intends
living here in Ghana permanently as her citizen: See Gulbenkian v. Gulbenkian [1937] 4 All E.R. 618 which held, inter alia,
that a statutory declaration was admissible in evidence to show that the respondent's father intended to acquire an English
domicile. And see also Wilson v. Wilson (1872) L.R. 2 P. & D. 435. In the peculiar circumstances of this present case,
therefore, I am persuaded to hold that the plaintiff having failed so signally to adduce any such convincing facts, his
assertion that he has applied for Ghanaian citizenship fails to support his claim to Ghanaian domicile.
I would also not accept, or believe, as true, the plaintiff's evidence that he never bothered to take up Ghanaian citizenship
earlier because he thought he could live here all his life without obtaining that citizenship. From all the facts, and in the
circumstances of this case as I estimate them, I am satisfied enough to infer that never at any one time was the plaintiff
ever serious-minded enough, or at all, after he attained his majority here, in 1951, to desire to abandon and exchange his
original Lebanese domicile for a permanent and Ghanaian one. If he had had any such serious and irrevocable intention, I
have no doubt at all that he would, himself, have been excited into prompt and purposeful action in that direction when his
elder brother, Richard, took up Ghanaian citizenship and when, furthermore, the plaintiff himself, as he said applied for

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Ghanaian citizenship for his son. I am persuaded to the view therefore, and I find as a decisive fact, that although the
plaintiff knew what he had to do, if he wanted to make Ghana his home, he refused to do it because he had not that
purposeful urge to remain here in Ghana, permanently, or to acquire, a Ghanaian domicile.
There being no evidence to the contrary, I accept the plaintiff's evidence that he inherited, with his brother, their father's
properties [p.453] over in the Lebanon. But because he omitted to produce relevant documentary proof in meaningful
support of the alleged transaction, I am unable to accept, or to believe, his deposition that while he has already sold a part
of that inheritance, he is in the process, also, of disposing of the other part thereof. Such evidence, if adduced, would,
though not wholly conclusive of his intention to make Ghana his permanent domicile of choice, it would, nevertheless, have
gone a long way towards lending credence to that vital contemplation.
I would also discountenance as ineffectual, and reject as unreasonable and improbable the plaintiff's evidence (advanced
in furtherance of his case that he intends making Ghana his permanent home), that he would force Sammy, his elder son
now at school, to take over his bicycle business. Even if Sammy (who is merely alleged here, but not actually proven to be,
a Ghanaian citizen) did bow to his father's compulsion and stay on in this country, carrying on the plaintiff's business, I hold
that that fact could never be of advantage to the plaintiff to establish in him that necessary and manifest intention so
essential to evidence for him a purpose to make Ghana his (plaintiff's) permanent home. The plaintiff says, further, that with
the take-over of his business by Sammy, his son, he will go into another line of business. That also I would again discount
because it cannot be construed as pointing conclusively to any intention, on his part, to make Ghana his fixed domicile.
I would hold, also, that such evidence as the plaintiff adduced showing that Richard, his elder brother is doing business
here and that they have no sisters or parents alive, anywhere, does not help to establish for the plaintiff that essential fact
of an intention, in himself, to renounce his Lebanese domicile of origin because, whether taken severally, or conjointly, all
these matters are capable of more than one interpretation. The mere fact of the plaintiff's brother carrying on business
here, for instance, or of his son taking over completely and running his (plaintiff's) business, in this country, never binds the
plaintiff to stay on indefinitely here in this country. The plaintiff's son may very well take over his business: but can the
plaintiff, after that, not strike out on his own to establish another line of business elsewhere, or even here, in Ghana? All
these events can never be taken as decisive or conclusive indices because they can take place either here in Ghana, or
elsewhere, without the plaintiff being moved or influenced necessarily to repudiate his original domicile for a Ghanaian one.
In determining whether since 1951, when he became clothed with full legal capacity to make a free and voluntary choice,
the plaintiff has acquired a Ghanaian domicile, it becomes necessary to consider where, during all these years past, the
plaintiff's wife and children together, have had their permanent residence. In this present investigation the facts clearly
show that while the spouses have had their matrimonial home variously in Kumasi, and then in Accra; and while the plaintiff
[p.454] has lived and worked here in Ghana, he has, with his wife's, consent, sent their children away to the Lebanon
where they are to live and remain until they finish their education. That education, needless to say, is essentially Lebanese
based and orientated, to the extent, even, that the children are to spend their holidays there with the plaintiff's aunt in the
Lebanon.
It is also clear and so I find as a fact, that the defendant, mother of the plaintiff's children, has, over the years, divided up
her life and her living between her husband here in Ghana, and their said children over in the Lebanon. By these facts I am
persuaded to hold that no safe or proper inference of any intention permanently to live here and to make Ghana his
domicile of fixed choice, could be drawn in favour of the plaintiff so as to hold in abeyance his original Lebanese domicile:
see Attorney-General v. Yule and Mercantile Bank of India (1931) 145 L.T. 9, C.A.
In support of his posture in this inquiry, the plaintiff called and relied upon the testimonies of his elder brother, Richard, and
Wadih Najem Abou-Jaudeh, his father's cousin. It is my opinion of their evidence that these two witnesses never helped to
advance, even by one jot, or tittle, the case of the plaintiff. When Richard gave evidence he said (explaining their reasons
for returning to Ghana when he and the plaintiff were almost of full age), "I returned to Ghana because my parents had
been living here, to live here also, and to work here. My brother, Raymond, also came here for the same reasons."
I do not doubt Wadih Najem Abou-Jaudeh's evidence that he lived very close to, and was intimate with, the plaintiff's father
while alive; and that when the old man was on his death-bed, he bade the witness write home to his children Richard and
Raymond, to come down from the Lebanon to settle here in the Gold Coast (now Ghana) to look after his properties. It is
my opinion, however, that this is not strong or conclusive enough evidence of that vital ingredient, intention on the part of
the plaintiff himself to pitch his tabernacle, permanently, in this country.
To be effective, the plaintiff was bound to show that following his late father's dying wish, he arrived in this country and that
he has, all these several years, shown a fixed and settled intention, or purpose, of renouncing his domicile of origin, not

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necessarily his nationality, in favour of, or in preference for, the Ghanaian domicile. This the plaintiff ought to have
demonstrated with evidence tending to the irresistible conclusion that since his arrival on our shores, he has done such
things, and conducted himself in such a manner, as to leave no doubt at all, even to the most careless or casual, observer,
that he has meant and intended, at all times, to forgo his Lebanese domicile and to remain in Ghana permanently.
In my view the plaintiff's witnesses failed to help his claim to domicile here because there was nothing in their evidence to
show that during the period that they had known the plaintiff, he had made [p.455] statements, whether in writing, or
otherwise, which when fairly and beneficially construed, would demonstrate and point clearly to a settled intention in the
plaintiff, nor merely to break with his past origins and so abandon the Lebanon; but also, and equally essential, that he has
purposed to remain in Ghana permanently, making this country his domicile of choice. Instead, however, there is abundant
evidence which persuades me to find, as a decisive fact, that never at any time did the plaintiff have the remotest intention
of abandoning his original Lebanese domicile.
What, then, of the plaintiff's continued residence here in Ghana for 23 long years? Is he not to profit by it upon the issue of
domicile? Of all the facts and incidents upon which the plaintiff places reliance for domicile, the one that appears, at first
blush, to establish his claim to Ghanaian domicile is his long, continued stay in this country. Should that fact, then,
advantage the plaintiff as proof, positive and conclusive, of his intention not only to abandon his original Lebanese
domicile, but also to live in Ghana for an indefinite period of time? By that long stay in this country the plaintiff has, without
any doubt at all, established a presumption that he probably intends remaining in Ghana permanently, thereby acquiring
that domicile which vests jurisdiction in this court to determine the issues of adultery and cruelty raised upon his petition.
That presumption, however, is at the very best, a rebuttable one only. If circumstances are present, therefore, which are
cogent enough to prove that the intention to stay is false, that presumption would necessarily fall refuted. On this issue, I
make pertinent reference to Halsbury's Laws of England (3rd ed.), Vol. 7, p. 20. At para. 37 there occurs the following
declaration:
"Residence alone raises a presumption of intention to remain in the same place, which is increased when the residence is
continued for a long period, and may even be conclusive in the absence of explanatory circumstances. But though a long
residence, except in certain special cases, is always material as evidence, it is never essential, and is rarely decisive, for
slight circumstances may serve to show the absence of a settled intention."
(The emphasis is mine). Although, in this present inquiry the evidence is not clear as to whether the plaintiff has, or has
not, a permanent residence over in the Lebanon, the inference is easily drawn, and I accordingly find as a fact, that since
his arrival here in 1949, the plaintiff has made several journeys home to the Lebanon with the principal intention of keeping
up and maintaining his original links with the Lebanon, his mother-country. There is his wife's (the defendant's) evidence,
which I accept because it was not seriously challenged, or rebutted and destroyed, that in those far-off days of their
marriage, and long before they started drifting seriously apart, her husband promised her a better, more satisfying life over
in their homeland, the Lebanon. For the very same reason, also, I further accept the defendant's testimony that the
plaintiff, her husband, always assured her [p.456] that they would one day return home to the Lebanon, to settle there,
when all her wants would be supplied her free from the drudgeries of her matrimonial home here in Ghana. And so I see no
reason at all - none having been shown me to the contrary-to doubt the evidence of the defendant (the plaintiff's wife), that
the plaintiff persuaded her to give up her French nationality and passport for one that was compatible with his very own,
Lebanese. To my mind, as modelled by the peculiar facts and circumstances of this present investigation, this was done by
the plaintiff to facilitate his eventual exodus from Ghana with his wife, the defendant, whenever he decides to strike his
tents and leave this country. Wherefore I reject as utterly improbable, and untruthful, the suggestion that that change was
made so as to enable the defendant to travel more easily outside this country.
In my judgment, the long-continued residence of the plaintiff in this country cannot, without much more, be strong or
compulsive enough proof to amount to an abandonment of his Lebanese domicile of origin. For I am persuaded by the
force of the facts and the circumstances here present to conclude and find, as a fact, that during his long absence from the
Lebanon the plaintiff has done nothing positive, or at all, to suggest that his original Lebanese domicile should be held in
abeyance to favour a new domicile of choice acquired here in Ghana.
By his positive act of accompanying his children home to the Lebanon with his wife (the defendant), and putting them to
school there; by his retention of his Lebanese passport whereby he travelled in and out of this country; by his deliberate act
in getting his wife's passport changed for a Lebanese one; by his assurances to his wife of happier, less austere times in
the Lebanon; by his agreement with his wife that their children remain and be educated in the Lebanon-by all these overt
and absolute acts, all of them inconsistent with a serious intent to give up his domicile of origin, the plaintiff has provided

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strong and cogent indications that his long-continued residence in Ghana notwithstanding, he has never really or truly had
any serious purpose to make this country his permanent home; but that, on the contrary, he has always had, and
constantly kept, his heart and his mind upon the Lebanon to which he means, eventually, to return, some day.
In the result, I would attach full weight to, and construe all these several facts and circumstances which, to my mind,
completely negative any intention to stay on here, in Accra. The plaintiff-husband has not taken a determined and
irrevocable decision, yet, to acquire such a domicile of free and voluntary choice in Ghana as should vest this court with
valid jurisdiction in this divorce action.
I am persuaded by the facts of this inquiry, as well also as by the relevant authorities, to hold that the house at Osu where
the plaintiff says he has lived for twelve years; his parcel of land at Nungua (concerning which he has produced no
documents to satisfy the principle in Majolagbe v. Larbi [1959] G.L.R. 190); the business interests of the plaintiff here; and
his long residence in this country - I am fully [p.457] convinced that all this, whether taken separately, or conjointly, is not
enough to outweight the preponderating fact that while the plaintiff's way of life and living has always remained pre-
eminently Lebanese, he has never exhibited or expressed any desire or intention to turn Ghanaian and so to make this
country his fixed and settled home. I am not considering the fact, so much, of the plaintiff's membership and office, as
treasurer, of the Lebanon Club (an incident not denied by him); I am influenced more by the signal absence of any
evidence showing that that membership and office notwithstanding, the plaintiff has, over the years, forged and maintained
worthy and legitimate indigenous Ghanaian interests and associations, all of which point to his desire and determination to
stop and live here in Ghana.
The legal position is that:
"The state of mind, or animus manendi, which is required demands that the person whose domicil is the object of the
inquiry should have formed a fixed and settled purpose of making his principal or sole permanent home in the country of
residence, or, in effect, a deliberate intention to settle there."
See Halsbury's Laws of England (3rd ed.), Vol. 7, p. 17, para. 31. And so it was that in Cruh v. Cruh [1945] 2 All E.R. 545,
the husband, an alien, went to England and subsequently married there. He joined the British Army and then decided to
stay there, in England if he was allowed to do so. It was there held that his domicile of choice was England, and that the
court had jurisdiction to deal with his petition for divorce.
As I see the facts and circumstances of this present matter, the plaintiff never so completely severed himself from his
original Lebanese domicile, nor demonstrated, nor expressed, such a desire to remain here as should justly effectuate and
upgrade his long residence in this country into a domicile of free and intentional choice.
There is no doubt at all that the plaintiff was resident within the jurisdiction when he filed his petition. But the facts and the
peculiar circumstances of this case, coupled with the relevant authorities, have satisfied my legal conviction that the plaintiff
has lived in this country primarily because of, and in pursuit of, his business interests, only preserving throughout the years
a way of life and a manner of living that has been, and still is, predominantly Lebanese.
In M'Lelland V. M'Lelland 1942 S.C. 502, it was held as stated in the headnote that:
"A change of domicile from the domicile of origin must be made animo et facto. The animus may be inferred from the fact of
residence within the new domicile. But in order to be so inferred, the colour and characteristics of the residence as
deduced from the whole story of what has happened must be taken into account. The bare fact is not sufficient. If the
residence is colourless, and there is nothing else, the animus remains unproved."
[p.458]
(The emphasis is mine).
Although, therefore, I would concede the fact that the plaintiff has been resident within the jurisdiction with some degree of
convincing continuity, I would also hold that since that residence has not been shown to have been purposefully geared,
bona fide, towards an intention of permanent stay; seeing, furthermore, that that residence has been shown to have been
for the signal object only of his business; and because, still further, the plaintiff has always harboured the intention of
returning, some day, to the Lebanon, that fact of his long-continued residence here cannot avail him to win for him a
domicile of choice for, according to Hopkins v. Hopkins [1951] P. 116, if there is a genuine intention to return to reside
permanently in the country in which he was hitherto domiciled, a person residing for an indefinite period in another country
is only ordinarily resident.
It is only a bona fide residence (coupled, meaningfully with an intention to be permanent), not a casual residence, or a
residence of convenience, or of pressure, therefore, that is sufficient to confer jurisdiction: See Niboyet v. Niboyet (1878) 4
P.D. 1, C.A.

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I have given very serious attention and anxious thought to all the evidence and the circumstances of this matter, having
particular regard to the principles of law established by the authorities. In the result, I have no difficulty in concluding that I
am unable to perceive, or to deduce, from the long-continued stay in Ghana, of the plaintiff, any purposeful intent, on his
part to establish the determinant fact, so vital in all these cases, that at the date of filing his petition, he was, or he had
been, residing in this country with the fixed and meaningful intention of making Ghana his indefinite or permanent home.
In King v. Foxwell (1876) L.R. 3 Ch.D. 518 it was held as summarised in the headnote that:
"In order to change his domicil of origin, a man must voluntarily fix his sole or principal residence in a country which is not
his country of origin, with the intention of residing there for a period not limited as to time.
The domicil so acquired may be put an end to simply by abandoning it, without acquiring a new domicil of choice, and in
such a case the domicil of origin reverts."
(The emphasis is mine). This then, is what the whole question of matrimonial domicile and jurisdiction is about. It is
residence in a place, no matter for how short or indefinite a period, purposely and deliberately coupled with an intention,
whether express or implied, to dwell permanently there and to make that place home.
In all the circumstances of this matter, therefore, I am not persuaded by the facts, nor yet by the law, to support the
plaintiff's claim that his long sojourn in Ghana can properly vest this court with valid and effective jurisdiction. The plaintiff
has failed that essential test indicated [p.459] herein, and I find for the defendant in this matter, holding, in the result that
the plaintiff's residence here in Ghana for upwards of twenty years, falls short of that true domicile which alone can vest this
court with valid jurisdiction to deal with his suit for divorce.
I make no order as to costs.
DECISION
Judgment for the defendant.
J.D.

Posted 31st August 2012 by Unknown

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