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SIMPSON v. SIMPSON AND ROSSI


  • 1960-04-25
  • COURT OF APPEAL
  • GLR 105-106
  • Print

KORSAH, C.J., VAN LARE, J.A. AND GRANVILLE SHARP, J.A.


Summary

Divorce?-Domicile?-Change of domicile not established by mere statement of intention?-Necessity of supporting evidence of extraneous facts.

Headnotes

Denis Gronopulo, a Greek and born in Greece, went to England to complete his education. He acquired British nationality, and married an English woman by whom he had a son (subsequently known as Frederick Anthony John Simpson) who was born in England on 24th December, 1919. Gronopulo returned to Greece in 1921 with his wife and child. The marriage was subsequently dissolved, and Mrs. Gronopulo with her son (subsequently referred to as the petitioner) returned to England in about 1924, and remained there.During the second world-war the petitioner served in the British Army. On the 23rd December, 1944, then a Captain in the Royal Artillery and stationed in the Middle East, he married one Teresa Mary Gallagher (stated to be English, and 3rd officer in the Women's Royal Naval Service) at the Roman Catholic Church of St. Anthony, Alexandria. They subsequently cohabited in Italy, England, France, Germany, Belgium and Nigeria. They had never cohabited in Ghana. There was issue of the marriage, two children, resident in England.On the 19th September, 1959 the petitioner filed in the High Court of Ghana a petition for the dissolution of the marriage, on the ground of his wife's alleged adultery. The petition averred that both he and his wife were domiciled in Ghana. The co-respondent, with whom the wife was alleged to have been living and cohabiting since October, 1958, entered an appearance to the proceedings under protest, on the ground that no party to the action had Ghanaian domicile, and that in consequence the court had no jurisdiction. The question of domicile was argued as a preliminary point before the Commissioner of Assize and Civil Pleas, when the petitioner gave evidence of the facts set out above. He stated further that he held a British passport, that he was employed in Ghana by Auto Reps. Ltd. (whose registered office was in Liverpool), that while in Germany he had " ?"possibly " formed the intention of remaining there permanently, that while in Nigeria he had an intention of remaining there permanently, and that he now had such an intention in respect of Ghana. He had lived in Ghana from 1947 to 1952, and from October, 1958 to the date of the hearing. He wished to marry a certain Ghanaian woman.The Commissioner found that the petitioner had shown no acts in substantiation of his alleged intention to become domiciled in Ghana. He therefore held that Ghanaian domicile had not been proved, and dismissed the petition.The petitioner appealed to the Court of Appeal.

Judgement

APPEAL from a decision of the Commissioner of Assize and Civil Pleas (J.L. Minnow, Esquire) dismissing a petition for divorce.

JUDGMENT OF GRANVILLE SHARP J.A.

Granville Sharp J.A. delivered the judgment of the court. (His lordship referred to the evidence, and continued):

The petitioner invited the learned Commissioner to conclude that he was domiciled in Ghana solely in reliance upon his statement that he had no settled home outside Ghana (which country he said he liked), and that it was his intention, after obtaining the divorce, to marry a Ghanaian woman (a Mrs. Carlis Ackuaku) and to settle permanently in Ghana, where, according to him, his whole future lies. His alleged intended companion in life did not give evidence, nor did any other person come forward to say that the appellant had ever expressed a desire or intention to make Ghana his permanent home. There is no evidence on the record of any act done by the appellant in furtherance of his proposed intention.

Learned counsel on his behalf has cited a passage, at page 52 of the 14th edition of Latey on Divorce, to support a proposition that domicile may be proved by the person seeking to establish it. He also cited the cases of Donaldson v. Donaldson [1949] P. 363 and Stone v. Stone [1958] 1 W.L.R. 1287 to support this proposition. Counsel omitted to note, however, that both in the passage in Latey on Divorce, and in the two cited cases it is made abundantly clear that evidence (of an intention to change domicile by choice) given by the petitioner himself must be considered in relation to other facts.

Such intention is a question of fact, and in deciding this question in the present case the learned Commissioner, having given careful consideration to what he referred to as the historical background to the evidence, failed to find any fact to substantiate the petitioner's professed intention. He heard and saw the petitioner, and we ourselves can find nothing, either in the arguments of learned counsel or upon such facts as appear on the record, which would justify our interfering with the learned Commissioner's finding. We do not think that a mere statement of intention on the part of a petitioner, without any supporting evidence of extraneous fact, can suffice to justify a ruling that he has changed his domicile by choice.

Decision

<P>Appeal dismissed.</P>

Plaintiff / Appellant

Reindorf

Defendant / Respondent

Sowah

Referals

(1) Donaldson v. Donaldson [1949] P. 363.

(2) Stone v. Stone [1958] 1 W.L.R. 1287.

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