Judgment – Not based on
pleadings – Substituted defence
– Court not entitled proprio
motu to put forth case
inconsistent with party’s case.
Customary law – Marriage –
Matrimonial home – Whether
applicable.
Upon his retirement the
co-plaintiff decided to return
to his hometown and sold the
disputed house in which he lived
with his family. His wife,
claiming joint ownership of the
house refused to move out. The
purchaser and the co-plaintiff
then sued the wife and a
daughter in the district court
to recover possession but the
defendants counterclaimed for a
declaration of joint ownership.
The court found that the
co-plaintiff acquired the house
alone and gave judgment for the
plaintiffs. The High Court on
appeal upheld the decision of
the district court but held that
the co-plaintiff could not sell
it without the consent of his
wife and children because at
customary law it was the
responsibility of a husband to
support, accommodate and
maintain his wife and children.
The court held further that it
was wrong for the co-plaintiff
to move to Anomabu without the
consent of his wife when they
had lived in the matrimonial
home for 30 years. The
co-plaintiff appealed to the
Court of Appeal.
Held:
(1) The High Court having
affirmed the finding in the
district court that the
co-plaintiff acquired the
property alone was bound to
dismiss the counterclaim.
Kodilinye v Odu (1935) 2 WACA,
336, Abbey v Sykes [1994-95] GBR
743, CA referred to.
(2) The wife did not assert a
right to be accommodated. The
relief sought by her was not
based on the marriage but as a
joint owner. Clearly the High
Court erred in law when it put
forth proprio motu a case
inconsistent with that which the
defendants had put forward.
Tackie v Baroudi [1977] 1 GLR
36, Dunn v Dunn [1948] 2 All ER
822, Dam v Addo [1962] 2 GLR 200
referred to.
(3) The holding that the
co-plaintiff could not move to
Anomabu without the 1st
defendant’s consent was not
supported by any principle of
customary law. The word
“matrimonial house” in the
context of a monogamous marriage
could not be employed in the
context of a polygamous
marriage. The holding was
unwarranted and must be set
aside.
Cases referred to:
Abbey v Sykes [1994-95] GBR 743,
CA.
Dam v Addo [1962] 2 GLR 200, SC.
Dunn v Dunn [1948] 2 All ER 822,
[1949] P 98, CA.
Kodilinye v Odu (1935) 2 WACA
336.
Tackie v Baroudi [1977] 1 GLR
36, CA.
APPEAL against judgment of the
High Court to the Court of
Appeal.
Ocran for the appellants.
Nana Konduah for the
respondents.
LAMPTEY JA.
Andrews Yarquah (hereinafter
called the “co-plaintiff”)
hailed from Anomabu and worked
for the Ghana Railways in
Sekondi. He married two women
according to customary law and
had a total of 13 children by
those women. The junior wife is
Grace Koomson (hereinafter
called the 1st defendant). One
of his children by the 1st
defendant is Francis Yarquah
thereinafter called the 2nd
defendant).
During his working days, the
co-plaintiff purchased from the
State Housing Corporation House
No Q10, Effiakuma, Sekondi and
lived in it with the 1st
defendant and her children. The
co-plaintiff took a firm
decision to return to Anomabu to
live and spend the rest of his
life when he retired.
In pursuance of this decision,
the co-plaintiff sold house No
Q10, Effiakuma to Grace Kodjo
(hereinafter called the
plaintiff). The plaintiff was
unable to move into occupation
of the house because the 1st
defendant and her children
refused to move out. The 1st
defendant claimed that she
jointly owned the house with
co-plaintiff and that the
co-plaintiff had no right to
sell it. In the circumstances in
which the plaintiff found
herself, she took legal action
against the defendants and
claimed the reliefs spelt out in
the writ of summons in the
District Court Grade 1, Sekondi.
The case was heard on the
merits. Judgment was entered for
the plaintiff against the
defendants. The defendants were
aggrieved and dissatisfied with
the decision of the trial court
and appealed to the High Court,
Sekondi. In due course, the
appeal was heard and determined
by the appellate court. The
judgment of the district court
grade 1 was set aside. Judgment
was entered for the defendants
against the plaintiff. She was
dissatisfied with the judgment
of the High Court, Sekondi and
appealed to this court.
The first ground of appeal which
was argued before us was stated
as follows:
“The learned appellate judge
erred in holding that even
though the property was self
acquired by the co-plaintiff he
could not sell it without the
consent of the defendant and all
her children.”
The ground of appeal raised two
separate and distinct issues. I
will deal with the first issue
namely, what the appellate judge
should have done when he
affirmed the finding of the
trial court that the property in
dispute was the absolute
property of the co-plaintiff.
Learned counsel for the
appellant submitted that the
appellate judge was enjoined to
dismiss the adverse claim to 50%
of the
property in dispute made by the
defendants. He submitted that
the appellate judge erred in law
when he omitted and failed to do
that. The principle of law on
this issue was re-stated in the
case of Kodilinye v Odu (1935) 2
WACA 336 at page 337 as follows:
“[In an action] for a
declaration of title, the onus
is on the plaintiff to satisfy
the court that he is entitled on
the evidence brought by him to a
declaration of title. The
plaintiff in this case must rely
on the strength of his own case
and not on the weakness of the
defendant’s case. If this onus
is not discharged the weakness
of the defendant’s case will not
help him and the proper judgment
is for the defendant.”
This authority has been applied
in a long line of cases. In the
recent case of Abbey v
Sykes [1994-95] GBR 743 the
facts of which were similar to
those of the instant appeal,
this same issue was raised on
appeal. I held that the trial
judge erred in law when she
failed to dismiss the claim for
a declaration of title to the
house in dispute made by the
plaintiff respondent. In the
course of his judgment, the
appellate judge affirmed the
finding that the co-plaintiff
was the absolute owner of the
house in dispute in the
following language:
“In the instant case, I will not
interfere with the finding that
the house in dispute was solely
acquired by the co-plaintiff as
there was evidence to support
the said finding of the trial
court.”
In my opinion, the plain duty of
the appellate judge was to
proceed to dismiss the
counterclaim for a declaration
that the house in dispute was
jointly owned by co-plaintiff
and the 1st defendant. This he
failed and omitted to do. He
erred in law in omitting and
failing to discharge this duty.
I therefore dismiss the
counterclaim of the defendants
under head (1) of the
counterclaim.
The other limb of the issue
raised in the ground of appeal
was whether the co-plaintiff had
a right to sell the house in
dispute. The appellate judge
held that the co-plaintiff had
no right to sell the house in
dispute. His reason for the
finding was expressed in the
following passage:
“At customary law, it is the
husband’s responsibility to
support, accommodate and
maintain his wife and children.
And the failure of a husband to
maintain and accommodate his
wife is one of the very few
grounds of divorce.”
Learned counsel for the
plaintiff submitted that the
appellate judge misconceived the
case put forward by the
defendants. He submitted that
the defendants did not claim a
right to be supported,
accommodated and maintained by
the co-plaintiff. The 1st
defendant claimed that she
legally owned 50% interest in
the in the said house and was a
joint owner with the
co-plaintiff. He argued that the
appellate judge erred in law in
putting forward as the case of
the defendants a right to be
supported, accommodated and
maintained by the co-plaintiff.
Learned counsel for the
defendants submitted that the
court was enjoined in law to
consider the equitable interest
of the defendants in particular,
of the 1st defendant. He
referred to and relied on the
case of Tackie v Baroudi [1977]
1 GLR 36, CA in support of his
submission. He referred also to
the English case of Dunn v Dunn
[1948] 2 All ER 822. I have
carefully read the Tackie case
and I find that it can clearly
be distinguished from the
instant case. In the Tackie
case, a wife had asserted a bare
right to live in the matrimonial
home after the marriage was
dissolved. The decision of the
Court of Appeal on her claim was
dismissed at page 37 in the
following language:
“Since the appellant did not
rely on any tenancy or
contractual license except her
bare right to be in a
matrimonial home, her right to
live in the matrimonial home
ceased with the dissolution of
the marriage.”
It is plain and clear from the
above passage that the reference
to and reliance on the Tackie
case is misconceived. In any
case the 1st defendant did not
assert a right to be
accommodated. The issue raised
was whether in law the appellate
judge proprio motu can set up a
case different from and
inconsistent with that spelt out
in the writ of summons. It is
well established law that the
appellate judge was not
permitted to do this. This
principle of law was stated in
the case of Dam v Addo (supra)
at holding (2) as follows:
“A court must not substitute a
case, proprio motu, nor accept a
case contrary to, or
inconsistent with, that which
the party himself puts forward,
whether he be the plaintiff or
the defendant.”
In the instant appeal the
counterclaim put forward by the
defendants was formulated as
follows:
“A declaration that the 1st
defendant is co-owner of the
said house and therefore has a
beneficial interest in half of
the said property.”
The relief sought by the
defendants was not based and
founded on the existing marriage
between the co-plaintiff and the
1st defendant. Indeed, she
claimed a legal right and title
to the house in dispute on the
ground that she owned it jointly
with the co-plaintiff. Clearly
the appellate judge erred in law
when he, proprio motu, put
forward on behalf of the
defendants a case contrary to
and inconsistent with that which
the defendants themselves had
put forward. That part of his
judgment is wrong in law and
must be set aside. I do so
accordingly.
The other issue raised in this
appeal was that the appellate
judge erred in law when he held
that the co-plaintiff had no
right to sell the house in
dispute. It was submitted that
since the appellate judge made a
finding that the house in
dispute was the self-acquired
property of the co-plaintiff,
his conclusion that the
co-plaintiff could not sell it
was not warranted by law. In
reply, learned counsel for the
defendants supported the finding
of the appellate judge on the
ground that the house in dispute
was the matrimonial home of the
parties.
The above complaint is against
the judgment of the appellate
judge on the right of the
co-plaintiff to sell the house
in dispute. He stated his
opinion as follows:
“I hold that it was wrong for
the co-plaintiff to move house
to Anomabu without the 1st
defendant’s consent after he had
lived in the matrimonial house
for at least 30 years.”
The judge did not purport to
rely on any principle of
customary law in support of this
statement. I have not been able
to find any principle of
customary law nor any decided
case on this issue. I must
frankly observe that the
statement cannot be and is not a
correct and true statement of
Akan customary law. The parties
are Fantis from Anomabu. There
can be no doubt that the
appellate judge erred in law in
holding that the co-plaintiff
must consult and obtain the
consent of the 1st defendant on
the issue of where the parties
should make their home. I have
refrained from describing the
home of a polygamously married
man as a matrimonial home. I do
not hold the view that the word
matrimonial in the sense in
which it is used in the context
of a monogamous marriage, can be
and must be imported and
employed in the context of a
polygamous marriage.
Having misconceived the claim of
the 1st defendant, the appellate
judge concluded, that:
“The co-plaintiff had no right
to sell the house without the
consent and concurrent of the
1st defendant. In the
circumstances, the sale of house
No 10 Effiakuma by the
co-plaintiff to the plaintiff,
was null and void.”
The conclusion reached by the
appellate judge was not
warranted by the facts before
him and the operative law; that
conclusion must be set aside. I
accordingly set it aside. I find
and hold that the co-plaintiff’s
sale of his self-acquired house
was lawful and that title in the
said house passed to the
plaintiff. I find and hold that
the plaintiff is entitled to
recover possession of the house
in dispute from the defendants.
For all the reasons I have given
above, I find that the appeal
succeeds. I accordingly allow
the appeal. I set aside the
judgment of the High Court,
Sekondi. I affirm the judgment
of the District Court Grade I,
Sekondi dated 7 August 1989.
ADJABENG JA.
I agree.
FORSTER JA.
I also agree.
Appeal allowed.
S Kwami Tetteh, Legal
Practitioner |
