HIGH COURT, KUMASI
Date: 29 JULY 1975
KORANTENG-ADDOW J
CASE REFERRED TO
Nelson v. Larholt [1948] 1 K.B. 339; [1947] 2 All E.R. 751; 64 T.L.R. 1; [1948] L.J.R. 340.
NATURE OF PROCEEDINGS
PETITION for dissolution of a customary law marriage under the Matrimonial Causes Act, 1971 (Act 367), by a wife on the ground that the marriage had broken down beyond reconciliation and a claim for money had and received.
COUNSEL
T. A. Totoe for the petitioner.
Mmieh for the respondent.
JUDGMENT OF KORANTENG-ADDOW J.
The petitioner and the respondent (both of whom are Ghanaians) were married in 1965. At that time the petitioner was in Ghana and the respondent was a student in the United Kingdom. The marriage was in fact arranged for the respondent by his relatives under the customary law. The petitioner joined her husband in England in the September of that year, and stayed with him up to the early part of 1972 when they returned home. They have two children. Since they returned home the marriage has broken down. All efforts to patch it up have proved abortive. By his conduct, the respondent has driven the petitioner away from the matrimonial home. The evidence shows that it is impossible to reconcile the parties and so the marriage ought to be dissolved.
This matter is however a little more complex. The petitioner is not only asking for the dissolution of this marriage. She has coupled this with a claim for money had and received. She is claiming the wages she earned during the period she worked in Britain from the respondent. These moneys were, according to her, taken from her by her husband, the respondent. Out of every week’s earnings, according to her, the respondent gave her only one pound and took the bulk of the money.
[p.349] of [1975] 2 GLR 347
Before I deal with that aspect of the matter there is this which I wish to say, and that is that, in my view, if the petitioner had any claim to make for those moneys her claim could not be based on an action for money had and received. Although that action falls into the category of the residual group of actions generally classified as actions based on quasi-contracts, in my judgment, such an action as this can only properly be based on the principle of “unjust enrichment” or “restitution.” As Denning J. (as he then was) described the situation in Nelson v. Larholt [1948] 1 K.B. 339 at p. 343:
“This principle [of quasi-contract] has been evolved by the courts of law and equity side by side. In equity it took the form of an action to follow moneys impressed with an express trust, or with a constructive trust owing to a fiduciary relationship. In law it took the form of an action for money had and received or damages for conversion of a cheque. It is no longer appropriate, however, to draw a distinction between law and equity. Principles have now to be stated in the light of their combined effect. Nor is it necessary to canvass the niceties of the old forms of action. Remedies now depend on the substance of the right, not on whether they can be fitted into a particular framework. The right here is not peculiar to equity or contract or tort, but falls naturally within the important category of cases where the court orders restitution, if the justice of the case so requires.”
To enable me to do justice in the matter therefore I will myself in compliance with Order 28, r. 12 of the High Court (Civil Procedure) Rules, 1954 (L.N. 140A), amend the claim of the petitioner by deleting from paragraph 11 (2) of the petition the words “as money had and received” and substitute therefor the words “by way of restitution” for that sub-paragraph to read:
“(2). That the respondent be ordered to pay the petitioner by way of restitution the amount found by the court to be the petitioner’s wages which at the request of the respondent the petitioner paid to the respondent in the United Kingdom.”
At the trial of this matter the petitioner gave evidence herself but called no witnesses. She did not tender any documents either. The respondent did the same. He however tendered some documents (receipts) for some of the items it is alleged he purchased out of the earnings of his wife. He tendered them to show that they were all purchased by him and in his own name. As in the main the case of the respondent is a flat denial of the allegations made against him, one has nothing by way of assistance in the task of assessment of the evidence and one has to rely mainly on one’s faculty of observation, and on the demeanour of the parties to make a choice as between the two conflicting versions put forward by the parties. From the demeanour of the petitioner I feel that she has been telling a plain, truthful and unvarnished story. Although the respondent has said that he was working full-time and was earning a net income of £25 a week and
[p.350] of [1975] 2 GLR 347
was therefore not in such need as to take away the petitioner’s wage packet at the end of every week, in my view, the very fact that the respondent was earning money himself does not in itself preclude him from snatching the weekly wage pay packets of his wife. In these matters people may tend to exaggerate a little but they do not fabricate stories. I believe that in good faith the petitioner gave the money to the husband as he asked her to do. As the respondent himself has said under cross-examination he knew that the maintenance of a wife and children is the responsibility of a husband. For almost a century women have had and held their separate properties even in England. In Ghana it has always been the case that a woman regarded whatever she acquires as something to go to her family-the maternal or paternal family to which she belongs. If, as I am sure he did, the respondent took the earnings of his wife, allowing him to retain the money would be allowing him to unjustly enrich himself at her expense. He should therefore be ordered to make a refund of the moneys to her.
My little difficulty in this case is how to arrive at the true figure—the real amount taken by the respondent from his wife. The petitioner in her evidence says that she worked for ten months at Raelbrooks at the weekly wage of £11. In all that period (a period of 40 weeks) she made an amount of £440. She then worked for four years with Grosvenor Works drawing a weekly wage varying between £12 and £15. Taking the lower of these two figures I make it that she earned in all that period £2,496. Then she worked for an electrical company for six months at the rate of £18 or £19 a week and that she was there for six months (24 weeks). Taking the lower figure I make it that in that time she earned £432. Again she was employed by a factory which makes spare-parts for aeroplanes and that she was with them for three months (twelve weeks). There she earned a weekly sum of £12 10s. Taking the round figure of £12, I make it that in all she made there an amount of £144. The next place where she went to was Scholls where she was paid between £14 and £15 a week. There she spent six months (24 weeks). And her earnings were £336. By my calculation the total amount of the wages earned by the petitioner and given by her to the respondent came to £3,848. Taking away the weekly allowance of one pound for the period of 324 weeks she worked—a total amount of £324—what should remain in possession of the respondent would be £3,524. And it is that amount that may legitimately be ordered to be restored to the petitioner.
Even though the respondent said he bought the petitioner clothes and that the petitioner bought only her underclothes, the one pound which the petitioner said she was allowed, would not be enough to cover the costs of her underclothes especially when, according to the petitioner, she used that amount in paying her fares to work. I will also take judicial notice of the fact that being a woman, there were other petty things which she must have bought for herself. For all these seven years that she remained in England, I do not believe she spent only one pound a week on herself. I
[p.351] of [1975] 2 GLR 347
believe that the pay packet was taken by the respondent but I think the petitioner was allowed more than one pound per week. That evidence therefore is exaggerated. Since there is no way by which I can assess the exact amount which she spent on herself I would strike a happy medium and allow her £2,000 as the amount due to her from the respondent.
With regard to the claim for the restoration of the items: one Kelvinator refrigerator, one Prince 4 CpG gas cooker, one Indola electric fan and one Pye television-model 4375 (electronic) or their value to the Petitioner, the respondent produced receipts to show that the items were purchased by him and that the receipts were prepared in his own name. The fact that the articles were purchased in the name of the respondent does not in itself mean that he bought them with his own money. But I cannot confidently arrive at the conclusion that they were bought with the money of the petitioner. I will therefore not order their restoration to the petitioner.
In the result I will accept the petition of the petitioner and order that the marriage between the parties be dissolved. I will also order that the amount of £2,000 sterling be paid to the petitioner by the respondent as an amount earned by the petitioner and collected from her by the respondent.
I will also order as empowered by section 41 (1) (b) of the Matrimonial Causes Act, 1971 (Act 367), that the respondent should pay the petitioner an amount of 0100.00 as a customary compensation for the dissolution of the marriage as this has been occasioned by the respondent’s intransigence and as a result of his association with another woman.
On the question of custody of the two children involved as they are girls and of tender age the proper person to have custody is the mother – the petitioner. I will therefore order that she be given custody. I will order also that the respondent should be responsible for their maintenance and upkeep. I compute the sum for their maintenance at 60.00 per month.
There will be costs in favour of the petitioner assessed at 250.00.
DECISION
Petition granted.
D.R.K.S.
