Division: IN THE HIGH COURT, ACCRA
Date: 20 NOVEMBER 1964
Before: BOISON J
JUDGMENT OF BOISON J
The plaintiff by her writ of summons claimed the return of her goods wrongfully detained by the defendant and £G500 damages for wrongful detention or in the alternative, £G2,500 damages. The goods referred to in the statement of claim as the said chattels “are lots 1, 2, 3, attached to the statement of claim.” The agreed issues were:
“(a) Whether or not the plaintiff is the owner of and entitled to the possession of the chattels the subject-matter of the suit.
(b) Whether the plaintiff and the defendant lived and cohabited as concubines or under customary law and whether the defendant under any customary law is entitled to detain or impound the plaintiff’s chattels under the circumstances.
(c) Whether or not the defendant has any claim or any right at all over properties bought by him, to the plaintiff during their stay together.
(d) Whether or not the plaintiff has suffered loss and damages by the wrongful detention of her properties by the defendant.”
The case of the plaintiff was that she has been a hair-dresser and seamstress by profession from 1952 to April 1964. In 1961, she was staying with her mother, the second witness for the plaintiff, before she came to stay together with the defendant. She brought the cloths, sewing machine and working tools along with her and during her stay with defendant, she has been buying new cloths and customers have been bringing their materials to be made into dresses. The articles in lot 1 attached to their writ of summons are those she brought from her mother’s house to the defendant’s as well as articles she has bought herself during her stay with the defendant. In lot 2 some of the articles belong to herself, others belong to her customers who had brought them to the plaintiff to make dresses for them. In lot 2, items 1, 2, 3 are articles bought by the defendant for her. As a hairdresser and seamstress she makes on the average £G5-£G6 per day, i.e. from Monday to Friday (i.e. £G25) and for Saturdays and Sundays she
makes £G8 10s. per day, i.e. £G16—the total income per week would, therefore, appear to be about £G40. She, the plaintiff, became ill and left for her mother’s house and thence to Ada and other villages for treatment. After the treatment she has been staying with her mother, the second witness for the plaintiff, and the defendant has constantly refused to give her articles aforementioned (lots 1 to 3) to her: the plaintiff says she does not want to continue her marriage with the defendant and stay with him.
The defendant’s case substantially was that he is married to the plaintiff under customary law and that during their marriage he bought the articles in lots 1, 2, 3 for the plaintiff. He, as husband, is prepared to allow the plaintiff to have and use the articles on the condition that the plaintiff stays with him and continues the marriage.
Learned counsel for the plaintiff argued that inasmuch as the plaintiff bought the cloths herself or even if the defendant bought them for the plaintiff during the marriage – the cloths have become the absolute personal property of the plaintiff – she has been in possession of them, and the defendant has no right in law to detain them. The detention is therefore wrongful. The defendant cannot be said to have a lien on the articles on dissolution of the customary marriage as lien is exercised on goods which have been improved by the person exercising the lien. Counsel contended that the defendant should not be believed that he bought the articles for the plaintiff, and that section 67 of the Courts Act, 1960,1 does not apply in this case.
Learned counsel for the defendant firstly submitted that there was no satisfactory evidence as to the proof of ownership of the articles by the plaintiff as the plaintiff alone gave evidence: see Majolagbe v. Larbi.2 In the absence of satisfactory evidence, the plaintiff must be deemed to have failed on the ownership of her goods and that the court should therefore find that the defendant bought the chattels for the plaintiff. Learned counsel for the defendant further contended that as the parties are married under customary law and the plaintiff was not willing to continue the marriage, the articles in question having been bought for the plaintiff by defendant, by customary law the defendant (inasmuch as there has been no formal dissolution of the marriage when the plaintiff would have to pay the marriage expenses of the defendant) has a customary lien on the articles until his marriage expenses were paid. The defendant’s detention of the articles is therefore lawful under customary law. By section 67 of the Courts Act, 1960, customary law is no longer to be proved as a fact.
It is important in this case, I think, to be clear as to what system of law is to be applied in determining the controversy between the parties and, in particular, the devolution of properties between them. The parties are married under customary law and are therefore husband and wife in the eyes of that law. The plaintiff and her mother admitted this. The relationship should therefore be measured and interpreted in the light of customary law and not by any other system of law. Time was when customary law was treated, rather in a most peculiar way, as a fact to be proved by expert evidence. By section 67 of the Courts Act this is not so now. Customary law is now deemed to be in the bosom of the judge.
From the evidence it is clear that the parties lived together as man and wife under customary law and not as concubines. Where parties are married under customary law and a spouse buys something for the other the customary law appertaining thereto, as I understand it, is as follows:
Where at the time of delivering of the property by one spouse to another spouse the spouse delivering the property declares his or her intention that the property is an outright gift to the other party, if the marriage is dissolved at the instance of either spouse the receiving spouse takes the property absolutely as his or her own; but in absence of such declaration of intention the customary law presumes that the property was bought for the use of the other spouse only on the condition and in so far as the marriage exists. If the marriage is dissolved the defaulting spouse pays the expenses of the marriage incurred to the other party and the defaulting party has to give up property bought for her or him to the other party. M. (man) and W. (woman) are married under customary law and M. buys cloths, etc. for W. in the absence of any declaration of intention by M., the property is for the use of W. only during the existence of the marriage.
The ownership remains with M. whilst W. has possession and use of the property during the existence of the marriage. One might say W. has a usufructuary right over the property. If M. says he is not continuing the marriage again (for some reason or the other) M. can either claim his property from W. or give it to W. as a gift. If W. (woman) says she is not continuing with the marriage she has to give up the cloths to M. (unless M. gives up the cloths to W. as a gift). It is also a principle of customary law that the defaulting party at the dissolution of marriage pays to the other party the marriage expenses, and if this is not done the non-defaulting party has a right to restrain the property of the other spouse until the marriage expenses are paid by the party who is not prepared to go on with the marriage.
The tort of detinue aims at, and essentially protects possession of chattels or goods by a person.
Possession is the thing; however, from the issues it is necessary to determine the ownership of the articles. In lot 3 the plaintiff said, and the defendant admitted, that the goods listed were bought by the defendant for the plaintiff and applying the principle of customary law above if the plaintiff for one reason or the other does not want to continue with the marriage, in the absence of any declaration of intention of the defendant, the defendant has the right of ownership and possession of these goods.
In respect of lot 1 and certain items in lot 2 the plaintiff claims that she bought the articles herself. The court has been urged to conclude that the evidence on this is not satisfactory as the plaintiff alone gave evidence on this. The plaintiff has been, according to her, a hairdresser and seamstress for at least twelve years and she bought the articles in lot 1 and some in lot 2. These articles are mainly for personal use and by nature of the articles sometimes receipts are given, sometimes not; sometimes, friends accompany friends to buy personal effects, sometimes not. For the plaintiff to produce receipts for these articles (for the period of about twelve years) is impracticable; and to call friends if any, as witnesses who accompanied her to buy them is unrealistic and far-fetched. I do not think it is also feasible for the plaintiff to have the shopkeepers (as witnesses) from whom she bought them. The principle of Majolagbe v. Larbi (supra) itself presupposes that there are other persons, facts, circumstances and documents to be adduced to substantiate a fact but these were not done. But where the circumstances are such, as in this case, that from its nature a document could not be tendered and other persons called as witnesses, it will be a defeat of justice if it was held that Majolagbe v. Larbi applied. Indeed with the space of twelve years a person would honestly and reasonably have forgotten who accompanied him to buy a thing or even where he bought the thing from, or even if a receipt or invoice was given. On the evidence of the plaintiff and her mother as against the evidence of defendant, I accept the plaintiff’s evidence that she bought the articles in lot 1 and those she listed in lot 2.
Having decided that the articles in lots 1 and 2 (except items 1, 2 and 11) belong to the plaintiff and articles in lot 3 belong to the defendant, I have to decide whether or not the plaintiff is entitled to possession of the articles. As far as lots 1 and 2 are concerned, the plaintiff was entitled to possession of them as having bought them and in respect of items 1, 2 and 11 of lot 2 as belonging to her customers. The defendant has no claim as such on the articles in lot 1 during their stay as man and wife under customary law. But, this is important, as soon as the plaintiff decided not to continue to marry the defendant, in the absence of any formal dissolution of the marriage which both the plaintiff and her mother admitted has not been done, the defendant became entitled, in the eyes of customary law, to restrain the articles of the plaintiff (not articles belonging to the plaintiff’s customers) until his (defendant) marriage expenses were paid by the plaintiff or her relatives. The detention of the plaintiff’s articles was therefore not wrongful.
The detention, however, of items 1, 2 and 11 (of lot 2) articles belonging to the customers of the plaintiff was wrongful as these do not belong to the plaintiff. Customary law does what is reasonable and it is not reasonable that a husband restrains the articles of customers brought to the wife. The value of items 1, 2, 11 (of lot 2) is £G143. I have to decide what damages, if any, has the plaintiff suffered by virtue of the defendant wrongfully detaining these articles in lot 2. The damages to which a plaintiff who has been deprived of his goods is entitled are prima facie the value of the goods together with any special loss which is the natural and direct result of the wrong. See Clerk and Lindsell on Torts (11th ed.), page 461, paragraph 763 and Re Simms.3 If detinue is a tort which protects possession and the plaintiff had possession of these goods, even though they are not owned by her, then she is entitled to damages. The writ was issued in September 1964, and there is nothing before the court to believe that as between September 1964 and November 1964 the price of the articles have changed. I therefore give judgment for
the plaintiff for £G143 damages for wrongful detention and order the defendant to return items 1, 2 and 11 of lot 2, i.e. £G100 worth of wigs, ready made wigs value £G25 and six half pieces of cloth at £G3 each value £G18 to the plaintiff. Costs of 30 guineas inclusive for the plaintiff.
DECISION
Judgment for the plaintiff.
N. A. Y.
