CLERK v. CLERK [1968] GLR 353

DIVISION: HIGH COURT, ACCRA

DATE: 2 APRIL 1968

BEFORE: CAMPBELL J.

NATURE OF PROCEEDINGS

ACTION in the High Court by a deserted wife for an order of perpetual injunction restraining her husband from interfering with her occupation of the matrimonial home. The facts are sufficiently set out in the judgment.

COUNSEL

E.N. Moore for the plaintiff.

J.O. Dadey for the defendant.

JUDGMENT OF CAMPBELL J.

The plaintiff in this case seeks relief by way of an order of perpetual injunction restraining the defendant from interfering with the occupation of house No.F.539/1, Osu, Christiansborg. Her claim for relief is based on two grounds, namely, that she contributed financially and assisted physically in the construction of the house thereby acquiring beneficial interest therein and secondly even if this is not so, she is entitled to remain in residence as it is the matrimonial home of the parties.

The parties were married under the Marriage Ordinance, Cap.127 (1951 Rev.), in 1929, and the marriage is still subsisting. In 1964 the defendant brought a petition for divorce against the plaintiff on the grounds of cruelty and or desertion, his petition was however dismissed on the merits on 23 December 1964 (reported in [1964] G.L.R.712). On 29 December 1964, the defendant addressed a letter to the plaintiff which was tendered in evidence as exhibit A pointing out to her that on completion of the building in question, [p.355] of [1968] GLR 353 the outstanding debt of £G1,550 was with a struggle on his part repaid, further that rates for the following year and other expenses totalling £G200 would have to be paid, also that the building would have to be so managed that he could reimburse his expenditure thereon and also the legal expenses of his unsuccessful petition for divorce. In consequence, he informed plaintiff that he had decided, in accordance with Accra Municipal Council plan approved on 14 December 1964, to have the house extended and improved for purpose of leasing and that therefore the sheds and oven in the backyard should be removed and all rooms in the house vacated. He further in the same letter informed her that spare accommodation had been provided for her at Anna Lodge his ancestral home where he was living and further that he intended implementing his plans in January 1965. As a result of this letter the plaintiff issued a writ on 5 January 1965 claiming the relief mentioned, and in answer to her claim the defendant counterclaimed for a declaration of title and an order for recovery of possession against the plaintiff. The plaintiff claims relief on the ground that she is beneficially entitled to the property by virtue of her financial contribution thereto and the physical assistance rendered during the construction of the same.

Her evidence which is substantially denied by the defendant is that she made contributions from her bakery business averaging £4 per month to the defendant at his request from May 1941 to December 1944, this was because the defendant after acquiring the land in 1940, suggested that they should build a home thereon, starting with an outhouse. She was invited to turn her bakery concern into a family bakery to provide funds for the construction, she did so and as stated, commenced contributing the profit on one cwt of the number of cwts used by her in her bakery to the defendant from May 1941. She said the outhouse was constructed in 1942 and took six months to complete, during construction she also provided food for two masons engaged thereon at an average of 15s. per day, she also maintained the family, expending an average of £1 per day which was provided largely from her bakery as the defendant gave only £2 per month for the family upkeep of ten persons, namely, the couple, four children and four maids. She said her bakery business yielded profits per month ranging from £39, £50 to £60. As regards her contribution to the main building she said she performed errands for the purchase of building materials in Accra, and for the raising of loans, she herself spent £45 on the carpenters, bought window panes and a lock costing in total £10 9s., supervised the workers on the site, gathered stones for the building and fed the workers, about eight in number, for about three months from October to [p.356] of [1968] GLR 353

December 1954 at a cost of approximately 30s. per day. She said her efforts were openly praised by the defendant at a house-warming party whereat the defendant asked the invitees to join him in thanking her for assisting in the completion of the building.

In support of her case she called witnesses, two of whom corroborated her evidence that the defendant openly thanked her, one witness corroborated her evidence that she supervised workers on the main building which was not denied by the defendant, another witness deposed to the defendant acknowledging to him that the plaintiff was assisting with moneys from her bakery towards the construction of the building and that he himself donated towards the outhouse an amount of about £20 and towards the main building about £200 to £280 of which £180 was refunded on the pretext that his transactions with the defendant were loan transactions and that this £180 was all that he had contributed. The defendant for his part denied that the plaintiff gave anything but £2 15s. towards the outhouse and nothing at all towards the main building; the defendant denied further that the plaintiff provided food for the mason in 1962 or for the workers in 1954 and says that he does not recall ever requesting her to do so. He admitted asking her to supervise the workers in 1954 but is not aware of anything else which she may have done.

Considering the evidence of the plaintiff there can be no doubt that she has grossly exaggerated the financial assistance, if any, given by her towards the construction of the outhouse, she certainly could not have spent 15s. per day on two masons in 1942 when on her own admission she spent an average of £1 per day on her own family upkeep of ten persons; further her evidence of expenditure of approximately 30s. per day in 1954 on eight labourers highlights the flaw in her evidence with regard to the masons, if it cost 30s. per day in 1954 for providing food for eight labourers I cannot see how it could cost 15s. per day on two masons in 1942 when the cost of living would undoubtedly be considerably lower. Her evidence as to the upkeep of her family in or about 1942 is also very suspect because even to this day it is highly improbable that persons similarly circumstanced as her family could afford to, or would be spending at the rate indicated by her. Her evidence as to the average profit made by her from her bakery seems highly improbable. Were she correct she certainly would have been able to provide loans to her husband thus obviating the necessity for negotiating outside loans for the building when it was started in 1954; further it would not have necessitated their waiting for a good twelve years before taking a decision to commence the main building. The defendant’s evidence is equally far removed [p.357] of [1968] GLR 353 from the realities of the situation. It is very remarkable that he could have remembered a good 25 years afterwards the exact contribution made by the plaintiff towards the construction of the outhouse while at the same time showing such defective memory as to how much he earned in 1964. On the issue of the plaintiff’s contribution towards the outhouse and later of the main building the defendant has not spoken the truth and I would therefore reject his evidence. The plaintiff’s evidence that she assisted financially in the building of the outhouse and the main building is the more probable but with this further finding that her contribution was very much lower than she would have the court believe. I therefore find that though she in fact assisted the defendant financially from her bakery business and also physically by supervising the workers the extent of her contribution is so indeterminate that I cannot without speculation make any finding as to whether her contribution was sufficiently substantial as to raise an equitable interest in the building in her favour and I will make no such findings. Further, I must confess considerable doubt as to whether even if her contribution could have been particularised with certainty and was substantial this fact would necessarily make the parties tenants in common of the building so constructed from their joint efforts. Counsel for the plaintiff has invited me to hold that they are tenants in common because what was done in this case was the making of a continuing provision for their respective lives and that it would be inequitable for the defendant to assert exclusive ownership of the property in question. Learned counsel’s argument is very intriguing and no doubt there are authorities in the English Law Reports which at first sight would appear to support his view. Cases like Rimmer v. Rimmer [1953]1 Q.B.63, C.A. and Fribance v. Fribance (No.2) [1957]1 All E.R.357, C.A. are authorities not only for counsel’s submission but for the corollary principle that once the court is satisfied that both parties have a beneficial interest which is substantial and it is not possible or right to assume some more precise calculation of their shares then they must be held to hold the property as tenants in common in equal shares. However these cases were in exercise of the statutory powers expressly conferred on the court by section 17 of the Married Women’s Property Act, 1882 (45 & 46 Vict., c.75), the intention of which is clear, namely, that in dealing with disputes between husband and wife, involving title to and possession of property the court must dispense “Palm Tree justice” meaning justice enshrined in orders which appear to be fair and just in the special circumstances of the case. This would arise whenever the parties had not themselves mutually agreed as to how their rights and interest in property acquired during the subsistence of [p.358] of [1968] GLR 353 the marriage, should be determined in the event of a dissolution of the marriage not occasioned by death. This statutory provision is no doubt a salutary one because as was said by Evershed L.J. (as he then was) in Re Rogers’ Question [1948]1 All E.R.328 at pp.328-329, C.A:

“When two people are about to be married and are negotiating for a matrimonial home it does not naturally enter the head of either to enquire carefully, still less to agree, what should happen to the house if the marriage comes to grief. What the judge must try to do in all such cases is, after seeing and hearing the witnesses, to try to conclude what at the time was in the parties’ minds and then to make an order which, in the changed conditions, now fairly gives effect in law to what the parties, in the judge’s findings, must be taken to have intended at the time of the transaction itself.” In exercising the powers conferred by this statutory provision the court is not disabled in dispensing justice by the absence of evidence showing a contract, gift or trust enforceable at law in favour of the spouse claiming a share in the matrimonial assets because as was said by Romer L.J. in Rimmer v. Rimmer (supra) at p. 76:

“cases between husband and wife ought not to be governed by the same strict considerations, both at law and in equity, as are commonly applied to the ascertainment of the respective rights of strangers when each of them contributes to the purchase price of property…”

The Married Women’s Property Ordinance, Cap.131 (1951 Rev.), of Ghana though enacted in 1890 after the Married Women’s Property Act, 1882, in England contains no such provision like section 17 of the United Kingdom Act, and the Marriage Ordinance, Cap.127, by section 48(1) deals only with proprietary rights of one spouse in the property of the other on the death intestate of the latter. The reasonable inference to be drawn is, in my opinion, that the legislature intended that during the lives of spouses their proprietary rights, if any, in each other’s property should be governed by the rules of customary law in the absence of a clear indication to the contrary. If this inference is well-founded, then the plaintiff would by customary law have acquired no beneficial interest in the property in question because by customary law, property acquired by a husband with the assistance of the cash and labour of his children and or his wife remains the individual property of the husband. [p.359] of [1968] GLR 353

Ollennu’s Customary Land Law in Ghana at pp. 39-40 is as follows:

“By customary law, the children or a wife being dependants of a man, family life requires that a son should work with and for his father, and a wife with and for her husband, and property acquired with such assistance is the individual property of the man”

Even assuming that my inference is not well-founded, the only other principle of law which would be applicable to the circumstances of the case would be the rule of the common law unaffected by the statutory provisions of the Married Women’s Property Act, 1882, this principle derived from the maxim quicquid plantatur solo, solo cedit is that where a person, conscious of a defect in his title to land, nevertheless builds on the said land, he is debarred from asserting his own interest in the land as against the person in whom the title is vested, fraud and laches excepted. The fact that the relationship between the parties is one of husband and wife makes no difference to this rule. Further, where the funds of a married woman are utilised by a husband jointly with his own to acquire real property, in his own name, a lien on the property to the extent of the funds of the wife so used, arises in her favour only where she was not aware of the funds being so used and did not consent: see Halsbury’s Laws of England (3rd ed.), Vol. 19 at p. 841 and Scales v. Baker (1859) 28 Beav. 91. It will thus be seen that at best a wife at common law acquires only a lien on real property of her husband’s purchased with mixed funds, and this, only where she was not aware of her funds being so used and did not consent. It was never the case that even in such circumstances she thereby acquired a beneficial interest in the property as tenant in common. She now acquires this beneficial interest in England by virtue of section 17 of the Married Women’s Property Act, 1882, which is not applicable in Ghana. In the circumstances and for the reasons given I find that the plaintiff is neither by customary law nor by the rules of the common law entitled to any beneficial interest in house No.F.539/1, Osu, Christiansborg, the land of which was, on the admission of all parties, acquired by the defendant from his own funds and in his name exclusively.

The next issue for determination is whether the plaintiff is entitled to remain in occupation notwithstanding the declaration that the house in question is the individual property of the defendant. The parties are in agreement that this house was in fact used as the matrimonial home from January 1955 until July 1962 when the

[p.360] of [1968] GLR 353 defendant removed his belongings therefrom and he has not since returned to cohabit therein. The plaintiff herself had left the home between 1956 and March 1961 when on her evidence, which I accept as true, she returned on the invitation of the defendant, an action through the moderator of their church, and after she was sent a sum to cover her transport expenses of returning home by the defendant. The defendant’s evidence that this house was never intended as their matrimonial home cannot be accepted as true in the light of his own continued residence therein when the plaintiff was away between 1956 and March 1961; there is no evidence that he ever left this home prior to July 1962 so it must be reasonably assumed that he remained in residence there; if his intention had been to lease this house to provide funds for maintaining the family and for its upkeep, he certainly would have taken the opportunity of implementing his plans during the absence of his wife between 1956 and 1961. Equally his evidence that from as early as 1962 he submitted his plans regarding the house to the plaintiff for mutual consideration is difficult to accept having regard to the fact that on his own admission they were not on companionable terms from September 1961 and he spoke to her only when it was absolutely necessary. The letter purportedly from his brother, tendered by the defendant as exhibit 3 to support his case that he had bona fide planned to use his building other than as a matrimonial home from as early as 1962, shows by its contents that such was not the case as the request for plans for the new building and extension of the existing one was only made in July 1963. This was at a time when he was already in de facto desertion for about a year. I find on the evidence that the defendant only formed the intention of extending this building and leasing the same some time in July 1963 and that at the time when he left the plaintiff in de facto desertion, house No.F.539/1 was to all intents and purposes the matrimonial home. The principle of law established in decided cases in the United Kingdom which is applicable here as part of the common law is that the authority to remain in the matrimonial home is irrebuttably presumed to be given by a husband to his wife on marriage, this authority flows from the status of marriage and ceases only on death or divorce. It is an authority personal to the wife. In Hutchinson v. Hutchinson [1947]2 All E.R. 792 at p. 793 Denning J. (as he then was) had this to say:

“At common law the husband had no right to turn his wife out of the house. He could not sue her for ejectment or trespass or any other tort. His only rights are under s.17 of the Married

[p.361] of [1968] GLR 353

Women’s Property Act, 1882, which does not give him the right he is now claiming, but leaves it open to the court to make such order as it thinks fit.”

Again in Bendall v. McWhirter [1952]2 Q.B. 466 it was held that a deserted wife in occupation of the matrimonial home has a personal licence to remain therein revocable by the husband only by obtaining an order of the court under section 17 of the Married Women’s Property Act, 1882. The question therefore whether the defendant being heavily indebted, would be greatly inconvenienced by the plaintiff remaining in occupation of house No. F.539/1, and the further question whether he has provided reasonable alternative accommodation for the plaintiff are wholly irrelevant to the issue whether as the law stands he can have an order for possession against her. These matters would doubtless be relevant if the provisions of section 17 of the Married Women’s Property Act, 1882, did apply in Ghana and the application by the defendant had been brought thereunder, but in the absence of any such statutory provisions it is the rules of the common law which prevail and by these rules, a husband is incapable at law of ejecting his wife from the matrimonial home so long as the marriage has not been determined by death or divorce. These rules apply with added force when the husband seeking to eject the other is himself in desertion. The rules of customary law as I conceive them are not in this respect dissimilar to the rules of the common law regulating the right of a wife to reside in the matrimonial home. The defendant though entitled to a declaration of title to house No. F.539/1, Osu, Christiansborg, is not entitled to an order of possession against the plaintiff which would have the effect of ejecting her from the premises. The defendant’s claim for an order of possession is therefore dismissed.

The plaintiff on the evidence is entitled to relief by way of perpetual injunction against the defendant as claimed, on the ground that the property in dispute, being the matrimonial home albeit owned by the defendant, she is entitled like the defendant to reside therein and cannot be ejected therefrom by the defendant so long as the marriage subsists and even though the said defendant may be living elsewhere in de facto desertion of her.

Judgment is therefore entered for the plaintiff. Costs assessed at ¢50.00 for the plaintiff against the defendant.

DECISION

Judgment for the Plaintiff.

S.K.T.