SMITH v. SMITH [1965] GLR 730

DIVISION HIGH COURT, CAPE COAST

DATE: 21 DECEMBER 1965

BEFORE: ARCHER J.

CASES REFERRED TO

(1) Longdon-Griffiths v. Smith [1951] 1 K.B. 295; 66 T.L.R. (Pt. 2) 627; 94 S.J. 580; [1950] 2 All

E.R. 662.

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(2) Bushell v. Hammond [1904] 2 K.B. 563; 73 L.J.K.B. 1005; 91 L.T. 1; 68 J.P. 370; 52 W.R. 453; 20

T.L.R. 413, C.A.

(3) Abbapesiwa v. Krakue (1943) 9 W.A.C.A. 161.

(4) Rondeau, Legrand & Co. v. Marks [1918] 1 K.B. 75; 87 L.J.K.B. 215; 117 L.T. 651; 34 T.L.R. 8;

62 S.J. 24, C.A.

(5) Masson, Templier & Co. v. De Fries [1909] 2 K.B. 831; 79 L.J.K.B. 24; 101 L.T. 476; 25 T.L.R.

784; 53 S.J. 744, C.A.

NATURE OF PROCEEDINGS

APPEAL by the plaintiff wife against the judgment of the Circuit Court, Cape Coast, non-suiting her. The facts are fully set out in the judgment.

COUNSEL

Ablorh for the appellant.

Essilfie-Bondzie for the respondent.

1. JUDGMENT OF ARCHER J.

The appellant wife sued the respondent husband for the return of certain articles, one part of which was given to the wife by the husband during their marriage, a second part of which represented the wife’s own self-acquired property and the third part consisted of articles entrusted to her or which she was keeping for third parties. The learned circuit judge gave judgment for the husband on the ground that “at common law no action lies between husband and wife” and that the true owners of the articles must themselves sue the wife with the husband as co-defendant. The circuit judge held further that the Married Women’s

Property Ordinance, 1890,1 must be restricted to property acquired by means of wages, earnings or money in some occupation or trade carried on separately from her husband. On these grounds the learned circuit judge non-suited the wife who has appealed against the judgment on the ground that:

(a) the evidence does not support the judgment of the circuit court;

(b) the judge was wrong in holding that the property claimed by the wife was not the wife’s own separate property, within the meaning of the Married Women’s Property Ordinance, 1890, and

(c) the judge misdirected himself as regards the law affecting the capacity of a married woman to sue her husband in respect of her separate property as provided by section 3 of the Married Women’s

Property Ordinance, 1890.

There is no doubt that the learned circuit judge accepted the submission of the learned counsel for the husband and relied solely on

[p.732] of [1965] GLR 730 what Mr. H. W. Hayes Redwar, a former Puisne Judge of the Supreme Court of the then Gold Coast wrote at pp. 39-42 of his Comments on some Ordinances of the Gold Coast Colony published in 1909, which dealt with “how the Married Women’s Property Ordinance 1890 modifies the common law as to the right and liabilities of husbands and wives.” Although the Married Women’s Property Ordinance was enacted in 1890, Redwar wrote his comments in 1909, nineteen years after the Ordinance was passed, but unfortunately, Redwar did not cite a single decided case in the then Gold Coast to add judicial weight to his comments and construction of that Ordinance.

In the first place, I must confess now that I do not share the doubts expressed by Redwar when he says at p. 39 that,

“It would seem clear that the Married Women’s Property Ordinance can only have effect on the position and rights of a woman married under the provisions of the Marriage Ordinance, 1884. Otherwise it has no effect whatever.”

The Ordinance does not make such a distinction and does not apply the Ordinance to women married under the Marriage Ordinance, 1884,2 only. If the Ordinance had so intended, it would have said so in express terms. The Ordinance therefore applies to women married under the Ordinance and also to women married under customary law. The Ordinance merely restated what rights women married under customary law already enjoyed and extended those rights to women married under the Ordinance.

Secondly, Redwar, was of the opinion at p. 39 that:

“The word ‘property’ occurring twice in Section 2 of this Ordinance, first after the words’ ‘investments of such wages, earnings or . . .’ and again at the end of the section, seems superfluous and indeed almost meaningless in its position, having regard to the rest of the enactment. It cannot mean property of all descriptions, real and personal as the context negatives such a wide construction, the section clearly contemplating only earnings in some occupation or trade carried on separately from her husband as is shown by the provision as to her receipt being a good discharge, ‘for such wages, earnings money etc.’

Possibly what the draftsman had in view was earnings which had either been put in the proverbial stocking, or used to buy furniture, etc. or invested for so long a time as to come to be naturally looked upon and described as property.”

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With great deference to Redwar, I have mustered all the courage in me to assert that his construction is too narrow and I do not know whether Redwar was swayed by the marginal note to section 2 of the

Ordinance which reads “wages and earnings by married woman to be property held to her separate use.”

English authorities on the use of marginal notes are divided: The Longdon-Griffiths v. Smith3 Slade J., stated as follows, “I do not think I am entitled to have regard to the rubric in interpreting a statute, and I disregard it on that ground.” On the other hand, Collins M.R. in Bushell v. Hammond4 said, “some help will be derived from the side-note (though of course it is not part of the statute) which shows that the section is dealing with . . . “ Fortunately, the Ghana Interpretation Act, 1960,5 in section 4 provides:

“An arrangement of sections or of similar divisions of an enactment placed at the front of an enactment, titles placed at the head or beginning of any subdivision of an enactment and notes and references placed at the side of any provision are intended for convenience of reference only and do not form part of the enactment.”

Disregarding the marginal note therefore I hold that the word property which appears in section 2 cannot be restricted only to personal property. I think in construing section 2, the whole Ordinance must be looked at to ascertain its true meaning. Section 2 of the Interpretation Act, 1960, provides that, “The long title and the preamble form part of an Act intended to assist in explaining the purport and object of the

Act.”

The long title of the Married Women’s Property Ordinance reads, “An Ordinance to confer power on married women to make contracts and hold and deal with property.” Then we have the preamble to the

Ordinance as enacted (but not reproduced in the Revised Edition of the Laws) as follows: “Whereas it is expedient that married women should have the same power as single women to make contracts and to sue and be sued, and to hold and deal with property.”

Taking the long title and the preamble together it is obvious that the Ordinance was not intended to protect merely a married woman’s wages and earnings in a trade or occupation carried on separately from her husband. The word “property” is not qualified and in my view it means both personal and real property or to use Ghanaian legal phraseology both movable and immovable property.

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Indeed section 2 goes on to refer to all investments of such wages, earnings or property. The word

“investment” is not restricted to investment in personal or movable property like stock and shares or furniture as suggested by Redwar. It means investment in any property, that is including land, that is real property or immovable property. My construction is supported by the use of the words “and of any chattel or other property purchased or obtained.” What do the words “other property” after “chattel” mean? They mean non-chattels. Section 3 of the Ordinance reads:

“Full power is hereby given to a married woman to maintain an action in her own name for the recovery of any wages, earnings, money, or property, and she shall have in her own name the same remedies against all persons whomsoever for the protection and security of such wages, earnings, money and property, and of any chattel or other property purchased or obtained by means thereof for her own use as if such wages, earnings, money’ chattels, and property belonged to her as an unmarried woman.”,

In this section, I wish to emphasize the words “an action” for the recovery of any wages, earnings, money or property. The word “property” is not restricted and the word “any” preceding indicates any property.

Then we have the words, “the same remedies against all persons whomsoever for the protection of such wages, earnings, money and property.” It is clear from these words I have selected that the married woman is given power to take an action for the protection and security of her property whether real or personal and also to have the same remedies against all persons whomsoever. It means that a married woman for the protection and security of her property can sue in tort without joining her husband and can also sue her husband in tort for the protection and security of her property. The words “against all persons whomsoever” do not exclude her husband.

The Ghana Ordinance was passed in 1890 after the English Married Women’s Property Act, 1882,6 was passed. There is no doubt that the English Act must have served as an impetus for the passing of the

Ghana Ordinance. Section 12 of the English Married Women’s Property Act, 1882, reads:

“Every woman, whether married before or after this Act, shall have in her own name against all persons whomsoever, including her husband, the same civil remedies, and also (subject, as regards her husband, to the proviso hereinafter contained) the

[p.735] of [1965] GLR 730 same remedies and redress by way of criminal proceedings, for the protection and security of her own separate property, as if such property belonged to her as a feme sole, but, except as aforesaid, no husband or wife shall be entitled to sue the other for a tort.”

The English Act expressly repeated and preserved the common law rule that a spouse could not sue the other spouse in tort. The Ghana Ordinance did not make any exceptions and it must be taken to have abrogated the common law rule so far as protection and security of the wife’s property are concerned. It follows that in Ghana, a spouse cannot sue the other spouse in tort for libel or slander, false imprisonment and other torts which do not affect her property provided the English common law applies to her, that is, if she is married under the Ordinance. If she is a married woman under customary law, then of course, relevant customary law will determine whether or not she can sue her husband for such torts.

In Abbapesiwa v. Krakue7 the West African Court of Appeal had to consider and construe section 4 of the Ghana Married Women’s Property Ordinance which reads:

“It shall be lawful for any married woman to maintain an action in her own name for the specific performance of any contract, or damages for the breach of any contract, and to be sued in her own name and held personally responsible for any breach of contract made by her, or any debt incurred by her, as if she were an unmarried woman.”

The court expressed the opinion that there was nothing in the section limiting such power to contracts with persons other than her husband and similarly the later provisions of the section enabling her to be sued for any debt incurred by her do not exclude suits by her husband. It is obvious that the court took this view of section 4 because there were no express words excluding suits between spouses.

In view of this decision, I think I can also say that, because there are no words excluding the husband from the words “against all persons whatsoever,” the wife can sue her husband in tort that is in trespass, detinue, negligence, conversion and seek other remedies for the protection and security of her property under section 3 which in my view should not be restricted to “wages and earnings acquired or gained by her in any employment, occupation or trade in which she is engaged or which she carries on separately from her husband” as stated in section 2. Taking the whole Ordinance into consideration

[p.736] of [1965] GLR 730 the word “property” in section 3 means property belonging to a married woman separately whether real or personal which has been gained or acquired by her through her own efforts and in her own right including gifts made to her by other persons and even by her husband. Moreover, if she is a custodian or bailee of property, she holds the property and can maintain an action against her husband in tort for the protection and security of such property.

In English law, property bought by one spouse as a gift for the other will become the donee’s. Hence if a husband buys clothes for his wife or gives her money to buy them for herself, they become her property: see Masson, Templier & Co. v. De Fries.8 However, the articles do not become the wife’s property where it had been agreed that they should remain the husband’s property: Rondeau, Legrand & Co. v. Marks.9

For the above reasons, I think the wife should not have been non-suited. The learned circuit judge relied solely on Redwar’s Comments on the Ordinances – a book which commands a preface by that formidable legal giant John Mensah Sarbah who at page vii of his preface wrote:

“Our author has served here many years as District Commissioner, Queen’s Advocate, and lastly, Judge of the Supreme Court.”

“There cannot be two opinions about his fitness and qualifications to analyse and comment on certain local

Ordinances and English laws enforced here, which are legislative experiments, and the result of their application, and this in such a manner as to attract attention and demand close study with reflection.”

I have derived solace and succour from these last words and I have also been attracted by Redwar’s comments which have demanded from me close study with reflection. I think it is my duty to approach and scrutinise past commentaries on Ordinances with a mind untramelled by any prejudices or predilections which might have plagued authors who wrote over half a century ago and to solve legal problems in the true spirit of the Ordinances. It is my hope that the Supreme Court will have the opportunity to ventilate the provisions of the Married Women’s Property Ordinance for the benefit of all and if necessary to denounce my interpretation. Finally during the hearing of the appeal, it was disclosed by the wife’s counsel that the marriage of the wife with the respondent husband was bigamous and a nullity as the husband at the time of the

[p.737] of [1965] GLR 730 marriage was already married customarily to another woman who even chose to continue to cohabit as wife with the respondent husband and the appellant wife under the same roof. This allegation is borne out by the evidence of the wife herself which was not contradicted. The wife’s counsel therefore argued that the Married Women’s Property Act could not apply to the appellant. This is a last minute discovery – a submission which was not made in the court below.

It is not the function of a court of law to kick against polygamy where the law of the land encourages and preserves it. However it is the duty of the court on grounds of public policy to discourage the commission of bigamy. I had originally thought that if the appeal was allowed, a retrial by the court below could be ordered. However, I now suspect that this allegation of the marriage being a nullity may be raised in the retrial in the court below and I am not very sure whether the circuit court has jurisdiction to declare a marriage null and void. For the above reasons, the appeal will be allowed and I order that the case should be re-heard by the High Court which has an original jurisdiction in all matters except those provided for by the Ghana Constitution.

Costs of ¢48.00 to the appellant.

DECISION

Appeal allowed.

S. K. D. -B.