AMOAH V. APPAU ALIAS AMOAH
by OWUSU-ADDO J.
Jurisdiction
HIGH COURT
Judge
OWUSU-ADDO J.
Catalog Type
Case
Judgement Date
Mar 22, 1977
Summary
In the present case, the High Court considered whether statutory matrimonial law could be applied to a marriage contracted under customary law and whether the wife could be restrained from remaining in the matrimonial home during the pendency of divorce proceedings. The facts were that the respondent husband had applied for an order to restrain his wife from staying in the matrimonial home and from interfering with his person or curtailing his liberties. The parties had been married under customary law in Ghana and later underwent a ceremony in the United States, which was held to be merely a church blessing of the existing customary marriage. The respondent had argued that the Matrimonial Causes Act did not apply because the marriage was governed by customary law and that there was no obligation under customary law to provide accommodation for his wife. The petitioner wife had denied the allegations and stated that she remained in the matrimonial home because she could not afford alternative accommodation. The issue before the court was whether the Matrimonial Causes Act could be applied to a customary marriage and whether the wife was entitled to remain in the matrimonial home pending the final determination of the divorce. The court held that it had the discretion to apply the Matrimonial Causes Act to customary law marriages where necessary to achieve justice. It reasoned that the court could consider the peculiar circumstances of the marriage and apply statutory provisions or other legal principles in accordance with justice, equity, and good conscience. The court therefore held that the wife was entitled to remain in the matrimonial home until the divorce proceedings were concluded and refused the respondent’s application. It further advised the parties to adopt a practical arrangement to minimize conflict while living together pending the final resolution of the case.
Full Content
OWUSU-ADDO J.: The respondent has applied for an order to restrain his wife, the petitioner herein, from staying in the matrimonial home and from interfering in any way with his person, or invading his freedom or curtailing his liberties and legal rights.
The petition was filed on 12 March 1976, the wife alleged acts of cruelty against the husband and disclosed that on 4 February 1968 she and the respondent contracted a marriage under customary law in Ghana. They later cohabited in Los Angeles, California, in the United States of America, where they went through a ceremony of marriage ostensibly to convert their customary law marriage into a monogamous marriage, but in reality, that ceremony constituted a mere church blessing of their customary marriage and nothing more. So in point of fact, at the time of the presentation of the petition, the parties were married under customary law.
Turning to the present application, learned counsel for the respondent submitted that the parties being married under customary law, the applicable law is therefore customary law and not the Matrimonial Causes Act, 1971 (Act 367). Referring to section 41 (2) (b) of the said Act, counsel urged that the personal law of the parties, namely, customary law, overrides the provisions of the aforementioned Act. He contended that as far as his research goes, there is no rule of customary law which enjoins a husband to provide accommodation for a wife pending divorce proceedings.
The respondent, by his affidavit deposed to the following facts:
“(5) That the petitioner is still living under the same roof with me in spite of her petition and that she leaves the house any time she pleases and stays away for days without my knowledge.
(6) That the presence of the petitioner in my house is a source of constant embarrassment to me.
(7) That the petitioner is also in the habit of teasing me and casting insinuations calculated to annoy me.
(8) That the petitioner has been interfering with my liberties and that although I have sought several times to advise her to leave my house peacefully the petitioner has threatened not to leave until I kill her.”
The petitioner, by her affidavit in opposition, denied that she did any of the things that were alleged against her and deposed in paragraphs (3) and (4) as follows:
“(3) That true as it is that I am still living under the same roof as the petitioner because it is my legal and matrimonial home, I do so largely because I do not earn enough to be able to hire a bungalow where I can live and maintain the standard of living commensurate with my status and the style to which the respondent has introduced me to over the last ten years or so.
(4) That the petitioner shall not live under the same roof with the respondent a day longer than is necessary as soon as the marriage is dissolved and the rights and obligations of us, the parties, determined.”
I did not consider viva voce evidence necessary, but ordered the parties to file statements disclosing their net salaries for the months of December 1976, January and February 1977. Up to date, only a statement from the accounts section of the University of Cape Coast disclosing the respondent’s net salary for the past three months has been filed. It is marked exhibit A.
The issue has been raised whether the provisions of the Matrimonial Causes Act, 1971, are applicable to the type of marriage contracted by the parties. Counsel’s submission is that since the parties are married under customary law they cannot avail themselves of the provisions of the Matrimonial Causes Act, which apply only to monogamous type of marriages.
In answer to counsel’s submission, the pertinent law is contained in section 41 of the Matrimonial Causes Act, 1971 (Act 367) (hereinafter called the Act), which is formulated as follows,:
“41. (1) This Act shall apply to all monogamous marriages.
(2) On application by a party to a marriage other than a monogamous marriage, the court shall apply the provisions of this Act to that marriage, and in so doing, subject to the requirements of justice, equity and good conscience, the court may- (a) have regard to the peculiar incidents of that marriage in determining appropriate relief, financial provision and child custody arrangements; (b) grant any form of relief recognised by the personal law of the parties to the proceedings, either in addition to or in substitution for the matrimonial reliefs afforded by this Act.”
(The emphasis is mine.)
The aforequoted section clearly provides that the Act shall apply to all monogamous marriage as well as other types of marriages upon an application brought thereunder by a party to such a marriage. In the latter case, the court is required to have regard to the peculiar incidents and nature of the particular marriage. The court is therefore granted wide discretionary powers to determine whether or not to apply the provisions of the Act to a non-monogamous marriage. Where the court decides to apply the provisions of the Act, it may grant a matrimonial relief provided under the Act either in addition to or, in substitution for one recognized exclusively by the personal law of the parties. In this wise, the court acts upon the principles of justice, equity and good conscience.
It stands to reason that where the personal law of the parties to a non-monogamous marriage fails to provide adequate matrimonial reliefs, recourse can be had to the provisions of the Act in order to ensure justice and fair play to such parties.
Surely, the intendment of the Act is to try and put customary marriages as much as possible on the same footing as marriages under the Ordinance, so far as matrimonial reliefs are concerned. Thus the submission of the applicant’s counsel that the parties are precluded from seeking a matrimonial relief under the Act is wholly untenable. It is equally untenable to submit that the personal law of the parties overrides the provisions of the Act for both can be applied to provide adequate matrimonial reliefs to non-monogamous marriages.
On the question of choice of law, the answer can be found in the Courts Act, 1971 (Act 372), s. 49 (1), r. 7, which gives the court wide discretionary powers to apply even a non-Ghanaian system of law where necessary, to meet the requirement of justice, equity and good conscience.
It reads:
“Rule 7. Subject to any directions that the Supreme Court may give in exercise of its powers under article 107 of the Constitution, in the determination of any issue arising from the common law or customary law the Court may adopt, develop and apply such remedies from any system of law (whether Ghanaian or non-Ghanaian) as appear to the Court to be efficacious and to meet the requirements of justice, equity and good conscience.”
Now turning to the peculiar facts of this case, it is not in dispute that the parties did cohabit in Los Angeles, U.S.A., where they must have enjoyed a reasonably high standard of living. At present, they live on the campus of the University of Cape Coast in one of the houses exclusively built for their senior members of staff. The standard of that type of accommodation is very high indeed and it will cost the applicant almost a fortune to find a comparable accommodation for the respondent pending the divorce proceedings.
What then are the circumstances in which an injunction order will be granted to restrain a spouse from entering the matrimonial home pending divorce proceedings? I have had the opportunity of reading three English cases from which I have derived great assistance. They are: Cook v. Cook [1961] 2 All E.R. 791, Boyt v. Boyt [1948] 2 All E.R. 436 and Lee v. Lee [1952] 1 All E.R. 1299, C.A. In Cook’s case the court held that there was sufficient evidence of molestation and violent assault committed against the wife by the husband and an order for injunction restraining him from entering the matrimonial home pending the divorce proceedings was granted. But where a similar application was made by the husband in Lee’s case the court refused to turn a wife out of a house owned by the husband, to whom she looked for support.
I appreciate that to keep a wife out of the matrimonial home is not a course that one would take unless one felt that it was the only sure means of preventing the husband from being molested. But that is not the case here since there is no evidence of physical assault pepertrated on the applicant. Nor is there any evidence of molestation of the applicant by the respondent. Therefore the question I have to decide resolves itself into this: Here is a husband seeking to restrain his wife from entering the matrimonial home pending the determination of a divorce petition presented by the wife. Both are in the employment of the University of Cape Coast but the wife being a secretary will not be entitled to accommodation of the same standard as that occupied by the husband. I have evidence of the monthly net salary of the husband and I do not think he is financially capable of finding comparable accommodation for the wife in the meantime. Any order made to that effect is bound to create a great financial strain on him. I think upon the whole that the most convenient and most just, and most wise course is to let the wife stay in the house with the husband until final determination of the divorce petition. Application for an order for injunction is hereby refused.
I have however decided that the parties with the assistance of counsel must work out a modus vivendi which will bring them into each other’s company to the minimum degree.
Appearances
ATTA KESSON FOR THE APPLICANT; D. DE GRAFT AIDOO FOR THE RESPONDENT.