ARTHUR V. SIKA
by ADUMUA-BOSSMAN J.
Jurisdiction
HIGH COURT
Judge
ADUMUA-BOSSMAN J.
Catalog Type
Case
Judgement Date
Mar 08, 1960
Summary
The case concerned a dispute over financial expenditure related to the construction of a building, arising between two parties whose relationship was in question. The plaintiff claimed that the defendant was his wife under customary law and sought to recover money spent on her during the course of their marriage. The defendant, however, contended that their relationship amounted to concubinage rather than a lawful marriage. The writ filed by the plaintiff was unclear and failed to clearly state a cause of action. The central issue before the court was the nature of the parties’ relationship at the time the expenditure occurred. This determination was critical, as it affected whether the plaintiff could assert a claim arising from a marital relationship under native customary law. The court noted that disputes concerning divorce or financial claims between parties allegedly married under customary law fall within the jurisdiction of the Native Court “B,” which is the appropriate forum for such matters. Following established authorities, the court held that it lacked jurisdiction to hear the matter and directed that the parties be referred to the competent local court to resolve the dispute regarding the existence and recognition of their customary marriage.
Full Content
ADUMUA-BOSSMAN J.: (His lordship referred to the pleadings and continued):
In form the writ is obviously an unsatisfactory one for it is not at all clear what is the exact cause of action on which the claim is founded. In the first part it is set out that the total amount expended in putting up the building was due “ upon consideration which has failed owing to the defendant’s refusal for the plaintiff to complete the said building;” but in the latter part it is set out that the amount had been “ found due and payable by the defendant to the plaintiff at an arbitration “. At all events it is obvious that the claim is not one which should have been made under a specially endorsed writ.
Be that as it may, the question arises what is the nature of the claim. In this connection it was said by Kingdon, C.J. (Nigeria) in Kwow v. Eku II (2 W.A.C.A. 180) that: “in cases such as this the real issue between the parties must be the test, and not merely the wording of the suit,” an enunciation of principle which was adopted by the Privy Council in Vanderpuye and Others v. Botchway (2 W.A.L.R. 16). In endeavouring to ascertain the “real issue” between the parties, regard must be had to the allegations so clearly set out in paragraph 2 of the reply (amplifying and explaining the writ of summons), and to the allegations equally clearly set out in paragraphs 3 and 8 of the statement of defence. These pleadings make it clear that the claim and defence are founded on the relationship of the parties at the time of the expenditure of moneys towards constructing the top floor of the building. On the part of the plaintiff, the claim is for the total amount of moneys expended on behalf and for the benefit of the defendant whilst she was plaintiff’s wife, married according to customary law and cohabiting with him as his wife, and which amount plaintiff maintains is now recoverable, upon the dissolution of the customary marriage at her instance. On the part of the defendant, the defence is that the relationship of the parties during the period of the alleged expenditure was not that of married persons but that of concubinage. It follows therefore that the issue raised is the relationship of the parties at the material time. For the plaintiff to succeed he must establish that the defendant was lawfully married customarily to him at the material time of the expenditure of the moneys on her behalf, and that she has brought about the dissolution of the marriage in such circumstances as entitle him to recover the moneys so spent on her during the subsistence of the marriage. That is precisely what is pleaded in paragraph 2 of the reply. The relief claimed (that is, repayment of amount expended during customary coverture) seems to me to be incidental to the customary divorce of the parties.
In my view, therefore, the suit concerns divorce between persons allegedly married under native customary law, and is properly cognisable by the Native Court “B”, which has unlimited jurisdiction in respect of such a suit. It has been held that, whatever the form of the suit or claim, if the real issue is one properly cognisable by a Tribunal, the parties must be referred thereto—see Kweku v. Wood and Another (Div. Ct. 1931-37, p.3) where Howes, J. said:
“Notwithstanding the manner in which the writ has been framed, it is obvious to me that the real issue in the case relates to the ownership of land; as until this point has been settled the claim for money had and received cannot be substantiated.”
See also Fiagbenu v. Ahoe (unreported) where Strother-Stewart, Ag.C.J. ruled as follows:—
“I am of opinion that this case comes within section 48 (2) (c) of the Native Administration Ordinance. Although it asks for an account of tolls (collected by defendant for the use of the plaintiff from certain creeks) to be taken, the pleadings show that the main point in issue is whether a native pledge of land has been determined or not. Plaintiffs claim that it has been determined, that the creeks are now theirs and that they are therefore entitled to an account of the tolls collected by defendant, since the pledge was determined. Defendant says it has not been determined, and that he is entitled to the occupation of such creeks, and to the revenue from same. These are, in my opinion, clearly matters ‘relating to the ownership, possession or occupation of land, and I therefore refer the parties to the appropriate Tribunal.”
In accordance with the above (and several other) authorities on the point, I must stop the further progress of the suit in this court, and refer the parties to the appropriate local court.
Appearances
ABADOO FOR PLAINTIFF; ABBAN FOR DEFENDANT.