ADJEI V. FORIWAA

JUDGMENT

ROGER KORSAH J.

The plaintiff and defendant are married under the customary law. On 6 April 1978, the plaintiff commenced this action in which she seeks’.

“(a) declaration that the customary marriage between the plaintiff and defendant still subsists;(b) Declaration that House No. 6, Block L, Dichemso, is the joint property of the plaintiff and defendant and is the matrimonial home of their marriage;(c) Recovery from the defendant of a sum of ¢2,850 which the plaintiff has expended on herself by way of maintenance since January 1978 and on the children of the marriage;(d) Order compelling the defendant to provide reasonably sufficient money for the future education or maintenance of the said children of the marriage and future maintenance of the plaintiff; and(e) Order of perpetual injunction restraining the defendant, his agents, servants and or workmen from ejecting the plaintiff from House No. 6, Block. L, Dichemso, Kumasi— the joint property of the plaintiff and the defendant and the matrimonial home of the said marriage.”

The defendant, on his part, caused a writ of summons to issue out of the Magistrates Court, Grade II, Kumasi, against the plaintiff and her parents as the defendants, wherein he claimed the following remedies:

“(1) an order to compel the defendants to take necessary steps according to custom to dissolve the marriage between the plaintiff and the third defendant or an order dissolving the said marriage;(2) an order ejecting the third defendant from the matrimonial home, i.e. House No. 6, Block L, Dichemso, Kumasi; and(3) an, order of injunction to restrain the third defendant from entering the said house.”

It is clear from the first relief endorsed on his writ filed in the magistrate’s court that the defendant herein was seeking a dissolution of his marriage with the plaintiff. And it is equally clear from the first relief endorsed on the plaintiff’s writ of summons herein that she resists any petition praying for an order dissolving the said marriage. The rest of the reliefs sought by both parties in their separate actions are reliefs, in the main, consequential to whether or not the marriage is dissolved.

The magistrate’s court heard and entered judgment in favour of the defendant for the reliefs endorsed on his writ in spite of protestations by the plaintiff that the High Court was seised of a cause raising the same or similar issues. An appeal by the plaintiff’s parents, who were the first and second defendants in the said action, was dismissed by the High Court, when all that was pending before the court was an application to stay execution, for the curious reason that the appeal was not pending before the High Court.

On 28 August 1978, relying on the order of the High Court dismissing the appeal, the defendant went into execution and ejected the plaintiff and her children from the matrimonial home. The order dismissing the appeal by the plaintiff’s parents was vacated on 30 November 1978.

The proceedings in the magistrate’s court were by consent removed into the High Court and the two actions consolidated. On 16 February 1979, this court disallowed an application to commit the defendant herein for contempt and instead ordered that the plaintiff and her said six children be reinstated in the matrimonial home - House No. 6, Block. L, Dichemso, Kumasi, within seven days. This court further imposed an injunction restraining the defendant herein from ejecting the plaintiff and her children by him from the said house pending the hearing and final determination of this suit.

In paragraphs (18) and (19) of her affidavit in support of her application for attachment or committal or both of the defendant for contempt, the plaintiff deposed to the fact that she and her children had been ejected from the chamber and hall which they occupied in the matrimonial home. And the order of injunction related to the said premises occupied by them. The said order was also made in the belief that it would be possible for the parties herein to live, if not in amity, at least without interference from, or molestation by each other. This apparently has not been the case. Hence this application by the defendant for an order exacting an undertaking from the plaintiff and three of her children - Yaa Adomakoh, Afua Afrah and Yaa Tiwaah - that they will refrain from continuing their wrongful acts of insulting and/or otherwise provoking the defendant and his wife and be of good behaviour during the pendency of this action. The order, which was intended to preserve the status quo pending the determination of this suit, appears to have opened a new and bitter chapter in the conflict between the parties. No longer did the uneasy peace prevail. Provocation and open confrontation became the order of the day. The affidavits of the parties in support of and against this application constitute a litany of grievances, abuses and assaults.

The defendant opines that the conduct of Yaa Adomakoh towards his new wife has been such that he was compelled on one occasion to complain to the Asawasi Police. She was arrested together with her sisters, but they were released after being warned to be of good behaviour. The defendant also states that the children above-mentioned insist on cooking upstairs although the facilities for cooking are downstairs. On one of the occasions that he attempted to stop them from preparing meals upstairs, the said children quarrelled with him and his new wife and reported him and the said wife to the police. They continue to cook their meals upstairs.

Yaa Adomakoh in a 37-paragraph affidavit deposed to on behalf of her sisters and herself endeavours to justify their behaviour and to blame her father and his new wife for all the incidents that have occurred in the house. She sees no fault on her part or on the part of any of her sisters. She endeavours to justify their cooking upstairs on an allegation that the defendant has provided them with only one room and a hall in the house. She does not appear to appreciate that when her mother applied to be reinstated in the matrimonial home, she claimed that she had been ejected from a chamber and a hall, and that the order of the court placed them back in the exact chamber and hall.

The defendant, however, avers that he has provided them with a kitchen downstairs but Yaa Adomakoh and her sisters insist that a kitchen which their mother was using before they were ejected be made available for their use. They do not recognise the right of a father to restrict children in their user of the home for the common good of all who reside therein.

Yaa Adomakoh complains that the defendant’s wife prevents them from using the bath- room by entering it early in the morning to wash clothes and does not leave the bathroom till about 9 a.m. The defendant replies that he has provided the children with a separate bathroom and toilet facility, but they insist on using the conveniences reserved for his wife and himself. This also resulted in a misunderstanding which Yaa Adomakoh took to the Asawasi Police.

Yaa Adomakoh alleges, and the defendant admits the allegation, that he switches off the electric current in the house at certain times of the day. The defendant explains that it is because the children play records all day long to disturb them that he switches off the current. Yaa Adomakoh does not accept this explanation. She is of the view that it is a vicious act on the part of the defendant calculated to make such perishables as they have stored in their refrigerator go bad. But the defendant too has a refrigerator in which he keeps perishables and both fridges are on the same mains. It would seem that that mutual trust which makes co-existence in one house possible for several persons has been replaced by suspicion and an eagerness to find fault with each other.

An altercation between Yaa Adomakoh and the defendant’s wife provoked the wife to throw a shoe at Yaa Adomakoh and when Yaa Adomakoh complained to her father about the wife’s conduct (we are not told in what words the complaint was couched) the defendant picked up a cane and beat her. The defendant denies this incident. But even if it were true, is a father not entitled to mete out reasonable chastisement to his children when they misbehave?

Yaa Adomakoh goes so far as to allege that the defendant once entered their room holding a knife and is reported by her sisters to have proclaimed his intention of “finishing” Yaa Adomakoh that day, but for the fact that she was absent. Again the defendant denies this allegation, but even if it were true, it only suggests that an explosive and dangerous situation exists which must be defused.

It is alleged by the defendant that during the A.F.R.C. regime, Yaa Adomakoh took an army captain, a staff sergeant and another man to the house to kill him. It turned out that the captain knew him and they left without touching him. Whether this is true or false it demonstrates that there is no love now between Yaa Adomakoh and her father and each will go to any lengths to damage the other.

It seems that a son of the defendant by another woman, Kwame Kesse Adjei, who was not subject to this court’s order of injunction restraining the defendant from ejecting the plaintiff and his children by her from the matrimonial home, has returned to occupy a room in the house. It is alleged that the defendant falsely reported to the police that his said son had assaulted and caused injury to his wife. The son was remanded in custody and the case is still pending at the District Court, Grade II, Oforikrom. I will, therefore, make no pronouncement which may prejudice a fair hearing of the case in the magistrate’s court.

In Phillips v. Phillips [1973] 1 W.L.R. 615 where the English Court of Appeal ordered a divorced husband to leave the jointly-owned house which he still occupied with his former wife, Davies L.J. said that the question the court had to ask itself was, “Has it been established that the conditions which now prevail in the matrimonial home are such as to make it quite intolerable for the wife and her 14-year old son to continue to share that accommodation with the husband?” The question is the same whether the proceedings are pending or have been concluded. And the court will restrain one spouse from moltesing the other during the pendency of a suit: see Northledge v. Northledge (1890) 70 L.T. 815. Thus in Willmott v. Willmott [1921] P. 143 the application, of a wife-petitioner in a suit for restitution of conjugal rights, to restrain her husband by injunction from keeping her out of the matrimonial home was dismissed. And in Hill v. Hill [1916] W.N. 59 a husband was granted exclusive use of the matrimonial home subject to providing a furnished house for his wife and children. The court may also restrain another member of the family from molesting one of the spouses. And in Stevens v. Stevens (1907) 24 T.L.R. 20 a son was restrained by injunction from entering the mother’s house.

All the above decisions relate to marriages contracted under a statute. The courts of this country have since their inception been guided by the same principles that the English courts follow in respect of marriages contracted under the Marriage Ordinance Cap. 127 (1951 Rev.). And by section 41 (2) of the Matrimonial Causes Act 1971 (Act 367) it is provided that:

“41. (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.”

In my view any party to a marriage other than a monogamous one who seeks a relief from this court, which but for the above-quoted section the court could not have entertained must be deemed to have made an application to the court to apply the provisions of this Act to the marriage. But for the provisions of this Acts it was not the province of the High Court to entertain petitions for divorce where the marriage was one contracted under customary law. Customary law divorce was by act of the parties not by a decree of the court. The court could be requested to ascertain whether there was a valid customary law marriage or whether such a marriage had been dissolved according to custom. But the customary procedures for the dissolution of customary law marriages did not lend themselves to a dissolution of the marriage by a court action. The courts, therefore, until the enactment of Act 367, could not entertain a petition for the dissolution of a customary law marriage.

The cross-petition by the defendant, being one for the dissolution of a customary law marriage, the defendant must be deemed to have requested the court to apply the provisions of Act 367 to his marriage. In applying the provisions of the said Act to a customary law marriage, the principles of divorce law upon which those provisions depend will necessarily have to be considered and applied, if justice, equity and good conscience so demand.

As stated earlier in this ruling, upon an allegation by the plaintiff that she and her children had been ejected by the defendant from the chamber and hall which they occupied in the matrimonial home, this court ordered the defendant to allow them to return to the said chamber and hall and restrained him by injunction from ejecting them. That order was made on 16 February 1979. More than a year has elapsed since that order was made. From the several affidavits filed it is clear that the defendant has made available for the occupation of the plaintiff and her said children a chamber and hall as ordered by the court. The plaintiff’s children as evidenced by this application have, in pursuance of that order, moved to occupy the chamber and hall which it was alleged they occupied with their mother (the plaintiff) and from which they were ejected by the defendant. Yet the plaintiff has failed to move back to the matrimonial home. In Richman v. Richman [1950] W.N. 233 the wife was a half-owner of the matrimonial home. There were cross-charges in a divorce suit. She left the matrimonial home. Later she applied pending suit for an injunction to restrain her husband from entering the home which he continued to occupy, though she had left it. The application was dismissed.

The present application is not brought by the plaintiff, but one fact is common to both the Richman case (supra) and this one; that the wife has left the matrimonial home and continues to stay out. The rights of her children to remain in the matrimonial home depend on her personal right of occupation in relation to that matrimonial home, the marriage being a customary law one. Customary law knows no personal right of occupation by a wife. Under a matrilineal system, to which the parties herein belong, children belong to their mother’s family. The children can, likewise, therefore have no personal right of occupation of the matrimonial home. The court, for the protection of children, may order that the father do provide them with accommodation either in the matrimonial home or elsewhere, but their continued occupation of the matrimonial home must clearly be subject to good behaviour.

To my mind, it has been established that the conditions which now prevail in the matrimonial home are such as to make it quite intolerable for the defendant and his wife to continue sharing the home with Yaa Adomakoh and Afua Afrah. Both girls are adults and are working. Yaa Tiwaah is a school-girl and has not featured much in any of these quarrels. I am of the view that the conditions prevailing in the matrimonial home ought not, having regard to the welfare of Yaa Tiwaah, to be allowed to continue.

The plaintiff’s opposition to this application by the defendant is garnished with technical objections. It was contended on behalf of the plaintiff that she had been unable to return to the matrimonial home because the defendant had not fully complied with the orders of this court; that as the order he seeks is of the nature of an equitable relief, it cannot be granted him unless his hands are clean—that is to say, unless he has complied with the orders of this court.

Now, the plaintiff by her application complained that the defendant had ejected her from a chamber and hall which she occupied with her children in the matrimonial home. The order of the court was specific, and related to her being allowed to return to the said chamber and hall. The said chamber and hall were made available for her return, and her children have taken up residence in the said apartments. If there was anything else she required of the defendant, she did not apply for it and no order of this court was made to cover it. To my mind, the defendant has fully complied with the order of this court dated 16 February 1979.

Counsel for the plaintiff also contended that the application before the court is for the plaintiff and her three-named daughters to appear before the court and give an undertaking to be of good behaviour, and not that the grown-up children be removed from the house. It is not therefore, open to this court to order the removal of the said children from the matrimonial home as the court seems to indicate. In my opinion, whenever an application is made to a court for an order granting an equitable relief, the court is not restricted in any way to the granting or refusal of the specific remedy sought, but may make any such order as conscience dictates and the justice of the case demands. And I think that when technical objections which do not go to the root of the matter stand in the way of justice, they must be swept aside like so many impediments obscuring the path to justice.

The last technical objection raised by counsel for the plaintiff was that an injunction or other interim relief could not be granted when the date for hearing the case was not in the distant future, but close and ascertained. I do not know of this rule and no authority was cited in support of it. As far as I am aware, whenever on an application by a party a court deems it necessary, an injunction may be granted at any time before trial, during trial and, in an appropriate case, even after judgment.

However, I agree with counsel for the plaintiff that as the plaintiff is not living in the matrimonial home and no allegation of misbehaviour is levelled against her, no order whatsoever can be made against her. But the occupation by the children of the chamber and hall in the matrimonial home is in pursuance of the order made in her favour on 16 February 1979, and which order she herself has not taken advantage of. It is therefore ordered as follows: This court’s order dated 16 February 1979 is hereby discharged. Yaa Adomakoh and Afua Afrah are to remove themselves from the matrimonial home within 28 days from the date hereof. The said two adult children are to give an undertaking to be of good behaviour for the 28 days during which they remain in the matrimonial home within 24 hours of this order. In lieu of such an undertaking they are to be ejected forthwith.

I make no order as to costs.

Appearances

ASUMADU-SEKYI FOR THE PLAINTIFF; S. K. K. SOTOMEY FOR THE DEFENDANT.