ARTHUR v. SIKA
1960
HIGH COURT
GHANA
CORAM
- ADUMUA-BOSSMAN, J
Areas of Law
- Civil Procedure
- Customary Law
- Family Law
1960
HIGH COURT
GHANA
CORAM
AI Generated Summary
The case involved a dispute over expenses incurred by the plaintiff allegedly during a customary marriage with the defendant. The defense argued that the relationship was concubinage, not a lawful marriage. Adumua-Bossman J. identified the core issue as the nature of the relationship and ruled that the matter falls under the jurisdiction of the Native Court 'B'. The decision referred the case to the appropriate local court, emphasizing the precedence of determining the 'real issue' and applicable jurisdiction for customary marital disputes.
JUDGMENT OF 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 [p.36] 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