ARTHUR vs. SIKA [1960]DLHC79

Date	1960-03-08
Suit No.
Citation No.	[1960]DLHC79

ADUMUA-BOSSMAN J.

ABADOO FOR PLAINTIFF.

ABBAN FOR DEFENDANT.

[1960]DLHC79
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													<main id="main" class="content" style="min-height: 60rem" >ARTHUR <o:p></o:p>vs.<o:p></o:p>&nbsp;SIKA<o:p></o:p>&nbsp;[HIGH
COURT, CAPE COAST]<o:p></o:p>[1960] GLR 34<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

DATE:
8TH MARCH, 1960.<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

ABADOO FOR PLAINTIFF.<o:p></o:p>

</div>CORAM:
<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

ADUMUA-BOSSMAN, J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF ADUMUA-BOSSMAN J.<o:p></o:p>(His
lordship referred to the pleadings and continued):<o:p></o:p>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.<o:p></o:p><o:p>&nbsp;</o:p>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.<o:p></o:p><o:p>&nbsp;</o:p>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:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“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.”<o:p></o:p><o:p>&nbsp;</o:p>See also
Fiagbenu v. Ahoe (unreported) where Strother-Stewart, Ag.C.J. ruled as
follows:—<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“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 </main>