SMITH vs. SMITH [1965]DLHC1851

Date	1965-12-21
Suit No.
Citation No.	[1965]DLHC1851

ARCHER J.

ABLORH FOR THE APPELLANT.

ESSILFIE-BONDZIE FOR THE RESPONDENT.

[1965]DLHC1851
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													<main id="main" class="content" style="min-height: 60rem" >SMITH<o:p></o:p>&nbsp;vs. <o:p></o:p>SMITH <o:p></o:p>[HIGH COURT, CAPE COAST]<o:p></o:p>[1965] GLR 730<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

DATE:
21 DECEMBER 1965.<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">

ABLORH FOR THE APPELLANT.<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">

ARCHER J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF ARCHER J.<o:p></o:p>The
appellant wife sued the respondent husband for the return of certain articles,
one part of which was given to the wife by the husband during their marriage, a
second part of which represented the wife’s own self-acquired property and the
third part consisted of articles entrusted to her or which she was keeping for
third parties. The learned circuit judge gave judgment for the husband on the
ground that “at common law no action lies between husband and wife” and that
the true owners of the articles must themselves sue the wife with the husband
as co-defendant. The circuit judge held further that the Married Women’s
Property Ordinance, 1890,1 must be restricted to property acquired by means of
wages, earnings or money in some occupation or trade carried on separately from
her husband. On these grounds the learned circuit judge non-suited the wife who
has appealed against the judgment on the ground that:<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">(a) The
evidence does not support the judgment of the circuit court;<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">(b) The
judge was wrong in holding that the property claimed by the wife was not the
wife’s own separate property, within the meaning of the Married Women’s
Property Ordinance, 1890, and<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">(c) The
judge misdirected himself as regards the law affecting the capacity of a
married woman to sue her husband in respect of her separate property as
provided by section 3 of the Married Women’s Property Ordinance, 1890.<o:p></o:p><o:p>&nbsp;</o:p>There is
no doubt that the learned circuit judge accepted the submission of the learned
counsel for the husband and relied solely on what Mr. H. W. Hayes Redwar, a
former Puisne Judge of the Supreme Court of the then Gold Coast wrote at pp.
39-42 of his Comments on some Ordinances of the Gold Coast Colony published in
1909, which dealt with “how the Married Women’s Property Ordinance 1890
modifies the common law as to the right and liabilities of husbands and wives.”
Although the Married Women’s Property Ordinance was enacted in 1890, Redwar
wrote his comments in 1909, nineteen years after the Ordinance was passed, but
unfortunately, Redwar did not cite a single decided case in the then Gold Coast
to add judicial weight to his comments and construction of that Ordinance.<o:p></o:p><o:p>&nbsp;</o:p>In the
first place, I must confess now that I do not share the doubts expressed by
Redwar when he says at p. 39 that,<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">“It would
seem clear that the Married Women’s Property Ordinance can only have effect on
the position and rights of a woman married under the provisions of the Marriage
Ordinance, 1884. Otherwise it has no effect whatever.”<o:p></o:p><o:p>&nbsp;</o:p>The
Ordinance does not make such a distinction and does not apply the Ordinance to
women married under the Marriage Ordinance, 1884,2 only. If the Ordinance had
so intended, it would have said so in express terms. The Ordinance therefore
applies to women married under the Ordinance and also to women married under
customary law. The Ordinance merely restated what rights women married under
customary law already enjoyed and extended those rights to women married under
the Ordinance.<o:p></o:p>Secondly,
Redwar, was of the opinion at p. 39 that:<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">“The word
‘property’ occurring twice in Section 2 of </main>