BENTSI-ENCHILL vs. BENTSI-ENCHILL [1976]DLHC370

Date	1976-05-06
Suit No.
Citation No.	[1976]DLHC370

SARKODEE J.

APPLICANT (MISS BLAY) IN PERSON.

W. A. H. AMARTEIFIO FOR THE RESPONDENT.

[1976]DLHC370
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													<main id="main" class="content" style="min-height: 60rem" >BENTSI-ENCHILL<o:p></o:p>&nbsp;vs. <o:p></o:p>BENTSI-ENCHILL<o:p></o:p>&nbsp;[HIGH
COURT, SEKONDI]<o:p></o:p>[1976] 2 GLR 303<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:
6 MAY 1976.<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">

APPLICANT (MISS BLAY) IN PERSON.<o:p></o:p>

W. A. H. AMARTEIFIO FOR THE RESPONDENT.<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">

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

</div><o:p>&nbsp;</o:p>JUDGMENT OF SARKODEE J.<o:p></o:p>Husband
and wife, both legal practitioners, were married under the Marriage Ordinance
Cap. 127 (1951 Rev.), on 21 August 1971. The marriage was dissolved on 12
December 1974, on the ground that it had broken down beyond reconciliation.
During the subsistence of the marriage, at least for the first few years, the
husband and wife lived and cohabited at No. 1 Palm Lands Estate, Sekondi, also
called Villa Afrique. The husband purchased a flat in house No. 8/12, Lagoon
Road, Sekondi, in which he later permitted his mother-in-law, the wife’s
mother, who was without suitable accommodation to live gratuitously.
Subsequently the wife left Villa Afrique and joined her mother at the flat.<o:p></o:p><o:p>&nbsp;</o:p>The
husband after the dissolution of the marriage requested the wife and her mother
to leave the flat. The wife refused to give up possession, contending that the
said flat was her matrimonial home and that she was entitled as of right to
stay there with twenty-month-old Ekua, the child of the marriage of whom the
wife by order of the High Court had custody. The basis of the wife’s refusal to
leave, according to her, was that when she and her mother had wanted to leave
even before the marriage broke down, her husband discouraged her from moving
and indeed told her she could have the flat as her home. That it was as a
result of the utterances and conduct of the husband that she moved into the
flat a week after she had given birth to Ekua. Further during the pendency of
the divorce proceedings she did not ask for alimony nor her share of property
acquired during the marriage because her husband specifically told her that she
could live in the said flat after the divorce. It appears the first time the
husband asked the wife to give up the flat was on 31 March 1975. After repeated
demands therefore, he caused a writ to be issued in the district court for an
order of possession against the wife. It was as a result of this action that
the wife brought this application praying for an order that she should stay in
house No. 8/12, Lagoon Road, Sekondi, until the baby Ekua attained maturity.<o:p></o:p><o:p>&nbsp;</o:p>The
wife’s claim raises two distinct problems in matrimonial property law—that of
ownership and title and that of occupation and use of a matrimonial home by
spouses. Prima facie each spouse has a right to the other’s consortium which
will normally be in the matrimonial home. Consortium is basically the sharing
of a common home and a common domestic life. This means that as far as
practicable the spouses must live together but differences may arise between
them as to where the matrimonial home should be. This the parties are bound to
settle by agreement: see Dunn v. Dunn [1948] 2 All E.R. 822, C.A. and also
Hughes v. Hughes [1973] 2 G.L.R. 342. It is therefore wrong to say that it is
the husband who has an absolute right to choose a matrimonial house. It is
however accepted that in most cases the husband as the bread-winner, and who
must necessarily live near his place of work, will have the last word but this
does not mean that the wife’s interest must be overlooked. Each spouse in such
a case will therefore have the right to use the house no matter in whom the
legal or equitable title is vested: see National Provincial Bank Ltd. v.
Ainsworth [1965] 2 All E.R. 472, H.L. At common law if the legal and equitable
title to the matrimonial home is vested exclusively in the husband, the wife
will be entitled to occupy it not only by virtue of her right to her husband’s
consortium but also by virtue of her right to be maintained by him. The result
is that if he deserts her and she thereby ceases to enjoy his consortium, she
will be entitled to remain in the matrimonial home unless, by her own conduct,
she forfeits that right as for example by committing adultery: see Jolliffe v.
Wilmett &amp; Co. [1971] 1 All E.R. 478, C.A. Equally where the husband has forfeited
his right to her consortium by his own conduct the position will be the same.
But the question of occupation, like that of title assumes a different form
when the marriage breaks down and the parties assert adverse claims. I shall
deal with this aspect presently.<o:p></o:p><o:p>&nbsp;</o:p>In recent
years the wife is very often a wage earner and makes contribution towards the
common expenses by buying for and running the home. Judicial opinion today
shows that the trend is to give credit to the wife for her services in kind as
a housekeeper or for the use of her own income or savings in such a way as to
enable her husband to use his for the purchase of a house. The beneficial
ownership has been held to be in both husband and wife jointly: see Yeboah v.
Yeboah [1974] 2 G.L.R. 114 in which Hayfron-Benjamin J. (as he then was)
applied dicta of Lord Denning M.R. and Widgery L.J. in Smith v. Baker [1970] 2
All F.R. 826, C.A. and considered Pe</main>