TACKIE vs. BAROUDI [1977]DLCA1432

Date	1977-06-14
Suit No.
Citation No.	[1977]DLCA1432

AZU CRABBE C.J

LASSEY JA

FRANCOIS J.A.

MISS A. A. AYISI FOR THE APPELLANT.

J. C. ARMAH FOR THE RESPONDENT.

[1977]DLCA1432
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													<main id="main" class="content" style="min-height: 60rem" >TACKIE <o:p></o:p>vs. <o:p></o:p>BAROUDI <o:p></o:p>[COURT OF APPEAL, ACCRA]<o:p></o:p>[1977]1 GLR 36<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:
14 JUNE 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">

MISS A. A. AYISI FOR THE APPELLANT.<o:p></o:p>

J. C. ARMAH 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">

AZU CRABBE C.J., LASSEY AND FRANCOIS
JJ.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF AZU CRABBE C.J.<o:p></o:p>The
appellant and the respondent were married on 2 March 1965, and there are two
issues of this marriage. On 30 June 1972, the respondent brought divorce
proceedings in the High Court, Accra, seeking the dissolution of their marriage
on the ground that the said marriage had broken down beyond reconciliation. At
the time of these proceedings, both the appellant and the respondent lived in
house No. 1/s, 39 Community No. 1, Tema, as their matrimonial home. On 22
November 1975, Okai J. declared the marriage dissolved, but rejected the
respondent’s prayer for the custody of the children. The learned judge instead
granted the custody of the children to the appellant, and his reasons for doing
this are expressed in the following passage of his judgment:<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">&nbsp;“Suffice it to be said that the mother who is
in business has been maintaining the children. It is fair to say that she
continued to do that. In all the circumstances of this case, and bearing all
the matters in mind [the children’s] best interest will be served by leaving
them where they are with the mother, I have a comfortable feeling that they
will be well cared for.”<o:p></o:p><o:p>&nbsp;</o:p>The
learned judge then continued, “Let me hasten to add that the court can always
be resorted to when things change. One can readily understand the wisdom and good
sense of this approach.”<o:p></o:p>The
appellant did not appeal from the Judgment of Okai J., and it would appear that
both the appellant and the respondent, as well as the children, continued to
live together under the same roof, the matrimonial home.<o:p></o:p><o:p>&nbsp;</o:p>Soon after
this judgment, the appellant made an application to the court for an order to
eject the respondent from the matrimonial home. The ground for the application
was that there was tension in the home and that this was likely to affect the
emotional stability of the children. The application came before Kisseih J. who
dismissed it, but who made certain pertinent observations in the course of his
ruling. The learned judge said: “The respondent has shown in his exhibit 1 that
the house was acquired by him in trust for his daughter. He is the trustee for
the daughter and not the applicant as I am being asked to believe. Exhibit 1 is
sufficiently clear and it speaks for itself.” The ruling of Kisseih J. was
tendered in evidence at the hearing of the present case by the respondent and
was marked exhibit A. The respondent in this present appeal is obviously the
same respondent referred to in Kisseih J.’s ruling.<o:p></o:p><o:p>&nbsp;</o:p>There was
also tendered in evidence by the respondent at the court below a letter dated
12 July 1973, from the Tema Development Corporation offering house No. 1/s, 39
Community No. 1. to the respondent for purchase. This was marked exhibit B, and
at the bottom of this letter are the following words:<o:p></o:p>“Mr.
Mohamed Baroudy In trust for Miss Sahar Akweley Baroudy, P.O. Box 98, Tema.”<o:p></o:p>I have no
doubt that exhibit B is the same as exhibit 1 referred to in Kisseih J.’s
ruling.<o:p></o:p>The
dismissal of the appellant’s application by Kisseih J. spurred the respondent
to pursue a claim which he had in the meantime filed in the, circuit court
against the appellant on 17 February 1975. The claim was for the recovery of
possession of house No. 1/s, 39 Community No. 1. Tema, which the appellant
occupied, and which was the matrimonial home of the parties during their
marriage. In his statement of claim the respondent alleged that he was the
owner of the house, and that the appellant had ignored several notices to her
to vacate the premises. On 11 March 1975, Miss Ayisi, acting as solicitor for
the appellant, entered a conditional ap</main>