ELEANOR ASIGBEY (PLAINTIFFS /J/C/A) vs. DR. SOLOMON FIAH AND MRS MARION FIAH. (DEFENDANT/J/D/R) [2008]DLHC7490

ELEANOR ASIGBEY (PLAINTIFFS /J/C/A) vs. DR. SOLOMON FIAH AND MRS MARION FIAH. (D... [2008]DLHC7490

Date	2008-09-16
Suit No.	SUIT NO. E5/9/08.
Citation No.	[2008]DLHC7490

HIS LORDSHIP JUSTICE PETER DEI OFEI J.

[2008]DLHC7490
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													<main id="main" class="content" style="min-height: 60rem" >ELEANOR ASIGBEY<o:p></o:p>(PLAINTIFFS /J/C/A)<o:p></o:p>vs.<o:p></o:p>DR. SOLOMON FIAH AND MRS
MARION FIAH.<o:p></o:p>(DEFENDANT/J/D/R)<o:p></o:p><o:p>&nbsp;</o:p>[HIGH
COURT, TEMA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0cm 0cm 1.0pt 0cm">

SUIT
NO. E5/9/08.&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;DATE: 16TH
SEPTEMBER, 2008<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:0cm 0cm 1.0pt 0cm">

HIS
LORDSHIP JUSTICE PETER DEI OFEI J.<o:p></o:p>

</div><o:p>&nbsp;</o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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</div>This
is an application filed on behalf of the Plaintiff/Judgment/Creditor/Applicant
herein praying for an order for the ejectment of the 2nd Defendant from House
No. AWE 4 Community 12, Tema. This is the house in which Dr. Solomon Fiah and
Mrs. Mariam Fia, the Defendants/Respondent herein are living and using as their
matrimonial home prior to this suit being instituted. The second Defendant
/Judgment/Debtor Respondent herein is opposed to the application and has filed
an affidavit in opposition. The background to the case was that the Applicant
issued a Writ of summons against Dr. Solomon Fiah and Mrs. Marian Fiah and
sought three reliefs namely:— <o:p></o:p>" (1) A declaration
that the purported Customary and Ordinance Marriage between the first and
second defendants is null and void and of no effect. <o:p></o:p>"(2) An order directed
at the 2nd Defendant to vacate the Plaintiff's matrimonial home with immediate
effect. <o:p></o:p>(3) Costs" <o:p></o:p>The
Plaintiff/Applicant herein gave her evidence and was cross-examined by counsel
for the two defendants. It is of interest to note that the two Defendants
entered Appearance by one Lawyer and filed one common statement of defence. At
the close of the Plaintiff/s case, 1st defendant was invited to mount the
witness box to open his case, but he informed the Court that he had been
ordained a Rev. Minister by the International Able Ministers Network, that as a
result he does not want to context the suit brought against him by Plaintiff.
2nd Defendant also informed the Court that if 1st defendant was not going to
contest, the suit she will also not contest. The trial judge then went ahead
and gave judgment as follows, "Under the circumstances entered Judgment in
favour of the plaintiff against 1st and 2nd defendants jointly and severally as
per the endorsement on the writ of summons. I award Plaintiff cost of GH¢
500.00". <o:p></o:p>The
above judgment as it stood did not make any pronouncement on the desired status
of the house as a matrimonial house, the absence of which the Plaintiff cannot
be put in the house by the court. Had the Court resolved Issue No. 7 raised by
the Plaintiff/Applicant as was set down as one of issues for trial among
others, the matter would have been resolved. <o:p></o:p>Issues
No.7 provided as follows:— <o:p></o:p>"7 whether or not H/No.
AW4, Community 12, Tema, built by the 1st Defendant is the Matrimonial home of
the plaintiff". <o:p></o:p>This
issue is in the form of a declaration which requires the Court to make a
pronouncement to the effect that the house numbered AW4 Community 12 Tema is
the Matrimonial home of the Plaintiff and the 1st Defendant ie Dr. Solomon
Fiah. The issue also makes a presumption that the House is issue was built by
the said Dr. Solomon Fiah, the 1st Defendant herein. <o:p></o:p>The
full judgment of the court was simple, short and straight forward as follows:— <o:p></o:p>"Plaintiff closed her
case. When 1st defendant was put in the witness box to open his case he
informed the court that he had been ordained a Rev. Minister by the
International Able Minsters Network that as a result he does not want to
contest the suit brought against him by Plaintiff. 2nd Defendant also informed
the court that if 1st defendant has decided not to contest the suit then, she
is not going to contest the suit either. Under the circumstance I enter
judgment in favour of plaintiff against 1st and 2nd defendants jointly and
severally as per the endorsement on the writ of summons I ward plaintiff cost
of GH¢500.00" <o:p></o:p>The
nullification of the customary and ordinance marriage between the 1st Defendant
and 2nd Defendant did not make House No. "AWE4 Community 12, Tema, the
Matrimonial home of the Plaintiff. In fact the said House No. AWE4 Community
12, Tema is not even mentioned at all in the endorsement on the writ of summons
and the plaintiff could not be given what she has not asked for. I have only made
effort to assume that the house under reference is House No "AWE 4,
Community 12, Tema" just because it was raised as the Issue No.7 in the
application for Direction however the court did not make any pronouncement on
the status of House NO. AWE 4 community 12, Tema. <o:p></o:p>It
should also not be assumed that the mere fact that there is no valid marriage
existing between the two defendants in the suit show that they cannot own a
property together having stayed together since 1983. For the reasons stated
above I would say that the relief number 2 in the endorsement is ambiguous <o:p></o:p>