KOFI TABURY vs. MADAM ADWOA YEBOABA [2013]DLCA3631

Date	2013-01-24
Suit No.	CIVIL APPEAL NO. H1/13/2012
Citation No.	[2013]DLCA3631

MARFUL-SAU JA (PRESIDING)

DENNIS ADJEI JA

BARBARA ACKAH-YENSU JA

EMMANUEL ARTHUR FOR THE DEFENDANT/APPELLANT

FRIMPONG BOAMAH FOR THE PLAINTIFF/RESPONDENT

[2013]DLCA3631
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													<main id="main" class="content" style="min-height: 60rem" >KOFI TABURY<o:p></o:p>vs.<o:p></o:p>MADAM ADWOA YEBOABA<o:p></o:p>&nbsp;[COURT OF APPEAL, CAPE
COAST]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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CIVIL
APPEAL NO. H1/13/2012&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; &nbsp; &nbsp; &nbsp; &nbsp;&nbsp;DATE: 24TH
JANUARY, 2013<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p>EMMANUEL ARTHUR FOR THE
DEFENDANT/APPELLANT<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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</div>CORAM: <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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MARFUL-SAU,
JA (PRESIDING) DENNIS ADJEI, JA AND BARBARA ACKAH-YENSU, JA<o:p></o:p>

</div>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <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">

JUDGMENT<o:p></o:p>

</div>MARFUL-SAU, JA:-
The fundamental issue raised in this appeal is whether a husband, in this case
the plaintiff/respondent, can successfully maintain an action for declaration
of title to a matrimonial property acquired during the subsistence of the
marriage against a wife, in this case the defendant/ appellant, at a time the
parties are still joined together in marriage. The collateral issue that flows
from the fundamental issue is whether it is right for a court to grant an
injunction against a wife who is co-habiting with the husband in a matrimonial
property from interfering or having anything to do with the said property,
simply because the wife has raised a protest to the husband’s intention to sell
or rent the matrimonial property?<o:p></o:p>The
undisputed facts of this case is briefly this: The parties at the time the writ
was issued were married couple and are still married with seven children having
married for 30 years, as at 18th December 2009 when respondent was
cross-examined in this case. &nbsp;The
respondent who had three other wives beside the appellant herein claimed he was
the sole owner of Plots 15, 16 , 17 and 18 all at Fijai. Having gifted some
other properties of his to the other wives he decided to gift the house on plot
No. 15 to his children with the appellant. At a funeral in the hometown of the
respondent, a customary ceremony was held by which the respondent gifted the
house on plot No. 15 to the children of the appellant. The appellant
accompanied by family elders then performed the aseda custom. This was confirmed
by the respondent when he stated at page 47 of the record of appeal as
follows:-<o:p></o:p>‘’They
were represented by their mother. She gave customary aseda on behalf of the
children in the form of a sheep, yams, vegetables and cash of c100, 000 (one
hundred thousand old cedis). The head of my family Mr. Kweku Dwaa was present;
so was my queen mother, Akosua Anima.’’<o:p></o:p>&nbsp;The respondent later revoked the said gift to
his children through a letter which was tendered as Exhibit D in the trial. As
revealed by the record, the appellant opposed respondent’s attempt to rent out
the storey building on plot No. 15. At page 51 of the record the respondent
testified thus:-<o:p></o:p>‘’I
brought defendant to court because she was laying adverse claim to the building
and wrongfully interfering with my right to rent it out for a loan to pay my
debts. So I brought this action seeking:-<o:p></o:p>1.
A declaration of title to the house on plot No. 15 Fijai, Takoradi<o:p></o:p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; 2.
An order of perpetual injunction.’’<o:p></o:p>The
appellant denied the claim of the respondent and contended that the building on
plot No. 15 was acquired through their joint contribution. She testified that
the property was acquired through the business of selling salted shack fish
popularly called ’’KAKO’’ . The respondent was based in Mauritania so he would
export the salted fish to Ghana and the appellant and some workers of the
respondent will organise the sale and the proceeds sent to respondent for
further supplies. As a result of the business an account was opened by which
the appellant could withdraw money for the construction of the property on plot
No. 15 and others.<o:p></o:p>From
evidence on record there were two buildings on plot No 15. A small building
where the appellant was residing with the respondent and an uncompleted storey
building which the respondent gifted to the children of the appellant.
Appellant stated that her father advised her and the husband to acquire a
parcel of land to build their own house. She then discussed it with the respondent
and upon his agreement, she used some of the proceeds from the ‘’kako’’
business to purchase Plot No. 15. At the time, the respondent was away in
Senegal, but the lease was made in the name of respondent on the advice of her
father. &nbsp;Appellant further claimed she
supervised and financially contributed to the construction of the building, as
the respondent was most times outside the country.<o:p></o:p>At
the end of the trial the Circuit Court entered judgment for the respondent
husband, declaring title in plot No. 15 in his favour and perpetually
restrain</main>