ADJEI v.

FORIWAA
[1981] GLR 378

Division: HIGH COURT, KUMASI

Date: 18 MARCH 1980
Before: ROGER KORSAH J.

Customary law—Husband and wife—Children—Right to occupy matrimonial home— Children of

matrilineal system belong to mother’s family and therefore without personal right of
occupation—Possible for court to order father to provide accommodation—Continued occupation of
matrimonial home subject to good behaviour.

Injunction—Equitable relief—Jurisdiction to give—Court not restricted to granting or refusing specific

remedy sought—Court entitled to make any order dictated by conscience and demanded by justice of the
case.

Customary law—Husband and wife—Divorce—Jurisdiction—Courts not entitled to entertain petition for

customary divorce until enactment of Act 367—Provisions of Act 367 deemed applicable in petitions for
customary divorce—Matrimonial Causes Act, 1971 (Act 367).

[p.379] of [1981] GLR 378

HEADNOTES
Held:
(1) the rights of children of a customary law marriage to remain in the matrimonial home depended on
their mother’s personal right of occupation in relation to that matrimonial home. Customary law
knew no personal right of occupation by a customary wife. And as under a matrilineal system, to
which the parties belonged, children belonged to their mother’s family, they could, likewise,
therefore have no personal right of occupation of the matrimonial home. The court, for their
protection might order that the father do provide them with accommodation either in the
matrimonial home or elsewhere, but their continued occupation of the matrimonial home was
clearly to be subject to good behaviour. In the instant case, it had been established that the
conditions which prevailed in the matrimonial home were such as made it quite intolerable for the
defendant and his new wife to continue sharing the home with the adult children of the previous
customary marriage. The children were therefore to remove themselves from the matrimonial home
within 28 days.
(2) Whenever an application was made to a court for an order granting an equitable relief, the court
was not restricted in any way to the granting or refusal of the specific remedy sought but might
make any such order as conscience dictated and the justice of the case demanded. Consequently,
even though the application by the defendant-husband was for an order for the plaintiff-wife and
her three daughters by him to appear before the court and give an undertaking to be of good
behaviour whilst residing in the matrimonial home, it was still open to the court to order the
 removal of the children from the matrimonial home because of the changing circumstances.
Obiter. Until the enactment of the Matrimonial Causes Act, 1971 (Act 367), the courts could not entertain
a petition for dissolution of a customary law marriage. The High Court could be requested to ascertain
whether there was a valid customary law marriage or whether such a marriage had been dissolved
according to custom. In the instant case, the cross-petition by the defendant, being one for the dissolution
of a customary law marriage, the defendant must be deemed to have requested the court to apply the
provisions of Act 367 to his marriage. In applying the provisions of the Act to a customary law marriage,
the principles of divorce law upon which those provisions depended, would necessarily have to be
considered and applied, if justice, equity and good conscience so demanded.

CASES REFERRED TO
(1) Phillips v. Phillips [1973] 1 W.L.R. 615; [1973] 2 All E.R. 423, C.A.
(2) Northledge v. Northledge (1890) 70 L.T. 815.
(3) Willmott v. Willmott [1921] P. 143; 90 L.J.P. 206; 125 L.T. 27; 37 T.L.R. 429; 65 S.J. 358.
(4) Hill v. Hill [1916] W.N. 59.
(5) Stevens v. Stevens (1907) 24 T.L.R. 20; 51 S.J. 825.
(6) Richman v. Richman [1950] W.N. 233; 100 L.J. 245; 66 (Pt. 2) T.L.R. 44; 94 S.J. 371,

NATURE OF PROCEEDINGS
APPLICATION by the defendant for an order exacting an undertaking from the plaintiff and three of her
children to be of good

[p.380] of [1981] GLR 378

behaviour during the hearing of a cross-action for the dissolution of the customary marriage of the parties.

COUNSEL
Asumadu-Sekyi for the plaintiff.
S. K. K. Sotomey for the defendant.

JUDGMENT OF ROGER KORSAH J.

The plaintiff and defendant are married under the customary law. On 6 April 1978, the plaintiff
commenced this action in which she seeks’.
“(a) declaration that the customary marriage between the plaintiff and defendant still subsists;
(b) declaration that House No. 6, Block L, Dichemso, is the joint property of the plaintiff and defendant
and is the matrimonial home of their marriage;
(c) recovery from the defendant of a sum of ¢2,850 which the plaintiff has expended on herself by way of
maintenance since January 1978 and on the children of the marriage;
(d) order compelling the defendant to provide reasonably sufficient money for the future education or
maintenance of the said children of the marriage and future maintenance of the plaintiff; and
(e) order of perpetual injunction restraining the defendant, his agents, servants and or workmen from
ejecting the plaintiff from House No. 6, Block. L, Dichemso, Kumasi— the joint property of the
 plaintiff and the defendant and the matrimonial home of the said marriage.”

The defendant, on his part, caused a writ of summons to issue out of the Magistrates Court, Grade II,
Kumasi, against the plaintiff and her parents as the defendants, wherein he claimed the following
remedies:
“(1) an order to compel the defendants to take necessary steps according to custom to dissolve the
marriage between the plaintiff and the third defendant or an order dissolving the said marriage;
(2) an order ejecting the third defendant from the matrimonial home, i.e. House No. 6, Block L,
Dichemso, Kumasi; and
(3) an, order of injunction to restrain the third defendant from entering the said house.”

It is clear from the first relief endorsed on his writ filed in the magistrate’s court that the defendant herein
was seeking a dissolution of his marriage with the plaintiff. And it is equally clear from the first relief
endorsed on the plaintiff’s writ of summons herein that she resists any petition praying for an order
dissolving the said

[p.381] of [1981] GLR 378

marriage. The rest of the reliefs sought by both parties in their separate actions are reliefs, in the main,
consequential to whether or not the marriage is dissolved.
The magistrate’s court heard and entered judgment in favour of the defendant for the reliefs endorsed on
his writ in spite of protestations by the plaintiff that the High Court was seised of a cause raising the same
or similar issues. An appeal by the plaintiff’s parents, who were the first and second defendants in the
said action, was dismissed by the High Court, when all that was pending before the court was an
application to stay execution, for the curious reason that the appeal was not pending before the High
Court.
On 28 August 1978, relying on the order of the High Court dismissing the appeal, the defendant went into
execution and ejected the plaintiff and her children from the matrimonial home. The order dismissing the
appeal by the plaintiff’s parents was vacated on 30 November 1978.
The proceedings in the magistrate’s court were by consent removed into the High Court and the two
actions consolidated. On 16 February 1979, this court disallowed an application to commit the defendant
herein for contempt and instead ordered that the plaintiff and her said six children be reinstated in the
matrimonial home - House No. 6, Block. L, Dichemso, Kumasi, within seven days. This court further
imposed an injunction restraining the defendant herein from ejecting the plaintiff and her children by him
from the said house pending the hearing and final determination of this suit.
In paragraphs (18) and (19) of her affidavit in support of her application for attachment or committal or
both of the defendant for contempt, the plaintiff deposed to the fact that she and her children had been
ejected from the chamber and hall which they occupied in the matrimonial home. And the order of
injunction related to the said premises occupied by them. The said order was also made in the belief that it
would be possible for the parties herein to live, if not in amity, at least without interference from, or
molestation by each other. This apparently has not been the case. Hence this application by the defendant
for an order exacting an undertaking from the plaintiff and three of her children - Yaa Adomakoh, Afua
Afrah and Yaa Tiwaah - that they will refrain from continuing their wrongful acts of insulting and/or
otherwise provoking the defendant and his wife and be of good behaviour during the pendency of this
action. The order, which was intended to preserve the status quo pending the determination of this suit,
appears to have opened a new and bitter chapter in the conflict between the parties. No longer did the
uneasy peace prevail. Provocation and open confrontation
[p.382] of [1981] GLR 378

became the order of the day. The affidavits of the parties in support of and against this application
constitute a litany of grievances, abuses and assaults.
The defendant opines that the conduct of Yaa Adomakoh towards his new wife has been such that he was
compelled on one occasion to complain to the Asawasi Police. She was arrested together with her sisters,
but they were released after being warned to be of good behaviour. The defendant also states that the
children above-mentioned insist on cooking upstairs although the facilities for cooking are downstairs. On
one of the occasions that he attempted to stop them from preparing meals upstairs, the said children
quarrelled with him and his new wife and reported him and the said wife to the police. They continue to
cook their meals upstairs.
Yaa Adomakoh in a 37-paragraph affidavit deposed to on behalf of her sisters and herself endeavours to
justify their behaviour and to blame her father and his new wife for all the incidents that have occurred in
the house. She sees no fault on her part or on the part of any of her sisters. She endeavours to justify their
cooking upstairs on an allegation that the defendant has provided them with only one room and a hall in
the house. She does not appear to appreciate that when her mother applied to be reinstated in the
matrimonial home, she claimed that she had been ejected from a chamber and a hall, and that the order of
the court placed them back in the exact chamber and hall.
The defendant, however, avers that he has provided them with a kitchen downstairs but Yaa Adomakoh
and her sisters insist that a kitchen which their mother was using before they were ejected be made
available for their use. They do not recognise the right of a father to restrict children in their user of the
home for the common good of all who reside therein.
Yaa Adomakoh complains that the defendant’s wife prevents them from using the bath- room by entering
it early in the morning to wash clothes and does not leave the bathroom till about 9 a.m. The defendant
replies that he has provided the children with a separate bathroom and toilet facility, but they insist on
using the conveniences reserved for his wife and himself. This also resulted in a misunderstanding which
Yaa Adomakoh took to the Asawasi Police.
Yaa Adomakoh alleges, and the defendant admits the allegation, that he switches off the electric current
in the house at certain times of the day. The defendant explains that it is because the children play records
all day long to disturb them that he switches off the current. Yaa Adomakoh does not accept this
explanation. She is of the view that it is a vicious act on the part

[p.383] of [1981] GLR 378

of the defendant calculated to make such perishables as they have stored in their refrigerator go bad. But
the defendant too has a refrigerator in which he keeps perishables and both fridges are on the same mains.
It would seem that that mutual trust which makes co-existence in one house possible for several persons
has been replaced by suspicion and an eagerness to find fault with each other.
An altercation between Yaa Adomakoh and the defendant’s wife provoked the wife to throw a shoe at
Yaa Adomakoh and when Yaa Adomakoh complained to her father about the wife’s conduct (we are not
told in what words the complaint was couched) the defendant picked up a cane and beat her. The
defendant denies this incident. But even if it were true, is a father not entitled to mete out reasonable
chastisement to his children when they misbehave?
Yaa Adomakoh goes so far as to allege that the defendant once entered their room holding a knife and is
reported by her sisters to have proclaimed his intention of “finishing” Yaa Adomakoh that day, but for the
fact that she was absent. Again the defendant denies this allegation, but even if it were true, it only
suggests that an explosive and dangerous situation exists which must be defused.
It is alleged by the defendant that during the A.F.R.C. regime, Yaa Adomakoh took an army captain, a
staff sergeant and another man to the house to kill him. It turned out that the captain knew him and they
left without touching him. Whether this is true or false it demonstrates that there is no love now between
Yaa Adomakoh and her father and each will go to any lengths to damage the other.
It seems that a son of the defendant by another woman, Kwame Kesse Adjei, who was not subject to this
court’s order of injunction restraining the defendant from ejecting the plaintiff and his children by her
from the matrimonial home, has returned to occupy a room in the house. It is alleged that the defendant
falsely reported to the police that his said son had assaulted and caused injury to his wife. The son was
remanded in custody and the case is still pending at the District Court, Grade II, Oforikrom. I will,
therefore, make no pronouncement which may prejudice a fair hearing of the case in the magistrate’s
court.
In Phillips v. Phillips [1973] 1 W.L.R. 615 where the English Court of Appeal ordered a divorced
husband to leave the jointly-owned house which he still occupied with his former wife, Davies L.J. said
that the question the court had to ask itself was, “Has it been established that the conditions which now
prevail in the

[p.384] of [1981] GLR 378

matrimonial home are such as to make it quite intolerable for the wife and her 14-year old son to continue
to share that accommodation with the husband?” The question is the same whether the proceedings are
pending or have been concluded. And the court will restrain one spouse from moltesing the other during
the pendency of a suit: see Northledge v. Northledge (1890) 70 L.T. 815. Thus in Willmott v. Willmott
[1921] P. 143 the application, of a wife-petitioner in a suit for restitution of conjugal rights, to restrain her
husband by injunction from keeping her out of the matrimonial home was dismissed. And in Hill v. Hill
[1916] W.N. 59 a husband was granted exclusive use of the matrimonial home subject to providing a
furnished house for his wife and children. The court may also restrain another member of the family from
molesting one of the spouses. And in Stevens v. Stevens (1907) 24 T.L.R. 20 a son was restrained by
injunction from entering the mother’s house.
All the above decisions relate to marriages contracted under a statute. The courts of this country have
since their inception been guided by the same principles that the English courts follow in respect of
marriages contracted under the Marriage Ordinance Cap. 127 (1951 Rev.). And by section 41 (2) of the
Matrimonial Causes Act 1971 (Act 367) it is provided that:
“41. (2) On application by a party to a marriage other than a monogamous marriage, the court shall apply
the provisions of this Act to that marriage, and in so doing, subject to the requirements of justice, equity and
good conscience, the court may—
(a) have regard to the peculiar incidents of that marriage in determining appropriate relief financial
provision and child custody arrangements;
(b) grant any form of relief recognised by the personal law of the parties to the proceedings, either in
addition to or in substitution for the matrimonial reliefs afforded by this Act.”

In my view any party to a marriage other than a monogamous one who seeks a relief from this court,
which but for the above-quoted section the court could not have entertained must be deemed to have
made an application to the court to apply the provisions of this Act to the marriage. But for the provisions
of this Acts it was not the province of the High Court to entertain petitions for divorce where the marriage
was one contracted under customary law. Customary law divorce was by act of the parties
[p.385] of [1981] GLR 378

not by a decree of the court. The court could be requested to ascertain whether there was a valid
customary law marriage or whether such a marriage had been dissolved according to custom. But the
customary procedures for the dissolution of customary law marriages did not lend themselves to a
dissolution of the marriage by a court action. The courts, therefore, until the enactment of Act 367, could
not entertain a petition for the dissolution of a customary law marriage.
The cross-petition by the defendant, being one for the dissolution of a customary law marriage, the
defendant must be deemed to have requested the court to apply the provisions of Act 367 to his marriage.
In applying the provisions of the said Act to a customary law marriage, the principles of divorce law upon
which those provisions depend will necessarily have to be considered and applied, if justice, equity and
good conscience so demand.
As stated earlier in this ruling, upon an allegation by the plaintiff that she and her children had been
ejected by the defendant from the chamber and hall which they occupied in the matrimonial home, this
court ordered the defendant to allow them to return to the said chamber and hall and restrained him by
injunction from ejecting them. That order was made on 16 February 1979. More than a year has elapsed
since that order was made. From the several affidavits filed it is clear that the defendant has made
available for the occupation of the plaintiff and her said children a chamber and hall as ordered by the
court. The plaintiff’s children as evidenced by this application have, in pursuance of that order, moved to
occupy the chamber and hall which it was alleged they occupied with their mother (the plaintiff) and from
which they were ejected by the defendant. Yet the plaintiff has failed to move back to the matrimonial
home. In Richman v. Richman [1950] W.N. 233 the wife was a half-owner of the matrimonial home.
There were cross-charges in a divorce suit. She left the matrimonial home. Later she applied pending suit
for an injunction to restrain her husband from entering the home which he continued to occupy, though
she had left it. The application was dismissed.
The present application is not brought by the plaintiff, but one fact is common to both the Richman case
(supra) and this one; that the wife has left the matrimonial home and continues to stay out. The rights of
her children to remain in the matrimonial home depend on her personal right of occupation in relation to
that matrimonial home, the marriage being a customary law one. Customary law knows no personal right
of occupation by a wife. Under a matrilineal system, to which the parties herein belong,

[p.386] of [1981] GLR 378

children belong to their mother’s family. The children can, likewise, therefore have no personal right of
occupation of the matrimonial home. The court, for the protection of children, may order that the father
do provide them with accommodation either in the matrimonial home or elsewhere, but their continued
occupation of the matrimonial home must clearly be subject to good behaviour.
To my mind, it has been established that the conditions which now prevail in the matrimonial home are
such as to make it quite intolerable for the defendant and his wife to continue sharing the home with Yaa
Adomakoh and Afua Afrah. Both girls are adults and are working. Yaa Tiwaah is a school-girl and has
not featured much in any of these quarrels. I am of the view that the conditions prevailing in the
matrimonial home ought not, having regard to the welfare of Yaa Tiwaah, to be allowed to continue.
The plaintiff’s opposition to this application by the defendant is garnished with technical objections. It
was contended on behalf of the plaintiff that she had been unable to return to the matrimonial home
because the defendant had not fully complied with the orders of this court; that as the order he seeks is of
the nature of an equitable relief, it cannot be granted him unless his hands are clean—that is to say, unless
he has complied with the orders of this court.
Now, the plaintiff by her application complained that the defendant had ejected her from a chamber and
hall which she occupied with her children in the matrimonial home. The order of the court was specific,
and related to her being allowed to return to the said chamber and hall. The said chamber and hall were
made available for her return, and her children have taken up residence in the said apartments. If there
was anything else she required of the defendant, she did not apply for it and no order of this court was
made to cover it. To my mind, the defendant has fully complied with the order of this court dated 16
February 1979.
Counsel for the plaintiff also contended that the application before the court is for the plaintiff and her
three-named daughters to appear before the court and give an undertaking to be of good behaviour, and
not that the grown-up children be removed from the house. It is not therefore, open to this court to order
the removal of the said children from the matrimonial home as the court seems to indicate. In my opinion,
whenever an application is made to a court for an order granting an equitable relief, the court is not
restricted in any way to the granting or refusal of the specific remedy sought, but may make any such
order as conscience dictates and the justice of the case demands. And I think that

[p.387] of [1981] GLR 378

when technical objections which do not go to the root of the matter stand in the way of justice, they must
be swept aside like so many impediments obscuring the path to justice.
The last technical objection raised by counsel for the plaintiff was that an injunction or other interim relief
could not be granted when the date for hearing the case was not in the distant future, but close and
ascertained. I do not know of this rule and no authority was cited in support of it. As far as I am aware,
whenever on an application by a party a court deems it necessary, an injunction may be granted at any
time before trial, during trial and, in an appropriate case, even after judgment.
However, I agree with counsel for the plaintiff that as the plaintiff is not living in the matrimonial home
and no allegation of misbehaviour is levelled against her, no order whatsoever can be made against her.
But the occupation by the children of the chamber and hall in the matrimonial home is in pursuance of the
order made in her favour on 16 February 1979, and which order she herself has not taken advantage of. It
is therefore ordered as follows: This court’s order dated 16 February 1979 is hereby discharged. Yaa
Adomakoh and Afua Afrah are to remove themselves from the matrimonial home within 28 days from the
date hereof. The said two adult children are to give an undertaking to be of good behaviour for the 28
days during which they remain in the matrimonial home within 24 hours of this order. In lieu of such an
undertaking they are to be ejected forthwith.
I make no order as to costs.

DECISION
Application granted.
K. A. A. M.