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ABBAPESIWA AND ANOTHER
V.
MARGARET KRAKUE AND OTHERS
THE WEST AFRICAN COURT OF APPEAL HOLDEN AT ACCRA, GOLD COAST
28TH DAY OF JUNE, 1943
2PLR/1943/9 (WACA)
OTHER CITATION(S)
2PLR/1943/9 (WACA)
(1943) IX WACA PP. 161 – 162
LEX (1943) – WACA PP. 161 – 162
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BEFORE THEIR LORDSHIP
DONALD KINGDON, C.J., NIGERIA
PETRIDES, C.J., GOLD COAST
GRAHAM PAUL, C.J., SIERRA LEONE
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BETWEEN:
ABBAPESIWA AND J. ETTSON ANSAH Jr. EXECUTRIX AND EXECUTOR RESPECTIVELY OF THE WILL OF FRANK KRAKUE (DECEASED) — Appellant
AND
MARGARET KRAKUE AND ELDER DEMPSTER LINES LIMITED — Defendant
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ORIGINATING COURT(S)
Appeal from the decision of the Supreme Court (M’Carthy, J., Presiding)
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REPRESENTATION
F. Awoonor Williams — for Plaintiffs
D. M. Abadoo with C. E. M. Abbensets and R. S. Blay — for 1st Defendant
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
FAMILY LAW:- Married woman — Business Partnership venture between husband and wife — Legal validity of – Husband’s right to sue wife — Married Women’s Property Ordinance (Cap. 109) (Gold Coast), sections 2, 3 and 4 in review
COMMERCIAL LAW:- Married Women’s Property Ordinance (Cap. 109) enacted in 1890 — Power of married women to make contracts, and to sue and be sued, and to hold and deal with property just like their single women counterpart — Statutory basis thereto — Declared objects of the Ordinance to enable married women to make contracts — Legal effect
CHILDREN AND WOMEN LAW:- Women in Business — Legal basis for a woman’s right to sue and be sued for any debt incurred by her — Whether extends to suits by her against her husband
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DECISION OF THE WEST AFRICAN COURT OF APPEAL
Case stated.
Held:
(1) A husband and wife are capable under the law in force in the Gold Coast of being partners.
(2) A husband can sue his wife under the law in force in the Gold Coast.
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MAIN JUDGMENT
The following opinion was given: –
KINGDON, C.J., NIGERIA; PETRIDES, C.J., GOLD COAST; AND GRAHAM PAUL, C.J., SIERRA LEONE (READ BY THE PRESIDENT)
In this case stated M’Carthy, J. has not expressly set out the, questions upon which he asks for our opinion, but in effect they are the following two, viz:-
(1) Are a husband and wife capable under the law in force in the Gold Coast of being partners?
(2) Can a husband sue his wife under the law in force in the Gold Coast?
The answer to both questions depends upon the interpretation to be put on the provisions of the Married Women’s Property Ordinance (Cap. 109) enacted in 1890. The three operative sections of that Ordinance read as follows:-
“2. The wages and earnings of any married women acquired or gained by her in any employment, occupation, or trade, in which she is engaged or which she carries on separately from her husband, and all investments of such wages, earnings, or property, shall be deemed and taken to be property held and settled to her separate use, independent of any husband to whom she may be married, and her receipts alone shall be a good discharge for such wages, earnings, money, and property.
“3. Full power is hereby given to a married woman to maintain an action in her own name for the recovery of any wages, earnings, money, or property, and she shall have in her own name the same remedies against all persons whomsoever for the protection and security of such wages, earnings, money and property, and of any chattel or other property purchased or obtained by means thereof for her own use as if such wages, earnings, money, chattels, and property belonged to her as an unmarried woman.”
“4. It shall be lawful for any married woman to maintain an action in her own name for the specific performance of any contract, or damages for the breach of any contract, and to be sued in her own name and held personally responsible for any breach of contract made by her, or any debt incurred by her, as if she were an unmarried woman.”
In connection with the words in section 2 “any employment, occupation or trade in which she is engaged or which she carries on separately from her husband”, it should be noted that if a woman trades as a partner with her husband “for her own benefit she will in that sense be trading separately from her husband“. (Lush on Husband and Wife 4th Edition p. 121.)
No less important than the wording of the sections of the Ordinance is the wording of the title which is “An Ordinance to confer power on Married Women to make contracts and hold and deal with property.”
And of the preamble to the Ordinance as enacted (but not reproduced in the Revised Edition of the Laws), which reads:-
“Whereas it is expedient that married women should have the same power as single woman to make contracts, and to sue and be sued, and to hold and deal with property.”
It will be observed that, although one of the declared objects of the Ordinance is to enable married women to make contracts, none of the operative sections contains an express enactment to that effect. The power to make a contract has therefore to be implied from the other provisions. Section 4 by making it lawful for a married woman to maintain an action in her own name, etc. impliedly confers upon her the power to enter into a contract.
There is nothing in the section limiting such power to contracts with persons other than her husband, we are therefore of opinion that that section does enable her to enter into a contract of partnership with her husband. Similarly the later provisions of the section enabling her to be sued for any debt incurred by her do not exclude suits by her husband. We therefore answer the two questions propounded above as follows: –
(1) Yes.
(2) Yes.
The plaintiffs are awarded costs of the proceedings in this Court assessed at £32 6s 0d.
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