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ADA MAUDE BANKOLE BRIGHT
V.
H. C. BANKOLE BRIGHT
THE WEST AFRICAN COURT OF APPEAL HOLDEN AT FREETOWN, SIERRA LEONE
2OTH DAY OF MARCH, 1943
2PLR/1943/10 (WACA)
OTHER CITATION(S)
2PLR/1943/10 (WACA)
(1943) IX WACA PP. 48 – 49
LEX (1943) – WACA PP. 48 – 49
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BEFORE THEIR LORDSHIPS:
KINGDON, C.J., NIGERIA
MARTINDALE, J.
BRACE, J.
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BETWEEN:
ADA MAUDE BANKOLE BRIGHT – Plaintiff-Appellant
AND
H. C. BANKOLE BRIGHT – Defendant-Respondent
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REPRESENTATION
H. J. L. Boston — for Appellant
E. F. Luke with S. A. Benka-Coker — for Respondent
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
FAMILY LAW:- Pleadings — Wife’s separate property — Claim against husband — Statute of Limitations pleaded — husband’s status as trustee not pleaded
ESTATE ADMINISTRATION AND PLANNING:- Wife claim against her husband for a declaration that certain household furniture and personal effects were her separate property — Claim for their return and damages for their detention — Ground that the husband was the wife’s trustee in respect of the property claimed — Need to plead and prove trust — Failure thereto — Legal effect
CHILDREN AND WOMEN LAW:- Women and Justice Administration — Household property — Wife’s assertion of ownership claim thereon against husband — Basis of claim that husband is wife’s trustee — Procedural pre-condition that must be satisfied
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CASE SUMMARY
The plaintiff claimed against her husband for a declaration that certain household furniture and personal effects were her separate property. She claimed their return and damages for their detention. The cause of action arose in April-May, 1932. The husband pleaded that the claim was statute barred. It was argued contra, in the Appeal Court and the Court below, that this plea was not available as the husband was the wife’s trustee in respect of the property claimed. The trial Court upheld the plea and dismissed the claim.
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DECISION OF THE WEST AFRICAN COURT OF APPEAL
Held (dismissing the Appeal):
(1) That the allegation that the husband was a trustee was an allegation of a material fact which should have been made in the plaintiff’s pleadings.
(2) The plaintiff was bound by her pleadings, and as they contained no averment that her husband was her trustee, it was not competent for her counsel to argue the point of law depending on the supposed trusteeship.
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MAIN JUDGMENT
The following joint judgment was delivered:-
KINGDON, C.J., NIGERIA, MARTINDALE AND BRACE, JJ.
In this case the claim of the plaintiff-appellant was for:-
“1. A declaration that the household furniture and personal effects which were in her house at No. 27, Garrison Street, Freetown, and recently removed therefrom by the defendant are her separate property.
“2. An injunction to restrain the defendant from dealing with the said furniture and personal effects in any way inconsistent with the plaintiff’s right of ownership.
“3. A return of the said furniture and personal effects to the plaintiff.
“4. Damages for detention and removal of the said goods”.
In his defence, the defendant-respondent pleaded, inter alia, that the claim was statute barred by the Statute of Limitation, 1623, Section 3. The soundness or otherwise of this plea was argued upon the pleadings and in the result the learned Chief Justice, who tried the case, upheld the plea and dismissed the action.
Against that decision the plaintiff appeals to this Court, and her main ground of appeal is that the Court should have upheld the contention, which her counsel put forward by argument, that the defendant, her husband, could not plead the Statute because by operation of law he was her trustee in respect of the property claimed.
The learned Chief Justice, rightly, in our opinion, rejected this contention on the ground that the plaintiff’s pleadings did not ever that the defendant was her trustee and nowhere disclosed that she relied upon such relationship. He says in his judgment:-
“There is no averment in the Statement of Claim that in regard to any of these goods the legal estate of ownership was not in the plaintiff but in her husband as her trustee at the date the cause of action arose or afterwards. It is averred that the goods in question, at the date when the cause of action arose, were her furniture and personal effects. She says they were hers in fact, and by law they could be at that date so there is no reason why the Court should not accept her allegation of ownership at the material date”.
Order XX Rule 4 of the Rules of Court provides that “Every pleading shall contain x x x a statement x x x of the material facts on which the party pleading relies. x x x “. The fact, if it was a fact, that defendant was plaintiff’s trustee was not only material but vital to the plaintiff’s case; if she intended to rely upon it, it was essential that she should aver it in her pleading; and this is no mere technicality due possibly to an oversight. If the averment had been made, it obviously might (and respondent’s counsel tells us certainly would) have been rebutted by a counter-averment on the part of the defendant. This being so we agree with the learned Chief Justice that it was not competent to plaintiff’s counsel to argue the points of law involved on the basis that defendant was plaintiff’s trustee, but that he was bound by the pleadings.
We need only add in regard to ground 3 of the Grounds of Appeal that we agree with the learned Chief Justice’s finding that the cause of action arose in April or May, 1932.
The appeal is dismissed with costs to be taxed.
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