Abbapesiwa & Ors V. Margaret Krakue & Anor (1943)
LawGlobal Hub Judgment Report – West African Court of Appeal
Married woman—Business partnership between husband and wife—Husband’s right to sue wife—Married Women’s Property Ordinance (Cap. 109) (Gold Coast), sections 2, 3 and 4. 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.
F. Awoonor Williams for Plaintiffs.
D. M. Abadoo (with him C. E. L Abbensetts and R. S. Blay) for 1st Defendant.
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 :—
- Are a husband and wife capable under the law in force in the Gold Coast of being partners?
- 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.
- 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.”
- 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 : —
The plaintiffs are awarded costs of the proceedings in this Court assessed at £32 6s Od.