KARIM VRS SALAAM (A1/04/24) [2024] GHADC 621 (14 October 2024)

IN THE DISTRICT COURT 2, TAMALE HELD ON MONDAY 14TH OCTOBER, 2024 BEFORE HIS WORSHIP D. ANNAN ESQ. SUIT NO. A1/04/24 BETWEEN ALIATU ABDUL KARIM - PLAINTIFF AND ABU ABDUL SALAAM - DEFENDANT JUDGMENT INTRODUCTION 1. This judgment may, if not, be one of my shortest judgments so far. Reason, after a careful read of the evidence, I think I will go straight to the conclusion after recounting the claim of the parties. 2. The plaintiff and the defendant are presently married. On 25th October, 2023 the plaintiff took out a writ of summons against the defendant for the following reliefs: “a. A declaration of title to house on Plot No. 13, Block B, situate in Kanvili- Tunaayili, Tamale. b. Recovery of possession of house on Plot No. 13, Block B, situate in Kanvili- Tunaayili, Tamale. c. A perpetual injunction restraining the defendant, his successors, agents, privies, workmen or whosoever from interfering with the plaintiff’s possession and peaceful enjoyment of house on Plot No. 13, Block B, situate in Kanvili-Tunaayili, Tamale. d. Damages for trespass. - 1 - e. Legal costs.” 3. The defendant mounted a 21 paragraphed defence filed on 24th November, 2023, basically disputing the claim of the plaintiff. 4. As earlier mentioned, I have carefully evaluated the evidence and I must point out that the parties have no business being in court. This is because, the parties are presently married. The plaintiff has run to this court for a declaration of title and recovery of a property that was acquired as the marriage subsists. How is it possible for this court to do so, and also to consider a perpetual injunction and damages for trespass against the defendant? Honestly, I am surprised at the claims. 5. From the evidence, plaintiff at paragraph 3 of her Statement of Claim filed on 16th November, 2023 stated that the parties have “separated” sometime in 2023. Her witnesses, particularly, PW2, PW4 and PW5 all recounted that the marriage is pending. Defendant in his defence also admitted that the marriage is pending, see paragraph 19 of his Statement of Defence. 6. With due respect to the lawyers in this case, I wonder why they have called upon this court to share properties between the parties herein, when clearly the marriage between them is subsisting. Separation does not amount to an outright divorce. I don’t even know the type of marriage and I will not be an agent for a divorce. The law regarding properties acquired during the subsistence of a marriage is that such properties are presumed to be jointly acquired, unless evidence is led to the contrary, see the recent case of Peter Adjei v Magaret Adjei [2021] DLSC 10156 per His Lordship Appau JSC (delivering the majority decision). Hence, it is only after the dissolution of the marriage that the matrimonial properties are so determined. - 2 - 7. I will, therefore, not go into the merit of this case, save to say that the action is premature. I will recommend to the parties to reconcile their difference and foster a harmonious marriage, so that the younger ones will follow. 8. On that note, I hereby dismiss the case as being premature. No order as to costs. H/W D. ANNAN ESQ. [MAGISTRATE] Reference: Peter Adjei v Magaret Adjei [2021] DLSC 10156 - 3 -