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CHEBIB v. CHEBIB


  • New
  • 1961-11-09
  • HIGH COURT
  • GLR 641-643
  • Print

ACOLATSE, J.


Summary

Divorce?-Maintenance of wife and children?-Secured maintenance.

Headnotes

After a wife-petitioner had won a petition for divorce on the ground of the husband's adultery, and had been given custody of the four children of the marriage, the husband agreed to pay "maintenance for the petitioner: G60, maintenance for the four children of the marriage (G35 each):?- G140." This agreement was reduced into writing and signed by the solicitors for the parties. Clause 5 of the document read:"5. All the sums payable under this consent order are hereby secured by the respondent's shares in the Standard Electric Company of Ghana."The wife-petitioner applied to the court to have the terms of the agreement incorporated in a consent order of the court, and also for an order that a trust be set up in respect of the shares referred to in clause 5 so as to ensure the safety of the security. The respondent did not object to the first part of the claim, but opposed the setting up of the trust as highly improper, relying on Barker v. Barker [1952] P. 184.

Judgement

APPLICATION by wife-petitioner to establish a trust in respect of the husband's shares charged to secure the payment of maintenance.

JUDGMENT OF ACOLATSE J.

The wife-applicant and the respondent in this motion were married on the 14th September, 1947. They lived and cohabited together in divers places and later in Accra, Ghana, and had four children of the marriage. The wife petitioned for, and on the 7th August, 1961 obtained in the High Court of Ghana a decree of divorce on the ground of her husband's adultery. The petitioner and the respondent are domicled in Ghana.

The wife, in her petition to the court for the dissolution of her marriage prayed inter alia (a) that she may be granted the custody of the children of the said marriage, and (b) that she may be granted such secured provisions and sums by way of maintenance for herself and the said children as may be just.

This motion came before the court upon the application of the wife-petitioner for an order of maintenance for herself and her four children within the terms of a "consent" settlement between the husband and wife-petitioner which is attached to the motion and marked A. In that exhibit the terms are clearly set out and a settlement has been reached with regard to the maintenance.

The respondent, by consent, agreed to pay the petitioner the sum of G200 a month by way of maintenance for the petitioner and the four children of the marriage. The said sum is made up as follows: "Maintenance for the petitioner: G60. Maintenance for the four children of the [p.643] marriage (G35 each): - G140". The sum of G60 a month to be paid to the petitioner shall cease in the event of the petitioner getting married at any time, and in case of the boys on their attaining the age of 21 years, and in case of the girls upon their getting married. Clause 5 of the consent settlement provides that "All the sums payable under this consent order are hereby secured by the respondent's shares in the Standard Electric Company of Ghana".

Consequent upon the terms of settlement reached and signed by the solicitors for the parties and sworn to on the 23rd October, 1961, this application was duly filed in the court on the 24th October, 1961. In it the applicant sought from the court that the "consent" settlement for maintenance be made a consent order in this suit and for an order that a conveyancer be instructed to draw up a trust deed in respect of the matter contained in clause 5 of the settlement to secure the maintenance.

Mr. Casely-Hayford, counsel for the respondent, admitted the terms of the consent settlement to be made an order for maintenance in this suit. His objection is against the second part of the petitioner's application for a trust deed to be executed to secure the monthly payment of the maintenance in respect of the specific shares the respondent holds in the Ghana Standard Electric Company as security.

The heart of the whole argument lies in the interpretation of the relevant statutory provisions now in force under section 19 (2) and (3) of the Matrimonial Causes Act, 19501 and the authorities cited by counsel, particularly Barker v. Barker2 and Rayden on Divorce, p. 1030. In the case above mentioned the decision was that "a general charge on all of the `husband's assets' securing the sums in the case for maintenance was highly improper" as being at once "oppressive in effect, uncertain in operation, difficult in enforcement and of doubtful validity". In my view the above decision as to the general charge upon all of the husband's assets in that case does not apply to this application.

This is an application directed mainly to the form of a specific security proposed and offered by the respondent in respect of the shares he holds specifically in the company, and the petitioner seeks the order of the court for the proposal and offer and acceptance to be implemented in a deed to secure the said monthly payment under clause 5 of the settlement as an asset capable of being conveniently charged as security for the agreed sum for the payment of the maintenance to which the respondent had consented. The wife would thus be accorded some measure of protection and certainty for herself and children for the covenant to pay.

I am of the opinion, considering the circumstances in this application, that it is irresistible as a whole and I therefore rule that the motion be granted in terms as prayed for. Costs for petitioner - applicant allowed at fifteen guineas.

Decision

<P>Application granted.</P>

Plaintiff / Appellant

J. Quashie-Idun

Defendant / Respondent

A. Casely-Hayford

Referals

Barker v. Barker [1952] P. 184; [1952] 1 T.L.R. 1479; [1952] 1 All E.R. 1128, C.A.

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