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Family Law – Co – habitation -
Breach of promise to marry -
General Damages for breach of -
Refund of loans with interest –
Landed properties -
Substantial contribution -
Damages
for emotional stress -
Misplaced trust - Manipulation
of the system - Whether an
appellant is bound by the
grounds set forth in a Notice of
Appeal without amendment -
Whether points of law not set
down in such Notice of Appeal
may be argued under the omnibus
ground of Appeal without leave
of the appellate court; -
Section 40 of the Evidence Act
1975(NRCD 323) - Sections 274 to
276 of the
Criminal
Offences Act, 1960 (Act 29)
HEADNOTES
According to the plaintiff, the
parties met between 2000 and
2001 in Udinese, Italy and
formed an amorous relationship.
Although the defendant initially
disputed the years, putting
their initial meeting at 2003,
he eventually admitted to the
years 2000-2001. He also
disputed the amorous connection,
but he eventually admitted that
they “fell in love for an
indefinite period”. On the
record, the relationship lasted
some five years, which again,
the Defendant insisted was only
some two years. According to the
plaintiff, she gave up her job
in a carpentry business in
Udinese and moved to Napoli for
a better job at defendant’s
urging, only to discover that it
was prostitution (i.e.
commercial sex work as it is now
known) that the defendant
intended. Whatever her
motivation was, she got into the
trade and worked for a few
years, alleging that she turned
over her earnings to the
defendant. The plaintiff alleged
that they hoped to get married
and set up home in Ghana and so
she was introduced to
defendant’s parents and she also
introduced defendant to her
family. The parties were never
formally married, because the
relationship fell apart when
they returned to Ghana,
initially for a short spell.
Whilst in Ghana they cohabited
briefly at Tantra Hills, a
suburb of Accra, in rented
accommodation, as one of the
properties, the Madina House
was, allegedly not yet ready for
occupation. When she began to
hear stories of how the
defendant was carrying on with
other women at the Madina house,
she insisted on moving into that
house. However, she was only
able to stay there for a brief
period before leaving on account
of harassment she claimed to
have suffered at the hands of
defendant and his sisters. The
plaintiff alleges that she
delivered a still-born child,
fathered by defendant, at the 37
Military hospital. Within this
time period, the relationship
broke down. Now jobless, without
accommodation, having lost her
child at birth and reduced to
penury, the plaintiff suffered a
mental breakdown and was taken
to Kumasi by her family for
treatment. She returned to Accra
upon her recovery, and found
that there was no hope of ever
restoring the relationship
because her intended had married
someone else. On his part, the
defendant resisted the claims
and filed a statement of defence
and counterclaim. He denied
having any amorous links with
the plaintiff, contending that
she was already married with
children so he could not have
been in any relationship with
her. The defendant contested her
claims, making vehement denial
of her claim that he was thus
associated with her. He then
proceeded to file a counterclaim
Suit No BC 558/2008 was struck
out as settled without the
knowledge of the appellant. She
instituted another writ BMISC
1013/2014 to set aside the
settlement. The case was
dismissed when the judge found
that there had been no
settlement as no consent
judgment was entered in Suit No
BC 558/2008. There being no
consent judgment, there was
nothing for the court to set
aside. Consequently, Suit No BC
558/2008 was revived by Notice
to Proceed filed by plaintiff on
19th January, 2016.
The High Court delivered its
decision on 5th June
2018. Against this 5th June
2018, decision of the High
Court, the defendant filed a
notice of appeal on 11th
July 2018, with twelve grounds
of appeal to the Court of Appeal
HELD
As the facts of this case show,
there is sufficient evidence on
record that the plaintiff, on a
balance of probabilities, proved
her claim against the defendant.
He had led her to believe they
were on the verge of getting
married and that led the
plaintiff to turn her earnings
over to the defendant to do what
they needed to do to secure
their future together back home
in Ghana. On the whole, “the
circumstances in which the
defendant obtained control [of
the properties] make it
unconscionable for him” to
be permitted to enjoy the fruit
of their common endeavor alone,
while the plaintiff loses
everything she had worked to
acquire. On the part of the
defendant, he could not prove
his entitlement to the vehicle.
Based on the Court of Appeal’s
failure to uphold mandatory
provisions in CI 19, as well a
consideration of the evidence
available on the record, there
is sufficient cause to set aside
the decision of the Court of
Appeal. We do so accordingly,
and with the exception of the
Ghc 5,000 costs paid to 1st
defendant, restore the judgment
of the High Court.
For the above reasons, I am of
the humble view that the Court
of Appeal erred when it allowed
the issue of the legality or
otherwise of prostitution as a
profession in Italy to be
brought up at an appellate
stage. I therefore agree with my
esteemed and respected
colleagues in allowing the
appeal.
STATUTES REFERRED TO IN JUDGMENT
Evidence Act 1975(NRCD 323)
Criminal Offences Act, 1960 (Act
29)
CASES REFERRED TO IN JUDGMENT
Akufo-Addo v Catheline [1992] 1
GLR 377,
In re Bonney (Decd) Bonney v.
Bonney [1993-94] 1 GLR 610
Tuakwa v Bosom [2001-2002] SCGLR
61 per Akuffo JSC
Asamoah & Another v. Offei
[2018-2019] 1 GLR 655
Owusu-Domena v Amoah [2016]1
SCGLR 790
Republic v Judicial Committee of
the Asogli Traditional Council;
Ex-parte Avevor (Azameti & Ors.
Interested parties) [2018-2019]1
GLR 698
Attorney-General v. Faroe
Atlantic [2005-2006] SCGLR 277
Atuguba and Associates v Holam
Fenwick Willian LLP [2018-2019]
1 GLR 1
Sandema-Nab v Asangalisa [1966-
1997] SCGLR 302
The Republic v Central Regional
House of Chiefs Judicial
Committee: Ex parte: Aaba
(2001-2002) 1 GLR 221
Brown v National Labour
Commission [2018-2019]1 GLR 592
Akufo-Addo v Catheline [1992] 1
GLR 377
Zabrama v Segbedzi (1991) 2 GLR
221
Donkor v Ankrah [2003-2005] GLR
125
Afrifa v Class-Peter [1975] 1
GLR 359
Westdeutsche Landesbank
Girozentrale v Islington LBC
[1996] AC 669
Soonboon Seo v Gateway Worship
Centre [2009] SCGLR 278
Saaka v Dahali [1984-86] 2 GLR
774
Paragon Finance Plc v Thakerar &
Co (1999) 1 All ER 400
Fatal v Wolley [2013-2014] 2
SCGLR 1070
Tamakloe & Partners v. Gihoc
Distilleries Civil suit No.
J4/70/2018 intituled
In Re Canfor (Decd.) Canfor v.
Kpodo (1970) GLR 177
Davies v. Randall (1962) 1 GLR 1
Godka Group of Companies v. P.S.
International [1999-2000] 1 GLR
409
Khoury v. Khoury [1958] 3 WALR
52
BOOKS REFERRED TO IN JUDGMENT
The Law of Family Relations in
Ghana, Black Mask Ltd Accra,
2019 by
Professor W. C. Ekow Daniels
The action for Breach of Promise
to Marry in Ghana : New life to
an old rule.” (1993-95) Review
of Ghana Law 41 at p.67 by
H.J.A.N. Mensa-Bonsu
Halsbury’s Laws of England (3rd
ed) vol 14 para 1155
DELIVERING THE LEADING JUDGMENT
PROF MENSA-BONSU (MRS.), JSC:-
COUNSEL
BOBBY BANSON ESQ FOR THE
PLAINTIFF/RESPONDENT/APPELLANT.
ALFRED AGYEI-MENSAH ESQ FOR THE
2ND
DEFENDANT/APPELLANT/RESPONDENT
PROF MENSA-BONSU (MRS.), JSC:-
This is a case which
appears simple on its face, but
which is not so, in reality,
having arisen out of the
relations of two migrant workers
from Ghana who met and cohabited
as a couple, in Napoli, Italy.
The female believed they were in
an amorous relationship and that
marriage between them was
imminent, whilst the male had
other ideas and therefore
initially disputed the basis of
the belief of the existence of
an amorous relationship. There
is thus a mix of love,
commercial sex work, misplaced
trust, manipulation of the
system and intrigue, to the
befuddlement of lawyers and
judges alike.
Although presented as one case,
it actually consists of a total
of three cases in the High
Court; and an appeal to the
Court of Appeal, which has
culminated in the instant appeal
to this honourable court. The
equitable maxim “Equity will not
suffer a wrong to be without a
remedy” is a maxim that has been
brought to life and prayed in
aid in order to do justice for
all the parties in this case.
BACKGROUND
This is a case in which most of
the basic facts had to be pried
out of the defendant, and so
cannot be retold without
reference to the difference
between the accounts of the two
parties. On account of the
reversal of roles in the appeals
before the Court of Appeal and
this honourable court, the
plaintiff/respondent/appellant
would simply be referred to
herein as ‘plaintiff’, and the 2nd
defendant/appellant/respondent
as ‘defendant’ unless the
context requires more specific
reference, since the 1st
defendant, his father, did not
join the appeal in the Court of
Appeal.
According to the plaintiff, the
parties met between 2000 and
2001 in Udinese, Italy and
formed an amorous relationship.
Although the defendant initially
disputed the years, putting
their initial meeting at 2003,
he eventually admitted to the
years 2000-2001. He also
disputed the amorous connection,
but he eventually admitted that
they “fell in love for an
indefinite period”. On the
record, the relationship lasted
some five years, which again,
the Defendant insisted was only
some two years. According to the
plaintiff, she gave up her job
in a carpentry business in
Udinese and moved to Napoli for
a better job at defendant’s
urging, only to discover that it
was prostitution (i.e.
commercial sex work as it is now
known) that the defendant
intended. Whatever her
motivation was, she got into the
trade and worked for a few
years, alleging that she turned
over her earnings to the
defendant. The plaintiff alleged
that they hoped to get married
and set up home in Ghana and so
she was introduced to
defendant’s parents and she also
introduced defendant to her
family. The parties were never
formally married, because the
relationship fell apart when
they returned to Ghana,
initially for a short spell.
In the course of the
relationship, the defendant paid
a brief visit to Ghana, during
which arrangements to acquire
the properties were made.
Vehicles had also been shipped
by the plaintiff in 2002, to
someone whose name corresponded
with that of 1st
defendant, for them to be kept
for the couple. The plaintiff
later returned to Ghana, having
lost her travel documents on
account of some mishap. She
averred that she found that the
vehicles could not be accounted
for, and a visit to the
Licensing office told her that
the vehicles had been sold by 1st
defendant. Unfortunately for
plaintiff, she was never able to
return to Italy. The defendant
promised to help her acquire
fresh papers to return and
introduced an agent who was
going to provide the service.
With the defendant acting as her
guarantor, she raised a loan
from Unique Trust Financial
Services on the back of a
Mercedes Benz car, which
defendant claimed as his, as
collateral. This is the vehicle
whose return forms part of
defendant’s counterclaim against
the plaintiff.
Whilst in Ghana they cohabited
briefly at Tantra Hills, a
suburb of Accra, in rented
accommodation, as one of the
properties, the Madina House
was, allegedly not yet ready for
occupation. When she began to
hear stories of how the
defendant was carrying on with
other women at the Madina house,
she insisted on moving into that
house. However, she was only
able to stay there for a brief
period before leaving on account
of harassment she claimed to
have suffered at the hands of
defendant and his sisters. The
plaintiff alleges that she
delivered a still-born child,
fathered by defendant, at the 37
Military hospital. Within this
time period, the relationship
broke down. Now jobless, without
accommodation, having lost her
child at birth and reduced to
penury, the plaintiff suffered a
mental breakdown and was taken
to Kumasi by her family for
treatment. She returned to Accra
upon her recovery, and found
that there was no hope of ever
restoring the relationship
because her intended had married
someone else.
Trial Court
On 18th September,
2008, plaintiff issued a writ
against the two defendants,
Garba Hashimu as 1st
defendant, and her intended
husband, Issaka Hashimu, the 2nd
defendant. for inter alia,
breach of promise to marry. The
reliefs endorsed on the writ
were for:
1) General Damages for
breach of promise to marry by
2nd Defendant
2) Refund of loans to
the tune of E20,000 from 2nd
Defendant with interest thereon
from ------- to date of payment.
3) ½ of the property at
Madina and at Ajirigano
4) ½ of the 7 machines
brought in with Plaintiff’s
money which have been in the
custody of 2nd Defendant as well
as an account of proceeds from
same to date.
5) As against 1st
Defendant an account for
proceeds from the sale of seven
cars sent to him by Plaintiff
and reimbursement to her of the
sum with interest thereon.
6) Return to Plaintiff
of the shop at Makola now
occupied by 1st Defendant and
general damages for the
deprivation of Plaintiff
7) Any other relief.
The plaintiff stated that as a
commercial sex worker in Napoli,
Italy, she made good money and
gave some to the defendant to
send to his brother in Denmark
who held an account in their
joint names as well as giving
him “loans” to the tune of
E20,000. Further, that when
defendant returned home in
Ghana, to supervise the
acquisition of the properties,
she sent him some money; and
while in Ghana to sell off
second hand shoes she had
brought home to sell, she sent
defendant the money through an
agent called ‘Joe”, for the
purchase of the machines that
were subsequently installed at
Timber Market. She maintained
that she had expended her
earnings towards acquisition of
the property because she
believed they were in the
process of preparing for married
life together. Indeed, she
alleged she even began receiving
tutoring from defendant’s mother
towards her eventual conversion
to Islam, as she was required by
Islamic law to do.
On his part, the defendant
resisted the claims and filed a
statement of defence and
counterclaim on 23rd
October, 2008. He denied having
any amorous links with the
plaintiff, contending that she
was already married with
children so he could not have
been in any relationship with
her.
In paragraph 7 of the statement
of defence, he averred thus:
In answer to paragraph 8 of the
Statement of Claim, the 2nd
Defendant says that Plaintiff is
a married woman with the husband
called one Mr Kwame and has four
(4) children of the marriage. It
is immorally unacceptable that 2nd
Defendant would therefore be
having the alleged relationship
with a married woman….”
The defendant contested her
claims, making vehement denial
of her claim that he was thus
associated with her. He then
proceeded to file a counterclaim,
which affirmed the averments in
the statement of defence, with
the following reliefs:
i)
A Declaration that the Landed
properties at Madina and
Ajiringanor or East Legon
Extension are the sole
properties of the 2nd
Defendant herein to the
exclusion of Plaintiff.
ii)
A refund of the sum of
c28,000.000 or Ghc 2,800 paid to
the 3 sisters of the Plaintiffs.
iii)
An order for the return of the
Mercedes Benz Model CLK, or
payment of its current value to
the 2nd Defendant
which she used to collaterize a
loan from UT Financial Services,
Ltd. Accra, which Plaintiff has
refused, neglected and failed to
liquidate to the 2nd
Defendant.
iv)
General damages for emotional
stress, vilifications of the
good name of the 1st
and 2nd Defendants
and anxiety caused to the 1st
and 2nd defendants in
the sum of Ghc 50.000.00
v)
Costs
The case had a very checkered
history in the trial court. At a
stage the suit,
Suit No
BC 558/2008 was struck out as
settled without the knowledge of
the appellant. She instituted
another writ BMISC 1013/2014 to
set aside the settlement. The
case was dismissed when the
judge found that there had been
no settlement as no consent
judgment was entered in Suit No
BC 558/2008. There being no
consent judgment, there was
nothing for the court to set
aside. Consequently, Suit No BC
558/2008 was revived by Notice
to Proceed filed by plaintiff on
19th January, 2016.
The High Court delivered its
decision on 5th June
2018.
Against this 5th June 2018,
decision of the High Court, the
defendant filed a notice of
appeal on 11th July
2018, with twelve grounds of
appeal to the Court of Appeal.
The grounds dealt with judgment
being against the weight of
evidence, hearsay evidence,
error in or lack of proper
appraisal of the evidence on
prostitution, period of
acquisition of the properties in
dispute, exhibits tendered,
failure to consider counterclaim
or one sided judgment and
excessive monetary awards
against respondent. Nowhere was
mention made of the legality of
prostitution as a source of
income for the acquisition of
property by the plaintiff. The
Court of Appeal upheld
defendant’s case and reversed
the decision of the trial court.
It is against this judgment of
the Court of Appeal that the
plaintiff lodged the instant
appeal. The notice of appeal
filed on 20th
December, 2019 set down the
following grounds:
(a). That the Court of Appeal
erred when it held that the
Plaintiff/Respondent did not
discharge the burden of proof on
her.
(b). That the Court of Appeal
committed error of law when it
admitted points of law as part
of the written submissions of
the 2nd
Defendant/Respondent/Appellant
without giving the
Plaintiff/Respondent/Appellant
an opportunity to respond to
same
(c) That the Court of
Appeal committed error of law
when it held that the
Plaintiff/Respondent/Appellant
had admitted the points of law
raised by the 2nd
Defendant/Respondent/Appellant
by not responding to them.
(d) That the judgment is
against the weight of evidence
adduced at the trial”.
Counsel for the plaintiff in the
statement of case submitted that
the defendant had not raised “any
point relating to the legality
of the cause of action pursued
by the Appellant at the trial
Court” and that “the
issue of the legality or
otherwise of the cause of action
pursued by the Appellant was
never an issue before the trial
court”.
Further, that the defendant
failed to discharge the onus of
proving Italian law at the Trial
Court to establish the legality
of prostitution in Italy hence
the presumption under
Section
40 of the Evidence Act 1975(NRCD
323) which makes Ghanaian
Law applicable with respect to
the foundation of her claim”,
was inapplicable.
However, counsel for the
defendant maintained that under
the omnibus ground of “the
judgment is against the weight
of evidence”, he was
entitled to argue both law and
fact. The defendant boldly urged
on the court that the issue of
the illegality of prostitution
in Italy was a matter that went
to the very jurisdiction of the
trial court, and therefore, the
fact that it was not
specifically pleaded was
“inconsequential” as the Court
of Appeal was duty bound to
consider such a fundamental
issue that went to the root of
the trial court’s jurisdiction.
He further submitted that there
was no evidence grounding the
reliefs granted to the
plaintiff, and that the trial
court had only proceeded on
sympathy for the plaintiff.
The main questions in this
appeal are: (i)
whether
an appellant is bound by the
grounds set forth in a Notice of
Appeal without amendment; (ii)
whether points of law not set
down in such Notice of Appeal
may be argued under the omnibus
ground of Appeal without leave
of the appellate court; and
what amounts to “opportunity to
address” such legal issues by
the appellate court; (iii)
whether there was sufficient
evidence on the record to
support the reliefs; and (iv)
consequently whether the trial
court was right to grant those
reliefs.
The four grounds of appeal can
be grouped for discussion.
Grounds (b) & (d) belong
together, as a discussion of (d)
would dispose of (b). Grounds
(a) & (c) are discussed
separately, despite the risk of
some repetition. We begin with
the omnibus ground of appeal and
the issue of the fresh legal
point on appeal under grounds
(d) and (b).
Grounds (d) and (b)
(a). That the Court of Appeal
erred when it held that the
Plaintiff/Respondent did not
discharge the burden of proof on
her.
(d) That the judgment is
against the weight of evidence
adduced at the trial”.
It is trite law that an appeal
is by way of re-hearing, see
Akufo-Addo v Catheline
[1992] 1 GLR 377, per Kpegah JSC
at p. 391; In re Bonney
(Decd) Bonney v. Bonney
[1993-94] 1 GLR 610 per Aikins
JSC at p. 617: Tuakwa v
Bosom [2001-2002] SCGLR
61 per Akuffo JSC (as she then
was) at p.65. In Asamoah &
Another v. Offei
[2018-2019] 1 GLR 655, the
defendants’ omnibus ground of
appeal that the judgment of the
Court of Appeal was against the
weight of evidence adduced at
the trial, opened the way for
the Supreme Court to exercise
its power of re-hearing the
case. Speaking for the Court,
Appau, JSC stated the law at
p.660 thus:
The authorities are legion that
an appeal is by way of
rehearing, particularly where
the appellant alleges in his
notice of appeal that the
decision of the trial court was
against the weight of evidence.
In such a case, it is the duty
of the appellate court to
analyse the entire record of
appeal, take into account the
testimonies and all documentary
evidence adduced at the trial
before arriving at its decision,
so as to satisfy itself that, on
a preponderance of the
probabilities, the conclusions
of the trial judge are
reasonably or amply supported by
the evidence on record. And it
is immaterial whether the appeal
is a second one from the Court
of Appeal to the Supreme Court.
Therefore, by pleading this
omnibus ground, the Plaintiff
has put her entire case before
this honourable court for
re-hearing.
It is important to address the
preliminary point as to what may
be pleaded under the ground of
appeal as it is germane to the
case of the plaintiff in this
appeal. The main question is
what is allowable to an
appellant who pleads that “the
judgment is against the weight
of evidence adduced at the
trial”. The question of whether
or not pleading the omnibus
ground allows for only facts or
law to be argued, has been
answered in a long line of
cases. In the Reply of defendant
to the plaintiff’s statement of
case filed on 4th June, 2019, he
stated in respect of Tuakwa
v Bosom (supra) that the
Supreme Court’s new thinking had
moved beyond that case.
“Accordingly, it is
submitted that the current and
new thinking of the Supreme
Court is for the expansion of
the frontiers of the law
concerning the omnibus ground
from just examining oral and
documentary evidence to
considering legal issues that
stem from same for purposes of
ensuring that a party wins on a
matter on all reasonable
probabilities and the applicable
relevant law”.
The defendant made a lot out of
the supposed “new thinking of
the Supreme Court” on the
omnibus ground and whether facts
and law could be pleaded. He
cited a number of cases which,
he argued, exemplified the new
thinking of the Supreme Court.
In particular, he relied on
Owusu-Domena v Amoah
[2016]1 SCGLR 790 in which
the Supreme Court had held per
Benin JSC “Where the omnibus
ground is pleaded, both factual
and legal arguments could be
made”. Indeed, in
Republic v Judicial
Committee of the Asogli
Traditional Council; Ex-parte
Avevor (Azameti & Ors.
Interested parties)
[2018-2019]1 GLR 698, the
Supreme Court held, relying on
Attorney-General v. Faroe
Atlantic [2005-2006] SCGLR
277 and Owusu-Domena
(supra), that both factual and
legal arguments could be made.
In Faroe Atlantic
(supra), the Supreme Court had
held per Wood JSC (as she then
was) at p. 308 that,
“it seems to me that in
strictness, this common ground
of appeal is one of law, for in
essence, what it means, inter
alia, is that, having regard to
the facts available, the
conclusion reached, which
invariably is the legal result
drawn from concluded facts, is
incorrect. The general ground
of appeal is therefore not
limited exclusively to issues of
fact. Legal issues are within
its purview”.
However, in all of the cases
cited, the omnibus ground had
been pleaded as the single
ground of appeal. Should the
approach be the same when
multiple grounds have already
been pleaded? In the recent
case of
Atuguba and Associates v
Holam Fenwick Willian LLP
[2018-2019] 1 GLR 1, the
Supreme Court seized on the
opportunity to clarify what its
supposed “new thinking” on the
subject is. The facts of that
case were that the
Plaintiff/Respondent/Appellant
(herein referred to as
‘Appellant’ to avoid confusion)
was a law firm based in Ghana,
while the 2nd
Defendant/Appellant/Respondent
(herein also referred to as
‘Respondent’), was a Limited
Liability Partnership registered
in the United Kingdom, also
offering legal services. The 1st
Defendant was also based in, and
ran its business in, the United
Kingdom. Sometime in 2014, the
Respondent sought to engage the
services of Appellant to act for
1st Defendant in
civil suits brought against it
in the Courts of Ghana. After
the exchange of several emails
the Appellant agreed to offer
legal services to the 1st
Defendant at agreed hourly
rates. Subsequently a dispute
arose between Appellant and 1st
Defendant regarding the invoices
for payment of legal fees. The
Appellant commenced a suit
against 1st Defendant
and Respondent for the cost of
legal services rendered,
interest, general damages for
breach of contract and costs.
The Respondent requested the
Trial Judge to exercise its
discretion to strike the
Respondent out of the suit as a
party. The trial court refused,
contending that the Respondent
was a necessary party.
Respondent appealed to Court of
Appeal which allowed the
application and ordered
Respondent to be struck out of
the suit. The appellant brought
this interlocutory appeal
against that decision and
pleaded only one ground i.e the
omnibus ground, that the
decision was against the weight
of evidence.
In support of the single ground
of appeal, Appellant therein
filed a statement of case
arguing certain points of law.
The Appellant had not sought
leave to file any additional
grounds. Respondent extracted
those arguments and numbered
them as (1) – (4) as “summary of
Evidence” describing them as
offending Rule 6(6) of C.I 16
and asked that the Court should
strike out same. On the point of
whether law and facts could be
pleaded under the omnibus
ground, the Supreme Court
distinguished between the cases
in which omnibus ground was an
only ground, from those in which
the omnibus ground was only one
of a number of grounds of
appeal. At pp.8-10, Amegatcher
JSC restated the general rule
and clarified the exceptions set
down in the Owusu-Domena
v Amoah (supra) in the
following words:
“We have discovered that in the
detailed statement of case filed
by the appellant… under the
omnibus ground of appeal, the
Appellant argued certain points
of law. These arguments were
made, unmindful of the fact that
this court has ruled in a number
of cases that where the sole
ground of appeal is that a
judgment is against the weight
of evidence, the appellant would
be limited to making factual
arguments and would not be
permitted to argue any point of
law”.
At p. 10, he clarified the
exceptions set down in the
Owusu-Domena v Amoah
(supra) as follows: -
“Based on the exception given by
the court in the Owusu- Domena v
Amoah case (supra) the current
position of the law may be
stated that where only ground of
appeal filed is that the
judgment is against the weight
of evidence, parties would not
be permitted to argue legal
issues if the factual issues do
not admit of any. However, if
the weight of evidence is
substantially influenced by
points of law, such as the rules
of evidence and practice or the
discharge of the burden of
persuasion or of producing
evidence, the points of law may
be advanced to help facilitate a
determination of the factual
matters. The formulation of
this exception is not an
invitation for parties to
smuggle points of law into their
factual arguments under the
omnibus ground. The court
would, in all cases, scrutinize
such points so argued within the
narrow window provided”.(emphasis
supplied).
Was the instant case a proper
occasion for the application of
the Owusu-Domena v
Amoah (supra) exception, or
a proper case for scrutinizing
the “points so argued within the
narrow window provided”? Is the
rule equally applicable to when
a single ground has been
pleaded; as when multiple
grounds defining the scope of
the disagreement with the court
below have already been pleaded?
Those two circumstances are not
the same, and so should not be
treated the same. Therefore, the
rule about sticking to pleading
facts only under this ground as
established by the old
authorities, is preferable when
multiple grounds have been
already pleaded. A contrary
position would undermine the
import of Rule 6(7). It would
seem that this instant appeal is
a classic case for the latter
since the defendant had pleaded
eleven other grounds of appeal,
subsequent to the omnibus ground
pleaded.
The plaintiff in her statement
of case to the Supreme Court has
complained that defendant had
argued points of law not
contained in Notice of Appeal
without seeking leave of the
Court of Appeal and that this
contravened Rule 8(7) of CI 19.
At paragraph 23 of the statement
of case plaintiff contended that
the issue of the legality or
otherwise of prostitution, now
commonly referred to as
“commercial sex work”, was never
an issue before the trial court.
Again, when the defendant, then
Appellant filed Notice of
Appeal, he did not raise this
matter of legality of
prostitution in Ghana “Nowhere
in the Notice of Appeal did the
defendant herein raise any point
relating to the legality of the
cause of action pursued by the
plaintiff at the trial Court”,
counsel for the plaintiff
submitted.
In paragraph 3.2.1 she
particularized her complaint
thus:
“A fortiori … the point
which was argued in the written
submission of the Respondent
without leave of court was to
the effect that since
prostitution is illegal in Italy
and hence the Respondent could
not enforce a right to
properties acquired from such
illegal trade, this point is a
mixture of law and fact which
cannot be raised and argued on
appeal for the first time”
In paragraph 17 of defendant’s
statement of case, he submitted
in response,
Prostitution being a criminal
offence in Ghana contrary to
Section 274 of the Criminal
Offences Act 1960 (Act 29), a
cause of action founded on
proceeds of same could not be
used to mount an action and same
will not cloth the court with
jurisdiction to entertain any
action therefrom. Being
jurisdictional in nature based
on a challenge to the cause of
action and the admission of
illegal evidence, the Court of
Appeal was right in allowing
such points of law revolving
around same to be argued.
Granted without admitting it to
be so a claim by the Plaintiff
founded on a cause of action
being the existence of just an
amorous relationship implying
contribution to acquisition of
properties without legal
evidence is too trivial and
elementary for the Trial Court
to have relied on in granting
the reliefs.
This was preceded by paragraphs
15 and 16 in which the
defendant submitted that “The
Court of Appeal rightfully
allowed submissions on legal
points following from the facts
and evidence since they went to
the jurisdiction of the court
and the competency of the
Plaintiff’s cause of action at
the trial court”; and
reinforced the basis of the
application of foreign law thus:
“It is submitted that the
presumption that the law of a
foreign jurisdiction is the same
as the law of Ghana was
rightfully applied and that no
court should lend its aid to the
enforcement of a contract
founded on illegality”
Should defendant have asked for
Leave before arguing the points
of law? He certainly needed
leave to amend the grounds, as
provided under Rule 8 (7) of
C.I. 19, and was obliged to ask
for same.
The relevant rules in respect of
the procedure for such amendment
are as set down under Rule 8 (7)
and (8) of C.I.19 which provide
as follows:
8(7) “The Appellant shall
not, without the leave of the
court, urge or be heard in
support of any ground of
objection not mentioned in the
notice of appeal, but the
court may allow the Appellant to
amend the grounds of appeal upon
such terms as the court may
think just.
(emphasis supplied)
(8) Notwithstanding sub rules
(4) to (7) of this rule, the
court in deciding the appeal
shall not be confined to the
grounds set out by the Appellant
but the court shall not rest its
decision on any ground not set
out by the Appellant unless the
respondent has had sufficient
opportunity of contesting the
case on that ground.
From these provisions it is
clear that it is not permitted
for an appellant to argue a
ground of appeal that is not set
forth in his notice of appeal
when the precondition for
arguing such ground has not been
fulfilled. In
Sandema-Nab v Asangalisa
[1966- 1997] SCGLR 302, the
Supreme Court, per Acquah JSC
(as he then was), stated at
p.307
“Now it must be appreciated that
an appeal is a creature of
statute and therefore no one has
an inherent right to it. ...
[w]here a right of appeal is
conferred as of right or with
special leave, the right is to
be exercised within the four
corners of the statute and the
relevant procedural regulations,
as the court will not have
jurisdiction to grant deviations
outside the parameters of the
statute”.
Therefore, an appeal must be
prosecuted within the Rules, or
“four corners of the statute”
set down to govern it, and by no
other mode.
The Court of Appeal accepted the
mode that the defendant adopted.
Was it open to the Court of
Appeal to overlook a well-known
principle held by the Supreme
Court in
The Republic v Central
Regional House of Chiefs
Judicial Committee: Ex parte:
Aaba (2001-2002) 1 GLR 221
where provisions in Rule
6(8) of C.I. 16 similar to Rules
8(7) and (8) of C.I.19 were
interpreted and applied? The
Supreme Court stipulated, per
Adzoe JSC, at pp 229-230 thus;
“ The rules of the Supreme Court
(and all other Courts) are there
to be observed. They form an
important component in the
machinery of the administration
of justice and the courts must
not, as a general rule, take
lightly any non-compliance with
them, even though technicalities
are not to be permitted to
undermine the need to do
justice. The Supreme Court
Rules, C.I. 16, set out the
appeal procedure. Rule 6 deals
with notices of Appeal in a case
of this kind. It provides: —
“6(2) A notice of civil appeal
shall set forth the grounds of
appeal and shall state……
(b) whether the whole or
part of the decision of the
court below is complained of and
in the latter case the part
complained of;
6(4) The grounds of appeal
shall set out concisely and
under distinct heads the grounds
upon which the appellant intends
to rely at the hearing of the
appeal, without any argument or
narrative and shall be numbered
seriatim; and where a ground of
appeal is none of law the
appellant shall indicate the
stage of the proceedings at
which it was first raised.
6(5) No ground of appeal which
is vague or general in terms or
discloses no reasonable ground
of appeal shall be permitted,
except the general ground that
the judgment is against the
weight of evidence;……………
These rules do not permit an
appellant to argue a ground of
appeal that is not set forth in
his notice of appeal. Of
course, there is rule 6(7)(b)
which enjoins the court not to
“confine itself to the grounds
set forth by the appellant or be
precluded from resting its
decision on a ground not set
forth by the appellant; but that
rule is subject to rule 6(8)
which provides that “Where the
court intends to rest its
decision on a ground not set
forth by the appellant in his
notice of appeal or on any
matter not argued before it, the
court shall afford the parties
reasonable opportunity to be
heard on the ground or matter
without re-opening the whole
appeal.
I understand rule 6(8) to mean
no more than that decision to
rely on a ground not set forth
by the appellant rests solely
with the court when in any
particular appeal before it, the
justice of the case requires the
court to rest its decision on a
ground not relied on by the
Appellant in his notice of
appeal. The rule should not be
taken as granting an Appellant a
general license to abandon his
obligations under the rules.”
This means that it was not open
to the Court of Appeal to
overlook what it acknowledged
itself as the mandatory
requirement for amendment, yet
it stated that
[W]hile we agree with the
position of the law with respect
to the mandatory requirement of
Rules 8(5) and (6) of the rules
of this Court, there is now
established judicial precedent
which permits the consideration
of legal issues relative to the
credibility, legality and
probative value of evidence
adduced by determining whether
or not the Trial Court had
properly applied the relevant
law in the reception of the
evidence and placing value on
it. based on the authorities
cited by the 2nd Defendant there
has been sufficient notice to
the Plaintiff to answer legal
issues which are inextricably
connected with the evidence
adduced by the Plaintiff to
determine whether or not it is
founded on law or that the
evidence of a business
undertaken outside the
jurisdiction is consistent with
the law of the local
jurisdiction.” These are species
of the allegation arising from
the omnibus ground of appeal
that the judgment is against the
weight of evidence and as the
authorities have now established
in the determination of the
omnibus ground, legal issues
relative to the evidence and its
proper evaluation must
necessarily arise….”.
Could the grant of this Leave
have been done by the Court’s
“tacit agreement” as the Court
of Appeal appeared to suggest?
Again, this has to be answered
in the negative. What, then,
does ‘Leave’ entail? ‘The
concept of ‘Leave’ has been
defined in
Brown
v National Labour Commission
[2018-2019]1 GLR 592. The
Supreme Court, per Amegatcher
JSC, explained what ‘Leave’
means. At p. 610 of the case,
the Court stated that “In
ordinary parlance, leave implies
praying to the court to grant
permission to file the appeal”,
and clearly this must involve a
formal step of “praying to the
court to grant permission”,
prior to arguing the ground and
not simultaneously with
submissions on that ground.
Therefore, one who requires
leave of the court in order to
argue grounds not set down in
the Notice of Appeal must take a
formal step to ask that
permission of the court; and the
step must be taken prior to
arguing the point and not
simultaneously with it. This is
because the appellate court is
within its rights to refuse the
Leave., and there being a
possibility that it could so
refuse, a positive answer to the
application could not be
presumed.
Such prior step taken to seek
leave, serves more than one
purpose. It enables the court to
request to be addressed on the
specific point, while putting
the plaintiff on notice as to
the direction of the defendant’s
claims, since the common law
disapproves of surprises in
litigation. Such step would also
have served as an opportunity
for the plaintiff to be heard on
the matter. Thus, when a party
argues the legal points in the
written submissions under the
guise of the judgment being
against the weight of evidence
without asking for leave of the
court, such party imposes a risk
of breaching the rules, upon the
appellate court.
Under this ground of appeal, the
plaintiff further contends that
she was not given opportunity to
respond when defendant put
forward points of law in his
written submissions that had not
been part of either his notice
of appeal or the proceedings at
trial court. Nowhere did
defendant raise this point that
he introduced on appeal without
leave of the Court of Appeal,
and upon which the Court of
Appeal based its decision. Yet,
the court went on to conclude
that the plaintiff had had an
opportunity to respond to the
inclusion of those points in the
written submission but had
failed to do so, in “like
manner” in her statement of
case. If a person leads evidence
as to her source of income
underlying her claim to
property, does that imply notice
that she would be required to
demonstrate the legality of her
source of income under the laws
of Ghana? Thus, not only does
such a misstep have the effect
of stampeding the court into
accepting the say so of that
party in respect of the issues
raised, it also deprives the
court of the opportunity to be
addressed on the law regarding
the new issue raised. Further,
it denies the other party an
adequate opportunity to respond
to the issues as she or he is
entitled to, as prescribed by
law. Was the Court of Appeal
right to overlook the fact that
the defendant had not asked for
leave prior to raising and
arguing the legal points, as
happened in the instant appeal?
No, it was not.
On the basis of the rules and
authorities expounded above, it
is our opinion that the Court of
Appeal erred and occasioned a
grave miscarriage of justice
when it considered and ruled on
legal issues raised by the
appellant before it as part of
the written submissions under
the guise of the judgment being
against the weight of the
evidence without giving the
plaintiff an opportunity to
respond to same. We,
accordingly, allow this ground
of appeal and set aside that
part of the Court of Appeal
judgment which dealt with
whether the legality of
prostitution or commercial sex
trade in Ghana could be argued
without leave.
Ground (c )
that the Court of Appeal
committed error of law when it
held that the
Plaintiff/Respondent/Appellant
had admitted the points of law
raised by the 2nd
Defendant/Respondent/Appellant
by not responding to them.
.
The plaintiff in this ground
contends that when defendant
failed to state
those
points of law on his Notice of
Appeal to the Court of Appeal,
but only put them in his written
submissions; she was right to
respond by merely raising
objection to same early on; and
that sufficient response had
thereby been made. The reaction
of the Court of Appeal to this
mode of proceeding was that:
“[W]e are of the view that
issues of law raised by the 2nd
Defendant are relevant as they
go to the root of the
Plaintiff’s action not having
responded to them, we hold that
those submissions by the 2nd
Defendant were “unanswerable.”
Further, on the point of
whether the plaintiff’s posture
was the appropriate one to adopt
to such pleadings made without
leave of the court, the Court of
Appeal held that:
“[T]here is to our mind always
on (sic) inherent risk in not
responding to issues of the law
argued by the Appellant in any
appeal. For, where the issues
or point of law are glaring
fundamental and go to the root
of the action notwithstanding
any objection raised in the
written submission of a
Respondent, it would be prudent
for the Respondent to respond to
them. This is because should
the Appellate Court favourably
consider the submissions, the
Respondent like the Plaintiff in
this appeal would have thrown
away the opportunity to
respond. Indeed, it is not for
a Respondent to determine for
this Court grounds that it
considers inadmissible and
unarguably by reason of its
vagueness. Where the grounds of
law set out reveal sufficient
material for comprehension by
the Court, they will be
considered and the Respondent
who had the opportunity to
respond but failed to do so
would have abandoned his right
…….. It would be prudent for a
Respondent in the appeal
notwithstanding any preliminary
objection on any non-compliance
to respond to all submissions
and leave the issue of the
propriety of the submissions for
the Court to determine …”
The Court, thus, stated that in
choosing merely to object to
same and praying the Court of
Appeal to strike out those
portions of the written
submissions, rather than making
a response, the plaintiff had
assumed a risk since the
legality or otherwise of her
cause of action was fundamental
to the issues before the Court.
Thus, the response of the Court
of Appeal to the plaintiff’s
“failure to respond in kind” to
the matters in the defendant’s
written submission was to state
that she had taken a risk which
had materialized and to blame
her for taking such risk. This
posture of the Court of Appeal
raises the following questions:
“Was the plaintiff obliged to
respond to points of law she
believed to be incompetent,
having been raised without leave
of the court?”; and “Did she, in
fact, assume an unjustified risk
that the court would agree with
her strategy, when she failed to
respond “in kind” to the points
of law raised for the first time
on appeal? We think she was not
so obliged; nor did her lack of
response amount to a failure to
provide a reasonable answer to
the points raised. In our
opinion, her insistence on
operating within the “four
corners” of the Rules was
supported by law, and cannot be
held against her.
The law in respect of new
grounds raised on appeal is
that, as first stated above, the
grounds on the Notice of Appeal
must be amended; that leave to
do same must be sought; and the
other party must be given a
chance to respond to same, see,
Akufo-Addo v Catheline
[1992] 1 GLR 377. The Court
of Appeal backed defendant on
this posture, holding that “As
a court of law, we are enjoined
by our judicial oaths to uphold
the constitution and the laws of
Ghana and not to gloss over
clear violations of statute
which we have the power to raise
suo motu provided the parties
“are given the opportunity to
address same”
Having correctly stated the law,
however, there was no
opportunity given for plaintiff
to address the court on the
issue. Not having given the
plaintiff an opportunity to
respond, the Court of Appeal was
wrong in basing its judgment on
that point. Indeed, when the
Court of Appeal thus disabled
itself from being addressed on
the issues, it was left with no
recourse but to rely on
defendant’s rendition of the law
on the supposed crimes involved.
Again, the result of upholding
the defendant’s argument would
be to accept the proposition
that a person who acquires
property by means of sexual
immorality should not be allowed
to keep it, but that one who was
complicit in that immoral
lifestyle was so morally
superior that he had a better
right to keep the “unclean
property”.
In the written submissions of
counsel for defendant to the
Court of Appeal filed on 2nd
May, 2019, he stated in
paragraph 18 that the Trial
Judge had failed to uphold the
law because,
“By her own pleading the
Plaintiff is a self-confessed
offender who founded a cause of
action on illegality. The
practice of prostitution and the
use of proceeds or income
generated therefrom is a
criminal offence in this
jurisdiction under
Sections
274 to 276 of the Criminal
Offences Act, 1960 (Act 29)
as amended……Consequently once
the Plaintiff herself asserted
that the monies she allegedly
transferred to the 2nd Defendant
and used to purchase cares and
machines for his benefit though
he denied, were proceeds of her
practice of prostitution, the
Trial Court had a duty to have
rejected her entire claims and
dismissed her action on grounds
of illegality and public
policy”.
He then cited Section 40 of the
Evidence Act 1975 (NRCD 323) in
paragraph 19 of the Addresses
that
“The law of a foreign country
is presumed to be the same as
the Law of Ghana” therefore, if
prostitution and the earnings
plaintiff allegedly denied
therefrom is not unlawful in
Italy where the Plaintiff
admitted she practiced the
immoral trade and earned
substantial income from, she had
a duty to prove the law in Italy
in the local jurisdiction and
further produce evidence that
she was duly licensed to
practice prostitution because it
is regulated by the law of the
foreign jurisdiction. Beyond
that, the Plaintiff carried the
burden of proving her daily or
weekly earnings in order to
discharge her statutory burden.
In all these respects, it is
respectfully submitted that the
Plaintiff blew a muted trumpet
and the Trial Court had no
jurisdiction to accept
Plaintiff’s case founded on
earnings from illegality
contrary to the law and public
policy of the jurisdiction”.
He then landed into an excursus
on the law on illegality and
Public Policy in paragraph 20 “The
Defendants submit that proceeds
generated from prostitution
could not be relied on to found
an action for any alleged monies
Plaintiff claimed to have earned
and learned to the 2nd Defendant
and purchased other properties
which she alleged the Defendants
converted”.
Counsel did not go further to
discuss the morality of asking
to retain property acquired by
illegal or immoral means and
whether such conduct would
amount to “living wholly or
partly on the earnings of
prostitution”. Therefore, from a
position of flat denial that
these facts ever occurred,
defendants now state that a
woman who uses immoral means to
acquire property has no right to
the property because the means
offends public conscience in
Ghana. The effect of this
position is that the man who
becomes the beneficiary of the
immoral means should be allowed
to keep it.
In an interesting twist, counsel
stated
“We have already submitted,
the Plaintiff did not prove her
case. We further submit that,
prostitution within the
jurisdiction of Ghana which a
court cannot lend its hand in
the enforcement of proceeds
generated therefrom
consequently, there is
insufficiency of facts and
evidence and legal standing to
justify a right or enforcement
against the Defendants based on
such speculative income”.
Proceeding, he argued on the law
of contract and its attitude to
contracts founded on illegality
and public policy. Raising it as
an issue of jurisdictional
competence, he stated “Defendant
boldly urges on the court that
the issue of the illegality of
prostitution in Italy should
become one on which the Trial
Court’s jurisdiction turned.”
What was the purpose of this
line of argument except to shoot
himself in the foot? If the
Plaintiff did not prove her
case, then why should her source
of income, which she openly
admits, was from prostitution,
become the source of succor for
the defendant who is seeking to
hold onto properties said to
have been partly funded from
that source? If the Plaintiff
has no claim to the property
then the morality or otherwise
of her source of income is of no
consequence, but if it would be
of some consequence, then her
claim has some merit, hence the
effort to undermine the court’s
ability to intervene, and do
right by her. One cannot blow
hot and cold at the same time.
We agree with counsel for the
plaintiff’s submission that
plaintiff by objecting to the
written submissions of the
defendant on the legality of
prostitution in Ghana did not
admit to the points of law so
raised by the defendant. We
allow this ground of appeal as
well and set aside the decision
of the Court of Appeal on ground
‘c’.
Ground (a)
The plaintiff further urged on
us the submissions contained in
ground (a) that the Court of
Appeal erred when it held that
the plaintiff did not discharge
the burden of proof on her. The
Court of Appeal stated that
there was no evidence at all to
back Plaintiff’s claims, holding
that,
“[T]here was nothing of
evidential value adduced by the
plaintiff in her testimony to
entitle her to the reliefs
granted in her favour by the
Trial Court against the 2nd
Defendant”…
Whereas the findings of the
Trial Court are clear that the
Plaintiff failed to prove her
case, the Trial Court
nevertheless granted
substantially all the reliefs
sought by the Plaintiff. This
in our view amounts to an
aberration which provokes the
interference with those findings
and conclusions which are not
consistent with the relevant
law, established facts, and the
evidence on record”.
“The logical question is that
if the Trial Court has by its
own findings determined that the
Plaintiff had failed to
discharge her burden of proof.
… the conclusions and eventual
orders which granted the
Plaintiff monetary award and
substantial part of the reliefs
claimed is glaringly perverse
and not supported by the
evidence on record and the Trial
Court’s own finding”.
Citing
Zabrama v Segbedzi (1991) 2 GLR
221 at 246 per Kpegah JA (as
he then was).
After reviewing the entire
record, we, with regret,
respectfully disagree with those
findings by the intermediate
appellate court.
At this point it would be
appropriate to analyse the
claims that the Plaintiff made,
and the evidence that was
proffered. The plaintiff had no
receipts or other documents in
her name to support her story,
though it must be noted that
over the decade in which the
case had travelled through the
courts, she has been fairly
consistent in her accounts. The
defendant, on the other hand,
has created a track record of
initially denying every
assertion, though eventually
admitting the fact when
confronted with some evidence
which he could not deny. The
plaintiff based her claim of a
half share of properties
acquired in the name of
defendant during the period of
the relationship, by leading
evidence as to her source of
income and the lifestyle of the
couple both in Italy and in
Ghana, insisting that she had
contributed substantially to
the acquisition of the property
from the money she made as a
commercial sex worker in Italy.
She indicated that all the
properties had been acquired
between 2002-2004, and none
since, because the funds for the
acquisition were from her.
BREACH OF PROMISE TO MARRY
This is a finding of fact which
featured strongly in the
judgment of the court below. The
celebrated professor of Family
Law in Ghana,
Professor
W. C. Ekow Daniels, has
stated emphatically that “it
is now beyond question that
actions for breach of promise of
marriage under customary laws
are maintainable” See W. C.
E. Daniels.
The
Law of Family Relations in Ghana,
Black Mask Ltd Accra, 2019
at p. 102. In
Donkor
v Ankrah [2003-2005] GLR
125, Dotse J A (as he then
was) upholding the cause of
action and citing the article by
H.J.A.N.
Mensa-Bonsu “The
action for Breach of Promise to
Marry in Ghana : New life to an
old rule.” (1993-95) Review of
Ghana Law 41 at p.67, stated
at p.138-139
“The circumstances under which a
promise of marriage would be
inferred must also be given
considerable thought in order to
solve two problems: forestalling
the situation of blackmail which
have discredited this action,
and discouraging unscrupulous
persons from taking advantage of
others. … On the whole it is
better for society to hold
people to promises made – even
of marriage - and to declare the
parameters within which one may
change one’s mind without
causing hardship to another.”
In that case, the plaintiff and
defendant had been in
relationship. A “knocking”
ceremony had been performed
before the relationship broke
down. A baby was subsequently
born and named by defendant.
However, the defendant had by
that time, married somebody
else. The Court of appeal was
not in doubt that the action
could be maintained. In the
article by H.J.A.N. Mensa-Bonsu
“The Action for Breach of
Promise to Marry in Ghana: New
life to an old rule.” (supra)
the learned author states the
law at p.44 as follows.
“An action for breach of promise
to marry arises when a person
makes a promise to marry
another, and refuses to perform.
The refusal could be by conduct…
or by an express refusal upon a
request for performance.
Unchastity does not operate as a
defence unless it is unknown to
the defendant. Otherwise it only
goes in mitigation of damages.”
It is thus the case that where a
man or woman makes a promise of
marriage to another and then
fails to carry it through, it is
a cognizable wrong for which the
court would give a remedy.
The question for resolution in
this case is whether there was a
promise to marry the plaintiff
and on which she relied to
“invest her earnings” to secure
their future life together; and
whether there had been a failure
to honour the promise. The
plaintiff claimed that she was
based in Udinese, Italy, where
she was involved in the
carpentry business; and that in
about 2001 she met and fell in
love with the defendant who
advised her to move to Napoli
where she could get a more
lucrative job. The “more
lucrative job” turned out to be
prostitution (or ‘commercial sex
work’ as it is now commonly
called in those countries where
it has been legalized, or at
least considered acceptable
work). She also stated that she
and defendant cohabited in
Napoli where he acted as her
“pimp”, dropping her off at the
point where she plied her trade
in the morning and picking her
up in the evening. The defendant
did not contradict any of this
evidence although he denied
being the one who put her in the
business of prostitution; and
that the decision of plaintiff
to move to Napoli from Udinese,
had nothing to do with him. The
defendant also denies that any
promise of marriage was made to
plaintiff, contending that the
plaintiff was already married to
one Kwame with whom she had
children so how could he
contemplate marriage to one who
was already someone else’s wife?
His denials have been difficult
to credit as he had first denied
there was any relationship at
all between them; and also the
time period when they first met.
He contended that they met in
Udinese in 2003 and that if the
plaintiff moved to Napoli, he
had nothing to do with it. For
the first time, the defendant
admitted on cross-examination on
2nd February, 2018,
he grudgingly admitted that he
met plaintiff “between 2000 and
2001”, and not in 2003 as he had
always insisted. He also
admitted that they were “in love
for an indefinite period”, much
as the plaintiff had always
maintained; and that although
they met in Udinese, they
carried on a relationship beyond
Udinese to Napoli. Although he
denied cohabiting with her, he
admitted that she was visiting
him and he, her. Since he lived
in Napoli, where the plaintiff
admitted she had re-located as a
commercial sex worker, their
interaction must have been in
Napoli. This is the exchange
that took place during
cross-examination of the
plaintiff. Thus, however
grudgingly, the defendant had
admitted the version of events
surrounding their meeting in
Italy as the plaintiff
testified. What is the evidence
supplied by the plaintiff that
would lead a court to believe
her version of events?
Q. In the course of your
evidence you were asked about
[sic] your lawyer how well you
knew 2nd Defendant and you said
he was your husband. Do you
stand by that?
A. When we returned to
Ghana we could not perform
marriage rites so he is not my
husband.
Q. Are you saying you
have never been married to him
A. When we lived abroad,
we were married. We came to
Ghana to confirm the marriage
but it could not come off and my
properties are with him.
…
Q. I put it to you that
you have never been married to
2nd Defendant either by the
Moslem Tradition or Christian
Tradition
A. By marriage, I mean
that the 2nd Defendant and I
while broad cohabited and lived
in the sight of the whole world
as man and wife but did not go
through any formalities
(emphasis supplied)
What this exchange confirms is
that indeed, the plaintiff and
defendant were never formally
married. However, in Italy, they
carried on as if they were, and
it was when they came to Ghana
to prepare for their life
together that the relationship
began to unravel. What was the
nature of their relationship,
such that an adult woman who had
migrated from Ghana in 1992 to
live and work in Italy, would
return home to live, with no
indication of how she planned to
survive for the future? How did
it happen that her decision to
return home coincided with the
defendant’s decision to also be
in Ghana at the material time?
Would a woman with that kind of
travel history return home empty
handed, following a man with
whom she alleged she was
cohabiting in Napoli, Italy?
What drew her home and what was
the nature of their interaction
when she returned to Ghana? For
a defendant who has consistently
denied everything and only
gradually admitted when he could
no longer deny, one must examine
the conduct in order to
ascertain its import.
When counsel for defendant
submitted,
“My Lord on the 1st Relief of
breach of promise to marry, the
record of 4th July 2017 did not
establish that the Defendant’s
family went to ask the hand of
the Plaintiff customarily and
proceeded to perfect any
marriage in the Ordinance of
Islamic Way” and concluded that
the Plaintiff was NOT MARRIED to
the 2nd Defendant.
He was only confirming the basis
of the action, for had they been
married, there would have been
no need to bring such an action.
In fact, it is precisely because
they were not married, as she
claims she had been led to
expect, that the action had been
brought. It is not the law that
for an action for breach of
promise to marry to succeed,
there must be a subsisting
customary marriage, whose
failure to be converted to an
ordinance marriage, grounds the
action. Although that was the
fact-situation in
Afrifa
v Class-Peter [1975] 1
GLR 359, that the defendant
cited, it was not the case in
Donkor v Ankrah
(supra).
The plaintiff stated that when
they arrived in Ghana they
co-habited at Tantra hills in
Accra for a short period in
rented accommodation because the
defendant told her that the
Madina House was not ready for
occupation. The defendant denies
that they ever co-habited at
Tantra hills. The plaintiff
tendered a Hospital Record from
37 Military Hospital in the name
of the defendant, and Identity
Card with his picture. Asked how
she came by them, the
plaintiff’s quite reasonable
explanation was that defendant
sustained a minor road accident
and was taken to 37 Military
hospital for treatment so he
must have brought the Record
with him home; and that she
found the items when she was
packing her personal effects
from the Tantra Hills
accommodation. The defendant
denied that the documents had
anything to do with him. His
unconvincing explanation was
that the hospital record
belonged to a ‘Mr Hashim,
Issaka’ while his name was ‘Mr
Issaka Hashim’. He had a good
reason to deny that the Hospital
Record was his. On the Record,
the person had given his wife’s
name as ‘Yaa Akyaa’, which
appears to be an alias of the
Plaintiff’s judging by the name
on a Ghana passport with her
picture she exhibited, in which
her name is given as ‘Yaa
Achiaa’; and the ID card
supposedly of defendant with a
different first name. but with
defendant’s picture. The court
has taken judicial notice of the
fact that ‘Yaa Akyaa’ or ‘Yaa
Achiaa’ is a common name among
the Asante ethnic group in
Ghana. Like many a local name
which is spelt differently by
different people, if the owner
does not insist on a particular
spelling, ‘Akyaa’ is essentially
the same name, as its anglicized
spelling, ‘Achiaa’. The hospital
record has ‘Yaa Akyaa’ as the
name of the wife of ‘Mr Hashim,
Issaka’. He denies that the
record has anything to do with
him because as he claimed in the
teeth of evidence to the
contrary, the plaintiff was not
known by an alias of ‘Yaa
Achiaa’ or ‘Yaa Akyaa’. The
plaintiff claimed that Yaa
Achiaa’ or ‘Yaa Akyaa’ was a
reference to her and that it was
the name given to her by the 1st
defendant as an agent who
prepared the passport for her.
It must be remembered that the
plaintiff was making
arrangements to return to Italy
when she lost her documents and
was refused a visa. The
plaintiff’s story sounds
credible. It is not an uncommon
practice in the migrant-worker
community for people to adopt
new names and new documentation
when there have been
circumstances, including issues
with their immigration status,
necessitating the acquisition of
for fresh documentation. It is a
highly deprecated practice, but
it goes on nevertheless. It
must be added that owning
multiple passports in different
names, though not permitted, nor
approved of, by law, is not an
uncommon practice, and this has
led to various attempts by the
State to reform the regime for
granting Ghanaian passports.
The plaintiff also
alleged it was when she heard
stories of how the defendant was
carrying on with other women at
the Madina House that she
insisted on moving there. She
further alleged that she left
her household goods there when
she had to leave the place due
to ill-treatment by defendant,
coupled with the abuse by his
mother and sisters. The
defendant claimed that she
stayed briefly at the
Adjiriganor house and left of
her own accord, but subsequent
evidence showed that she was
never let into the Adjiriganor
house so if she ever stayed in
the defendant’s house, even for
the brief period defendant was
willing to admit to, it must
have been at the house at
Madina.
The Plaintiff also claims she
had a still-born child at 37
Military hospital using the name
of ‘Yaa Akyaa’ sometime in 2006.
This is a fairly serious
allegation but the defendant
says nothing about having
fathered a baby at all. Between
2007 and 2008 when the plaintiff
suffered mental illness, her
sisters approached the defendant
to give them Ghc3,000 to support
her treatment. After some
pressure, the defendant gave
Gh¢2,800 to help treat her. He
says he gave the money on
compassionate grounds, but he is
now counterclaiming for the
amount. From the totality of
the life they led in Ghana, the
relationship between the
plaintiff and defendant went
beyond mere acquaintances in
Italy. It would not be
unreasonable to find that the
plaintiff’s expectation of
marriage had good basis.
Another piece of revealing
evidence is the issue of the
Mercedes Benz which the
defendant admits he gave to the
plaintiff to be used as
collateral to raise a loan at
Unique Trust (UT) Financial
services. The question that
readily comes to mind is “What
would make a businessman give
his Mercedes Benz Kompressor
vehicle to a stranger of no
visible means, to collaterise
for a loan for her own purposes;
for which loan he also signs as
‘guarantor’?” There is
absolutely no good reason,
unless there is a relationship
of some kind between the
parties. As there was no blood
relationship between them, what
other kind of relationship could
there be, to elicit such
“philanthropy”? All of these
events are pointers to the fact
that the plaintiff was led into
believing that she was
considered a “wife” to the
defendant, hence her reliance on
that belief to act to her
detriment. Having led her to
believe she was considered a
wife, would it be unreasonable
for her to seek compensation
when between the defendant and
his family she was chased out of
his life empty-handed?
The fate of Mercedes Benz
Kompressor vehicle has other
significance in this whole saga.
The defendant now makes a
counterclaim for it, complaining
that it was the plaintiff’s
failure to service the loan that
has led to it being lost to UT
Financial Services. The
situation bears closer
examination: the plaintiff had
come on a visit to Ghana but
having lost her documents in
Italy, was stranded in Ghana and
was presumably unemployed. If
she had no means of income, then
how did the defendant come to
give his Mercedes Benz
Kompressor vehicle to her to
collateralize for a loan, if he
had no belief she could repay
the loan? How was he expecting
her to repay the loan if she had
no income while in Ghana? Either
the plaintiff’s story that she
brought second-hand shoes to
sell in Ghana was true, or else
she had a source of income known
to the defendant.
There is yet another angle that
bears exploration. The ownership
of the vehicle was disputed
between the parties, but the
documentation on the vehicle was
not put in evidence. The
plaintiff insisted the vehicle
was hers, whilst the defendant
maintained that it was for him,
and counterclaimed for its
return. In assessing the
evidence in order to do justice
as between the parties, banking
industry practice would have to
be resorted to for assistance to
resolve the question of whose
name must have been on the
documents. Would a financial
institution processing an
application for a loan grant the
loan with a vehicle as
collateral, if the vehicle was
in another’s name, without any
evidence of the applicant’s
connection with the name in
which the prospective collateral
is registered? The evidence is
clear that the loan was granted
to the plaintiff in her own
name, because she was the one to
whom a letter was written by UT
Financial Services, by way of
final notice that the vehicle
was going to be sold if the loan
was not repaid. Again, if the
vehicle was registered in the
name of the defendant, why was
the notice to sell the vehicle
not addressed to him, or even
copied to him, unless, the
vehicle was really registered
under plaintiff’s name, as she
has consistently maintained? It
seems more likely than not, that
the vehicle was registered in
the plaintiff’s name, as she
claims, than otherwise. The
defendant is counterclaiming for
the vehicle, and he must prove
his claim.
Another finding
made by the Court of Appeal had
to do with the question of the
‘seven cars’. The Plaintiff
made a claim for seven vehicles
she allegedly shipped to Ghana
in 2002. She exhibited a bill of
Lading covering two vehicles and
Household goods. On the Bill of
Lading the ‘shipper’ or
‘consignor’ is set down as
‘Sawah Ama’ after the fashion of
continental Europeans who tend
to put the last name first. It
is thus no surprise that the
consignee thereon is stated as
‘Hashimu Garba’ instead of
‘Garba Hashimu’. The Plaintiff
was examined on her statement on
21st March, 2017, and
defendant’s counsel tried to get
her to agree, without success,
that as the Bill of Lading was
in the name of “Garba Hashimu”
and not “Hashimu Garba”, that
had no reference to 1st
Defendant. The 1st
Defendant, himself, denied being
the person on the Bill of Lading
provided by plaintiff because
the name on it was ‘Hashim
Garba’ when his name was ‘Garba
Hashim’; but a Tenancy
Agreement for ten years for a
shop at Okaishie dated 11th
August, 2003 tendered by the
defendants and marked as “EXH
HAS 5” has the tenant’s name as
Hassoumi Garbah of PO Box 335
Accra New Town (p45) – the same
address as ‘Garba Hashimu’ on
the Bill of Lading. Yet the
defendant supported his father’s
story that the consignee of the
vehicle and household goods had
to have been someone else,
because he did not answer to
that version of his name. The
cross-examination went as
follows:
Q. I am suggesting to you that
you intended the cars to go to
Hashimu Garba and not Garba
Hashimu?
A: My Lord, I sent the car to
Garba Hashimu being the father
of 2nd Defendant.
Q And I am suggesting to you
that the 1st Defendant has not
received any such bill of lading
from you and for this reason you
cannot claim that he has your
cars?
A My Lord, the 1st Defendant
received the bill of lading. My
lord the bill of lading were
more than this but because I was
moving from one place of abode
to the other, I lost some of the
documents.
Q: I am suggesting to you that
this Exhibit “E” is a forged
document?
A: My lord, it is a genuine
document. When I was working in
Italy, the 2nd Defendant called
the 1st Defendant and informed
him that he has gotten a woman
to marry and as a result of that
all the goods I sent to Ghana
bears [sic] the name of 1st
Defendant. When I came to Ghana
and was looking for the
whereabouts of the cars from the
1st Defendant, I couldn’t trace
the cars so I went to license
office and realized that 1st
Defendant has sold the cars to
someone and has prepared
documents to that effect and
also forged my signature.
Q Did you report what you are
saying to the Police?
A: No my lord, I informed the
2nd Defendant of what had
happened.”
These were the denials the Court
of Appeal believed and dismissed
this evidence on the cars as
false, because the bill of
lading mentioned 2 cars while
she was claiming seven. However,
in Paragraph 7 of the Statement
of Defence filed in the suit
BMISC 1013/2014, on 20th
November 2014, the defendant
thus pleaded:
“ the 2nd Defendant contends
that all properties acquired by
him as well as the 7 used cars
referred to, were financed by
himself and it was logical that
the used cars shipped to Ghana
were consigned to his father,
the 1st Defendant and no one
else”
This admission was confirmation
that, indeed, 7 cars had been
shipped to 1st
defendant (2nd defendant’s
father) as plaintiff had
contended. Yet, in a Witness
Statement filed by defendant in
reaction to plaintiff’s Witness
Statement served on him on 5th
July, 2016, defendant stated, “I
am not aware the Plaintiff
shipped two cars and Household
goods and personal Effect to the
1st Defendant”. When 1st
defendant was cross-examined on
23rd March, 2018, he
flatly denied that any seven
cars had ever been shipped to
him from Napoli. Indeed, he
denied ever hearing of, or
knowing plaintiff before they
met at the “Circuit Court” [sic]
at Cocoa Affairs in 2008.
The question of which of the two
parties was speaking the truth
about the “7 cars shipped to
1st Defendant from
Napoli” as plaintiff
claimed, had been previously
answered on pleadings filed on
23rd June, 2009, when
the 2nd defendant
swore to an Affidavit in
opposition to an affidavit in
support of a motion for Interim
Preservation which had been
filed by counsel for plaintiff
on 5th June, 2009. He averred as
follows,
Para 14: “In answer to
paragraph 15 of the affidavit in
support I am advised to say that
in paragraph 9 of the statement
of defence and counterclaim the
2nd Defendant denies the
plaintiff’s claim of ownership
to the seven (7) cars as the
owner of the said cars. I am
further advised to say that the
7 cars mentioned in paragraph 15
of the affidavit in support are
cars purchased by the 2nd
Defendant and shipped to his
father 1st Defendant. It is
unimaginable that plaintiff will
acquire her cars but will decide
to ship the said cars to 1st
defendant with whom the
plaintiff has no relationship at
all. There is no evidence on the
face of the Bill of Lading
referred to in paragraph 15 that
the Consignor was the plaintiff.
There is however evidence on the
face of the Bill of Lading which
established the CONSIGNEE named
HASHIMU GARBA, the 1st Defendant
with his particulars P.O. Box
K 335 Accra New Town, Accra
Ghana. I am further advised
to say that the 7 cars imported
into the country and consigned
to 1st defendant are the sole
properties of the 2nd Defendant.
The 1st Defendant owes no duty
to account for the sale proceeds
of the cars to the Plaintiff
since Plaintiff did not consign
the cars to 1st defendant.
(emphasis supplied)
Yet the Court of Appeal had
dismissed the plaintiff’s
evidence as false because the
one bill of lading she had
managed to hold onto, all these
years mentioned 2 cars, while
she was claiming seven.
Again, on 9th Feb, 2009
Additional issues for trial were
filed on behalf of the 1st
and 2nd Defendants.
Paragraph 4 set down as issue
for trial
“whether or not the alleged 7
cars specified as 1 BMW 2 Golf
saloon cars; 1 Toyota; 1Hyundai;
1Nissan Bus; 1 Fiat Pravo [sic]
are the self-acquired properties
of 2nd Defendant and which 2nd
Defendant shipped to the 1st
Defendant his father”
On the record, the existence of
the vehicles was a claim that
both the 1st and 2nd
defendants had disputed on more
than one occasion. Indeed 1st
defendant flatly denied that any
cars had been shipped to him by
plaintiff or indeed, by his son,
from Napoli. On this one bill of
lading dated 29th September,
2002, there was on the goods
listed, a ‘Golf vehicle and Fiat
Bravo’ as well as Household
items. Is it a coincidence that
the list of seven vehicles
provided by defendant included
“2 Golf vehicles and 1 Fiat
Pravo [sic]”? It would seem that
after defendant admitted to the
vehicles, and even provided the
brands of vehicles whose
existence he had previously
denied, this was a binding
admission against him, and there
was no need for plaintiff to
provide proof of same.
Therefore, at a minimum, her
claim to two of the cars had
been proved. Yet the Court of
Appeal said there was no
evidence backing her claim. Her
explanation as to why she had
only a bill of lading covering
two vehicles when she was
claiming seven, was perfectly
reasonable. She stated that
having had to move from place to
place, she had lost some of her
papers. As there is evidence on
the record that she even became
homeless at a point in time, the
wonder is that she was still
able to hold onto one, and
produce it as evidence of her
claims.
On the whole, the plaintiff held
up very well under extensive
cross-examination across many
days. The defendant appeared to
use other spellings of his name,
rendering them aliases. Receipts
of installment payments for
Adjiriganor property bear the
name “Issak Ashimu”, dated 17th
March, 2004 No 100055; 6th April
2004 no 100056 and final payment
of 15,000000 undated 100060.
From the record, it would appear
that the defendant uses a number
of spellings of his name
depending upon the
circumstances. With this number
of aliases, or different
spellings of his own name, why
would he insist that ‘Yaa
Akyaa’ could not be the
plaintiff’s alias “Yaa Achiaa”,
even though a Ghana passport
with Plaintiff’s picture proves
that she uses that alias? All
the discussion above goes to
show that it was not quite
accurate when the Court of
Appeal stated that it could find
no evidence to support the Trial
judge’s conclusions, and ruled
those conclusions “perverse”.
From all the evidence available,
the plaintiff has suffered some
wrong, but does not have
receipts and other documentation
to back her claims. The
Plaintiff has asked for a share
of properties she contributed to
acquire. Her answers to the
questions put to her under cross
examination on 4th July 2017
strengthen this conclusion.
Q. I am suggesting to you
that you are not a wife to
Issaka, both of you have not
acquired property jointly
A. The properties belong
to me. 2nd Defendant came to
meet me abroad already working
and we decided to get married
upon our return to Ghana and
because of that relationship I
did not see it necessary to
request for documents in respect
of monies given to 1st Defendant
to build the house for ourselves
“The things we do for Love”, is
really the imagery that this
whole sorry event evokes.
Fortunately, the courts cannot,
and do not, throw their hands up
in despair when an issue of such
difficulty arises. “Equity will
not suffer a wrong to be without
a remedy” so the equitable maxim
goes, and so to equity we turn
for assistance.
CONSTRUCTIVE TRUST
On the evidence,
plaintiff had a beneficial
interest in the property held in
the name of the defendant. This
is when constructive trust
arises. The reliance on
constructive trust further
commends itself as it has been
the subject of scholarly
discussion by Ama Fowa Hammond
in an erudite article titled “What
man has put together:
Recognizing the rights of
“Spouses” in de facto Unions”
(2008-2010) XXIV University of
Ghana Law Journal 231. In this
article, she discusses the
status and rights of women in
consensual unions who contribute
to property acquired during the
relationship in circumstances
which had they been formally
married, would have put their
entitlement beyond dispute. At
p.254 she expounds on the law
thus of Constructive Trust thus:
“Collectively these definitions
(of constructive trust)
reinforce the fact that whenever
the trustee conducts himself in
a manner that it would be
inequitable to allow him to deny
the cestui que trust a
beneficial interest in the
property acquired the Trustee
will be held to have so
conducted himself if by him
words or conduct he could be
said to have induced the cestui
que trust to act to him own
detriment in the reasonable
belief that by so acting he was
acquiring a beneficial interest
in the property. It should be
noted that constructive trust
may arise irrespective of the
intention of the settlor. The
courts are not primarily
concerned about direct financial
contribution to the acquisition
of property in imposing a
constructive trust.”
The learned authors, Michael
Haley and Lara Mc Murtry in
Equity and Trusts, Sweet and
Maxwell, London 2017, at p.372
expound on the law on
Constructive Trust. At p.445
they define the concept of
Constructive Trust, quoting from
Lloyds Bank PLC v
Rosset [1991]1 AC 107, as
follows:
“A constructive trust arises in
order to prevent one party from
resiling from an understanding
as to the beneficial
entitlements in circumstances
where it would be unconscionable
to do so. This will occur
primarily where the estate owner
has by words or conduct induced
the claimant to act to his
detriment in the reasonable
belief that, in so acting, he
will obtain a beneficial
interest in the properties
Again, in the English case of
Westdeutsche Landesbank
Girozentrale v Islington
LBC [1996] AC 669 Lord
Browne-Wilkinson stated the law
on this equitable concept at
p.705 thus:
(i)Equity operates on the
conscience of the owner of the
legal interest. In the case of a
trust, the conscience of the
legal owner requires him to
carry out the purposes for which
property was vested in him
(express or implied trust) or
which the law imposes on him by
reason of his unconscionable
conduct (constructive trust)
(ii) Since the equitable
jurisdiction to enforce trust
depends upon the conscience of
the holder of the legal interest
being effected, he cannot be a
trustee of the property if and
so long as he is ignorant of
the facts alleged to affect his
conscience, ie until he is
aware that he is intended to
hold the property for the
benefit of others in the case of
an express or implied trust or
in the case of constructive
trust, of the factors which are
alleged to affect his
conscience.
(iii) In order to establish a
trust there must be identifiable
trust property. The only
apparent exception to his rule
is a constructive trust imposed
on a person who dishonestly
assists in the breach of trust
who may come under fiduciary
duties even if he does not
receive identifiable trust
property.
(iv) Once a trust is
established, as from the date of
its establishment the
beneficiary has in equity a
proprietary interest in the
trust property, which
proprietary interest will be
enforceable in equity against
any subsequent holder of the
property …other than a purchaser
for value of the legal interest
without notice.”
From this statement of law, the
authors opine that two key
ingredients must be established
to show there was a common
intention as to what to do with
the property. Where there is no
evidence of an express
discussion having occurred
between the parties, the court
must examine the conduct of the
parties into some detail “with
the prospect of presuming a
common intention to share
beneficial ownership.”
1.
The plaintiff must convince the
court that there was a common
intention to share the property
beneficially.
2.
The claimant must demonstrate
that he changed his position
because of the unexpressed
common intention. The court may
look at conduct both prior and
subsequent to the acquisition of
the property”
In the Ghanaian case of
Soonboon Seo v Gateway
Worship Centre [2009] SCGLR
278, a Korean missionary
announced that he was going to
Korea to raise money in Korea
for the benefit of a church
based at Ashaiman near Tema in
the Greater Accra Region. Upon
his return, he announced in
church that he had raised money,
but did not disclose how much.
Subsequently, he bought land
with some of the money. The
church brought action against
him for inter alia,
declaration of title to the
land. The Supreme Court held,
per Akuffo JSC (as she then was)
at p. 296 “The facts clearly
support the creation of a
constructive trust (an implied
trust). Basing her decision
on Taylor JSC in
Saaka v
Dahali [1984-86] 2 GLR 774
at 784 who in turn had cited
Halsbury’s Laws of England (3rd
ed) vol 14 para 1155,
which defined constructive trust
as follows:
“A constructive trust arises
when, although there is no
express trust affecting specific
property, equity considers that
the legal owner should be
treated as a trustee for
another. This happens, for
instance, when one who is
already a trustee takes
advantage of his position to
obtain new legal interest in the
property as where a trustee of
leaseholds takes a new lease in
his own name. The rule applies
where a person although not an
express trustee, is in a
fiduciary position …”
She concluded that
“Consequently, in the instant
case the defendant-appellant
held the funds in question on a
constructive trust for the
second plaintiff church”
The instant case is a classic
situation of a constructive
trust. At the time of the
acquisition of the properties,
there was sufficient
understanding that he and the
Plaintiff were preparing for a
life together back home in
Ghana, and so the beneficial
interest in the property he
holds in his name was intended
to be for the benefit of both
parties. As to their weight on
the morality scale, neither
tilts the balance. The words of
Millett LJ in
Paragon Finance Plc v
Thakerar & Co (1999) 1 All
ER 400 at p. 408 close this
difficult case
“the constructive trustee really
is a trustee. He does not
receive the trust property in
his own right but by a
transaction by which both
parties intend to create a trust
from the outset and which is not
impugned by the plaintiff. His
possession of the property is
colored from the first by the
trust and confidence by mean of
which he obtained it, and his
subsequent appropriation of the
property to his own use is a
breach of that trust. In these
cases the plaintiff does not
impugn the transaction by which
the defendant obtained control
of the property. He alleges that
the circumstances in which the
defendant obtained control make
it unconscionable for him
thereafter to assert a
beneficial interest in the
property.”.
As the facts of this case show,
there is sufficient evidence on
record that the plaintiff, on a
balance of probabilities, proved
her claim against the defendant.
He had led her to believe they
were on the verge of getting
married and that led the
plaintiff to turn her earnings
over to the defendant to do what
they needed to do to secure
their future together back home
in Ghana. On the whole, “the
circumstances in which the
defendant obtained control [of
the properties] make it
unconscionable for him” to
be permitted to enjoy the fruit
of their common endeavor alone,
while the plaintiff loses
everything she had worked to
acquire. On the part of the
defendant, he could not prove
his entitlement to the vehicle.
Based on the Court of Appeal’s
failure to uphold mandatory
provisions in CI 19, as well a
consideration of the evidence
available on the record, there
is sufficient cause to set aside
the decision of the Court of
Appeal. We do so accordingly,
and with the exception of the
Ghc 5,000 costs paid to 1st
defendant, restore the judgment
of the High Court.
PROF.
H. J. A. N. MENSA-BONSU (MRS.)
(JUSTICE OF THE SUPREME COURT)
THE CONCURRING OPINION WAS
DELIVERED IN THE COURT BY
KULENDI JSC
KULENDI, JSC:-
I have read the thorough and
well reasoned opinion of my
esteemed learned sister and I
agree with her analysis and
conclusions. However, I would
like to make a brief
contribution by way of a
concurring opinion in relation
to whether or not the issue of
the legality or otherwise of
prostitution and moreover under
the laws of Italy could have
been argued before the Court of
Appeal not having been brought
up in the trial court, nor
settled as a ground of appeal.
This Court in its first holding
in the case of
FATAL
VRS WOLLEY [2013-2014] 2 SCGLR
1070, held as follows;
“(1) The legal question of
capacity, like other legal
questions, such as jurisdiction
may be raised even on appeal.
But it is trite learning that
the principle is clearly
circumscribed by law. The right
to raise legal issues even at
such a late stage is legally
permissible only if the
facts, if any, upon which the
legal question is premised, are
either undisputed; or if
disputed, the requisite evidence
had been led in proof or
disproof of those relevant
facts, leading to their
resolution by the trier of
facts; failing which the facts
could, and based purely on the
evidence on the record, and
without any further evidence,
decidedly be resolved by the
appellate court.”
In a judgment dated the 3rd
day of July 2019
in civil
suit No. J4/70/2018 intituled
TAMAKLOE & PARTNERS v. GIHOC
DISTILLERIES,
this Court commenting on the
above dicta in Fatal vrs
Woolley per Amegacher JSC said
as follows:
“From the above dictum, it is
clear that while the question of
legal capacity can be raised at
any stage, it can only be
properly raised before the
Supreme Court if this Court can
decidedly resolve the issue of
the appellant’s capacity to sue
for recovery of its legal fees
purely on the evidence on
record. Failing that, the court
is required to dismiss any
allegation of lack of capacity
at the last stage.”
The logical inference from
above, in my opinion, is that
while questions of law may be
raised at any stage, even on
appeal, the raising of a
question of law at an appellate
stage, may be permitted only in
the following circumstances:
1.
Leave of the Appellate Court
ought to be sought to introduce
the question of law for
appellate consideration;
2.
The facts upon which the legal
question is premised must be
undisputed;
3.
Or if the facts are disputed,
the requisite evidence to
determine those facts has
already been led and determined
at the trial court stage and
4.
Or if not determined, the
determination of those facts
could be made by the evidence on
record without further evidence.
In any other case, a legal
question being brought up at so
late a stage in a case ought to
be dismissed.
The grounds of appeal filed
before the Court of Appeal are
found on page 339 of the Record
of Appeal.
As is manifestly clear from the
grounds of appeal filed by the
Respondent in the Court of
Appeal, absent from these
grounds is a ground of appeal
expressly asserting that
prostitution is illegal in Ghana
or in Italy and therefore that
the Appellant could not found
her action on the purported
illegality. As a matter of fact,
the Respondent does not attempt
to bring this issue up until at
page 24 of his written
submissions filed at the Court
of Appeal (page 361 of the
Record of Appeal). This is
tantamount to arguing a ground
of appeal not contained in the
Notice of Appeal. The courts
must not entertain such late
surprises as was done in the
instant case. The purpose of a
notice of appeal is to give
parties and the court ample
notice of an appellant’s
contentions on appeal. Allowing
Appellants to deviate from their
grounds of appeal in such a
wanton manner will lead the
courts on unchartered paths that
will defeat the raison d’etre of
notices of appeal. Litigants and
their counsel may often throw in
any argument that in their
opinion may support their case.
It is the duty of an appellate
court to ensure that appellants
and their counsel do not deviate
from their stated grounds of
appeal and smuggle in novel
arguments through the proverbial
back door on the blind side of
their opponent, especially where
the opposing party does not have
a right of response to such
spontaneous arguments.
In his written submission,
counsel for the Respondent, for
the first time in the life of
the case, introduced the issue
of the legality or otherwise of
prostitution in Italy. He opined
that prostitution is illegal
in Italy and referred
to Section 40 of the Evidence
Act, 1975 (NRCD 323) which
says that the law of a foreign
country is presumed to be the
same as the law of Ghana, in
support of his spontaneous
assertion.
Respondent’s counsel further
asserted that rostitution is
illegal in Ghana. In paragraph
45 of the Respondent’s
submissions to the Court of
Appeal counsel argued as
follows:
“Her other claims were simply
founded on a cause of action for
money had and received she
described as a loan she gave to
the 2nd Defendant being proceeds
from a trade which by law of
the court’s jurisdiction is
unlawful.”
For his authority on this
subject, the Respondent quoted
Section 274(1)(a) of
the Criminal and Other Offences
Act 1960 (Act 29). For
clarity, Section 274(1)(a) is
reproduced as follows;
“(1) Any person who—
(a) knowingly lives wholly or in
part on the earnings of
prostitution; shall be guilty of
a misdemeanor”
The Respondent argued therefore
that the Trial Court Judge had
the obligation to dismiss the
entire claim on grounds of
illegality and public policy.
It is trite learning that the
question of the law of Italy,
being the law of a foreign
country, is a question of fact,
which unlike a question of law,
cannot be brought up at any
stage of a case.
Section 1(2) of the Evidence
Act, 1975 (NRCD 323)
says as follows, “The
determination of the law of an
organisation of states to the
extent that such law is not part
of the law of Ghana, or of
the law of a foreign state
or sub-division of a foreign
state, is a question of fact,
but it shall be determined by
the court.” See also the
cases of
In Re Canfor (Decd.) Canfor
v. Kpodo (1970) GLR 177 and
Davies v. Randall (1962) 1
GLR 1.
Foreign law, is a question of
fact ought to be pleaded and
proven at the trial stage. The
method of proving foreign law,
is by offering expert witnesses.
Merely presenting a lawyer with
the text of a foreign law will
not be sufficient. Although the
question of who is an expert
witness would be decided by the
Court. See the cases of
Godka
Group of Companies v. P.S.
International [1999-2000] 1 GLR
409 and Khoury v. Khoury
[1958] 3 WALR 52.
As a question of fact, the
question of the law of Italy
cannot be brought up on appeal
for the first time. Much less
without notice and leave of the
Court.
For the above reasons, I am of
the humble view that the Court
of Appeal erred when it allowed
the issue of the legality or
otherwise of prostitution as a
profession in Italy to be
brought up at an appellate
stage.
I therefore agree with my
esteemed and respected
colleagues in allowing the
appeal.
E. YONNY KULENDI
(JUSTICE OF THE SUPREME COURT)
V. J. M. DOTSE
(JUSTICE OF THE SUPREME COURT)
A.
M. A. DORDZIE (MRS.)
(JUSTICE
OF THE SUPREME COURT)
A. LOVELACE–JOHNSON (MS.)
(JUSTICE OF THE SUPREME
COURT)
COUNSEL
BOBBY BANSON ESQ FOR THE
PLAINTIFF/RESPONDENT/APPELLANT.
ALFRED AGYEI-MENSAH ESQ FOR THE
2ND
DEFENDANT/APPELLANT/RESPONDENT |
