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JUDGMENT
AKAMBA, JSC:
This appeal by Anthony Victor
Obeng, (herein after simply
referred to as the appellant)
raises for our decision whether
or not the Court of Appeal which
affirmed the decision of the
trial High Court, adequately
considered the material factors
required by law in the latter’s
award of a lump sum of $80,000
or its cedi equivalent in favour
of Mrs Theresa Henrietta Obeng,
(herein after simply referred to
as the respondent.)
The appellant and respondent got
married on 27th July
1996 in East Lancing, Michigan,
in the United States of America.
At that time the respondent
lived and worked in Michigan in
the United States. After the
marriage they lived apart until
1998 when the respondent moved
from Michigan to join the
appellant in Addis Ababa,
Ethiopia, where the latter lived
and worked with the United
Nations (UN). There is no child
of the marriage even though each
of the parties has three (3)
children from their previous
marriages. The marriage broke
down beyond reconciliation in
1999, wherefore the appellant as
petitioner filed his petition at
the High Court Accra on 29th
December 1999. By his amended
petition filed on 15th
July 2003, the appellant sought
the following reliefs:
“(a) The dissolution of the
marriage between the Petitioner
and Respondent, and (b) Property
settlement in respect of
Respondent’s house situate at
Achimota, Accra.”
In her amended response to the
petition filed on 22nd
April 2002, the respondent also
cross petitioned for the
following reliefs:
“i. Dismissal of the Petition of
the Petitioner.
ii. Dissolution of marriage
between Petitioner and
Respondent on account of
Petitioner’s callous and cruel
misuse of the Respondent.
iii. Petitioner be condemned to
pay damages and maintenance to
the Respondent including the
cost of resettling her in the
United States of America and
maintenance pending the final
determination of the present
suit.
iv. That the petitioner be
condemned to pay the cost of
this suit including the legal
costs of the respondent.
v. Any further reliefs as may be
just.”
After a trial which lasted about
two years in which neither party
called any witness, the High
Court on 21st April
2004 entered judgment in favour
of the respondent and dissolving
the marriage between the
parties. It also ordered the
Appellant:
(a)
To pay for a one way ticket from
Accra to the United States of
America for the respondent.
(b)
Pay a lump sum of US$80,000.00
to respondent as financial
settlement. This may be made in
5 installments.
(c)
Costs of US$5,000.00 or its cedi
equivalent to cover costs of
Legal representation.
On appeal against the High Court
decision, the Court of Appeal
considered the circumstances of
the case and determined the
award of US$80,000.00 to be just
and fair but re-designated the
currency in which same was made
to bring it in line with
decisions of this court and
statutes citing reliance on the
case of Akoto v Akoto (2011)
1 SCGLR 533, 545.
Accordingly the Court of Appeal
substituted for the lump sum
payment of US$80,000.00 to be
made in its Cedi equivalent at
the current Bank of Ghana rate.
The court also considered the
costs of US$5,000.00 awarded to
respondent to be rather high
hence it was set aside and costs
of GHC4, 000.00 substituted
therefor.
The respondent has urged that
this appeal being against
concurrent findings of facts and
conclusions of two lower courts
this court ought not to
interfere with the findings
except in exceptional
circumstances. Certainly this
court can only arrive at a
decision whether or not there
are exceptional circumstances to
warrant an intervention after
considering the concerns raised
by the appellant in the light of
the record before us. See Kpakpo
v Brown [2001-2002] SCGLR 876;
Mensah v Mensah [2012] 1 SCGLR
300.
In this court, the appellant
raised three interrelated
grounds which will be determined
together namely:
(a)
The judgment is against the
weight of evidence
(b)
The order that the Petitioner
must pay to the Respondent the
lump sum of US$80,000.00 or its
equivalent in cedis as financial
settlement is excessive and
constitutes gross miscarriage of
justice.
(c)
The trial court failed to take
into account as required by law
the material factors of the
petitioner’s circumstances in
making the order for the payment
of a lump sum of US$80,000.00 by
the Petitioner to the
Respondent.
In summary, the issue brought
for our determination is the
alleged failure of the lower
courts to ‘use the evidence on
record to determine the quantum
of financial settlement’. Thus,
according to the appellant, the
court in determining what
financial settlement to make in
favour of a party should be
guided by certain factors. Even
though the Court of Appeal
stated that the ‘trial judge
took a lot of factors into
consideration in arriving at the
lump sum of US$80,000.00 as
financial settlement for the
Respondent’, this was only a
sweeping statement by the trial
judge.
The trial High Court judge
relied on Section 20 of the
Matrimonial Causes Act 1971, Act
367 as the basis for her lump
sum award. The court stated at
page 249 (last paragraph) of the
Record of Appeal (ROA) thus:
“The power of a court to make
financial provision on the
dissolution of a marriage is
provided in s. 20 of the
Matrimonial Cause (sic) Act
1971, Act 367. It states as
follows: “the Court may order
either party to the marriage to
pay to the other party such sum
of money or convey to the other
party such movable and immovable
property as settlement of
property rights or in lieu
therefore or as part of
financial provision as the court
think just and equitable “. S.
20 (2) gives the Court the
discretion to make payment and
conveyances in gross or by
installment. In making an award
for financial settlement, the
Court is to take into
consideration the ability of the
spouse who will be required to
make the payment. The Court must
also consider the standard of
living of the parties and their
circumstances.”
The trial judge then proceeded
to consider the evidence of the
parties:
“The Petitioner in his evidence
gave detailed account of his
expenditure as regards the
payment of school fees for his
children, the maintenance of and
upkeep of his mother and family
members. He also gave detailed
account of the use of the
gratuity received on his
retirement. Among others, all
these reflected in Exhibit
Q,X,T,U,V,W,X,Y,Z and from
Exhibits ‘AA’ to QQ.”
On the part of the Respondent
the trial judge recorded “the
respondent in her affidavit of
means stated that since February
2000 she has been a full-time
house wife and dependent on the
Petitioner; that she has no
independent source of income but
only expenses and that the
outstanding salary payment for
January 1999 from OAU Addis
Ababa which (see Exhibit) she
received was used to defray long
standing debts in the US.”
Without any doubt the parties
had laid essential material
before the trial judge from
which to make a determination as
to an appropriate award given
all the circumstances of the
case. Matrimonial matters are
fraught with all manner of
sentiments on the part of the
parties but at the end of the
trial it for the trial judge to
exercise her discretion in
accordance with law. As the
Constitution clearly states in
article 296, every discretion
vested in any person or
authority requires that the
person or authority and in this
case the trial judge shall be
fair and candid; that the power
shall not be arbitrary,
capricious or biased either by
resentment, prejudice or
personal dislike and shall be in
accordance with due process of
law.
The appellant laid a catalogue
of complaints, which include,
that the trial judge failed to
take into consideration the age
of the parties. That, the
appellant is a retired person
whose prospect of employment is
negligible due to his age. Also
at his present age the appellant
cannot secure a mortgage
facility to acquire a house
whereas the respondent, in
middle age and a professional
(lawyer/planner) has fair
prospects of employment as a
self employed person after
retirement from formal
employment. The next point
raised pertains to the financial
status of each party. The
appellant’s income is limited to
his pension. The appellant’s
residential property at Airport
Residential Area, Accra was
acquired during his first
marriage which was prior to his
marriage to the respondent. That
property was rented and proceeds
therefrom used to help pay the
school fees of his children by
the previous marriage. Indeed,
from the unchallenged evidence
on record, this property was
transferred to appellant’s
children. Another major lament
of the appellant has been that
the “court impliedly treated the
gratuity received by the
Petitioner on retirement after
27 years of work with UN/FAO as
if it is an asset acquired by
Petitioner during their marriage
which spanned the entire
employment period of Petitioner
with the UN/FAO and Respondent
had been prevented from earning
income or acquiring assets
during the period.”
Our able and respected brother
Dotse, JSC in Mensah v Mensah
[2012] 1 SCGLR 391, at 405
in due consideration of section
20 (1) of the Matrimonial Causes
Act, 1971 (Act 367) observed,
that “Even though it was held in
Abebrese v Kaah (supra), that
the ordinary incidents of
commerce would not apply in
marital relations and that the
courts would not employ
mathematical division to
determine each spouse’s share in
the property, the courts
currently apply the equality is
equity principle. This principle
is backed by constitutional
force in article 22 (3) (b) of
the Constitution earlier
referred to.”
Article 22 of the 1992
Constitution provides: “(1) A
spouse shall not be deprived of
a reasonable provision out of
the estate of a spouse whether
or not the spouse died having
made a will.
(2) Parliament shall, as soon as
practicable after the coming
into force of this Constitution,
enact legislation regulating the
property rights of spouses.
(3) With a view to achieving the
full realization of the rights
referred to in clause (2) of
this article-
(a) spouses shall have equal
access to property jointly
acquired during marriage;
(b) assets which are jointly
acquired during marriage shall
be distributed equitably between
the spouses upon dissolution of
the marriage.”
The essence of the observation
by Dotse, JSC supra, is that
even though courts are generally
not guided by any mathematical
formulae in determining spousal
property distributions, whenever
mathematics offers the
appropriate solution the courts
would employ them. It is quite
evident that in fixing the lump
sum payment awarded against the
appellant both the trial court
and the Court of Appeal were
minded that the appellant could
meet it from his lump sum
gratuity. Ordinarily a court
should only order a lump sum
payment when the husband has
capital assets out of which to
pay without crippling his
earning power. When he has
available assets sufficient for
the purpose the court should not
hesitate to order him to pay a
lump sum. The payment should be
outright and not subject to
conditions except where there
are children, when it may be
desirable to make it the subject
of a settlement. (See Wachtel v
Wachtel (1973) 1 AER, 829 at
830). In the instant appeal the
couple had been ordinarily
resident and working in Addis
Ababa from where the appellant
retired from his UN job and
obtained his gratuity. It is
appropriate in the circumstance
to determine the appellant’s
capability to meet the award
from such sum, among others.
In his reply to submissions of
the respondent filed on 25th
March 2015 in this court, the
appellant urged that the award
of US$80, 000.00 represents
about 30% of the Petitioner’s
gratuity earned from 27 years of
work with the UN. The marriage
between the parties was only for
5 ½ years which is approximately
25% of the period appellant
worked to earn his gratuity.
Persuasive as the submissions
are, we are obliged to look at
the totality of the evidence
presented before the court in
arriving at a reasonable
conclusion on the award.
The case of S v. S (1977) 1
AER, 56 relied upon by the
trial judge is quite apposite to
the present case on the factors
to be borne in mind in arriving
at the quantum of lump sum
award. At page 60 of the report,
Ormrod, L.J observed as
follows:
“ I think it is of
importance, with these short
marriages, particularly where
the people concerned are not
young, to look very closely to
see what the effect of the
marriage has been, mainly on the
wife, but of course also on the
husband. There is no doubt that
the fact of this marriage has
been unfortunate as far as this
wife was concerned. Had she not
married, she would presumably
still have been in her own
house; she would probably still
have been doing her full-time
job; she would undoubtedly have
earned a larger pension than she
will now get, although she would
not of course have enjoyed the
very much higher standard of
living that her husband could
offer her in his house. But the
result is that she has lost, as
a result of the marriage, her
house in circumstances which I
think quite reasonable; she must
be worse off pension-wise than
she would have been.
While there is no question of
putting her back into the
position in which she was before
the marriage, or performing any
hypothetical task of that kind,
these are all factors which are
to be borne in mind in making an
order which is just in all the
circumstances of the case, which
is the primary requirement of
the 1973 Act. As a result of the
breakdown of the marriage, she
has lost substantial prospects
of, at any rate, a comfortable
old age which she would have
had, had the marriage subsisted.
That is not a question of whose
fault it is; it is a fact that
she has lost that.
So the court has to do the best
it can to do broad justice
between these two parties,
bearing all of the relevant
circumstances in mind and trying
not to take account of a lot of
irrelevant matters which
irritated the parties during the
process of the hearings, the
trial and so on, and to try and
look at the whole thing in a
detached kind of way.”
Viewed against the totality of
evidence on record, and the
needs of either party, we think
it is equitable to allow a
slight reduction in the lump sum
figure awarded in favour of the
respondent. In the circumstance
we hereby set aside the award of
US$80,000.00 or its Cedi
equivalent and substitute
therefor an outright lump sum
payment of the sum of
US$70,000.00 or its Cedi
equivalent, at the prevailing
rate as a commensurate award.
The order for the appellant to
pay a one way ticket from Accra
to the United States of America
for the respondent as well as
costs of GhC4,000.00 to the
respondent are affirmed.
In the result, save for the
variations supra, the appeal is
dismissed. We make no order as
to costs.
J.
B. AKAMBA
JUSTICE OF THE SUPREME
COURT
W.
A. ATUGUBA
JUSTICE OF THE SUPREME
COURT
V.
J. M. DOTSE
JUSTICE OF THE SUPREME
COURT
ANIN
YEBOAH
JUSTICE OF THE SUPREME
COURT
A.
A. BENIN
JUSTICE OF THE SUPREM
COUNSEL
ALEX QUAYNOR ESQ. FOR THE
PETITIONER/APPELLANT/APPELLANT.
NII AKWEI BRUCE THOMPSON ESQ.
WITH HIM RICHARD OBENG FOR THE
RESPONDENT/RESPONDENT/RESPONDENT. |
