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Matrimonial
Causes - Customary marriage –
Ordinance marriage (cap 127) –
Dissolution of the marriage –
Property - Joint beneficial
owner - Lump sum settlement –
Custody and reasonable access –
Conflict of laws - Lifting the
Veil - Whether or not the
Court of Appeal can confirmed
the assumption of jurisdiction
by the High court to determine
rights relating to immovable
properties situated outside the
jurisdiction of the courts -
Whether or not the Court of
Appeal erred in law when in its
judgment it gave certain
percentages and properties that
belonged to the company to the
Respondent who was neither a
shareholder nor a director nor a
subscriber to the company’s
regulations - Whether or not the
financial settlement awarded to
the Respondent in Pound Sterling
was erroneous in law and
excessive - Sections 33 and 35 -
Matrimonial Causes Act, 1971
(Act 367) - Sections.54 of the
Courts Act, 1993 (Act 459)
HEADNOTES
The facts of
this case as gleaned from the
Petitioner / Appellant
/Appellant’s statement of case
and the judgment of the court of
appeal are as follows: The
Appellant and the Respondent who
were husband and wife got
married by custom in July 1974.
The marriage was converted into
a monogamous marriage under
ordinance in Cambridge England
on July 16, 1976. After the
said marriage the couple
cohabitated mainly in the United
Kingdom and apparently had a
blissful relationship that was
blessed with three issues from
1974-1997, when the Respondent
discovered two letters that
caused the otherwise blissful
marriage to unravel leading to
the Appellant filing for
divorce
on August 29, 1997 while the
Respondent was still in
England. Nineteen days later
the Respondent filed a Cross
Petition for the
dissolution of the marriage
and other ancillary reliefs
which included properties both
within and outside the
jurisdiction The Respondent was
successful both in the High
Court and the Court of Appeal
HELD
In these
circumstances and having regard
to the principles set out supra,
the trial court rightly assumed
jurisdiction in equity in this
case. It is clear on these
principles that the courts
below, impliedly or in
substance, if not in form did
properly lift the veil of
incorporation and granted the
respondent the necessary reliefs.
In any case this court could
have itself done so upon its
plenary appellate powers if
necessary. The ground of appeal
relating to the financial
settlement awarded cannot be
upheld. It cannot be said to be
based on any wrong principle or
that it is based on irrelevant
or insufficient considerations.
However in the mixed situation
in this case we order that the
amount awarded be converted into
the cedi equivalent. Save as to
this, for all the foregoing
reasons, the appeal is
dismissed.
STATUTES
REFERRED TO IN JUDGMENT
Matrimonial
Causes Act, 1971 (Act 367)
Courts Act,
1993 (Act 459)
CASES
REFERRED TO IN JUDGMENT
King v.
Elliot (1972) 1 GLR 54 C.A
Youhana v
Abboud (1974) 2 GLR 201 C.A
Eng Liat
Kiang v Eng Bak HernLiat Kiang
[1995] 3 LRC 398
Cook
Industries Inc v Galliher [1978]
3 All ER 945
Webb v Webb
[1992] 1 All ER 17.
Worldwide
Shipping and Agencies (GH) Ltd v
Darko [2001-2002] 2 GLR 488,C.A,
United States
v Milwaukee Refrigeration
Transit Co, 142 Fed 247
Re Polly Peck
International plc (in
administration)[1996]2 All ELR
433
Woolfson v
Straithclyde Regional Council
1978 SLT 159
Gilford Motor
Co Ltd v Hone [1933] Ch 935,
[1933] All ER Rep 109
Jones v
Lipman [1962] 1 All ER 442,
[1962] 1 WLR 832
Adams v Cape
Industries plc [1991] 1 All ER
929, [1990] Ch 433
Morkor v.
Kuma (1998-99) SCGLR 620.
BOOKS
REFERRED TO IN JUDGMENT
DELIVERING
THE LEADING JUDGMENT
ATUGUBA,
J.S.C:
COUNSEL
PETER
OKUDZETO FOR THE
PETITIONER/APPELLANT/APPELLANT.
GAYLORD
KEMOVOR FOR THE
RESPONDENT/RESPONDENT/RESPONDENT
J U D G M E N
T
______________________________________________________________________
ATUGUBA,
J.S.C:
The facts of
this case as gleaned from the
Petitioner / Appellant
/Appellant’s statement of case
and the judgment of the court of
appeal are as follows: The
Appellant and the Respondent who
were husband and wife got
married by custom in July 1974.
The marriage was converted into
a monogamous marriage under
ordinance in Cambridge England
on July 16, 1976. After the
said marriage the couple
cohabitated mainly in the United
Kingdom and apparently had a
blissful relationship that was
blessed with three issues from
1974-1997, when the Respondent
discovered two letters that
caused the otherwise blissful
marriage to unravel leading to
the Appellant filing for divorce
on August 29, 1997 while the
Respondent was still in
England. Nineteen days later
the Respondent filed a Cross
Petition for the dissolution of
the marriage and other ancillary
reliefs which included
properties both within and
outside the jurisdiction,
as follows:
“(a)
dissolving the marriage,
(b) declaring her a
joint
beneficial owner of House
No. 38/39 BLK 01/115 East Legon,
Accra
(c) declaring her a joint
beneficial ownder of 5
Kingsfield Road, EALING W5 ILD
London, U.K.
(d) declaring her a joint
beneficial owner of 18
Chatsworth Avenue Wembley
Middlesex U.K.
(e) declaring that she is
entitled to one half of the net
income from the rent of 5
Kingsfiled Road EALING W5 ILD
London, a property jointly owned
by both parties,
(f)
that the Appellant pays her a
lump sum
settlement
(g)
that the Appellant maintains the
children of the marriage
(h)
that she be given
custody
of Owusu Akoto Jnr. the Minor
child with
reasonable access to the
Appellant, and
(i)
that she be granted such other
reliefs as the Court may deem
fit.”
The
Respondent was successful both
in the High Court and the Court
of Appeal.
The areas of the appellant’s
dissatisfaction are as stated
per Aduama-Osei J.A delivering
the judgment of the Court of
Appeal at p. 623 of the Record
of appeal as follows:
“the settled principle which
he Appellant contends have been
disturbed by the trial court are
in two areas: one is in respect
of the jurisdiction of the court
over immovable properties
situated abroad and one in
respect of the separate legal
existence of a limited liability
company from its members. We
find therefore that in their
Written Submissions, Counsel for
the Appellant question the
jurisdiction of the trial court
to deal with immovable
properties situated in the
United Kingdom, outside its
jurisdiction and also question
the validity of the trial
court’s order giving the
Respondent certain properties
registered in the name of
limited liability companies of
which the Respondent was neither
a shareholder nor a director.
The Appellant also invites this
Court to review the trial
court’s award of £150,000.00 in
favour of the Respondent as
financial settlement, as well as
the cost of ˘80,000,000.00
awarded the Respondent.”
Accordingly
the appellant’s grounds of
appeal to this court are as
follows:
“(i)
The Court
of Appeal erred in law when it
confirmed the assumption of
jurisdiction by the High court
to determine rights relating to
immovable properties situated
outside the jurisdiction of the
courts.
(ii)
the Court
of Appeal erred in law when in
its judgment it gave certain
percentages and properties that
belonged to the company to the
Respondent who was neither a
shareholder nor a director nor a
subscriber to the company’s
regulations.
(iii)
The
financial settlement awarded to
the Respondent in Pound Sterling
was
erroneous in
law and excessive.”
The issue of
Jurisdiction
The appellant
strenuously contends that it is
the lex situs, that is to
say the law of the country in
which the land is situated that
governs it and therefore the
High Court has no jurisdiction
in so far as the immovable
properties in England are
concerned. The respondent
contends that in matters of
equity there is an exception to
that rule in favour of the High
Court‘s assumption of
jurisdiction in this case. The
appellant denies the validity of
that exception.
In so far as
assistance from the
Matrimonial Causes Act, 1971
(Act 367) is concerned the
choice of law provisions as far
as the issue herein is concerned
are
sections 33 and 35. They
are as follows:
“33.
Additional jurisdiction
relating to financial provision
In addition
to any other jurisdiction
conferred by this Act the Court
shall have jurisdiction, where a
party who may be ordered to make
financial provision has assets
in Ghana, to order that party to
make financial provision not
exceeding the value of those
assets.
“35.
Choice of law
In
proceedings under this Act,
except in proceedings for a
decree of nullity of a void
marriage, the issues shall be
determined as if both parties to
the marriage were domiciled in
Ghana at the commencement of the
proceedings.”
The
proceedings in this case were
commenced in August 1997. The
parties are Ghanaians.
We agree with
the appellant’s counsel that
though the course of the
marriage between the parties
herein evokes sentiments of
sympathy towards the respondent,
the law must prevail.
“Conflict
of law rules in matrimonial
cases
Global trends on the matter, are
evolving the following questions
and principles.
In divorce
cases, when a court is
attempting to distribute marital
property, if the divorcing
couple is local and the property
is local, then the court applies
its domestic law lex fori. This
becomes much more complicated
when local laws allow polygamy.
The case
becomes even more complicated if
foreign elements are thrown into
the mix, such as when the place
of marriage is different from
the territory where divorce was
filed; when the parties’
nationalities and residences do
not match; when there is
property in a foreign
jurisdiction; or when the
parties have changed residence
several times during the
marriage.
Different
jurisdictions follow different
sets of rules. Before embarking
on a conflict of law analysis,
the court must determine whether
a property agreement governs the
relationship between the
parties. The property agreement
must satisfy all formalities
required in the country where
enforcement is sought.
Movable v.
Real Estate – In general,
applicable matrimonial law
depends on the nature of the
property. Lex situs is applied
to immovable property (i.e.,
real estate), and the law of
matrimonial domicile applies to
movable property, provided there
has been no subsequent change in
the spouses’ domicile.
There are
further issues relating to
Mutability and Immutability
Doctrines of Domicile.
Lex Fori – In
many cases, courts simply avoid
this complicated and expensive
analysis by applying their local
law to the parties’ entire
property, even if there is a
foreign element. This is based
on the assumption that laws
around the world are basically
similar in their treatment of
marriage as a co-partnership.
Since the partnership can be
placed in the forum, the forum’s
law applies to all its aspects.
In any event,
a careful study of the cases of
King v.
Elliot (1972) 1 GLR 54 C.A and
Youhana v Abboud (1974) 2 GLR
201 C.A and sections 33 and
35 of the Matrimonial Causes
Act, 1971 (Act 367) as well as
the choice of law rules in
s.54 of
the Courts Act, 1993 (Act 459)
particularly Rule 6 thereof,
since the customary laws of the
parties is unknown, shows that
it is the lex situs that governs
the reliefs relating to the
immovable properties in this
case situate in England. That
lex situs however refers to the
conflict
of laws rule of the situs.
See Elliot v King at 57 per
Bentsi-Enchill JSC and Youhana v
Abboud, supra at 205 – 206 per
Apaloo J.A (as he then was).
That lex situs is part of the
received common law of Ghana and
is not different from English
common law on the point. A
recent exposition of the common
law as to the lex situs is
contained in the decision of the
Singapore Court of Appeal ( a
common law jurisdiction) which
applied the English law on the
point, in
Eng Liat Kiang v Eng Bak
HernLiat Kiang [1995] 3 LRC 398.
The facts of
the case and the court’s
decision thereon are as stated
in the headnote thereto as
follows:
“The
appellant and his son, the
respondent, had interests in
various companies and properties
in Singapore and abroad. The
parties fell out and the
respondent filed a petition to
wind up a company in Singapore
and a similar petition in
Malaysia to wind up a company
there. The appellant filed an
action in the Singapore High
Court claiming, inter alia, a
declaration that the respondent
held on trust for him shares in
four companies incorporated in
Singapore, Malaysia and Hong
Kong and various parcels of land
in Malaysia. The respondent
filed a notice of motion for an
order that the claims relating
to the shares in the Malaysian
companies and the land situated
in Malaysia be stayed on the
ground that the court in
Singapore had no jurisdiction in
relation to foreign immovable
properties, and, alternatively,
on the basis of forum non
conveniens. The trial judge
allowed the respondent’s
application on the alternative
ground. The appellant appealed
to the Court of Appeal.
HELD:
Appeal dismissed
(1)
In general, except where an
action was based on a
contract
or equity between the
parties, a local court had no
jurisdiction to entertain
proceedings principally
concerned with a question of
title to, or the right of
possession of, immovable
property situated outside of the
jurisdiction. Since the
appellant’s claim for a
declaration of an express or
resulting trust arose in equity,
the court had jurisdiction over
the matter even though the
proceedings were concerned with
foreign immovable properties.
In addition the respondent did
not show that the Malaysian
court would never recognize a
trust that was declared by a
court other than its own, while
there was nothing in Singapore
law which made it impossible or
illegal for such a declaration
to be made or which would be an
impediment to the relief
sought. The appellant’s claim
accordingly came within the
exception and the court had
jurisdiction to entertain the
application (see pp 402, 403,
404 – 405, post).
Cook
Industries Inc v Galliher [1978]
3 All ER 945 and Webb v Webb
[1992] 1 All ER 17
approved.”(e.s)
In similar
circumstances in King v. Elliot
supra, the facts and the
decision of the Court of Appeal
are as stated in the headnote as
follows:
“P. being the
only child of her mother, a West
Indian domiciled at Cape Coast,
inherited her mother’s property
on her death intestate. P. died
in 1943, and by her will, she
devised various properties to
her relations and descendants.
One of her properties was a
house called “Pitts House” which
was devised to the plaintiff.
Control over the house was
however assumed by the
defendants because a provision
in the will of their father (who
was a son of P.) had stipulated
that the income derived from the
Pitts House should for the next
ten years be used in repayment
of the cost of redeeming a
mortgage on the property. On
the expiry of the ten years, the
defendants refused to surrender
possession and continued to
exercise control over the house
on the ground that the
plaintiff’s title was defective,
being derived from the will of
P. who had no power to dispose
of the said property by will, as
it was family property
originally acquired by her
mother who died intestate.
Wherefore the plaintiff brought
an action to claim mesne profits
and a perpetual injunction
against the defendants.
Judgment was given in favour of
the plaintiff and the defendants
appealed.
Held,
dismissing the appeal: (1) Ghana
law is the lex situs of Ghana
and an alien who acquires a
domicile of choice in Ghana does
not become subject to a
particular customary law unless
he could be shown by positive
evidence regarding manner of
life to have embraced that
system of customary law. In the
absence of such evidence the law
applicable to the estate in
question is the English common
law as it stood in 1874, (being
the current Ghana law) and P.
being the sole surviving
daughter must be adjudged as
having inherited the properties
of her mother absolutely under
the Statutes of Distribution.
(2)
The defendants, together with
the whole family had, fully
accepted, approbated and acted
upon P.’s testamentary
dispositions. They could not,
therefore, either in equity or
at customary law, be allowed to
approbate and reprobate.”(e.s)
In the
present case the facts
indisputably show that the
appellant has dealt most
inequitably with the respondent
as regards their jointly
acquired properties by various
stratagems and secret dealings.
The Court of Appeal dealt at
length with this situation but a
few excerpts would suffice.
Thus at p. 626 of the Record the
court per Aduama-Osei J.A said:
“There is
also evidence on record that in
many instances, without the
knowledge of the Respondent, the
Appellant used the properties
which he had jointly acquired
with the Respondent to take
loans which he deliberately
refused to service and thereby
allowed the properties to be
repossessed by the lending
financial institutions.
Counsel for
the Appellant agree that on the
above state of the facts, the
Appellant dealt most unfairly
with the Respondent. I will
again quote from counsel’s
written submissions:
“After
carefully reading the record of
proceedings and the trial
judge’s summary of the facts of
the case, we form the impression
that evidence portrays the
Respondent as a woman who has
been short changed in a marriage
that span about twenty three
years, during which she gave her
heart and soul and more. From a
purely emotional perspective we
are of the opinion that the
learned trial judge gave the
Appellant his just desert but
from a legal perspective we
submit that the judge committed
certain fundamental errors of
law and as such erred in law.”
Again at
p.627 the court per Aduama-Osei
J.A said:
“It is my
view that the evidence on record
supports a conclusion that the
Appellant was fraudulent in his
dealings with the Respondent
regarding the properties and I
reject the argument by Counsel
for the Appellant that the facts
do not warrant the orders made
by the trial Court.”
In these
circumstances and having regard
to the principles set out supra,
the trial court rightly assumed
jurisdiction in equity in this
case.
Lifting the
Veil
The ground of
appeal relating to corporate
personality must likewise fail.
At p.627 of the Record the
court of Appeal said:
“There is no
doubt from the evidence that in
respect of the properties owned
jointly by the parties, the
Appellant stood in a fiduciary
relationship with the
Respondent. To my mind, what
the Appellant did amounted to
converting the East Legon and
North Labone properties, which
he owned jointly with the
Respondent, into money and
putting the money into his
companies for the operation of
the companies and for his
exclusive benefit. I do not
think that in the face of the
facts the trial Court was
precluded by any principle of
law or equity from ordering that
one or two vehicles registered
in the name of one or the other
of the companies be given to the
Respondent.”
In Worldwide
Shipping and Agencies (GH) Ltd v
Darko [2001-2002] 2 GLR 488,C.A,
Brobbey J.A (as he then was, his
other brethren concurring),
quoted with approval the views
of Sanborn J in United States v
Milwaukee Refrigeration Transit
Co, 142 Fed 247 at 255 (quoted
in Pennington’s Company Law (3rd
ed), p.51 reflecting the
position of the American courts
as follows:
“… A
corporation will be looked upon
as a legal entity as a general
rule … but when the notion of
legal entity is used to defeat
public convenience, justify
wrong, protect fraud, or defend
crime, the law will regard the
corporation as an association of
persons.”
Again in Re
Polly Peck International plc (in
administration)[1996]2 All ELR
433 at 447 Robert Walker J said:
“….I was
referred to quite a lot of
authority touching on what is
sometimes called lifting (or
piercing) the corporate veil.
That is a vivid but imprecise
metaphor which has possible
application in several different
contexts, some far removed from
this case. The most relevant,
it seems to me, is where
corporate personality is (in the
words of Lord Keith in Woolfson
v Straithclyde Regional Council
1978 SLT 159 at 161) used as ‘a
mere façade concealing the true
facts.’
x
x x
Façade’ (or
‘cloak’ or ‘mask’) is perhaps
most aptly used where one person
(individual or corporate) uses a
company either in an
unconscionable attempt to evade
existing obligations (Gilford
Motor Co Ltd v Hone [1933] Ch
935, [1933] All ER Rep 109 and
Jones v Lipman [1962] 1 All ER
442, [1962] 1 WLR 832) or to
practice some other deception (a
sort of unilateral sham, since
the corporate façade has no
independent mind). In Adams v
Cape Industries plc [1991] 1 All
ER 929, [1990] Ch 433 the
establishment and interposition
of the Liechtenstein corporation
referred to as AMC was a façade
in this sense, and ‘no more
than a corporate name’”.
See also
Morkor v. Kuma (1998-99) SCGLR
620.
It is clear
on these principles that the
courts below, impliedly or in
substance, if not in form did
properly lift the veil of
incorporation and granted the
respondent the necessary reliefs.
In any case this court could
have itself done so upon its
plenary appellate powers if
necessary.
The ground of
appeal relating to the financial
settlement awarded cannot be
upheld. It cannot be said to be
based on any wrong principle or
that it is based on irrelevant
or insufficient considerations.
However in the mixed situation
in this case we order that the
amount awarded be converted into
the cedi equivalent. Save as to
this, for all the foregoing
reasons, the appeal is
dismissed.
[SGD] W. A. ATUGUBA
[JUSTICE OF THE SUPEME COURT]
[SGD]
S. A. B. AKUFFO [MS.]
[JUSTICE OF THE SUPREME COURT]
[SGD] ANIN YEBOAH
[JUSTICE OF
THE SUPREME COURT]
[SGD]
N. S. GBADEGBE
[JUSTICE OF THE SUPREME COURT]
[SGD] V.
AKOTO-BAMFO [MRS.]
[JUSTICE
OF THE SUPREME COURT]
COUNSEL:
PETER
OKUDZETO FOR THE
PETITIONER/APPELLANT/APPELLANT.
GAYLORD
KEMOVOR FOR THE
RESPONDENT/RESPONDENT/RESPONDENT |
