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Divorce - Marital Property - Settlement -
Whether or not the trial judge
erred in law when he treated the
proposals submitted without
prejudice for consideration
towards an amicable settlement -
Whether or not there was
disagreement on those proposals
as a result of -complete
rejection of the proposals
submitted on behalf of the
appellant by counsel for the
respondents - Whether or not the
parties had failed to reach a
consensus on the settlement -
Whether or not the disputed
house was vested in the two
children - Whether the appellant
was the sole trustee of the
disputed house with the death of
the petitioner
HEADNOTES
The original parties in this
divorce action Eloi Kofi Mensah
Simmons (deceased) and Catherine
Simmons were ordinarily resident
in London, United Kingdom. They
met and later contracted a
customary marriage in Accra and
converted the customary marriage
into an Ordinance marriage in
London and lived peacefully
thereafter. About a decade or so
after a presumed blissful
marriage which was blessed with
two children; a male and a
female, differences, which are
not uncommon in marriages,
reared their ugly head in the
marriage. The man re-located in
Accra, Ghana, but the appellant
decided to stay on in London.
The Petition was filed in the
High Court by the man of the
marriage; i.e. the husband, The
High Court delivered judgment.
The petitioner attached a tall
list of all the marital
properties the parties had
allegedly acquired jointly both
within and outside the
jurisdiction of this court;
including even normal household
chattels. The appellant entered
appearance to the petition . She
filed an answer to the petition
denying almost everything of
substance in the petitioner’s
case bordering on the
acquisition of those properties,
but the existence of the
marriage between them. She
cross-petitioned for dissolution
of the marriage as prayed by the
petitioner. She accused the
petitioner of cruelty. She also
prayed for custody of the two
children of the marriage, refund
to her of monies petitioner owed
her and a declaration that the
petitioner had no share in the
properties he described as
marital properties.
HELD -
The
appellant, aside of invoking our
jurisdiction to set aside both
decisions of the trial court and
the first appellate court as
being wrong in law, is also
asking us to send them back to
the trial court for a trial de
novo. We accede to that request
and order that the suit be
remitted to the trial High Court
for re-trial. We, however,
advise the appellant Catherine
Simmons to smoke a peace pipe
with her only children with her
deceased husband who were
brought into this matter as
substituted respondents after
the death of the original
respondent who happened to be
their father, instead of
dragging the matter further.
STATUTES REFERRED TO IN JUDGMENT
CASES REFERRED TO IN JUDGMENT
ARTHUR (No 1) v ARTHUR (No 1)
[2013-2014] 1 SCGLR 543
MENSAH v MENSAH [2012] SCGLR,
391
THE REPUBLIC v HIGH COURT,
ACCRA; EX-PARTE; JOSEPH DANSO –
APPLICANT; (NEW PATRIOTIC PARTY
& 4 Others – INTERESTED
PARTIES); Civil Motion No.
JS/5/2015, dated 22/01/2015
ASSEMBLIES OF GOD CHURCH, GHANA
v RANSFORD OBENG & 4 Others
[2011] 32 GMJ 132 - SC
MRS CHRISTIANA E. A. ABOAH v
MAJOR KEELSON [2011] 37 GMJ 63
BOOKS REFERRED TO IN JUDGMENT
Black’s Law Dictionary,
of
Halsbury’s Laws of England
Volume 26
DELIVERING THE LEADING JUDGMENT
APPAU, JSC. :
COUNSEL
MRS. M. Y. N.
ACHEAPONG ESQ. FOR THE
PETITIONERS/RESPONDENTS
/RESPONDENTS.
EGBLEGBE ANAGLATE ESQ. FOR THE
RESPONDENT/ APPELLANT/
APPELLANT.
---------------------------------------------------------------------------------------------------------------
JUDGMENT
------------------------------------------------------------------------------------------------------------------
APPAU, JSC. :
My Lords, the appeal before
this Court is a simple marital
property case arising from a
divorce petition which,
regrettably, celebrated its 21st
birthday of its life in the
courts on 19th
December 2015. Its court age is
therefore twenty-one (21) years,
two (2) months and twenty-five
(25) days as at today. The
Petition was filed in the High
Court on the 19th day
of December 1994 by the man of
the marriage; i.e. the husband.
The High Court delivered
judgment in the case on 7th
January 2008. The respondent
(i.e. the wife) who is the
appellant before us was not
pleased at the way the trial
court arrived at its decision.
She consequently appealed
against that decision to the
Court of Appeal as was expected.
However, almost two months after
filing the notice of appeal, and
before the parties could settle
the conditions of appeal, the
Petitioner/Respondent in the
appeal (i.e. the man) died. He
died on 22nd May
2010, (more than five years
ago).
Considering the nature of the
dispute which was on its journey
to the Court of Appeal at the
time of the
Petitioner/Respondent’s demise,
any reasonable mind would have
thought that the dispute would
die naturally since pursuing it
would be tantamount to flogging
a dead horse. Strangely enough,
the case survived the dead
petitioner with the two children
of the marriage being dragged
into the case as substituted
petitioners/respondents to
replace their dead father in his
marital war against their mother
(the appellant).
The appeal failed when the Court
of Appeal dismissed it. Still
dissatisfied, the
respondent/appellant/appellant
(hereinafter simply referred to
as ‘appellant’), has come before
us to re-consider her only
ground of appeal, which appeared
to be the same ground in
substance in her first appeal
before the Court of Appeal. I
reproduce the two grounds below:
The only ground of appeal
determined by the Court of
Appeal was as follows;
“The trial judge erred in law
when he treated the proposals
submitted without prejudice for
consideration towards an
amicable settlement as the basis
for his judgment when there was
disagreement on the said
proposals”.
The ground of appeal before this
Court after the first appeal
suffered a setback is also as
follows; “The Court of
Appeal failed to pronounce on
the paramount issue of whether
or not the trial judge erred in
law when he treated the
proposals submitted without
prejudice for consideration
towards an amicable settlement
as the basis for his judgment
when there was disagreement on
those proposals as a result of
complete rejection of the
proposals submitted on behalf of
the appellant by counsel for the
respondents”.
From the facts on record, the
appellant may appear
unreasonable for pursuing the
matter up to this level but
events that would unfold later
in the determination of this
appeal would reveal the role
both counsel have played in
contributing to the protraction
of this simple dispute, which
falls into the category of cases
the celebrated (Dr) Date-Bah,
JSC described as ‘love
stories gone sour’ in the
case of ARTHUR (No 1) v
ARTHUR (No 1) [2013-2014] 1
SCGLR 543 @ 549.
Facts of the case
The original parties in this
divorce action Eloi Kofi Mensah
Simmons (deceased) and Catherine
Simmons were ordinarily resident
in London, United Kingdom. They
met and later contracted a
customary marriage in Accra in
1981. Two years later (in 1983)
they converted the customary
marriage into an Ordinance
marriage in London and lived
peacefully thereafter. About a
decade or so after a presumed
blissful marriage which was
blessed with two children; a
male and a female, differences,
which are not uncommon in
marriages, reared their ugly
head in the marriage. The man
re-located in Accra, Ghana in
1991 but the appellant decided
to stay on in London.
Their differences escalated to a
point of no return culminating
in the present action which
began in the High Court on
19/12/1994 and has survived up
to this date. With this appeal,
this Court has been called upon
to put a sealing to its progress
subject to a review if need be.
The reliefs sought by the
petitioner in the trial High
Court were:
a)
That the marriage be
dissolved;
b)
That the custody of
the two children of the marriage
be given to the petitioner;
c)
That the petitioner
be given equitable share of all
the marital properties, and
d)
Any other order that
the trial court thought the
petitioner was entitled to.
The petitioner attached a tall
list of all the marital
properties the parties had
allegedly acquired jointly both
within and outside the
jurisdiction of this court;
including even normal household
chattels.
The appellant entered appearance
to the petition on 23/12/1994.
She filed a fifty-paragraphed
answer to the petition with
several sub-paragraphs, denying
almost everything of substance
in the petitioner’s case
bordering on the acquisition of
those properties, but the
existence of the marriage
between them. She
cross-petitioned for dissolution
of the marriage as prayed by the
petitioner. She accused the
petitioner of cruelty. She also
prayed for custody of the two
children of the marriage, refund
to her of monies petitioner owed
her and a declaration that the
petitioner had no share in the
properties he described as
marital properties.
The language used by both
parties in their pleadings
(particularly the petitioner),
which ignited the hot exchanges
between them as evidenced from
the record, suggested the level
of acrimony between the couple.
It was so clear that the marital
damage was so severe and
grievous that it could not under
any circumstances be repaired or
healed in any way. The trial
court per Agnes Dordzie, J (as
she then was) therefore decided
to dissolve the marriage in the
middle of the hearing which
commenced on 18/02/1997, leaving
the ancillary relieves of the
distribution of marital
properties and the custody of
the children to be determined by
evidence.
After sometime, the trial judge
advised the parties to attempt
settlement when it became
obvious that the only dispute
between the parties was the
ownership of only one house;
i.e. the matrimonial home
numbered: Hse No B. 835/25B,
Kwashieman Motorway, Accra. This
was because the children had by
then attained the age of
maturity and therefore could not
be a subject of custody orders.
The case thereafter went into
abeyance for several years as
the parties failed to return to
court to announce the outcome of
the settlement the trial court
advised them to attempt. It was
not until 6th June
2004 that the petitioner filed a
‘Notice to Proceed’, to revive
the action which had gone stale
for five (5) years.
On
27/07/2007; i.e. thirteen (13)
good years after the institution
of the action, the matter came
before Lartey-Young, J. who
happened to be the fourth judge
to handle the petition. He also
advised the parties to try an
out of court settlement of their
differences. Upon his
promptings, the parties put in
proposals for an amicable
settlement of the dispute. The
appellant filed her proposals
first which was responded to by
the petitioner. The appellant’s
proposal for settlement which
was filed on 29/09/2009 was as
follows:
“PROPOSALS FOR SETTLEMENT
Pursuant to the Order of the
Court dated the 24th
day of July 2009, the Parties
having acknowledged the fact
that the only existing property
is the House, we hereby make the
following proposals to be
considered as the terms of
settlement.
(i)
That the said House No B 835/25B
situate at Kwashieman and with
an attached plot be distributed
equally between the Parties.
(ii)
That the said property be
enjoyed by the Parties during
their lifetime.
(iii)
That on no account shall the
property be disposed of by any
of the Parties’ trustees,
assigns or any legal
representative by way of lease,
mortgage or sale.
(iv)
That the property be held in
trust for the two children and
their children and shall remain
so even during the life time of
the Parties”
Unfortunately, the proposal
filed by the petitioner on
6/10/2007, which he titled as;
‘Response to proposals for
settlement presented by the
respondent pursuant to a Court
Order’, turned out to be
more of a diatribe than a simple
proposal intended to bring to a
peaceful and amicable end the
dispute between the parties.
Since it is quite verbose and
unpalatable in some sense, we do
not find it necessary to
reproduce it in this judgment.
It covers pages 239, 240 and 241
of the ROA.
While in substance, it tended to
agree with the simple proposals
suggested by the appellant, it
was full of vitriolic attacks on
the character of the appellant
to the extent of even calling
her a thief and suggesting that
she was more or less a
nonentity. It even went further
to suggest that as the mother of
the two children who laboured to
give birth to them, the
appellant did not like or love
her own children as much as
their late father (the
petitioner) did. It was this
thinking that moved counsel for
the late petitioner/respondent,
(hereinafter called
‘respondent’), to regrettably
drag the two children of the
marriage into their parents’
marital dispute under a wrong
nomenclature of “judgment
beneficiaries”.
The fact is that both parties
had planned to build for their
two children and had expressed
this by agreeing that they were
only trustees for their
children, holding only life
interest in the said property,
which had been registered in the
name of the first child. Both
had indicated that none of them
could dispose of the house in
any way during their lifetime.
With such an understanding, how
could the children who have not
as yet become owners, be pitched
against their mother who still
holds life interest in the whole
property after the death of
their father?
Such a display of bitterness and
lack of trust would invariably
infuriate the appellant and
ginger her into not accepting
any deal. And it is this conduct
on the part of the respondent,
which this Court wholly blames
on his counsel or lawyer, with
the greatest respect to her,
that has carried this simple
case this far.
Aside of the character
assassination of the appellant
by the respondent in his
proposals, respondent agreed in
substance that the disputed
house was jointly owned by the
two of them. He again agreed
that as parents, they were
holding it in trust for their
two children and that they had
only life interest in same for
which none of them could dispose
of it in any way during their
lifetime. If the respondent had
ended his proposals this way,
that would have sounded the
death knell of the case.
Unfortunately, however, he
didn’t. He went further to
suggest that he alone should be
made to enjoy occupation of the
house since the appellant had a
house of her own somewhere else
where she was living. To this
end, he suggested that some
relatives of the appellant who
were occupying rooms in the
disputed house at the pleasure
of the appellant should be
ejected from the rooms.
The High Court’s determination
of the two proposals submitted
by the parties
After the filing of the two
proposals, the trial High Court
sat on the return date which was
30th October, 2009.
Both the respondent and the
appellant were present with
their lawyers namely; Mrs M. Y.
N. Achiampong for the respondent
and Charles Mbeah, Esquire for
the appellant. This was what
transpired in the trial court
that day:
“BY COUNSEL FOR THE
RESPONDENT: We filed a
proposal for settlement upon the
Order of the court. But the
response we received shows that
we have not reached any
solution.
BY COURT: The two proposals
have now been discussed with
both parties and their counsel.
The petition is adjourned for
ruling on the proposal for
settlement. Adjourned to
27/11/09 for Ruling at 10.00 am.
(SGD) ………………………………….
JUSTICE OF THE HIGH COURT”
Though the record indicates that
the trial court did discuss the
two proposals with the parties
and their lawyers, no record was
made of the alleged discussions
had. This Court could not
therefore fathom what the trial
court intended to rule on, on
the next adjourned date as
recorded. Incidentally, there is
no record that the trial court
did sit on the 27th
of November 2009 as indicated.
Rather, the record shows that
the trial court sat on 19th
February 2010; almost four
months after the court had
adjourned for ruling on the two
proposals.
On
this date, the trial court did
not deliver a Ruling on the
proposals as intimated on
30/10/2009. Rather, the trial
court pronounced judgment in the
matter bringing to a close the
action before it. It is a
four-page judgment. It is this
judgment that lit the appeal
flame that has kept burning up
to date. It is therefore worth
reproducing for a better
appreciation of the judgment of
this Court: -
“BY COURT:
JUDGMENT
The petition is for an order to:
(a) Dissolve the marriage; (b)
The custody of the two children
should be given to the
petitioner; (c) That the
petitioner be given half share
of all the properties acquired
during the marriage since they
were acquired jointly and (d)
Any further order the court may
deem fit.
The respondent also
cross-petitioned for: (a)
Dissolution of the marriage; (b)
An order for the custody of the
two children; (c) That all
monies of the respondent which
the petitioner took and pocketed
same should be paid back to the
respondent; (d) A declaration
that the petitioner has no joint
interest in the legally acquired
properties of the respondent and
(e) An order for account.
This suit was filed in 1994 and
passed through protracted
proceedings in other High
Courts. The order for divorce
was granted by one of the courts
before the petition was
transferred to this court in the
year 2008. At that time the two
children of the marriage had
attained ages above twenty-two
years. The issue of custody was
therefore disposed of summarily
because under the Children’s Act
they were disqualified to be
children.
The only issue left for trial
now was the distribution and
settlement of properties
acquired during the marriage.
After a protracted negotiation
frustrated with acrimony but
upon prompt (sic) by the court,
counsel for both parties agreed
to attempt a settlement. Counsel
for the respondent filed a
proposal which I wish to
reproduce here:
(i)
That the said house No.
B.835/25B situate at Kwashieman
and with an attached plot be
distributed equally between the
parties.
(ii)
That the said property shall be
enjoyed by the parties during
their lifetime.
(iii)
That on no account shall the
property be disposed of by any
of the parties’ trustee, assigns
or any legal representative by
way of lease, mortgage or sale.
(iv)
That the property be held in
trust for the two children and
their children and shall remain
so even during the lifetime of
the parties.
The petitioner’s response as
filed by his counsel is quite
long to be reproduced verbatim.
I will, however, make a summary
of it.
(1)
That the House No.
B.835/25B is recognized as a
joint matrimonial property
though the respondent expended
more of the cost.
(2)
That the said
property has been held in trust
for the two children Alice and
Kofi upon advancement.
(3)
Petitioner agrees
with paragraphs (ii) and (iv) of
the proposal and wants the court
to so declare that the property
is jointly owned matrimonial
property and that it has been
advanced to the children but
reserving life occupancy for the
parents.
(4)
Since the marriage
has been dissolved the couple
cannot live together in the same
house (which is not
partitionable) and since the
respondent has acquired another
property solely for herself the
petitioner alone should be given
the right to live in the house
for his life.
(5)
All assignees or
tenants of the house shall
vacate it and give vacant
possession for the petitioner
only for his lifetime.
(6)
Paragraph three of
the proposal is agreed.
The court upon reading and
comparing these proposals and
responses shall make the
judgment and orders:
(1)
The House No.
B.835/25B, Kwashieman is
declared a joint matrimonial
property of the parties.
(2)
The said property
shall be held by both parties in
trust for their two children;
Alice and Kofi only.
(3)
Though the respondent
shall be recognised as a joint
trustee, the petitioner alone
shall occupy it for his lifetime
only because he is now aged and
the respondent has a
self-acquired residence and also
doing a good business.
(4)
The property shall
never be disposed of by way of
assignment, lease, mortgage or
sale by any of the parties
(trustees) or their legal
representatives.
(5)
All tenants,
assignees or persons occupying
the said property upon a grant
by the respondent shall vacate
it and give vacant possession to
the petitioner to have sole and
peaceful enjoyment during his
lifetime.
(6)
Each party shall pay
his or her cost.
(7)
It is ordered
accordingly.
(SGD) MR. ISAAC LARTEY-YOUNG, J.
JUSTICE OF THE HIGH COURT”
Appeal by the wife (appellant)
to the Court of Appeal
Not pleased with the disposal of
the case in this manner, the
wife filed an appeal against the
judgment of the High Court to
the Court of Appeal. Her only
ground of appeal was that;
“The trial judge erred in law
when he treated the proposals
submitted without prejudice for
consideration towards an
amicable settlement as the basis
for his judgment when there was
disagreement on the said
proposals”.
The appellant filed no further
ground as intimated in her
notice of appeal.
The crux of her arguments in the
five-paged written submissions
filed before the Court of Appeal
was that the
petitioner/respondent, having
rejected the proposals filed by
the appellant as the basis for
the intended settlement, the
parties had failed to reach a
consensus on the settlement for
which the court should have
continued with the hearing of
the case instead of foisting a
judgment, which was not on the
merits, on the parties.
As
has been indicated earlier on in
this judgment, the respondent
did not survive the appeal. He
died before the appeal record
was transmitted to the Court of
Appeal. His counsel therefore
filed a motion to substitute him
with his two children with the
appellant. The trial High Court
granted the application
presumably because of the
description given the children
as; “judgment
beneficiaries”.
The children were neither the
successors nor the joint family
heads of their late father’s
family. There was no indication
that their late father died
testate and devised the said
property to them as
beneficiaries. However, counsel
for the respondent swore to an
unpleasant affidavit in support
of the motion for substitution
dragging the two children into
the action. Some of the
depositions were scathing
attacks on the character of the
appellant who is the mother of
the two children sought to be
introduced in the case as the
new respondents. Others
particularly; paragraphs 2, 6
and 9 were mis-statement of
facts. The said paragraphs read:
“2. That I have the authority
and consent of the children of
the deceased petitioner in
whom the trial judge gave
judgment vesting the disputed
house in them and make
the depositions herein which
have come to my professional
knowledge in course (sic) of my
engagement.
{Emphasis added}
6. That despite the fact that
the respondent had left the
house for so long and has been
staying in her own house for all
these years whereas the
petitioner who had no other
house than the Kwashieman house
had lived in same up to the time
of the judgment, the respondent
has appealed against the
judgment of the Court to
invest the said house in the
children after the expiration of
the life interest given to the
petitioner in the house.
{Emphasis added}
9. That as required by law, the
deceased ought to be substituted
by a proper person(s) for the
case to be determined and we
believe that the proper legal
persons to do so are the very
children who are now adults,
ALICE and KOFI SIMMONS
into whom the judgment under
appeal had vested the property.”
{Emphasis added}
The fact is that the trial High
Court never at any time, vested
the disputed house in the two
children as paragraphs 2, 6 and
9 of the affidavit sworn to by
counsel for the respondent
herself and reproduced above,
portrayed. The fact that the
trial court directed that the
late petitioner alone should
occupy the house during his
lifetime did not mean that the
appellant has no interest in it
for it to become the children’s
property outright after their
father’s death.
Black’s Law Dictionary, (Ninth
Edition) defines the word
‘vest’ as: “1. To
confer ownership of property
upon a person; 2. To invest a
person with a full title to
property; 3. To give a person an
immediate, fixed right of
present or future enjoyment
and 4. To put a person into
possession of land by the
ceremony of investiture.
A
‘Vesting Order’ is
therefore; “a court order
passing legal title in lieu of a
legal conveyance”. That
was not the substance of the
trial court’s judgment that went
on appeal to the Court of Appeal.
The trial court only grounded
its judgment on the agreement by
both parties to leave the
disputed property for their
children unencumbered after
their death. The court then
added its own orders which were
to the advantage of the late
respondent that the appellant
did not agree to. These orders
were that the respondent alone
should occupy the matrimonial
home for which the relatives of
the appellant, who were then
living in the house, were
ordered to vacate same.
The answer of the respondent to
the written submissions of the
appellant was simply that a
careful reading of the two
proposals filed by the parties
clearly showed that there was no
disagreement between them that
was why the trial court adopted
the said proposals. She gave
indications as to why the trial
court made the other two orders
which the appellant did not
agree to. These orders were;
i.
That the petitioner alone should
occupy the matrimonial house for
life since the appellant had
another house of her own where
she resides.
ii.
That the relatives or tenants
the appellant had placed in the
matrimonial house must vacate it
to give petitioner alone
peaceful enjoyment of the house.
It
appears learned counsel for the
respondent, with the greatest
respect to her, does not
appreciate the full import of
the judgment of the trial High
Court that was affirmed on
appeal by the Court of Appeal.
I
must emphasize that the trial
court did not order the
relatives of the appellant in
the house to vacate the house so
as to give vacant possession to
the children of the marriage she
had substituted as respondents
in this appeal as counsel for
the respondent contended in the
last paragraph of her written
submission in the Court of
Appeal. (See page 289 of the
ROA).The trial court never made
such an order.
The trial court made the
vacation order against the
tenants placed in the house by
the appellant to ensure that the
petitioner, who was of age,
would live peacefully without
any disturbance till his death.
This was because there was an
unproven allegation that those
relatives or tenants were
creating nuisance in the house.
However, with the death of the
respondent, that order abated.
The wife, who is the appellant
and a joint owner of the
property by the judgment of the
trial court, has life interest
in the property, which is her
matrimonial property or home.
She could deal with it in any
way; the only exception being
that she could not dispose of it
since it reverts to her two
children after her death.
This was the position, going by
the judgment of the trial High
Court, notwithstanding the fact
that she has her own
self-acquired property
elsewhere. The property only
passes to her children after her
death but not after the death of
the petitioner alone. It was
this position, as envisaged in
the judgment of the trial High
Court that operated on the mind
of the Court of Appeal to
dismiss the appellants appeal
without addressing distinctly
the substance of the only ground
of the appellant’s appeal.
The Court of Appeal in its
judgment of 11th
April, 2013 delivered itself at
page 4 of the judgment, which is
at page 300 of the ROA, as
follows:
“On the
22nd of May 2010 the
petitioner/respondent passed
away. One would have expected
that with the demise of the
petitioner/respondent at the
ripe age of 80 years, the life
tenancy granted him would have
expired and the
respondent/appellant would have
become a sole trustee for the
property. However, that
sanguine expectation was not to
be. The respondent/appellant did
not find the path of peace to
withdraw her appeal. The legal
process therefore made it
necessary to pitch the children
against their mother in this
ignoble struggle for property
i.e. one house. The ground of
appeal is not specifically
against any of the orders made
in the judgment. The appeal is
merely against the procedure
adopted in arriving at the
judgment.
The
relief sought from this court
is; ‘A reversal of the said
ruling and orders made by the
learned judge’. In my humble
understanding it was the wish of
the respondent/appellant that
the parties should revert to the
negotiating table. The very
process which both counsel have
demonstrated an inability to
effect, for over fifteen years!
The palpable acrimony which
counsel for the parties have
acquired from their clients
culminated in an irreconcilable
disposition which has persisted
for the fifteen years.
What
would then constitute a
permanent practical and legal
solution to this seemingly
intractable problem? It is our
considered opinion that it has
never been the intention of the
respondent/appellant to litigate
with her own children over a
piece of property which she has
dedicated herself to protect for
the benefit of these same
children against older children
of her erstwhile husband. In our
considered view it will serve no
purpose once the parties have
agreed that the property was
acquired during marriage to go
back to the negotiation table
for the following reason…”
{Emphasis added}
The Court of Appeal then
referred to the celebrated case
of this Court on the
distribution of marital
properties delivered on 22nd
February 2012; i.e. GLADYS
MENSAH v STEPHEN MENSAH, which
has been reported as MENSAH v
MENSAH [2012] SCGLR, 391 and
other like cases and concluded
that by that decision, since the
disputed property was acquired
jointly during marriage it
belonged to the two parties.
There was therefore no need to
send the parties back to the
negotiating table as the
appellant was advocating. It
accordingly dismissed the
appeal.
Further appeal by the appellant
to this Court
The appellant was still not
satisfied with the decision of
the Court of Appeal and has come
before us with this ground of
appeal: “The Court of
Appeal failed to pronounce on
the paramount issues of whether
or not the trial judge erred in
law when he treated the
proposals submitted without
prejudice for consideration
towards an amicable settlement
as the basis for his judgment
when there was disagreement on
those proposals as a result of
complete rejection of the
proposals submitted on behalf of
the appellant by counsel for the
respondents”.
The gravamen of appellant’s case
as submitted in her seven-page
statement of case filed on
24/12/2014 in support of the
appeal before us is captured
under pages 6 and 7 of the
statement. I reproduce same
below: -
“My Lords, the essence of
justice is that where there is
no peaceful resolution of the
matters in controversy, the
parties must be heard BEFORE an
informed decision based on a
proper evaluation of the
parties’ evidence is made. The
respondent/appellant never
insisted that the proposals for
settlement having been abusively
rejected, then the parties
should revert to the negotiating
table. With respect to the Court
of Appeal, this was never her
case.
What she has been insisting on
is that once her simple straight
forward proposals for an
amicable settlement were
rejected, and in such a
vitriolic manner, then the only
option left for the court was to
proceed to take evidence and not
to make the rejected proposals a
basis for the judgment
complained of, for she NEVER at
any time waived her right to be
heard.
It is submitted that the Court
of Appeal’s reference and
reliance on the GLADYS MENSAH vr
STEPHEN MENSAH case is
unjustified, because that case
nowhere laid the rule down that
once it is a matter arising from
a matrimonial cause, then NO
EVIDENCE should be taken by the
court.
It is submitted that the
decision in MENSAH v MENSAH was
ONLY arrived at after evidence
was taken and reviewed.
It is submitted that the High
Court committed a fundamental
error which goes to the roots of
judicial adjudication when suo
motu, it decided to use the
rejected proposals as the basis
for judgment and the Court of
Appeal in affirming this
decision continued this
fundamental error.
Yes, there was a lot of caustic
and acerbic acrimony but this
acrimony came mainly from one
source, the Petitioner and his
Counsel. However inconvenient,
difficult or demanding a full
trial would have been, that was
the only course open to the
court below, in view of the
clearly intransigent position of
the parties.
If the parties were NOT AD IDEM,
then the Court had to listen to
the whole evidence and make an
informed decision on the
evidence. This not having been
done, then it is submitted that
no trial took place and the
judgment however called, cannot
stand. A proper trial has
to take place with everything
being done according to the
accepted rules.
I therefore submit that your
august Court sets aside the
Judgment of the Court of Appeal
and orders a retrial.”
{Emphasis added}
This has been the stance of the
appellant long before the death
of the Petitioner during the
appeal and it is still her
stance, for she is aggrieved
because she was not allowed to
give evidence. I submit
accordingly…”
In
our view, counsel for the
respondents did not answer the
arguments advanced by the
appellant in her statement of
case filed in this Court. She
continued with her vitriolic
attacks on the character of the
appellant in her statement of
case filed for and on behalf of
the respondent and alluded to
facts which were neither part of
the judgment of the trial court
nor that of the Court of Appeal.
It is this wrong perception held
by counsel for the respondent
that has dragged this case this
far. She stated in her un-paged
Statement of Case filed on
21/1/2015 as follows: -
“My Lords, the present position
of the children substituted
respondents is that they are now
full adults aged 32 and 30 years
and both married and therefore
capable of managing their own
properties. Indeed being sent to
London after their Senior
Secondary School education at
Achimota Secondary School, they
have been able to work and
school to graduate at the
University with Kofi holding a
Master’s Degree and therefore
praying this Honourable Court to
pronounce them as such and to
order the appellant to remove
her said imposed relatives in
the Kwashieman house to give the
children immediate vacant
possession of same to manage
same on their own…”
The fact is that, going by the
judgment of the trial court
which was affirmed by the Court
of Appeal, the disputed
matrimonial house only becomes
the property of the two children
substituted as respondents only
after the death of their mother;
i.e. the appellant but not
otherwise. It is therefore wrong
to put a twist on the disputed
judgment and pitch the children
against their mother in a
dispute that did not concern
them in the first place.
The law with regard to
settlements and judgments
arising therefrom
Though we do not agree wholly
with the appellant that the
original respondent Eloi Kofi
Mensah Simmons rejected totally
the proposals she filed in the
court below on 29/09/2009, we
share her concern that the
procedure adopted by the trial
High Court judge in arriving at
his judgment of 19/02/2010 was
unconventional.
There was no indication that
both parties agreed on all the
terms that the trial judge
sifted from the two proposals
which he based his judgment on.
That is the very reason why the
trial court could not describe
its judgment as a ‘Consent
Judgment’. It was not a consent
judgment because both parties
did not consent to all the terms
expressed in the judgment. If
that was the case, then the
trial court could not have
foisted a judgment on the
parties in the middle of the
trial without hearing the case
to its logical conclusion. On
that score, the trial court did
err as contended by the
appellant in this appeal and in
the Court of Appeal, and we so
hold. In fact, the Court of
Appeal should have allowed the
appeal by setting aside the
judgment of the trial High
Court, which was not properly
determined.
The law is clear that before a
court of competent jurisdiction
could enter judgment based on
supposed terms of settlement by
parties in an action, it must be
made manifestly clear that the
parties in the suit or action
did fully agree to all the terms
entered as judgment. That
explains why judgments of this
nature are termed as; “CONSENT
JUDGMENTS”.
A
‘consent judgment’, in
other words called ‘agreed
judgment’, is defined as: -
“A settlement that becomes a
court judgment when the judge
sanctions it. In effect an
agreed judgment is merely a
contract acknowledged in open
court and ordered to be
recorded, but it binds the
parties as fully as other
judgments. – Also termed consent
judgment; stipulated judgment;
judgment by consent…” (See
Black’s Law Dictionary; Ninth
Edition, page 918)
Normally, the agreed terms are
signed by the parties in the
suit or action and filed at the
Registry of the court. When the
terms are brought to the notice
of the court, the court adopts
them after having satisfied
itself that both parties are
agreeable to what has been filed
as terms of settlement.
It
must be noted, however, that it
is not always the case that the
parties must file the agreed
terms at the Registry of the
court before same could be
adopted as consent judgment.
Where the parties, in open
court, agree on some terms to
bring their dispute to a close,
they can announce the said terms
in open court for the court to
record same as the basis for its
judgment without necessarily
tasking the parties to go and
file them at the registry first
before their adoption. This
Court was clear on this in the
case of THE REPUBLIC v HIGH
COURT, ACCRA; EX-PARTE; JOSEPH
DANSO – APPLICANT; (NEW
PATRIOTIC PARTY & 4 Others –
INTERESTED PARTIES); Civil
Motion No. JS/5/2015, dated
22/01/2015 per Gbadegbe,
JSC.
In
the above cited case, the High
Court, coram Bright Mensah, J.
entered a consent judgment when
the parties in the action
announced in open court that
they had settled their
differences without first filing
any terms of settlement at the
Registry of the court. The trial
court only entered the agreed
terms that were announced in
open court in the court’s record
book. This Court refused to
quash the said consent judgment
when an application for judicial
review in the nature of
certiorari was brought to the
Court on the grounds that the
said terms were not filed before
their adoption.
This Court, speaking through
Gbadegbe, JSC, referred to
Volume 26 of Halsbury’s Laws of
England (4th
Edition), paragraph 52 at page
257 and held that; “If either
party is willing to consent to a
judgment or orders against
himself or if both parties are
agreed as to what the judgment
or order ought to be, due effect
may be given by the Court to
such a consent”. It is
immaterial whether the said
agreed terms were first filed in
the registry of the court or
not.
The record before us does not
indicate that, that was what
happened in the trial High court
with regard to this case. After
realising that the parties were
not ad idem with regard to the
terms of settlement, the trial
court should have advised them
to go back to consider the
positive aspects of the two
proposals filed for them to
reach an agreement or failing
that, to have continued with the
hearing of the case. Instead of
doing just that, the trial court
took it upon itself to pick the
positive aspects of the two
proposals and added two others
suggested by the respondent
which the appellant did not
agree to, and entered that as
the judgment of the court to the
chagrin of the appellant who had
not testified at that stage.
That has been the beef of the
appellant all along and the
progenitor of the two appeals
before the Court of Appeal and
this Court.
It
must be emphasized that in the
two proposals filed by the
parties in the trial High Court,
both agreed that the disputed
house was their matrimonial home
and that it belonged to the two
of them. This was the position
notwithstanding the fact that
the appellant claimed she built
it from her own resources while
the late petitioner claimed both
of them contributed in acquiring
it. Again, both agreed that they
purportedly built it for their
two children and that they only
had life interest in it. This
means that the property becomes
that of the two children after
both parents had joined their
maker. However, the two parties
did not agree to the other
aspect of the trial courts
judgment that permitted only the
respondent to occupy the said
house to enable him have his
peace of mind till his death; a
decision that was arrived at
without a full blown trial as
permitted under the law.
Though the Court of Appeal was
right when it asserted that with
the death of the petitioner
(i.e. the man), the appellant
(i.e. the woman) was the sole
trustee of the disputed house
which both of them agreed was
intended for their two children
after their death, it should
nevertheless, have allowed the
appeal by setting aside the
judgment of the trial court
which was arrived at not on the
merits.
The appellant, aside of invoking
our jurisdiction to set aside
both decisions of the trial
court and the first appellate
court as being wrong in law, is
also asking us to send them back
to the trial court for a trial
de novo. We accede to that
request and order that the suit
be remitted to the trial High
Court for re-trial. We, however,
advise the appellant Catherine
Simmons to smoke a peace pipe
with her only children with her
deceased husband who were
brought into this matter as
substituted respondents after
the death of the original
respondent who happened to be
their father, instead of
dragging the matter further.
We
want to take this opportunity to
remind both counsel on the
admonitions this Court, speaking
through Dotse, JSC, made to
legal practitioners in the cases
of: ASSEMBLIES OF GOD CHURCH,
GHANA v RANSFORD OBENG & 4
Others [2011] 32 GMJ 132 - SC
and MRS CHRISTIANA E. A.
ABOAH v MAJOR KEELSON [2011] 37
GMJ 63 @ p.90 – SC, on the
use of intemperate, offensive,
abusive and inappropriate
language in processes like
written submissions, affidavits,
pleadings, etc., filed for the
consumption of the Courts.
If
both counsel had not been
consumed by the emotions of
their clients, which was
mirrored in the various
affidavits and submissions filed
in the course of the trial, and
had reflected on their duties as
officers of the court who owe a
duty to the State, society and
the law in general aside of
their duties to their clients,
this case would not have reached
this far.
Counsel should be reminded that
it behoves on them as lawyers,
to give good counselling to
their clients so as not to drag
them into unnecessary
litigation. The decision to drag
the children of the marriage
into a dispute between their
parents that began when they
were minors, with the impression
that the appellant was not
fighting for their interest when
that appears not to be the case,
was in our view, abominable.
This is because if not properly
managed, this decision could mar
the cordial and motherly
relationship that exists between
the children and their mother
for life.
I
hope this is not going to happen
in this case since from the look
of things, it was not the
decision of the children to join
in the fray to sort things out
with their own mother over
property, which the mother
contributed immensely in
acquiring for the sake of her
children after her lifetime.
Clearly, it was the decision of
counsel for the late respondent
to drag the children into the
fray. That explains why it was
she who swore to the acerbic and
acrimonious affidavit in support
of the motion for substitution,
which this Court thinks the
children by themselves could not
have done. This Court frowns
upon such practice and would
advise counsel to tread
cautiously; particularly on
matters that hinge on family
disputes.
Appeal allowed on this score but
without any order as to costs.
(SGD) YAW APPAU
JUSTICE OF THE SUPREME
COURT
(SGD)
ANIN YEBOAH
JUSTICE OF THE SUPREME
COURT
(SGD) P. BAFFOE-
BONNIE
JUSTICE OF THE SUPREME
COURT
(SGD)
J. B. AKAMBA
JUSTICE OF THE SUPREME
COURT
(SGD) G. PWAMANG
JUSTICE OF THE SUPREME
COURT
COUNSEL
MRS. M. Y. N.
ACHEAPONG ESQ. FOR THE
PETITIONERS/RESPONDENTS
/RESPONDENTS.
EGBLEGBE ANAGLATE
ESQ. FOR THE RESPONDENT/
APPELLANT/ APPELLANT.
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