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Divorce - Matrimonial Causes -
Abatement of cause of action - Joint
ownership - Property
settlement - Whether
no cause of action arising where
a party dies in the course of
proceedings for the dissolution
of marriage - Whether ancillary
reliefs such as property rights
survive the death of a party
HEADNOTES
On 20 March 2002, Millicent
Asare Boafo (Petitioner) filed
in the Divorce and Matrimonial
Court., Accra, a petition
seeking the following reliefs:
the [customary] marriage between
her and [Peter Ababio] be
dissolved matrimonial home which
stands in the name of the [Peter
Ababio] be declared as jointly
owned by the parties in equal
share. That [Peter Ababio] is
ordered to pay lump sum of
alimony to the petitioner.That
[Peter Ababio] is ordered to pay
the petitioner cost for the suit
among others. Peter Ababio died
in October 2004 before the
actual trial started. The
Petitioner applied for the head
of family of the deceased,
Abusuapanyin Yaw Mensah, to be
substituted as respondent in the
divorce proceedings, which was
granted on 5 April 2005. On 30
April 2005, Abusuapanyin Yaw
Mensah died and, he was
substituted on 12 December 2005,
by Paul Kwabena Mensah,
(Respondent) the customary
successor of Peter Ababio. On 15
May 2006 the High Court
commenced hearing evidence on
the petition for divorce and
that very day proceeded to
dissolve the marriage on the
grounds that the marriage has
broken down beyond
reconciliation. The Judge fixed
a date to hear evidence on the
ancillary reliefs in respect of
the matrimonial properties. On
13 July 2007 the trial judge
entered judgment for the
Petitioner and settled on her
the matrimonial home at
Kokomlemle, numbered, C144/4.
The Respondent being
dissatisfied appealed to the
Court of Appeal on the main
ground that the Petitioner
failed to prove any contribution
to the acquisition of the
matrimonial home. On 10 May
2012, the Court of Appeal upheld
the appeal and set aside the
order of the trial judge and in
its place awarded the Petitioner
an amount of GHC 30,000 as
sufficient financial settlement
based on section 20(1) of the
Matrimonial Causes Act, 1971,
Act 367.-
HELD :-
With due respect to their
lordships, the Matrimonial
Causes Act is only applicable to
matrimonial causes and other
matters connected therewith; and
their lordships erred in making
the settlement on the
Petitioner, as the divorce
proceedings abated with the
demise of Peter Ababio. For
purposes of clarity I set out
the said section:
From the foregoing we strike out
the Petitioner’s action and all
consequential orders made there
under. We make no order as to
cost.
STATUTES REFERRED TO IN JUDGMENT
Matrimonial Causes Act, 1971,
Act 367
Supreme Court Rules, 1996, (C.I.
16) rule 6(8) states:
Civil Liability Act, 1963 (Act
176), section 23
Wills
Act, 1971, (Act 360) Section13
Intestate Succession Act, 1985,
(PNDCL 111),
Section 4
CASES REFERRED TO IN JUDGMENT
Perstein v Perstein, 217 A. 2 d
481, 483 (Connecticut 1966)
BOOKS REFERRED TO IN JUDGMENT
DELIVERING THE LEADING JUDGMENT
ADINYIRA, JSC:-
COUNSEL.
A. A. SOMUAH ASAMOAH FOR THE
PETITIONER/RESPONDENT/APPELLANT.
JUSTICE KOFI ODURO FOR THE
RESPONDENT/APPELLANT/RESPONDENT.
ADINYIRA, JSC:-
On 20 March 2002,
Millicent Asare Boafo
(Petitioner) filed in the
Divorce and Matrimonial Court.,
Accra, a petition seeking the
following reliefs:
(a)
That the [customary]
marriage between her and [Peter
Ababio] be dissolved.
(b)
The matrimonial home which
stands in the name of the [Peter
Ababio] be declared as jointly
owned by the parties in equal
share.
(c)
That the unnumbered house
at railway quarters Achimota
which was in the name of [Peter
Ababio] but built from joint
contribution of the parties be
declared as jointly owned by the
parties in equal share.
(d)
That in the alternative in
the event that [Peter Ababio]
has sold the unnumbered house at
railway quarters Achimota the
petitioner is given a half share
of proceeds accruing there from.
(e)
That [Peter Ababio] is
ordered to pay lump sum of
alimony to the petitioner.
(f)
That [Peter Ababio] is
ordered to pay the petitioner
cost for the suit.
(g)
Any order(s) that this
honourable court may deem fit.
Peter Ababio died in
October 2004 before the actual
trial started. The Petitioner
applied for the head of family
of the deceased, Abusuapanyin
Yaw Mensah, to be substituted as
respondent in the divorce
proceedings, which was granted
on 5 April 2005. On 30 April
2005, Abusuapanyin Yaw Mensah
died and, he was substituted on
12 December 2005, by Paul
Kwabena Mensah, (Respondent) the
customary successor of Peter
Ababio.
On 15 May 2006 the High
Court commenced hearing evidence
on the petition for divorce and
that very day proceeded to
dissolve the marriage on the
grounds that the marriage has
broken down beyond
reconciliation. The Judge fixed
a date to hear evidence on the
ancillary reliefs in respect of
the matrimonial properties.
On 13 July 2007 the trial
judge entered judgment for the
Petitioner and settled on her
the matrimonial home at
Kokomlemle, numbered, C144/4.
The Respondent being
dissatisfied appealed to the
Court of Appeal on the main
ground that the Petitioner
failed to prove any contribution
to the acquisition of the
matrimonial home.
On 10 May 2012, the Court
of Appeal upheld the appeal and
set aside the order of the trial
judge and in its place awarded
the Petitioner an amount of GHC
30,000 as sufficient financial
settlement based on section
20(1) of the Matrimonial Causes
Act, 1971, Act 367. Being
dissatisfied in losing the
Kokomlemle house the Petitioner
appealed to this Court.
On 4 July 2017, this
appeal came before the Supreme
Court for hearing and we ordered
both counsel to address us on
the issue as to whether the
cause of action survived after
the death of Peter Ababio; as
the financial order by the Court
of Appeal was made under the
Matrimonial Causes Act. We made
this order in compliance with
rule 6 (8) of the Supreme Court
Rules, 1996, (C.I. 16), as we
believed our decision may turn
on this point. The rule 6(8)
states:
Where the Court intends to rest
a decision on a ground not set
forth by the appellant in the
notice of appeal, or on a matter
not argued before it, the Court
shall afford the parties
reasonable opportunity to be
heard on that ground or matter
without re-opening the whole
appeal.
The parties complied.
Counsel for the Appellant
concedes that the divorce
proceedings being an action in
personam abated upon the death
of Peter Ababio, but contends
the same cannot be said in
respect of the ancillary
reliefs. He submits that reliefs
(b) (c) and (d) in particular
survived the death of the
Respondent; and any judgment
rendered thereon would result in
judgment in rem and ‘concludes
all persons’. He submits further
that where the judgment to be
rendered is in rem, it survives
the death of any party as it
affects the estate.
Counsel for the Respondent
submits that there is no cause
of action arising where a party
dies in the course of
proceedings for the dissolution
of marriage, as the action
abates, and consequently, the
jurisdiction of the court to
equitably divide marital
property is also lost.
We recall that the common
law rule of abatement of cause
of action, upon the death of
either a sole plaintiff or
defendant was abolished by
section 23 of the Civil
Liability Act, 1963 (Act 176),
which provides:
23. Survival of cause of action
subsisting against deceased
person
(1) A cause of action subsisting
against a deceased person shall
on the death survive against the
estate of that person.
With the demise of Peter
Ababio, the divorce petition
automatically abated though
whatever claims the petitioner
had against the estate of the
deceased subsisted. However the
question that arises is whether
the matrimonial court can
proceed with the hearing of the
case for the dissolution of the
marriage in order to divide the
marital property equitably?
Counsel for the Petitioner
invites us to look at other
jurisdictions which lean towards
the position that death of a
party to the dissolution of the
marriage marks the end of the
claims as regards the
dissolution of the marriage or
divorce only, but incidental
claims or ancillary reliefs such
as property rights survive the
death of a party. He submits
divorce petitions may seek inter
alia reliefs “that are equitable
in nature and it is a
fundamental principle of equity
jurisprudence that once
jurisdiction is acquired, equity
will do complete or substantial
justice”. He referred to the US
case of Perstein v Perstein,
217 A. 2 d 481, 483 (Connecticut
1966); where, the court held
the view that, because the widow
could claim a right to the
deceased’s estate, the case
could continue with the executor
or administrator’s estate.
Be as it may, our laws on
testate and intestate succession
either under the Wills Act,
1971, (Act 360) or the
Intestate Succession Act, 1985,
(PNDCL 111), respectively,
differ from those of the United
Kingdom and the United States of
America; and the nature of a
claim of right by a surviving
spouse to the deceased’s estate
depends on whether the spouse
died testate or intestate. See
section13 of Act 360, and
Section 4 of PNDCL111. Under
both laws a surviving spouse has
an interest in the deceased’s
estate and is not required to
prove joint ownership. We take
note that the Petitioner as a
surviving spouse is not without
a remedy.
Unfortunately the trial
judge did not avert her mind to
the legal implication of the
demise of Peter Ababio and
proceeded to hearing evidence
and dissolving the marriage
which had terminated with the
death of Peter Ababio in October
2004; and went on to determine
the ancillary reliefs as if the
Petitioner was a divorcee which
denied her rights in law as a
surviving spouse. We therefore
hold that the trial judge erred
in law by determining the
matrimonial case as the action
abated with the death of Peter
Ababio.
Counsel for the Petitioner
invited us to reverse the
judgment of the Court of Appeal
and restore the judgment of the
High Court, as the cause of
action survived against the
estate which we refuse as that
was not the reasoning of the
Court of Appeal for the reversal
of the High Court Judgment. The
Court of Appeal‘s reasoning was
that “the Petitioner failed to
establish joint ownership of any
of the landed properties.”
In our opinion, the Court
of Appeal fell into the same
error as the High Court and
treated the Petitioner as a
divorcee and applied section
20(1) of the Matrimonial Causes
Act and made a settlement of GHC
30,000.00 in favour of the
Petitioner “in recognizing the
contribution of the petitioner
in their marriage relationship”.
With due respect to their
lordships, the Matrimonial
Causes Act is only applicable to
matrimonial causes and other
matters connected therewith; and
their lordships erred in making
the settlement on the
Petitioner, as the divorce
proceedings abated with the
demise of Peter Ababio. For
purposes of clarity I set out
the said section:
20. Property settlement
(1) The Court may order either
party to the marriage to pay to
the other party a sum of money
or convey to the other party
movable or immovable property as
settlement of property rights in
lieu thereof or as part of
financial provision that the
Court thinks just and equitable.
From the foregoing we
strike out the Petitioner’s
action and all consequential
orders made there under.
We make no order as to
cost.
S. O. A. ADINYIRA
(MRS)
(JUSTICE OF THE SUPREME COURT)
J. V. M.
DOTSE
(JUSTICE OF THE SUPREME COURT)
P. BAFFOE-BONNIE
(JUSTICE OF THE SUPREME COURT)
N. S. GBADEGBE
(JUSTICE OF THE SUPREME COURT)
V. AKOTO-BAMFO (MRS)
(JUSTICE OF THE SUPREME COURT)
COUNSEL:
A. A. SOMUAH ASAMOAH FOR
THE
PETITIONER/RESPONDENT/APPELLANT.
JUSTICE KOFI ODURO FOR THE
RESPONDENT/APPELLANT/RESPONDENT. |
