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Divorce - Joint owner - Property
- Whether
marriage was a nullity on
grounds that the appellant was
married at the time he
purportedly contracted that
marraige - whether the
court,having concurred in the
findings of the court ,
annulment of the marriage could
settle the property on the
respondent as compensation and
make further orders on costs
HEADNOTES
The appellant herein, who was
the respondent in the divorce
proceedings before the High
court, married the respondent
herein (the petitioner therein)
in accordance with custom in
1989. They lived together as man
and wife for a period of 10
years. In 1999, they converted
the essentially polygamous union
into a monogamous one at a
ceremony in Tema. A new chapter
was obviously opened in their
lives with the retirement of the
appellant after working for a
considerable number of years
with Ghana Ports and Harbours
Authority, and the movement into
their own house at Community 16,
Lashibi number 68/69, a suburb
of Accra. Cracks were soon to
appear in the marriage which
culminated in the filing of a
petition for the dissolution of
the marriage by the petitioner
and for a further grant of t
reliefs
HELD :-
On the issue of the legal fee
and costs of the proceedings, we
do not intend to dwell at any
length on same, suffice it to
state that there is no basis for
the award for the respondent
made no attempt at the High
Court at demonstrating, by way
of invoices or receipts etc how
much costs she incurred in
payments to her lawyer etc.
furthermore, the Court of
Appeal, in making the order for
the award also failed to name
specific sums in relation to
both the costs and the legal
fees, thereby leaving the issue
at large, a situation which is
far from satisfactory. we would,
therefore without any
hesitation, allow the appeal on
that ground and set aside the
award made by the Court of
Appeal. In the result, we would
dismiss the appeal on all the
grounds for the reasons stated
herein save ground (d) which
succeeds and is therefore
allowed.
STATUTES REFERRED TO IN JUDGMENT
Matrimonial causes Act (ACT367)
CASES REFERRED TO IN JUDGMENT
Tuakwa v Bosom (2001-2002) SCGLR
61
Oppong v Anarfi 2011 SCGCR 556
Djin v Mensah Baako 2007-2008
SCGLR 686 and
Abbey v Antwi 2010 SCGRL 17
Eric Kwame Amoah v Ben Owusu
Domena civil appeal no
J4/13/2014 dated 30th July
2014,
Tuakwa v Bosom (2001-2002) SCGLR
61
Attorney-General v. Faroe
Atlantic co. Ltd (2005-2006)
SCGLR 271 at p.306
Appea v Asamoah 2003-2004 1SCGRL
226 at 243
Amuzu v Oklikah (1998-99)
SCGRL141.
Okofoh Estates Ltd v Modern sign
Ltd. (1996-97) SCGRL233
BOOKS REFERRED TO IN JUDGMENT
DELIVERING THE LEADING
JUDGMENT
AKOTO BAMFO, JSC: -
COUNSEL.
OSAFO BUABENG FOR THE
RESPONDENT/RESPONDENT/APPELLANT
PROSPER XORLA NYAHE WITH HIM
LINDA NYAHE FOR THE PETITIONER/
APPELLANT/ RESPONDENT
JUDGMENT
AKOTO BAMFO, JSC: -
The appellant herein, who
was the respondent in the
divorce proceedings before the
High court, married the
respondent herein (the
petitioner therein) in
accordance with custom in 1989.
They lived together as man and
wife for a period of 10 years.
In 1999, they converted the
essentially polygamous union
into a monogamous one at a
ceremony in Tema.
Undoubtedly, it was a
joyous occasion, the beaming
smiles in the photographs, the
exhibit-B series taken at the
ceremony, bear eloquent
testimony. A new chapter was
obviously opened in their lives
with the retirement of the
appellant after working for a
considerable number of years
with Ghana Ports and Harbours
Authority, and the movement into
their own house at Community 16,
Lashibi number 68/69, a suburb
of Accra.
Cracks were soon to appear
in the marriage which culminated
in the filing of a petition for
the dissolution of the marriage
by the petitioner and for a
further grant of these reliefs:
a)
That the said marriage
between the parties be dissolved
b)
That plots Nos.68 and 69
situate at community 16, Lashibi
with a building thereon on a
portion of same be declared as
jointly owned by the petitioner
and respondent.
c)
That an order (sic) the
said plots Nos. 68 and 69 with
buildings thereon be sold and
the proceeds shared equally
between the petitioner and the
respondent.
d)
That Audi car which is
currently being used by the
respondent be declared as the
personal property of the
petitioner and be accordingly
settled in her favour.
e)
That the respondent be
ordered to pay a lump sum of
GH100,000.00 to the petitioner.
The appellant did not
essentially contest the
dissolution, but prayed that the
divorce be granted on the
following grounds:
a)
That the said marriage be
dissolved.
b)
That petitioner has no
share in the two (2) plots and
the building thereon because
petitioner did not contribute to
their acquisition and the
construction of the building.
c)
That petitioner is not
entitled to any share in the
plots and the building thereon.
d)
That petitioner is not
entitled to Respondent’s own
Audi car.
e)
That petitioner is not
entitled to any lump sum payment
because she deserted the
matrimonial home on her own
volition.
f)
That the three (3) plots
of land and 3,000 blocks on them
which Respondent acquired in
Petitioner’s home town be
settled on Petitioner.
g)
That Petitioner be asked
to stop using Respondent’s name
‘’Mrs. Owuoh’’
In his judgment, the
learned judge found that the
marriage was a nullity on
grounds that the appellant was
married to one Mrs. Beatrice
Owuo at the time he purportedly
contracted the marriage with the
Respondent, and therefore lacked
the capacity to contract any
other marriage. He further
dismissed the Respondent’s claim
for the joint ownership of the
Lashibi property on the basis
that the Respondent failed to
prove that she made a
substantial contribution towards
its acquisition.
Naturally dissatisfied
with the decision, the
Respondent lodged an appeal at
the Court of Appeal on these
grounds;
1)
The learned trial judge’s
finding that the two plots were
acquired by the Respondent
without any contribution from
the Petitioner is not supported
by the evidence on the record.
2)
The learned trial judge
erred when he held that the
petitioner did not contribute to
the construction of the home on
the two plots of land situated
at Lashibi-Tema.
3)
The learned trial judge’s
failure to consider exhibit 3
which was procured by the
Respondent and purportedly
signed by Nii Abotsi Borlabi a
dead man occasioned a grievous
miscarriage of justice.
4)
The learned trial judge
erred when he held that the
Petitioner could not prove that
she gave USD1,300 to the
Respondent for Respondent to buy
a car so that he could give the
Audi car to her.
5)
The learned trial judge
fell into grave error when he
misconstrued the property rights
of the Appellant and the
Respondent who by their own
sworn affidavit (Exhibit 2) got
married in 1989.
6)
The learned trial judge
fell into a grave error when he
dismissed reliefs b, c, d and e
sought by the Petitioner/
Appellant.
7)
Further or other grounds
of appeal shall be filed upon
receipt of the record of
proceedings.
On the 23rd of April,
2016; the court of Appeal, in a
unanimous decision, allowed the
appeal in part. Speaking through
Agnes Dordzie JA, she delivered
herself thus:
‘’Having placed the petitioner
in the position of a wife who by
the evidence, had given the
services of a wife for twenty
years, I consider half share of
the land property acquired
during the relationship an
appropriate compensation to the
petitioner.
I would in the circumstances
order that the property
described as plots No 68 & 69
Community 16 Lashibi be valued
and half of the value paid to
her in cash as compensation. I
also order that the respondent
pays the cost of this litigation
including solicitor’s fees of
the petitioner.’’
The appellant registered his
protest against the decision by
filing a Notice of Appeal before
the court.
He premised his attack on these
grounds;
a)
The learned judges of the
Court of Appeal erred in law by
finding that the appellant acted
fraudulently in marrying the
Petitioner
Particulars of error
Fraud was not pleaded and
particularized by the
Petitioner. Further it did not
form part of the Petitioner’s
case and was raised suo motu by
the Court of Appeal.
b)
The learned Justices of
the court of Appeal having found
the marriage to be a nullity,
erred in law by ordering
property nos 68/69, community
16, Lashibi to be valued and
half of the value paid in cash
to Petitioner as compensation.
Particulars of Error
Conferring benefits on the
Petitioner notwithstanding the
finding that the marriage was
contracted during the
subsistence of an earlier
monogamous marriage, hence it
was null and void ab initio.
c)
The award of half of
property nos 68/69, community
16, Lashibi to Petitioner as
compensation or damages for the
commission of a tort by
Particulars of
error
(i)
Petitioner did not include
any relief for damages for tort
or compensation in her petition.
(ii)
Award of compensation or
damages for tort in effect
changed or substituted
completely the case of the
Petitioner.
d)
The order that respondent
should pay the costs of
Petitioner including solicitors
fees is harsh and unconscionable
e)
Judgment is against the
weight of evidence
f)
Additional grounds will be
filed on receipt of the records.
It must be stated that no
additional grounds were filled.
Before delving into the issues
raised in this appeal, we find
it necessary to comment on
paragraph 9 of the statement of
case filed on 30/3/17.
Learned counsel must take note
of the fact that this apex court
has, at all material times,
determined cases before it in
terms of the law and therefore
needs no comments, like those
referred to as reminders.
Counsel should be measured in
their comments as required by
the rules and practices of this
noble profession.
Even though both learned counsel
argued their grounds of appeal
under distinct heads, we would
consider all the issues under
the omnibus ground, that is the
evidence being against the
weight of evidence led and would
thereafter discuss briefly the
other issues raised; for in our
respectful view, a discussion of
the omnibus ground would
effectively dispose of all the
issues.
The central issue for resolution
is whether the court of appeal
having concurred in the findings
of the court of 1st
instance on the annulment of the
marriage could settle the
property on the respondent as
compensation and make further
orders on costs etc.
In sum, learned counsel
contended that in so far as the
marriage between the parties was
found to be void by both the
High Court and the 1st
appellate court, the latter
could not have validly made any
orders even under section 19 of
the Matrimonial causes Act since
no legal consequences could have
properly flowed from the
annulled marriage particularly
in the light of the finding by
the learned judge that the
respondent did not lead
sufficient evidence to establish
that she contributed towards the
acquisition of the property.
He argued that there being no
decree of nullity, sections 19,
20 and 21 could not have been
invoked since those sections
envisaged the settlements to be
made in favour of a ‘’party to
the marriage’’; that since the
said ‘’marriage’’ never existed
in the eyes of the law, no legal
consequences could have properly
flown therefrom. He strenuously
attacked the award for
compensation and argued that it
had no basis.
This court has stated in a
plethora of cases the
considerations which should
weigh on the court where an
allegation is made that the
judgment is against the weight
of the evidence on record.
In the off-cited case of Tuakwa
v Bosom (2001-2002) SCGLR 61, It
was stated that the court in
such circumstances is enjoined
‘’ to analyse the entire record
of appeal, take into account the
testimony of the witnesses and
all the documentary evidence
adduced to satisfy itself before
arriving at a decision that on
the preponderance of the
probabilities, the conclusions
of the trial judge are
reasonable or amply supported’’
Oppong v Anarfi 2011 SCGCR 556
Djin v Mensah Baako 2007-2008
SCGLR 686 and
Abbey v Antwi 2010 SCGRL 17
In Eric Kwame Amoah v Ben Owusu
Domena civil appeal no
J4/13/2014 dated 30th
July 2014, Benin JSC expatiated
on the principle in these terms;
‘’ the sole ground of appeal
throws up the case for a fresh
consideration of all the facts
and law by the appellate court.
We are aware of this court’s
decision in Tuakwa v Bosom
(2001-2002) SCGLR 61 on what the
court is expected to do when the
ground of appeal is that the
judgment is against the weight
of evidence. It has erroneously
been cited as laying down the
law that when an appeal is based
on the ground that the judgment
is against the weight of
evidence then only matters of
fact may be addressed upon.
Sometimes a decision on fact
depends on what the law is on
the point or issue. And even the
process of finding out whether a
party has discharged the burden
of persuasion or producing
evidence is a matter of law.
Thus when the appeal is based on
the omnibus ground that the
judgment is against the weight
of evidence, both factual and
legal arguments could be made
where the legal arguments would
help advance or facilitate a
determination of the factual
matters. This court’s decision
in Attorney-General v. Faroe
Atlantic co. Ltd (2005-2006)
SCGLR 271 at p.306 per Wood
JSC (as she then was) cited by
Counsel for the respondent is
apt on this point.’’
Furthermore, it is trite
learning that an appeal is by
way of re hearing.
The court of 1st
instance found and same was
affirmed by the High Court that
the parties were never married
in the eyes of the law since at
the time they purportedly went
through the marriage ceremonies,
the marriage between the
appellant and Mrs. Beatrice Owuo
subsisted. The court
additionally found that the
respondent was not entitled to a
share in the Community 16
Lashibi property because she
could not prove that she
contributed towards its
acquisition.
The court of Appeal took a
different view, it came to the
conclusion that it would be
unjust to allow the appellant to
benefit from his own wrong doing
and awarded half the value of
the property as compensation on
grounds of equity and public
policy.
It is well established that
Equity does not override the
Law, neither is it supposed to
either destroy or violate it;
Equity indeed supplements and
assists the law, hence the maxim
Equity follows the Law. Where
therefore the Law provides a
remedy i.e. where there are
statutory provisions they must
prevail.
Where Statute expressly
provides a remedy therefore; it
is not appropriate to ignore the
statutory provisions in favour
of equitable principles. In the
instant appeal; section 21 of
the Matrimonial Causes Act
clearly provides a remedy.
Where therefore the marriage is
declared nullity, the respondent
is required to prove with
sufficient particularity that
she made substantial
contribution towards the
acquisition of the property,
Section 21 provides
“when a decree of divorce or
nullity is granted if the court
is satisfied that either party
to the marriage, holds title to
movable or immovable property or
part or all of which rightfully
belongs to the other, the court
shall order transfer or
conveyance of the interest to
the party entitled to it on the
terms that the court thinks just
and equitable.’’
When the learned High Court
judge found that the parties
lacked the capacity to have
contracted the marriage
celebrated in 1999 owing to the
existence of an earlier marriage
between the appellant and Mrs.
Beatrice Owuo, he ought to have
decreed the annulment
notwithstanding the fact that
the case was not fought on those
grounds.
Article 129(4) of the
Constitution as amplified by
Rule 23(3) of CI16 enjoins this
court in an appeal to assume the
jurisdiction of the trial court
make all orders necessary for
the determination of the real
issues in controversy and indeed
orders which the trial court
ought to have made. We would
therefore decree that the
marriage celebrated between
Theresa Owuo and Emmanuel Owuo
annulled.
Is there sufficient evidence to
support the findings of the
learned High Court judge that
the respondent did not make any
substantial contribution towards
the acquisition which finding
was upset by the Court of Appeal
under the guise of a
compensatory award? Having
nullified the marriage, the
respondent could only succeed if
she produces credible evidence
that she indeed contributed and
that the contribution was
substantial.
What amounts to a substantial
contribution, may be ascertained
from the factors attending to
the acquisition and the conduct
of the partners subsequent to
the acquisition and to determine
whether they intended to hold
the property jointly. Owing to
the nature of the relationship,
there could be lack of hard
evidence on the contributions,
evidence with mathematical
precision of the contributions
would not be forthcoming, for it
would be unjust to apply the
ordinary incidents of commerce
in these circumstances.
The contributions could be in
cash or kind. There is ample
evidence that for some 20 years,
the respondent laboring under
the impression that she was
lawfully married, traded
variously as a baker, fish
monger dealer in textiles, the
income which she used to cater
for the six children the
appellant had with Mrs. Beatrice
Owuo; when the land was being
acquired, she was led to believe
it was going to be in their
joint names, whenever the
appellant needed money to
supplement the wages for the
workers on the building, she
obliged him, she could not
naturally determine the total
amount since they were given out
in bits.
Aside from those monetary
contributions, the household
chores, cooking, taking care of
the 6 children for a period of
20 years, if quantified would
certainly be substantial. A
perusal of the record shows that
the appellant made a strenuous
effort at shifting the dates of
their relationship in order to
situate the acquisition before
they met. Therefore, even though
on his own showing, as per his
own sworn affidavit, exhibit-E,
he ‘’married’’ the respondent
under custom in 1989, in the
court he averred that the
customary marriage was
celebrated in 1995,
significantly a year after the
acquisition of the land in 1994
We are of the view that the
evidence on record supports the
conclusion reached by the Court
of Appeal that the respondent
made substantial contributions
towards the acquisition of the
property and would therefore
under sec 21 of the Matrimonial
Causes Act, order the transfer
of half of the value of property
nos 68/69 Lashibi Community 16
to her.
Learned counsel sought to make
moment of the fact that the
Court of Appeal raised issues of
fraud even though same was not
pleaded.
Obviously fraud was neither
pleaded nor particularized as
required by the cardinal rules
of pleadings. It could not
however be denied that evidence
was led that documents
evidencing the grant of the land
on which the property stood was
executed by a dead man.
Additionally, even though the
appellant testified that he had
to seek advice before
‘’marrying’’ the respondent, in
the light of the evidence by his
own daughter, Brigid RW2, that
while he lived with the
respondent as man and wife, he
continued to pay visits to Mrs.
Beatrice Owuo and sent her
remittances through the daughter
surely were not consistent with
the acts of an innocent party,
who had no intention to deceive.
The appellant was called to the
Bar in 2001, significantly, the
petition was filed by the
petitioner in 2010 when he must
have obviously had lectures at
the School of Law in Family Law
and would therefore have come to
the realization that he was
committing a crime.
It is not apparent from the
record that he took any steps to
regularize the position. Indeed
while he lived with the
respondent, he still maintained
his relationship with Beatrice
Owuo (per RW2) through visits
and remittances.
In Appea v Asamoah 2003-2004
1SCGRL 226 at 243 the supreme
court speaking though Brobbey
JSC stated:
‘’Ordinarily, fraud should be
pleaded. It was not pleaded in
the instant case.
Notwithstanding the rules on
pleadings, the law is that where
there is clear evidence of fraud
on the face of the record, the
court cannot ignore it. That was
the decision of this court in
Amuzu v Oklikah (1998-99)
SCGRL141. In that case, fraud
was not pleaded but when it was
raised, it was upheld by the
trial court in the Supreme
court. In the same way, failure
to plead the issue of fraud at
the trial court did not prevent
the trial court and this court
from endorsing it when it was
raised. Indeed, fraud vitiates
everything. A relevant statement
on this that will be found in
Okofoh Estates Ltd v Modern sign
Ltd. (1996-97) SCGRL233 at
reads:
‘’ An allegation of fraud goes
to the root of every
transaction. A judgment obtained
by fraud passes no right under
it and so does a forged document
or a document obtained by fraud
pass no right.’’
On the issue of the legal fee
and costs of the proceedings, we
do not intend to dwell at any
length on same, suffice it to
state that there is no basis for
the award for the respondent
made no attempt at the High
Court at demonstrating, by way
of invoices or receipts etc how
much costs she incurred in
payments to her lawyer etc.
furthermore, the Court of
Appeal, in making the order for
the award also failed to name
specific sums in relation to
both the costs and the legal
fees, thereby leaving the issue
at large, a situation which is
far from satisfactory. we would,
therefore without any
hesitation, allow the appeal on
that ground and set aside the
award made by the Court of
Appeal.
In the result, we would dismiss
the appeal on all the grounds
for the reasons stated herein
save ground (d) which succeeds
and is therefore allowed.
V. AKOTO-BAMFO (MRS)
(JUSTICE OF THE SUPREME COURT)
S. O. A. ADINYIRA (MRS)
(JUSTICE OF THE SUPREME COURT)
ANIN YEBOAH
(JUSTICE OF THE SUPREME COURT)
N. S. GBADEGBE
(JUSTICE OF THE SUPREME COURT)
A.
A. BENIN
(JUSTICE OF THE SUPREME COURT)
COUNSEL
OSAFO BUABENG FOR THE
RESPONDENT/RESPONDENT/APPELLANT
PROSPER XORLA NYAHE WITH HIM
LINDA NYAHE FOR THE
PETITIONER/APPELLANT/RESPONDENT |
