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J U D G M E N T
BAFFOE-BONNIE J.S.C:-
Nana Ama Amponsah, (Respondent
herein), was married to Franklyn
Amoah Nyamaah, (Appellant
herein) under Akan Customary law
in 1991. They have 4 children
out of the marriage, 3 girls and
a boy.
On the 4th day of
August 2003, the Respondent
filed a petition at the High
Court in Kumasi for dissolution
of the marriage on the ground
that the Appellant had exhibited
a behavior of which she cannot
be expected to live with him and
that the appellant has caused
her much anxiety, distress and
embarrassment. Per the
Respondent’s amended petition
she claimed inter alia
“that the House Number Plot
15 Block “B” Odeneho Kwadaso,
the matrimonial home be
partitioned and the petitioner
given her portion”
The Appellant cross petitioned
for one of the two stores at the
Central Market being used by the
Respondent and custody of the 4
children. I would like to
indicate that these were the
only reliefs that the cross
petition of the Appellant sought
and there was no amendment to
change or add to this petition.
The High Court did not have
difficulty with the
pronouncement that the marriage
had broken down beyond
reconciliation pursuant to
Section 1(2) of the Matrimonial
Causes Act 1971, Act 367 as both
parties were adamant about the
continuance of the marriage. At
the end of proceedings the High
Court made an order inter alia:
a.
That the Custody of the four
children be given to the
Respondent with the Appellant
having reasonable access to
them.
b.
That the House Number Plot 15
Block “B” Odeneho Kwadaso did
not belong to the couple so it
could not be settled on either
of the parties.
c.
That the Respondent recovers
possession of one of the two
shops for his own business i.e.
Shop Number AN 16.
The High Court Judge did not
make any order for the payment
of alimony to the Respondent as
she claimed and asked both
parties to bear the costs of
their action. Surprisingly, the
High Court judge made an order
on a property, Hse number Plot
38 block B situated at
Afiasiebon which was not a claim
sought for by either the
Appellant or Respondent.
The Respondent, not satisfied
with the judgment of the High
Court, appealed to the Court of
Appeal against some of the
orders made by the judge. One
of such grounds of appeal which
is the subject matter of this
action at the Supreme Court was
that;
“The trial judge erred when she
held that H/No. Plot 15 Block
‘B’ more particularly situated
at Odeneho Kwadaso, Kumasi was
not the self acquired property
of the Respondent and the
Appellant when there are
substantially overwhelming
documentary evidence on record,
irresistibly supporting the fact
that Plot No. 15 Block “B”,
Odeneho Kwadaso was acquired by
the Respondent.”
The Respondent also appealed
against the order of the High
Court refusal to grant
alimony.She also added that the
trial judge erred when she held
that the property situate at
Afasiebon, Ashanti was jointly
acquired by the parties.
The Court of Appeal unanimously
allowed the appeal of the
Respondent. The Court of Appeal
held that the House Number Plot
15 Block “b” Odeneho Kwadaso,
Kumasi,being the matrimonial
home should be partitioned into
two and shared amongst the
Appellant and the Respondent.
The court further held that
House Number Plot 38 Block “A”,
Atwima Afiasiebon is the
property of Maame Ama Amponfi,
the mother of Respondent and
cannot be held as the
matrimonial home. Custody of
the four children was given to
the Respondent as well as twenty
million Cedis lump sum. It is
this judgment that the Appellant
is seeking to reverse.
The Appellant’s grounds of
appeal relate to the order of
the Court of Appeal on the
houses in dispute namely House
Numbered Plot 15 Block “B”
Odeneho Kwadaso, Kumasi (the
Odeneho Kwadaso house) and House
Numbered Plot 38 Block “A”,
Atwima Afiasebon (the Atwima
Afiasebon House.) I will deal
with the latter house first
Atwima Afiasebon House
In the petition and Cross
Petition of the Respondent and
Appellant respectively, the
Atwima Afiasebon house was not a
relief that any party made. The
said house was only mentioned
for the first time in the
Appellant’s amended petition (at
page 70 of the Record) when he
was denying the claim of the
respondent as to which house was
the matrimonial home.
It is the duty of the court to
make pronouncement on the
reliefs that a party seeks. A
judge’s omission to regard a
relief must be explained with
reasons. In all, the court
ensures that the issues that it
sets itself to deal with will
aid it in making justifiable
decisions on the reliefs
sought. This I think is one of
the reasons why relevance of
evidence is at the heart of our
legal jurisprudence.
A judge who makes an order for a
relief that was not sought can
be held to have exercised a
jurisdictional irregularity. It
was stated in the case of
TIMITIMI v.
AMABEBE [1953] 14
W.A.C.A. 374, by Coussey J.A. as
summarized in the head note at
p.375:
“A court is said to be
of competent jurisdiction with
regard to a suit or other
proceeding when it has power to
hear or determine it or exercise
any judicial power therein.
There is a distinction between
an order and judgment which a
court is not competent to make
and an order which, even if
erroneous in law or in fact is
within the court’s competency:
where there is no jurisdiction
the proceedings are void; but
where a court of competent
jurisdiction makes an erroneous
order, it is appealable. An
irregularity in the exercise of
jurisdiction should not be
confused with a total lack of
jurisdiction…”
This is how Ocran JSC put
it in the case of Gihoc
Refridgeration & Household
Products Ltd V Hanna Assi
2005-2006 SCGLR
“….the courts are not in the
business of conferring
unsolicited remedies on those
who had not invoked the court’s
jurisdiction”
As the Atwima Afiasebon house
was never in issue, the court
did not have the mandate to make
pronouncement as to the
ownership of it.
See also the case of Dam vs J.K.
Addo [1962] 2 GLR 200 SC where
this court held
(holding3)
“A court must not substitute a
case proprio motu, nor accept a
case contrary to or inconsistent
with that which the party
himself puts forward whether he
be plaintiff or defendant”
This omission cannot be seen in
the light of the general rule in
civil procedure as enunciated in
the case of ABOWABA V
ADESHINA [1946] 12
W.A.C.A 18 at pp. 19-20,
Where it was said that
“where evidence, which could
have been ruled out as
inadmissible to prove a material
fact which was not pleaded, has
nevertheless been adduced
without objection and is before
the judge… the trial judge was
bound to take it into
consideration…”
It is trite learning that
judgment as it relates to the
ownership of the house is a
judgment in rem. A party
who claims ownership but fails
to be a party to an action
involving the property is
estopped from relitigating the
matter as to the ownership of
the land. For this reason the
Appellant can use this judgment
as it relates to the ownership
in future actions. In the book
Spencer –Bower and Turner on
“The Doctrine of Res Judicata”
[1969] [2nd ed.], it
is stated [at p.151] that:
“where one cause of
action has been the subject of
final adjudication between
parties, those determinations of
particular issues which are its
essential foundation, without
which it could not stand , may
be used as the basis of issue
estoppel between the same
parties of when another cause of
action altogether is set up.”
In my humble opinion per the
reliefs sought by the parties in
this action, the ownership of
Atwima Afiasebon was not in
issue and a ruling on it was
therefore irrelevant for reliefs
sought. I therefore hold that
the decisions of both courts as
to the ownership of the Atwima
Afiasebon house were irregular
exercise of jurisdiction.
Odeneho Kwadaso House
Another issue that the court had
to contend with was whether the
Odeneho Kwadaso house was the
house of the Appellant and the
Respondent or that of the
Appellant’s father. Such
determination was crucial in
assisting the court in making
orders.
The contentions of the Appellant
in both courts were that the
property belonged to his
father. Before this court,
counsel for the Appellant, in
attacking the Court of Appeal’s
judgment, dwelt more on the
issue of whether the house
belonged to the Appellant solely
as was admitted, as counsel put
it, by the Respondent, when
asked who owned the house. For
this reason he says by her own
showing Respondent had no
proprietary interest in the
house.
The appellant cited the case of
ACHIAMPONG V
ACHIAMPONG [1982-83]
GLR 1017 where it was held that
“Broadly speaking,
a wife by going to live in a
matrimonial home, the sole
property of the husband, did not
acquire any interest therein.
The law did not recognize any
such interest. She only had a
right to live in the matrimonial
home as long as the marriage
subsisted. The right was
conferred on her by virtue of
her status as a wife and not by
virtue of any permission from
the husband. So long as her
status as a wife remained,
so long did that right
survive. But the right would
terminate automatically after
divorce even if she was the
successful petitioner…”
The Appellant further added that
the cases of MENSAH
V MENSAH [1998-99]
SCGLR 350 and BOAFO
V BOAFO
[2005-2006] SCGLR dealt with
situations in which the courts
made a finding that the property
was acquired jointly and as such
applied an equitable sharing of
the properties.
Despite this submission of the
appellant, the Appellant still
asserts that his father is the
owner of the house.
It is quite interesting to note
the conduct of the alleged owner
of the house in this action,
that is, the Appellant’s
father. He failed to join as a
party to the action and
preferred to be witness in his
case. It has been held
“where a grantor stands by in a
case between his grantee and a
third party involving the
validity of the title he has
conveyed, and is content to see
the battle fought by the
grantee, he the grantor will be
bound by the result of the case
and will be estopped by conduct
from re-opening the issue
determined in that case;
ABRAHAMS V AKWEI
[1961] GLR 676
The issue of ownership of a
house is normally entangled with
to whom the land on which is
sited was given. This will best
be resolved by the person who
granted the land. In the
instant case, it was Nana Boakye
Danquah who granted the land to
the Appellant. By his evidence
adduced he stated that he
granted the land to the
Appellant and it is in his name
that the allocation papers were
given.
The conduct of the parties
confirm that the house is that
of the appellant, as claimed by
the respondent, and not that of
the Appellant’s father. This is
a house that the parties have
enjoyed without any challenge as
to its ownership. Section 48(2)
of the Evidence Decree, NRCD 323
puts it that;
“A person who
exercises acts of ownership over
property is presumed to be the
owner of it”
Thus in this instant case, since
the Appellant and Respondent
exercise acts of ownership over
the property, they are presumed
to be the owners. Even though
this is a mere presumption and
it can be rebutted, in my
opinion the mere production of
water and electricity bills
cannot rebut this presumption as
evidence has established that
the building permit and
allocation papers are in the
name of the Appellant.
The Appellant further in
his statement case raised the
issue of joint ownership as
against sole ownership. He
pleads that the Respondent
admitted that the house is the
sole property of the Appellant.
It was to support his claim that
he cited ACHIAMPONG
V ACHIAMPONG and
he referred to the quote cited
above court.
The appellant in his pleadings
[page 68-70] of the record
asserted that the Odeneho
Kwadaso house belonged to his
father [paragraph 23 of the
Appellant’s response i.e. page
69 of the record] and even added
that the father kicked against
any alterations to the house.
He did not in any way state that
he owned the house. This was
the appellant’s pleading.
In HAMMOND V
ODOI & anor [1982-83]
GLR 1215 @ 1235 Crabbe JSC
stated
“Pleadings are the nucleus
around which the case – the
whole case – revolves. Their
very nature and character thus
demonstrate their importance in
actions, as for the benefit of
the court as well as for the
parties. A trial judge can only
consider the evidence of the
parties in the light of their
pleadings. The pleadings form
the basis of the respective case
of each of the contestants. The
pleadings bind and circumscribe
the parties and place fetters on
the evidence that they would
lead. Amendment is the course
to free them from such fetters.
The pleadings thus manifest the
true and substantive merits of
the case.”
Since this appeal is by way of
rehearing, this court is
entitled to make up its own mind
on the facts and to draw
inferences from them to the
extent that the trial court
could. PRAKA V
KETEWA [1964] GLR
423-427
By the pleadings of the
Appellant, he cannot now claim
that the house belonged to him
alone. This conduct of the
Appellant offends against the
Rule of Departure. Order 11
Rule 10 of C.I 47.
In the HAMMOND V
ODOI case (above
cited) when a party sought to
depart from his earlier pleading
the court per Archer JSC(as he
then was)said,(holding 1)
“Nowhere in the
statement of claim did the
plaintiff aver that his
ancestors, being Osu subjects,
settled on the disputed land as
of customary right. The
plaintiff’s pleading in the
statement of claim only conveyed
the impression that he and his
brother were owners of the land
in dispute because they took
their grant from the Nii We
family of the Osu Blohum
quarter. Consequently, when he
subsequently pleaded in his
reply that he and his ancestors
occupied the lane in dispute as
Osu subjects he committed a
decessus by changing his radical
title and making new allegations
of fact. He thus raised a new
matter which was not intended to
be a set-off nor did it
controvert anything pleaded in
the statement of defence. On
the contrary, the reply raised
[p. 1218] a new matter and
abandoned the earlier stand and
that amounted to a departure
from his pleadings…”
The Appellant claim was that the
Odeneho Kwadaso house belonged
to his father, he cannot depart
from his pleading and set off a
new ground and claim that since
the Respondent gave evidence
that the house belonged to him
he can plead that he solely
acquired the house and therefore
on the strength of the
ACHIAMPONG V
ACHIAMPONG case.
it cannot be subjected to a
partition by an order of the
court.
I am therefore of the view that
the Court of Appeal was right in
its holding with regard to the
ODENEHO Kwadaso House and their
decision ought not be disturbed.
On the issue of alimony the
court of appeal reviewed the
evidence on record relating to
the financial standing of the
parties and concluded thus
“Basing ourselves on the sad
interpretation of Section 20(1)
of the Matrimonial Causes Act,
1971, Act 367, we will award a
lump sum payment of 20 million
cedis to the petitioner which
the respondent must pay to her
as a send off money”
The appellant has
taken issue with the alimony
award stating it is
inequitable. We do not think
so. Based on the totality of
evidence available to it, we are
of the view that the Court of
Appeal was right in awarding the
20 million cedis send off money
to the respondent. This was in
consonance with the meaning and
spirit of Section 20(1) of the
Matrimonial Causes Act 1971 (Act
367)
This Court’s decision will be
summarized as follows:
The appeal is granted in part;
a.
The Court of Appeal’s decision
declaring Amma Amponfi as the
owner of the house No. 38 block
A Atwima Afasiebon was done
without jurisdiction and so same
is set aside.
b.
The Alimony of 20 million cedis
awarded to the respondent is
confirmed.
c.
The Court of Appeal’s finding on
the Odeneho Kwadaso house and
the order partitioning same
amongst the parties is
confirmed.
P. BAFFOE BONNIE
(JUSTICE OF THE SUPREME COURT)
I
agree
G. T. WOOD (MRS)
(CHIEF JUSTICE)
I
agree
S. A. BROBBEY
(JUSTICE OF THE SUPREME COURT)
I agree
J. ANSAH
(JUSTICE OF THE SUPREME COURT)
I agree
ANIN –YEBOAH
(JUSTICE OF THE SUPREME COURT)
COUNSEL:
K. A. ASANTE-KROBEA FOR THE
APPELLANT
HANSEN KWADWO KODUAH FOR THE
RESPONDENT
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