Husband and wife – Divorce –
Financial provision – Duration
of award – Order terminates upon
death of party adversely
affected – Matrimonial Causes
Act 1970 (Act 367) s 28(2).
Husband and wife – Divorce –
Property – Principles for
settlement of, – Award
discretionary – Appellate court
entitled to enhance award on
fresh evidence – Matrimonial
Causes Act 1970 (Act 367) s
20(1).
Husband and wife – Divorce –
Property – Dispositions –
Rescission of disposition by
court – Principles – Matrimonial
Causes Act 1970 (Act 367) s 26.
Husband and wife – Divorce –
Financial provision – Assessment
– Valuation of assets not
essential for award.
The wife, married under
customary law, filed a petition
against her husband in the High
Court for dissolution of her
marriage, financial provision
and a declaration that she had a
beneficial interest in the
family assets. The trial judge
dissolved the marriage and
awarded to her a house as
financial provision and
settlement of her claim of
beneficial ownership in the
family assets. The husband
appealed to the Court of Appeal
and the wife filed a
cross-appeal against the quantum
of the award. The husband died
testate during the pendency of
the appeal and his executors
withdrew the appeal but the wife
proceeded with her cross-appeal.
It became apparent from the will
of the husband that he had
concealed substantial assets
from the trial court. The wife’s
counsel therefore submitted that
the award ought to be varied. He
argued that had the trial judge
been made aware of the true
extent of the respondent’s
assets, he would have awarded
more to the petitioner.
Held:
(1) Under s 28(2) of Act 367 an
order of financial provision
abated on the death of a party
adversely affected by it.
Consequently, on the death of
the husband, the claim for
variation of financial provision
abated. However, the appeal
against the assessment of the
property rights by the trial
judge remained for
determination. Since the judge
did not specify the
apportionment of the house to
the two reliefs, the appellate
court would assume that one half
was awarded as settlement of the
property rights of the
petitioner.
(2) Where a trial judge vested
property as settlement of
property rights under section
20(1) of Act 367, he would have
exercised his discretion and
would be the best judge of what
was adequate in the
circumstances of the case. The
trial judge rightly considered
all the circumstances of the
case. However, the appellate
court was inclined to enhance
the award in view of the fresh
evidence of other properties
owned by the deceased.
Ribeiro v Ribeiro [1989-90]
2 GLR 109, SC mentioned.
Per curiam:
the court would set aside a
disposition under section 26 of
Act 367 only upon clear evidence
that the disposition was made
with intent to defeat a
financial provision or property
settlement. Without such
evidence, the court would not
set aside a disposition by a
party during the pendency of
proceedings for financial
provision or property
settlement. As there was no
evidence that the dispositions
under the will were made with
such intent, the better approach
would be to preserve the
dispositions under the said will
and order the additional payment
to the wife as property
settlement.
Per curiam:
The mere fact that the house was
not valued did not make the
award a nullity. A valuation is
not mandatory for the exercise
of the judge’s discretion under
section 20(1) of Act 367, the
judge being required to exercise
his discretion in the best way
he can.
Cases referred to:
Achiampong v Achiampong
[1982-1983] GLR 1017, CA.
Gissing v Gissing
[1969] 2 Ch 85, [1969] 1 All ER
1043, [1970] 2 WLR 525, 113 Sol
Jo 187, 20 P & CR 702, CA.
Nixon v Nixon
[1969] 1 WLR 1676, [1969] 3 All
ER 1133, 113 Sol Jo 565, 20 P &
CR 1043, CA.
Pettit v Pettit
[1969] 2 WLR 966, [1970] AC 777,
[1969] 2 All ER 385, 113 Sol Jo
344, 20 P & CR 991, HL.
Rimmer v Rimmer
[1953] 1 QB 63, [1952] 2 All ER
863, [1952] 2 TLR 767, 96 Sol Jo
801, CA.
Ribeiro v Ribeiro
[1989-90] 2 GLR 109, SC.
Ribeiro v Ribeiro (No 2)
[1989-90] 2 GLR 130, SC.
Wachtel v Wachtel
[1973] Fam 72, [1973] 1 All ER
829, [1973] 2 WLR 366, 117 Sol
Jo 124, CA.
APPEAL against the decision of
the High Court to the Court of
Appeal.
Dr W C Ekow Daniels
for the appellant.
Dr Seth Twum
for the respondent.
LUTTERODT JA.
In 1958, the petitioner, whom I
shall hereinafter describe as
“the appellant” was married to
the respondent, S A Mensah, now
deceased, under customary law.
Following the breakdown of their
marriage, she instituted
proceedings in the High Court,
Accra for a number of reliefs,
including the following:
“2. That the respondent be
granted maintenance pending suit
and financial provision.
3. That it be declared that the
petitioner has a beneficial
interest in the family assets.”
By a judgment dated 14 December
1984 the learned trial judge
ordered among other things as
follows:
“For the petitioner’s
matrimonial reliefs concerning
financial provision and
beneficial interest in the
respondent’s assets, it is
hereby ordered that the
petitioner be given the
respondent’s house at Tesano
where the petitioner resides and
has already staked her interests
by making extensions thereto.”
The respondent who was not at
all happy with this order,
appealed against the decision.
The appellant in turn
cross-appealed for a variation
of the order by increasing the
financial provision. In the
course of the proceedings the
respondent died and his
executors were, in conformity
with the rules, substituted.
They however withdrew the
appeal, leaving the cross-appeal
to be determined.
Although the appellant sought
two distinct reliefs, ie
financial provision and a
declaration that she had a
beneficial interest in the
family assets, the court did not
grant these reliefs separately.
What the learned judge did was
to lump the two awards together
and declare the Tesano house as
adequate for both. This, the
court did after reviewing the
evidence and concluding that
indeed she was not only entitled
to financial provision but she
indeed had a beneficial interest
in the respondent’s assets. It
seems to me that the learned
judge drew his authority from
section 20(1) of the Matrimonial
Causes Act 367, which reads:
“The court may order either
party to the marriage to pay to
the other party such sum of
money or convey to the other
party such movable or immovable
property as settlement of
property rights in lieu thereof
or as part of financial
provision as the court thinks
just and equitable.”
The appellant is not challenging
the validity of the order. Her
main complaint, I think, is that
the quantum is grossly
inadequate. Indeed I do think
section 20(1) of Act 367
empowers a judge to make any of
the orders specified therein
where the spouse is not merely
praying for financial provision
but is alleging an interest in
property. In other words, s
20(1) of Act 367 provides for
two basic reliefs namely,
settlement of property rights
arising from claims of
substantial contribution either
in money or moneys’ worth and
financial provision:
Achiampong v Achiampong
[1982-1983] GLR 1017; see
particularly the speech of Abban
JA which supports the views I
have expressed.
I have taken the trouble to
examine the scope of the order
made because of the respondent’s
counsel’s submission that the
judge dismissed the motion of
the petitioner for a beneficial
interest in any family assets
and made the order in
substitution thereof, implying
thereby that she was granted one
relief only ie maintenance or
financial relief. Truly, the
learned judge never used the
term “family assets.” Lord
Denning in the decision of the
Court of Appeal in Gissing v
Gissing [1969] 2 Ch 85
explained that term as follows:
“Where a couple by their joint
efforts, get a house and
furniture, intending it to be a
continuing provision for them
for their joint lives, it is
prima facie inference from their
conduct that the house and
furniture is a “family asset” in
which each is entitled to an
equal share. It matters not who
goes out to work and who stays
at home.”
But on the other hand the trial
judge quite clearly found in
favour of the petitioner that
she has a beneficial interest in
the respondent’s assets. In that
light my view is that he granted
the substance of the
petitioner’s claims as the
following excerpt of his
judgment would show:
“Then follows the issue as to
whether or not sufficient
grounds have been established to
justify the award of financial
provision in her favour or claim
by her of interest in the
husband’s properties. The two
claims are different but I treat
them under one head for the sake
of convenience. The clear
unequivocal answer I give to
this question is that the
petitioner has established
sufficient grounds to justify
judgment being given to her on
the two reliefs.”
It is trite learning that
because the respondent did not
appeal against any of these
positive findings, we cannot in
any way interfere with them, and
neither can we upset the order
that part of the Tesano house
was in settlement of the
appellant’s property rights.
Before I deal with the main
issue raised in this appeal, I
would like to determine an
important issue raised by the
respondent’s counsel. His
argument runs like this: The
appellant asked for a variation
of the order of financial
provision. Under s 28(2) of Act
367, on the death of a party
adversely affected by an order
of financial provision, the
order shall abate. Consequently,
with the death of the respondent
there is nothing to be
determined by this court. In the
first place, as I have already
explained the Tesano house was
awarded for both reliefs. True,
the relief endorsed in her
notice of cross-appeal was for a
variation of “financial
provision” but I will not give
it such a narrow or restrictive
interpretation as to limit it
solely to financial provision.
In the first place, as I have
already explained, the Tesano
house covered both reliefs. On
reading the endorsement
alongside the grounds of appeal,
I think the complaint is that
the quantum for both reliefs was
grossly inadequate and
consequently the prayer is for
the entire award to be enhanced.
The endorsement reads that the
said judgment should be raised
by increasing the amount of
financial provision in
conformity with the reliefs
claimed. The natural question is
what are the reliefs (note: not
relief but reliefs) claimed?
They are (1) a declaration that
she has a beneficial interest in
the family assets (found by
judge to be the respondent’s
assets) and (2) financial
provision.
In these circumstances, even if
the prayer for an increase in
the financial provision fails on
the death of the husband, this
court will still have to
determine whether the quantum
for settlement of property
rights is adequate. Since the
judge did not specify in what
proportion the Tesano house was
to cater for either relief, I
would assume a half share for
the property rights settlement.
I now proceed to deal with the
main issue raised by this
appeal. It was submitted on her
behalf that because of the role
she played in the husband’s
business and which no doubt led
the judge to conclude she made
substantial contribution (and
this finding has not been
challenged), the court should
have followed the decision in
cases like Rimmer v Rimmer
[1953] 1 QB 639, Pettit v
Pettit [1969] 2 WLR 966,
Nixon v Nixon [1969] 1 WLR
1676, and declared her an equal
partner and should have given
her a half share of the assets.
Secondly, it was urged that had
the trial judge been made aware
of the other properties that the
deceased owned, he certainly
would have given her something
more. For these two reasons and
the fact that, with the
exception of only one property,
the evidence does show that all
the properties were acquired
after their marriage, bringing
their total value as stipulated
by the executors to
¢436,000,000, the award is
grossly inadequate. We have
therefore been invited, as an
appeal is by way of rehearing,
to enhance the award and give
her a half share at least in the
North Ridge business.
The learned trial judge no doubt
took all the circumstances of
this case into consideration
before concluding that the
Tesano house was adequate. I
think these matters included the
following: (1) The fact that the
deceased had other wives; (2)
Those wives also contributed in
no small way to his success; (3)
His nephew, a University
graduate left his employment, at
his request, and teamed up with
him to run his business and thus
contributed to his success
story; (4) He opened, with his
own funds, a Barclays Bank
account for her; (5) He had
other successes other than the
store where the appellant
worked. He started business as
far back as 1942, some 16 years
before he met the appellant; (6)
She benefited greatly from the
marriage, judging even from the
number of unsewn textile
materials that she had; (7) His
several other liabilities; (8)
The fact that the appellant
herself is in business with her
daughter; they import goods for
sale in Ghana. Her investments
could in my view only have come
from moneys obtained from the
respondent. He, in any case,
contributed to her business.
I was not minded to increase an
award that the judge, in his
discretion, had made, and which
he thought adequate in all the
circumstances. For, apart from
the facts that I have
enumerated, there is no evidence
that the appellant herself
invested any moneys in the North
Ridge Hotel which in any case
was completed after she had left
and stopped working for him.
Again, it is the extent of her
contribution which would
determine the extent of her
interest in any property. But
the evidence on the record does
not show that her contribution
to the hotel business was half.
Others contributed to the man’s
business from which he no doubt
built the hotel.
I do not think the mere fact
that the Tesano house was not
valued makes the award a
nullity. Achiampong v
Achiampong supra did not
make valuation mandatory or a
sine qua non to the exercise of
the judge’s discretion. As was
pointed out by His Lordship
Amua-Sekyi JSC in his judgment
in the Supreme Court in
Ribeiro v Ribeiro [1989-90]
2 GLR 109, in applying section
20(1) of Act 367 it was for the
judge to exercise his discretion
in the best way he could. As a
judge sitting in Accra, the
trial judge must be deemed to be
familiar with the location of
the three houses and to have a
fair idea of their suitability
as residence. This court is not
better placed than the trial
court to determine what was
suitable for the petitioner,
having regard to the
circumstances of her case. True
the Ribeiro case
concerned financial provision,
not settlement of property
rights but I am of the view that
even where a judge sets out to
vest property in settlement of
property rights under section
20(1) of Act 367, he exercises
discretion and is the best judge
of what is adequate having
regard to the peculiar facts of
the case.
However that which has persuaded
me to enhance the award is the
new evidence of other properties
owned by the deceased. Before
the trial court his case was
that he had only the following;
six houses, one plot of land at
MacCarthy Hill, one plot of land
at Abeka, one ancestral land in
his home town and a plot of land
at Nkawkaw. We have discovered
that he owns a little more than
he told the court. He owned
additionally eight undeveloped
plots of land at MacCarthy Hill,
a plot at Magazine, Nkawkaw, two
undeveloped plots at Haatso, an
undeveloped plot near Alige
Hospital, cocoa farms at Praso,
five plots at Takoradi, 20
cattle and a residential estate
overseas to the value of
¢12,500,000.
I think the appellant deserves a
little more by way of settlement
of property rights, (which as I
have already explained was
included in the order of the
court). With the death of her
husband, as section 28(2)
stipulates, this court cannot
make any fresh or new orders
with regard to financial
provision. That order abated
with the death of the other
partner.
Where a party prays in aid the
provisions of section 26 of Act
367, the court can only set
aside a disposition where
clearly, it was made with intent
to defeat a claim for financial
provision or property settlement
by the other party. Without
evidence of such intention, a
court would not set aside any
disposition. This is the
undoubted conclusion of His
Lordship Amua-Sekyi JSC in the
Ribeiro case.
In this particular case, I find
no evidence from the record,
either express or implied, which
shows the disposition under the
will was made with the intent I
have described. If anything at
all, the manner in which the
testator made sure that all
persons who he thought should
benefit, particularly the
appellant’s children, were
catered for under the said will
negates any such thing. In the
circumstances, I think the
better approach would be to
preserve the dispositions under
the said will and order the
additional payment of money to
her by way of property rights
settlement.
The question, which naturally
arises, is how much is she
entitled to? In view of the
reasons I have already advanced,
it cannot be a half share of the
North Ridge business. It can in
my view be only a portion of
such of his estate as we can
elicit from the fresh evidence.
I think having regards to the
contribution by other persons to
the deceased business, profits
from which we can say he
acquired his self-acquired
properties, including the
undisclosed portion of the
estate, that the sum of eight
million cedis is reasonable and
fair.
LAMPTEY JA.
I agree that the appeal be
allowed. I wish to add a few
words of my own. In the High
Court the appellant, Mary
Oparebea, had sought, among
others, the following reliefs:
(1) an order dissolving her
marriage with the respondent;
(2) financial provision; (3) a
declaration that she has a
beneficial interest in the
family assets.
The trial judge dissolved the
marriage between the parties and
made the following order:
“… concerning financial
provision and beneficial
interest in the respondent’s
assets, it is hereby ordered
that the petitioner be granted
the respondent’s house at Tesano
as full and final marriage
settlement.”
The appellant was aggrieved and
dissatisfied with the order made
by the trial judge and appealed
to this court on two grounds,
namely:
“(1). The quantum of financial
provision awarded was inadequate
having regard to the total
wealth of the respondent.
(2) The learned trial judge
failed to give adequate regard
to the petitioner’s claim for
beneficial interest in the
family assets based on her
contribution in kind and
service.”
Before us, learned counsel for
the appellant pointed out pieces
of evidence on record, which
proved that the appellant lived
with
the respondent for a continuous
period of 28 years. There was
evidence which proved that apart
from performing her duties as a
wife, the appellant actively
assisted and worked for the
respondent in some of his
business ventures. There was
evidence to prove and show that
the respondent acquired
substantial immoveable and
moveable properties. On the
evidence before him, the trial
judge held that the appellant
made substantial contribution
towards the properties moveable
and immovable and the wealth
acquired by the respondent.
Learned counsel therefore
submitted that the award made by
the trial judge as financial
provision was grossly and wholly
inadequate.
In reply, learned counsel for
the respondent admitted that
over and above her duties as a
wife, the appellant assisted and
worked for the respondent. He
contended that such services as
she rendered over and above
those required of a wife, were
services which customary law
enjoined her to offer. Such
services were not regarded and
did not attract any reward or
compensation at customary law.
He submitted that the appellant
was not at customary law
entitled to claim any interest
and or right to the properties
(moveable or immovable) of the
respondent, founded or based on
a claim that she assisted and
helped in the acquisition of
those properties. Counsel for
the parties referred to and
relied on the English cases of
Wachtel v Wachtel [1973]
Fam 72, Pettit v Pettit
[1969] 2 All ER 385, HL and the
local case of Ribeiro v
Ribeiro [1989-90] GLR 109,
SC.
I must observe that section
20(1) of Act 367 was examined by
the Supreme Court in the
Ribeiro case supra. In the
course of his judgment,
Amua-Sekyi JSC expressed his
opinion on the ambit and scope
of section 20(1) of Act 367
thus:
“In this case we are not
concerned with settling property
rights where the court is called
upon to determine the share in
any property, which belongs to
one or the other of the parties.
The determination of such an
interest is not the issue; the
question of the contribution of
either party, substantial or
otherwise towards the
acquisition of the property is
irrelevant.”
The language of Amua-Sekyi JSC
is plain and clear. The majority
of the judges concurred in the
view and opinion expressed by
Amua-Sekyi JSC. I agree with the
opinion and interpretation
placed on s 20(1) of Act 367,
namely, in determining whether
or not a spouse is entitled to
claim financial provision the
spouse need not lead evidence to
prove and establish that he or
she made a contribution towards
the acquisition of the property.
In the words of Amua-Sekyi JSC,
in considering a claim under
section 20(1) of Act 367,
contribution whether substantial
or otherwise, is irrelevant.
A careful reading of the
judgment before us shows that
the trial judge did not follow
the test laid down by the
Supreme Court in the Ribeiro
case. The trial judge looked for
evidence from the appellant
seeking to prove and establish
that she made some contribution
towards the acquisition of
property by the respondent to
support her claim under section
20(1) of Act 367. This was what
the trial judge wrote on this
issue:
“…the assistance [the appellant
gave the respondent] surely
yielded positive results for
those business. It cannot be
denied even by the respondent
that the contribution helped the
business to flourish.”
In the candid opinion of the
trial judge the appellant made a
substantial contribution to the
acquisition of the properties of
the respondent. On this he
stated as follows:
“I hold therefore from the facts
of the case that positive
services or assistance by a wife
to her husband’s businesses for
a long period of 28 years
amounted to substantial
contribution towards these
businesses.”
With great respect to the trial
judge, he erred in law in
looking for evidence of
contribution to support the
appellant’s claim under section
20(1) of Act 367. In the
Ribeiro case, the Supreme
Court indicated that to
ascertain and determine a claim
made under section 20(1) of Act
367, a court “must examine the
needs of the party making the
claim.” The court in the
appropriate case must make
reasonable provision for their
satisfaction out of money, goods
or immovable property of his or
her spouse. In the instant
appeal, the Ribeiro case
enjoins this court to examine
the needs of the appellant and
thereafter this court must make
reasonable provision for their
satisfaction from the money,
goods or immovable property of
the respondent. In the court
below the trial judge in
exercise of the power under
section 20(1) of Act 367 made
the awards to which I have
already made reference.
In the course of their arguments
and submissions on the issue of
financial provision, learned
counsel for the parties referred
us to the English cases of
Wachtel and Pettit,
supra. In the majority judgment
of the Supreme Court in the
Ribeiro case supra, the
Pettit case was rejected as
irrelevant and therefore
unhelpful. With respect to
learned counsel for respondent,
I agree with the opinion that in
considering a claim under
section 20(1) of Act 367 the
English case of Pettit v
Pettit is irrelevant and not
helpful.
The second ground of appeal
argued by learned counsel for
the appellant was that the trial
judge omitted to make a
declaration of the share of the
appellant in the “family
assets.” The argument put
forward was that the appellant
made a substantial contribution
towards the acquisition of the
“family assets”. He submitted
that the appellant was entitled
to be awarded her fair share of
the family assets. I have
elsewhere in this judgment
stated the reply of learned
counsel for respondent to the
above submission. No useful
purpose would be served if I
repeated this reply. In
examining the claim to be
awarded a share of family
assets, I have found the English
case of Wachtel, supra
helpful. In that case, Lord
Denning MR explained in some
detail the concept of family
assets. He defined family assets
as follows:
“the phrase “family assets” is a
convenient short way of
expressing an important concept.
It refers to those things which
are acquired by one or other or
both of the parties, with the
intention that they should be
continuing provision for them
and their children during their
joint lives, and used for the
benefit of the family as a
whole. The family assets can be
divided into two parts: (1)
those which are of a capital
nature, such as the matrimonial
home and furniture in it; (2)
those which are of a revenue
producing nature, such as the
earning power of husband and
wife. When the marriage comes to
an end the capital assets have
to be divided, the earning power
of each has to be allocated.”
In the instant case there is
evidence of the immovable and
moveable properties of the
respondent. As I have already
observed, the trial judge made a
positive finding of fact that
the appellant made a substantial
contribution towards the
acquisition of these properties.
Learned counsel for the
appellant has invited this
court, basing itself on the
finding of the trial judge to
quantify the share of the family
assets that fall to the lot of
the appellant. Has this court
the power? I found the opinions
expressed by Francois JSC and
Wuaku JSC in the Ribeiro
case supra immensely helpful and
rewarding. In that case Francois
JSC was very careful to draw a
clear distinction between a
claim to a share in property
based on a contribution to the
acquisition of that property and
a claim unsupported by any such
contribution towards the
acquisition of the property. The
opinion of Francois JSC was in
the minority but was concurred
in by Wuaku JSC. In the view of
Francois JSC, when faced with a
claim based on section 20(1) of
Act 367, the court cannot and
ought not make any award of
immovable property if the claim
is not for a beneficial interest
in that property. In that case,
the trial court purporting to
act under section 20(1) of Act
367, awarded a house to the wife
who had made no contribution to
the acquisition of houses by the
husband. On this award, Francois
JSC observed that:
“The wife is not claiming any
beneficial interest in the
matrimonial home, but claiming
properties, which on the
admitted facts the husband is
the sole legal owner. Then
before the Haulage House could
be conveyed to her she must
provide substantial financial
contribution or title… It would
be different if the wife claims
an interest in the property and
was able to establish her title
(interest) then s 21(1) of Act
367 will come into play. This
section shows that the court
cannot under s 20(1) order a
party to convey property. To do
so the party must establish
title to the part or all of the
property or substantial
contribution.”
It will be seen from the opinion
of Francois JSC that where a
claim is based and founded on
evidence of substantial
contribution the court may
proceed under section 21(1) of
Act 367 and make an appropriate
award. Wuaku JSC, in his
dissenting judgment stated the
position thus:
“It would be different if the
wife claims an interest in the
property and was able to
establish her title. Then s
21(1) of Act 367 will come into
play… This section shows that
the court cannot under s 20(1)
order a party to convey title.
To do so the party must
establish title to the part or
all the property or substantial
contribution.”
On this same issue, Francois JSC
was of the opinion “that a
spouse could not press with any
degree of optimism interest in
the husband’s properties by
virtue of mere domestic services
in the house.” This view of the
law means and can only mean that
where a spouse proved
substantial contribution towards
the acquisition of property or
family assets, the spouse can
lawfully press with optimism a
claim to a fair and reasonable
share of the family assets or
properties pursuant to section
21(1) of Act 367.
In the instant case the trial
judge made a finding of fact
that the appellant made a
substantial contribution towards
the acquisition of the
properties of the respondent. I
find that there is evidence on
record to show that some of the
properties were indeed acquired
pursuant to decisions jointly
reached by the appellant and
respondent. One of such
properties is the house or
building now used as the North
Ridge Hotel. In respect of that
property the appellant testified
as follows: “one [property] in
North Ridge which respondent and
I jointly decided and converted
into a hotel with 31 rooms.” In
the course of her evidence, the
appellant narrated the
circumstances which led to the
decision to turn the matrimonial
home into a hotel:
“We were living in the North
Ridge house which we built as
our residence (matrimonial home)
but later converted to a hotel.
We were in the North Ridge house
in 1974 with my children and
respondent.”
The evidence was not disputed
nor challenged. There can be no
doubt that the appellant proved
that kind of interest in the
North Ridge property, which Lord
Denning MR categorised as
“family asset.” Again there was
evidence before the court that
sometime in January 1976 the
appellant and respondent jointly
obtained a loan from the Ghana
Commercial Bank for business
purposes and jointly and
severally bound themselves by a
bank guarantee to repay that
loan. The loan was taken for the
benefit of a company which
carried on business and
commercial activity called S A
Mensah & Company Ltd. The
contention of learned counsel
for the respondent that the
appellant must be seen in the
above circumstances as
performing and discharging the
duties of an Akan wife cannot be
a correct statement of Akan
customary law. The business
transaction between the Ghana
Commercial Bank and the parties
herein is purely and simply a
business and commercial one. It
has nothing to do with the
relationship of husband and
wife. The evidence of the bank
transaction is in my opinion a
reflection of the intention of
appellant and respondent jointly
to engage in some commercial and
business ventures and activities
with a view to amassing wealth
and additionally acquiring real
properties over a continuous
period of 28 years of marriage.
Indeed, there was evidence from
the respondent that the
appellant actively assisted him
in his business ventures. He
testified in part as follows:
“The petitioner helped in the
store … she received the monies.
She looked after my financial
interests.” Again, the
respondent gave evidence as
follows: “I opened Barclays Bank
account with my money for her in
case anything happened to me.”
There was further evidence from
the respondent to show that over
and above the obligations and
duties imposed on spouses, he
and the appellant supported each
other in their respective
business interests. The
respondent gave the following
evidence: “when she told me that
a Mr Thompson who was a choir
master at Asamankese was owing
her, I went with her to collect
the debt.” Other random evidence
of the assistance respondent
gave the appellant was stated by
him as follows:
“Q Did you discuss her
involvement in the poultry farm
with her?
A Yes. She told me it was
too much.”
Indeed there was evidence on
record that even though the
respondent and the appellant
lived apart from each other and
had ceased to live as husband
and wife the respondent freely,
willingly and cheerfully paid
for two overseas trips the
appellant made to America and
Europe. In my opinion the
finding of fact by the trial
judge that the appellant made
substantial contribution towards
the acquisition of family assets
by the respondent was supported
by the evidence on record. He
therefore erred in not
quantifying her fair and
reasonable share of it. This
court has power to affirm the
declaration and quantify the
award. The power is now granted
by article 137(3) of the 1992
Constitution. In the English
case of Wachtel the court
was called upon to quantify the
share of the wife in the family
assets. At holding (3) of the
Report appears the following:
“(3)… that one third of the
combined resources of the
parties offered a convenient
starting point, and accordingly
in the circumstances, including
the fact that the wife had made
a substantial contribution to
the home by her care of the
family…”
I find that in all the
circumstances of the instant
case, including 28 years of
continuous selfless and
dedicated services both in the
running of the home and business
ventures and commercial
activities of the respondent,
the appellant is entitled to 20
percent of the family assets as
disclosed by the inventory
presented for the purpose of
obtaining probate.
ADJABENG JA.
I agree entirely with the
judgment of my sister, Lutterodt
JA and the reasons given
therefor. I agree that the
appeal be allowed because of two
reasons. These are, firstly,
that the trial judge had made a
positive finding of fact that
the appellant had contributed
substantially to the
respondent’s assets, but this
finding was not challenged by
the respondent. Even though an
appeal was filed against the
judgment of the trial court,
this appeal was later
discontinued when the respondent
died. The second reason is that
after the judgment had been
delivered, some fresh evidence
revealed that the respondent had
more properties than was
revealed to the court. It is
most likely that if these
additional properties had been
revealed to the court at the
time the award was made, the
award might have been more
substantial
Appeal allowed, settlement of
property rights varied.
S Kwami Tetteh, Legal
Practitioner |
