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JUDGMENT
OWUSU-ANSAH, JA:
The parties got married
customarily in 1969. The marriage was converted into
monogamous marriage under the marriage Ordinance on the
17th September 1982 – at the Church of Pentecost Temple,
Labadi, Accra-Ghana.
The parties lived in
Accra with the six (6) children of the marriage.
Since 1983 the husband
Petitioner, a staff of the Ghana Army, has been living
and working in Israel; as Food and Beverage Manager of
the United Nations (NIFIL) in Israel; where the wife
(Respondent) and children later joined him. The children
were subsequently transferred to London with the
Respondent for their education. The respondent since
1995 has been living in Ghana.
In or about 1993 the
parties started having problems with their marriage.
During the marriage, the matrimonial home, H/No. B 94/31
Kwashieman, Accra was acquired. Later another plot was
acquired near the matrimonial home for a hospitality
project. According to the Petitioner, he also acquired
a two-bed room house also in Tema.
In 1996 however whilst
the monogamous marriage with the Respondent was still
subsisting the Petitioner married one Catherine Johnson,
and registered the said marriage at the office of the
Accra Metropolitan Assembly. At the instance of the
Respondent the High Court, Accra on the 27 April, 1998,
declared the said marriage null and void in Suit No. F.
1673/96.
In 1998, the Petitioner
attempted to throw the Respondent onto the Street from
the said matrimonial home H/No. B 94/31 Kwashieman,
Accra.
In a suit filed by the
Respondent in the high Court, Accra, Suit No. MC 50/98,
an Injunction order was granted restraining the
Petitioner from so doing.
On the 12-6-98, the
Petitioner filed a petition for divorce in the Circuit
Court, Accra. On the application of the
Respondent/Appellant the petition was transferred to the
High /Court, Accra, for trial.
Earlier the Circuit
Court had awarded ¢300,000.00 as monthly maintenance
allowance to the Respondent. The Petitioner apparently
paid for only three (3) months and he stopped any
further payments.
The High Court, Accra
refused to enforce the Summons to show cause in respect
of the arrears totalling ¢6.3 million and it has not
been paid to date.
The wife Respondent,
with leave of the High Court, cross-petitioned for
divorce on the grounds of adultery, desertion, cruelty
and unreasonable behaviour on the part of the Husband
Petitioner.
The Respondent also
asked for ancillary reliefs, settlement of H/No. B
94/31, Kwashieman, Accra, where she had been living over
the years, and a lump sum of ¢80 million.
On the 24th November,
2000 the High Court presided over by her Lordship Ms.
Agnes Dordzie dissolved the marriage, and adjourned
proceedings to take evidence on the ancillary reliefs
and the Respondent's cross-Petition.
The Court on the 31st
July, 2001 gave judgment and dismissed respondents
cross-Petition. In its place the Judge ordered that the
Petitioner conveys “a Tema house to the Respondent and
pay her ¢40 million cedis as a financial settlement.”
The Respondent being
aggrieved or dissatisfied with the judgment dismissing
her cross-petition filed the instant appeal on 3rd
August, 2001.
The grounds of appeal
include the following:—
1. The judgment is
against the weight of evidence.
2. The learned trial
judge did not give sufficient consideration to
respondent’s case.
3. The Learned Trial
Judge erred when she held that the only means by which a
wife could acquire interest in property acquired by the
husband is either by agreement, or direct or indirect
substantial contribution(s).
4. The learned trial
judge failed to exercise her discretion fairly and
equitably when she ordered the respondent, who has lived
the greater part of her life in Accra, to leave the
matrimonial home she claims to be settled on her, to
another house in Tema, where she does not even know nor
has ever lived, and an entirely different environment in
over 33 years of marriage.
5. Additional grounds
of Appeal to be filed upon receipt of the record of
proceedings.
Let me deal first with
Ground 1, that is to say, “The judgment is against the
weight of evidence.”
The
Respondent/Appellant’s Counsel submits that the trial
judge’s findings cannot be supported by the evidence
adduced at the trial.
In her evidence the
respondent/appellant stated, among other things, that
she was told by her husband that her allowance was
$500.00 (five hundred US dollars) per month, but the
husband never gave her the money. He made her understand
that he was going to use that money to build a house so
that when they come to Ghana they would have a place to
live, according to the wife Appellant.
Therefore, so says the
Appellant, she has contributed to the acquisition of
H/No. B 94/31 Kwashieman, Accra. The Husband Petitioner
put up the house on the piece of land bought by him
using the allowances.
The
Petitioner/Respondent emphatically denied that the
respondent/Appellant (“the Appellant”) contributed
anything to the acquisition of the house in dispute. He
added that he never explained the contents of his
appointment letter to the appellant as she alleges. His
appointment letter, he said, did not state that his
spouse was entitled to any allowances.
He explained that the
UN salary system had something called family support,
which depended on the number of children had, and was
included in the salary. No allowances were paid to any
spouse. The appellant, therefore, did not earn any
allowance of $500.00 per month as alleged which he kept.
He said he started building the house in question in
1988, and there has been no contribution – direct or
indirect, from the appellant.
The learned judge
meticulously reviewed and assessed the evidence and
concluded that “This is a claim in the appellant’s
cross-petition. The onus, therefore, lies on her to
prove that she actually earned the $500.00 monthly
allowance from UNIFIL
Unfortunately, said the
learned trial judge, the appellant never adduced any
evidence to prove her assertions. The claim therefore
remained mere assertions which cannot succeed.
Quite clearly, the
learned trial judge found as a fact that the Petitioner
had not discharged the requisite burden of proof in
accordance with the provisions of the Evidence Decree,
1975 (NRCD 323).
Especially Sections 11
and 12, and Section 7 (3) and (4) makes corroboration no
longer a requirement in our law. Nevertheless, there is
a fundamental difference between the question whether
there is any evidence, and the question whether there is
enough evidence to discharge the burden of proof –
albeit on the preponderance of probabilities.
In this case the
learned trial judge found as a fact that the Appellant
had failed to discharge the burden. That finding is
amply supported by the evidence. Once the trial judge
has found the primary facts, stated the findings, and
applied the law, the hands of the appellate court are
tied, subject to a few inapplicable exceptions.
In Fofie v. Zanyo 1992
2 GLR 475 at 478 Holding (4). The Supreme Court held
among other things that :
“Where the findings of
fact could not be said to be supported by evidence or is
wrong because the tribunal had taken into account
matters which were irrelevant in law, or had excluded
matters which were crucially necessary for
consideration, or had come to a conclusion which no
Court, properly instructing itself, on the law, would
have reached, and the findings were not inferences drawn
from specific facts, it was incompetent for an appeal
court to interfere. So too where it can be demonstrated
that the judge misapprehended the evidence or drew wrong
inferences from the evidence.”
In the instant case I
can find no evidence that the Respondent’s pay slips
and, indeed, his appointment letter were classified
documents. Therefore, I am unable to fathom why no
’Notice to produce’ them could not have been served on
the Petitioner/Respondent since the facts were
peculiarly within his own knowledge. Indeed his refusal
to produce them in the circumstances would in my view
have spoken volumes. Even assuming without admitting
that the money ($500.00) was included in the
respondent’s monthly pay packet the evidence was that it
was meant for the maintenance of the family, and it was
so used.
In short the appellant
had a burden; she failed to discharge that burden as was
found by the learned judge. The evidence that could have
tilted the balance in her favour was inadequate or
unavailable to the Court.
In my view this ground
of appeal fails. I hold that the judgment was not
against the weight of the evidence adduced.
The law abounds with
authorities in support of these principles (See for
example: Dankwa v. Dentah 1972 2GLR 305 CA;)
In Re Yendi Skin
Affairs Yakubu II vs. Abudulai No. 2 1984-82 2GLR SC.
Log and Lumber Ltd. v.
Oppon 1977 2 GLR 263. CA
Praka v Ketewa 1964
GLR 423 SC as well as the direct authority of Kyiafi v.
Wono 1967 GLR 463 CA.
Ground 2: “The learned
judge did not give any sufficient consideration to the
respondent's case.”
In this connection it
was submitted on behalf of the Appellant that “the
learned judge did not evaluate the respondent’s evidence
against that of the Petitioner thoroughly; or else it
would have been established that he Petitioner admitted
the existence of the family support allowance according
to the number of dependents including a spouse.”
It was further
submitted that the learned judge could also have found
by scuttling of Exhibit ‘I’ the Ruling of the High
Court, Accra, in Suit No. MC 50/98 that the intention of
the Petitioner was to drive away the Appellant out of
the matrimonial home.
Counsel also refers to
“the great hardship, inconvenience and unfairness that
the Judge’s order to uproot her (the Appellant) to Tema
house, from Accra, where she lives and trades, would
cause to her.”
The evidence was that
the family support was included in the Petitioner’s
Salary and that was used in providing for the family’s
financial, health, educational and social needs while
they were sojourning both in Israel and in Britain.
Apart from the mention
of $500 which the Respondent denied, there was no
allusion to any other contribution or assistance by the
Appellant. “He who asserts must prove” is a cardinal
rule of evidence.
The principles
enunciated by Ollennu J in Adom v. Kwarley (1962) 1 GLR
112 would have been applicable, had the learned Judge
found as a fact that the Respondent/Appellant made a
contribution.
Moreover the fact that
the children of the marriage live abroad does not help
the Appellant’s care. Indeed the Supreme Court held in
Mensah v. Mensah (1993-94) 1GLR 111 at 112 that under
customary law children could not claim any specific
share of their parents property even if they helped them
to acquire it unless any such child had contributed
specifically to the acquisition with the intention that
he or she should have a share of any property so
acquired. (Intestate succession laws apart)
In this case there is
no exhibition of any clear intention on the part of the
parties to purchase the house jointly for themselves and
their children coupled with a contribution by the
Respondent/Appellant towards the acquisition of the
house in question.
Consequently I am of
the view that the learned Judge did give adequate
consideration to the Appellant’s case.
Ground (iii) “The
learned Trial Judge erred when she held that the means
by which a wife could acquire interest in property,
acquired by the husband, is either by agreement, or
direct or indirect substantial contribution”.
Here it was submitted
on behalf of the appellant that if the Learned Trial
Judge had adverted her mind to the power granted the
High Court under Section 20(1) of the Matrimonial cause
Act 1971 and all the circumstances of this case, she
would not have simply dismissed the Respondent’s cross
petition for ancillary reliefs by merely accepting what
the Petitioner pleases as provision for the Respondent.
For ease of reference
S.20 (1) of the Act (i.e. Act 367) provides as follows:
“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, or in lieu thereof, as part of
financial provision as the court may think just and
equitable”.
It is true that this
marriage which was dissolved on the 21/11/2000 was a
monogamous one, and therefore, the section is
applicable.
However, the power
given to the Court under S.21 (1) is discretionary just
as the Court also has power under Section 26(1) of the
Act to rescind dispositions found to have been made with
intent to defeat the financial provision or property
settlement of the other party.
That discretion cannot
be exercised capriciously but in accordance with the
settled principles that govern the exercise of judicial
discretion having regard to the facts and the
surrounding circumstances of each case.
The law, as I
understand it, and as expounded in a bewildering variety
of decided cases, is that a spouse by going to live in a
matrimonial home, the sole property of the other spouse,
does not thereby acquire any interest therein. The
spouse (normally the wife) has only a right to live
there as a spouse. That right ceases after divorce.
Be that as it may,
however to this rule a number of exceptions have been
recognized:
(1) Where there has
been an agreement between the parties so that though the
property is in the sole name of the husband for example,
as the legal owner, he gives the wife a beneficial
interest in it.
(2) Where the wife made
a direct or indirect substantial contribution to the
property in money’s worth.
(3) The third
exception, I would think is the discretionary power
given to the court under S.20 (1) of the Matrimonial
causes Act 1971.
There is a plethora of
authorities on the point both local and foreign.
The leading case of
Rebeiro v. Ribeiro (1989-90) 2 GLR 109, citing with
approval the English case of Pettitt v. Pettitt (1969) 2
ALL ER 385, and Acheampong v. Acheampong (1982-83) GLR
1017 CA are all cases in point.
In another case of
OPAREBEA vs. MENSAH GLR 1053, Lamptey JA, (as he then
was) observed at page 1061
“With great respect to
the trial Judge, he erred in law looking for evidence of
contribution to support the Appellant's claim under
Section 20(1) of Act 367. Said the learned Judge: “In
the Ribeiro case the Supreme Court indicated that to
ascertain and determine a claim made under S.20(1) of
Act 367 the Court must examine the needs of the party
making the claim. The Court in the appropriate cases
must make reasonable provision for their satisfaction
out of money, goods or immovable property of his or her
spouse.”
In the instant case it
seems to me that the learned trial judge was mainly
concerned with the husband’s offer without adequately
considering section 20(1) and its impact on the
Appellant’s claim.
The learned Judge
observed:
“The Petitioner has
offered to compensate her (the Respondent/Appellant) for
the services she has offered him as a wife for over
30years with the Tema house and ¢40m (forty million
cedis). This I consider reasonable and fair”.
The evidence is that
the Appellant spent the best part of her years (32yrs to
be exact) with the Petitioner. Her income earning
capacity has been drastically reduced by virtue of her
age. On the other hand, the Petitioner is apparently
still gainfully employed by the U.N in Israel. There is
also evidence on record that he has other properties in
addition to the two houses.
Having regard to all
the respective circumstances of the parties, I would
order that ¢10m (ten million) be added to the financial
provision would substitute fifty million cedis for the
¢40million cedis ordered by the Court below to be paid
by the Petitioner/Respondent to the Appellant as
financial provision for the appellant pursuant to S.20
(1) of Act 367. Also see Barake v. Barake (1993-93) 1GLR
635 at 638. The amount is hereby varied accordingly.
Subject to that I would dismissed this ground of appeal
as well.
I would now like to
consider the final ground of this appeal. That is Ground
iv, which states: “The learned Trial Judge did not
exercise her discretion fairly and equitably in ordering
the Respondent to settle in a Tema two bedroom house”.
Again it was submitted
that the trial judge failed to consider the unfavourable
consequences her order would have on the Respondent, as
she had never lived in Tema during her 32 years of
marriage to the Petitioner. She had at all material
times lived in Accra where she has her friends and other
links. All her six children are in London and they live
with her in the said house whenever they visit Accra.
Counsel for the
Appellant contends that the decision of the trial court
was unfair and was made without consideration of all the
necessary factors such as hardship, inconvenience
frustration and interruption in the Appellant's life and
standard of life both in Israel and in London. These
are rather sentimental and emotive words indeed as
against the story and sometimes harsh realities of legal
provisions.
In response thereto,
Counsel for the Petitioner/Respondent (the husband)
refer to the case of Acheampong v. Acheampong (1982-83)
GLR at 259.
In my view, the trial
judge could not be faulted, she was very circumspect in
her analysis of the facts and circumstances, and in the
fullness of her wisdom, decided to exercise her
discretion in the way she did, supported no doubt by the
facts of the case. This court finds itself regretfully
unable to usurp the functions of the trial judge by
substituting its discretion for hers.
The observation by
Abban J.A, as he then was, in the case of Acheampong vs.
Acheampong (1982-83) GLR 281 may be worth recalling. He
had this to say “….. on hearing the application the
Court may order one spouse to transfer to the other
land, house, cars or goods, such as furniture and other
house hold items. That latter order may be made
instead of making an order for money payment, or it can
be made in addition to an order for money payment.
Everything depends on a lot of factors, the
circumstances of the case and above all, on the
discretion of the Court.
In the result, subject
to the award of ¢50m (fifty million) instead of ¢40m
awarded by the Court below. I think this appeal ought to
be dismissed and it is dismissed accordingly.
P. K. OWUSU-ANSAH
JUSTICE OF APPEAL
ESSILFIE-BONDZIE, JA:
I agree.
A. ESSILFIE-BONDZIE
JUSTICE OF APPEAL
FARKYE, JA:
I also agree.
S. T. FARKYE
JUSTICE OF APPEAL
COUNSEL
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