CECILIA ADU AGYEI V. JOSEPH ADU AGYEI

JUDGMENT

OWUSU JSC;

INTRODUCTION:

On 14th April, 2022, the Court of Appeal allowed the appeal of the Defendant/Appellant/Respondent (hereinafter referred to as Defendant) and set aside the Judgment of the High Court dated 23rd May, 2019.

Dissatisfied with the decision of the Court of Appeal, the Plaintiff/Respondent/Appellant (simply referred to as Plaintiff) mounted this appeal before the Supreme Court on the following grounds:

A. The Judgment is against the weight of evidence on record in this suit.

B. The Judgment is wrong in law in that the Court erred in rejecting the Power of Attorney of the Plaintiff.

C. The Judgment is also wrong in law in that this suit is substantive and not ancillary.

Before dealing with the arguments advanced in support and against this appeal, we would give a brief background of the case.

The Plaintiff by her Writ of Summons sought the following reliefs:

1. A Declaration that, House No. B1/26 New Achimota near the Pentecost Church is the joint property of the Plaintiff and Defendant.
2. An Order that Plaintiff has fifty (50%) interest in the property.
3. Injunction restraining the Defendant from dealing with the property in any manner pending the final determination of the suit.

In her 11 paragraph Statement of Claim which accompanied the Writ of Summons, the Plaintiff averred among other things that, the parties were husband and wife and lived in Germany after their marriage in 1984. The plaintiff averred further that their marriage was dissolved in Koblenz- Germany sometime in 1998. On 26th June, 2015, the Plaintiff filed the present suit claiming the reliefs stated above. The basis of Plaintiff’s claim is that, in 1986, the couple decided to acquire an immovable property in Ghana. Consequently, the Defendant came to Ghana to see an Estate Agent with Plaintiff’s sister by name Janet Opoku. The Plaintiff continued that, the Defendant and Janet Opoku negotiated with the owner of the house and subsequently purchased same at the cost of ₵4.5 million old Ghana Cedis. According to the Plaintiff, the parties paid for the house partly with bank loan of DM 15,000 in addition to their own money of DM 35,000. It is the case of the Plaintiff that the bank loan was defrayed by the couple as a result of a special domestic agreement between them. The Plaintiff concluded that, after the dissolution of the marriage, the Plaintiff’s sister Janet Opoku continued to live in the disputed house to protect the Plaintiff’s interest in the property. But the Defendant of late tried to eject Janet Opoku from the house by various means hence this action.

The Defendant in his Statement of Defence denied Plaintiff’s claim and put the latter to strict proof of her averments. In particular, the Defendant averred that, during the subsistence of the marriage, the couple never decided to acquire any immovable property. The Defendant averred further that, he got married to the Plaintiff in September 1984 in Ghana. He continued that after the marriage he left for Germany to work on the Plaintiff’s travelling documents to enable the latter join him in Germany. It is the case of the Defendant that, upon completion of the necessary documentations, the Plaintiff joined him in Germany in December 1984. Thereafter, he returned to Ghana in 1986 and again in 1987 to purchase the disputed property for ₵4.7 million old Ghana cedis solely with his own funds and in his own name. The Defendant concluded that, the Plaintiff during the divorce proceedings never contested for the property in issue. Secondly, she never applied for any bank loan with the Plaintiff to purchase the subject matter in dispute and that the Plaintiff never contributed to the acquisition of the property in dispute. Defendant averred that, he allowed Plaintiff’s sister Janet Opoku to live in the house in dispute on humanitarian grounds and that this suit has been brought in bad faith.

At the trial, the Plaintiff testified through her Attorney the sister Janet Opoku and closed her case.

The Defendant also testified and called one witness.

At the end of the trial, the trial High Court Judge held that, the property in dispute was acquired during the subsistence of the marriage between the parties and therefore same is marital property which has to be shared equally between the parties. The trial Judge further ordered the property to be valued and granted the Defendant the right to buy Plaintiff out of the property.

Aggrieved by the decision of the High Court, the Defendant appealed to the Court of Appeal which allowed the appeal and set aside the Judgment of the High Court.

The Plaintiff is before the Supreme Court having appealed against the decision of the Court of Appeal.

In arguing the appeal, counsel for the Plaintiff after stating the respective cases of the parties and the conclusion of the decision of the Court of Appeal, did not argue the grounds of appeal filed. This is what counsel stated in his Statement of Case filed on the 14th of December 2022. We will quote his submissions for purposes of emphasis.

“In the process of allowing the appeal, the Court struck out the whole evidence of the Plaintiff’s Attorney. But stated that the Writ of Summons and the Statement of Claim are valid. The question which arises is this: Is the valid Writ of Summons and the Statement of Claim pending? Are they still pending? It is my respectful submission that the Writ is pending. It was not struck. It was also not dismissed by the Court. I invite the Court to make appropriate orders concerning the valid Writ”.

See page 5 of the Statement of Case filed on behalf of the Plaintiff/Respondent/Appellant.

With all due respect to Counsel for the Plaintiff, the Statement of Case quoted above does not address the grounds of appeal filed on 4th May, 2022. Secondly, counsel for the Plaintiff did not get the full import of the decision of the Court of Appeal in its Judgment as he did not quote the full reasoning of the Court on the Plaintiff’s Writ of Summons and the Statement of Claim. This is what the Court of Appeal said in its judgment dated 14th April, 2022.

 “Having come to the conclusion that exhibit “A” on its face, does not pass the test laid down in section 1 (2) of the Power of Attorney Act, 1998 (Act 549), same would be rejected, and expunged from the record as an invalid document. In so doing, we rely on the cases of Juxton Smith v. K.L.M. Airlines [2005-2006] SCGLR 438 and Edward Nasser v. Mcvroom [1996-97] SCGLR 468 which held that an appellate court in its duty is to rehear a case.

 Having struck down exhibit “A” as an invalid power of attorney, it means that the Respondent’s attorney could not have relied upon it to prosecute the respondent’s case by giving evidence on her behalf. Even though in this case, the writ which was issued by the Respondent remains valid, having declared exhibit “A” the Power of Attorney invalid, it means that the Respondent led no evidence in support of her claim. As the Power of Attorney has been found to be invalid, the evidence given by the attorney was inadmissible to the extent that she had no capacity to testify as she did. This being the case, the Respondent’s case was reduced to the mere pleadings filed by her, and since pleadings do not constitute evidence, it means that no evidence was led by the Respondent in support of her claims and upon which the trial court could have entered judgment for her".

In response to the submissions of counsel for the Plaintiff, counsel for the Defendant stated that, per the pleadings filed by the Plaintiff and the reliefs sought as well as the issues raised in the suit, the latter wants the court to settle on her, her interest in a purported joint-property. This, according to counsel is a matrimonial Cause which should have been initiated by a process sanctioned by the Matrimonial Causes Act and Order 65 of the High Court (Civil Procedure) Rules, 2004 C.I. 47. Secondly, the Plaintiff’s Attorney, Janet Opoku is not clothed with capacity to commence and maintain this suit. This is because, the Power of Attorney executed which purportedly gave her the capacity is void in that, the Power was not Notarized in the country of residence of the Plaintiff which is Germany. Additionally, the name of whoever witnessed it did not appear on the face of the document.

Thirdly, counsel for the Defendant referred to the grounds of appeal filed and submitted that counsel for the Plaintiff did not address this Court on her Grounds of Appeal. He rather questioned this Court about what happened to the Writ of Summons and Statement of Claim and asked whether it is still pending, and asked this Court to make appropriate Orders concerning the Writ. After quoting a portion of the Judgment in contention, counsel for the Defendant submitted that, assuming without admitting that in the proceedings before the German Court, the Respondent failed to include in the Petition claims for financial provision and property settlement, she can only do so through an application for an ancillary relief. This is only possible when an application is brought before the High Court not later than one month after the divorce petition was granted. In the instant case counsel continued, the Judgment in the divorce petition was given on the 7th of August, 1998. The action in this suit was filed on the 28th of June, 2015. Therefore, the Plaintiff is woefully out of time and is caught by Order 65 Rule 23 (4) of C.I. 47.

Additionally, there was no indication that, the action was instituted with the leave of the High Court. Consequently, the trial court had no jurisdiction to entertain the action and the Court of Appeal articulated this in its judgment. Counsel for the Defendant therefore submitted that, the Court of Appeal indirectly declared that the Writ of Summons did not invoke the jurisdiction of the High Court. Therefore, all the proceedings before the trial court are void as the Writ issued by the Plaintiff did not invoke the jurisdiction of the Court, as same did not comply with the rules of court as well as being statute barred. He quoted Order 65 of C.I. 47 which deals with Matrimonial Cases and Matters as well as section 42 of the Interpretation Act, 2009, (Act 792) and submitted that, when read together, the legal conclusion is that any matrimonial cause or matter shall commence with a Petition. Counsel for the Defendant continued that, what Plaintiff in this suit wanted was for the subject matter to be declared as a spousal property. This relief according to counsel is matrimonial cause or matter as the relief hinged on the marriage between the parties. That being the case, the Plaintiff ought to have commenced the suit with a Petition and not a Writ of Summons.

On the issue of the Plaintiff’s capacity to initiate the suit, counsel for the Defendant referred to the address on Exhibit “A “and said it is in Germany. He then submitted that. The Power of Attorney ought to have been ‘Notarized’ by a Notary Public in Germany or country of origin. He referred us to the case of EDMUND ASANTE-APPIAH v. MADAM KATE AMPONSAH ALIAS YAA MANSAH Suit No.CA J4/34/2007 and submitted that, on the face of the instrument, same is not valid. Secondly, the document was not commissioned by a Commissioner of Oaths. Thirdly, according to counsel for the Defendant, the instrument was signed by the Lawyer for the Plaintiff which is not permissible by the law. Consequently, the Plaintiff’s Attorney was never clothed with capacity to give evidence on behalf of the Plaintiff and maintain the action.

On the evidence led by the Plaintiff that the parties took a loan from the bank, counsel for the Defendant submitted that no document was tendered to support this in that the Defendant denied this assertion. Therefore, the burden was on the Plaintiff to prove to the court by preponderance of probability by leading evidence to the effect that the subject matter was bought partly with a bank loan. He invited us to take judicial notice of the fact that when a bank grants a facility (loan) to a customer it is accompanied with documents. In the instant case, the Plaintiff never tendered any such document to prove her case but only repeated her averments on oath.

The last point counsel for the Defendant touched on was the divorce in Germany. He submitted on this issue that, the divorce in Germany concluded all matters in respect of the parties including all properties seen by the parties as spousal properties. After quoting a portion of the judgment in the divorce proceedings in Germany, counsel for Defendant submitted that, the Court in Germany specifically mentioned the Matrimonial Causes Act and proceeded to dissolve the marriage between the parties. He then concluded on this point that, the Court in Germany resolved all the issues between the parties. Counsel referred us to an enquiry by the Court if there is any property in Ghana to which the Plaintiff answered in the negative. The German Court then considered the pension of the parties and dissolved the marriage without any outstanding issues. Consequently, both the German and Ghanaian Courts are” functus officio”.  Based on the forgoing, counsel for the Defendant invited us to dismiss the appeal as being without merit.

In considering the grounds of appeal filed, we have stated in this delivery that, counsel for the Plaintiff did not argue grounds (b) and (c). Accordingly, these grounds are hereby struck out as abandoned. This leaves us with ground (a) of the appeal which is that the Judgment is against the weight of evidence on record in this suit. In his Statement of Case filed, counsel for the Plaintiff submitted that, the Court of Appeal in allowing the appeal, struck out the whole evidence of the Plaintiff’s attorney. But stated that the Writ of Summons and the Statement of Claim are valid. He then submitted that the Writ is pending as it was not struck out neither was it dismissed and invited us to make appropriate orders concerning the valid Writ.

We have already quoted what the Court of Appeal said concerning Plaintiff’s pleadings and said counsel for the Plaintiff did not get the import of the said decision which is that if the Plaintiff’s Attorney’s evidence is struck out because of the defective Power of Attorney, then what is left so far as the Plaintiff’s case is concerned is her pleadings. Since pleadings do not constitute evidence, the Plaintiff led no evidence in support of her case. In the words of the Court of Appeal:

“As the Power of Attorney has been found to be inadmissible to the extent that she had no capacity to testify, as she did. That being the case, the Respondent’s case was reduced to the mere pleadings filed by her, and since pleadings do not constitute evidence, it means that no evidence was led by the respondent in support of her claims and upon which the trial court could have entered judgment for her”.

We think the Court of Appeal was on point on Exhibit “A”, the Power of Attorney. A cursory look at Exhibit “A” shows that there is a signature on the witness column. But there is no name of the said witness. Clearly, this offends the Power of Attorney Act, 1998 (Act 549) 5 section 1 (1) deals with the Execution of Power of Attorney. The section provides as follows:

“An instrument creating a power of attorney shall be signed by the donor of the power, or a person authorized by the donor in the presence of the donor.

(2) Where the instrument is signed by the donor of the power, one witness shall be present and attest the instrument” (our emphasis).

See the case of HUSENI v. MORU [2013-2014] 1 SCGLR 363, where this Court held in holding (1) of the headnotes as follows:

“Since the plaintiff instituted the suit through an attorney under a power of attorney that is defective because it was not witnessed in accordance to section 1 (2) of the Power of Attorney Act, 1998 (Act 549), the writ and pleadings and all evidence based upon it is void for want of capacity. Asante-Appiah v. Amponsah alias Mansah [2009] SCGLR 90, followed. Their Lordships held Per Curiam that:

“The distinguishing feature of this case and the Asante-Appiah Case, is that whilst in this case the plaintiff issued his writ per his attorney, in the Asante-Appiah Case, the attorney only gave evidence on behalf of his principal who had issued the writ. So, while in the Asante-Appiah case, the pleadings and the evidence of other witnesses could be saved, in the case before us the writ and pleadings and all the evidence based upon it is void for want of capacity.”

 Relating the case cited supra, to the case under consideration, the only evidence on record on behalf of the Plaintiff is that of her attorney and since the Power of Attorney has been found to be defective, the evidence given by the Attorney is inadmissible. Consequently, no evidence was led by the plaintiff.

Secondly, Order 65 of the High Court (Civil Procedure) Rules, 2004 C.I. 47 deals with Matrimonial Causes or Matters. Order 65 rule 1 provides that:

“Application of Order.

This Order applies to proceedings under the Matrimonial Causes Act, 1971 (Act 367) referred to in this Order as “the Act”.

Order 65 rule (2) provides:

“All proceedings for divorce, nullity, presumption of death and dissolution of marriage, maintenance orders and child custody orders under the Act, shall commence by petition”.

Order 65 rule 23 (4) of C.I. 47 deals with Ancillary Reliefs and it provides as follows:

“No application for financial provision, property settlement or conveyance of title to property shall be made later than one month after judgment except by leave of the Court”. (Our emphasis)

From the Order quoted above, the Plaintiff ought to have commenced her action by a Petition and not a writ and this is fatal to her case.

See the case of OWUSU-MENSAH and Another v. NATIONAL BOARD FOR PROFESSIONAL AND TECHNICAL EXAMINATIONS (NABTEX) and Others [2017-2020] 2 SCGLR, 708 710-711 holdings (1) and (2) where this Court held that:

“(1) it was trite learning that jurisdiction was fundamental to every proceeding and therefore where a court of law or tribunal lacked jurisdiction to hear or determine any matter, the decision or order from the court or tribunal was a nullity. It behooved on every court hearing a matter to address the issue of jurisdiction first where it was raised as an issue. Where a court upon embarking on an inquiry found that its jurisdiction has been put in issue later on in the proceedings, it must address it as it was fundamental to every proceeding.

(2) A court might have jurisdiction to entertain a cause or matter but the procedure invoking its jurisdiction might deny the court the jurisdiction. That would occur where a statute had specifically laid down the procedure for redress.”

Additionally, the action should have commenced not later than one month after the Judgment in the divorce petition, except with the leave of the Court. We have perused the record of appeal in this case and we did not see the Plaintiff being granted such leave. The divorce between the parties was granted in 1998. Exhibit “B” is the Judgment of the Municipal Court, Koblenz. The present suit was filed on 26th June, 2015 a period of about nineteen (19) years. Clearly, the Plaintiff is woefully out of time and her claim should fail. Even if this Court comes to the conclusion that the Plaintiff’s Writ is not an ancillary relief, the Plaintiff’s claim will still be out of time. This is because the action is seeking a declaration that she is a joint owner of House No. B1/26, New Achimota, with the `Defendant. The Plaintiff’s claim is in respect of a landed property and by section 10 of the Limitation Act 1972 (NRCD 54), the action should have been brought within twelve (12) years when her cause of action accrued that was when the divorce was granted in 1998. The section provides:

 “Actions to recover land are barred after twelve (12) years from the date on which the right of action accrued to the person bringing it, or if it first accrued to some person through whom he claims to that person”.

See also the case of SAM v. NOAH [1992-93] GBR 261, where the Supreme Court held in holding (1) of the headnotes as follows: 

“The appellant’s plea of illiteracy was no excuse, as was the alleged ill health of the 1st defendant-appellant of which proof was lacking. The delay of almost two years and three months in bringing the application was too long and the grounds or excuses could not justify the long delay (our emphasis).

Wuaku JSC at page 262 of the report relying on the Privy Council case of RATNAM v. CUMARASAMY [1965] 1 WLR 8, 12 stated that, the applicant was four days out of time in fulfilling conditions of appeal and the Privy Council held that:

“The rules of court must prima facie be obeyed, and in order to justify a court in extending the time during which some step-in procedure requires to be taken there must be some material upon which the court can exercise its discretion. If the law was otherwise, a party in breach would have unlimited right to extension of time which would defeat the purpose of the rules, which is to provide time table for litigation.”

The Supreme Court again in the same case referred to the English case of Revici v. Prentice Hall Incorporated [1969] 1 WLR 157, 159 CA where Lord Denning said:

“Nowadays we regard time very differently from the way they did in the 19th century. We insist on the rules as to time being observed. We have had occasion recently to dismiss many cases for want of prosecution when people have not kept to rules as to time”.

 Relating the above case to the case under consideration, we think the delay of almost nineteen years in bringing the action is too long a time and trial court should have dismissed the suit as in breach of a statute.

Consequently, the writ did not properly invoke the jurisdiction of the High Court.

From all of the forging, there is no merit in the appeal and it is accordingly dismissed.

M. OWUSU (MS.)

(JUSTICE OF THE SUPREME COURT)

G. PWAMANG

(JUSTICE OF THE SUPREME COURT)

PROF. H. J. A. N. MENSA-BONSU (MRS.)

(JUSTICE OF THE SUPREME COURT)

S. K. A. ASIEDU

(JUSTICE OF THE SUPREME COURT)

E. Y. GAEWU

(JUSTICE OF THE SUPREME COURT)

Appearances

GODWIN NARTEY ESQ. FOR THE DEFENDANT/APPELLANT/RESPONDENT; A. G. BOADU ESQ. FOR THE PLAINTIFF/RESPONDENT/APPELLANT.