ACHIAMPONG V. ACHIAMPONG

JUDGMENT

ABBAN J.A.

The appeal is from the judgment of the High Court, Accra, dated 7 August 1981. It was the result of the outcome of proceedings brought under section 20(1) of the Matrimonial Causes Act, 1971 (Act 367), by the respondent. The appellant and the respondent both Ghanaians, were husband and wife, having been married under the Marriage Ordinance, Cap 127 (1951 Rev.), on 27 March 1971. The respondent (hereafter called the wife) was a graduate teacher in the Ministry of Education. At the relevant period the wife had been posted to the Teacher Training College, Accra. The appellant (hereafter called the husband) was a foreign service officer in the Ministry of Foreign Affairs. In 1977, differences arose between them because of the husband’s adultery with other women, his constant assaults and raining of blows on the wife.

Matters having come to a head in 1978, the wife petitioned for divorce. Although the husband filed an answer, he did not in fact offer any evidence in support thereof. So for all practical purposes that suit was undefended. The High Court having found that the marriage had broken down beyond reconciliation granted the prayer of the wife and accordingly dissolved the marriage. By consent of both the husband and the wife, the custody of the two surviving children of the marriage, a boy and a girl, was given to the wife; and the husband was ordered to pay for their maintenance and education. The husband by further consent paid to the wife a lump sum of ¢4,000 as financial provision.

In her petition for divorce, the wife had claimed joint ownership in the following; (i) the matrimonial home at No. 4 Bourgainvillea Lane, Teshie-Nungua Estate, Accra; (ii) £1,000 savings with the Citibank, Copenhagen; (iii) a peugeot 504 saloon car No. GZ 7331; (iv) a Datsun 160J car No. GZ 5869; and (v) all the household items and furniture listed in a document attached to the petition and marked exhibit MYNA. 1. On the application of the wife the issue as to ownership was heard under the provisions of section 20(1) of Act 367. At the end of it all, the learned High Court judge accepted the claim of the wife and declared that she had a beneficial interest in equal shares with the husband in all those specific properties. It is against this declaration that the husband has appealed to this court.

Learned counsel for the husband, first argued ground 1 of the additional grounds, namely that the trial judge erred in holding that the house in dispute was a joint property, there being no evidence to that effect. Counsel contended that the evidence showed that the house which was originally the property of the State Housing Corporation was applied for by the husband alone and the purchase price of ¢7,600 was paid by instalments also by the husband alone. Counsel contended that it was clear from the evidence that by the time the wife went to live with the husband in the house he was already the legal owner thereof; and that the wife’s assertion that there was an agreement that she was to pay for the household expenses, while the husband paid for the instalments on the house was not supported by evidence; and it was therefore wrong for the High Court to declare the wife part-owner of the house.

Counsel for the wife on the other hand, contended that there was enough evidence before the High Court showing that the wife contributed financially and otherwise towards the payment of the instalments on the house which the parties considered as their matrimonial home, and also towards the purchase of all the other movable properties in dispute. Counsel referred to the wife’s contribution in the form of maintaining the household at the request of the husband, the financial contribution made by the wife in respect of extensions to the house and bigger allowances paid to the husband on behalf of the wife and the children while the parties were on posting in Peking. All these, counsel argued, enabled the husband financially to acquire the properties in dispute and should entitle the wife to claim half-share in respect thereof.

It will be more convenient at this stage to deal with the argument so far advanced before I move on to the remaining grounds. The issue for determination was the interest, if any, which the wife should have in the matrimonial home and its contents and also in the cars and other properties acquired during the marriage.

Broadly speaking, a wife by going to live in a matrimonial home, the sole property of the husband, does not acquire any interest therein. The law does not recognise any such interest: see Lloyds Bank, Ltd. v. Trustee of the Property of O - A Bankrupt [1953] 2 All E.R. 1443. She only has a right to live in the matrimonial home as long as the marriage subsists. This right is conferred on her by virtue of her status as a wife and not by virtue of any permission from the husband. So long as the status as a wife remains so long does that right survive. But the right determines automatically after divorce, even if she was the successful petitioner like the wife in the present appeal: see Robson v. Headland (1948) 64 T.L.R. 596, C.A. In the recent case of Brent v. Brent [1974] 3 W.L.R. 296 at p. 300, Dunn J. said:

“I do not accept that the right to remain in occupation of the matrimonial home during marriage is a right which continues after marriage so that it can thereafter be protected by injunction, in the absence of any proprietary right of the wife in the premises.”

See also Gurasz v. Gurasz [1970] P. 11 at p. 16, C.A. per Lord Denning M.R. The basis of these decisions is that after the granting of the divorce decree the right to co-habitation goes and so goes her right in respect of the husband’s house in the absence of an agreement or a settlement. For, her general right to live in the husband’s house is a right in personam and not a right in rem attaching to the matrimonial home. The point was emphasised in National Provincial Bank Ltd. v. Ainsworth [1965] A.C. 1175 at p 1220, H.L. where Lord Hodson said:

“The matrimonial law did not, however, at any time give the wife any property in the house in which she lived with her husband unless she could rely upon a settlement. His duty is to live with his wife and to support her but she has no proprietary rights in the house by virtue of her status as a wife. She is lawfully there not by reason of any contract or licence but simply because she is the wife. If her husband leaves her the right which she has to be left undisturbed is a personal right and does not attach itself to any specific piece of property which may at a given time be the home in which the spouses have lived together.”

The learned lord, after reviewing previous decisions dealing with the wife’s right, concluded at p. 1226 in the manner as follows:

“Having done the best I can to analyse the nature of the right which the wife has against her husband which is fundamentally the right relied on by the respondent, I conclude that it does not operate as a clog on the land which protects her by operating as a mere equity against anyone but a purchaser for value without notice.”

Lord Upjohn expressed similar views where at p. 1229 he said, “Neither the common law nor the ecclesiastical law ever went further or gave to the wife any right to occupy any particular matrimonial home which was the sole property of the husband.”

However, a situation may arise whereby a wife’s general personal right, which is derived from her status, to live in the matrimonial home, may be transformed into a right in rem adhering to the matrimonial home and its contents. These are cases where there has been agreement between the husband and wife in respect of the matrimonial home, giving the wife some beneficial interest in it, notwithstanding that the property is in the sole name of the husband as the legal owner; or where the wife has directly or indirectly made substantial contribution in money or money’s worth towards the acquisition of the property. For example, making direct financial improvements, renovation or extensions in respect thereof or applying her income for the common benefit of both of them and the children so as to enable the husband financially to acquire the property in dispute.

The question then is, was there evidence which, if accepted, would bring the case of the wife within one or two of the situations which I have just referred to? The wife relied on an agreement between her and the husband in respect of the matrimonial home in dispute. Counsel for the husband strongly argued that the evidence which the wife adduced could not establish any agreement. What then were the facts as found and accepted by the learned High Court judge? I will set down those facts briefly.

The learned High Court judge found the wife, a graduate teacher, returned to Ghana in August 1970 after two years’ post graduate course in Holland. The wife’s accumulated salary amounting to ¢3,360 had been paid into her bank account. With this amount and other moneys the wife conceived the idea of buying an estate house at Teshie-Nungua from the State Housing Corporation. The type the wife intended to buy would cost ¢7,600 and the required deposit before allocation would be made was ¢1,200. The wife made mention of her intentions in a conversation to one of her colleagues who was also a tutor in the very college where the wife was then teaching. The colleague introduced the wife to a friend who had recently applied to the State Housing Corporation for the type of estate house which the wife wanted. The friend was to advise and give the wife some tips as to how to go about it in order to realise her intentions within the shortest possible time.

That friend happened to be the appellant, i.e. the person who was to be the wife’s future husband. They met in September 1970 for the first time. The husband, as expected by the wife’s colleague, explained to the wife about the procedure and how he, the husband, got his allocation. The husband obligingly went up and down with the wife to the State Housing Corporation, purposely to see the officials responsible for allocating the houses.

The husband took the wife also to Teshie-Nungua to show her all the types of houses being built by the corporation. Not quiet long, the person who was then assisting her had started to give her more and more attention. The casual acquaintanceship had developed into intimate friendship. The husband was picking the wife after closing from the college where the wife was teaching to the husband’s residence. Then they travelled together to places.

They visited the Northern Region at one time; and on their return to Accra, the wife realised that she was in the family way. The husband quickly performed the customary rites appertaining to marriage. This was on 26 January 1971. The husband, in the meantime, had been allocated a house by the State Housing Corporation at the cost of ¢7,200 after he had paid the initial deposit of ¢1,200. The balance of ¢6,000 was spread over years to be paid by monthly instalment of ¢60.80. That is, the house was sold to the husband on hire-purchase terms and was going to take the husband years to pay off the balance. The house is No. 4, Bourgainvillea Lane, Teshie-Nungua Estate, now in dispute. It was the exact type the wife was after.

Having therefore married the husband customarily, the husband asked the wife to move from where she was staying to live with him at No. 4, Bourgainvillea Lane. The wife excitedly moved in with all the household items she had acquired herself while she was on study leave in Holland, two sewing machines, a gas cooker, radio cassette, a television set, a typewriter, a fridge, kitchen utensils and personal effects.

Now that they were together they started planning their future life and budget. With the baby on the way, and other matrimonial expenses to meet, such as the intended wedding under the Marriage Ordinance, the husband requested the wife to give up the idea of purchasing her estate house. For it would be a constraint on their budget if they were to pay instalments on two estate houses every month; but that the wife should utilise her savings intended for the purchase of her estate house and also her monthly salary and income towards the maintenance of the house, while the husband used his monthly salary to pay off the instalments on No. 4, Bourgainvillea Lane to the State Housing Corporation, and that No. 4, Bourgainvillea Lane was to be regarded as belonging to the two of them and the children of the marriage.

The wife finding the husband’s suggestion reasonable gladly accepted it. The wife, knowing that she was going to be a part-owner of the house, used her said savings of ¢3,360, as well as her monthly salaries towards the feeding cost of the household and for the general upkeep of the house. This she did regularly and faithfully as found by the High Court judge.

At the time they came together the wife had a car and the husband also had one. They decided to dispose of one as they thought the situation in which they found themselves could not permit them to maintain two cars at the same time. Again, the lot fell on the wife who had to sell her’s. The proceeds of the sale, amounting to ¢1,300, were paid by cheque issued in the name of the husband who paid same into his bank account. The husband used this amount to defray the expenses of the wedding that took place on 27 March 1971.

In the course of time, they found the house rather over-crowded. For, quite apart from the husband and the wife, the husband’s brother and sister were also staying in the house, not mentioning the regular visits from the husband’s mother and other relations. The house consisted of only two bedrooms. The husband and the wife agreed to make extensions. They had no money. So the wife took a loan of ¢3,000 from her employers, Ministry of Education, to be repaid by instalments in the form of monthly deduction from her salary. This amount was used in adding two more bedrooms, a storeroom, a garage and for fitting kitchen cabinets in the kitchen. Part of it was also used in making terrazzo floors in the whole house.

Then in 1972 the husband was posted to Peking, China. The wife resigned from her job and went along with the husband. Before they left, they sold most of the household items, including the items the wife had brought into the marriage. The understanding being that they would buy new ones later. Indeed, they acquired new ones when coming back home from posting. Some of these items were included in the list marked exhibit MYNA.I and attached to the petition. In Peking, the wife, apart from managing the home organised, on part-time basis, classes in the house to teach some of the children of the diplomats.

She was making ¢120 a month from this. She used part thereof in buying some of the household items in question and part in buying the needs of the children. In Peking, the husband, as a family man, was paid bigger allowances than he would have received if he had gone on posting alone. These allowances (together with some inconvenience allowances which the China Government paid to the family of diplomats during an earthquake) enabled the parties to purchase cars and some of the items in dispute. It was when they returned to Ghana that the marriage started to wear a different complexion and eventually ended in dissolution. They are no longer man and wife. But they are living in the same estate house, occupying different rooms.

I think on these facts, the High Court could not have arrived at any conclusions other than those being complained of. The facts clearly established that there was actual agreement between the husband and the wife about the estate house. Under that agreement, there was clear intention on the part of both of them that the wife was to have a beneficial interest in the house. The house was truly owned by the husband. Therefore the subsequent agreement to give beneficial interest therein to the wife operated as a clog on the house and created an equity against the husband and in favour of the wife.

I appreciate that the burden of establishing an agreement is on the party alleging it; and that not every agreement entered into is a contract enforceable at law. It is necessary to examine all the circumstances to determine whether any particular agreement or transaction was intended to have legal consequences. But once the court finds, as in the present case, that the transaction was such that the parties must have intended it to be binding, the court must give effect to it, even though there was no carefully formulated agreement At any rate, in the case of husband and wife the strictness usually required where parties are strangers can be dispensed with. In Rimmer v. Rimmer [1953] 1 Q.B. 63, C.A., Lord Evershed M.R. at p. 67 said:

“Certainly in this case it is clear that there never was any agreement between the husband and wife, in the ordinary sense of the term, when the house in question was bought. As Atkin L.J. observed in a well-known case, the ordinary incidents of commerce have no application in the ordinary relations between husband and wife.”

Romer L.J. at p. 76 put the matter more graphically when he stated:

“It seems to me that the only general principles which emerge from our decision are, first, that cases between husband and wife ought not to be governed by the same strict considerations, both at law and in equity, as are commonly applied to the ascertainment of the respective rights of strangers when each of them contributes to the purchase price of property, and, secondly, that the old-established doctrine that equity leans towards equality is peculiarly applicable to disputes between husband and wife, where the facts, as a whole, permit of its application.”

Indeed, in the present case, even if there had been no evidence of specific agreement that the wife was to have beneficial interest in those properties, as contended by counsel for the husband, the court would still have been entitled to infer that intention from their conduct, having regard to the facts and the circumstances which surrounded the acquisition of those properties. To put it in the language of Diplock. L.J., as he then was, in Ulrich v. Ulrich and Felton [1968] 1 W.L.R. 180 at pp. 188-189, C.A.:

“Where there is no explicit agreement, the court’s first task is to infer from their conduct in relation to the property what their common intention would have been had they put it into words before matrimonial differences arose between them.”

The wife herein contributed, in no small measure, towards the acquisition of the estate house and all the movable properties. The parties were not rich. They came from poor backgrounds and the wife adopted a responsible attitude when she accepted the husband’s invitation to pay the household bills to enable the husband to pay off the instalments on the house. The wife’s salary was ¢165 a month; while the husband received a net salary of ¢150 a month. He was to pay monthly instalment of ¢60.80 out of it on the house to the State Housing Corporation. After paying the ¢60.80, the husband would have been left with only ¢89.20 to maintain himself, the wife and other relatives whom the husband considered as his dependants. These included a child the husband had previously had with another woman, the husband’s sister studying in a commercial school, his brother and a maid. All these dependants were living with the husband in the house, quite apart from the regular visits paid by the husband’s mother and other relations. The husband himself put the number of persons at seven. Obviously, the ¢89.20 left after paying the instalment of ¢60.80 could not maintain the home and feed seven mouths three times a day for one month.

The wife who was earning a much higher salary than the appellant, ¢165 a month, and was also having some accumulated savings of her own at hand, went to the husband’s rescue at his request. In the process, instead of applying her income and savings towards the acquisition of her separate properties, the wife channelled all her earnings and resources towards the feeding cost of the husband and his relatives and generally for the upkeep of the household. Thus, making it financially possible for the husband to pay off the purchase price of the estate house and to acquire some of the items in dispute.

What was more, the wife assisted financially towards the extensions and the renovation which brought considerable improvement to the estate house. When they were in Peking the wife, apart from managing the home, contributed towards the purchase of some of the items from her own resources, while the husband bought the major items from allowances the husband was supposed to use for the benefit of the family, i.e. the wife, the children and the husband himself. I am of the view that the wife made substantial financial contribution directly and indirectly towards the acquisition of those properties. The wife did so, genuinely believing that she was acquiring beneficial interest in them and that they were to be a continuing provision for both of them. In the course of delivering his judgment in Wachtel v. Wachtel [1973] 1 All E.R. 829, C.A. Lord Denning M.R. at p. 837 said:

“Twenty-five years ago, if the matrimonial home stood in the husband’s name, it was taken to belong to him entirely, both in law and in equity. The wife did not get a proprietary interest in it simply because she helped him buy it or to pay the mortgage instalments. Any money that she gave him for these purposes would be regarded as gifts, or, at any rate, not recoverable by her: see Balfour v. Balfour [1919] 2 K.B. 571. But by a long line of cases, starting with Re Rogers’ Question [1948] 1 All E.R. 328, and ending with Hazell v. Hazell [1972] 1 W.L.R. 301, it has been held by this court that, if a wife contributes directly or indirectly, in money or money’s worth, to the initial deposit or to the mortgage instalments, she gets an interest proportionate to her contributions. In some cases it is a half-share. In others less.”

In Fribance v. Fribance (No. 2) [1957] 1 W.L.R. 384, C.A. the house was bought in the name of the husband alone as in the present case. But the wife had made substantial contributions. When they fell apart, they continued to stay in the house, occupying separate rooms as the husband and the wife are doing at the moment. It was argued on behalf of the husband that the wife had no right to the house or any share in it unless she could show a contract by the husband with her or a gift by him to her or to a trust by him for her in regard to it. The Court of Appeal rejected that argument. Lord Denning L.J., in this judgment at p. 387 had this to say:

“I do not think that line of argument is valid today ... In many cases, however, the intention of the parties is not clear, for the simple reason that they never formed an intention: so the court has to attribute an intention to them. This is particularly the case with family assets, by which I mean the things intended to be a continuing provision for them during their joint lives, such as the matrimonial home and the furniture in it. When these are acquired by their joint effort during the marriage, the parties do not give a thought to future separation. They do not contemplate divorce. They contemplate living in the house and using the furniture together for the rest of their lives. They buy the house and furniture out of their available resources without worrying too much as to whom it belongs ... In the present case it so happened that the wife went out to work and used her earnings to help run the household and buy the children’s clothes, whilst the husband saved. It might very well have been the other way round ... The whole of their resources were expended for their joint benefit - either in food and clothes and living expenses for which there was nothing to see or in the house and furniture which are family assets - and the product should belong to them jointly. It belongs to them in equal shares.”

Even if it is assumed, for the purpose of argument, that counsel for the husband was right in contending that there was no agreement specific or otherwise, the circumstances surrounding the acquisition of those properties and the conduct of both the husband and the wife were such that equity and good conscience would not have permitted either of them to claim exclusive beneficial interest in the properties and leave the other destitute. If the absence of agreement was allowed to be used by the husband as a weapon to defeat the wife’s claim, it would mean that the husband had been able to persuade the wife to act to her detriment and cleverly got away with it. Quite apart from agreement, where during the marriage one spouse has induced the other to apply his or her income or resources for the joint benefit of both of them, and where the said earnings or resources in question can be regarded as substantial contribution and were so expended in the reasonable belief that he or she was acquiring beneficial interest in properties purchased by the other spouse, the court must on equitable principles hold that the spouse who bought the properties holds the beneficial interest herein as a trustee for himself or herself and the other spouse. This trust concept was invoked by the House of Lords in Gissing v. Gissing [1971] A.C. 886 where Lord Diplock reading his judgment observed at pp. 904-905:

“Any claim to a beneficial interest in land by a person, whether spouse or stranger, in whom the legal estate in the land is not vested must be based upon the proposition that the person in whom the legal estate is vested holds it as trustee upon trust to give effect to the beneficial interest of the claimant as cestui que trust... A resulting, implied or constructive trust - and it is unnecessary for the present purpose to distinguish between these three classes of trust - is created by a transaction between the trustee and the cestui que trust in connection with the acquisition by the trustee of a legal estate in land, whenever the trustee has so conducted himself that it would be inequitable to allow him to deny the cestui que trust a beneficial interest in the land acquired. And he will be held so to have conducted himself if by his words or conduct he has induced the cestui que trust to act to his own detriment in the reasonable belief that by so acting he was acquiring a beneficial interest in the land.”

In Falconer v. Falconer [1970] 1. W.L.R. 1333, C.A., Lord Denning M.R., following the decision in Gissing v. Gissing (supra) spelt out clearly the circumstances under which a trust can operate. At p. 1336, the learned Lord said:

“The House did not overturn any of the previous cases in this court on the subject. They can, I think, still provide good guidance. But the House did make clear the legal basis for them. It stated the principles on which a matrimonial home, which stands in the name of husband or wife alone, is nevertheless held to belong to them both jointly (in equal or unequal shares). It is done, not so much by virtue of an agreement express or implied, but rather by virtue of a trust which is imposed by law. The law imputes to husband and wife an intention to create a trust, the one for the other. It does so by way of an inference from their conduct and the surrounding circumstances, even though the parties themselves made no agreement upon it. This inference of a trust, the one for the other, is readily drawn when each has made a financial contribution to the purchase price or to the mortgage instalments. The financial contribution may be direct, as where it is actually stated to be a contribution towards the price or the instalments. It may be indirect, as where both go out to work, and one pays the house-keeping and the other the mortgage instalments. It does not matter which way round it is. It does not matter who pays what. So long as there is a substantial financial contribution towards the family expenses, it raises the inference of a trust.”

Consequently, whichever way one may view the facts and the circumstances of the present case, the wife was entitled, both in law and in equity, to some beneficial interest in all the properties in dispute, absence of agreement notwithstanding. Having regard to the extent of the wife’s contribution, that beneficial interest should be nothing less than a half-share. The High Court could not therefore have come to any better conclusion than it did.

The next ground argued by counsel for the husband was ground 2 of the additional grounds: that the High Court erred in holding that the wife was entitled to half-share of the money held in Citibank, Copenhagen. Learned counsel contended that the said amount had already been withdrawn and the account closed. There was therefore no such account in the said bank from which £1,000 could be withdrawn and half thereof paid to the wife. I am unable to find any force in that argument.

With due respect to counsel, the submission is totally misconceived. For, the husband never led evidence in the High Court to the effect that the said account was no longer in existence. The husband did not even attempt to rebut the wife’s evidence that the £1,000 was still in that bank. The only evidence before the High Court about the £1,000 was that of the wife; and in the circumstances the court was perfectly entitled to hold that the money has not been withdrawn, and that half-share should go to the wife.

The last ground taken by learned counsel for the husband was ground 3(c) of the original grounds: that the decision of the High Court was unreasonable and was based on wrong principle of law and fact. In support of this ground counsel contended that the High Court wrongly applied the provisions of section 20(1) of Act 367. Counsel argued that section 20(1) did not empower the court to give proprietary interest in a spouse’s property, but only monetary compensation. Counsel therefore submitted that the High Court, after finding that the wife had contributed towards the purchase of the estate house, should have awarded the wife a sum of money equivalent to that contribution and should not have granted the wife any beneficial interest in the house; and more so to declare the said interest to be equivalent to half-share.

Learned counsel for the wife in his reply contended that section 20(1) had wider scope than what counsel for the husband suggested. Counsel contended that the argument put forward raised the question as to the true intention of section 20(1); and counsel submitted that the section should be looked at literally. Counsel argued that the words of the section if given literal interpretation would show that the section intended to confer certain powers on the court, including the power of ordering one spouse to deliver his or her property to the other. Consequently, contended counsel, the High Court was right in its application of the section. Section 20(1) of Act 367 in question reads:

“20 (1) 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 or as part of financial provision as the court thinks just and equitable.”

The words of the section clearly show that the purpose of the section is to empower the court to settle property rights between spouses. Normally, litigations in respect of title to or interest in property are commenced by either a writ of summons or by summons of some sort. But this process has been circumvented by section 20(1) in favour of spouses engaged in divorce proceedings or in any other proceedings under Act 367. It can therefore be seen that the section is partly a procedural section intended to provide a cheap and speedy forum for spouses for the solution of disputes concerning their respective rights or interest in any real or personal property. It confers jurisdiction on the court to hear applications pursuant thereto and make the necessary orders irrespective of the value or the nature of the properties involved. Since, as I have noted, the object of the section is to provide an informal method or procedure whereby property disputes between husband and wife can be determined and in a summary manner, either of the spouses can bring an application in an appropriate case under the section, praying for an order that property or some beneficial interest therein be given to him or her.

The court, when hearing the application, may wish to take oral evidence in addition to affidavit evidence as was done in the present case. 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 household items. This 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. Thus, although the section is procedural, it at the same time gives a discretion to the court to alter the proprietary rights of the spouses if in doing so it will be “just and equitable.”

It should be observed that the section does not lay down any principles as guidelines along which the discretion is to be exercised. Believing in the good sense and judgment of the court, the section left the court free to work that out. However, in exercising discretion under this section, the court will have to be guided by law. The discretion means sound discretion guided by law, and must not be vague, arbitrary or fanciful. That is to say, the discretion must not be exercised to pass the property of one spouse to the other on some vague basis. In Pettitt v. Pettit [1970] A.C. 777, H.L., Lord Morris of Borth-y-Gest at pp. 798-799 said:

“Today it is clear that a husband and wife can enter into a contract with each other and can sue each other on such a contract. If, therefore, there were and are alternative ways of resolving a question as to the title to property it could not be that there would be a different legal approach according as to which course was adopted ... Each decision had to be made according to law. There was no provision which empowered a judge on the trial of an action between husband and wife concerning a question as to the title to property to give a decision which, however benevolently motivated, was in disregard of the law. There is no provision empowering a judge on the summary adjudication of a question to act any differently. I do not find this in the words (in section 17) ‘as he thinks fit’... endowing a judge with the power to pass the property of one spouse over to the other or to do so on some vague basis that involves estimating or weighing the good or bad behaviour of the one and the other or assessing the deserts of the one or the other in the light of their work, activities and conduct.”

So where the rights of the spouses in respect of any property are established or agreed, the court should uphold those rights. For example, where the court finds that there was an agreement between the spouses about any property, it must give effect to the agreement. The present case is a typical example. In Wilson v. Wilson [1963] 1 W.L.R. 601 at p. 602, C.A. it was made clear that:

“... where the parties had shown an intention that a particular piece of property should belong to one or other or both of them jointly whatever happened and in any event, the court could not under section 17 of the Married Women’s Property Act, 1882, override that intention.”

Again, in exercising the discretion under the section the court in the absence of agreement, must also take into consideration the financial contribution which the applicant made towards the acquisition of the property or properties in question. The contribution may be direct or indirect; and once it is regarded as substantial contribution it cannot be ignored. This has already been fully discussed above: see the cases of Wachtel v. Wachtel, Fribance v. Fribance and Gissing v. Gissing already referred to. Incidentally, these cases were decided on the provisions of the Matrimonial Proceedings and Property Act, 1970 (c.45) whose spirit is similar to that of section 20(1).

It ought to be emphasised that divorce does not confer on a spouse any interest beneficial or otherwise in the property, movable or immovable, of the other spouse. Property is not ordered to be transferred to a spouse under section 20(1) of Act 367, simply because there is a divorce. Apart from agreement, direct or indirect financial contribution which can be regarded as substantial is a necessary requirement; and so it would not therefore be a proper exercise of discretion under section 20(1) of Act 367 to order the transfer of property to a spouse who had not contributed substantially in money or money’s worth towards the acquisition of that property. If the contribution of the applicant is insignificant or insufficient, he or she will get nothing. In Gissing v. Gissing (supra) the House of Lords held, inter alia, that the wife had made no contribution to the acquisition of the title to the matrimonial home from which it could be inferred that the parties intended her to have any beneficial interest in it.

In Falconer v. Falconer [1970] 1 W.L.R. 1333, C.A., Lord Denning M.R., said at p. 1336:

“So long as there is a substantial financial contribution towards the family expenses, it raises the inference of a trust. But where it is insubstantial, no such inference can be drawn; see the cases collected in the dissenting judgment of Edmund Davies L.J. in the Court of Appeal [1969] 2 Ch. 85, 97, which was upheld by the House.”

In my view, the factors and the principles which I have outlined herein, ought to be taken into consideration by the court when exercising its discretion under section 20(1) of Act 367; and as I have said, in exercising the discretion the court is empowered to make an order not only for the payment of monetary compensation as advocated by counsel for the husband, but also an order for the transfer of real or personal properties.

The order for the transfer of real or personal property can be made instead of making an order for payment of monetary compensation; or it can be in addition to monetary compensation.

I therefore hold that what the High Court did in the instant case was the right and proper thing. Indeed, the High Court properly exercised its discretion under section 20(1) and it ought to be commended and not criticised. There is therefore no merit in the appeal. Accordingly, the appeal is dismissed.

FRANCOIS J.A: I agree that the appeal should be dismissed. But while concurring generally with the admirable judgment of my brother I must express my disquiet at the turn the trial took in the court below. Especially over the following matters: (1) the interval of time elapsing between the dissolution of the marriage and the award of ancillary reliefs; (2) the dissolution and reliefs being made by different judges; and (3) the fact of a consent settlement. It seems to me that scant regard was paid in the instant case to the spirit underlying the Matrimonial Causes Act, 1971 (Act 367). In my view, the bitterness created by marital disharmony and its collapse, should be brief and settled speedily, if possible at one trial, and this is what the Act instructs.

In the present case, the marriage was dissolved on 11 May 1979 by Griffiths-Randolph J. The learned judge thereafter adjourned for the “consideration of other reliefs” to 25 May 1979. After further adjournments the learned judge pronounced on 20 July 1979 as follows, “Case adjourned to 31 July 1979 when a settlement may be announced with the other reliefs, since the marriage had already been dissolved.” On 31 July 1979, the record shows the following minutes:

By Court:

“By consent, custody of the two children viz. Ama Nipaah and Nana Yaw Appiah is hereby granted to the petitioner who will be paid ¢100 as at the beginning of each month commencing 1 August 1979 for their maintenance by the respondent, who will also pay their educational expenses, etc. He is to pay her a lump sum of ¢4,000 and ¢500 cost.”

What this lump sum represents in terms of the settlement was not disclosed.

The question that creates anxiety in my mind is whether the ancillary reliefs later granted by the court should not be considered as dealt with on 31 July 1979 “by consent.” In which event anything unsaid would be construed as part of the settlement and swallowed up by the agreement which gave rise to the consent order. One must be wary of approving steps that may undermine principles which deny viability to the re-agitation of settled issues.

It seems to me that the whole tenor of Act 367 is to dispose of the barren shell of a marriage which has broken down, as speedily as possible and to determine equally expeditiously all proprietary rights. It would be cruelly wrong to keep the home fires burning, not with warmth and comfort, but with the chilly bitterness of domestic strife made more acute by a haggle over property matters when the marriage is dead. Guidance is given by the Act itself on this aspect of the matter by section 20 of Act 367 which reads as follows:

“20 (1) 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 or as part of financial provision as the court thinks just and equitable.

(2) Payments and conveyances under this section may be ordered to be made in gross or by instalments.”

It would appear therefore that any orders meant to be part settlements should clearly indicate so if they are not to be taken as conclusive and total settlements. This view is reinforced by section 27(2) of the Act which states:

“(2) No order of financial provision for a party to the marriage may be made subsequent to a decree of divorce or nullity in any case in which - (b) the decree contains an express waiver of financial provision; or (a) the decree provides for a money or property settlement in lieu of financial provision and that settlement has been executed; or (c) the decree does not grant liberty to apply for financial provision in the future.”

(The emphasis is mine.) I think the Act is clearly against a piecemeal approach in the award of ancillary reliefs whose net effect is to prolong bitterness.

An English case which bears strong resemblance to the present one is the House of Lords decision in Minton v. Minton [1979] 1 All E.R. 79. Before examining that case it is worth noting that our Matrimonial laws have a British ancestry and still retain a close affinity with it in language and spirit. In the Minton case, the dissolution of a marriage was followed by an arrangement by the parties for the settlement of their respective proprietary entitlements. The agreement was embodied in a consent order of the court. Later the wife, dissatisfied with the financial provision made for her, applied for a variation of the consent order. When her application was dismissed for want of jurisdiction, she appealed. The House of Lords had no hesitation in determining the issue in a manner that would prevent the exacerbation of old wounds. All the law lords stressed the desirability of achieving finality in the making of financial provisions. The principle of “clean break” was emphasised. In frowning upon the practice that had developed whereby nominal maintenance orders were granted as a peg on which to hang any future variation of the award, the court held that once an order for provision had been made on the merits, the court would normally have exhausted its jurisdiction, except where the order was capable of variation under section 31 of the English Matrimonial Causes Act, 1973. The court per Lord Scarman at pp. 87-88 said in the report which may be assimilated with profit:

“There are two principles which inform the modern legislation. One is the public interest that spouses, to the extent that their means permit, should provide for themselves and their children. But the other, of equal importance, is the principle of, the clean break.’ The law now encourages spouses to avoid bitterness after family breakdown and to settle their money and property problems. An object of the modern law is to encourage the parties to put the past behind them and to begin new life which is not overshadowed by the relationship which has broken down. It would be inconsistent with this principle if the court could not make, as between the spouses, a genuinely final order unless it was prepared to dismiss the application. The present case is a good illustration. The court having made an order giving effect to a comprehensive settlement of all financial and property issues as between spouses, it would be a strange application of the principle of the clean break if, notwithstanding the order, the court could make a future order on a subsequent application made by the wife after the husband had complied with all his obligations.”

Having regard to the quantum of the matrimonial estate and the wife’s proper degree of contribution it is a moot point whether a compromise of ¢4,000 would represent a true or realistic settlement. The difference with which this aspect of the matter has been approached by counsel does not inspire in me any confidence that a settlement has been breached.

I must therefore content myself by expressing my gnawing doubts and reservations without pressing my view to the point of dissent.

I have had the opportunity of reading in advance the judgment just read by my brother and I agree with the reasons and the conclusion and have nothing useful to add.

Appearances

OKWABI FOR THE APPELLANT; W. FUGAR FOR THE RESPONDENT.