THEOPHILUS ATO HINSON V. FLORENCE ARABA HINSON

JUDGMENT

OFOE J.A.

In the trial court the petitioner, Mr. Hinson sought the following reliefs:

1. An order for the dissolution of the customary marriage and the ordinance marriage contracted between the parties herein on 19th of February 1994 and 28th May 1994 respectively at Koforidua.

2. Recovery of possession.

3. Custody of Caroline Baaba Hinson.

The respondent, Araba, also cross petitioned for:

1. An order that the respondent has fifty percent interest in the matrimonial home and all properties that the parties acquired during the subsistence of the marriage.

2. An order of custody of the child, Caroline Baaba Ninson

3. An order of maintenance

4. Financial Provision and or lump sum payment.

At the end of trial the trial judge concluded the case stating:

“In summary therefore I make the following orders:

a. The marriage between the parties celebrated at the Methodist Church Koforidua on the 28th of May 1994 is dissolved.

b. Custody of Caroline Baaba Hinson aged seven is given to the respondent with reasonable access to the Petitioner. The Petitioner is ordered to take care of her feeding, education and medical expenses while the respondent takes care of her clothing. For the avoidance of doubt the child’s monthly maintenance (excluding educational and medical expenses) shall be GH¢300.

c. The petitioner is ordered to convey the plots at Elmina and Koforidua to the respondent.

d. The petitioner shall recover possession of the Matrimonial Home House No. 28 Taifa from the respondent.

e. All other properties namely the plot of land at Kasoa, the 2 plots at Pokuase, the uncompleted building (joint venture) project at Cape Coast and the Internet café at Cape Coast are decreed to be exclusively owned by the petitioner.

The petitioner is to make a lump sum payment of GH¢5000.00 to the respondent

The respondent is dissatisfied with these orders of the trial judge and has appealed on four grounds to wit:

1. That the trial judge erred in holding that the respondent is entitled to two undeveloped plots of land only situate at Elmina and Koforidua respectively out of the numerous properties of the couple

2. That the learned trial judge erred in granting respondent who has the custody of the child of the marriage a lump sum of only GH¢5000.00

3. That the learned trial judge erred in granting the matrimonial home to the petitioner

4. That the learned trial judge erred in leaving the reasonable access to the petitioner open”

An appeal, as is common legal knowledge, is by way of rehearing and this casts a duty on an appellate court to review the whole of the evidence on record as to whether the trial judge has in anyway faltered as to give cause to upholding the appeal lodged by an appellant. The powers of the appellate court in reviewing the whole evidence and when those powers would be exercised in interfering with the trial court’s findings have been expounded in several authorities. Refer to the cases of Gregory v. Tandoh IV and Hanson (2010) SCGLR 971 at 985 Obeng v. Assemblies of God Church (2010) SCGLR 300, Achoro v. Akanfela (1996-97) SCGLR 209, Akuffo Addo v. Cathline (1992) 1 GLR 377, Koglex (No 2) v. Field (2000) SCGLR175.

The concern of this appeal is mainly a disagreement with the property distribution made by the trial court. So far as the appellant is concerned there are several properties so she is entitled to more than what was given to her. Of course there should be reasons, both legal and factual, why the appellant should be asking for more than what the trial judge granted her. The relevant part of the appellant’s pleadings which mention the properties in dispute provide as follows

“17. Paragraph 12 is denied as the respondent assisted the petitioner as a student before the parties got married and respondent has contributed substantially to the acquisition of various properties including the matrimonial home at Taifa, plots of land at Kasoa, parcel of land and an uncompleted building at Cape Coast, two plots of land at Koforidua, plot of land at Elmina, two plots of land at Pokuase, Accra and internet café business at Cape Coast.

18. Respondent says in answer to paragraph 13b that petitioner is not entitled to recover the matrimonial home as respondent has 50% interest in all the properties acquired during the subsistence of the marriage”.

Respondent in this appeal, Mr. Hinson answered these claims of the appellant. He pleaded that the plot at Taifa was bought by him and he constructed the building on it with no assistance from the appellant. The Kasoa plot was a gift to him. He bought the Cape Coast plot without any contribution from the appellant and he bought it at a time their marriage was on rocks. The plot at Koforidua he bought long before their marriage but it was the documentation that delayed. The Cape Coast house is in the name of Magaret Pobee and there is an agreement between him and this lady to build and share. The plot at Elmina was gifted to him but he caused it to be registered in the appellant’s name because that was the appellant’s home town. The plots in Pokuase were allocated to him for a token by the Pokuase Chief for services he rendered to the said chief. There appears to be no dispute what the properties in contention are.

The appellant, who is contending she was a substantial contributor to the acquisition of these properties she pleaded, has the evidential burden to prove her contribution. The trial judge concluded that she failed in this duty. We think the evidence on record gives ample support to the trial judge’s conclusion. Prominent in her answer to the court when she was asked what her contribution to the Taifa house was she said anytime the respondent was coming to Accra he knew where she appellant puts her money and he goes for it. And that is how she contributed to the Taifa house. She continued in her evidence in chief that it was the respondent husband who told her he has six plots of land at Kasoa, 4 plots at Cape Coast and 4 plots in Elmina. If he was told this, without more, then how could she have been a direct contributor to these purchases? But let’s listen to appellants counsel in respect of her ground 1 of the grounds of appeal which is questioning why she should be given only two plots, one at Koforidua and the other at Elmina, out of the several properties mentioned. It is counsel’s submission that the appellant had contributed to the rise of the respondent, from National Service to a rich man. The appellant was also a seamstress who couldn’t have sat by while the respondent acquired these properties. Relying on the cases of Annan v. Tagoe (1989-90) 2 GLR 8 H.C, Gissing v. Ginsing AC 886 AND Berchie Badu v. Berchie Badu (1987-1988) 2 GLR 260 counsel submitted that the appellant was a joint owner to these properties.

Respondent thinks the trial judge was even over magnanimous in awarding two plots of land to the appellant because she contributed nothing to the acquisition of these properties.

The evidence can’t be doubted that the couple had been married for about 16 years. The appellant a seamstress was in charge of the house whiles the respondent went round on transfer on his official duties. It was the appellant who was in charge of the matrimonial home which was blessed with one child. Whilst it cannot be said that the appellant had established any substantial contribution to the acquisition of these properties the recent authorities have shifted focus from this yard stick in assessing the lot of women on the dissolution of a marriage. Since the complaint of the appellant is about insufficiency of what the trial court granted her it is worth examining what legal principles the authorities have laid down to guide such property distribution on dissolution of marriage. The recent Supreme Court cases ofMensah v. Mensah(1998-99) SCGLR350 and Boafo v. Boafo (2005-2006)SCGLR705 deserves mention in this area of the law. We shall look at these and other case on the subject

It is also essential to mention section 20(1) of the Matrimonial Causes Act 1971(Act367) and Article 23(3) of the 1992 Constitution. We quote them hereunder.

“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 as part of a financial provision as the court thinks just and equitable”

“Article 22 (3). With a view to achieving the full realization of the rights referred to in clause (2) of this article—

(a) Spouses shall have equal access to property jointly acquired during marriage:

(b) Assets which are jointly acquired during marriage shall be distributed equitably between spouses upon dissolution of the marriage”

What did the Supreme Court say in respect of Mensah v. Mensah(supra) in respect of property distribution on dissolution of the marriage. It was an issue about which of the divorced couples should have the estate house with extension made thereon. Both parties had asked the court to declare the property as their individual property. Summary of the evidence as titrated by the Supreme Court was that the house was acquired in 1973 and the extension works were made in 1978/79 when the parties were married and co-habiting. There was evidence that it was the husband who applied to the State Housing for permit to make the extension works. He also engaged someone to make drawings of the extension works. The husband provided a room divider in 1983 and paid for the ceiling panel. During this construction period he was still contributing to the household expenses. Based on these pieces of evidence the Supreme Court disagreed with the Court of Appeal’s conclusion granting the extension solely to the woman. The Supreme Court held that in such circumstances the principle that property jointly acquired during marriage becomes joint property of the parties applies and such property should be shared equally on divorce. On the facts and the law both parties become joint and equal beneficial owners of the main house and extension. In coming to this conclusion the court considered cases like Rimmer v. Rimmer (1952) 1 QB 63 at page73 and our local case of Achiampong v. Acheampong (1982-83) 2 GLR 1017 C.A. The contribution of each party in these cases was such that the courts found it equitable making a finding that the properties in issue were jointly owned and therefore the principle of equality is equity should be applied and the property shared equally. It is worth emphasizing that it was very clear from these cases that the courts came to these conclusions based on the facts of each case.

In Boafo v. Boafo (supra) the trial High Court made findings that the wife had made financial contributions to the acquisition of the properties in issue and the couple had also conducted their finances jointly. The trial judge also found that all the properties were acquired during the subsistence of the marriage. In upholding the redistribution ordered by the Court of Appeal the Supreme Court through His Lordship Date-Bah cited with approval the reasoning and conclusions in the Mensah v. Mensah case emphasizing Lord Denning in the Rimmer v. Rimmer case where the Lord Justice had this to say:

“where it is clear that the matrimonial home or furniture in common use belong to one or the other of the married couple then the courts would respect the proprietary rights of the particular spouse. But where it is not clear to whom the beneficiary interest belongs or in what proportions, then the equitable maxim of equality is equity would be applied”

His Lordship Date Bah understood the Supreme Court in Mensah v. Mensah to have stated

“That the principle of the equitable sharing of joint property would ordinarily entail applying the equality principle, unless one spouse can prove separate proprietorship or agreement or a different proportion of ownership”

He approved of it.

He found the following statement of the Court of Appeal which judgment was before the Supreme Court unexceptional and approved that also:

“The Constitutional provision(and indeed section 20(1) of the Matrimonial Causes Act, 1971(Act 367) only makes provision for the equitable distribution of property jointly acquired without, understandably, laying down the proportions in which such property may be distributed. The reason is not difficult to find. The question of what is “equitable” in essence, what is just, reasonable and accords with common sense and fair play, is pure question of fact, dependent purely on the particular circumstances of each case. The proportions are therefore, fixed in accordance with the equities of any given case”

In respect to the mode of distribution he said at page 713 of the report: “An equal division will often, though not invariably be a solution to this imbalance. The logic underlying this solution is that equal partners should share equally. However, the particularities of an individual case may make this general approach unsound in specific instances” In the current unreported Supreme Court case of Gladys Mensah v. Stephen Mensah Civil Appeal No.34/20/2011 delivered on the 22nd February 2012, His Lordship Jones Dotse dilated at length on the principles governing distribution of property acquired during the subsistence of the marriage if the marriage is subsequently dissolved. After considering the cases of Mensah v. Mensah(supra) and Boafo v. Boafo(supra) he came to the conclusion that even though Boafo v. Boafo affirmed the equality is equity principle it gave further meaning to section 20(1) of Act 367 and Article 22(3)(b) of the 1992 Constitution The further meaning he identified from the case was that when it comes to the issue of proportions they are to be fixed according to the equities of each case. He stated:

“The court duly recognizes the fact that an equal (half and half) distribution though usually a suitable solution to correct imbalances in property rights against women, may not necessarily lead to a just and equitable distribution as the Constitution and Act 367 envisages. It is submitted that the court made room for some flexibility in the application of the equality is equity principle by favouring a case to case approach as opposed to a wholesale application of the principle”

Obviously infatuated by the desire to protect women who have been cheated for far too long and I think further infuriated by the circumstances of the Mensah case before him where the husband was in fact attempting fraudulently to deny the illiterate wife her due share of the properties acquired during the marriage His Lordship Dotse added

“The above notwithstanding, it must be noted that the paramount goal of the court would be to achieve equality. Thus the court endorsed the court of appeal position to the effect that an inability or difficulty to identify clearly distinct contributions in the acquisition of the joint property would not in itself preclude a half and half sharing”

He concluded his judgment as follows:

“We are therefore of the considered view that the time has come for this court to institutionalize this principle of equality in the sharing of marital property by the spouses, after divorce of all property acquired during the subsistence of a marriage in appropriate cases...” (Emphasis mine)

It is worth noting the following position taken by the Supreme Court in this Mensah case.

“Thus even if this court had held that the petitioner had not made any substantial contribution to the acquisition of the matrimonial properties, it would still have come to the same conclusion that the petitioner is entitled to an equal share in the properties so acquired during the subsistence of the marriage. This is because this court recognizes the valuable contributions made by her in the marriage like the performance of household chores referred to supra, and the maintenance of a congenial domestic environment for the respondent to operate and acquire properties”

We believe we have been able to titrate from the current judicial authorities the applicable principles that should guide the courts and what should guide us also in this appeal in determining whether the distributions made by the trial court are supportable given the circumstances and the evidence before the trial judge. We have found earlier, just like the trial judge that the appellant led no convincing evidence that she contributed substantially to the acquisition of any of the properties as she claimed in her answer to the petition. In fact the evidence did not also disclose that there was the intention of the parties to acquire any of the properties as joint properties. Unlike the wife in the Gladys Mensah v. Stephen Mensah (supra) case this wife led no evidence of any direct involvement or direct assistance she made in the acquisition of these properties. What did the trial judge do with these findings? He applied section 20(1) of the Matrimonial Causes Act and proceeded to distribute the property the way he believed just. He said:

a. ..........

b. ...........

c. The petitioner is ordered to convey the plots at Elmina and Koforidua to the respondent

d. The petitioner shall recover possession of the Matrimonial HomeHouse No.28 Taifa from the respondent

e. All other properties namely the plot of land at Kasoa, the 2 plots at Pokuase, the uncompleted building (joint venture) project at Cape Coast and the Internet Café at Cape Coast are decreed to be exclusively owned by the petitioner

The petitioner is to make lump sum payment of GH¢5000 to the respondent”

The properties in issue we are told are a house in Taifa, which is the matrimonial home of the parties. This land has three structures on it. 4 bedroom self contained, 3 bedroom uncompleted 2 storey, 2 storey structure for offices and a store. The appellant is currently using some of the stores for her vocation. The other properties are a land in Kasoa gifted to the respondent, plot of land in Cape Coast, plot of land in Koforidua which the respondent claimed he bought before their marriage but documentation delayed, a plot of land at Elmina also gifted to him, another plot of land at Pokuase which he bought for a token and an internet Café in Cape Coast.

We have mentioned that the law on distribution of property on dissolution of the marriage now recognizes the wifely duties performed by the woman in the house while the man goes acquiring property as contribution in the acquisition of the matrimonial property. Applying that law to section 20(1) of the Matrimonial Causes Act it is our view that a court is bound to approach equity to find out what would be just and equitable to award to the woman in the house. The evidence here is that the woman is a seamstress operating in the house with apprentices. The parties have one child. They have been married since 1994. The petition was filed in 2009. The parties have therefore been married for 16 years. We are not told of the age of the appellant for us to assess her possibility of entering into another marriage. But as a seamstress she is capable of performing her vocation as a seamstress. The parties at the date of divorce were living in Taifa, a suburb of Accra. She was given one plot of land in Koforidua and another in Elmina. We found nothing wrong with this and hereby endorse them to the appellant. But we found no reason why the appellant should not have been given shelter over her head from the buildings the respondent acquired during the period of the marriage. With respect due the trial judge we found this omission in the circumstances of this case grave. On the evidence the equities of the case demand that we set aside the order of the trial judge and effect redistribution as follows. In doing this we did not lose sight of the fact that the award is being made to the appellant for the duties she performed as a wife and not as a contributor to the acquisition of the properties.

a. We have endorsed the Koforidua and Elmina lands to the appellant

b. The 3 bedroom uncompleted 2 storey is awarded the appellant

c. One store from the other structure of stores and offices is awarded to the appellant

d. We endorse the GH¢5000.00 awarded her by the trial judge

This distribution should take care of the appellants ground of appeal b and c. We think the trial judge failed to give adequate consideration to the evidence before him leading to an award we find inequitable. This justifies our interference with his findings and the awards he made as we are permitted to do by the authorities in a rehearing situation.

The last ground of appeal of the appellant questions why the trial judge did not detail the access granted to the respondent father of the child. To the appellant giving the respondent unrestricted access will jeopardize the future of the child since either of the parents may be a source of conflict in the execution of the access. If we understood the appellant she is asking when the father of the child can have the child and return her when?

We think it is worth endorsing the trial judge’s order he made in respect of access and maintenance of the child. Reasonable assess is granted the respondent to this child with the appellant having custody. Respondent to take care of the child including feeding, education and medical expenses whilst the appellant takes care of the child’s clothing. The child’s monthly maintenance is fixed at GH¢300. This excludes educational and medical expenses. Parties should be able to work out details of the access granted the respondent to the child. We take note that the child was making visits to the respondent in Kumasi during the period that the marriage was still smoldering. These visits we find encouraging and should guide the parties what access should be granted the respondent during and off school holidays and the like.

Appeal succeeds in part.

Appearances

VIVIAN MFOBWOA FOR THE RESPONDENT ,SARAH KUSI FOR THE APPELLANT