SAMUEL ANINKORAH V. BEATRICE YAA ANINKORAH

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 v. Abudulai No. 2 1984-82 2GLR SC.

Log and Lumber Ltd. v. Oppong 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 v. 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 v. 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.