AFUA OFORIWAAH V. PAUL K. ADU
by ESSILFIE-BONDZIE J.A (PRESIDING), FARKYE J.A, AKOTO-BAMFOR J.A.
Jurisdiction
COURT OF APPEAL
Judge
ESSILFIE-BONDZIE J.A (PRESIDING), FARKYE J.A, AKOTO-BAMFOR J.A.
Catalog Type
Case
Judgement Date
Mar 28, 2002
Summary
Family Law — Customary marriage — Matrimonial property — Joint acquisition — Equitable distribution — Constructive trust — Article 22(3) of the 1992 Constitution The case concerned an appeal and cross-appeal arising from the division of matrimonial property following the breakdown of a customary marriage between Afua Oforiwaa (petitioner/appellant) and Paul Adu (respondent/cross-appellant). The dispute centered on the ownership and distribution of house No. D40 Abeka Lapaz and other household chattels acquired during the marriage. Evidence before the court showed that the parties lived and worked together both in the United Kingdom and Ghana, pooling their earnings into a joint account and jointly acquiring assets. Proceeds from the sale of a house in the United Kingdom were used to fund joint business ventures and to acquire property in Ghana. The respondent contended that the Ghana property was his sole property, relying on a deed of gift, and further argued that the marriage had been dissolved prior to the acquisition. However, the court found that the marriage subsisted at all material times and that the properties were acquired through joint efforts and a common fund. The petitioner, though illiterate, gave credible evidence that she contributed substantially by surrendering her earnings for joint use. The court emphasized that the mere fact that property is documented in one spouse’s name, particularly where the other spouse is illiterate, does not negate the existence of a joint beneficial interest. On appeal, the court applied Article 22(3) of the 1992 Constitution and relevant case law on equitable distribution and constructive trust principles, holding that property acquired during marriage through joint contributions ought to be shared equitably. The court found that the trial court erred in awarding the petitioner only a one-third interest and instead held that she was entitled to an equal half share in the Abeka Lapaz house and other jointly acquired matrimonial property. The appeal was accordingly allowed.
Full Content
JUDGMENT
MRS. AKOTO-BAMFO, J.A.
This is an appeal and a cross appeal filed against the decision of the Circuit Court dated the 8th of November 1999.
In order to appreciate the issues raised, I find it necessary to give a brief back ground to the events culminating into the appeals filed by the respective parties.
Afua Oforiwaa was married to Paul Adu under custom sometime in 1965; they cohabited in Kumasi and subsequently at Accra. The union was blessed with seven (7) children. In the course of time the husband left the shores of Ghana to seek greener pastures in Britain. He arranged for the wife to join him later. While there Afua worked both as a cleaner and a seamstress while Paul worked with a motor firm. Being an illiterate she gave all her earnings to the husband who operated a joint account opened by them. It appears that all their earnings were paid into this account and expenses taken therefrom. Out of the joint savings they purchased a house and some household chattels. When they decided to return to Ghana, they sold the house; used part of the proceeds in establishing various businesses firstly clinker, rice and sugar imports and secondly as dealers in 2nd hand goods. It is evident that the peace and quiet of their matrimonial home was disturbed with advent of one Ama Serwaa into their lives; the husband had an extramarital affair with Ama Serwaa, had a child with her and she later moved to live closely to the matrimonial home. This was to be the beginning of the end of this otherwise reasonably happy marriage—for the couple till then operated businesses together and did many things in common.
When the wife felt she could no longer stand the heat, as it were, she petitioned for divorce and prayed for a number of ancillary reliefs. The husband in his answer claimed that the marriage had been dissolved as far back as 1990, and that he had allowed the wife into his home because she was pregnant and custom forbade a man divorcing a wife in that condition. The Court took evidence and found that no such dissolution had taken place and therefore that the marriage was subsisting.
The Court therefore took evidence on the reliefs claimed by the wife among which were for an order for a dissolution of the marriage, custody of the minor children and a half share of their jointly acquired matrimonial home described as identification No. D40 Abeka Lapaz and a half share of all the household chattels.
For the petitioner this ground was filed;
That the Honourable Judge misdirected himself and also made an error in arriving at the conclusion that the petitioner was entitled to 1/3 share of the matrimonial home No. D40 Abeka Lapaz as well as his decision on the vehicle named in the petition. Particulars of the misdirection were set out as follows;
(1) The Hon. Judge disregarded Article 22(3) of the 1992 Constitution on the distribution of properties acquired during marriage.
(2) The Hon. Judge disregarded the legal implications of the disability of the petitioner – an illiterate to be able to give correct account of names and for work done in Britain.
The respondent cross-appealed in these terms;
That the Hon. Judge’s order or decision that 1/3 share of house no. D40 Abeka Lapaz be given to the petitioner was not supported by the evidence and has occasioned, for the cross appellant substantial miscarriage of justice.
Before considering the issues raised in this appeal I wish to comment briefly on the manner the grounds of appeal for the appellant were formulated. Under C19 rules 8(2) a and 5 the appellant is required to set out and under distinct heads the grounds upon which the appellant intends to rely at the hearing.
A look at the notice filed by the appellant shows that only one ground of appeal was filed, namely that the decision on the matrimonial home was erroneous, it is evident however that in giving the particulars as provided for under rule 8(4) thereof learned counsel did not confine herself to the alleged misdirection in relation to the matrimonial home but did stray into other areas like custody and maintenance of the children of the marriage which were not subject of the appeal. This state of affairs cannot be described as satisfactory.
In her submissions, learned counsel argued that in so far as the couple did not mention any properties acquired before the marriage but that all the properties were acquired when they either worked in London or in Accra where they jointly established businesses with their savings from their joint savings the Court erred in awarding the appellant 1/3 share of the matrimonial home.
It must be pointed out that learned counsel for the cross appellant failed to file written submissions in respect of the cross appellant. The cross appeal is therefore struck out.
The parties started their married life in Kumasi, subsequently the husband moved to London to be joined by the wife, they both lived and worked there. Indeed in the words of the husband “Petitioner joined me in London and worked in 1982; before the petitioner came I was working with Ford Motors. About a month after the petitioner joined me I was declared redundant and was paid off. I was paid ten pounds......... Petitioner was then working. I put her in a sewing class. After she had completed I bought for her a machine and got jobs for her. She was sewing car cushions covers. After sewing I will follow and send them back to where I collected the materials. I received payment on her behalf. I paid the cheques into our joint account.”
It is the petitioner’s story that she was working at many different jobs, sewing and doing some cleaning jobs at the same time. According to her she was making £300 monthly. Even though the respondent denied that the petitioner was earning that much it is clear from his testimony that the petitioner was giving all her earnings to him; that they operated a joint account and that out of the joint savings they purchased some household chattels and paid their bills. Indeed they bought a house from that account. When they subsequently decided to return to Ghana they sold that house and brought the proceeds down. There is abundant evidence that on their return they jointly established firstly a business in imports of clinker, milk and sugar and dealt in 2nd hand goods; there is a common strand; they operated these businesses jointly and these ventures were financed from the common fund whose genesis lay in the proceeds realized from the sale of the London property.
With regard to the subject of the appeal i.e the matrimonial home; even though the petitioner averred that the land was bought out of their joint savings, the respondent contended that it was a gift from one Orgle and indeed tendered in evidence exhibit 7 the Deed of gift. According to exhibit 7 the parties were Ernest Orgle the donor and Paul Adu the donee. The deed was executed on 20th January 1990 and stamped in 1997. It is of significance that the marriage was subsisting at the time and more importantly that they were jointly operating businesses financed from the common fund. It was in September that year that they appeared before a panel constituted by members of both families to patch up their differences. On the face it, one can safely argue that since it was clear as per exhibit 7 that the respondent was the donee the petitioner’s evidence on the issue was not worthy of any credit; that the petitioner was illiterate and the respondent therefore conducted all transactions on behalf of the family is not in doubt; indeed it was clearly established in evidence that purchases made jointly by them were put in name of the respondent at all material times. In the light of this can it be said that exhibit 7 is conclusive? I think not. Be that as it may the respondent testified that between 1990 and 92, he travelled to the United States of America, brought in some goods and used the proceeds in financing in the construction of the house. Between 1991/92 the parties were married they indeed lived in a house they had jointly rented at Tesano, as at the time husband left for the United States of America they were in business together. The learned Judge therefore rightly found that as at 1990 there was a common fund out of which the respondent’s trips were financed. Having regard to the fact that the respondent travelled out of the jurisdiction and left the care of children to the petitioner in the matrimonial home, the learned judge fell into an error when he awarded 1/3 share of the value thereof to the petitioner.
It must be noted that even though the fact that a wife who has faithfully served a husband during marriage does not by itself entitle her to a share in the property acquired it is however settled that where both parties contributed towards the acquisition of the property, then each must have a share in it. Abebrese v. Kaah and Ors. 1976 2 GLR 46 and Domfe v. Adu 1984-86 GLRD 77. In the latter case the Court held inter alia that the legal principles applicable were those of English law of Trust and on the basis of legal authorities, since the respondent also participated actively in the running of the business she was therefore entitled to an equal share of the profits and other benefits flowing directly therefrom. If indeed as contended by the husband the marriage had been dissolved at the time they lived in the rented premises and he had solely financed the construction of the Abeka property, he would not have given the petitioner access thereto; that he moved the petitioner into the Abeka property and left her there to look after the children of the marriage supports the view it was intended that the property be family asset to which both have equal shares.
For these reasons I would allow the appeal.