BENJAMINN AWUKU MARTINSON VRS SARAH MARTINSON

JUDGMENT

BRIGHT MENSAH JA:

The instant appeal launched by the petitioner/appellant herein, is against the judgment of the High Court, Accra delivered 24/05/2018, the appellant being dissatisfied with the court’s decision. The petitioner/appellant shall hereinafter be referred to simply as the petitioner whilst the respondent/ respondent shall hereinafter referred simply as the respondent. My Lords, the chief question in this appeal turns on whether the property settlement by the lower court was fair and equitable.

The petition:

In his petition filed in the lower court 09/12/2013, the petitioner averred that he was a retired Air Force Officer of the Ghana Air Force and a retired International Public Servant having worked for the World Food Programme of the United Nations. He worked in Uganda where he first met the respondent in 1989. They started a relationship that resulted in the petitioner impregnating the respondent who had a child in 1990. The petitioner went ahead to perform the traditional marriage in 1991 and took the respondent to the altar in December 1991 to have a church wedding.

The petitioner averred further that by the nature of his job he did not stay in Uganda for long as he was moved quite often to other places like Kenya and Ethiopia and war zone areas including South Sudan and Afghanistan. He retired from the United Nations in 2000 and relocated to Ghana with the respondent in 2001. According to him, he acquired three (3) building/residential complexes and four (4) bungalow type buildings in Uganda which were in the care of the respondent because she stayed in Uganda with the children of the house all the time. It is his case however that the respondent registered those properties in her sole name and also accumulated much rents/proceeds therefrom, without accounting to him.

He pleaded further that beginning from 2007, their relationship grew sour to the extent that although they both lived under the same roof they were not talking to each other. When all attempts to reconcile them failed he filed this petition on grounds, inter alia, that the marriage has broken down beyond reconciliation, the petitioner stated further. The petitioner sought the following reliefs from the divorce court:

1.     That the marriage between the parties contracted and consummated in Kampala, Uganda in December 1991 be dissolved

by the court applying section 31(a) of the Matrimonial Causes Act, 1971 [Act 367];

 

2.     That the respondent be ordered to account for rents collected by her in respect

of the petitioner’s properties at paragraph 9;

 

3.     That property settlement between the parties be as proposed herein;

 

4.     Any other order or orders that the court may deem just. See: pp 1 – 7 of the record of appeal [roa]

In his evidence, the petitioner testified on oath saying that he was solely responsible for the education of the 2 children of the household who were schooling in the United States, as well as the child of the respondent she brought into the marriage. The educational expenses run into thousands of the US dollars.

In his evidence appearing at pp 52 – 53 [roa] the petitioner insisted that since his marriage to her, the respondent has never worked to receive any earnings nor obtained bank loans to justify her claim that she acquired the Uganda properties. Reacting to paragraph 12 of the respondent’s Answer, the petitioner said he built all the houses in Uganda and that it was fraudulent if the respondent was claiming otherwise.

He denied that the Ghana properties are joint properties of the parties. He maintained that the respondent was not involved in building the Ghana houses as he was solely responsible for their acquisition.

Answer to the petition:

In her answer to the petition, the respondent admitted the petitioner’s averments contained in paragraphs 1 – 3 of the petition. However, she denied that the petitioner retired in 2000. He rather retired in July 2002.

The respondent maintained that the petitioner was rather the cause of the breakdown of the marriage and listed the grounds in paragraph 7 of her answer. In summary, she said it is rather the petitioner who has grown cold towards the respondent; refused to attend church and pray with her and also refused her sex.

The respondent averred further that before the petitioner got married to her, she was a Hotel Manager in Kampala and was also running a profitable guest and restaurant with her father. She claimed that the other properties are jointly owned with her father and sister but the properties are registered in her name. She rented out four (two) bedroom units in Kampala to take care of her 3 orphans of her deceased son, her nephew and son.

The respondent averred in paragraph 16 of her Answer that upon marrying the petitioner, the petitioner asked her to stop work to take care of the home, care for their 2 children of the household; washed the petitioner’s clothes and generally did what a dutiful and respectful wife would do so that the husband would be able to discharge his duties with the UN.

According to the respondent as averred to in paragraph 15 of her Answer, the petitioner has about 14 buildings in Ghana at various places like Alajo, Accra; Larteh, Ashalley Botwe and Tema, attracting rents some in the Ghana Cedis and others in the US Dollar. The respondent claimed that all the properties in Ghana were put up by the parties after the petitioner’s retirement from the UN and the parties’ settlement in Ghana except the Tema, the Ashalley Botwe and the Larteh properties, as well as the matrimonial building. See: p. 12 [roa].

It was the case of the respondent that she always went round to buy building materials and supervised the construction workers. Additionally, she joined the petitioner in signing tenancy agreements with tenants. The respondent claimed that the incidents leading to the breakdown of the marriage and the petitioner filing the petition was orchestrated by petitioner’s unreasonable behaviour.

Cross-petition:

The respondent cross-petitioned that in the event that the marriage was dissolved, she prayed the court as follows:

a.     An order settling the matrimonial building and home known as House no. C30/17, Alajo, Accra; House no. 15D Febian Street Alajo, Accra; and stores no.1 and 2, Alajo Accra on the res- pondent absolutely;

 

b.     An order that the petitioner pays the respondent an amount of Ghc100,000. as lump sum and financial settlement upon the dissolution of their marriage;

 

c.      An order that the petitioner pays the legal fees of the respondent occasioned by this petition.

 

d.    Costs. See: pp 8 – 16 [roa].

Giving evidence in support of her claims, the respondent did testify that she worked in the Summer Hotel, Uganda, a three-star forty-five room first class hotel between 1987 and 1989. She was financially viable and was able to put a guest house, Christian Guest House together with her father.

Additionally, she said she previously worked with Ugandan hotels for 9 years between 1977 and 1986 as a Front Office Supervisor before shifting to the Summer Hotel. She worked in that capacity before the petitioner met her. She owned a 3 bedroom house together with boys’ quarters in Lukuli in Uganda. She had her a Toyota Carina and a Barclays Bank account before she met petitioner. She had 2 children before meeting the petitioner and was responsible for their upkeep and education. Upon meeting her, the petitioner stopped her from working so as to take care of the kids and did not also want her to go on night duties.

She claimed further that the petitioner never made any contribution towards the land she bought in Kampala and construction of the building thereon, neither did he contribute any money or building materials during their construction. She denied that the petitioner invested over One million dollars to the construction of the Uganda properties. She did indicate that during the period that she put up her four units building in Kampala, the petitioner was on duty in Afghanistan. See: pp 266 – 267 [roa]

She continued that when she joined the petitioner in Ghana at the end of his mission with the UN, the petitioner had already built the matrimonial home and that was the only property the petitioner had in Ghana at the time. So, they started building one house at a time; gave out the constructed house on tenancy and started another and rent that also in respect of all the houses they jointly built. She added that her name together with the petitioner’s appeared on the tenancy agreements. She always went to market to purchase building materials with the petitioner. See: pp 260 – 261 [roa]

Reply to the Answer:

In a 29 – paragraph Reply, the petitioner joined issues generally with the respondent’s answer. The petitioner denied in particular, that the Uganda properties were jointly with her father and or her sister or singularly acquired by the respondent.

In his evidence, the petitioner maintained that the respondent as a housewife and not gainfully employed whilst her father as a retiree, could not have jointly acquired any of the Uganda properties. He insisted that he singlehandedly funded the Ugandan properties. He equally maintained that he was solely responsible for the education of the children of the household as well as the respondent’s child she brought into the marriage.

 

 

Judgment of the lower court:

There is controversy over the judgment the lower court delivered. On record, judgment was given in the case on 24th May 2018. However, there are 2 judgments both dated 24th May 2018. The first judgment appears on pp 403-410 [roa] whilst the 2nd judgment appears on pp 418A-418R [roa].

Whilst it is argued that the learned trial judge amended the earlier judgment in violation of rule of procedure and therefore rendered the amended judgment null and void, it has been contended in response that the court did what was permissible by only inserting the date of the marriage contracted between the parties. We shall revisit the issue.

Grounds of appeal:

The notice of appeal that appears on pp 421-424 [roa] contain the following grounds:

1.     The judgment is against the weight of evidence.

2.     That the honourable trial judge’s findings of fact as to which of them [parties] acquired the properties in Uganda are contradicted, and nullified and negative by the consequential order (3).

 

3.     That the finding of fact on the acquisition of the petitioner/appellant’s

properties in Ghana was done during the existence of the marriage is not supportable by the evidence on record.

 

4.     That the honourable court trial judge erred in her finding of fact that the properties in Ghana were acquired jointly.

 

5.     That in the light of the findings of fact on who funded the acquisition of the Ugandan properties it is inequitable and unfair for the court not to order the respondent to render accounts to the petitioner for the rents collected by and deposited in her bank account from 2001 to the date of judgment.

 

6.     That on the totality of the judgment and the evidence on which it is based, it is even more inequitable and unfair for the court to have awarded the respondent some property in Ghana.

 

7.     That the honourable trial judge erred in fact and in law by not pronouncing on the issue of fraud and deceit by the respondent against the petitioner.

 

8.     That the award of eighty thousand cedis [Ghc80,000.00] financial provision to the respondent in all the circumstances of the case is excessive.

9.     That the finding of fact that the respondent was joint owner of the Accra properties is without any evidential basis.

 

10. That the trial court failed or refused to consider adequately or at all the customary gift of the petitioner’s Accra properties to his Ghanaian children in 2004.

 

11. Other grounds of appeal will be filed upon receipt of the record of appeal.

It is on record that with leave of this court, the appellant filed two (2) additional grounds of appeal, namely:

a.     That the honourable trial judge erred in fact and in law in settling the matrimonial home on the respondent/respondent.

 

b.     The honourable trial judge erred in fact and in law in amending the Judgment read in court on 24th May 2018.

 

The appeal:

A stream of decided cases have settled the position of the law that an appeal is by way of rehearing the case. Indeed, this principle is grounded on the Court of Appeal Rules, C.I 19 per rule 8(1) that provides that any appeal to the court shall be by way of re-hearing. The rule has received ample judicial interpretation in a legion of cases to mean that the appellate court is enjoined by law to review the whole evidence led on record and to come to its own conclusion and to make a determination as to whether both on the facts and the law, the findings of the lower court were properly made and were supportable.

Put differently, the appellate court is under legal obligation to examine the findings of the lower court or the trial court, and to determine on the evidence led on record, whether those findings are supportable in law. Thus, the appellate court is enjoined by law to scrutinize the evidence led on record and make its own assessment of the case as though it was the trial court. Where the court below comes to the right conclusion based on the evidence and the law, its judgment is not to be disturbed. Per contra, where the judgment is unsupportable by the facts it attracts being upset on appeal. See: Nkrumah v Attaa [1972] 2 GLR 13 C/A.

Before proceeding to discuss in detail the grounds of appeal, it is prudent to address at this stage, the vexed question as to whether the judgment delivered 24/05/2018 was so amended without recourse to the law.

With the leave of court, the petitioner filed an additional ground of appeal that the lower court erred in fact and in law in amending the judgment read in open court on 24th May 2018. Learned Counsel for the petitioner in his written submissions filed 16/08/2021 [appearing on pp 20-22] has severely criticized the learned trial judge for amending her judgment so handed down. He contended that per the judgment read in open court, the lower court distributed the properties the petitioner acquired in Uganda. However, some consequential orders particularly 2 and 3 were ambiguous and in attempt to correct them, the lower court amended the judgment contrary to law.

Counsel referred us to the decision of the Supreme Court in R v Mensah-Bonsu & ors; Exparte Attorney General [1995-96] 1 GLR 377 that posits that the practice regulating the correction of errors in a judgment after it had been delivered was that if the judgment of a court as delivered was wrong by reason of any substantial error or omission, its correction should be by way of judicial review of the judgment. It was not permissible for the judge to correct the judgment by introducing passages which changed the meaning and effect of the judgment. The apex court added.

Counsel also relied on Order 16 r 10 of the High Court [Civil Procedure] Rules, 2004 [CI 47] to argue that the only correction that is allowed is clerical mistakes in a judgment or order of the court and or errors arising from accidental slip or omission. He claims there is no evidence to explain how the amended judgment came into being that sought to change or changed the impugned consequential orders. In Counsel’s view, whatever the lower court did when the judgment has not been subject to judicial review was null and void.

In response, learned Counsel for the respondent has submitted, defending the learned trial judge, that the judgment was never amended. Rather, the judge inserted the date of the marriage that was not indicated and also clarified the two (2) properties the lower court had not indicated the appellant was entitled to in Uganda.

As we have noted elsewhere in this judgment, the judgment of the lower court read in open on 24/05/2018 appears on pp 403-418 [roa] whilst the impugned judgment appears on pp 418A – 418R [roa]. We have critically scrutinized the 2 judgments, particularly the amendments that has generated the controversy. The amendments in question related to some consequential orders the lower court had made earlier in the initial judgment. For purposes of clarity, we set out below in extenso, those consequential orders so recorded. In the first judgment, it read:

“The orders of the court are as follows:

1.     The marriage celebrated between the parties in Kampala, Uganda on 1st December 1991 is hereby decreed to be dissolved.

 

2.     The petitioner is awarded some of the properties in Uganda if he so desires.

3.     The respondent is awarded the properties in Uganda.

 

4.     The respondent is awarded the matrimonial home in which she lives now.

 

5.     The respondent is awarded house number 15B Fabian Street, Alajo.

 

6.     The respondent is awarded stores numbers 1 and 2, Fabian Street, Alajo.

 

7.     The respondent is awarded financial provision of Eighty Thousand Ghana Cedis (Ghc80,000.00).

 

8.     The parties are to bear their own legal fees. See: pp 417-418 [roa]

Now, the 2nd judgment complained of, has the following consequential orders:

“The orders of the court are as follows:

1.     The marriage celebrated between the parties at the All Saints Cathedral, Kampala, Uganda on 26th September 1992 is hereby decreed to be dissolved.

 

2.     The petitioner is awarded two of the properties in Uganda. These are one five bedroom unit at Munyonyo and one bedroom unit at Kampala.

3.     The respondent is awarded all the properties in Uganda except the two awarded to the petitioner.

 

4.     The respondent is awarded the matrimonial home in which she lives now.

5.     The respondent is awarded house number 15B Fabian Street, Alajo.

 

6.     The respondent is awarded stores numbers 1 and 2, Fabian Street, Alajo.

7.     The respondent is awarded financial provision of Eighty Thousand Ghana Cedis (Ghc80,000.).

 

8.     The respondent is to continue using the RAV 4 model vehicle anytime she visits Uganda.

 

9.     The parties are to bear their own legal fees. See: pp 418Q – 419R [roa]

It cannot be over-emphasized that Judges, like any other human beings, are prone to mistakes. The judge has power to go right. Whilst he reserves to do right he equally has the power to go wrong. Where a judge goes wrong, there are rules of procedure by which such wrong could be addressed, notably by a judicial review; an appeal against the decision to a higher court and or by a motion by either party to the suit or the court on its own motion but with notice to the parties, to correct that error. Indeed, every court has that inherent jurisdiction to preserve its proceedings and it requires that the court brings clarity to its proceedings, judgments or orders. Therefore, where the court commits mistakes that are ordinary clerical errors or accidental slips so to speak, and as in the High Court where the practice is sanctioned by C.I 47, the presiding judge reserves that power to correct the error. That power conferred on the judge is provided for in Order 16 r 10 of CI 47 that stipulates:

“10. Clerical mistakes in judgments or orders or errors arising therein from any accidental slip or omission, may at any time be corrected by the court either on its own motion on notice to the parties or on an application without an appeal”.

That is known as “the principle under the slip rule”.

The principle enunciates that clerical mistakes and accidental omissions are the only instance an amendment will be allowed after judgment. See: Shiristar Container Transport Ltd v Ashanti Goldfields Corp. [1992] 1 GLR 566 @ 569. See also: Omaboe v Kwame [1978] GLR 122.

This court speaking through Apaloo CJ in Omaboe v Kwame (supra), gave three (3) broad bases in which the court may exercise its inherent jurisdiction to set aside or vary its own orders, namely:

i) if there was some clerical mistakes in a judgment or order;

 

ii) if there was some error in a judgment or order which arose from any accidental slip or omission, and

 

iii) if the meaning and intention of the court was not expressed in its judgment or order.

Thus, where any of these policy reasons prevails and is satisfactorily raised and illustrated, the courts are amenable to correcting those impugned errors or accidental slips. In actual practice, where the court sits and pronounces a judgment or makes an order that contain errors and the court’s attention was drawn to such errors while the court was still sitting, the judge reserves the power and the right to correct them whilst on the bench. Even where the presiding judge has risen from the bench into his chamber but has not closed from work yet, he may still correct such errors as the case may be since the court shall be deemed to still be in session. The rule does not however, apply where the changes sought to be made are not minor but substantial and is likely to utterly change the tone of the judgment or order. See: R v Mensah-Bonsu & ors; Exparte Attorney General (supra).

In the instant case, comparing both judgments that incidentally have the same date ie 24/05/2018, this court is left in no doubt that the trial court made some amendments to the 2nd and the 3rd consequential orders contained in the first judgment read in open court. However, the court made an additional consequential order in respect of a car ie RAV 4 model vehicle for use by the respondent anytime she visited Uganda. It is not quite clear on record, what triggered the amendments and at whose instance the application was made to the lower court for the amendments to be made and the time frame within which it was made after the initial judgment was read in open court. Although, we think the amendments sought to clear some seemingly ambiguities in the earlier 2nd and 3rd consequential orders, the introduction of another consequential order in the 2nd judgment made the entire process messy and in violation of Order 16 r 10 of CI 47. In the eyes of the law, it rendered the 2nd judgment, null and void as the introduction of the additional consequential order substantially changed the status quo ante.

Consequently, we set aside the 2nd judgment and shall go strictly by the 1st judgment so delivered in the open court.

As we did observe in the introductory part of this judgment, the main bone of contention in this appeal is whether in the face of the facts and the established evidence, the lower court properly exercised its power of property settlement in terms of S. 20(1) of the Matrimonial Causes Act, 1972 [Act 367]. In the light of this observation, we shall combine grounds 2, 3, 4, 6, and 9 of appeal as well the additional ground of appeal that the lower court erred in fact and in law in settling the matrimonial home on the respondent and address them simultaneously.

It is worth repeating, the consequential orders the lower court made as regards property settlement whereby the court settled all properties in Uganda on the respondent with the proviso that the petitioner was awarded 2 houses if he so desired. The lower court made a finding of fact that it was the petitioner who singlehandedly funded all the properties in Uganda.

Now, in addition to settling the properties in Uganda on the respondent, the lower court also settled the matrimonial home here in Accra as well as house number 15B Fabian Street, Alajo and stores numbers 1 and 2, Fabian Street, Alajo, all in Accra. The lower court had reasoned that the respondent has been living in Ghana since 2002. Therefore, it would not be fair to uproot her from Ghana to Uganda. The learned trial judge added that the children of the marriage [two in number] till they left for the United States were also living in Ghana and therefore one expected that they should also have a base here in Ghana each time they came on visit.

As a matter of law, Section 20 of the Matrimonial Causes Act, 1971 Act 367 regulates the property rights of spouses upon divorce, and it provides:

“20. Property settlement

 

(1)    The Court may order either party to the marriage to pay to the other party a sum of money or convey to the other party movable or immovable property as settlement of property rights or in lieu thereof or as part of financial provision that the Court thinks just and equitable.

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

 

In addition to the statutory provisions stated supra, Articles 22(2) & (3) and 33(5) of the 1992 Constitution have also influenced the decisions of the courts in recent times in property settlement. Insofar as it is relevant, we set out here below, Articles 22(2) & (3) that read:

“22 (2) Parliament shall, as soon as practicable after the coming into force of this Constitution, enact legislation regulating the property rights of spouses.

(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 the spouses upon

dissolution of the marriage.”

Previous position of the law on property settlement:

The position of the law has previously been that marriage or divorce did not confer a spouse a property that stands in the name of other spouse. Explaining the position of the law, the Court of Appeal speaking through Abban JA [as he then was] in the classical case, Achiampong v Achiampong [1982-83] GLR 1017, stated that divorce did not confer on a spouse any interest beneficial or otherwise in the property, movable or immovable, of the other spouse. The court [coram: Francois, Wiredu and Abban JJA] held that property is not ordered to be transferred to a spouse under S.20(1) of the Matrimonial Causes Act, 1971 [Act 367] simply because there is a divorce. Consequently, apart from agreement, direct or indirect, there ought to be substantial financial contribution from the party in whose name the property does not stand before it can be held that the party is a joint owner. That necessary requirement was sine qua non to confer the right of joint ownership.

The English case of Pettit v Pettit [1970] AC 777 the House of Lords had stated the principle that there must be evidence that establishes an agreement before it could be said that the spouse has acquired a beneficial interest in property that previously belonged to the other or has a monetary claim against the other.

 

 

Current position of the law on property settlement:

Common law is not cast in stone. One of its strength is that it moves with time. Justice Oliver Wendel Holmes in The Common Law Lectures 127 (1881) remarked that the law is constantly drawing lines. So, the law has since Achiampong v Achiampong (supra) developed.

Our [Ghana] Supreme Court has now developed the jurisprudence of equality principle that seeks to arrest the mischief or inequities, as it were, in the existing law that raised the bar of property settlement to “substantial financial contribution” from the other spouse in whose name the property did not stand. In espousing the jurisprudence of equality principle, the Supreme Court speaking through Dotse JSC reasoned in Mensah v Mensah [2012] 1 SCGLR 391 thus:

“................ Common sense and principles of general fundamental human rights would require that a person who was married to another, and had performed various household chores for the other partner like keeping dirty laundry generally clean, cooking and taking care of the partner’s catering needs as well as those of visitors, raising up of the children in a congenial atmosphere and generally supervising the home such that the other partner had a free hand to engage in economic activities, must not be discriminated against in the distribution of properties acquired during the marriage when the marriage was dissolved.”

Explaining further, the court noted that the wife’s contribution even as a housewife in performing the household chores, maintaining the house and creating a congenial atmosphere for the husband to build an economic empire, were enough to earn the wife an equal share in the marital properties, upon divorce.

Reading the cases, it does appear that the jurisprudence of equality principle takes its roots from an earlier case, Mensah v Mensah [1998-1999] SCGLR 350.

In Mensah v Mensah (supra) the Supreme Court speaking through Bamfo-Addo JSC in her lead judgment has held: “….. property jointly acquired during marriage would be- come joint property of the parties and such property should be shared equally on divorce, because the ordinary incidents of commerce had no application in marital relations between husband and wife who had jointly acquired property during marriage”.

 

Significantly, other cases such as Boafo v Boafo [2005-2006] SCGLR 705; Quartson v Quartson [2012] 2 SCGLR 1077; Arthur (No.1) v Arthur (No.1) [2013-2014] SCGLR 543 and Fynn v Fynn & Osei [2013-2014] 1 SCGLR 727, all decisions of the Supreme Court, have influenced in shaping and setting the perimeters for the determination of jointly- acquired marital properties and the criteria for the distribution of such properties.

The current position of the law, therefore, is that it was no longer essential for a spouse to prove a direct, pecuniary or substantial contribution in any form to the acquisition of marital property to qualify for a share. It was sufficient if the property was acquired during the subsistence of the marriage. However, when it comes to the quantum of proportion that has to be settled on the parties, it is reasonable for the parties to offer evidence as regards financial contribution each made so as to assist the court in its quest to apply fairness and equity in the matter. See: the dictum of Appau JSC in Adjei v Adjei (J4 of 2021) GHASC 5 (21 April 2021) that runs as follows:

“................... where such evidence [that the property in question is a marital property acquired in the subsistence of the marriage] exists, it is necessary that a spouse alleging such a contribution must render or offer it to quantify his/her share or portion in the property so acquired on the equity principle.” [emphasis under-scored]

 

We have carefully evaluated the evidence led on record in the instant appeal; the judgment of the lower court as well as submissions of both lawyers for the parties and we do uphold the submissions of learned Counsel for the petitioner that the lower court erred both in fact and on the law when it settled the matrimonial home on the respondent.

To begin with, there is overwhelming evidence that property in question was acquired in or about 1978, long before the parties got married in about 1991 or 1992. Indeed, the respondent in her own pleadings [answer to the petition] did admit that the matrimonial home and other properties in Ghana, were acquired before the parties settled in Ghana in 2002. See: p. 12 para.15 [roa].

Having said that, we also think that there is the lack of evidence to support the finding that the matrimonial home was treated as a joint property. There is that unchallenged evidence that some members of the petitioner’s family are living in the house. Therefore, if a house was purchased out of the husband’s earnings as in the instant case long before the petitioner contracted marriage with the respondent and the evidence is that some family members of the petition live in the matrimonial home, the whole beneficial interest in the house vested in the petitioner and that the respondent would have no interest in it in absence of express agreement. We are of the considered opinion that the very presence of family members of the petitioner in the disputed house negatives any express agreement of joint ownership of the property. That in effect, whittles down any presumption of the disputed property as a marital property to be settled on the respondent.

Consequently, we think the lower court erred when it settled the matrimonial home on the respondent. The only reason the lower court offered was that the respondent has lived in that property since 2002 when the parties relocated to Ghana upon the petitioner retiring from active service in the United Nations, and that it would be unfair if she was seen as uprooted from Ghana. The reason is clearly at variance with the settled principles of common law. We think the lower court erred when it settled the matrimonial home on the respondent.

As a general rule, property purchased by a spouse with his/her own money before marriage, belonged to that spouse to the exclusion of the other except where there was an express agreement that it was subsequently meant to be a joint property. See: Bentsi- Encill v Bentsi-Enchil [1976] 2 GLR 303.

The facts in Bentsi-Encill v Bentsi-Enchil (supra) showed that the petitioner owned the property before his marriage to the respondent. It was held that property purchased by a spouse with his own money belonged to that spouse to the exclusion of the other.

That leads us to discussing the settlement of the other properties.

As a matter of fact and from the available evidence, it cannot be put to any serious doubt the petitioner by the nature of the work he did, was a man of great substance. The unchallenged evidence is that before the petitioner got married to the respondent he had retired from the Ghana Air Force as an Army Officer but was working with the United Nations, World Food Programme as an International Public Servant. The parties first met in April 1989 in Uganda during the petitioner’s duty tour there; both lived in concubinage from 1989 and had a child in 1990 before the parties got traditionally married in 1991 and had the marriage blessed in church in 1992.

It was the case of the petitioner that by the nature of his work, he did not stay at one place and was moving from place to place; from Uganda to Kenya, to Pakistan etc. etc. By reason of not being stationary, he made the respondent to stop work to be able to look after the 2 children of the household and the respondent’s son she brought into the

marriage.

It was also the case of the petitioner that he acquired the following properties in Uganda whilst in active service with the United Nations but which the respondent registered all of them in her sole name and was collecting rents therefrom without accounting to him:

i) three (3) building/residential complexes; and

 

ii) four (4) bungalow-type of residences in Kampala and Fort Portal, Uganda. See: p. 3 [roa].

Although the respondent admitted in her answer [para. 16, pp 12-13 roa] that upon her marriage to the petitioner, the petitioner asked her to stop her job as a Hotel Manager and never worked again, she nevertheless claimed that all the Ugandan properties were her self-acquired. She also claimed she acquired some of the properties jointly acquired with her father and family members and was running a guest house and restaurant business.

Admittedly, all the Uganda properties stood and were registered in the name of the respondent and she was receiving rents/proceeds therefrom without accounting to the petitioner. Significantly, in answers to questions under cross-examination, the petitioner said he never insisted on the demand from his wife to account to him because the respondent was his wedded Christian wife. See: pp 62-63 [roa].

Having regard to the admission of the respondent that she never worked again upon being married to the petitioner, the lower court made a finding of fact that the respondent was unable to lead evidence to prove satisfactorily that proceeds from the guest house she claimed she acquired jointly with her father aided her in acquiring the Uganda properties the petitioner listed. The lower court held further that the respondent was unable to explain the source of the payments into her accounts. It was a matter of course, therefore, that the lower court concluded that it could not be ruled out that her source of wealth could have been from the petitioner. So, the court held the respondent held the said properties in trust for the petitioner.

From the available evidence led on record, it was not difficult to find it was the petitioner who singlehandedly acquired all the properties, both in Ghana and Uganda. At the risk of sounding repetitive, the respondent in her answer even admitted that some of the properties in Ghana namely, Tema property, Larteh properties, Ashalley Botwe house and the matrimonial home were acquired by the petitioner before the parties’ relocation to Ghana upon the petitioner’s retirement from the United Nations. See: p. 12 [roa].

In the circumstances, we think based on the law, the lower court did not exercise good judgment when it settled all the Uganda properties on the respondent with a limited proviso that if the petitioner wished he could take two (2). We also think it was also unfair and unjust and inequitable for the lower court to settle some other properties namely: the matrimonial home; 2 stores on the Fabian Street, Alajo and house number 15B Street, Alajo, on the respondent when the evidence showed that the petitioner singlehandedly acquired those properties in Ghana.

At the risk of sounding repetitive, the lower court reasoned that the respondent having lived in Ghana since 2002 should not be uprooted from Ghana. We think this is not a good or fair reason why those properties in Ghana ought to be settled on the respondent when the respondent admitted that she did not work again upon her marriage to the petitioner. Therefore, she never made any contribution towards the acquisition of the Ghanaian properties except as she said she accompanied the petitioner to buy building materials and had her name on tenancy agreements. After all, when the Casanova charter that bonded the parties together was broken and the marriage has ended in divorce, the parties are entitled to go their separate ways. The respondent cannot therefore stay in the same compound with the petitioner.

The respondent never seriously rebutted the petitioner’s evidence that there are fifteen (15) housing units in four (4) locations in Uganda. In his petition, the petitioner gave the number of project in Uganda as three (3) building/residential complexes and four (4) bungalow type of residences. According to the petitioner, the first complex is made up of three (3) housing units – one unit being three (3) bedrooms and the other two (2) being two (2) bedrooms each. The second complex is made up of four (4) bungalows each having two (2) bedrooms plus one caretaker’s bungalow. The second complex is made up of five (5) housing units. The third complex is in Fort Portal made up of four (4) housing units – one of them is five (5) bedrooms. The second one is three bedrooms and the remaining two have a bedroom each. The next complex is in a place called Munyonyo comprising of three (3) housing units. The main house is five (5) bedrooms while the rest have single bedrooms. The source of funding of the projects was for fat salary of US$9000.00 a month at the time because he worked only in war zones. See: pp 45 – 46 [roa]

Significantly, the petitioner was never cross-examined on that material evidence as to the number of houses that were built in Uganda. The settled position of the law is that where a party has given evidence on a material fact and was not cross-examined upon it, he needed not call further evidence of that fact. See: Fori v Ayirebi [1966] GLR SC.

In settling the marital properties in the instant case, we are guided by statement of law Date-Bah JSC espoused in Boafo v Boafo (supra) that runs as follows: “............. the “equitable distribution” as stipulated in the 1992 Constitution meant in essence what is just, reasonable and accorded with common sense and fair play and that equitable distribution is a question of fact, dependent on the particular circumstances of each case.”

As a matter of law, the presumption of joint acquisition is rebuttable upon evidence to the contrary. In the words of Appau JSC as stated in Adjei v Adjei (supra): “What this means, in effect is that, it is not every property acquired single-handedly by any of the spouses during the subsistence of a marriage that can be termed as a ‘jointly-acquired’ property to be distributed at all cost on this equality is equity principle. Rather, it is property that has been shown from the evidence adduced during the trial, to have been jointly acquired, irrespective of whether or not there was direct, pecuniary or substantial contribution from both spouses in the acquisition. The operative term or phrase is: ‘property jointly acquired during the subsistence of the marriage’. So where a spouse is able to lead evidence in rebuttal or to the contrary, as was the case in Fynn v Fynn (supra), the presumption theory of joint acquisition collapses.” [emphasis underscored]

From the available evidence, we uphold the finding of fact of the lower court that all the properties that were acquired during the subsistence of the parties were solely funded by the petitioner. We find that it was only the Christian Guest House and Restaurant that existed before the marriage which the respondent claimed she jointly acquired with her father. See: Exhibit 28 p.571 [roa].

Now, given all the circumstances of the case and the finding of the lower court that it was the petitioner who funded the acquisition of all the properties without any financial support from the respondent; that the respondent has since the acquisition of the Ugandan properties kept all proceeds/rents therefrom to herself without accounting to the appellant, we think that it shall be fair, just and equitable and in conformity with “the equitable distribution principle” to settle the Ghana properties on the petitioner whilst the Uganda properties were settled on the respondent, which we hereby do.

We deem settling fifteen (15) housing units in four (4) locations in Uganda on the respondent is fair, just and equitable in the peculiar circumstances of the case.

We do, therefore, allow the appeal as canvassed in grounds 2, 3, 4, 6. 9 and the additional ground of appeal, namely that the court erred in fact and in law on the property settlement.

We now proceed to address the 7th ground of appeal.

The honourable trial judge erred in fact and in law by not pronouncing on the issue of fraud and deceit by the respondent against the petitioner.

Appearing on pp 8-10 [roa] are submissions of learned Counsel for the petitioner that the petitioner unaware that the respondent had registered the Ugandan properties in her sole name. The petitioner’s belief was that he would be identified with those assets but he only became aware of it sometime in 2011 and that was tantamount to fraud, Counsel insisted. His argument from the fact that although the properties were funded by the petitioner but the respondent appropriated all proceeds therefrom to herself she still vehemently denied any interest the petitioner has/had in them.

But learned Counsel for the respondent has advocated that the petitioner never pleaded fraud and nor gave particulars of the said fraud and deceit. Furthermore, the petitioner failed to lead any evidence of fraud and deceit during the trial, Counsel insisted.

The law relating to fraud and its proof in civil litigation is already overburdened with fine distinctions and we do not intend to reinvent the wheels here. Suffice is to say that on general principle, fraud vitiates everything to the extent that even the solemn judgments of superior courts may be called into question as having been obtained through fraud.

It is trite knowledge that fraud vitiates everything including even solemn judgments of superior courts. The Supreme Court speaking through Acquah JSC (as he then was) stated the principle in Frimpong v Nyarko [1998-99] 734 @ 743 that fraud vitiates everything and that when a court of law in the course of the proceedings has cause to believe that fraud has been committed, it is duty-bound to quash whatever has been done in the strength of that. By rule of practice and procedure, fraud has to be pleaded, particularized and proved strictly. Where fraud and duress were pleaded, particulars must be given. Consequently, where no particulars were given, it must be taken that either no fraud or duress existed or the averment amounted to a mere denial. See: Darbah v Ampah [1989-90] 1 GLR 598 C/A.

Thus, on general principle, the court is not to find fraud unless particulars thereof has been distinctly pleaded and proved strictly, for a finding of fraud is not to be made without clear and cogent evidence upon the subject. See: Thomson v Eastwood [1874-77] 2 AC 215 HL @ p.233per Lord Cairns L.C.

Notwithstanding the rules on pleadings on fraud, where there was clear evidence of fraud on the face of the record, the court would not ignore it.

See: Apeah & anr v Asamoah [2003-2004] SCGLR 226.

In Apeah & anr v Asamoah (supra) the trial High Court made a finding of fact that the judgment, Exhibit 1 had been obtained by fraud. The Court of Appeal affirmed that finding. The Supreme Court therefore reiterated the rule that regardless that fraud was not pleaded in the case, once there was evidence on record that showed that the judgment was procured fraudulently, it was null and void and of no effect.

What do we find in the instant appeal?

It is worth noticing that the petitioner never pleaded fraud. The question of fraud only came up for the first time in an answer to a question under cross-examination. In the lower court’s proceedings of 23/02/2015 the following is recorded:

“Q. I am putting it to you that you cannot show any documentary proof on the investment of the Uganda properties because

you did not make any investments there.

 

A. I trusted the respondent as a Christian and a wedded wife. I

 

did not expect her to do any fraudulent deals with my properties.

 

Q. I am putting it to you that it is only on the issuance of this petition and this trial that you are claiming that you are using these Ugandan properties to settle her.

A.    I was not aware of this and if she has done so, she has done so fraudulently.

Q. I am putting it to you that as a responsible Christian husband, you would have ensured that your name was on the documentation in respect of the Ugandan properties if you claim you invested so much.

A. My Christian belief tells me that I should trust my wife, the respondent and therefore I trusted her fully in all these matters that all our investments would be in our joint names.”

Indeed, the petitioner admitted under cross-examination that he did not plead fraud but that it was during his evidence that he raised it for the first time and under cross- examination. See: p 82 [roa].

We think that the answers as given under cross-examination are insufficient to come within the scope of principle in Apeah & anr v Asamoah (supra) and so emphasized by Atuguba JSC in Amuzu v Oklikah [1998-1999] SCGLR 141 that even where fraud was not distinctly pleaded as the practice required but evidence was led on it without objection, the court cannot ignore it, the myth surrounding the pleading of fraud notwithstanding.

We do, therefore, dismiss this ground of appeal.

 

8th ground of appeal: Financial provision of Ghc80,000.00 being excessive.

 

Per S. 20(1) of Act 367, the court has the power to make an order directed at either party to the marriage to pay as settlement such sum of money as the court thinks just and equitable as financial provision. In making such award the paramount consideration is the financial capacity/status of the party against whom the order is directed.

In the instant case, from all indications it is reasonable to say that the petitioner is quite capable of paying the financial provision order the lower court made. We think as a retired Army Officer before working as an International Public Servant with the United Nations the quantum of financial provision imposed by the lower court is fair and reasonable and we do not intend to disturb it. In any event, the evidence is that the petitioner has since settled the financial provision.

We now proceed to discuss the 1st ground of appeal: Judgment is against the weight of evidence.

The petitioner contends that the judgment of the lower court is against the weight of evidence.

The case, Owusu-Domena v Amoah [2015-2016] 1 SCGLR 790 is the legal authority to saying that the sole ground of appeal that the judgment is against the weight of evidence throws up the case for a fresh consideration of all the facts and law. In that respect, the appellate court just like the trial court, has the duty to evaluate and assess the evidence led at the trial in order to determine in whole, in whose favour the balance of probabilities tilts. It has been submitted on behalf of the petitioner that it was the petitioner who financed the acquisition of several housing units in four locations in Uganda through the funds he earned in the employ of the United Nations when he was stationed in Uganda, Kenya, Ethiopia, South Sudan and Afghanistan. In the opinion of Counsel for the petitioner, it was against the weight of evidence that the lower court settled those properties on the respondent.

Additionally, Counsel for the petitioner has argued that the award of the matrimonial home on the respondent was against the weight of evidence because the evidence put before the lower court was that that property was acquired in 1978, several years before he met the respondent in Uganda.

We think we have sufficiently addressed and dealt with the property settlement and the quantum of properties that shall go to each party. Therefore, we do not want to rehash it.

On principle, the lower court has the exclusive right to make findings of fact and we think that in the instant case the lower court made the correct findings of fact that the acquisition of the Ugandan properties was solely by the petitioner. It is a well-established principle of the Common Law jurisdiction that it is the trial court that has the exclusive right to make primary findings of fact; this is because it is that court that observes the demeanour of witnesses and in a position to determine the truthfulness of their testimonies. Thus, where the findings are supportable by the evidence the appellate court ought to hasten slowly and exercise great caution in setting aside such findings except where certain specific flaws occur in the findings of the trial court. See: Agrenim-Boateng v Ofori & Yeboah [2010] SCGLR 861 @ 863. See also: Fofie v Zanyo [1992] 2GLR 475.

Where we have faulted the lower court, we have clearly given the reasons why we hold that view as indicated elsewhere in this judgment.

The appeal succeeds in part. We allow the appeal in respect of the award of the matrimonial home and other house and the 2 stores in Ghana and hereby set them aside. We settle all the Uganda properties on the respondent whilst we settle the Ghana properties on the petitioner. We affirm the award of the financial provision.

The parties shall bear their respective costs.

SGD

P. BRIGHT MENSAH

(JUSTICE OF APPEAL)

 

I AGREE  

SGD                                                      

DENNIS ADJEI

(JUSTICE OF APPEAL)

 

I ALSO AGREE

SGD

GEORGE KOOMSON

(JUSTICE OF APPEAL)

 

 

 

 

 

COUNSEL

EMMANUEL OWUSU BANAH FOR THE PETITIONER/APPELLANT

ANDREWS TETTEH FOR THE DEFENDANT/RESPONDENT