VIDA YEBOAH VRS. DR. STEPHEN YEBOAH & MERCY AGYEIWAA

JUDGMENT

ASARE-BOTWE (MRS.) JA

This is an Interlocutory Appeal from a decision of the High Court, Agona Swedru dated the 1st day of July, 2021 granting an application for Joinder brought by Applicant/Respondent, Mercy Agyeiwaa.The Notice of Interlocutory Appeal was filed on the 15th of July, 2023.

The Grounds of Appeal are as follows;

a.     The Learned Trial Judge erred in law when she ordered that the Applicant/Respondent, Mercy Agyeiwaa should be joined to the suit as a Co-Respondent.

PARTICULARS OF ERROR

i. That the Trial Judge erred when she held that Mercy Agyeiwaa was an alleged adulterer when the said Mercy Agyeiwaa had denied that assertion in her affidavit in support.

ii. That the Trial Judge erred when she held that Mercy Agyeiwaa was to be added to the divorce petition as an alleged adulterer when she had declared herself to be 2nd wife and not an adulterer.

b. The Judgment is against the weight of evidence

c. Additional grounds to filed [sic] upon receipt of the record of appeal. (Please see pages 360 to 361 of the ROA)

The Petitioner/ Appellant is seeking an order setting aside the ruling of the lower Court for the matrimonial cause to be determined between the Petitioner, Vida Yeboah and the Respondent, Dr. Stephen.

THE BACKGROUND OF THE CASE

It is important to set out and assess the tortious and somewhat acrimonious nature of the substantive Matrimonial Cause before the Court below since it has a bearing on what the outcome of this Appeal ought to be. This case commenced with the issuance of a Petition at the High Court on the 26th of April, 2024 in which Petitioner/Appellant gave the antecedents of the marriage between her and the Respondent/Respondent under customary law in 1990 after which she states that the marriage was converted into an ordinance marriage on the 11th of January, 2014. The Petitioner/Appellant sets out what she says is a long history of marriage and working together as a result of which they have acquired a long list of assets which number about eighty (80) and several bank accounts. The Petitioner/Appellant states that the marriage has produced six (6) children, some of whom are already adults. The Petitioner/Appellant says that the marriage has broken down beyond reconciliation due, in part to adultery on the part of the Respondent/Respondent with the Applicant/Respondent, Mercy Agyeiwaa and other unreasonable behavior which have been copiously particularised in the Petition but will not bear repeating in this Judgment. The Respondent/Respondent has duly filed an answer to the Petition, but seems to be conflicted. He states that the marriage has not broken beyond reconciliation (paragraph 2 of the Answer) but cites adultery and other stated misconduct on the part of the Petitioner, and then, the Respondent/Respondent endorses paragraph 45(a) of the petition, effectively agreeing that the Court go ahead to dissolve the marriage between the parties.

(Please see pages 33 to 38 of the ROA)

In the course of the proceedings, there were several applications, including a previous application for joinder brought for and on behalf of Lucky Yeb Group of Companies as the 2nd Respondent. That application was dismissed per a Ruling dated 2nd December, 2019. The reasons given for that decision were as follows;

a) The Applicant has its own legal persona and separate from its members or directors.

b) The sole issue for determination in divorce petition is whether or not the marriage had broken down beyond reconciliation and later the Court would subsequently consider and [sic] ancillary issues which includes the properties listed in the suit.

c) The Applicant can be invited as witness by either party or the Court to speak to the issue of the properties in this suit.

d) The Applicant is therefore not a necessary party to be joined for section 12 of the Matrimonial Causes Act, 1971 (Act 367) and Order 65 rule 7 of C.I. 47 enjoins the joinder of an adulterer.

(Please see pages 182 to 183 of the ROA)

That decision was appealed against, with other ancillary applications for Stay of Proceedings and Stay of Execution also filed. The Court of Appeal, on the 2nd of December, 2019 dismissed the Appeal citing the reason that “no useful purpose would be served by joining the Applicant/Appellant therein (Lucky Yeb Group of Companies) to the suit. There have also been applications for Interim Preservation of assets, etc.

The Petitioner/Appellant’s lawyer sought to set down the matter for trial per a process filed on 26th May, 2021. The Registrar issued a Certificate in accordance with Order 65 rule 21 (1) on the same day and set down the cause to be heard on the 10th of June, 2021. On the 7th of June, Mercy Agyeiwaa (the Applicant/Respondent) brought an application to be joined as 2nd Respondent. The return date for that application, whose grant is now impugned, was the 1st of July, 2021.

THE GROUNDS FOR THE APPLICATION IN THE COURT BELOW

The Applicant/Respondent’s reasons for seeking to be joined to the instant suit in order to effectively and completely determine the matters in dispute as 2nd Respondent are that;

a)     Granted that she is in an adulterous relationship with the Respondent, the law permits that she be joined as a party to the proceedings.

b)    That she married the Respondent as his 2nd wife to the knowledge of the Petitioner on the 15th of July, 2012 and has been openly cohabiting with him.

c)     That if there is a claimed ordinance marriage ceremony dated 30th January, 2014, same is a nullity since she was already married to the Respondent / Respondent under customary law as at that date.

d)    That the Petitioner is not entitled to her claimed 50% share of properties listed in the petition since through her own enterprise, she has also contributed whilst the Petitioner has done nothing.

In opposing the Application for joinder, the Respondent/Appellant’s case, very simply was that from the tenure of paragraphs 9 and 10 of the affidavit in support, (which relate to the matter of contribution to marital property), the Applicant had applied to be joined due to her alleged interest in the properties, and as such was not a pertinent party to determine the necessary question of whether or not the marriage between the Petitioner/Appellant and the Respondent/Respondent had broken down beyond reconciliation.The application in the court below was heard and granted on the 1st of July in the following terms;

“Having heard the submission of both Counsel, I am of the view that the said Applicant Mercy Agyeiwaa should be joined to the suit. Mercy Agyeiwaa’s name had been mentioned in the petition filed on the 26/4/2019 under the particulars of adultery filed by the Petitioner/Respondent. Under Order 65(7) of C.I. 47 and also Section 12 of the Matrimonial Causes Act, 1971 (Act 367) it had indicated that the person mentioned in the petition as an adulterer may be made Co-Respondent in the proceedings. Suit will take its normal course. Cost of GH¢1000.00 against the Applicant for the Petitioner.”

(Please see page 359 of the ROA)

ON APPEALS GENERALLY AND THE DUTY OF THIS COURT:

The duty of this court with regard to the instant appeal was clearly stated in the case of BAKANA LTD. v. OSEI [2014] 77 G.M.J 76 (CA). The court held that since an appeal is by way of rehearing, it is for the Appellate court to comprehensively review the whole case by analyzing the entire record of appeal, taking into account the testimonies and all documentary evidence adduced at the trial, as are relevant, before arriving at a decision, so as to satisfy itself that on a preponderance of probabilities, the judgment of the trial judge is reasonably or amply supported by the evidence on record or was not erroneous.

The Appellate Court is also entitled to make up its own mind on the facts and to draw inferences from them to the same extent as the trial Court. See PRAKA v. KETEWA (1964) GLR 423 at 426, SC. In BONNEY v. BONNEY (1992-93) Part II GBR 779 at 787, Aikins JSC however cautioned that, despite an appeal being a rehearing, entitling the Appellate Court to make up its own mind on the facts and draw inferences from them, under no circumstances should an Appellate Court interfere with the findings of facts made by the trial Court except where they are clearly shown to be wrong, or that the Court did not take all the circumstances and evidence into account, or had misapprehended certain pieces of evidence or drawn wrong inferences without any evidence to support them, or has not taken proper advantage of having seen and heard the witnesses.

See also;

SIMMONDS V TRASSACO ESTATE DEVELOPMENT CO. (2010-2012) 1 GLR 293 CA,

ACHORO v. AKANFELA (1996-97) SCGLR 209 at holding (2) in the headnotes; and

NORTEY (NO.2) v. AFRICAN INSTITUTE OF JOURNALISM    AND COMMUNICATION &OTHERS (NO.2) [2013-2014] 1 SCGLR 703

THE LAW AND THIS CASE

The legal framework within which this application ought to be determined, in addition to case law is in the purview of Section 12 of the Matrimonial Causes Act, 1971(Act 367) and Order 65 rule 7 of the High Court (Civil Procedure) Rules, 2004 (C.I. 47). The said legislations provide as follows;

Section 12 of Act 367;

Alleged adulterer may be joined on a petition for divorce in which adultery is alleged, the person alleged to have committed adultery with the party to the marriage may be, but need not be, made a party to the proceedings.

Order 65 Rule 7 of C.I.47—

Co-respondent and intervener

(1) Where an alleged adulterer is named in the petition for divorce, that person may be made a co-respondent in the proceedings, and where he or she is not made a co-respondent that person shall be entitled to appear and intervene in the proceedings.

(2)  Unless the Court otherwise directs, a party intervening shall join in the proceedings at the stage which the proceedings have reached at the time he or she appears and the title of the proceedings shall thereupon be amended to include his or her name.

From the above provisions, there is no doubt that joining an alleged adulterer to divorce proceedings is not unknown. What circumstances would merit such a joinder and if the exigencies in this case, in the light of the law, the pleadings and the affidavit evidence merited same is what would be determined in this appeal.

This matter boils down to an assessment of the omnibus ground (b), regarding whether the Judgment is against the weight of evidence or not. That ground demands a look at the entire evidence on record to determine whether the conclusion of the Judge in the Court below was justified. Once that ground is dealt with, all others, which are ancillary to that will be resolved.

In FATAL v. WOLLEY [2013-2014] 2 SCGLR 1070 (SC) Wood CJ stated at page 1076 that;

“…Admittedly, it is indeed sound basic learning that courts are not tied down to only the issues agreed upon by the parties at pre-trial. Thus, if in the course of the hearing, an issue is found to be irrelevant, moot or even not germane to the action under trial, there is no duty cast on the court to receive evidence and adjudicate on it. The converse is equally true. If a crucial issue is left out, but emanates at trial from either the pleadings or the evidence, the court cannot refuse to address it on the grounds that it is not included in the agreed issues.

What this Court is to do, in determining whether or not the Judgment was against the weight of the evidence before the Court was discussed in OTOO AND ANOTHER v. DWAMENA [2018-2019] 1 GLR 23  in which the learned Pwamang JSC noted at page 28 as follows: “In this final appeal by the first Defendant, the sole ground of appeal is that the judgment is against the weight of the evidence. This ground of appeal is an invitation to the Court to comb through the record that was placed before the lower Court and decide for ourselves whether, having regard to the evidence and the law relevant for a determination of the case, the lower Court was right in its findings and conclusions.”

In OLIVIA ANIM v. WILLIAM DZANDZI (Unreported) Civil Appeal No. J4/10/2018 dated 6th June 2019, the Supreme Court held that: “Where an appeal is based on the ground that the judgment is against the weight of evidence, the Appellant implies that there were certain pieces of evidence on record which if applied in his favour could have changed the decision in his favour or pieces of evidence were wrongly applied against him. The onus is on such an Appellant to clearly and properly demonstrate to the appellate Court the lapses in the judgment being appealed against.”

The approach of this Judgment will be to assess that omnibus ground after which any others will be dealt with if deemed necessary.

GROUND (B) : THE JUDGMENT IS AGAINST THE WEIGHT OF EVIDENCE

Under this head, this Court is expected to determine whether the grant of the application to join Mercy Agyeiwaa was merited in the light of the affidavit evidence before the Court. The grant of an application for joinder is, without doubt one in the discretion of the Judge. In considering whether or not to grant the application, the court has to determine whether it is in the interest of justice to do so. Matters to be considered further to the interest of justice include whether the joinder will help determine the issues between the parties conclusively, to prevent a multiplicity of suits and to prevent undue delay in the resolution of the suit.

Thus, in the decision of the Supreme Court in IN RE PRESIDENTIAL ELECTION PETITION; AKUFO-ADDO, BAWUMIA & OBETSEBI- LAMPTEY (No1) v. MAHAMA & ELECTORAL COMMISSION (NATIONAL DEMOCRATIC CONGRESS; APPLICANT) (No 1), SC [2013]SCGLR 1(Special Edition), it was held that the overriding principle in granting an order of joinder of a person as a party to an action in addition to or in substitution of any other party, was that all the necessary and proper parties should be put before the court so as to ensure that all matters in dispute might be effectively and completely adjudicated upon. It was held per R. C Owusu JSC at pages 33-34 that “If the first respondent, ie the first interested party in the instant application, contested the election on the ticket of the applicant NDC, then…..the applicant is directly affected in its legal rights or in its pocket, in that it would be bound to foot the bill by the determination of the petition.

In the case of SAM (No 1) v. ATTORNEY- [2000] SCGLR 102, it was held per Ampiah JSC at page 104;

“Generally speaking, the court will make all such changes in respect of parties as may be necessary to enable an effectual adjudication to be made concerning all matters in dispute. In other words, the court may add all persons whose presence before the court is necessary in order to enable it effectually and completely to adjudicate upon and settle all the questions involved in the cause or matter before it. The purpose of joinder, therefore, is to enable all matters in controversy to be completely and effectually determined once and for all. But this would depend upon the issue before the court, ie the nature of the claim.

(See also AMPRATWUM MANUFACTURING CO. LTD. v. DIVESTITURE IMPLEMENTATION COMMITTEE [2009] SCGLR 692. (Emphases ours)

What can be gathered from all the above authorities put together is that there must be evidence on the pleadings and/or the affidavit evidence before the court, showing that there is a nexus between the Applicant (for Joinder) and the Respondents and also that the proposed parties to the action would be the ones necessary to effectually and completely determine the issue(s) before the court. Simply put, the Applicant had to show that;

·        Her claim is relevant, essential or falls within the matters in issue in this case, and

·        That she is a necessary party, to be affected by the outcome of this case and/ or

·        That joining this action would enable the court to and completely adjudicate upon and settle all the questions involved in the cause or matter before it.

I have in this Ruling set out in sum the grounds which founded Mercy Agyeiwaa’s application for joinder. The question is whether the grounds and her presence are relevant to the basic question and the sole legal ground to be determined in an action for divorce, which is whether the marriage has broken down beyond reconciliation. (Please see Section 1(2) of Act 367). All other matters, including those on custody of children and property distribution, are ancillary to the question of whether or not the marriage has broken down beyond reconciliation. After all, if the court finds that the marriage has not broken down beyond reconciliation, there will be no call to deal with custody of children or distribution of property.

Section 2(1) of Act 367 sets out the indices of a breakdown of the marital relationship beyond reconciliation viz;

2.Proof of breakdown of marriage

(1) For the purpose of showing that the marriage has broken down beyond reconciliation the petitioner shall satisfy the Court of one or more of the following facts:

(a)  that the respondent has committed adultery and that by reason of the adultery the petitioner finds it intolerable to live with the respondent;

(b) that the respondent has behaved in a way that the petitioner cannot reasonably be expected to live with the respondent;

(c)  that the respondent has deserted the petitioner for a continuous period of at least two years immediately preceding the presentation of the petition;

(d) that the parties to the marriage have not lived as husband and wife for a continuous period of at least two years immediately preceding the presentation of the petition and the respondent consents to the grant of a decree of divorce, provided that the consent shall not be unreasonably withheld, and where the Court is satisfied that it has been so withheld, the Court may grant a petition for divorce under this paragraph despite the refusal;

(e) that the parties to the marriage have not lived as husband and wife for a continuous period of at least five years immediately preceding the presentation of the petition; or

(f)   that the parties to the marriage have, after diligent effort, been unable to reconcile their differences.

A close study of the matters raised in the affidavit in support of the application for joinder, as well as the pleadings filed by the parties to the divorce, will reveal that it did not tackle the matter of whether or not the marriage has broken down beyond reconciliation and that the Applicant/Respondent herein had to be joined for same to be settled. What we see raised are issues relating to the nature of the marriage celebrated between the Petitioner/Appellant and her husband, the Respondent/Respondent, whether the marriage under the Ordinance celebrated between them is valid, (since the Applicant insists that she is a wife who was already married and not a concubine), and whether the Petitioner’s claim to a half share of the marital assets is valid. The affidavit does nothing to support the view that the Applicant/Respondent, Mercy Agyeiwaa is needed to facilitate the court’s duty. The bottom-line question which was to be determined by the Court below, and this Court in the instant appeal, looking at the processes filed, is whether Mercy Agyeiwaa has to be joined before the Court can make a determination, one way or the other, of the question of whether or not the marriage between the Petitioner/Appellant and the Respondent/Respondent has broken down beyond reconciliation. The answer, very obviously, looking at the proof which will have to be offered in the light of section 2(1) of Act 367, is a No!.

Joining the Applicant/Respondent, Mercy Agyeiwaa, whatever the nature of the marriage between the parties to the divorce, and whatever the relationship between Mercy Agyeiwaa and the Respondent/Respondent will be diversionary and will only murky the waters. She has no intention, from the affidavit she filed, to put in a word on whether or not the parties have committed adultery with other people (because from the processes, Mercy Agyeiwaa may not be the only alleged outsider), what ought to be done with the children and other matters regarding how the parties started. The Application in the light of the law and the affidavit evidence before the Court below ought not to have been granted. The appeal will therefore succeed on ground (b).

OTHER GROUNDS OF APPEAL:

In assessing and dealing with the second ground of appeal, it is quite clear that all the other grounds have been covered, thereby making it unnecessary to set out the other grounds of appeal and deal with them individually. On the record, no additional grounds of appeal was filed.

After having thoroughly considered this appeal, we find same to be meritorious and it is accordingly upheld.

The appeal succeeds in its entirety.

The Order for Joinder in respect of the Applicant/Respondent, Mercy Agyeiwaa, granted on the 1st day of July, 2021, is hereby set aside for the divorce proceedings to take its normal cause.

Costs of GH¢20,000 in favour of the Petitioner/Appellant against the Appellant/Respondent.

AFIA SERWAH ASARE-BOTWE (MRS.)

(JUSTICE OF APPEAL)

Poku-Acheampong, J. A               I agree

ALEX POKU-ACHEAMPONG

(JUSTICE OF APPEAL)

Oppong, J. A I also agree

STEPHEN OPPONG

(JUSTICE OF APPEAL)

COUNSEL:

CHARLES QUANSAH FOR PETITIONER/APPELLANT

ISAAC AGGREY FRYNN FOR RESPONDENT/RESPONDENT

KWEKU MENSAH SIMPSON FOR APPLICANT/RESPONDENT