CHARLES ADAMU FRIMPONG VRS. MARGARET ADDO

JUDGMENT

MERLEY A. WOOD (MRS), J.A.

 

In this appeal against the judgment of the Circuit Court, Accra, delivered on 21st June 2018, the Petitioner/Appellant seeks the setting aside of the aforesaid judgment.

The matters that have given rise to the instant appeal are as follows:

The Petitioner/Appellant (hereafter referred to alternately as the Petitioner or the Appellant), brought an action for the Court to annul the marriage celebrated between himself and the Respondent on the 29th September 2012.In his petition, the husband Petitioner alleged that he married Ewura Ama Baiden under the Ordinance on 29th April 2004 at the Accra Metropolitan Assembly. He, a driver who is ordinarily resident in London, then subsequently fell in love with the Respondent in 2011 and married her customarily on 22nd January 2012 and same was converted into an Ordinance marriage on 29th September 2012 at the Accra Metropolitan Assembly despite being married to Ewura Ama Baiden. After the marriage, the parties cohabited at Sowutuom Chop Bar in Accra before moving to Ablekuma NIC, Accra. There is one child of the said marriage.

He alleged that he provided all the necessaries of life for the Respondent and the child of the marriage, that he bought a house at Ablekuma NIC with proceeds of goods sent by his first wife and moved the Respondent and the child into the said house. Since he is on retirement, he proposed to the Respondent to rent out the house and give some of the proceeds to her to start a trade but she refused to move so that the house would be sold and rather lodged a complaint at the Ablekuma Police Station that he wanted to move her out. Furthermore, he averred that the Respondent and her mother after selling the items sent down by his first wife, spent the money. He also alleged that the Respondent’s brother whom he bought a car for, sold same and kept the proceeds while his father-in- law for whom he also bought a car only paid back One Thousand Ghana Cedis (GHȼ1,000). It is his case that he has not had any sexual intercourse with the Respondent since the birth of their child and that he still lives with his lawful wife in London.

The Respondent on her part denied all the material allegations of the Petitioner in her Answer and Cross Petition. She alleges that she was oblivious of the existence of the Petitioner’s first marriage, that the Respondent has refused to maintain the child of the marriage since 2017, that she commenced divorce proceedings against him in suit no DM/0286/2016 but same could not be served because of the difficulty in ascertaining his address having severed all communications with her. She alleged that the Petitioner fraudulently misrepresented to her before and during the marriage that he was single and that she and her family members consented to the marriage relying on his misrepresentations and had a child with him and they lived together as husband and wife. The Respondent averred that the Petitioner acquired the matrimonial home for them to live in and so when he forcibly told her to move into rented premises for the said home to be sold and she resisted, he lodged a complaint at the Police Station that she had taken over his house. She contended that when she went to check on the rented premises, the landlady informed her that same had been rented for only a year out of which four months had expired. She averred that the Petitioner asked her brother to sell the car and give the proceeds to her to use in constructing a shop at the frontage of their matrimonial home and further that her father paid for the car in full after the Petitioner lodged a complaint at the Obogu Police Station. She alleged that the Petitioner has become impotent and cross petitioned for the following reliefs:

i.                   That the marriage be dissolved.

ii.                 Damages for fraud.

iii.               General damages.

iv.               Compensation and lump sum financial settlement of GHȼ50,000.00.

v.                 Maintenance of the issue of the marriage including payment of the school fees and continuous stay in the matrimonial home. Payment of medical bills, feeding and clothing.

The Petitioner filed a reply in which he denied all the allegations of the Respondent. He alleged that the Respondent was not bothered when he told her that he was married to another woman in the United Kingdom and therefore there was no misrepresentation to her, that even though the Respondent got pregnant whilst they were in an adulterous relationship, he decided to marry her because he is a responsible man who respects custom. He further alleged that the Respondent could have contacted him in the United Kingdom because she knew his phone number there or could further have gone to his family house to ascertain his address. It is his further averment that the Respondent who was in communication with his first wife would sometimes call to insult her when they started having misunderstandings.

The Petitioner further contended that he bought the house for himself as a dwelling place for his visits to Ghana; that the Respondent brought her siblings to occupy all six bedrooms without any prior notice to him and that he is denied access to the house. It is his case that in view of the fact that the house has been so misused and run down and it needs urgent and extensive repairs, he proposed to her to move into rented accommodation for the repair work to be carried out before bringing her back. He averred that he intended to renew the rent should the need arise. He denied the allegations regarding his brother-in-law and father in law. He further avers that owing to his retirement, he does not have the financial means to compensate the Respondent with the stated amount and that he will not render the child homeless but will continue to maintain her.

In proof of his case, the Petitioner relied on his witness statement as his evidence-in-chief and tendered Exhibit A which is the marriage certificate dated 29th April 2004 between himself and Ewura Ama Baiden. The Respondent who also relied on her witness statement as her evidence-in-chief tendered Exhibit 1 which are photocopies of photographs of the customary marriage; Exhibit 2 being the birth certificate of the child and Exhibit 3 being a contract of sale and declaration of property between Georgina Danso and the Petitioner of House number 102, Ablekuma, NIC.

After a full trial in which the parties testified on their own behalf without calling witnesses, the learned trial judge, annulled the marriage, granted custody of the child to the Respondent, awarded the Respondent fifty per cent of the value of the matrimonial home and an amount of GHȼ50,000 as compensation. The Petitioner was also ordered to pay the school fees and hospital bills of the child and to pay a monthly maintenance of GHȼ400,00.

Aggrieved by the judgment of the court, the Petitioner/Appellant has appealed to this Court on the following grounds as per the Notice of Appeal filed on 7th September, 2018 and an Amended Notice of Appeal filed on 9th October 2018:

a.      That the judgment is against the weight of evidence on record.

b.     Having made a finding that the marriage between the Petitioner and the Respondent is null and void, the Learned Trial Judge erred in justifying the marriage of the Parties because of the alleged reprehensible conduct of the Petitioner/Appellant.

c.      When the Learned Trial Judge had found that the marriage between the Parties is null and void, meaning there is no marriage between the Petitioner and the Respondent, the Learned Trial Judge should have held that there was no wife nor a matrimonial home for the rule in Mensah v Mensah to apply.

d.     When the Learned Trial Judge had found that the Petitioner had a subsisting marriage under the Ordinance, the Learned Trial Judge should have found that the Respondent had been reckless, in marrying the Petitioner, on the mere verbal information from the Petitioner and his family, that the Petitioner was a divorcee, without looking for a divorce certificate from a court or competent jurisdiction. The Trial Judge therefore erred in treating the Respondent as a wife who is qualified for matrimonial benefits.

e.      The Learned Trial Judge erred in making the financial order against the Petitioner a retiree without assessing his financial capabilities.

f.           Further grounds may be filed on receipt of the record of proceedings.

Relief Sought:

The orders involving the Petitioner’s house, financial settlement and the allowance to the child be set aside.

 

I wish to note that no further grounds of appeal were filed and so this ground is accordingly dismissed.

 

It must be put on record that on the 18th February 2020 when the court sat and adjourned this case for judgment, the Respondent’s written submission was not before the court. However, the Respondent’s written submission which was wrongly referred to as “written address” filed on 17th February 2020 was brought to our attention on 4th May, 2020. Even though it seems it was inadvertently not put before the court on 18th February 2020, it is not clear whether leave was granted before it was filed since from the records of the Court, the Appellant’s written submission was served on the Respondent on 19th September 2019.

Rule 20 (4) of the Court of Appeal Rules, 1997 CI 19 stipulates that “A party on whom an appellant’s written submission is served shall, if he wishes to contest the appeal, file the written submission in answer to the appellant’s written submission within twenty one days of the service, or within the time that the Court may on terms direct.” If that is the case, Counsel for the Respondent should have applied for an extension of time within which to file the written submission having had the Appellant’s written submission served on the Respondent on 19th September 2019 as per the records of the Court. Since same was filed out of time and not within such time as the Court had directed, this Court has no jurisdiction to consider the Respondent’s written submission. Accordingly, it is hereby struck out.

Counsel for the Appellant even though submitted that he would argue grounds B and E together with ground A, he later stated that he would argue all the grounds together. I will subsume all the grounds under Ground A which is the omnibus ground of appeal.

GROUND A

It is trite that every appeal is by way of rehearing and our jurisdiction is invoked by Rule 8(1) of the Court of Appeal Rules CI 19. This involves going through the entire record to satisfy ourselves that a party’s case is more probable than not, and that the finding of the court below is supportable from the evidence led. See the cases of Ansu- Agyei vrs Fimah [1993-94] 1 GLR 299 at 305 and Tuakwa vrs Bosom [2001-2002] SCGLR 61. The Appellant who complains that a judgment is against the weight of evidence bears the burden of demonstrating that certain pieces of evidence on the record which having not been properly evaluated led to a different conclusion from what ought to have been. See the case of Djin vrs Musa Baako [2007-2008] SCGLR 686.

It is also trite law that it is the trial court that has the right to make primary findings of fact and where they are supported by the record, the appellate court is not permitted to interfere with same. The findings will however be interfered with upon certain conditions.

 

In the case of Amoah vrs Lokko & Alfred Quartey (Substituted by) Gloria Quartey &Others [2011] 1 SCGLR 505 at pages 514-515 the court speaking through Aryeetey JSC stated thus regarding the findings of the trial court: “It is only when the findings of the trial court are not supported by the evidence that the appellate court could interfere and substitute its own findings for that of the trial court. It is trite law that the trial court has the exclusive duty to make primary findings of fact which would constitute the means by which the final outcome of the case would be arrived at. For the trial court’s findings to be irrefutable: first, it must be supported by evidence on record; second, it must be based on credibility of witnesses; third, the trial court must have had the opportunity and advantage of seeing and observing the demeanour of witness; and fourth, it must be satisfied of the truthfulness of the testimonies of witnesses on any particular matter…… The appellate court can only interfere with the findings of the trial court if they are wrong because (a) the court had taken into account matters which were irrelevant in law; (b) the court excluded matters which were critically necessary for consideration; (c) the court had come to a conclusion which no court properly instructing itself would have reached and (d) the court’s findings were not proper inferences drawn from the facts.”

 

Counsel for the Appellant argued that the Learned Trial Judge failed to consider and assess the entire evidence and thus arrived at an erroneous conclusion. It is his submission that with the Petitioner/Appellant having said in cross examination that it was the Respondent’s mother who brought the Respondent to him saying that she was mature enough to be married, the inference to be drawn is that the Petitioner would not have found the Respondent to love and later marry her. Further, that he married her as a favour and that the ordinance marriage between the parties was forced on the Petitioner because of the pregnancy.

 

He further argued that even though the Respondent denied that the Petitioner told her about his wife in London, the Respondent at page 77 of the Record of Appeal stated that the Petitioner’s wife in London sometimes called to insult her. Counsel therefore contended that the conclusion to be drawn is that if the Respondent did not know of the said wife, it was beholden on the Respondent to question him as to his marital status and should have mentioned the names of the relatives of the Petitioner who confirmed to her that the Petitioner was a divorcee. He posited that it must be true that the Respondent had been insulting the Petitioner’s wife in London because of the Respondent’s assertions.

 

Counsel further argued that the Petitioner is to be believed when he testified that he did not know the implications of marrying two women under the Ordinance because he is a layman and refers to the case of Mrs Theresa Owuo vrs Francis Owuo Civil Appeal No J4/20/2017.

 

It is Counsel’s contention that the customary marriage was not moot as held by the judge because there was no valid ceremony between the parties and thus until the Ordinance marriage, the Respondent was not the wife of the Respondent.

 

Having annulled the Ordinance marriage of 29th September 2012 and with the house having been purchased on 25th September 2012 as evidenced by the Statutory Declaration of Contract of Sale, and considering the length of the marriage, Counsel for the Petitioner/Appellant submits that the trial judge erred in awarding the Respondent 50% of the house, the sum of GHȼ50,000 and the child maintenance award considering the fact that the Petitioner is a retiree.

 

It is Counsel’s further contention that the Respondent cannot be entitled to the 50% award because her position is different and distinguishable from decided cases like Mensah vrs Mensah [1998-99] SCGLR 350, Quartson vrs Quartson [2012]2 SCGLR 1077 and Arthur vrs Arthur [2013-2014] 1 SCGLR 543 because of the duration of the marriage and the contribution of the wives to the properties acquired in the marriage.

 

Counsel further submits that the learned trial judge erred in not following the principle in the Owuo case which states that where a marriage is declared a nullity, a wife may be given part of the property acquired during the marriage if it is shown that the said wife made substantial contributions financially or in kind towards the acquisition of the property. That she further erred when she concluded that cleaning and watching over the house and taking care of their daughter were contributions by the Respondent to merit being awarded half share in the house.

 

It is his contention that the award of GHȼ50,000 is colossal, unwarranted and unconscionable. Counsel finally contends even though the Appellant urged on the court that he wanted to look after the child in London, the Respondent opposed it because she is only interested in the maintenance order made by the court.

 

The learned trial judge in her judgment (pages 91 to 92 of the Record of Appeal) stated thus: “Through all this the petitioner lied about his marital status and enjoyed the benefits until the relationship fell on the rocks and then “he pulls out his already subsisting marriage as a “trump card.” If the petitioner did not know that the marriage was a nullity how then can one explain the urgency and audacity with which he tried to remove the respondent from the marital home? His evidence on the matter as usual was very inconsistent and erratic. First, he said he was ejecting the respondent because he had built the matrimonial home from proceeds of goods sent by his first wife and now that he is on pension he proposed that the house be rented out and yet in another breath he says the respondent has refused to move out of the house into an apartment for the house to be sold. He went as far as reporting to the police to have respondent ejected from the house but which effort failed. What gave the petitioner courage to pursue his agenda to eject the respondent from the house was his trump card, a void marriage with respondent and once the marriage was void the respondent has lost out and should therefore be thrown out of the matrimonial home. However, this court is of the opinion that the respondent should not be cheated out. She and the daughter deserve better. The Petitioner’s behavior is reprehensible. He who comes to equity must come with clean hands. Petitioner cannot behave in such a diabolical manner, and then force respondent out of the matrimonial home and leave her high and dry; that will fly in the face of every human rights principles and tenets that human beings agreed to abide by; principles of fairness, equity, justice and good conscience. Because of the fraudulent misrepresentation by petitioner, the respondent deserves an equal share in the matrimonial home as compensation. It is for this reason that in spite of the fact that the marriage is a nullity this court will still apply the rules in Mensah and Mensah… The court adopts the decision above and declares house number 102 Ablekuma NIC, which is exhibit 3 the joint property of both parties with a fifty percent share for each party. In addition this court also awards a further lump sum of GHȼ50,000 to respondent against petitioner”

 

It is trite that a marriage contracted under the Marriage Ordinance Cap 127 is a monogamous marriage. Therefore, a man or woman who chooses to marry under the Ordinance cannot go through another form of marriage under any law with someone else other than his wife or husband. Until his wife or husband dies or the marriage is validly dissolved according to law, he cannot validly marry anyone else. The court therefore found that at the time the Petitioner got married to the Respondent on 29th September 2012, he had earlier contracted a marriage to Ewura Ama Baiden on 29th April 2004 as evidenced by Exhibit A. Since the said earlier marriage was still subsisting as there was no evidence of the said marriage having been validly dissolved, the Petitioner was not eligible to contract another marriage under the Ordinance to the Respondent. Accordingly, the court declared the said marriage to the Respondent a nullity.

 

What does the evidence say?

We must bear in mind that a person who makes an averment or assertions has the burden to establish that his averment or assertion is true. He does not discharge this burden unless he leads admissible and credible evidence from which the fact or facts he asserts can properly and safely be inferred the nature of each averment or assertion determines the degree and the nature of that burden. See Majolagbe vrs Larbi [1959] GLR 190.

 

In paragraphs 2,10,14,15 and 21 of his Petition, he avers thus:

 

“2: That Petitioner subsequently got married to the Respondent customarily on the 22nd day of January 2012 and subsequently converted same into an Ordinance marriage (Cap 127) on the 29th day of September 2012 at the Accra Metropolitan Assembly, Accra.

 

10. That Petitioner avers he fell in love with the Respondent in 2011 and decided to customarily marry her although he was already married under the Ordinance to Ewura Ama Baiden.

 

14. That Petitioner is now on retirement and so proposed to the Respondent to rent out the house and give some of the proceeds to the Respondent to start a trade.

 

15. That the Respondent has refused to move to a new apartment so that the house would be sold.

21. That Petitioner is still staying with her [sic] lawful wife in London.”

 

In paragraphs 4, 5, 6, 7 and 10 of his witness statement, he stated thus:

 

“4. Whilst on holidays in Accra sometime in 2011, I met the Respondent who said she was single by then.

 

5. After sometime I fell in love with the Respondent and we agreed to marry.

6.  There was a customary marriage between myself and the Respondent which occurred without my knowledge and that of any of my family members. I was not in the country on the said date of 22nd January 2013.

 

7. I married the Respondent under the Ordinance on the 29th day of September 2012.

 

 

10. As a retiree, I asked the Respondent to accept a rented apartment so that I could rent the house and give some of the proceeds to the Respondent for trading. The Respondent did not agree and later a complaint was lodged at the Ablekuma Police Station against me for ejecting the Respondent and our child. The complaint was dismissed after the police heard my story.

 

From the above, he averred in his petition that he fell in love with the Respondent and decided to marry her customarily although he was already married under the Ordinance but in his witness statement, he testified that the customary marriage was performed without his knowledge. Is it plausible for someone unaware of a customary marriage to have gone ahead with an Ordinance marriage? Having taken further steps by going ahead with the Ordinance marriage, the court concluded rightly in our view, that he was aware of the customary marriage. Also, even though he averred in his petition that he fell in love with her, yet in cross examination he stated that she was in a way forced on him. See page 73 of the Record of Appeal.

 

Again, in his petition he averred that he proposed that she move out of the house so that the house would be rented and then in the next paragraph he averred that she refused to move in order for the house to be sold. In his witness statement he gives the reason for wanting to move her out as for the house to be rented so that she could use some of the proceeds for trading.

During cross examination of the Petitioner at page 64 of the Record of Appeal, he stated that he did not know the Respondent was pregnant until he got to England when she informed him and later stated that he knew about the early stages of the pregnancy before he left for England.

 

Even though the Petitioner stated that he said he did not know the implications of his act, we agree with the trial judge when she concluded that a “mature man who has now reached pensionable age say that he did not know the implications” of marrying another woman under the Ordinance.

 

Sections 68(2) and (3) of the Marriages Act, 1884-1985, Cap 127 are instructive. The said sections stipulate thus:

“The registrar shall directly or through an interpreter, address the parties thus:

“Do I understand you A.B. and C.D. that you come here for the purpose of becoming husband and wife?”

 

On their answering in the affirmative, the registrar shall proceed thus:

“Know ye that by the public taking of each other as husband and wife in my presence and in the presence of the persons now here, and by the subsequent attestation thereof by signing your names to that effect, you become legally married to each other, although no other rite of a civil or religious nature shall take place, and that this marriage cannot be dissolved during your lifetime, except by a valid judgement of divorce, and if either of you before the death of the other, shall contract another marriage while this remains undissolved, you will be thereby guilty of bigamy, and liable to the punishment inflicted to that offence” (emphasis mine).

 

(4) Each of the parties shall then say to the other.

“I call upon all persons here present to witness that I, A.B. do take thee C.D. to be my lawful wife (or Husband).”

 

From the above, the law is that the Registrar of Marriages makes it known to the parties before him, that an offence is committed when another marriage is contracted when the subsisting one remains. The common law maxim omnia praesumumtur rite et solemniter esse acta which means that there is a presumption that officials perform their duties rightly and regularly has gained statutory recognition under section 37(1) of the Evidence Act, 1975 (NRCD 323) by providing that “it is presumed that official duty has been regularly performed.” It is therefore presumed that the Registrar of Marriages complied with the law. That being the case, then the Registrar must have made it known to the Petitioner on 29th April 2004 when he got married to Ewura Ama Baiden and subsequently when he got married to the Respondent on 29th September 2012. Even if the Registrar did not make it known to him, the fact of being a layman as argued by his Counsel does not mean that he did not know the implications. Besides, ignorance of the law is no excuse. It is more probable than not, that he knew the consequences of marrying another woman under the Ordinance when there was a subsisting marriage which had not been dissolved.

 

Having gone through the record of appeal, we agree with the learned trial judge when in her judgment found at page 90 of the record of appeal she states thus: “this and all other inconsistencies does (sic) not make the petitioner a credible witness and makes the court conclude that he knew the implications of marrying another woman under the ordinance when he already had a subsisting marriage.” The learned trial judge found the Respondent to have been consistent throughout. The Respondent in cross examination stated that the Petitioner told her that he had a previous marriage but they were divorced and she enquired from a relative of the Petitioner who confirmed that the Petitioner was divorced. This is an extract from the cross examination of the Respondent by Counsel for the Petitioner.

Q: You have told this court you had customary marriage which was followed by registration at Accra Metropolitan Assembly is that the case?

A: That is so.

Q: Was the Petitioner himself at Accra Metropolitan Assembly signed for him?

A: Petitioner was present himself at Accra Metropolitan Assembly and he signed the registration himself.

Q: Would you agree with me that once both of you signed that was a valid marriage. A: That is so.

Q: After the signing at Accra Metropolitan Assembly did something happen that made you doubt that your marriage is not valid?

A: No

Q: Did you ever after the marriage get to know that there was another woman in your husband’s life?

A: Once a while someone calls me to insult me on the phone and when I inquire about the identity of the person, the person stated that she was the wife of the Petitioner.

The Respondent insisted that she believed she was in a valid marriage. It is noteworthy that she alleged having filed a petition for divorce but found it difficult to serve same on the Petitioner.

 

The learned trial judge after having seen and heard the parties believed that the Petitioner misrepresented to the Respondent that he was not married for he found her to be a credible witness. As stated by Her Ladyship Agnes M Dordzie JSC in the case of Dr Eric Graham & Another vrs Vivian Aku Brown-Danquah [2019]146 GMJ 28 “a witness whose evidence on oath contradicts a previous statement made by him is not worthy of credit. Wigmore on Evidence (1st edition) paragraph 1017 elaborated on this principle as follows; ‘ The Principle of Prior Self Contradiction is founded on the obvious consideration that both accounts cannot be true, and tends to prove a defect of intelligence or memory on the subject testified of, or, what is worse, a want of moral honesty and regard to truth; and so, in either case, that the witness is less worthy of belief.”

 

We will not disturb the findings of the trial judge as far as the evidence of the Petitioner being fraught with inconsistencies is concerned.

However, having declared the marriage a nullity, should the learned trial judge have made an award of Fifty Percent (50%) of the matrimonial home, to the Respondent?

Section 20 of Matrimonial Causes Act 1971(Act 367) stipulates thus:

“ 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.”

Again, Article 22(3)(a) and (b) of the 1992 Constitution provides as follows:

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.

It is to be noted that these provisions refer to properties acquired in the course of a marriage. We agree with Counsel for the Petitioner when he argues that with the marriage being annulled, the learned trial judge erred to have awarded the Respondent fifty per cent of the house. As contended by Counsel in his written submission, in cases such as Mensah vrs Mensah [1998-99] SCGLR 355 and other cases he referred to, the parties were married and the property was acquired in the course of the marriage. The court speaking through Bamford-Addo JSC in Mensah vrs Mensah supra stated thus: “In such circumstances, the principle that property jointly acquired during marriage becomes joint property of the parties applies and such property should be shared equally on divorce, because the ordinary incidents of commerce has no application in marital relations between husband and wife who jointly acquired property during marriage.”

 

In this instant case, the marriage has been declared a nullity meaning there is no marriage. As stated by Her Ladyship Akoto Bamfo JSC in the case of Theresa Owuo vrs Francis Owuo suit no J4/20/2017 dated 6th December 2017 “where therefore a marriage is declared a nullity, the respondent is required to prove with sufficient particularity that she made substantial contribution towards the acquisition of the property.” Furthermore, the Respondent herself stated in her witness statement that: “the Petitioner may have purchased the house with his money but I also made my due contributions by providing a conducive environment for him to do so and I have maintained the house solely and kept it as a home even the face of financial difficulties.” Section 21 of the Matrimonial Causes Act 1971 (Act 367) provides that: “when a decree of divorce or nullity is granted if the court is satisfied that either party to the marriage, holds title to movable or immovable property or part or all of which rightfully belongs to the other, the court shall order transfer or conveyance of the interest to the party entitled to it on the terms that the court thinks just and equitable.”

 

In the case of Mrs Theresa Owuo vrs Francis Owuo suit no J4/20/2017, the parties, married customarily for ten years before same was converted into an Ordinance one. After the marriage was declared a nullity because Francis Owuo had an earlier subsisting marriage with Mrs Beatrice Owuo, the Supreme Court held that for the Respondent to succeed that she was entitled to the properties acquired in the course of the marriage, she had to produce credible evidence that she contributed substantially in cash or kind. As stated by Her Ladyship Akoto Bamfo JSC the evidence showed that for about twenty years the Respondent thought she was lawfully married and “traded variously as a baker, fishmonger, dealer in textiles, the income of which she used to cater for the Appellant’s children with Mrs Beatrice Owuo; when the land was being acquired, she was made to believe that it would be put in their joint names and whenever the Appellant needed money to supplement the wages for the workers on the building, she obliged him….. Aside from the monetary contributions, the household chores, cooking, taking care of six children for a period of twenty years, if quantified would certainly be substantial.” The record supported the conclusion that she had made substantial contribution and therefore she was given half the value of the property.

 

In the instant case, the Respondent testified in her witness statement that they got married customarily in January 2012 and under the Ordinance on 29th September 2012. The evidence is that she was looking after the child and that anytime the Petitioner visited Ghana, they lived together as a couple. According to the witness statement, after the customary marriage they lived together at Sowutuom Chop Bar in Accra in rented premises but the Petitioner was mostly away in London where he was ordinarily resident. Before the Ordinance marriage, they decided to purchase a house for them to live in as their matrimonial home and same was purchased. There is no evidence that she contributed in any way towards the acquisition of the building. The court put it succinctly thus: “She testified that the Petitioner may have purchased the house with his money but I also made my due contributions by providing a conducive environment for him to do so and I have maintained the house solely and kept it as a home even in the face of financial difficulties. Exhibit 3, tendered by the Respondent is a contract of sale between Georgina Danso the vendor of the property and Ademu Frimpong the Petitioner. It indicates that the property was sold on 25th September 2012, four days before their Ordinance marriage. It is clear that she did not contribute towards the matrimonial home.

 

As reprehensible and diabolical as the court found his conduct, in the light of the fact that in the instant case, the marriage has been declared a nullity and the Respondent not having led evidence that she contributed substantially towards the acquisition of the property, the court should not have declared the house as joint property. This court will accordingly set aside the award of 50% of the matrimonial home to the Respondent.

 

The Court awarded compensation of GHȼ50,000.00 having found that the Petitioner misrepresented to the Respondent that he was a divorcee at the time they got married. Black’s Law Dictionary 11th Edition by Bryan A. Garner defines misrepresentation as “the act or an instance of making a false or misleading assertion about something, usually with intent to deceive. The word denotes not just written or spoken words but also any other conduct that amounts to a false assertion.” As already stated, we agree with the findings of the trial judge that the Petitioner who was not credible did not disclose his marital status to the Respondent. Given the circumstances, it is our belief that the amount of GHȼ50,000 which she prayed for in her Answer and cross petition is fair, and equitable. We therefore affirm it.

 

Section 14 of the Matrimonial Causes Act supra provides that “where a decree of nullity is granted, a child of the parties to the decree shall be deemed to have the same status and rights as if the marriage of the parents had been dissolved rather than annulled.” Section 22 of the Matrimonial Causes Act supra empowers the court to make any order concerning any child of the household which it thinks reasonable for the benefit of the child. The order may relate to custody, right of access, education and maintenance. Again, section 47 of the Children’s Act 1998, (Act 560) provides that “a parent or any other person who is legally liable to maintain a child or contribute towards the maintenance of the child is under a duty to supply the necessaries of health, life, basic education and reasonable shelter for the child.”

 

The Petitioner admitted that he had been providing an amount of Two Hundred Ghana Cedis (GHȼ200) per month for the upkeep of the child including school fees and her medical bills. We find this amount woefully inadequate and affirm the order of the Court.

The Petitioner/Appellant should pay the school fees, medical bills of the child and pay an amount of Four Hundred Ghana Cedis (GHȼ400) monthly for the child.

 

Even though custody was not a relief sought by the Petitioner, Counsel argued that the Respondent wanted custody because of her interest “in the compulsory maintenance of the court” and further submitted that “I believe that the child will one day pounce on the Respondent for not allowing her father to take and train her in London.” It will be remiss on our part not to comment on this link.

Excerpts of cross examination of the Petitioner.

“Q: Have you requested Respondent to meet you with your child to see how she is doing.?

A: No.

Q: How long have you been in Ghana this period round?

A: Six months.

Q: You are telling this court that you want custody of this child.

A: That is so.

Q: To go and live with you in England?

A: That is so.

Q: How will you care for the child?

A: There is a social security facility, my wife and the child will have her own doctor to take care of her.”

In considering the best interest of the child, the learned trial judge considered the age of the child and the fact that the Petitioner only spends a few weeks with the child during his visits to the country coupled with the fact that the Petitioner had not asked to see the child even though he had been in the country for over six months. The learned trial judge furthermore took into consideration the fact that he is a pensioner and is counting on his wife to look after the child in London while the Respondent has been taking care of her throughout her life. In the case of Braun vrs Mallet [1975] 1 GLR 82 it was held that in considering matters affecting the welfare of the infant, the Court must look at the facts from every angle and give due weight to every relevant material.

 

It is our view that the trial judge was right in awarding custody of the child to the Respondent as stipulated by section 2(1) of the Children’s Act 1998 (Act 560) which states that the best interest of the child shall be paramount in a matter concerning a child. Furthermore, section 45(1) of the same enactment, states that the family tribunal shall consider the best interest of the child and the importance of the young child being with the mother when making an order for custody or access. In addition to subsection (1), the family tribunal shall consider the age of the child, the views of the child if they have been independently given, that it is preferable for a child to be with the parents, that it is desirable to keep siblings together, the need for continuity in the care and control of the child and any other matter that may be considered relevant. The trial judge applied the right principle which is the best interest of the child in arriving at her decision.

 

Upon an oral application by Counsel for the Appellant, we hereby grant visitation rights to the Petitioner anytime he is in Ghana. With regards to the child going for holidays in the United Kingdom, we are of the belief that she is too young to undertake such a trip now. The parties are to agree when the child is of age for such trips to be undertaken. The appeal succeeds in part.

 

No order as to costs.

 

(Sgd)

Merley A. Wood (Mrs.) (Justice of Appeal)

(Sgd)

S. Dzamefe                          I agree                                                Senyo Dzamefe (Justice of Appeal)

 

 

 

(Sgd)

Obeng-Manu                      I also agree                                         Obeng-Manu Jnr. (Justice of Appeal)

 

 

Counsel:

for Petitioner/Appellant - Justice Adusah-Poku

for Respondent/Respondent – Anokye Frimpong