Case Brief: Peter Adjei v Margaret Adjei
CORAM:
APPAU, JSC (PRESIDING)
PWAMANG, JSCAMADU, JSC
JSC DORDZIE (MRS.),
JSC LOVELACE-JOHNSON (MS.), JSC
3-2 Decision.
CIVIL APPEAL NO. J4/06/2021
21 ST APRIL, 2021
Court Opinion was read by Appau JSC
An appeal emanating from the High Court where the man as petitioner sought to dissolve a 12-year customary marriage and requested for custody of their two children. The woman as respondent therein sought five reliefs in her cross petition:
a) Matrimonial home – one unit out of four flats, built by the petitioner at Cantonments should be settled on her
b) Lumpsum payment of GHS400,000
c) Monthly stipend of GHS2000.00 for the upkeep of herself and 2 children
d) 2 out of a set of stores located on the Spintex Road, Accra
e) Order for the petitioner to bear the cost of litigation.
High Court:
The High Court granted the petitioner’s request for dissolution but refused custody, instead giving the petitioner limited access. The first three reliefs in the respondent’s cross petition were also granted with slight adjustments: The matrimonial home was settled on her, but the lumpsum requested was increased to GHS500,000 while the monthly stipend was slashed to GHS1500 instead of the GHS2000 requested. The court reasoned that the respondent would need the additional funds to complete the construction of the property settled on her. The respondent’s requests for stores were declined as she did not lead any evidence to establish their existence.
Petitioner’s Appeal to the Court Appeal:
The Petitioner, aggrieved by the decision of the High Court appealed against the decision, bringing 6 grounds, in summary:
a) The matrimonial home was acquired before the marriage and hence should not have been settled on the respondent.
b) The enhanced lumpsum of GHS500,000 was granted without considering the means of the parties.
c) The amount of GHS1500 as maintenance was granted without a consideration of the means of the parties.
d) The trial judge erred when she granted custody of the children to the Respondent.
e) The trial judge relied on evidence collected at the locus inspection which was not admitted for cross examination – leading to the Petitioner suffering a substantial miscarriage of justice.
f) The judgement is against the weight of the evidence.
The Court of Appeal granted grounds a and f, dismissing grounds b – e. Ground “d” concerning custody was put on record as having been granted in part, but the Supreme Court disagreed, arguing that the mere addition of the days which the Petitioner could have access to the children (vacations and weekends) did not mean that there was a partial grant – instead it was a total dismissal of that ground. The court after a review of decisions like Mensah v. Mensah [2012] 1 SCGLR 391; 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 reasoned that it was not the law that any and all property (including loans and inheritances) acquired during the pendency of a marriage ought to be shared, but however that individuals also have a right to acquire property in their individual capacities during the pendency of the union. Court of Appeal held that the GHS500,000 granted plus a store the Petitioner settled on her as well as the monthly stipend of GHS1500 should suffice as she failed to prove that she jointly acquired property in the subsistence of the marriage. Both parties were aggrieved with different parts of the judgement. The Respondent appealed and the Petitioner cross-appealed at the Supreme Court.
Respondent was aggrieved with the decision of the Court to reverse the settlement of the property on her and asked the Supreme Court to nullify the order and restore the High Court’s decision. She argued that on the authority of Mensah v Mensah and other similar decisions, she had a “legal and constitutional” right to the property irrespective of how it was acquired. The Respondent quoted the case to make the point that the concept of substantial contribution no longer applied to the sharing of spousal property and that the presumption instead, is in favour of the property being jointly owned. The Respondent was however unable to prove her omnibus ground by identifying lapses in the Court of Appeal’s decision.
The Petitioner in his cross appeal, on the other hand wanted the Supreme Court to reverse the GHS500,000 given by the High Court and affirmed by the Court of Appeal.
Holdings per Appau JSC:
a) The Supreme Court, on the specific facts of this case agreed with the Court of Appeal’s decision to reverse the settlement of the property on her. The evidence on record showed that the male spouse had singlehandedly acquired the property through a loan taken from the bank, and he was still servicing the said loan from rents accruing on the three other flats. An amount of GHS300,000.00 was left to be paid. The Court reasoned that because the loan is still not fully paid, it stood the risk of loss on failure to service. Consequently, the property cannot be described as jointly acquired during the subsistence of the marriage. If on the other hand, the loan was fully paid, then it could be said that the Petitioner’s ability to service the loan was influenced by the respondent’s role as a wife i.e. cooking, cleaning and for associated chores. The Court explained that the rationale behind the abandonment of the concept of substantial contribution idea was hinged on the understanding that, in the context of exclusive male acquisition of property, the domestic duties of a female spouse provided peace of mind and must be computed as a contribution.
b) The award of GHS500,000 was cross appealed on the argument that the amount was given without basis – this alimony grant was a concurrent finding of both the High Court and the Court of Appeal. The Courts have held in a plethora of cases that concurrent findings of fact can only be overturned in exceptional cases especially where it is made clear that there was a blunder leading to a miscarriage of justice. The Petitioner did not demonstrate any errors and so the Supreme Court affirmed it as it complied with Section 20 of the Matrimonial Causes Act.
c) Parties were to bear the cost of their own litigation
Pwamang JSC Concurring:
Quoted Article 22 of the 1992 Constitution in extenso specifically:
Article 22(2)(b) assets which are jointly acquired during marriage shall be distributed equitably between the spouses upon dissolution of the marriage.
He interpreted this to mean that on the distribution of property upon a divorce, only assets which are jointly acquired are subject to equitable sharing. The notion that all property acquired during marriage is “joint property” is not what the constitution says, but rather a judicially created presumption in evidence which can be rebutted by adducing evidence. The decisions of the courts in other cases have held that non-pecuniary contributions like cooking, washing, childcare etc are admissible as proof of contribution. Citing Ansah JSC in Quartson v Quartson page 1090, Pwamang JSC explained that the courts did not give unrestricted access to all property to the spouses for sharing upon dissolution, but however the evidence must show that they are so entitled. In this case the Petitioner had adduced evidence sufficient enough to defeat the joint property presumption, and the Courts must be fair to all parties, and prevent parties from being taken advantage of, regardless of gender. Hence the constitution uses the gender-neutral term, “spouse”.
Mrs Dordzie JSC Dissenting:
She argued that the Appeal ought to be allowed because incorrect inferences were drawn to overturn the decision of the trial court:
Firstly, the Respondent put in issue the veracity of the Petitioner’s story about a bank loan acquired to put up the property by disputing same in cross examination. The credibility of these facts should have been addressed.
Second, the Court of Appeal made much of the fact that the Respondent was put in business by the Petitioner a fact which was ferociously contested, and little in terms of convincing evidence was adduced to prove same.
She based her claim on a detailed look at the facts, particularly that record showed that while the land upon which the contested property is situated was acquired before the marriage, the building thereon was during the pendency of the marriage. She re-stated the position the Supreme Court in Mensah v Mensah and Arthur v Arthur to the effect that domestic chores were admissible as substantial contribution and marital property was property acquired by spouses during marriage, irrespective of whether a contribution was made and held that the Respondent having been a housewife for 12 years carried out such domestic choirs as to entitle her to the property settlement. She added that the High Court’s decision applied the principles in a in a manner sensitive to the requirements of the case, in that the Respondent and two minor children were required to be sheltered and they were rendered homeless because of a lack of documentary proof.
She proceeded to evaluate the Court of Appeal’s judgement, arguing that on the issue of whether the petitioner put the respondent in work or not, the Court failed to put the petitioner to proof of his claims, failing to apply Section 11 of NRCD 323 as to proof and evaluation based on whose story was more probable. For instance, even though the Petitioner claimed to have given her GHS10,000.00 to start the business, it was rather GHS5000 per the petitioner’s own evidence and the other half was given as a loan when she was bereaved. The Respondent according to the dissenting opinion, clearly and cogently explained how she came to acquire her shop as a means of living, i.e. by taking yet the Court of appeal preferred the bare assertions made by the Petitioner. This incorrect finding that the Petitioner put the Respondent in employment weighed heavily on the Court of Appeal’s consideration of the equities of the case, leading the settlement of the property in favour of the Petitioner because the Respondent was more than adequately compensated. Additionally, the Court of Appeal had no evidence to back the claim that the property was constructed with a loan that was being repaid, and a pronouncement made on an assumption cannot stand. Because the Respondent had in her cross-examination denied the assertion that the property was put up by a loan, there was the need for the Petitioner to be put to proof on where the loan was taken from and whether indeed it was true that there was GHS300.000 left unpaid.
Citing Agyenim-Boateng v Ofori & Yeboah [2010], it was argued that the Court of Appeal did not have the right to disturb the findings of fact made by the trial court as the exceptions has not been met and that largely the findings of fact referenced were not backed by evidence on the record. The cross-appeal of the Petitioner in respect of the GHS500,000.00 in her view was without merit in that the trial court gave significant basis for her computation of the sum contrary to the Petitioner’s averment. The additional GHS100,000 was to assist her to complete the home she occupies with her home.
The dissent was supported by LOVELACE-JOHNSON (MS.), JSC.
