IN THE SUPERIOR COURT OF JUDICATURE
IN THE SUPREME COURT
ACCRA-AD 2026
CORAM: LOVELACE-JOHNSON (MS.) JSC (PRESIDING)
PROF. MENSA-BONSU (MRS.) JSC
ADJEI-FRIMPONG JSC
DZAMEFE JSC
ACKAAH-BOAFO JSC
CIVIL APPEAL
NO. J4/7/2026
29TH APRIL, 2026
VIDA YEBOAH ………. PETITIONER/APPELLANT/RESPONDENT
VRS
DR. STEPHEN YEBOAH ……… RESPONDENT/RESPONDENT/RESPONDENT
AND
MERCY AGYEIWAA ……….. APPLICANT/RESPONDENT/APPELLANT
JUDGMENT
ACKAAH-BOAFO JSC:
i. Overview:
[1] My Lords, having regard to the facts presented in this interlocutory appeal, which arises from a petition for divorce filed by the Petitioner, and the question for our determination, I consider it appropriate to commence my opinion with the old statement of law by Scrutton L.J. in Hyman v. Hyman; Hughes v. Hughes , to the effect that:
“The stability of the marriage tie, and the terms on which it should be dissolved, involve far wider considerations than the will or consent of the parties to the marriage. The Court does not, as other Courts do, act on mere consents or defaults of pleading, or mere admissions by the parties.”
[2] I understand the above statement to mean that, in a divorce petition, even where both parties agree to separate or admit certain facts, the court will not automatically grant a decree of divorce merely because such an agreement exists. This is because marriage constitutes a legal status with public consequences, and its dissolution requires judicial scrutiny beyond the mere agreement of the parties.
[3] This is an appeal against the judgment of the Court of Appeal dated 9th May 2024, by which that court set aside the ruling of the High Court delivered on 1st July 2021, by which the Applicant/Respondent/Appellant was joined to the divorce petition instituted between the Petitioner, Vida Yeboah, and the Respondent, Dr. Stephen Yeboah.
[4] For ease of reference, Vida Yeboah, the wife who instituted the divorce petition, shall hereinafter be referred to as “the Petitioner”; Dr. Stephen Yeboah, her husband, as “the Respondent”; and Mercy Agyeiwaa as “the Appellant” in this appeal.
[5] The Appellant has invoked the appellate jurisdiction of this Honourable Court, seeking an order to set aside the judgment of the Court of Appeal and to restore the ruling of the High Court which granted her application for joinder to the suit.
[6] My Lords, in this appeal, this court is not called upon to determine the substantive action, but rather to resolve an interlocutory issue — namely, whether the alleged adulterer, the Appellant, is a necessary party to the pending divorce petition before the High Court, Agona Swedru. In light of the divergent positions adopted by the two lower courts on the question of joinder, this Court, being the final appellate court, is tasked with determining whether the Appellant ought to be joined as a party to the suit.
ii. Brief Background Facts:
[7] On 26th April 2019, the Petitioner, through counsel, filed a petition for divorce at the High Court, Agona Swedru. At paragraph 27 of the petition, the Petitioner asserted that “during the subsistence of the marriage, the Respondent engaged in various acts of adultery and has continued in such conduct to the extent that the Petitioner can no longer reasonably be expected to live with the Respondent as husband and wife.”
[8] The Petitioner further particularised the alleged adultery by naming the Appellant and averred that the adulterous relationship was “a matter of public knowledge within Gomoa Oguakrom, particularly in the vicinity of the matrimonial home.” The Petitioner additionally averred that the Respondent claimed that his relationship with Mercy Agyeiwaa was in the nature of a customary marriage. The Petitioner also pleaded several instances of unreasonable behaviour on the part of the Respondent.
[9] The Respondent entered appearance and filed an Answer on 20th May 2019, in which he denied, at paragraph 2, that the marriage had broken down beyond reconciliation. He further denied the allegations contained in paragraph 27 of the petition concerning adultery with Mercy Agyeiwaa.
[10] On 7th June 2021, the Appellant applied to the High Court to be joined to the suit as a second Respondent (co-respondent). The grounds of the application were that she had been named as a party to an alleged adulterous relationship with the Respondent and that the law permitted her joinder. She averred that she had, in fact, married the Respondent as his second wife under customary law on 15th July 2012 and had since cohabited with him openly.
[11] She further contended that any purported ordinance marriage ceremony of 30th January 2014 between the Petitioner and the Respondent was a nullity, as she was already married to the Respondent under customary law. Finally, she asserted that the Petitioner was not entitled to the claimed 50% share of the properties of the marriage, as she (the Appellant) had also contributed to their acquisition through her own enterprise.
[12] The Petitioner opposed the application by an Affidavit in Opposition filed on 25th June 2021, wherein, at paragraphs 6 and 7, she reiterated her assertion that the Appellant and the Respondent were engaged in an adulterous relationship.
iii. The Decision of the High Court:
[13] After hearing submissions from counsel on both sides in respect of the application for joinder, the learned trial Judge, on 1st July 2021, granted the application in the following terms:
“Having heard the submissions of both counsel, I am of the view that the said Applicant, Mercy Agyeiwaa, ought to be joined to the suit. Her name was expressly mentioned in the petition filed on 26th April 2019 under the particulars of adultery pleaded by the Petitioner/Respondent. Pursuant to Order 65 rule 7 of C.I. 47 and Section 12 of the Matrimonial Causes Act, 1971 (Act 367), it is provided that a person named in a petition as an adulterer may be made a co-respondent in the proceedings. I will therefore order that the Applicant be joined to the suit to ensure that all matters in controversy are effectually determined. The suit shall proceed in the normal course. Costs in the sum of GH¢1,000.00 are awarded against the Applicant in favour of the Petitioner.”
[14] From the foregoing, it is evident that the trial Court grounded its ruling primarily on two considerations: first, that the Applicant had been expressly named in the particulars of adultery; and second, that by virtue 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), she was amenable to being joined as a party, with a view to ensuring that all issues in controversy are effectually and completely determined.
iv. The Appeal to the Court of Appeal:
[15] Aggrieved by the ruling of the trial High Court, the Petitioner lodged an appeal to the Court of Appeal. In its judgment delivered on 9th May 2024, the Court of Appeal allowed the appeal, set aside the joinder order made on 1st July 2021, and awarded costs in the sum of GH¢20,000.00 in favour of the Petitioner as against the Appellant.
[16] In arriving at its decision, the first appellate court, upon consideration of the submissions of the parties and the record before it, identified the central issue for determination as whether the joinder of Mercy Agyeiwaa was necessary for the proper adjudication of the question of whether the marriage between the petitioner and the respondent had irretrievably broken down. The court answered this question in the negative, holding that, having regard to the nature of the proof required under section (1) of Act 367, such joinder was unnecessary.
[17] The first appellate court also held that adding the Appellant as a party, regardless of the nature of the marriage or her relationship with the Respondent, would merely divert attention from the substantive issues in dispute and needlessly complicate the proceedings. The Court therefore concluded that the joinder application should not have been allowed and, on that basis, set aside the trial court’s order.
v. The Instant Appeal:
[18] The Appellant, being dissatisfied with the judgment of the Court of Appeal, has accordingly filed the instant appeal by way of a Notice of Appeal filed on 23rd May 2024, and prays this Honourable Court to set aside the decision of the first appellate court on the following grounds:
Grounds of Appeal:
i. The judgment is against the weight of evidence.
ii. That the Court of Appeal, Accra, lacked jurisdiction at the time of delivering its judgment in light of the Chief Justice’s directive of transferring all cases from the Central and Western Regions to the Court of Appeal, Sekondi.
iii. That the Court of Appeal erred by holding that the presence of the Applicant in the suit is not relevant to resolve the issue of whether the marriage has broken down beyond reconciliation.
iv. Additional grounds may be filed on receipt of the record of proceedings.
See pages 57-58 of the ROA, Volume 2
vi. Summary of Arguments of the Parties:
[19] My Lords, I gather from the materials filed, namely, the statements of case, that, in this appeal, the battle lines are drawn between the Appellant and the Petitioner. The Respondent has elected to let them contest the matter without participating in this issue of joinder.
[20] From the foregoing grounds of appeal, I propose to address first the omnibus ground of appeal, being Ground I of the Notice of Appeal, and to determine its applicability. I will then consider Ground III, which concerns whether the presence of the Appellant was necessary for the just determination of the issues before the Court. Ground II, which raises a distinct issue of jurisdiction, will thereafter be considered. I will first set out below a summary of the parties’ arguments.
vii. Appellant’s Case:
[21] Counsel for the Appellant submits, on the omnibus ground, that the Court of
Appeal failed to consider the totality of the affidavit evidence placed before it. Specifically, the Appellant contends that her Affidavit in Support of the joinder application clearly established that the Appellant was married to the Respondent under customary law, thereby casting doubt on the Petitioner’s allegation of adultery. Furthermore, having been expressly named in the petition, the Appellant ought to be afforded the opportunity to vindicate her reputation as a married woman of standing, rather than be portrayed as a person of immoral character intent on sowing discord between the Petitioner and the Respondent.
[22] The Appellant further contends that the Court of Appeal misapprehended section 2(1)(a) of Act 367. Counsel submits that the court erred in holding that her joinder was unnecessary for the determination of whether the marriage had broken down. The Appellant maintains that, since the Petitioner’s principal ground for alleging the breakdown of the marriage is the Respondent’s purported adultery with the Appellant, her participation is essential for a full and effectual determination of that issue. It is further submitted that, if the Appellant is found to have been validly married to the Respondent under customary law, the allegation of adultery would thereby be resolved. The Appellant also asserts that a claim that a marriage has broken down beyond reconciliation cannot be sustained in the absence of proof of any of the facts enumerated under section 2(1) of Act 367.
[23] The Appellant additionally relies on Order 65 Rule 7 of C.I. 47, which expressly entitles a named alleged adulterer to appear and intervene in proceedings. Reliance is also placed on Order 4 Rule 5(2)(b) of C.I. 47, as well as the decision of this Court in the Presidential Election Petition case [2013] SCGLR 1 (Special Edition), in support of the proposition that the governing principle of joinder is to ensure that all necessary parties are brought before the court so that all matters in controversy may be effectually and completely determined.
[24] On Ground II of the Grounds of Appeal, by which the Appellant challenges the jurisdiction of the first appellate court to entertain the appeal, the Appellant contends that, pursuant to a directive issued by the Honourable Chief Justice on 15th April 2024, under the hand of the Judicial Secretary, all appeals emanating from the Central and Western Regions were to be heard by the Court of Appeal, Sekondi, with effect from 8th April 2024. The Appellant further argues that, as the impugned judgment was delivered on 9th May 2024, after the said directive had come into force, the Court of Appeal, Accra, lacked the requisite jurisdiction to deliver the judgment at that time.
viii. The Petitioner’s Submissions:
[25] In support of the Petitioner’s case, learned Counsel for the Petitioner submits on the omnibus ground, that this ground is inapplicable in interlocutory appeals where no viva voce evidence was led at the trial, relying on Atuguba & Associates v. Scipion Capital (UK) Ltd, Civil Appeal No. J4/04/2019, dated 3rd April 2019, and Zikpuitor & Ors v. Attorney-General (2019) 130 GMJ 179. Notwithstanding this contention, Counsel proceeds to address the ground on its merits, arguing that the Court of Appeal correctly and meticulously evaluated the entirety of the affidavit evidence and rightly concluded that the Appellant’s affidavit failed to address the central question of the breakdown of the marriage.
[26] The critical issue, according to Counsel, is whether the marriage between the Petitioner and the Respondent has broken down beyond reconciliation, and this issue may be determined independently of the Appellant’s participation. Indeed, according to Counsel, the Appellant herself concedes in her submissions that “it is not the duty of the Appellant to lead evidence to show that the Respondent had committed adultery with other women.” In the circumstances, it is the case of the Petitioner that the Court of Appeal was right in its findings.
[27] On the substantive question of joinder, the Petitioner contends that the applicable test is one of necessity, such that only parties whose presence is essential to the effectual and complete determination of all matters in dispute may be joined. In support of this position, reliance is placed on Sam (No. 1) v. Attorney-General [2000] SCGLR 102, In re Presidential Election Petition (supra), and Vandervell Trustees v. White [1970] 3 W.L.R. 452. It is submitted that the Appellant has failed to satisfy this threshold. Counsel submits that the critical issue before the Court remains whether the marriage has broken down beyond reconciliation — a question which, it is argued, can be adjudicated entirely on the evidence of the Petitioner and the Respondent, without the participation of the Appellant. Her role, if any, is merely evidentiary as a witness and does not entitle her to be joined as a party to the proceedings.
[28] The Petitioner further contends that section 2(1)(a) of Act 367 requires the Petitioner to establish two elements: (i) that the Respondent committed adultery; and (ii) that, by reason of such adultery, the Petitioner finds it intolerable to live with the Respondent. It is argued that the presence of the Appellant is not required to establish either of these elements, as they are matters to be proved by the parties to the marriage.
[29] In response to Ground II of the grounds of appeal, the Petitioner argues that a fundamental distinction exists between jurisdiction and venue, the latter being an administrative matter. The Court of Appeal is established as a single court by Article 126(1)(a)(ii) of the 1992 Constitution, with nationwide jurisdiction pursuant to Article 137(1). The administrative directive issued by the Chief Justice relates to venue rather than jurisdiction and cannot operate to divest the Court of Appeal, Accra, of its constitutionally and statutorily conferred jurisdiction.
[30] Finally, the Petitioner submits that, even if the directive were to be construed as affecting venue, the Appellant failed to raise any objection thereto at the earliest opportunity while the matter was pending before the Court of Appeal, and is therefore deemed to have waived any such objection, reliance being placed on Yaro v. Duho [1982–83] GLR 1064.
ix. The Law, my Opinion and Analysis:
[31] My Lords, we are invited by the Appellant to review the Record of Appeal (ROA), to place ourselves in the position of both the trial court and the first appellate court, and to arrive at a conclusion different from that reached by the first appellate court on the issue of joinder. Before addressing that issue, however, I observe that Counsel for the Petitioner has questioned the applicability of the omnibus ground of appeal in the present matter. Counsel has referred to prior decisions of this Court in support of the submission that Ground I of the Appellant’s appeal is inapplicable.
[32] My Lords, in Asamoah v Marfo [2011] 2 SCGLR 832, this Court held that an omnibus ground of appeal, namely, that a judgment is against the weight of evidence, is wholly misconceived where no defence has been filed and no evidence has been led, rendering such a ground unmeritorious and liable to dismissal. This position was reaffirmed in subsequent authorities, including Zipkuitor v Attorney-General (supra) and Atuguba & Associates v Scipion Capital (UK) Ltd (supra), wherein the Court clarified that the omnibus ground is generally inapplicable to interlocutory decisions, particularly those determined without viva voce evidence, such as applications for injunctions, stay of execution, or joinder.
[33] It is to be noted, however, that in Sino Africa Development Company Limited v Royal Bell Investments Limited & Kwame Blay (Civil Appeal No. J4/02/2023, delivered on 14 June 2023), this Court, per Pwamang, JSC, nuanced the principle by recognising that such a ground may be permissible where affidavit evidence is materially disputed, having regard to the appellate court’s duty to rehear the matter and to arrive at the decision which the lower court ought to have made.
[34] In light of these authorities, it is my considered opinion that the law may now be regarded as settled: the omnibus ground is improper where affidavit evidence is uncontroverted, but may be invoked where such evidence is in dispute. Applying this principle to the present case, I am of the view that the affidavit evidence on record is clear and uncontroverted with respect to the Petitioner’s grounds, as well as the positions of both the Respondent and the Appellant. I am therefore of the opinion that the objection raised by Counsel for the Petitioner is sustainable. Accordingly, the omnibus ground of appeal filed in this case is inapplicable.
[35] My Lords, there is no dearth of judicial authority that appeals are, as a general rule, by way of rehearing. It follows that an appellate court, such as this Honourable Court, is enjoined to reconsider and re-evaluate the entirety of the evidence, both oral and documentary, placed before the trial court, together with the applicable law, in order to determine whether the conclusions reached by that court are supported by the evidence and are consistent with the law. This principle has been firmly reiterated in a long line of authorities, including Tuakwa v. Bosom [2001–2002] SCGLR 61, Djin v. Musah Baako [2007–2008] SCGLR 686, Adu Bediako v. Kwame Acheampong (unreported), Civil Appeal No. J4/42/2018 dated 28th November 2018, and, more recently, Mrs. Abena Pokua v. Yaw Kwakye, Civil Appeal No. J4/17/2025.
[36] In the instant appeal, this Court is duty-bound to undertake a comprehensive review of the entire record, with particular regard to the application for joinder, the supporting affidavit, the supplementary affidavit filed by the Appellant, and the affidavit in opposition, together with all exhibits annexed thereto, including the photographs purported to evidence the alleged customary marriage between the Appellant and the Respondent. Upon such a review, the decisive question is whether the Court of Appeal erred in setting aside the application for joinder.
[37] In my view, the starting point must be the governing statutory provisions. Section 12 of the Matrimonial Causes Act, 1971 (Act 367) provides as follows:
“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.”
[38] Similarly, Order 65 rule 7(1) of the High Court (Civil Procedure) Rules, 2004 (C.I. 47) provides that where an alleged adulterer is named in a 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.”
[39] It is equally stipulated under Order 4 Rule 5(2)(b) of C.I. 47 that, at any stage of the proceedings, the Court may, on such terms as it deems just, either on its own motion or upon application, join as a party any person who ought to have been joined or whose presence before the Court is necessary to ensure that all matters in dispute are effectually and completely determined.
[40] The unambiguous effect of these provisions, when read together with Section 42 of the Interpretation Act, 2009 (Act 792), is that the joinder of a named adulterer to a divorce petition is permissive and discretionary, rather than mandatory. Additionally, the exercise of judicial discretion to join a party to a suit is guided by Order 4 rule 5(2)(b) of C.I. 47, which empowers the Court to order the joinder of any person “who ought to have been joined as a party or whose presence before the Court is necessary to ensure that all matters in dispute in the proceedings are effectively and completely determined and adjudicated upon.” The operative test is therefore one of necessity.
[41] My Lords, I respectfully recognize that, upon the true and proper interpretation of Order 4 rule 5(2) of C.I. 47, an application for joinder ought to be granted where the presence of the party is necessary to ensure that all matters incidental to the proceedings are effectually and completely determined. In this regard, reliance may be placed on the decision of the Supreme Court in SAM (No. 1) v. Attorney-General (supra), particularly the dictum of Ampiah JSC (as he then was).
[42] Also, in Apratwum Manufacturing Co. Ltd. v. Divestiture Implementation Committee [2009] SCGLR 692, the Supreme Court reaffirmed that any person whose presence before the Court is necessary to ensure that the dispute is effectively and completely determined and adjudicated upon is a necessary party and ought to be joined to the proceedings.
[43] In my respectful view, the underlying policy rationale for this rule is the avoidance of a multiplicity of suits. It follows, therefore, that where the presence of a party to the suit would not in any way assist the Court in completely and effectually adjudicating upon the issues in controversy, or where the Court can conveniently and adequately determine the matter in the absence of such party, then that party is not a necessary party.
[44] Further, in my considered opinion, the overriding theme running through Order 4 Rule 5(2) is that the presence of a necessary party is essential to ensure that all matters in dispute are effectively and completely determined and adjudicated upon by the Court. Additionally, such a party, if would be affected by the decision of the Court, is a necessary party. The true ambit of the phrase “matters in dispute,” in my view, encompasses both questions of fact and law to be determined by the Court.
[45] My Lords, the dictum of the venerable Lord Denning M.R. in the old case of Gurtner v Circuit and Another [1968] 1 All ER 328 at page 595 is also instructive. His Lordship observed:
“When two parties are in dispute in an action at law and the determination of the dispute will directly affect a third person in his legal rights or in his pocket, in that he will be bound to foot the bill, then the court in its discretion may allow him to be added as a party on such terms as it thinks fit. By so doing, the court achieves the object of the rule. It enables all matters in dispute to be effectually and completely determined and adjudicated upon between all those directly concerned in the outcome.” [Emphasis Mine].
[46] Since the subject matter for our determination is the issue of joinder, I find it appropriate to refer to the Canadian case of Buhlman v. Peoples Ministries Inc., [2009] O.J. No. 2198 (Ont. Master), wherein it was held that, in determining whether joinder is appropriate, the Court must direct its inquiry to whether there exists a common question of fact or law of sufficient significance in relation to the other issues arising in the proceedings. In so doing, the Court is enjoined to consider what is fair and just, having regard to the respective consequences of a joint as opposed to a separate action on each of the parties. Conversely, where no such common question of fact or law of sufficient importance is disclosed, joinder will not lie .
[47] These principles must be considered in this case within the narrow confines of a divorce petition, the cause of action of which is personal to the parties and often involves sensitive issues. However, on the basis of the statutory provisions set out above, the lawmaker clearly intended that, under certain circumstances, a person alleged to have committed adultery with a party to the marriage may, but need not, be made a party to the proceedings. The lawmaker, while acknowledging the possibility of joining the alleged adulterer, was careful to emphasise that such joinder is not automatic and, in some instances, may not be necessary.
[48] From an examination of the record, the question that arises is whether the Court of Appeal was justified in setting aside the ruling of the High Court on the ground that the Appellant is not a necessary party. At page 11 of its judgment, the Court of Appeal appeared to have narrowed the issue for determination by stating that the grant of the application for joinder hinged on whether the presence of the Appellant would assist in determining the sole legal ground for the divorce, namely, whether the marriage had broken down beyond reconciliation. In resolving this issue, the Court of Appeal stated as follows:
“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 (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.”
[50] My Lords, by formulating the question in such a narrow manner, in my opinion, the Court of Appeal failed to appreciate that the breakdown of a marriage beyond reconciliation is dependent upon the establishment of the specific facts enumerated in section 2(1) of Act 367, one of which is adultery. A marriage cannot be said to have broken down beyond reconciliation unless the Petitioner establishes one or more of the facts specified in section 2(1), and adultery is one of the principal facts upon which the Petitioner relies. The question whether the Respondent committed adultery with the Appellant is therefore not “diversionary”, to borrow the words of the Court of Appeal, but goes to the very heart of the Petitioner’s case.
[51] In the petition filed by the Petitioner, the Appellant was specifically named as having committed adultery with the Respondent. This allegation has been denied by the Respondent, and the Petitioner has been put to strict proof thereof. In the application for joinder, the Appellant, at paragraph 4 of her supplementary affidavit filed on 1st July 2021, exhibited photographs evidencing a customary marriage celebrated in the presence of witnesses between her and the Respondent. This raises a clear rebuttable presumption of marriage in favour of the Appellant (see section 31 of the Evidence Act, 1975 (NRCD 323).
[52] This alleged marriage is expressly denied by the Petitioner, who maintains in the affidavit in opposition that the Appellant is an adulterer. The clear purpose of section 12 of Act 367, as enacted, is to ensure that, where the circumstances so warrant, the person alleged to have committed adultery may be joined to assist in the resolution of that allegation. The issue of adultery is notoriously difficult to prove. Save for clear admissions — whether oral, documentary, or by way of video or photographic evidence, adultery must ordinarily be established by circumstantial evidence. In a case such as the present, where the alleged adulterer positively asserts a subsisting customary marriage with the Respondent and places before the court photographic evidence of a marriage ceremony celebrated before witnesses, the case for joinder is particularly strong.
[53] Furthermore, the question whether the Respondent committed adultery with the Appellant outside his marriage to the Petitioner, or whether the two are in fact customarily married, is central to the determination of whether the marriage has broken down beyond reconciliation. It also raises a consequential issue as to whether the purported monogamous marriage between the Petitioner and the Respondent in 2014 was valid or void. If, indeed, the Respondent had previously contracted a customary marriage with the Appellant in 2012, he would have lacked the capacity to enter into a valid monogamous marriage thereafter in 2014. On the evidence on record, this issue is substantial, and the presence of the Appellant as a party to the proceedings is necessary to enable the trial court to effectually and completely determine all matters in dispute.
[54] There is, also, another dimension to this case that renders the Appellant’s joinder all the more compelling. If the alleged customary marriage with the Respondent is valid, the Appellant contends that she contributed to the acquisition of the properties listed in the Petitioner’s divorce petition. The Petitioner, however, claims entitlement to 50% of the matrimonial assets. Should such a distribution be ordered by the Court without the Appellant’s participation, any proprietary interest she may have would be directly and irremediably affected, without her having been afforded an opportunity to be heard. This engages the principle articulated by Lord Denning M.R. in Gurtner v Circuit (supra), namely, that where the determination of a dispute will directly affect a third party “in his legal rights or in his pocket,” the Court may, in the exercise of its discretion, permit that person to be joined as a party.
[55] The Court of Appeal’s further observation that the Appellant’s joinder would “only murky the waters” is, with respect, an unfortunate characterisation. The Appellant is not a mere busybody seeking to introduce extraneous issues into the proceedings. She is a person who has been publicly named in a petition filed before the court as “an adulterer”, a label that carries social opprobrium and reputational consequences. She asserts that this characterisation is false and that she is, in truth, a wife of the Respondent under customary law. She seeks not merely to assist in the determination of the issue of adultery, but also to vindicate her status and to protect her interest in property to which she claims to have contributed. These are legitimate interests which the court is bound to consider.
[56] My Lords, another aspect of the decision of the Court of Appeal which, in my respectful view, calls for reversal is that the learned Justices of the Court of Appeal failed to justify their decision to interfere with the exercise of discretion by the trial High Court.
[57] This Court has been consistent in cautioning appellate courts to be slow in interfering with the exercise of a trial court’s discretionary power. See Adu v GRA (2013–2014) 2 SCGLR 1176, holding 3; Fofie v Zanyo (1992) 2 GLR 475; and Atuguba & Associates v Scipion Capital (UK) Ltd (supra), where the Supreme Court stated that this Court, sitting as an appellate court, will only interfere with the exercise of discretion where it is shown that the discretion was exercised on wrong or insufficient material placed before the court, or where it is demonstrated that the court failed to take into account relevant considerations or took into account irrelevant considerations in reaching its conclusion. The Court may also intervene where the decision of the lower court is founded on a misapprehension of the law, or on findings of fact that certain circumstances existed or did not exist, when the evidence on record clearly shows otherwise.
[58] Having stated the above, I must be quick to add that I am not unmindful of the fact that in matters of discretion, precedent is of limited utility. As Kay L.J. observed in Jenkins v Bushby [1891] 1 Ch. 484 at 495, C.A.:
“…in a question of discretion, authorities are not of much value. No two cases are exactly alike, and even if they were, the Court cannot be bound by a previous decision to exercise its discretion in a particular way, because that would in effect put an end to the discretion.”
[59] In my view, it is trite law that judicial discretion must always be exercised judiciously. The exercise of discretion is therefore fettered where the decision-maker acts perversely or unreasonably on the face of the evidence. This is because it cannot be assumed that a grant of discretion is an invitation to act on personal preference or prejudice. The law, as I understand it, is that discretion must, in every instance, be exercised judicially, in accordance with the objectives and standards of the law and the applicable legislation.
[60] A properly exercised discretion, in my opinion, is one that is justifiable, transparent, and intelligible based on the evidence and the law, and one that falls within the range of reasonable and acceptable outcomes, defensible on the facts and the law.
[61] Applying the above standard to the present case, I am of the opinion that the Court of Appeal fell into error in setting aside the trial court’s discretionary order to join the Appellant. The trial judge had before her the affidavit evidence of the Appellant asserting a customary marriage, photographic evidence of a marriage ceremony, the Petitioner’s denial, and the competing claims to matrimonial property. The trial judge concluded, in the exercise of her discretion, that joinder was warranted. That was a conclusion open to her on the material before the court — a decision which, in my view, is justifiable, transparent, and intelligible, and one that falls within the range of reasonable and acceptable outcomes, defensible on the facts and the law.
[61] The Court of Appeal, in reversing that decision, failed to explain why the learned trial judge’s decision amounted to a misapprehension of the law or the facts, or why it was unreasonable in light of the evidence or the applicable law. To that extent, the judgment of the Court of Appeal is erroneous. In light of the foregoing analysis, I am of the considered opinion that the Court of Appeal erred in setting aside the ruling of the trial High Court. The Ground III of the grounds of appeal is therefore resolved in favour of the Appellant.
[62] I now turn to Ground II of the grounds of appeal. The issue arising thereunder is whether the Court of Appeal, sitting in Accra, possessed the requisite jurisdiction to determine the appeal at the time it delivered its judgment, having regard to the directive of the Chief Justice transferring all cases originating from the Central and Western Regions to the Court of Appeal, Sekondi.
[63] My Lords, on this ground, I am of the respectful opinion that a distinction ought to be drawn between jurisdiction and venue. Jurisdiction denotes the authority of a court to adjudicate upon a given subject matter and is derived from statute or the Constitution. Venue, on the other hand, pertains merely to the geographical location at which a duly constituted court sits and is essentially administrative in character. The Court of Appeal is a single superior court of record established under Article 126(1)(a)(ii) of the 1992 Constitution and, by virtue of Article 137(1), is vested with jurisdiction extending “throughout Ghana.” Its sittings in the various regions are matters of administrative convenience rather than jurisdictional constraint.
[64] It follows, therefore, that an administrative directive issued by the Chief Justice pursuant to Rule 1 of C.I. 19, regulating the regional sittings of the Court of Appeal for the hearing of appeals originating from the Central and Western Regions, neither divests nor is capable of divesting the Court of Appeal — being a single court properly seised of the appeal of its constitutional jurisdiction to determine and deliver judgment therein.
[65] To that extent, even if the Appellant’s argument is sustainable, and the directive of 15th April 2024 bore the effect attributed to it by the Appellant, the record is devoid of any indication that her objection to venue was timeously made or raised before the Court of Appeal, Accra. On settled authority, such omission constitutes a waiver of any complaint as to venue. See Yaro v. Duho (supra); Nii Aflah v. Boateng [2023] GHASC 58.
[66] In any event, Order 3 rule 2 of C.I. 47, insofar as it affords any persuasive analogy, preserves the validity of proceedings notwithstanding that a cause may have been instituted in an improper region. In the premises, this ground is, with respect, devoid of merit and cannot be sustained. I hereby dismiss the Ground II of Appeal as unmeritorious.
x. Conclusion & Disposition:
[67] My Lords, before I conclude my opinion, and being mindful of the fact that, as the final court of the land, opinions from this Court help to shape public discourse and serve as precedent, I wish to state clearly what this opinion is not about. In my respectful view, this opinion should not be understood as laying down the proposition that, in every case where a person is named in a divorce petition as an alleged adulterer, that person must automatically be joined to the proceedings. Such a proposition would be contrary to the clear language of section 12 of Act 367, which employs the permissive term “may” rather than the mandatory “shall.”
[68] For the avoidance of doubt, persons commonly referred to in Ghana as “side chicks” or “side guys,” or by whatever other fanciful description, have no place as parties in divorce proceedings where their only involvement is the admission of having committed adultery with a person who is lawfully married. At best, such a person may be called as a witness. Such persons may also apply to the Court to be struck out as parties on the ground of misjoinder where they have been joined by the petitioner. In every case, the Court must exercise its discretion judicially, having regard to the particular facts and circumstances before it.
[69] What this opinion is about, however, is this: where a named alleged adulterer places before the Court credible evidence that he or she is lawfully married to the respondent under customary law; where that assertion, if proved, would impugn the validity of the marriage the petitioner seeks to dissolve; and where the alleged adulterer further claims an interest in the matrimonial property that is the subject of the petition, then, having regard to all the circumstances of the case and in the interests of justice, such a person ought to be joined as a party to the proceedings. In those circumstances, the presence of the alleged adulterer is not merely useful; it is necessary for the effective and complete determination of all matters in dispute.
[70] For the reasons set out above, I am of the considered opinion that the Court of Appeal erred in setting aside the order of the trial High Court. The Appellant’s presence is necessary for the effective and complete determination of the issues before the trial court, in particular: the question whether the Appellant is a lawfully married customary wife of the Respondent; the consequent question of the validity of the ordinance marriage between the Petitioner and the Respondent; and the related question of the distribution of matrimonial property.
[71] I would accordingly allow the appeal, set aside the judgment of the Court of Appeal dated 9th May 2024, and reinstate the order of the High Court dated 1st July 2021 joining the Appellant as a co-respondent to the divorce petition. The case shall be remitted to the High Court for trial on the merits.
(SGD.) K. T. ACKAAH-BOAFO
(JUSTICE OF THE SUPREME COURT)
(SGD.) A. LOVELACE-JOHNSON (MS.)
(JUSTICE OF THE SUPREME COURT)
(SGD.) PROF. H.J.A.N MENSA-BONSU (MRS.)
(JUSTICE OF THE SUPREME COURT)
(SGD.) R. ADJEI-FRIMPONG
(JUSTICE OF THE SUPREME COURT)
CONCURRING OPINION
DZAMEFE JSC:
This is an appeal against the judgment of the Court of Appeal dated 9th day of May 2024.
BACKGROUND
The background to this appeal is that the Petitioner Vida Yeboah on 10th April 2019 petitioned the High Court Agona Swedru for divorce against the Respondent, Dr. Stephen Yeboah.
One of the reasons for the petition for the dissolution of the marriage was the alleged adulterous life of the Respondent in course of the marriage.
The Petitioner averred that during the pendency of the marriage, the respondent has engaged in various acts of adultery and continued to engage in such acts to the extent that the Petitioner can no longer be expected to live with Respondent as husband and wife. She particularized the acts of adultery.
PARTICULARS OF ADULTERY
a. That the Respondent in his own self-confession is in a relationship with another woman which relationship Respondent claims is in the nature of customary marriage to one Mercy Agyeiwaa who used to live at Kasoa in the Central Region of the Republic of Ghana.
b. The Respondent in order to confirm this adulterous and criminal relationship has frantically taken steps to move and has moved the said Mercy Agyeiwaa from Kasoa to a new apartment at Gomoa Oguaakrom, and has communicated this information to the Petitioner.
c. That the adulterous relationship of the Respondent with Mercy Agyeiwaa is public knowledge within the boundaries of Gomoa Oguaakrom particularly where the matrimonial home of the marriage is located.
d. That without a word from the Respondent, the Respondent in the recent past has abandoned the matrimonial home and is now staying comfortably and adulterously with the said Mercy Agyeiwaa in the new apartment which is just about twenty (20) feet from the matrimonial home.
e. That for a period of over three (3) months, the Respondent does not come to the matrimonial home and has refused to maintain the Petitioner and the children of the marriage
In the particulars of adultery, the Petitioner mentioned one Mercy Agyeiwaa who lives in Kasoa in the Central Region of the Republic of Ghana as the adulterer with the Respondent.
PARTICULARS FOR JOINDER
The said lady Mercy Agyeiwaa upon receipt of this information filed an application for joinder to defend her name pursuant to Order 4(5) (2) (b) of C. I. 47. This application was dated 7th June 2021.
In her affidavit in support of the application she denied the allegation of adultery with the Respondent stating that in fact she is the second wife of the Respondent, having married him under the Akan custom and practices on 15th July 2012 to the knowledge of the Petitioner.
APPLICATION FOR JOINDER BY MERCY AGYEIWAA
Per the record of appeal while this appeal was pending another application was filed to join one MERCY AGYEIWAA TO THE SUIT as 2nd respondent pursuant to Order 4(5) (2) (b) of C.I.47 dated 7th June 2021 at GRACE CHAMBERS, WINNEBA and addressed to counsel for the petitioner and respondent respectively.
In the affidavit in support of this application for joinder, the applicant averred that her attention had been drawn to a petition filed for divorce wherein the petitioner alleged variously that she the applicant was in an adulterous relationship with the respondent. This she denied and by law praying to be permitted to join the suit as an alleged adulterer.
She averred that she is in fact the second wife of the respondent, having married him under the Akan customs and practices on 15th July 2012 to the knowledge of the petitioner and since then has cohabited with the respondent in and out of Gomoa Oguaakrom to the knowledge of all and sundry including the petitioner. She attached a picture showing the respondent being sandwiched by the petitioner and herself at an Award Ceremony held at Lucky Herbal Clinic on 13th March 2014.
That, it therefore came as a surprise to her that the parties to the suit are claiming that their marriage was celebrated under the Marriage Ordinance on 30th January 2014. That if it is true that the parties to the suit celebrated another marriage under the Marriage Ordinance in January 2014 knowing that she had an existing customary marriage with the respondent, then the ordinance marriage between the parties is a nullity.
She averred further that her attention had further been drawn to reliefs being sought by the parties particularly the petitioner and said the petitioner is not entitled to her prayer for 50% share of properties listed in her endorsement. That as the 2nd wife of the respondent and through her various enterprises, she contributed to the acquisition of all the properties listed in the petition whereas the petitioner did not contribute in any way to their acquisition.
She prayed the court to grant the application as a necessary party to the suit to ensure that all matters in dispute are effectively and completely determined and adjudicated upon.
RESPONSE
The petitioner opposed this application for joinder by the applicant Mercy Agyiwaa as brought in bad faith and intended to prejudice the fair hearing of the petition. That is her petition for dissolution of the marriage filed on 26th April 2019, one of her reasons why the marriage between the parties had broken down beyond reconciliation is the adulterous acts of the respondent with one Mercy Agyeiwaa, the applicant herein. This she became aware of sometime in 2019 when she and the respondent were having marital problems.
The petitioner averred further that she is the only wife of the respondent and was married to him under custom and subsequently under the Marriage Ordinance.
She averred that the applicant’s assertion before the court that she has been informed and have accepted her alleged position as the second wife of the respondent is untrue and her Exhibit “I” attached to the affidavit in support of her application is also misleading. That the said exhibit was taken during a ceremony held in honour of the respondent when he received an award for the first time on behalf of the clinic and in the celebratory atmosphere at the ceremony, the respondent warmly took photographs with all and sundry who and attended the ceremony held in his honour.
It is her case that the applicant’s sole reason for this application is for her to defend an alleged interest to the properties that have been listed in the petition as joint properties of the respondent and herself, the petitioner. That the applicant by her own showing is not a necessary party to aid the court to determine whether the marriage between the parties is broken down beyond reconciliation and same be dismissed as unmeritorious.
In a supplementary affidavit by the applicant for the joinder, Mercy Agyiwaa, she averred that, she is the second wife of the respondent, having married him under the Akan customs and practices on 15th July 2012 to the knowledge of the petitioner and in the presence of witnesses.
To this she attached pictures showing the celebration of the marriage rites between the respondent and applicant. Exhibit 2
That at the Awards ceremony held at the Lucky Herbal Clinic on the 13th March 2014, referred to earlier on, the respondent, petitioner and she the applicant were seated in the front row of the high table as husband and wives. She attached pictures to that effect, exhibit 3 & 3A [page 333/4 ROA].
RULING
The High Court on 1st July 2021, granted the application and joined the applicant Mercy Agyiwaa as a party to the suit.
The court in its ruling said the applicants name had been mentioned in the petition filed on the 26th April 2019 under the particulars of adultery filed by the petitioner/respondent. Under Ord. 65 (7) of C.I.47 and also Section 12 of the Matrimonial Causes Act 1971 Act 367 it had indicated that a person named in the petition as an adulterer may be made a co-respondent in the proceedings. The court therefore joined the applicant for matters in controversy in the suit to be determined effectively.
NOTICE OF APPEAL
The petitioner/appellant dissatisfied with the ruling of the High Court, dated 1st day of July 2021 appealed same to the Court of Appeal on the following grounds; –
1. The learned trial judge erred in law when she ordered that the applicant/respondent, Mercy Agyeiwa 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 of the application for joinder.
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.
2. The judgement is against the weight of evidence.
3. Additional grounds to be filed upon receipt of the ruling and record of appeal.
The relief sought from the Court of Appeal is to reverse the ruling of the High Court, Swedru dated 1st day of July 2021 which joined the applicant/respondent, Mercy Agyeiwaa as a co-respondent to the suit. – [page 360 ROA]
JUDGMENT
The Court of Appeal after going through the various written submissions filed by the parties delivered its judgment on the 9th of May 2024.
The Court of Appeal stated that 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. The court’s view is that the issue to consider is whether the grounds and the presence of the applicant 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. The court went on to say 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. That 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. The court’s finding is that the affidavit in support of the application does nothing to support the view that the Applicant/Respondent, Mercy Agyeiwaa is needed to facilitate the court’s duty – [page 53 ROA Vol. 2]
Does the court need Mercy Agyeiwaa before it can make a determination of the suit, one way or the other on the question of whether or not the marriage between the parties has broken down beyond reconciliation? The court held “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” – [page 54 ROA Vol.2]. That joining the applicant will be diversionary and will only murky the waters.
The Court of Appeal concluded that “the application in 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’. The other grounds are no longer necessary in view of the findings made. The appeal upheld. The order for joinder in respect of the Applicant Mercy Agyeiwaa granted by the High Court, Agona Swedru on 1st July 2021 was set aside for the divorce proceedings to take its normal course.
NOTICE OF APPEAL
The Applicant/Respondent/Appellant herein Mercy Agyeiwaa being dissatisfied with the judgment of the Court of Appeal, dated 9th day of May 2024, launched this appeal before this Court.
GROUNDS OF APPEAL
i. That the judgment is against the weight of evidence.
ii. That the Court of Appeal, Accra lacked jurisdiction at the time of delivering the judgment in the light of the Chief Justice’s directive of transferring all cases from the Central and Western Regions to the Court of Appeal, Sekondi.
iii. The Court of Appeal erred by holding that the presence of the Applicant in the suit is not relevant to resolve the issue of whether the marriage has broken down beyond reconciliation.
iv. Additional grounds may be filed in respect of the record of proceedings.
SUBMISSIONS
Though the second ground of appeal talks about the court’s jurisdiction, the appellant failed to make any submission on same. The appellant failed to establish that directive from the Honourable Chief Justice. No letter or document was tendered to establish that assertion. It is therefore deemed abandoned.
GROUND 1
That the judgment is against the weight of the evidence.
Counsel for the Appellant submits that by launching this appeal, the applicant is humbly inviting this court to have a re-look at the entire processes and determine for itself if the conclusion by the Court of Appeal that the Applicant is not a necessary party to the suit is tenable.
To discharge the onus that contain pieces of evidence on record which if considered or well applied would have led to a different conclusion, Counsel stated that the Court of Appeal did not consider the affidavit evidence in their entirety before coming to the conclusion that the Applicant is not a necessary party to the suit.
Counsel submits that a careful study of the affidavit filed by the appellant shows that by the totality of her evidence, she was saying that she was married to the Respondent under customary law and this puts in doubt the assertion of the Petitioner that the Respondent and the appellant were in an adulterous relationship.
It is the case of the appellant that the question as to whether or not the Respondent has committed adultery and more importantly, with whom, is very germane to the suit pending before the High Court. That in the petition, the appellant was specifically mentioned as one of the so called several women the Respondent had committed adultery with and therefore she should be given the opportunity to vindicate her right as a descent married woman rather than some immoral character whose aim is to plant seeds of discord between the Petitioner and the Respondent. The Court Appeal should not have disturbed the ruling of the trial High Court if they had paid particular attention to the case of the Appellant, Counsel supported.
Counsel for the Appellant in his second leg of argument on this ground of appeal submits that the Court of Appeal misapprehended Section 2(1) (a) of the Matrimonial Causes Act, 1970 (Act 367) in relation to this present case.
Counsel referred the Court to: –
Section 2(1)(a) of Act 367 which states:
“for the purpose of showing that the marriage has broken down beyond reconciliation the petitioner shall satisfy the Court that the Respondent has committed adultery and that by reason of the adultery, the Petitioner finds it intolerable to live with the Respondent”.
It is the case of the appellant that the Court of Appeal misapprehended the above cited provision in relation to the instant case when it held that;-
“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”.
Counsel submits that this conclusion cannot be borne out of the record since the petitioner stated categorically as follows:
“the Respondent has engaged in various adulterous acts and continues to engage in such acts of adultery to the extent that the Respondent’s continuous acts of adultery is such that the Petitioner can no longer be expected to live with Respondent as husband and wife”.
Counsel submits further that by the Petitioner’s averments she is stating in essence that the Respondent had committed adultery with the Appellant and by that reason she finds it intolerable to live with him as husband and wife. It is therefore not entirely precise for the Court of Appeal to say that the pleading did not tackle the matter of whether or not the marriage has broken down beyond reconciliation. Counsel said indeed, an allegation that a marriage had broken down beyond reconciliation cannot showed alone unless any of the facts enumerated under Section 2(1) of Act 367 are established.
RESPONSE
Counsel for the Respondent in his submission on the ground of appeal submits that this omnibus ground is fundamentally misplaced and inappropriate in the context because this ground of appeal has been held in a long line of cases to be inappropriate and unhelpful tool particularly in interlocutory appeals or matters involving the exercise of judicial discretion where no viva voce evidence was adduced.
Counsel submit further that the omnibus ground is primarily suited for cases where trial had been conducted, evidence adduced and weighed, triggering and validating the duty of Appellate Court to re-evaluate the evidence on the record and make its findings. Conversely, where the ruling under appeal is interlocutory typically based on affidavit evidence and legal arguments rather than trial, the invocation of the omnibus ground is ill-suited and inappropriate in those circumstances.
We cannot agree more with Counsel for the Respondent on this position of the law. There are a plethora of authorities that held that the omnibus ground is very inappropriate where there was no trial conducted and evidence taken and weighed. This decision before us was based on affidavit evidence and the instant appeal is an interlocutory appeal as to whether the Appellant be joined to the suit. Interlocutory appeals where no evidence was led, the omnibus ground of appeal is inappropriate and misconceived. See – ATUGUBA & ASSOCIATES V. SCIPION CAPITAL (UK) LTD. HOLMEN FINWICK WILLIAM LLP. CIVIL APPEAL NO. J4/04/2019, dated 3rd April 2019, SC.
The omnibus ground is usually common in cases in which evidence was led and the trial court was enjoined to evaluate the evidence on record and make its findings of fact in appropriate cases. Cases in which no evidence was led but the order which has been appealed against is interlocutory, such ground of appeal are not canvassed at all.
See –
a. ASAMOAH V. MARFUL [2011] 2 SCGLR 832;
ii. REPUBLIC V. CONDUAH, EX PARTE ABA (Sub.) ASAMOAH [2013-14] SCGLR 1032.
The omnibus ground is primarily suited for cases where trial had been conducted, evidence adduced and weighed, triggering and validating the duty of Appellate Court to re-evaluate the evidence on the record and make its findings. In the instant appeal, the ruling under appeal is interlocutory, based on affidavit evidence and legal arguments and not a trial so this ground of appeal is inappropriate and we hold as such.
Counsel for the Respondent in response to the Appellant’s submission that the Court of Appeal did not consider the entire affidavit on record before coming to the conclusion that the Appellant is not a necessary party to the suit submitted that, that argument by the Appellant is misconceived and unsupported by the evidence on record. That a careful review of the Court of Appeal’s judgment reveals that it meticulously assessed the affidavit evidence, that is the affidavit in support and the supplementary affidavits filed by the Appellant on the 7th day of June, 2021 and 1st day of July, 2021 respectively and the affidavit in opposition filed by the Petitioner on the 25th June, 2021 before arriving at their decision.
Counsel submits that the Court of Appeal rightly focused on the purpose for the suit; to determine whether or not the marriage between the Petitioner and Respondent has broken down beyond reconciliation on grounds of adultery. Thus, the critical issue before the court was whether or not the Respondent had committed adultery, and whether by virtue of the adultery, the Petitioner can no longer be expected to live with the Respondent as husband and wife and for this purpose, the presence of the Appellant is not required to resolve the issue. Counsel said the appellants affidavit did not address the core issue of the breakdown of the marriage but rather sought to vindicate her own status.
Counsel said the Court of Appeal considered the affidavit of the Appellant carefully and entirely before reaching the determination that she was not relevant to the substantive dispute as a party.
ANALYSIS
It is usually the practice that parties may on application join new parties to the suit or persons not parties may apply to join the suit for the sole purpose of fulfilling the objectives of Order 4 rule 5 of C.I. 47 so that there would not be any multiplicity of suits and thereby allowing the Court to completely and effectively determine all the issues in controversy.
Section 12 of the Matrimonial Causes Act, 1971 (Act 367) states that when a petition for divorce is filed based on the adultery of the Respondent, the person with whom the alleged adultery was committed (the alleged adulterer” or co-respondent) may, but need not, be made a party to the proceedings.
In the instant appeal, one of the grounds for divorce was that the Respondent was having an adulterous affair with other women especially one Mercy Agyeiwaa and due to that the Petitioner cannot comfortably cohabit with the Respondent as husband and wife. This allegation was denied by the Respondent. The alleged adulterer, Mercy Agyeiwaa on hearing this, applied to the trial High Court Agona Swedru to be joined to the suit as a Co-Respondent to defend herself and clear her name. She denied having any adulterous relationship with the Respondent claiming she is rather a wife to the Respondent. That she was customarily married to the Respondent even before the ordinance marriage between the Petitioner and the Respondent.
Though the Petitioner opposed that application for joinder the trial High Court after going through the affidavit evidence filed by the parties granted the joinder.
The High Court delivered itself thus:
“Having heard submissions of both Counsel, I am of the view that the said Applicant Mercy Agyeiwaa’s should be joined to the suit. Mercy Agyeiwaa’s name had been mentioned in the Petition filed on the 26th of April 2019 under the particulars of adultery filed by the Petitioner/Respondent. Under Order 65 rule (7) of C.I. 47 and also Section 12 of the Matrimonial Causes Act 1971, Act 367, it had indicated that a person named in the petition as an adulterer may be made a Co-Respondent in the proceedings. I would therefore join the Applicant for matters in controversy in the suit to be determined effectively. Suit will take its normal course. Cost of GH¢1,000.00 awarded against the Applicant for the Petitioner.”
The Petitioner dissatisfied with the ruling of the trial High Court appealed same to the Court of Appeal. The Court of Appeal however upheld her appeal, overturned the ruling of the High Court and set aside the order granting the joinder, hence this appeal before this court.
Order 65 rule (7)(1)(2) states:
(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.
Matrimonial Causes Act, 1971 (Act 367) Section 12 states:
(1) Where an alleged adulterer is named 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) 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.
From the two laws above, it is crystal clear that any alleged adulterer mentioned in a petition for divorce can apply to join the proceedings. However, the decision to either grant the applicant or refuse same is entirely the discretion of the court since it clearly states ‘may’. The use of the word ‘may’ clearly show that the grant of such joinder application is within the discretion of the court to which the application was made.
Its trite that in a question of discretion, authorities are not of much value. since no two cases are exactly alike and even if they were, the court cannot be bound by the previous decision to exercise its discretion in a particular way. This is because that would be in effect putting an end to the discretion.
See;
i. Kyenkyenhene v. Adu [2003/4] I SCGLR 154
ii. Tema Oil Refinery v. Africa Automobile Ltd. [2011] 2 SCGLR 907
The essence and principle governing joinders are not far stretched but trite. Order 4 r. 5 (2) (b) of C. I. 47, states that “at any stage of proceedings the court may on such terms as it thinks just either on its own motion or on application (b) order any person who ought to have been joined as a party or whose presence before the court is necessary to ensure that all matters in dispute in the proceedings are effectively and completely determined and adjudicated upon to be added as a party.
The rule however does not give power to add a party whenever it is just or convenient to do so. It gives power to do so only if he/she ought to have been joined as a party or if his presence is necessary for the effectual and complete determination and adjudication upon all matters in dispute in the cause or matter once and for all. This discretion however must be based on the pleadings before the court as to the necessity of the joinder, that is the issue before the court and the nature of the claim.
See Joseph Sam v. The Attorney General dated 18th March 2000 CM4/2000 per Ampiah JSC.
Under Rule 45 (4) of the Supreme Court Rules, 1996 (C. I. 16), the overriding principle in granting an order for joinder of a person as a party to an action was that all the necessary and proper parties should be before the court so as to ensure that all matters in dispute might be effectively and completely determined and adjudicated upon.
– In Re Presidential Election Petition, Nana Addo Dankwa Akufo-Addo and Ors. vrs. John Dramani Mahama & Ors. [2013] SCGLR Special Edition pg. 4.
In the instant appeal the trial High Court in exercise of its discretion granted the application for joinder. The question is, if there was any issue or irregularity or abuse of that discretionary power to enable the appellate court to intervene. Was the discretion exercised on wrong or inadequate materials, or that the court acted under a misapprehension of fact in that it either gave weight to irrelevant or unproved matters or omitted to take relevant matters into account? Blunt v. Blunt [1943] AC 517 HOL.
There are some major grounds upon which a party can succeed in an appeal against discretions by the court, if these factors can be established against the decision of the court. A party cannot appeal against the discretion of a lower court in a bid for the appellate court to substitute its discretion.
– Agyei v. Similao [2012] 1 SCGLR 127
– Asibey III v. Ayisi [1973] 1 GLR 102 CA
The well-known and time honoured legal principle is that an appeal against a decision based on the exercise of a court’s discretionary jurisdiction would succeed in only those clearly exceptional cases where in sum the judge failed to act judicially. The applicable principles are, an appellate court would interfere with the exercise of discretion where the court below applied the wrong principles or conclusion reached would work injustice; or that the discretion was exercised on wrong or inadequate material, arbitrary, capricious etc, uninformed conclusions stand in danger of being reversed.
– Sappor v. Wigtap Ltd. [2007/8] SCGLR 676
– In other words, a party can succeed in an appeal against a lower courts discretionary power if they prove the judge abused their discretion by acting arbitrarily, applying wrong legal principles or ignoring material evidence, leading to a manifest injustice. Appellate courts rarely overturn discretionary decisions unless they are “unreasonable” or “wholly irrational”.
In the instant appeal, the Court of Appeal never indicated any errors in the exercise of the trial court’s discretionary jurisdiction. The Court of Appeal never gave any reasons for interfering with the discretion of the trial High Court by upholding the appeal and setting aside the decision of the trial High Court. The Court of Appeal erred when without just cause substituted the discretion of the trial High Court.
Be it as it may, we shall also look at the appeal on its merits as to whether the appellants application for joinder deserves to be granted or refused.
ADULTERY
Paragraph 27 of the Petitioner’s pleadings states: –
27. That during the pendency of the marriage, the Respondent was engaged in various adulterous acts and continued to engage in such acts of adultery to the extent that the Respondent’s continuous act of adultery is such that the Petitioner can no longer be expected to live with Respondent as husband and wife.
The particulars of the adultery were listed and the applicant Mercy Agyeiwaa’s name mentioned as one of the adulterers. In fact, she was the only one specifically mentioned in the petition.
Being one of the main grounds for the grant of the petition for divorce, the onus shifted onto the petitioner to establish two things. First, that the Respondent engaged in adulterous acts and secondly, he did with the said Mercy Agyeiwaa. The basic principle of evidence in our courts is that the one who asserts assumes the burden to establish his or her assertion or else the assertion be dismissed as not true.
According to the Petitioner, the Respondent himself confessed he is in a relationship with the lady in the nature of customary marriage to her, moved her from Kasoa to a new apartment at Gomoa Oguaakrom, their adulterous relationship is public knowledge and the Respondent now stays with the lady Mercy Agyeiwaa comfortably in the new apartment which is just about twenty (20) feet from her matrimonial home. These are all allegations made by the Petitioner in her affidavit and no evidence has been led yet to establish same since the trial has not started.
On the other hand, the applicant on hearing the Petition applied to join and, in the application, denied her description as an adulterer stating that she was not having any adulterous affair with the Respondent but rather she is a wife to the Respondent. That she was customarily married under the Akan custom by the Respondent to the knowledge of all including the Petitioner. That the Petitioner is very aware of this relationship. She even exhibited photographs of herself and the Petitioner flanking the Respondent on the High table at an award ceremony at Lucky Herbal Clinic as wives to the knowledge of all. She even alleges that she was customarily married by the Respondent even before the ordinance marriage between the Petitioner and Respondent.
The general test for a joinder is whether the intervener is a necessary and proper party whose presence in the suit would enable the court effectively adjudicate all issues in controversy in the action before it. According to Section 7(2) of the Matrimonial Causes Act, 1971 (Act 367), the sole ground for the grant of a divorce petition is that the marriage has broken down beyond reconciliation. Section 2 (1) presents a list of facts to be proven for the purposes of showing that the marriage has broken down beyond reconciliation. The law clearly states that the list of facts to establish that the marriage has broken down beyond reconciliation must not just be listed but proven. One of such facts is adultery and any Petitioner who mentions adultery as one of the grounds to rely on to grant the petition for divorce carries the burden of persuasion to establish or prove the assertion of adultery and not just to mention same in the pleadings.
In the instant appeal the Applicant applied to join the suit for several reasons. It is not just to defend herself of whether she was in an adulterous relationship with the Respondent or not but to establish her claim that she is a wife to the Respondent. That she was married by the Respondent according to Akan custom to the knowledge of the public and not secretly. She tendered a picture of the marriage ceremony where the Respondent was putting on a ring on her finger before witnesses. She applied to establish her status as a wife of the Respondent and not an adulterer or someone having an amorous relationship with the Respondent but a wife.
The question is whether it will be fair to deny such a person the right to join the suit to establish her status because of the allegation? It is true the court could go ahead to determine whether the marriage has broken down beyond reconciliation but in fairness since one of the grounds the Petitioner alleged is the adultery of Respondent with the applicant, I think it is fair that she be allowed to join to rebut that assertion by the Petitioner. In all fairness, can a “wife” sit unconcerned when another woman describes her as an adulterer with the very man she describes as her husband in court?
I must admit though that by the Applicant’s application that she is a wife married under customary law, introduces some legal complexities into the matter. I say so because if there is evidence that the Respondent married her customarily after his ordinance marriage to the Petitioner then it goes into the arena of bigamy, which is frowned upon by our laws. The Applicant even alleged she was customarily married before the ordinance marriage by the Respondent and the Petitioner.
All these are issues to be cleared in the trial when the court receives evidence from the parties to be able to resolve these legal issues. The joinder would have offered the court the opportunity to effectively adjudicate all these issues in controversy in the action before it. Infact, it would be a travesty of justice if the applicant is not allowed to join the suit.
The allegation of the Petitioner, if it turns out not to be true, that the Respondent and applicant were having an adulterous relationship will amount to defaming the applicant and she has the right to institute an action for defamation against the Petitioner. This will encourage a multiplicity of suits and this could be avoided if she is joined to the suit and all those issues would be effectively and completely adjudicated upon. This was also an opportunity for the Applicant to clear her name as to whether she was an adulterer, knowing the consequences of such behaviours and character in our society.
By a true and proper interpretation of Order 4 r 5 (2) of C. I. 47, an application for joinder shall be granted where the presence of the party would ensure that all matters incidental to the proceedings were effectively and completely determined. The policy rational is to avoid multiplicity of suits. Further, the overriding them running through the rules of joinder procedure, is that the presence of a necessary party is to ensure that all “matters in dispute” are effectively and completely determined and adjudicated upon by the court.
The law as stated earlier in the judgment allows such a person mentioned as an adulterer to intervene, i.e. apply to join the suit. In this instant appeal, I do not see why the Court of Appeal interfered with the discretion of the trial High Court in setting aside the grant of the joinder. The Court of Appeal with all due respect, did not proffer any good reasons for interfering with the trial High Court’s discretion in granting the application for the alleged adulterer to join the suit as the law allows. There is no evidence on record that the High Court did not use the discretion judicially to merit interference by the Court of Appeal. The law cautioned appellate court’s to be very circumspect and must hasten slowly in interfering with the discretionary jurisdiction of the lower courts. In the instant appeal, I am of the candid view and hold as such that the Court of Appeal erred in overturning the decision of the trial High Court by granting the appeal.
The Court of Appeal’s decision is hereby overturned and the appeal granted. The Applicant’s application is hereby granted and can join as a party to the suit. The Court of Appeal’s orders are hereby set aside.
The appeal is granted. The case must take it normal course.
The other grounds are of no effect.
(SGD.) S. DZAMEFE
(JUSTICE OF THE SUPREME COURT)
COUNSEL
CHARLES QUANSAH ESQ. FOR THE PETITIONER/APPELLANT/
RESPONDENT WITH AMA OPOKU AMPOSAH ESQ., NANA KWESI AGYEMANG ESQ. AND EMMANUELLA TABIRI ESQ.
BENEDICT BOSU SIMPSON ESQ. FOR THE APPLICANT/REPONDENT/
APPELLANT.
