BENJAMIN AWUKU

MARTINSON
V.
SARAH MARTISON
(2022) JELR 110486 (CA)
COURT OF APPEAL · H1/102/2020 · 27 JAN 2022 · GHANA
CORAM
DENNIS ADJEI JA PRESIDING P. BRIGHT MENSAH JA GEORGE KOOMSON JA

GENERATE SUMMARY
JUDGMENT
BRIGHT MENSAH JA:
The instant appeal launched by the petitioner/appellant herein, is against the judgment of the
High Court, Accra delivered 24/05/2018, the appellant being dissatisfied with the court’s
decision. The petitioner/appellant shall hereinafter be referred to simply as the petitioner whilst
the respondent/ respondent shall hereinafter referred simply as the respondent.
My Lords, the chief question in this appeal turns on whether the property settlement by the lower
court was fair and equitable.
The petition:
In his petition filed in the lower court 09/12/2013, the petitioner averred that he was a retired Air
Force Officer of the Ghana Air Force and a retired International Public Servant having worked
for the World Food Programme of the United Nations. He worked in Uganda where he first met
the respondent in 1989. They started a relationship that resulted in the petitioner impregnating
the respondent who had a child in 1990. The petitioner went ahead to perform the traditional
marriage in 1991 and took the respondent to the altar in December 1991 to have a church
wedding.
The petitioner averred further that by the nature of his job he did not stay in Uganda for long as
he was moved quite often to other places like Kenya and Ethiopia and war zone areas including
South Sudan and Afghanistan. He retired from the United Nations in 2000 and relocated to
Ghana with the respondent in 2001. According to him, he acquired three (3) building/residential
complexes and four (4) bungalow type buildings in Uganda which were in the care of the
respondent because she stayed in Uganda with the children of the house all the time. It is his
case however that the respondent registered those properties in her sole name and also
accumulated much rents/proceeds therefrom, without accounting to him.
He pleaded further that beginning from 2007, their relationship grew sour to the extent that
although they both lived under the same roof they were not talking to each other. When all
attempts to reconcile them failed he filed this petition on grounds, inter alia, that the marriage has
broken down beyond reconciliation, the petitioner stated further. The petitioner sought the
following reliefs from the divorce court:
1. That the marriage between the parties contracted and consummated in Kampala, Uganda in
December 1991 be dissolved by the court applying section 31(a) of the Matrimonial Causes Act,
1971 [Act 367];
2. That the respondent be ordered to account for rents collected by her in respect of the
petitioner’s properties at paragraph 9;
3. That property settlement between the parties be as proposed herein;
4. Any other order or orders that the court may deem just. See: pp 1 – 7 of the record of appeal
[roa]
In his evidence, the petitioner testified on oath saying that he was solely responsible for the
education of the 2 children of the household who were schooling in the United States, as well as
the child of the respondent she brought into the marriage. The educational expenses run into
thousands of the US dollars.
In his evidence appearing at pp 52 – 53 [roa] the petitioner insisted that since his marriage to her,
the respondent has never worked to receive any earnings nor obtained bank loans to justify her
claim that she acquired the Uganda properties. Reacting to paragraph 12 of the respondent’s
Answer, the petitioner said he built all the houses in Uganda and that it was fraudulent if the
respondent was claiming otherwise.
He denied that the Ghana properties are joint properties of the parties. He maintained that the
respondent was not involved in building the Ghana houses as he was solely responsible for their
acquisition.
Answer to the petition:
In her answer to the petition, the respondent admitted the petitioner’s averments contained in
paragraphs 1 – 3 of the petition. However, she denied that the petitioner retired in 2000. He
rather retired in July 2002.
The respondent maintained that the petitioner was rather the cause of the breakdown of the
marriage and listed the grounds in paragraph 7 of her answer. In summary, she said it is rather
the petitioner who has grown cold towards the respondent; refused to attend church and pray
with her and also refused her sex.
The respondent averred further that before the petitioner got married to her, she was a Hotel
Manager in Kampala and was also running a profitable guest and restaurant with her father. She
claimed that the other properties are jointly owned with her father and sister but the properties
are registered in her name. She rented out four (two) bedroom units in Kampala to take care of
her 3 orphans of her deceased son, her nephew and son.
The respondent averred in paragraph 16 of her Answer that upon marrying the petitioner, the
petitioner asked her to stop work to take care of the home, care for their 2 children of the
household; washed the petitioner’s clothes and generally did what a dutiful and respectful wife
would do so that the husband would be able to discharge his duties with the UN.
According to the respondent as averred to in paragraph 15 of her Answer, the petitioner has
about 14 buildings in Ghana at various places like Alajo, Accra; Larteh, Ashalley Botwe and
Tema, attracting rents some in the Ghana Cedis and others in the US Dollar. The respondent
claimed that all the properties in Ghana were put up by the parties after the petitioner’s
retirement from the UN and the parties’ settlement in Ghana except the Tema, the Ashalley
Botwe and the Larteh properties, as well as the matrimonial building. See: p. 12 [roa].
It was the case of the respondent that she always went round to buy building materials and
supervised the construction workers. Additionally, she joined the petitioner in signing tenancy
agreements with tenants. The respondent claimed that the incidents leading to the breakdown of
the marriage and the petitioner filing the petition was orchestrated by petitioner’s unreasonable
behaviour.
Cross-petition:
The respondent cross-petitioned that in the event that the marriage was dissolved, she prayed the
court as follows:
a. An order settling the matrimonial building and home known as House no. C30/17, Alajo,
Accra; House no. 15D Febian Street Alajo, Accra; and stores no.1 and 2, Alajo Accra on the
respondent absolutely;
b. An order that the petitioner pays the respondent an amount of Ghc100,000. as lump sum and
financial settlement upon the dissolution of their marriage;
c. An order that the petitioner pays the legal fees of the respondent occasioned by this petition.
d. Costs. See: pp 8 – 16 [roa].
Giving evidence in support of her claims, the respondent did testify that she worked in the
Summer Hotel, Uganda, a three-star forty-five room first class hotel between 1987 and
1989. She was financially viable and was able to put a guest house, Christian Guest House
together with her father.
Additionally, she said she previously worked with Ugandan hotels for 9 years between 1977 and
1986 as a Front Office Supervisor before shifting to the Summer Hotel. She worked in that
capacity before the petitioner met her. She owned a 3 bedroom house together with boys’
quarters in Lukuli in Uganda. She had her a Toyota Carina and a Barclays Bank account before
she met petitioner. She had 2 children before meeting the petitioner and was responsible for
their upkeep and education. Upon meeting her, the petitioner stopped her from working so as to
take care of the kids and did not also want her to go on night duties.
She claimed further that the petitioner never made any contribution towards the land she bought
in Kampala and construction of the building thereon, neither did he contribute any money or
building materials during their construction. She denied that the petitioner invested over One
million dollars to the construction of the Uganda properties. She did indicate that during the
period that she put up her four units building in Kampala, the petitioner was on duty in
Afghanistan. See: pp 266 – 267 [roa]
She continued that when she joined the petitioner in Ghana at the end of his mission with the
UN, the petitioner had already built the matrimonial home and that was the only property the
petitioner had in Ghana at the time. So, they started building one house at a time; gave out the
constructed house on tenancy and started another and rent that also in respect of all the houses
they jointly built. She added that her name together with the petitioner’s appeared on the
tenancy agreements. She always went to market to purchase building materials with the
petitioner. See: pp 260 – 261 [roa]
Reply to the Answer:
In a 29 – paragraph Reply, the petitioner joined issues generally with the respondent’s
answer. The petitioner denied in particular, that the Uganda properties were jointly with her
father and or her sister or singularly acquired by the respondent.
In his evidence, the petitioner maintained that the respondent as a housewife and not gainfully
employed whilst her father as a retiree, could not have jointly acquired any of the Uganda
properties. He insisted that he singlehandedly funded the Ugandan properties. He equally
maintained that he was solely responsible for the education of the children of the household as
well as the respondent’s child she brought into the marriage.
Judgment of the lower court:
There is controversy over the judgment the lower court delivered. On record, judgment was
given in the case on 24th May 2018. However, there are 2 judgments both dated 24th May
2018. The first judgment appears on pp 403-410 [roa] whilst the 2nd judgment appears on pp
418A-418R [roa].
Whilst it is argued that the learned trial judge amended the earlier judgment in violation of rule
of procedure and therefore rendered the amended judgment null and void, it has been contended
in response that the court did what was permissible by only inserting the date of the marriage
contracted between the parties. We shall revisit the issue.
Grounds of appeal:
The notice of appeal that appears on pp 421-424 [roa] contain the following grounds:
1. The judgment is against the weight of evidence.
2. That the honourable trial judge’s findings of fact as to which of them [parties] acquired the
properties in Uganda are contradicted, and nullified and negative by the consequential order (3).
3. That the finding of fact on the acquisition of the petitioner/appellant’s properties in Ghana was
done during the existence of the marriage is not supportable by the evidence on record.
4. That the honourable court trial judge erred in her finding of fact that the properties in Ghana
were acquired jointly.
5. That in the light of the findings of fact on who funded the acquisition of the Ugandan
properties it is inequitable and unfair for the court not to order the respondent to render accounts
to the petitioner for the rents collected by and deposited in her bank account from 2001 to the
date of judgment.
6. That on the totality of the judgment and the evidence on which it is based, it is even more
inequitable and unfair for the court to have awarded the respondent some property in Ghana.
7. That the honourable trial judge erred in fact and in law by not pronouncing on the issue of
fraud and deceit by the respondent against the petitioner.
8. That the award of eighty thousand cedis [Ghc80,000.00] financial provision to the respondent
in all the circumstances of the case is excessive.
9. That the finding of fact that the respondent was joint owner of the Accra properties is without
any evidential basis.
10. That the trial court failed or refused to consider adequately or at all the customary gift of the
petitioner’s Accra properties to his Ghanaian children in 2004.
11. Other grounds of appeal will be filed upon receipt of the record of appeal.
It is on record that with leave of this court, the appellant filed two (2) additional grounds of
appeal, namely:
a. That the honourable trial judge erred in fact and in law in settling the matrimonial home on the
respondent/respondent.
b. The honourable trial judge erred in fact and in law in amending the Judgment read in court on
24th May 2018.
The appeal:
A stream of decided cases have settled the position of the law that an appeal is by way of
rehearing the case. Indeed, this principle is grounded on the Court of Appeal Rules, C.I 19 per
rule 8(1) that provides that any appeal to the court shall be by way of re-hearing. The rule has
received ample judicial interpretation in a legion of cases to mean that the appellate court is
enjoined by law to review the whole evidence led on record and to come to its own conclusion
and to make a determination as to whether both on the facts and the law, the findings of the
lower court were properly made and were supportable.
Put differently, the appellate court is under legal obligation to examine the findings of the lower
court or the trial court, and to determine on the evidence led on record, whether those findings
are supportable in law. Thus, the appellate court is enjoined by law to scrutinize the evidence led
on record and make its own assessment of the case as though it was the trial court. Where the
court below comes to the right conclusion based on the evidence and the law, its judgment is not
to be disturbed. Per contra, where the judgment is unsupportable by the facts it attracts being
upset on appeal. See: Nkrumah v. Attaa [1972] 2 GLR 13 C/A.
Before proceeding to discuss in detail the grounds of appeal, it is prudent to address at this stage,
the vexed question as to whether the judgment delivered 24/05/2018 was so amended without
recourse to the law.
With the leave of court, the petitioner filed an additional ground of appeal that the lower court
erred in fact and in law in amending the judgment read in open court on 24th May
2018. Learned Counsel for the petitioner in his written submissions filed 16/08/2021 [appearing
on pp 20-22] has severely criticized the learned trial judge for amending her judgment so handed
down. He contended that per the judgment read in open court, the lower court distributed the
properties the petitioner acquired in Uganda. However, some consequential orders particularly 2
and 3 were ambiguous and in attempt to correct them, the lower court amended the judgment
contrary to law.
Counsel referred us to the decision of the Supreme Court in R v. Mensah-Bonsu and ors;
Exparte Attorney General [1995-96] 1 GLR 377 that posits that the practice regulating the
correction of errors in a judgment after it had been delivered was that if the judgment of a court
as delivered was wrong by reason of any substantial error or omission, its correction should be
by way of judicial review of the judgment. It was not permissible for the judge to correct the
judgment by introducing passages which changed the meaning and effect of the judgment. The
apex court added.
Counsel also relied on Order 16 r 10 of the High Court [Civil Procedure] Rules, 2004 [CI 47]
to argue that the only correction that is allowed is clerical mistakes in a judgment or order of the
court and or errors arising from accidental slip or omission. He claims there is no evidence to
explain how the amended judgment came into being that sought to change or changed the
impugned consequential orders. In Counsel’s view, whatever the lower court did when the
judgment has not been subject to judicial review was null and void.
In response, learned Counsel for the respondent has submitted, defending the learned trial judge,
that the judgment was never amended. Rather, the judge inserted the date of the marriage that
was not indicated and also clarified the two (2) properties the lower court had not indicated the
appellant was entitled to in Uganda.
As we have noted elsewhere in this judgment, the judgment of the lower court read in open on
24/05/2018 appears on pp 403-418 [roa] whilst the impugned judgment appears on pp 418A –
418R [roa]. We have critically scrutinized the 2 judgments, particularly the amendments that
has generated the controversy. The amendments in question related to some consequential orders
the lower court had made earlier in the initial judgment. For purposes of clarity, we set out
below in extenso, those consequential orders so recorded. In the first judgment, it read:
“The orders of the court are as follows:
1. The marriage celebrated between the parties in Kampala, Uganda on 1st December 1991 is
hereby decreed to be dissolved.
2. The petitioner is awarded some of the properties in Uganda if he so desires.
3. The respondent is awarded the properties in Uganda.
4. The respondent is awarded the matrimonial home in which she lives now.
5. The respondent is awarded house number 15B Fabian Street,Alajo.
6. The respondent is awarded stores numbers 1 and 2, Fabian Street, Alajo.
7. The respondent is awarded financial provision of Eighty Thousand Ghana Cedis
(Ghc80,000.00).
8. The parties are to bear their own legal fees. See: pp 417-418 [roa]
Now, the 2nd judgment complained of, has the following consequential orders:
“The orders of the court are as follows:
1. The marriage celebrated between the parties at the All Saints Cathedral, Kampala, Uganda on
26th September 1992 is hereby decreed to be dissolved.
2. The petitioner is awarded two of the properties in Uganda. These are one five bedroom
unit at Munyonyo and one bedroom unit at Kampala.
3. The respondent is awarded all the properties in Uganda except the two awarded to the
petitioner.
4. The respondent is awarded the matrimonial home in which she lives now.
5. The respondent is awarded house number 15B Fabian Street, Alajo.
6. The respondent is awarded stores numbers 1 and 2, Fabian Street, Alajo.
7. The respondent is awarded financial provision of Eighty Thousand Ghana Cedis
(Ghc80,000.).
8. The respondent is to continue using the RAV 4 model vehicle anytime she visits Uganda.
9. The parties are to bear their own legal fees. See: pp 418Q – 419R [roa]
It cannot be over-emphasized that Judges, like any other human beings, are prone to
mistakes. The judge has power to go right. Whilst he reserves to do right he equally has the
power to go wrong. Where a judge goes wrong, there are rules of procedure by which such
wrong could be addressed, notably by a judicial review; an appeal against the decision to a
higher court and or by a motion by either party to the suit or the court on its own motion but with
notice to the parties, to correct that error. Indeed, every court has that inherent jurisdiction to
preserve its proceedings and it requires that the court brings clarity to its proceedings, judgments
or orders. Therefore, where the court commits mistakes that are ordinary clerical errors or
accidental slips so to speak, and as in the High Court where the practice is sanctioned by C.I 47,
the presiding judge reserves that power to correct the error. That power conferred on the judge is
provided for in Order 16 r 10 of CI 47 that stipulates:
“10. Clerical mistakes in judgments or orders or errors arising therein from any accidental slip
or omission, may at any time be corrected by the court either on its own motion on notice to the
parties or on an application without an appeal”.
That is known as “the principle under the slip rule”.
The principle enunciates that clerical mistakes and accidental omissions are the only instance an
amendment will be allowed after judgment. See: Shiristar Container Transport Ltd v. Ashanti
Goldfields Corp. [1992] 1 GLR 566 @ 569. See also: Omaboe v. Kwame [1978] GLR 122.
This court speaking through Apaloo CJ in Omaboe v. Kwame (supra), gave three (3) broad bases
in which the court may exercise its inherent jurisdiction to set aside or vary its own orders,
namely:
i) if there was some clerical mistakes in a judgment or order;
ii) if there was some error in a judgment or order which arose from any accidental slip or
omission, and
iii) if the meaning and intention of the court was not expressed in its judgment or order.
Thus, where any of these policy reasons prevails and is satisfactorily raised and illustrated, the
courts are amenable to correcting those impugned errors or accidental slips. In actual practice,
where the court sits and pronounces a judgment or makes an order that contain errors and the
court’s attention was drawn to such errors while the court was still sitting, the judge reserves the
power and the right to correct them whilst on the bench. Even where the presiding judge has
risen from the bench into his chamber but has not closed from work yet, he may still correct such
errors as the case may be since the court shall be deemed to still be in session. The rule does not
however, apply where the changes sought to be made are not minor but substantial and is likely
to utterly change the tone of the judgment or order. See: R v. Mensah-Bonsu and ors; Exparte
Attorney General (supra).
In the instant case, comparing both judgments that incidentally have the same date ie 24/05/2018,
this court is left in no doubt that the trial court made some amendments to the 2nd and the 3rd
consequential orders contained in the first judgment read in open court. However, the court
made an additional consequential order in respect of a car ie RAV 4 model vehicle for use by the
respondent anytime she visited Uganda. It is not quite clear on record, what triggered the
amendments and at whose instance the application was made to the lower court for the
amendments to be made and the time frame within which it was made after the initial judgment
was read in open court. Although, we think the amendments sought to clear some seemingly
ambiguities in the earlier 2nd and 3rd consequential orders, the introduction of another
consequential order in the 2nd judgment made the entire process messy and in violation of
Order 16 r 10 of CI 47. In the eyes of the law, it rendered the 2nd judgment, null and void as
the introduction of the additional consequential order substantially changed the status quo ante.
Consequently, we set aside the 2nd judgment and shall go strictly by the 1st judgment so
delivered in the open court.
As we did observe in the introductory part of this judgment, the main bone of contention in this
appeal is whether in the face of the facts and the established evidence, the lower court properly
exercised its power of property settlement in terms of S. 20(1) of the Matrimonial Causes Act,
1972 [Act 367]. In the light of this observation, we shall combine grounds 2, 3, 4, 6, and 9 of
appeal as well the additional ground of appeal that the lower court erred in fact and in law in
settling the matrimonial home on the respondent and address them simultaneously.
It is worth repeating, the consequential orders the lower court made as regards property
settlement whereby the court settled all properties in Uganda on the respondent with the proviso
that the petitioner was awarded 2 houses if he so desired. The lower court made a finding of fact
that it was the petitioner who singlehandedly funded all the properties in Uganda.
Now, in addition to settling the properties in Uganda on the respondent, the lower court also
settled the matrimonial home here in Accra as well as house number 15B Fabian Street, Alajo
and stores numbers 1 and 2, Fabian Street, Alajo, all in Accra. The lower court had reasoned that
the respondent has been living in Ghana since 2002. Therefore, it would not be fair to uproot her
from Ghana to Uganda. The learned trial judge added that the children of the marriage [two in
number] till they left for the United States were also living in Ghana and therefore one expected
that they should also have a base here in Ghana each time they came on visit.
As a matter of law, Section 20 of the Matrimonial Causes Act, 1971 Act 367 regulates the
property rights of spouses upon divorce, and it provides:
“20. Property settlement
(1) The Court may order either party to the marriage to pay to the other party a sum of money
or convey to the other party movable or immovable property as settlement of property rights or
in lieu thereof or as part of financial provision that the Court thinks just and equitable.
(2) Payments and conveyances under this section may be ordered to be made in gross or by
instalments.”
In addition to the statutory provisions stated supra, Articles 22(2) and (3) and 33(5) of the 1992
Constitution have also influenced the decisions of the courts in recent times in property
settlement. Insofar as it is relevant, we set out here below, Articles 22(2) and (3) that read:
“22 (2) Parliament shall, as soon as practicable after the coming into force of this
Constitution, enact legislation regulating the property rights of spouses.
(3) With a view to achieving the full realization of the rights referred to in clause (2) of this
article –
(4) spouses shall have equal access to property jointly acquired during marriage;
(5) assets which are jointly acquired during marriage shall be distributed equitably between
the spouses upon dissolution of the marriage.
Previous position of the law on property settlement:
The position of the law has previously been that marriage or divorce did not confer a spouse a
property that stands in the name of other spouse. Explaining the position of the law, the Court of
Appeal speaking through Abban JA [as he then was] in the classical case, Achiampong v.
Achiampong [1982-83] GLR 1017, stated that divorce did not confer on a spouse any interest
beneficial or otherwise in the property, movable or immovable, of the other spouse. The court
[coram: Francois, Wiredu and Abban JJA] held that property is not ordered to be transferred to a
spouse under S.20(1) of the Matrimonial Causes Act, 1971 [Act 367] simply because there is a
divorce. Consequently, apart from agreement, direct or indirect, there ought to be substantial
financial contribution from the party in whose name the property does not stand before it can be
held that the party is a joint owner. That necessary requirement was sine qua non to confer the
right of joint ownership.
The English case of Pettit v. Pettit [1970] AC 777 the House of Lords had stated the principle
that there must be evidence that establishes an agreement before it could be said that the spouse
has acquired a beneficial interest in property that previously belonged to the other or has a
monetary claim against the other.
Current position of the law on property settlement:
Common law is not cast in stone. One of its strength is that it moves with time. Justice Oliver
Wendel Holmes in The Common Law Lectures 127 (1881) remarked that the law is constantly
drawing lines. So, the law has since Achiampong v. Achiampong (supra) developed.
Our [Ghana] Supreme Court has now developed the jurisprudence of equality principle that
seeks to arrest the mischief or inequities, as it were, in the existing law that raised the bar of
property settlement to “substantial financial contribution” from the other spouse in whose name
the property did not stand. In espousing the jurisprudence of equality principle, the Supreme
Court speaking through Dotse JSC reasoned in Mensah v. Mensah [2012] 1 SCGLR 391 thus:
“………… Common sense and principles of general fundamental human rights would require
that a person who was married to another, and had performed various household chores for the
mother partner like keeping dirty laundry generally clean, cooking and taking care of the
partner’s catering needs as well as those of visitors, raising up of the children in a congenial
atmosphere and generally supervising the home such that the other partner had a free hand to
engage in economic activities, must not be discriminated against in the distribution of properties
acquired during the marriage when the marriage was dissolved.”
Explaining further, the court noted that the wife’s contribution even as a housewife in
performing the household chores, maintaining the house and creating a congenial atmosphere for
the husband to build an economic empire, were enough to earn the wife an equal share in the
marital properties, upon divorce.
Reading the cases, it does appear that the jurisprudence of equality principle takes its roots from
an earlier case, Mensah v. Mensah [1998-1999] SCGLR 350.
In Mensah v. Mensah (supra) the Supreme Court speaking through Bamfo-Addo JSC in her
lead judgment has held:
“….. property jointly acquired during marriage would become joint property of the parties
and such property should be shared equally on divorce, because the ordinary incidents of
commerce had no application in marital relations between husband and wife who had jointly
acquired property during marriage”.
Significantly, other cases such as Boafo v. Boafo [2005-2006] SCGLR 705; Quartson v.
Quartson [2012] 2 SCGLR 1077; Arthur (No.1) v. Arthur (No.1) [2013-2014] SCGLR 543 and
Fynn v. Fynn and Osei [2013-2014] 1 SCGLR 727, all decisions of the Supreme Court, have
influenced in shaping and setting the perimeters for the determination of jointly-acquired marital
properties and the criteria for the distribution of such properties.
The current position of the law, therefore, is that it was no longer essential for a spouse to prove
a direct, pecuniary or substantial contribution in any form to the acquisition of marital property
to qualify for a share. It was sufficient if the property was acquired during the subsistence of the
marriage. However, when it comes to the quantum of proportion that has to be settled on the
parties, it is reasonable for the parties to offer evidence as regards financial contribution each
made so as to assist the court in its quest to apply fairness and equity in the matter. See: the
dictum of Appau JSC in Adjei v. Adjei (J4 of 2021) GHASC 5 (21 April 2021) that runs as
follows:
“………….. where such evidence [that the property in question is a marital property acquired in
the subsistence of the marriage] exists, it is necessary that a spouse alleging such a
contribution must render or offer it to quantify his/her share or portion in the property so
acquired on the equity principle.” [emphasis under-
scored]
We have carefully evaluated the evidence led on record in the instant appeal; the judgment of the
lower court as well as submissions of both lawyers for the parties and we do uphold the
submissions of learned Counsel for the petitioner that the lower court erred both in fact and on
the law when it settled the matrimonial home on the respondent.
To begin with, there is overwhelming evidence that property in question was acquired in or about
1978, long before the parties got married in about 1991 or 1992. Indeed, the respondent in her
own pleadings [answer to the petition] did admit that the matrimonial home and other properties
in Ghana, were acquired before the parties settled in Ghana in 2002. See: p. 12 para.15 [roa].
Having said that, we also think that there is the lack of evidence to support the finding that the
matrimonial home was treated as a joint property. There is that unchallenged evidence that some
members of the petitioner’s family are living in the house. Therefore, if a house was purchased
out of the husband’s earnings as in the instant case long before the petitioner contracted marriage
with the respondent and the evidence is that some family members of the petition live in the
matrimonial home, the whole beneficial interest in the house vested in the petitioner and that the
respondent would have no interest in it in absence of express agreement. We are of the
considered opinion that the very presence of family members of the petitioner in the disputed
house negatives any express agreement of joint ownership of the property. That in effect,
whittles down any presumption of the disputed property as a marital property to be settled on the
respondent.
Consequently, we think the lower court erred when it settled the matrimonial home on the
respondent. The only reason the lower court offered was that the respondent has lived in that
property since 2002 when the parties relocated to Ghana upon the petitioner retiring from active
service in the United Nations, and that it would be unfair if she was seen as uprooted from
Ghana. The reason is clearly at variance with the settled principles of common law. We think
the lower court erred when it settled the matrimonial home on the respondent.
As a general rule, property purchased by a spouse with his/her own money before marriage,
belonged to that spouse to the exclusion of the other except where there was an express
agreement that it was subsequently meant to be a joint property. See: Bentsi-Encill v. Bentsi-
Enchil [1976] 2 GLR 303.
The facts in Bentsi-Encill v. Bentsi-Enchil (supra) showed that the petitioner owned the
property before his marriage to the respondent. It was held that property purchased by a spouse
with his own money belonged to that spouse to the exclusion of the other.
That leads us to discussing the settlement of the other properties.
As a matter of fact and from the available evidence, it cannot be put to any serious doubt the
petitioner by the nature of the work he did, was a man of great substance. The unchallenged
evidence is that before the petitioner got married to the respondent he had retired from the Ghana
Air Force as an Army Officer but was working with the United Nations, World Food Programme
as an International Public Servant. The parties first met in April 1989 in Uganda during the
petitioner’s duty tour there; both lived in concubinage from 1989 and had a child in 1990 before
the parties got traditionally married in 1991 and had the marriage blessed in church in 1992.
It was the case of the petitioner that by the nature of his work, he did not stay at one place and
was moving from place to place; from Uganda to Kenya, to Pakistan etc. etc. By reason of not
being stationary, he made the respondent to stop work to be able to look after the 2 children of
the household and the respondent’s son she brought into the marriage.
It was also the case of the petitioner that he acquired the following properties in Uganda whilst in
active service with the United Nations but which the respondent registered all of them in her sole
name and was collecting rents therefrom without accounting to him:
i) three (3) building/residential complexes; and
ii) four (4) bungalow-type of residences in Kampala and Fort
Portal, Uganda. See: p. 3 [roa].
Although the respondent admitted in her answer [para. 16, pp 12-13 roa] that upon her marriage
to the petitioner, the petitioner asked her to stop her job as a Hotel Manager and never worked
again, she nevertheless claimed that all the Ugandan properties were her self-acquired. She also
claimed she acquired some of the properties jointly acquired with her father and family members
and was running a guest house and restaurant business.
Admittedly, all the Uganda properties stood and were registered in the name of the respondent
and she was receiving rents/proceeds therefrom without accounting to the
petitioner. Significantly, in answers to questions under cross-examination, the petitioner said he
never insisted on the demand from his wife to account to him because the respondent was his
wedded Christian wife. See: pp 62-63 [roa].
Having regard to the admission of the respondent that she never worked again upon being
married to the petitioner, the lower court made a finding of fact that the respondent was unable to
lead evidence to prove satisfactorily that proceeds from the guest house she claimed she acquired
jointly with her father aided her in acquiring the Uganda properties the petitioner listed. The
lower court held further that the respondent was unable to explain the source of the payments
into her accounts. It was a matter of course, therefore, that the lower court concluded that it
could not be ruled out that her source of wealth could have been from the petitioner. So, the court
held the respondent held the said properties in trust for the petitioner.
From the available evidence led on record, it was not difficult to find it was the petitioner who
singlehandedly acquired all the properties, both in Ghana and Uganda. At the risk of sounding
repetitive, the respondent in her answer even admitted that some of the properties in Ghana
namely, Tema property, Larteh properties, Ashalley Botwe house and the matrimonial home
were acquired by the petitioner before the parties’ relocation to Ghana upon the petitioner’s
retirement from the United Nations. See: p. 12 [roa].
In the circumstances, we think based on the law, the lower court did not exercise good judgment
when it settled all the Uganda properties on the respondent with a limited proviso that if the
petitioner wished he could take two (2). We also think it was also unfair and unjust and
inequitable for the lower court to settle some other properties namely: the matrimonial home; 2
stores on the Fabian Street, Alajo and house number 15B Street, Alajo, on the respondent when
the evidence showed that the petitioner singlehandedly acquired those properties in Ghana.
At the risk of sounding repetitive, the lower court reasoned that the respondent having lived in
Ghana since 2002 should not be uprooted from Ghana. We think this is not a good or fair reason
why those properties in Ghana ought to be settled on the respondent when the respondent
admitted that she did not work again upon her marriage to the petitioner. Therefore, she never
made any contribution towards the acquisition of the Ghanaian properties except as she said she
accompanied the petitioner to buy building materials and had her name on tenancy
agreements. After all, when the Casanova charter that bonded the parties together was broken
and the marriage has ended in divorce, the parties are entitled to go their separate ways. The
respondent cannot therefore stay in the same compound with the petitioner.
The respondent never seriously rebutted the petitioner’s evidence that there are fifteen (15)
housing units in four (4) locations in Uganda. In his petition, the petitioner gave the number of
project in Uganda as three (3) building/residential complexes and four (4) bungalow type of
residences. According to the petitioner, the first complex is made up of three (3) housing units –
one unit being three (3) bedrooms and the other two (2) being two (2) bedrooms each. The
second complex is made up of four (4) bungalows each having two (2) bedrooms plus one
caretaker’s bungalow. The second complex is made up of five (5) housing units. The third
complex is in Fort Portal made up of four (4) housing units – one of them is five (5)
bedrooms. The second one is three bedrooms and the remaining two have a bedroom each. The
next complex is in a place called Munyonyo comprising of three (3) housing units. The main
house is five (5) bedrooms while the rest have single bedrooms. The source of funding of the
projects was for fat salary of US$9000.00 a month at the time because he worked only in war
zones. See: pp 45 – 46 [roa]
Significantly, the petitioner was never cross-examined on that material evidence as to the number
of houses that were built in Uganda. The settled position of the law is that where a party has
given evidence on a material fact and was not cross-examined upon it, he needed not call further
evidence of that fact. See: Fori v. Ayirebi [1966] GLR SC.
In settling the marital properties in the instant case, we are guided by statement of law Date-Bah
JSC espoused in Boafo v. Boafo (supra) that runs as follows:
“………. the “equitable distribution” as stipulated in the 1992 Constitution meant in essence
what is just, reasonable and accorded with common sense and fair play and that equitable
distribution is a question of fact, dependent on the particular circumstances of each case.”
As a matter of law, the presumption of joint acquisition is rebuttable upon evidence to the
contrary. In the words of Appau JSC as stated in Adjei v. Adjei (supra):
“What this means, in effect is that, it is not every property acquired single-handedly by any of
the spouses during the subsistence of a marriage that can be termed as a ‘jointly-acquired’
property to be distributed at all cost on this equality is equity principle. Rather, it is property
that has been shown from the evidence adduced during the trial, to have been jointly acquired,
irrespective of whether or not there was direct, pecuniary or substantial contribution from both
spouses in the acquisition. The operative term or phrase is: ‘property jointly acquired during
the subsistence of the marriage’.
So where a spouse is able to lead evidence in rebuttal or to the contrary, as was the case in Fynn
v. Fynn (supra), the presumption theory of joint acquisition collapses.” [emphasis
underscored]
From the available evidence, we uphold the finding of fact of the lower court that all the
properties that were acquired during the subsistence of the parties were solely funded by the
petitioner. We find that it was only the Christian Guest House and Restaurant that existed before
the marriage which the respondent claimed she jointly acquired with her father. See: Exhibit 28
p.571 [roa].
Now, given all the circumstances of the case and the finding of the lower court that it was the
petitioner who funded the acquisition of all the properties without any financial support from the
respondent; that the respondent has since the acquisition of the Ugandan properties kept all
proceeds/rents therefrom to herself without accounting to the appellant, we think that it shall be
fair, just and equitable and in conformity with “the equitable distribution principle” to settle the
Ghana properties on the petitioner whilst the Uganda properties were settled on the respondent,
which we hereby do.
We deem settling fifteen (15) housing units in four (4) locations in Uganda on the respondent is
fair, just and equitable in the peculiar circumstances of the case.
We do, therefore, allow the appeal as canvassed in grounds 2, 3, 4, 6. 9 and the additional ground
of appeal, namely that the court erred in fact and in law on the property settlement.
We now proceed to address the 7th ground of appeal. The honourable trial judge erred in fact
and in law by not pronouncing on the issue of fraud and deceit by the respondent against the
petitioner.
Appearing on pp 8-10 [roa] are submissions of learned Counsel for the petitioner that the
petitioner unaware that the respondent had registered the Ugandan properties in her sole
name. The petitioner’s belief was that he would be identified with those assets but he only
became aware of it sometime in 2011 and that was tantamount to fraud, Counsel insisted. His
argument from the fact that although the properties were funded by the petitioner but the
respondent appropriated all proceeds therefrom to herself she still vehemently denied any interest
the petitioner has/had in them.
But learned Counsel for the respondent has advocated that the petitioner never pleaded fraud and
nor gave particulars of the said fraud and deceit. Furthermore, the petitioner failed to lead any
evidence of fraud and deceit during the trial, Counsel insisted.
The law relating to fraud and its proof in civil litigation is already overburdened with fine
distinctions and we do not intend to reinvent the wheels here. Suffice is to say that on general
principle, fraud vitiates everything to the extent that even the solemn judgments of superior
courts may be called into question as having been obtained through fraud.
It is trite knowledge that fraud vitiates everything including even solemn judgments of superior
courts. The Supreme Court speaking through Acquah JSC (as he then was) stated the principle
in Frimpong v. Nyarko [1998-99] 734 @ 743 that fraud vitiates everything and that when a court
of law in the course of the proceedings has cause to believe that fraud has been committed, it is
duty-bound to quash whatever has been done in the strength of that. By rule of practice and
procedure, fraud has to be pleaded, particularized and proved strictly. Where fraud and duress
were pleaded, particulars must be given. Consequently, where no particulars were given, it must
be taken that either no fraud or duress existed or the averment amounted to a mere denial. See:
Darbah v. Ampah [1989-90] 1 GLR 598 C/A.
Thus, on general principle, the court is not to find fraud unless particulars thereof has been
distinctly pleaded and proved strictly, for a finding of fraud is not to be made without clear and
cogent evidence upon the subject. See: Thomson v. Eastwood [1874-77] 2 AC 215 HL @ p.233
per Lord Cairns L.C.
Notwithstanding the rules on pleadings on fraud, where there was clear evidence of fraud on the
face of the record, the court would not ignore it. See: Apeah and anr v. Asamoah [2003-2004]
SCGLR 226.
In Apeah and anr v. Asamoah (supra) the trial High Court made a finding of fact that the
judgment, Exhibit 1 had been obtained by fraud. The Court of Appeal affirmed that
finding. The Supreme Court therefore reiterated the rule that regardless that fraud was not
pleaded in the case, once there was evidence on record that showed that the judgment was
procured fraudulently, it was null and void and of no effect.
What do we find in the instant appeal?
It is worth noticing that the petitioner never pleaded fraud. The question of fraud only came up
for the first time in an answer to a question under cross-examination. In the lower court’s
proceedings of 23/02/2015 the following is recorded:
“Q. I am putting it to you that you cannot show any documentary proof on the investment of
the Uganda properties because you did not make any investments there.
A. I trusted the respondent as a Christian and a wedded wife. I did not expect her to do any
fraudulent deals with my properties.
Q. I am putting it to you that it is only on the issuance of this petition and this trial that you are
claiming that you are using these Ugandan properties to settle her.
A. I was not aware of this and if she has done so, she has done so fraudulently.
Q. I am putting it to you that as a responsible Christian husband, you would have ensured that
your name was on the documentation in respect of the Ugandan properties if you claim you
invested so much.
A. My Christian belief tells me that I should trust my wife, the respondent and therefore I trusted
her fully in all these matters that all our investments would be in our joint names.”
Indeed, the petitioner admitted under cross-examination that he did not plead fraud but that it
was during his evidence that he raised it for the first time and under cross-examination. See: p
82 [roa].
We think that the answers as given under cross-examination are insufficient to come within the
scope of principle in Apeah and anr v. Asamoah (supra) and so emphasized by Atuguba JSC in
Amuzu v. Oklikah [1998-1999] SCGLR 141 that even where fraud was not distinctly pleaded as
the practice required but evidence was led on it without objection, the court cannot ignore it, the
myth surrounding the pleading of fraud notwithstanding.
We do, therefore, dismiss this ground of appeal.
8th ground of appeal: Financial provision of Ghc80,000.00 being excessive.
Per S. 20(1) of Act 367, the court has the power to make an order directed at either party to the
marriage to pay as settlement such sum of money as the court thinks just and equitable as
financial provision. In making such award the paramount consideration is the financial
capacity/status of the party against whom the order is directed.
In the instant case, from all indications it is reasonable to say that the petitioner is quite capable
of paying the financial provision order the lower court made. We think as a retired Army Officer
before working as an International Public Servant with the United Nations the quantum of
financial provision imposed by the lower court is fair and reasonable and we do not intend to
disturb it. In any event, the evidence is that the petitioner has since settled the financial
provision.
We now proceed to discuss the 1st ground of appeal: Judgment is against the weight of evidence.
The petitioner contends that the judgment of the lower court is against the weight of evidence.
The case, Owusu-Domena v. Amoah [2015-2016] 1 SCGLR 790 is the legal authority to saying
that the sole ground of appeal that the judgment is against the weight of evidence throws up the
case for a fresh consideration of all the facts and law. In that respect, the appellate court just like
the trial court, has the duty to evaluate and assess the evidence led at the trial in order to
determine in whole, in whose favour the balance of probabilities tilts.
It has been submitted on behalf of the petitioner that it was the petitioner who financed the
acquisition of several housing units in four locations in Uganda through the funds he earned in
the employ of the United Nations when he was stationed in Uganda, Kenya, Ethiopia, South
Sudan and Afghanistan. In the opinion of Counsel for the petitioner, it was against the weight of
evidence that the lower court settled those properties on the respondent.
Additionally, Counsel for the petitioner has argued that the award of the matrimonial home on
the respondent was against the weight of evidence because the evidence put before the lower
court was that that property was acquired in 1978, several years before he met the respondent in
Uganda.
We think we have sufficiently addressed and dealt with the property settlement and the quantum
of properties that shall go to each party. Therefore, we do not want to rehash it.
On principle, the lower court has the exclusive right to make findings of fact and we think that in
the instant case the lower court made the correct findings of fact that the acquisition of the
Ugandan properties was solely by the petitioner. It is a well-established principle of the
Common Law jurisdiction that it is the trial court that has the exclusive right to make primary
findings of fact; this is because it is that court that observes the demeanour of witnesses and in a
position to determine the truthfulness of their testimonies. Thus, where the findings are
supportable by the evidence the appellate court ought to hasten slowly and exercise great caution
in setting aside such findings except where certain specific flaws occur in the findings of the trial
court. See: Agrenim-Boateng v. Ofori and Yeboah [2010] SCGLR 861 @ 863. See also: Fofie
v. Zanyo [1992] 2GLR 475.
Where we have faulted the lower court, we have clearly given the reasons why we hold that view
as indicated elsewhere in this judgment.
The appeal succeeds in part. We allow the appeal in respect of the award of the matrimonial
home and other house and the 2 stores in Ghana and hereby set them aside. We settle all the
Uganda properties on the respondent whilst we settle the Ghana properties on the petitioner. We
affirm the award of the financial provision.
The parties shall bear their respective costs.

SGD
P. BRIGHT MENSAH
(JUSTICE OF APPEAL)

SGD
I AGREE DENNIS
ADJEI
(JUSTICE OF APPEAL)

SGD
I ALSO AGREE GEORGE
KOOMSON
(JUSTICE OF APPEAL)
APPEARANCES
EMMANUEL OWUSU BANAH FOR THE PETITIONER/APPELLANT ANDREWS
TETTEH FOR THE DEFENDANT/RESPONDENT