JUDGEMENT

ACQUAYE, J. A.

This appeal is in respect of the distribution of properties acquired during the subsistence of the marriage between the parties upon its dissolution by a High Court in Accra.

The petitioner, a geodetic engineer, filed a petition for divorce against the respondent, a beautician in March 2011. The ordinance marriage celebrated on 18^th August 1997 was blessed with three children born in April 2000, June 2002 and June 2007. In his amended petition, the petitioner accused the respondent of having deserted the matrimonial home claiming she had found a better and bigger penis which she was enjoying. The petitioner also accused the respondent of drunkenness, insulting the petitioner in public, instituting criminal and civil suits against the petitioner in District and Juvenile Courts, the latter of which granted custody of the two older children to the petitioner. According to the petitioner the respondent has caused him much anxiety, distress and embarrassment and that the marriage has broken down beyond reconciliation. Despite having given the respondent a lot of financial resources to enable her establish her own businesses including a gold business, the respondent operated a secret bank account into which her pastor with whom she had an amorous relationship paid in monies for her benefit. The petitioner averred that he had invested a lot of money in the respondent and that she is not entitled to any financial provision nor alimony. The petitioner therefore prayed for a dissolution of the marriage, an order giving custody of the issues of the marriage to the petitioner and the payment of his legal fees.

In her answer the respondent denied the petitioners allegations and averred that it is rather the petitioner who engages in amorous relationships with other women and when she complains, he verbally and physically assaults her. The respondent averred that the petitioner comes home drunk smelling of cigarettes and women’s perfume. He infected her with some strange itching and rashes as a result of which she was forced to move into their guest room. The respondent stated that it is the petitioner’s drunkenness and amorous lifestyle which made him stop going to church. The respondent averred that the petitioner insults her as a prostitute and an illiterate and that it was when the petitioner took their children to his mother that she reported the matter to FIDA who got the petitioner to return the children to the respondent. The respondent stated that in January 2011 the petitioner assaulted her, destroyed her mobile phone, threatened to kill her and drove her away from the matrimonial home as a result of which she was forced to seek refuge with her pastor and his wife. She admitted reporting the matter to DOVVSU leading to the petitioner being charged for court but the matter was settled by the ADR. She also admitted suing the petitioner at the Family Tribunal for custody of the children and maintenance. The respondent denied any amorous relationship with her pastor or Oscar whom she said was a family friend who offered her a lift when the petitioner seized her car. The respondent averred that it was the petitioner and his mother who have always resisted attempts by her family to settle and resolve their differences. The respondent pleaded that she once gave the petitioner Gh¢600.00 to settle his debt and that she contributed towards the acquisition of the assets and properties situated at Tse Addo behind the Trade Fair as well as acquiring four vehicles. The respondent therefore cross petitioned the court for:-

An order for custody of the children of the marriage.

The petitioner be made to contribute towards the maintenance of the children by paying school fees, medical bills, food clothing and shelter.

The petitioner to return respondents Pathfinder with registration number GE 9000 W.

The petitioner pays a lump sum by way of alimony

An order declaring respondent owner of the matrimonial home situated at Tse Addo, La.

An order declaring respondent 50% shareowner of all properties acquired by the parties during their marriage

The petitioner be made to bear the costs of this petition.

At the close of pleadings but before any evidence was led, the trial judge, upon application by the petitioner’s Counsel declared the marriage contracted between the parties in the Bible Chapel International in Accra on 4^th July 1999 dissolved. After hearing the evidence of the parties and their witnesses on the accusations counter accusations and denials centered on charges of infidelity, extra marital sex, cheating, violence and disrespect for each other’s family, the trial judge decided that two issues lent themselves for consideration as auxiliary reliefs. These issues were custody of the children of the marriage and financial provisions under Section 20(1) of the Matrimonial Causes Act 1971, Act 367. With respect to the first issue of custody the trial judge relied on the report of the Probation Officer appointed by the Director of Social Welfare on his orders, the principle that in custody matters the welfare of the children is of utmost importance and that children must as far as possible be kept together. The trial judge thus held that “From the totality of the evidence on record, the welfare of the three children would be better catered for if they are with the petitioner who is now married and can provide a home.” He therefore granted “custody of all the three children of the marriage to the petitioner herein with reasonable access to the respondent whereby the children are to spend every second weekending of every month with the respondent……… The children should also spend one week of the school holidays with the respondent”. On the issue of financial provision the trial judge reviewed the cases on the subject matter and the evidence by the petitioner on how he financed the construction of the two houses and held that the respondent failed to lead any credible evidence that she contributed to the building of any of the houses and that she is a joint legal owner of any of the houses.

The trial judge found that each of the parties engaged himself or herself in each other’s own separate business and never operated a joint bank account so they had agreed to hold properties separately. The trial judge found that the first property was heavily encumbered as it had been mortgaged to a body corporate Kaaly’s Investment and the matrimonial home was acquired by the petitioner in the name of the children with the petitioner only holding same in trust for the children. He therefore dismissed her claims to joint ownership. He also found that the pathfinder belonged to the petitioner’s friend which he had returned to the owner. He therefore dismissed the respondent’s claim for its return to her. The trial judge however considered the fact that the parties were married for twelve (12) years and had blissful moments even though there were hiccups and that the husband had seen and enjoyed some better aspects of the respondent’s life. The trial judge took into account all the previous contributions by the petitioner which helped set up the respondent in business from the time he fabricated the container beautician shop through the financing of the sale of the second hand clothing through to the gold business the profits of which he never enjoyed and awarded the respondent the sum of Gh¢10,000.00 as financial settlement.

Dissatisfied with the judgment the respondent obtained an extension of time to file an appeal out of time whereupon she listed the following grounds of appeal:-

The judgment is against the weight of the evidence.

The trial judge erred in law in holding that the parties had an agreement to hold properties separately after their marriage.

The trial judge erred in law when he held that the respondent had failed to prove substantial contribution to the matrimonial properties and therefore was not entitled to a portion thereof.

Other grounds to be filed upon receipt of the record of appeal.

Counsel for the respondent/appellant argued grounds 2 and 3 of the appeal together. Counsel submitted that marital property is property acquired during marriage irrespective of which party acquired it and that marital property is held by the parties as tenants in common. Counsel submitted that all the properties of the parties including the one registered in the name of the children are marital properties. Counsel for the respondent said it was wrong for the trial judge to rely on the substantial contribution principle which has been described by the Supreme Court as archaic and backward in the Patience Arthur vrs Moses Arthur case No. J4/19/2013 dated 4^th February 2014 to deny the respondent a share in the two properties acquired during the marriage. Counsel for the respondent submitted that the shift now is towards equality is equity principle. Counsel therefore urged us to settle one of the houses on the respondent and award a lump sum payment of Gh¢50,000 as financial provision for the respondent.

Answering why the trial court did not apply the equality is equity principle which is now the dominant approach for the distribution of marital wealth upon divorce, Counsel for the petitioner/respondent referred to the evidence that it was the petitioner who financially sponsored the respondent/appellant during her apprenticeship at Vonis Hair Sallon and also put up a chamber and hall when he was doing his national service after graduation. Counsel referred to the petitioner setting up the appellant in her beautician profession by building her a 40 feet container and the second hand clothing trade. Counsel for the petitioner again referred to the evidence regarding his client’s contribution to the respondent’s gold business after he had completed the first building and submitted that the evidence disclosed that the respondent appellant could not have made any financial contribution to the acquisition of the houses. Counsel submitted that the setting up of the respondent by the petitioner was to enable the respondent obtain her own wealth to acquire her own properties independent of the petitioner. Counsel acknowledged the shift towards equality is equity principle in recent cases but emphasized quoting Boafo vrs Boafo (2005 – 2006) SCGLR 705 at 713 that “However the peculiarities of an individual case may make this general approach unsound in specific instances”. Counsel quoted Wood, J.A. (as she then was) that “The question of what is equitable in essence, which is just reasonable and accords with common sense and fair play, is a pure question of fact, dependant purely on the particular circumstances of each case. The proportions are therefore fixed in accordance with the equities of any given case.” Counsel quoted Arthur vrs Arthur (No. 1) (2013–2014) 1 SCGLR 543 at 555 that the equality is equity principle remains a presumption which can be displaced in appropriate cases and called on us to approach the resolution of this matter on the basis of the peculiar facts it presents. Counsel for the petitioner posed the question would it be fair and equitable to apply the equality is equity principle in a situation where the parties are both career persons practicing their respective trades or professions and each party keeps his or her incomes separately from each other and the household chores are carried out by housemaids paid by the husband. Counsel therefore urged us to consider the ability of each spouse to earn income, the length of the marriage and the respective contribution or dissipation of marital wealth or property and the contribution of a spouse as a homemaker. Counsel for the petitioner/appellant submitted that after squandering all the monies entrusted to her by the petitioner it will lie ill in the mouth of the respondent to ask the court to grant her an equal share of the wealth created by the sweat of the petitioner alone. Counsel submitted that the purpose of the distribution of marital property is not to unduly impoverish one party and unjustly enrich the other but to create a situation for the parties to receive just compensation or rewards for their contribution to the marriage. Counsel remind us of the loans obtained by the mortgage of the first house when it got gutted by fire and the settlement of the second house on the children as advancement to the children and submitted that the petitioner has no property standing in his name. Counsel for the petitioner reiterated that the Gh¢10,000.00 awarded the respondent is appropriate to expand her business and urged us to dismiss the appeal.

Even though the respondent stated in the part of the decision complained of, that the appeal is against the whole decision of the trial court, from the grounds of appeal filed, the submissions made on behalf of the respondent/appellant and the relief sought from the court of appeal, it is evident that no mention was made of the order of the trial court granting custody of the three children of the marriage to the petitioner. Rule 8(5) of the Court of Appeal Rules C.I. 19 provides that:

8(5) The grounds of appeal shall set out concisely and under distinct heads the grounds on which the appellant intends to rely at the hearing of the appeal without an argument or a narrative and shall be numbered consecutively.

No mention of custody of the children having been made in this appeal we take it that that issue is not on appeal. We therefore confirm the decision of the trail court on the issue of custody of the children.

With respect to the second ground of appeal that the parties agreed to acquire properties separately and independent of each other, we find no evidence of such agreement in the record of proceedings. Counsel for the petitioner/respondents invitation to make such a finding from the conduct of the parties cannot be accepted because even in foreign lands where such conduct is acceptable, property settlements are always in writing signed by the parties and witnessed in the form of deeds of settlement. On the issue of the distribution of the properties acquired during the marriage we note with satisfaction that both Counsel agree on the case law applicable, that is a shift from the substantial contribution of one of the parties to the equality is equity principle. In the Mensah vrs Mensah (1998- 1999) SCGLR 350 case the trial court found that both parties made substantial contribution to the acquisition of the matrimonial property and therefore applied the equality is equity principle. In the Boafo vrs Boafo (2005-2006) SCGLR 705 case also the court found that the parties kept a joint account and each contributed to the building of the house and therefore shared the house equally between the parties. In the Arthur vrs Arthur (No. 1) case (2013 -2014) 1 SCGLR 543 case the Court recognized the contribution of the wife in running the home and driving the husband to work and apportioned about a third of the matrimonial properties to her. In all these cases the courts have sought to solve the imbalance historically suffered by women in the distribution of the assets, taking cognizance not only of their contribution to the acquisition of the properties, but also their assistance to the household. It is in the light of the above that the third ground of appeal, that the judge erred in law when he held that the respondent failed to prove substantial contribution to the acquisition of the matrimonial properties will be upheld.

Substantial contribution may not only be towards the putting up of the building, but “performing household chores for the other parties like keeping the home, washing and keeping the laundry generally clean, cooking and taking care of the partner’s catering needs as well as those of visitors, securing up of the children in a congenial atmosphere and generally supervising the home such that the other partner has a free hand to engage in economic activities” per Dotse, JSC in Mensah vrs Mensah (2012) 1 SCGLR 391 at page 401. We may add the bearing of children and the provision of other domestic services incidental thereto. In all these cases the courts have tried to address the imbalance women have historically suffered in the distribution of assets acquired during marriage. The logic underlying these decisions is that equal partners should share equally. Despite this shift, the courts have always recognized that the peculiarities of an individual case may make this general approach unsound in specific instances. According to Wood J.A. (as she then was) in Boafo vrs Boafo, Supra “The constitutional provision (and indeed Section 20(1) of the Matrimonial Causes Act 1971 (Act 367) only makes provision for the equitable distribution of property jointly acquired without, understandably, laying down the proportions in which such property may be distributed. The reason is not difficult to find. The question of what is equitable, in essence what is just, reasonable, and accords with common sense and fair play, is a pure question of fact, dependent purely on the particular circumstances of each case. The proportions are, therefore fixed in accordance with the equities of any given case. In Arthur vrs Arthur (No. 2) (2013-2014) 1 SCGLR 569, however it was re-iterated that “It is clear that by its decisions, the Supreme Court has now endorsed the “Jurisprudence of Equality” principle in the sharing of marital property upon divorce”. In Arthur vrs Arthur (No.1) Supra the Supreme Court considered some foreign statutes on the subject matter which legislated that gifts, inheritance, settlements and insurance claims to either party must not be included in the distribution of marital property. The Supreme Court also suggested that if the court is satisfied that where the division of matrimonial assets in equal shares would be unfair or unconscionable taking into account the amount of debts and liabilities of each spouse, the length of cohabitation, date and manner of the acquisition of the properties. Other provisions by the Canadian Matrimonial property Act of 1989 include the effect of the assumption by one spouse of any housekeeping, or child care, the contribution by one spouse to the education or career potential of the other spouse and the contribution made by each spouse to the marriage etc, etc, the distribution need not be made in equal shares.

Even though the provisions narrated above have not been enacted in this country, they can be adopted and considered by parliament and I dare say, the judiciary as recommendered by Date-Baah, JSC. Viewed in this light the distribution in the judgment on appeal is understandable. The trial judge considered the setting up of the respondent/appellant in her beautician profession, the second hand clothing and contribution to her gold business by the petitioner. The trial judge also considered the amorous lifestyle of the respondent/appellant including her desertion of the matrimonial home and staying with her boyfriend as found by the Probation Officer. The trial judge further considered the contribution made by the petitioner/respondent to the welfare of the home and the acquisition of the marital properties as proved by documentary evidence and the liabilities imposed on the buildings by the gutting of fire of one of the houses and the settling on the children of the other in not making any property settlement on the respondent/appellant. On the financial settlement of Gh¢10,000.00 awarded to the respondent/appellant, we are of the view that the trial judge failed to consider the ability of each party to earn income. All things being equal the ability of a geodetic engineer to earn income will be greater than that of a beautician selling secondhand clothes. We will therefore set aside the Gh¢10,000.00 awarded by the trial judge and instead award the sum claimed by Counsel for the respondent/appellant in his written submissions of Gh¢50,000.00 in lieu of property settlement.

Save as otherwise held above the appeal is dismissed.