IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
KUMASI - A.D 2018
JULIANA AMOAKOHENE - (Defendant/Appellant)
EMMANUEL K. AMOAKOHENE -(Plaintiff/Respondent)
DATE: 24TH JULY, 2018
SUIT NO: H1/26/2018
JUDGES: ADUAMA OSEI J.A. (PRESIDING), DZAMEFE J. A., WELBOURNE (MRS) J. A.
AMA ASENSO FOR DEFENDANT/APPELLANT
JAMES MARSHALL BELLIEB FOR PLAINTIFF/ RESPONDENT
This is an appeal emanating from the High Court, Kumasi, dated 23rd June 2012. In this judgment, the Defendant/Appellant will be described as Appellant and the Plaintiff/Respondent as Respondent. Further, the abbreviation ROA means Record of Appeal.
The brief facts are that the parties were husband and wife. They were married in accordance with Akan custom in 1987 and later married under statute in Dallas, Texas, United States of America. They subsequently had differences in their marriage and in March 2011, the parties dissolved their customary marriage in Ghana. However by operation of law, they were still married as their marriage had not been dissolved. That marriage was eventually dissolved on 26th January 2015 after the judgment of the High Court was delivered.
In the meantime, two houses had been acquired during the subsistence of the marriage, namely, House No.23 Block D, Adiebeba, Kumasi and House No. Plot 1 Block ‘C’, Abuakwa(Kagyase), Kumasi. It is the case of the Respondent that he acquired the Adiebeba house with his own money but used the names of the parties as husband and wife on the Title Deeds. However, when the Appellant acquired the Abuakwa house, she used her name alone on the Title Deeds.
After the customary divorce in March 2011, the Respondent could not cohabit with the Appellant in the Adiebeba House which served as the matrimonial home and so moved into a hotel. The Respondent herein subsequently issued a writ in the High Court, Kumasi on 11th March 2011 for a declaration that he solely owned the Adiebeba House and therefore entitled to eject the Appellant from same or in the alternative both the Adiebeba house and the Abuakwa (Kegyase)house are declared joint properties of the parties and same partitioned equally. This surely was to get the Respondent a house to live in.
However, the Defendant counterclaimed for a declaration that she owned both the Adiebeba house and the Abuakwa (Kegyase) house and sought an injunction restraining the Plaintiff from interfering with her title and interest in the houses.
After a full trial, the High Court gave judgment inter alia at page 135 of the record of appeal as follows:
“In conclusion, first I hold and declare that the Adiebeba house is solely owned by the Plaintiff. In much the same manner, I hold that the Kagyase house belongs solely to Defendant. However, the request for an order of injunction which is endorsed in the Defendant’s counterclaim fails. Such orders for injunction would normally not be granted in mere declaratory actions. But as regards her present abode which is in the Adiebeba house, I adjudge that once their marriage still subsists Defendant is entitled to live in that house. She can only vacate the house if their second marriage is terminated. Hence the abrogation of the customary marriage has no effect at all until the other marriage is ended as well. It is worth noting that the position of the law on marriage which starts from a Customary one to an Ordinance marriage imports the notion that ordinance marriage of being superior legal status compared to customary marriage, has the propensity to overrun and cannibalize the former.”
It is against this judgment that the Appellant has mounted this appeal on the grounds as follows:
“The Honourable Court erred in its appreciation, analysis and conclusion of the law on advancement thereby occasioning a substantial miscarriage of justice to the Appellant herein.”
“The Honourable Court erred in its appreciation of the legal effect of conversion of marriage.”
“The Honourable Court erred when itsuomotu made pronouncements on the ownership of some business when same was not sought by the parties.”
“The judgment is against the weight of evidence.”
The Honourable court erred in its appreciation, analysis and conclusion of the law on advancement thereby occasioning a substantial miscarriage of justice to Defendant/Appellant.
Counsel for the Appellant in arguing this ground of appeal submitted that as stated in the case of Pettit vrs Pettit  2 All ER 386, the law is perfectly settled that when a husband transfers money or other property into the name of his wife only, then the presumption is that it is intended as a gift or advancement to the wife absolutely at once ... and if a husband invest money, stock or otherwise in the names of himself and his wife, then also it is an advancement for the benefit of the wife absolutely…
Further, she referred to the dictum of Lord Upjohn that “the beneficial ownership of the property in question must depend on the agreement of the parties determined at the time of is acquisition”.
She also cited the cases of OppongvrsOppong  1 GLR 83 and Reindorf alias SackervrsReindorf  2 GLR 38 at 46.
The similarities between instant case and the Oppong case is interesting.
Whereas in the Oppong case the husband exercised control over the house by constructing an extension to it, in the present appeal, the husband had to redeem the house with his own money when the wife mortgaged the Adiebeba without his consent and defaulted in the repayment of the loan.
Just as in the Oppong case, the husband gave his reason for taking the conveyance in the name of the wife as a means to protect her from the husband’s Ashanti family from ejecting the wife from the house on his death, so it is in the present appeal where the husband gives his reason as not wanting a situation where upon his death his family may throw his wife out of the house as he had witnessed growing up as an Ashanti man.
Just as the Oppong case, the wife led no evidence to establish advancement, so it is in the present appeal the wife led no evidence on the advancement of the Adiebeba house on trial.
It was the Respondent’s case that he bought H/No. 23 Block ‘D’ Adiebeba, Kumasi when he had not married the Appellant, but added her name to the documentation on the said house when same was being prepared by which time they were married.
In his evidence during the trial, the Respondent stated that he added the Appellants’ name to the documentation in the said house because he observed that while growing up, wives were chased out of their matrimonial homes and he did not want that to befall his wife (see page 17 of the record of appeal).
At pages 27 to 20 of the record, the Respondent confirmed this and stated further that he intended that the Appellant and himself be joint owners.
The dicta by the learned trial judge that speaks to this point is found at page 132 of the record of appeal.
“… to rebut the presumption that he intended to such consequence when he was drawing the conveyance on the house and building it he must show by evidence indicative at that material time that he had no such wish; and therefore intended the property to be solely his. The Adiebeba house is started in 1987 and completed in 1989 a year after their marriage. Surely Plaintiff would face difficulty in bringing out the sort of evidence to enable a successful rebuttal to take effect. I do appreciate that he never anticipated his outcome”.
In any event, the presumption of advancement is rebuttable. In my view, the conditions precedent to the principle of advancement were not wholly present. For instance, although it is on record that the Respondent provided the income to purchase the Adiebeba land, all other documentation were done in the joint names of both parties.
Surely, if the Respondent wanted her to solely have it the documentation ought to have been in her name and not both of them. In my view this rebuts the presumption of advancement to the Appellant.
One also notes from the Appellant’s own testimony that the said property belong to them both. In that sense therefore, I am not persuaded by this line of reasoning and therefore will dismiss this ground.
Counsel for the Respondent in his submissions contended that although the trial judge made a statement at page 118 of the ROA that:
“That notwithstanding, the customary marriage as matters stand is terminated, and it does not matter who is to blame for this”.
This statement ought not to be taken in isolation because throughout the judgment, the learned trial judge made it clear that the marriage between the parties was still subsisting in several instances.
For instance on that same page, it is found the following:
“As to whether there was a valid abrogation of that customary marriage is an issue for another court… In any case there is the New Jersey marriage contract to reckon and contend with…”
“… the other marriage held and the couple bound together. Their marriage subsists and the abrogation of the customary one is inconsequential”.
Also at page 135 of the record, the judge stated as follows:
“In conclusion, first I hold and declare that the Adiebeba house is solely owned by the Plaintiff. In much the same manner, I hold that the Kagyase house belongs solely to Defendant. However, the request for an order of injunction which is endorsed in the Defendant’s counterclaim fails. Such orders for injunction would normally not be granted in mere declaratory actions. But as their marriage still subsists Defendant is entitled to live in that house. She can only vacate the house if their second marriage is terminated. Hence the abrogation of the customary marriage has no effect at all until the other marriage is ended as well. It is worth nothing that the position of the law on marriage which starts from a customary one to an ordinance marriage imports the notion that ordinance marriage being one of superior legal status compared to customary marriage, has the propensity to overrun and cannibalise the former”.
Counsel for the Respondent was right to say that the statement complained of cannot be said to constitute the trial judge’s holding on the legal effect of the conversion of the marriage of the parties from the customary marriage to that of ordinance.
It is interesting to note that in our Ghanaian context, a marriage commences with the performance of customary rites. Then that marriage can be converted into an Ordinance marriage under the Marriage Ordinance Cap 127 or under the Mohamedans Ordinance Cap 129 thus it becomes a single unit then. Again in dealing within the Ghanaian context, a dissolution normally commences with the presentation of drinks etc. in accordance with custom, thereby ‘dissolving the customary marriage’before proceeding to file a petition for divorce to as it were to ‘dissolve’ the Ordinance marriage. However, it seems to me that the correct state of the law should be that a dissolution of the Ordinance marriage should suffice, in other words since the converted marriage is now a composite unit, there is no need to dissolve the customary marriage as well. This position is however yet to be fully understood by our Ghanaian society.
It is no wonder that the parties in this suit trod this path of dissolution of the Customary marriage prior to the dissolution of the Ordinance marriage.
The portion of the judgment quoted above, amply demonstrate that indeed the learned trial judge held that the marriage of the parties was still subsisting because of the ordinance marriage contracted in the U.S.A. Therefore this ground is frivolous and therefore cannot be supported. This ground is accordingly dismissed.
The Honourable Court erred when it suomotu made pronouncements on the ownership of some business when same was not sought by the parties.
On this ground, the Appellant submitted that in the case of Re: Okine&Ors(Deceased); Dodoo&AnorvrsOkine&Ors [2003-2004] SCGLR 582 at 618, the Supreme Court held that: “Order for relief not claimed on writ is absolutely null and void and must be reversed and expunged”.
Counsel for the Respondent concedes this point and that it ought to be up held but pointed out that counsel for the Appellant fell into the same error when she contended to argue the point. I found that this ground has merit and is therefore upheld in accordance with the principle espoused in Dan vrsAddo  2 GLR 200.
The judgment is against the weight of evidence.
It is trite that where an Appellant sets down this issue as a ground of appeal, he is in effect requesting the court to review the entire record to decipher if there are pieces of evidence which should have been applied or analysed in its favour by the court below or which were wrongly applied.
In any event, Rule 8 of the Court of Appeal C.I 19 provides that: “an appeal is by way of rehearing”.
See OppongvrsAnarfi  2 SCGLR 556, Margaret Mary Adjeivrs The Attorney General& 2 ors  50 GMG 198, CA.
From the record, it cannot be denied that the parties were married according to Ghanaian custom in 1987 and this marriage was later on converted to an ordinance marriage when they contracted one in Dallas, Texas, U.S.A. in 1988. Please see paragraph 3 of the statement of claim found at page 3 of the record and paragraph 4 of the statement of defence on page 7 of the record as well as Exhibit ‘1’ at page 171 being the Marriage Certificate. Additionally in their evidence, both parties admitted to these facts.
It is also not controverted that it was the Respondent who sent money to the Appellant to purchase the land on which Adiebeba property was built. Although the Appellant pleaded that she personally acquired the parcel of land and procured the services of a contractor to put up the said building, the Respondent on the other hand testified that he bought a bare land and built the said house.
This piece of evidence is found on pages 17 to 18 of the record of appeal and is reproduced below:
QQ a bare land.
Also under cross-examination of the Respondent, the following transpired.
Q. You instructed your solicitor before he issued the writ. Is that correct?
Q. Please read paragraph 5 of your statement of claim. Do you still stand by it?
Paragraph 5 of the statement of claim is reproduced below for emphasis.
“Plaintiff avers that he bought the property H/No. 23 Block ‘D’, Adiebeba-Kumasi in 1987 when he was not married to Defendant”.
Additionally, the Respondent testified that he acquired H/No. 23 Block ‘D’, Adiebeba in 1987 when he had not married the Appellant. When asked how he got to know of the land, the Respondent said that he gave money to the Appellant to buy the said land. It is worthy to note that the Respondent was in the United States at the time.
During cross-examination, the following ensued:
Q. You said in your evidence that you were putting up the Adiebeba house when you married the Defendant. Is that correct?
Q. And you also said that you gave money to your wife to buy the land in 1987. Is that correct.
Q. And you married her in 1988. Is that correct?
This appears at pages 24 to 25 of the ROA.
The Appellant’s case is that she personally acquired the parcel of land on which H/No. 23 Block ‘D’, Adiebeba is situated and caused the lease to be prepared in their joint names and sent same to the Respondent in the United States to sign.
The Appellant testified during her examination-in-chief that she personally acquired the land from a certain James Boachie and started building and caused the lease to be prepared in their joint names and sent same to the Respondent in the United States to sign.
The Appellant tendered a document marked as Exhibit ‘2’ showing that she saw James Kwame Boachie (the assignor) execute the lease on the said Adiebeba house.
The Respondent’s testimony is that he gave money to the Defendant to buy the land supports the Defendant/Appellant’s evidence that she personally bought the said land, albeit with the Respondent’s funds.
From the record however, the Appellant admits in several places that the said property belongs to both of them, at page 36 of the record of appeal she stated in her evidence-in-chief that:
“I know plot No. 23 Block ‘D’ Adiebeba-Kumasi. This is a house which belonged to both of defendant and plaintiff. Initially I purchased the plot by my own income. I had information about this plot of land when a hairdresser friend resident in London introduced me to a contractor through which I acquired the plot. The house came to be built on the land as a result of the proceeds I earned from my import trading and used to pay money to the contractor. The Plaintiff also contributed financially to its being set up”.
She further stated that she caused the lease to be prepared in their joint names and sent same to the Respondent in the United States to sign.
At page 61 of the record of appeal, the Appellant conceded that: “the Adiebeba house belongs to both of us but the other house is out of question. I do not deny him stay in Adiebeba house since it is my matrimonial house”.
At page 62 the following ensued:
Q. All that Plaintiff seeks for the court is declaration that if Adiebeba house belongs to both of them and so does with the Kagyase as well?
A. Not correct, as for Adiebeba house same belongs to both of us but not Kagyase house.
The above evidence shows that the Appellant acknowledged that the Respondent contributed to the putting up of the Adiebeba house.
The other contention by the Respondent was that the Appellant was not employed to enable her put up the house during that period indeed he pleaded that (paragraph 4 of his statement of claim) that “Plaintiff says for the first ten (10) years of their marriage in the United States, the Defendant never worked or engaged in any gainful employment and it was Plaintiff who paid all the bills for their sustenance in America”. (page 3 of the record).
During the evidence and cross-examination of both parties, it however came to light that the Appellant was employed in 1990. Exhibit ‘B’ which the Respondent tendered in support of his claim that the Appellant did not work for the first ten years of the marriage rather shows that the Appellant commenced working in 1990 – she was employed as a Nurses Aid popularly referred to as “Live in” which is in the United States (see page 41-42 of the record).
It was the Appellant’s case that she was a trader and had been engaged in trading between Europe and Ghana long before she married the Respondent. She also stayed in the U.K for ten years and moved to Germany. Whilst in Germany, she used to trade in ice chests and other house hold items.
The inconsistencies in the Respondent’s evidence is further borne out by the evidence elicited during his cross-examination:
Q. You said in your evidence that the Defendant contracted a loan sometime in 1993. Is that correct?
Q. What was the purpose of this loan?
A. I was not aware when she took the loan.
Q. Did you ask her why she took the loan?
Q. What did she say was the purpose of the loan?
A, She says she used it to do trading.
Q. And this was around 1993, correct?
This piece of evidence appearing at page 25 of the record also clearly shows that the Appellant was engaged in trading as at 1993 which was also just five years into the marriage. The Respondent’s case that the Appellant never worked during the first ten years of the marriage cannot therefore be true.
The Respondent further averred in paragraph 9 of the statement of claim that he set up a shop for the Appellant in 1996 and in support of this averment said in his examination-in-chief appeared at pages 22 to 23 of the record as follows:
Q. You indicated to the court the last time that you had a business that you were running together with the Defendant. Is that correct?
Q. Where is the shop?
A. Adum, old SSNIT Building.
Q. Can you tell the court how that shop was established?
A. It was acquired by both of us putting our resources together to acquire the place.
A. In 1996.
Q. At that time, the Defendant was working right?
Q. Can you tell the court what role you played in the running or success of the shop.
A. I used to buy the goods from the States and ship them to Ghana.
Q. When you say you used to buy goods was it with your own money or that of the Defendant?
A. My own money.
All the above notwithstanding, the Respondent’s employment history also indicates that he was earning substantially higher sums of money than the Appellant and therefore was capable of putting up the Adiebeba property as he claimed.
Exhibit ‘F’ at page 166 of the ROA indicates that the Respondent earned $43,800 in 1987, $45,000 in 1988 and 1989 $25,935, as compared to the Appellant’s earnings, of $1,317 in 1990, $381 in 1995, $1,022 in 1996 and $19,200 in 2000.
From the above therefore, I agree with the trial judge’s findings that it is more probable than not that the Adiebeba property was built by the Respondent, having regards to the respective financial strength of the parties. In any event, the Appellant herself concedes that it was a jointly acquired property and therefore it stands to reason that it could not have been purchased or built solely by her as she claimed.
Similarly, although the Appellant pleaded and claimed that the Abuakwa-Kegyase house was solely financed by her, she admitted during cross examination that the proceeds from a joint account belonging to her and the Respondent were used in putting up the said house. (see page 59 of the record of appeal).
From the foregoing then, one cannot say that the learned trial judge did not analyse the evidence well, or that the judgment was against the weight of evidence.
In any event, this court has the right to examine the totality of the evidence on record and form its own conclusion.
See Akufo-AddovrsCatheline  1 GLR 377 SC.
Additionally, the 1992 Constitution Article 22 clause 3 (a) … that “spouses shall have equal access to property jointly acquired during marriage”
It is clear from the ROA that both houses were acquired during the subsistence of the marriage and strictly speaking should be shared by them.
This court must not disturb the findings of fact made by the trial court, unless the findings of fact made by the trial judge were wholly unsupported by the evidence. See In Re: Okine (supra) affirmed in the case of Veronica Opokuvrs Mary Lartey  119 GMJ page 247 at 247.
See also the case ofMensahvrsMensah  1 SCGLR 391 and Arthur vrs Arthur [2013-2014] 1 SCGLR 543.
The evidence before this court is that the Ordinance Marriage between the parties has now been dissolved. See page 149 of the record. Consequently, Article 22 Clause 3(b) of the 1992 Constitution comes into effect.
This article provides that: assets which are jointly acquired during marriage shall be distributed equitably between the spouses upon dissolution of the marriage.
It seems to me that for an equitable distribution of the assets acquired by the parties, the two houses must be shared.
As was stated in AchiampongvrsAchiampong [1982-1983] 2GLR 1017 CA holding 4, “Even if there were no agreement, the circumstances surrounding the acquisition of these properties and the conduct of both parties, were such that equity and good conscience would not have permitted either of them to claim exclusive beneficial interest in the properties and leave the other destitute”.
In my opinion therefore, the conclusion reached by the learned trial judge was unassailable and ought not to be disturbed. This ground therefore is dismissed as underserving.
Rule 8 sub rule 7 of C.I. 19 provides that: “The Appellant shall not, without leave of the Court, urge or be heard in support of any ground of objection not mentioned in the notice of appeal, but the court may allow the Appellant to amend the grounds of appeal upon such terms as the court may think just”
I have combed the entire record and it does not reveal that the Appellant came by way of leave to file the three additional grounds of appeal.
Indeed, one cannot glean from the pleadings filed, any of these grounds as well.
The rule is quite strict andmandatory. It reads “The Appellant is not, without leave of the Court, urge or be heard in support of any ground of objection not mentioned in the notice of appeal, but the court may allow the Appellant to amend the grounds of appeal upon such terms as the court may think just”.
There is no evidence on record of any leave soughtor granted by the court to the Appellant to file these additional grounds; neither was there any leave for amendment granted to the Appellant in respect of amending the original grounds of appeal filed, in accordance with the Rules. Therefore, I am strongly persuaded to strike out the additional grounds of appeal as incompetent.
Rule 63 of C.I 19 provides that: “Where a party to the proceedings before the court fails to comply with these rules or with the terms of an order or the directions given or with a rule of practice or procedure directed or determined by the court, the failure to comply is a bar to the further prosecution of proceedings unless the court considers that the non-compliance should be waived”.
As was done in the unreported case of K.M.A vrs Peter OsseiAsibey and ano Civil Appeal No.H/166/2012 delivered on 27th February, 2018 by H/L Justice AduamaOsei J.A, I shall waive the non-compliance only because both parties here had the opportunity to address the issues in their submission but this should not be seen as a signal for further infractions of this rule. I therefore proceed to discuss the additional grounds.
Additional ground 1
The Honourable court erred in not holding the Plaintiff/Respondent’s writ and statement of claim to be nullities since they were not issued by a Lawyer with a valid and subsisting Solicitor’s Licence and not issue from a Registered Chambers in contravention of statute and case law
The arguments put forward by the Appellant on this point is grounded on the case of The Republic vrs High Court (Fast Track Division)[2013-2014] 2 SCGLR 1247 which is also rooted on the case of
High Court (Fast Track Division) Accra; Ex-Parte Terewaja&Korboe (Reiss & Co.) Gh Limited
Interested Party) (Civil) Motion No. J5/7/2014 dated 20th July, 2016 and also confirmed on review in
Suit No. J7/8/2016 dated 20th July, 2016 where the Supreme Court held inter alia that:
“The Legal Profession Act, 1960 (Act 32) per section 8(1) had clearly set down the period for payment of the Solicitor’s Licence. Any payment in the middle or quarter of the year would not attract any concessions and there were none in the Act. Act 32 therefore incapacitates any Solicitor who fails to renew his licence and the effects of such failure therefrom”.
Also,The Republic vrs High Court, Accra Ex: parte National Lottery Authority  SCGLR 390 where the Supreme Court held that: “No Judge has authority to grant immunity to a party from the consequences of breaching of Act of Parliament”.
It was the Appellant’s case that based on the above authorities the writ of summons and statement of claim issued by the Plaintiff/Respondent do not state the solicitor’s License and Chambers Registration Number of the solicitor who issued them and for that reason all processes filed are rendered void and therefore Appeal be allowed and judgement of High Court set aside.
The Respondent in response stated that the issue as raised in the ground might to be pleaded as required by Orders 11 Rules 7 (4),8 (1) and 11 (1) of C.I. 47.
He cited the case of Dahabiehvrs S. A. Tarqui and Brothers [2001-2002] 1 GLR 171 SC Holding 4 in support. The Supreme Court held that:
“The provision under section 29(1) of the Conveyancing Decree, 1973 (NRCD 175) that a lessee should be given adequate notice and time to remedy a breach or make reasonable compensation or both as a precondition to any action for recovery of possession was procedural only, and therefore whether or not it had been complied with in any given case was a question of fact rather than law to be determined on the evidence. Accordingly, as required by Order 19, rule 15 of the High Court (Civil Procedure) Rules, 1954 (LN 140A) the point had to be raised at the earliest opportunity. Thus in the instant case, in the suit tried before the High Court the issue of non-compliance with section 29(1) of NRCD 175, should have been specifically pleaded by the Appellant or at least he should have pleaded such facts as would indicate an intention to rely on it. Since the Appellant did not raise that issue before the High Court for in the Court of Appeal and thereby denied the respondents an opportunity to meet that defence at the trial, it was wrong for the Appellant to invite argument on the issue before the Supreme Court”.
Similarly, in Moasa Co. vrsSaara [1999-2000] 1 GLR holding (3) this court held that:
“On the authorities, whenever there was a breach of a statute which enured to the benefit of a party, it should be pleaded and made an issue for trial”.
Also in Dam vrsAddo  2 GLR 200 holding (3), the Supreme Court held that:
“The function of pleadings is to give fair notice of a case which has to be met, so that the opposing party may direct his evidence to the issue disclosed by them. To condemn a person on a ground of which no fair notice has been given may be as great a denial of justice as to condemn him on a ground on which his evidence has been improperly excluded”.
My view on the matter is that, the Appellant’s failure to raise this issue at the earliest opportunity before the trial could be interpreted as waiving his right to protest at an early stage and went ahead to participate in a full trial knowing very well that at the end of the day all the process could be rendered voidable.
As was stated by the Court of Appeal in the case of Civil Motion No. H3/175/2014 Antie Cecilia & 10 orsvrs All State Construction Co. Ltd.; Alex OpokuAgyeman& 31 orsvrs All State Construction Co. Ltd. dated 26/11/14 the court held that:
“… In any situation where the eligibility of a lawyer is challenged with respect to compliance with Section 8(1) of Act 32, it is the duty of the court to determine same as a preliminary issue by making directions with respect to the verification of the eligibility of the said lawyer. It is safe to the assume that where directions for the determination of an objection in terms of Section 8(1) of Act 32 will result in delay of the proceedings, orders as to costs as may be sufficient to compensate the other party are conceivable in the interest of justice. In every situation where a lawyer is given the opportunity to prove compliance with Section 8(1) of Act 32 and the said lawyer is unable to satisfy the court that he has procured a valid annual licence before filing any court process, the competency of any such process can be rightly questioned and the court has a duty to determine same as a preliminary issue”.
It is clear from the ROA that the Appellant never raised this issue of non-compliance with Section 8(1) of Act 32 before the High Court, to enable the court to embark on a fact finding verification of compliance with the said statute. Further, the writ was issued on 11/04/11 prior to the administrative directive by the Chief Justice on this statute aforesaid. Consequently, the counsel for Respondent was not obliged to endorse the writ with the solicitor’s License Number.
I would therefore in my opinion rule that this ground is of no merit and I dismiss same.
Additional ground 2
Having found the Plaintiff/Respondent claim that Defendant/Appellant did not work for the first ten (10) years of their marriage to be untrue the Honourable Court erred in decreeing ownership of H/No. 23 Block B, Adiebeba/Kumasi in the Plaintiff/Respondent in disregard of the contribution made to the acquisition of same by the Defendant/Appellant.
This ground had been argued under the omnibus ground of appeal and to wit that on the balance of probabilities, the house at Adiebeba was put up by the Respondent having regard to their respective levels of income. The learned Judge therefore did not err in decreeing ownership in the Respondent more so as he equitably decreed ownership of the Kagyase House in the Appellant. This ground of appeal is therefore dismissed.
Additional ground 3
The Honourable court’s grant of ownership of H/No. 23 Block B Adiebeba/Kumasi in the Plaintiff/Respondent to the exclusion of the Defendant/Appellant is contrary to the 1992 Constitution and binding judicial pronouncements on the issue of property rights upon dissolution of marriage thereby occasioning a substantial miscarriage of justice to the Defendant/Appellant.
This ground is also unmeritorious as it has already been dealt with in ground 2 above.
In conclusion, it is my view that with the exception of ground 3, all other grounds of appeal are dismissed and the judgment of the High Court dated 23rd June, 2012 is hereby affirmed.
No order as to Cost.