IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
ACCRA - A.D 2018
MR ROBERT DANIEL AINOO - (Petitioner/Appellant)
MRS SABINA AINOO - (Respondent/Respondent)
DATE: 27TH JUNE, 2018
CIVIL APPEAL NO: H1/4/18
JUDGES: IRENE C. LARBI (MRS) J.A. (PRESIDING), LAWRENCE L. MENSAH) J.A., A. M. DOMAKYAAREH (MRS.) J.A.
LAWYERS: SAMUEL AGBOTTAH FOR THE PETITIONER/APPELLANT KING DAVID ADDAI FOR THE RESPONDENT/RESPONDENT
A. M. DOMAKYAAREH (MRS), J.A
1. This appeal is against the judgment of the High Court, Tarkwa, dated 30th January, 2017. The appeal has arisen from a contest between the parties who were once husband and wife as to how to adjust their property rights in the assets acquired during the subsistence of the marriage. The petitioner/appellant is a teacher by profession who rose to become an Assistant Headmaster and finally Headmaster of Fiaseman Senior High School. The respondent/respondent on the other hand is a trader who progressed into an astute business woman operating several registered business enterprises.
2. The brief facts giving rise to the contest are that the petitioner/appellant, hereinafter called the appellant and the respondent/respondent hereinafter called the respondent married under the customary law at Nsuaem on 11th November 1982. Subsequently, the customary marriage was converted to an Ordinance Marriage under CAP 127 on 6th June 1982. At the time the petition was filed for the dissolution of their marriage on 17th May 2010, they had four issues.
3. It was the appellant who petitioned for the dissolution of the marriage on the known ground that the relationship had broken down beyond reconciliation. The respondent also cross-petitioned for the dissolution of the marriage. As the parties did not contest the dissolution of the marriage, same was dissolved by decree of the court on 2nd July 2010.
4. In the petition filed by the appellant he also prayed for ancillary reliefs including settlement of property rights in respect of the following properties acquired during the subsistence of the marriage, namely:-
(i) A four-bedroom house at Nsuaem christened “White House”.
(ii) A five-bedroom house storey building with four stores in front at Nzema Line, Tarkwa
(iii) A five-bedroom house at Low Cost, Tarkwa
(iv) An on-going four-bedroom house at Akyempim Road, Tarkwa
(v) A seven store building opposite U.A.C, Tarkwa
(vi) A Mercedes Benz Saloon Car with Registration No. WR 229 Y
(vii) A Nissan Primera car with Registration No. AS 8770 X
(viii) A Store in the UAC building, Tarkwa
5. The respondent’s cross-petition also included ancillary reliefs of the following properties:
(a) Ownership of the “White House” at Nsuaem
(b) Sole ownership of the house at Low Cost, Tarkwa
(c) Half share of the house at Nzema Line, Tarkwa
(d) Half share of the house at Akyempim Road, Tarkwa
(e) An order for the custody of the youngest child of the marriage, Nana Benyin Ainoo with right of access to the petitioner who shall bear his maintenance, educational and medical needs
(f) Any other reliefs as the court may deem meet
6. It must be noted that during the course of determining these ancillary reliefs at the trial court, the petitioner amended his petition in as many as five times excluding the original petition itself. Of necessity the respondent also had to file an equal number of Amended Answers with the petitioner following up with Amended Replies on two occasions.
During the hearing of the Petition, the appellant testified in person and called three witnesses. The respondent also testified in person and called 2 witnesses. The trial judge, after considering all the evidence, delivered its judgment on 30th January 2017 as follows:
7. The White house at Nsuaem was given to the respondent. The trial judge found that the respondent bought the plot and built the house out of her own resources with “minimal” contribution from the petitioner. In addition, the petitioner had pleaded in his Petition that he is minded to give the said house to the respondent “as a mark of his remembrance of their relationship”. The store in the UAC building was vested in the Respondent. The building comprising the seven stores opposite UAC was vested in the Petitioner. The rest of the properties, namely, each of the Nzema Line House, the Low Cost house and the Akyempim Road House were to be shared equally between the parties.
8. The Petitioner sold the two cars during the pendency of the Petition. The two cars were declared to form part of the marital assets. The Petitioner was ordered to release the amount realised from the sale, being Gh⊄2,800.00 together with interest from 2010 to the respondent as her portion of the two cars since she contributed to the purchase of the Nissan Primera vehicle.
9. This appeal symbolises that the appellant is not entirely satisfied with the outcome of the ancillary reliefs he sought. In fact, he is aggrieved by same and accordingly filed his Notice of Appeal against same on 3rd April 2017, complaining of that part of the judgment concerning the Akyempim House as being part of the marital assets and also that part where the judge, having found the store in the UAC building, Tarkwa to be acquired during the marriage, declared same to be for the benefit of the respondent alone. His grounds of appeal are two, namely that those portions of the judgment are against the weight of evidence and that the learned trial judge erred in stating a date which was neither pleaded by the petitioner/appellant nor given in evidence by any of the parties.
10. The Notice of Appeal indicates that additional grounds(s) of appeal would be filed upon receipt of the Record of Proceedings but no such additional ground(s) have been filed.
The appellant is therefore seeking a reversal of those portions of the judgment on the Akyempim House and the store in the UAC building, Tarkwa.
GROUND 1 OF THE APPEAL
Those portions of the judgment are against the weight of evidence.
11. In line with authoritative decided cases on reliance on the omnibus ground of appeal, which are trite, Counsel for the appellant pointed out several pieces of evidence from the Record of Appeal which in his opinion, do not support the finding by the trial judge that the Akyempim Road house is part of the matrimonial assets. He pointed to the averment in pleading of the appellant to the effect that the Akyempim Road house was an on-going 4-bedroom house which was started in July 2010 and was exclusively being undertaken by the petitioner from his earnings from various sources. The appellant further testified that he started the building immediately after the divorce in 2010 and tendered receipts in evidence marked as Exhibits E1 – E27 as well as a building permit tendered as Exhibit F. He maintained the same position under cross-examination.
12. Counsel for the appellant also referred to the pleadings and testimony of the respondent to the effect that she did not contribute to the on-going construction of the house at Akyempim Road.
The respondent on her part averred that the house was not started in July 2010 as alleged, but somewhere in September 2008. She also averred that the house was an eight-bedroom house comprising of two flats which was roofed before the marriage was dissolved. The respondent prayed for the court to go on locus inspection when she was challenged under cross-examination that the house is a 4 bedroom with a hall but the court did not go that route. Counsel submitted that the respondent’s pleadings and testimonies demonstrated that she knew nothing about the Akyempim house apart from the plot on which it is built.
13. Counsel for the respondent on the other hand pointed to other pieces of evidence on the record that showed that the decision of the trial judge was impeccable. Counsel pointed out, and rightly so, that if the sole acquisition of property in a marriage by a spouse and same registered in the sole name of that spouse makes that spouse the absolute owner as espoused by the appellant’s counsel, then the appellant would not be entitled to an equal share of the 5-bedroom house at Low Cost because it was solely acquired and built by the respondent. In that vein, counsel for the respondent submitted that the trial judge was justified in pronouncing the Akyempim Road house as being joint property acquired during the marriage. Let us hear what the trial judge said in respect of this Akyempim Road house in his judgment at page 546 of the record of appeal. The trial Judge recounted the different positions of the parties in respect of the Akyempim Road house and continued thus: -
“The divorce certificate indicates that the marriage was dissolved on 2nd July 2010. Having pleaded that the building was commenced in May 2010, I am satisfied the building commenced before the marriage was dissolved. With the state of the law on the devolution of marital assets I am satisfied the Akyempim property was at the time of the dissolution of the marriage one of the assets for distribution between the parties. It seems to me that having acquired the plot and commenced the building before the marriage was dissolved, it was unfair for the petitioner to continue with the building without waiting for the distribution of the assets and turn round to use that act as a sword to claim same as his personal property. Clearly, he built at his own risk. The petitioner disregarded all caution and continued with the building to over reach the respondent in his undeserved claim to the property. It is accordingly declared that the plot and the house thereon, form part of the marital assets and each party should benefit equally from it”.
14. Having reviewed the totality of the evidence on record, we totally agree with the trial judge on this point for the reasons adduced by him and many more. From the record, the appellant comes across as somebody who was not truthful or candid with the court. First of all, he could never get the basis for his claim to the reliefs endorsed on his Petition straight hence he resorted to numerous amendments along the way as the case progressed and he deemed it necessary to shift position all in an attempt to remain on course. Although when pleadings are closed one can still amend same with the leave of the court, which he sought before his numerous amendments, yet doing so in as many as five times anytime he saw the likelihood of tables turning against him attracts the legitimate inference that all his amendments were afterthoughts. Apart from conceding that he bought the plot during the subsistence of the marriage, he gave several start dates of the construction of the house. In paragraph 10(f) of his last amended petition found at p. 371 of the ROA the petitioner averred that he started the construction in July 2010. In his evidence-in-chief at page 407 of the ROA he made the self-contradictory statement that he “started the building immediately after the divorce i.e. the latter part of 2010 and it is still on-going”.
This testimony was on 12th February 2014. Immediately after the divorce is consistent with July 2010 since the marriage was dissolved on 2nd July, 2010. July 2010 can however not be the latter part of 2010. It is rather consistent with mid-2010. Under cross-examination at page 432 of the ROA he testified that the Building Plan in respect of the Akyempim house was drawn in June 2010 and the Plan submitted in the same month to the Assembly for approval three weeks before the divorce. In other words, the petitioner had made up his mind to develop the property before the dissolution of the marriage, knowing fully well that even though he had petitioned for same in his ancillary reliefs, the respondent had also cross-petitioned on the same property and he was not prepared to wait for the outcome. He further testified under cross-examination at the same page 432 of the ROA that he has not built any house without a building permit, yet the Building Permit he tendered in respect of the Akyempim Road house, Exhibit F at page 621 of the ROA indicates that he applied for the building permit on 14th June 2010 and same was not issued until 19th January 2012 yet as early as July 2010 (according to one of his versions) he had started the construction. The appellant’s clear intention not to await the outcome of the court decision on the ancillary reliefs was manifested in the way he started intermeddling with the properties in contention immediately the marriage was dissolved on 2nd July 2010.
The petitioner sold Mercedes Benz No. WR 229 Y and the Nissan Primera vehicle No. AS 8770 X in 2010 and afterwards bough two cars in 2011, one in 2013 and another in 2014. The unavoidable inference to draw from this is that the appellant wanted to overreach the respondent and deny her, her share in the cars by selling same and buying new ones after the dissolution of the marriage to replace the old ones. This is further buttressed by the fact that on 5th March 2014 the petitioner testified under cross-examination at p 413 of the ROA, that he sold the Nissan Primera vehicle with Registration Number AS 8770 X in 2010 and the proceeds of the sale was still “lying down”. His construction of the Akyempim house, while the distribution of same was still unresolved, was no doubt meant to overreach the respondent. As enunciated in of NDOLEY VRS. IDDRISU  2 GLR 559 at 565, nobody is permitted to take advantage of his own wrong.
15. Indeed, following the penchant of the petitioner to intermeddle with the marital assets after the dissolution of the marriage but before the resolution of the ancillary reliefs, there is evidence on record at page 328 – 333 that the respondent filed a motion on notice on 23rd February 2012 for interim injunction against the petitioner from further dealing with the properties in dispute pending the determination of the petition. This motion was opposed by the petitioner. The motion was however not moved, ostensibly on the advice of the trial judge to counsel for both parties with an assurance that he will determine the case expeditiously. No doubt the trial judge stated that “petitioner disregarded all caution and continued with the building to overreach the respondent in his undeserved claim to the property.”
16. The petitioner also pretended that he did not know the business the respondent engaged in having married and lived with her from 11th November, 1982 to 2nd July, 2010, a period of almost 28 years. The Record however shows that the respondent was an astute business woman engaged in a lucrative business having started as a trader before the marriage. During the subsistence of the marriage she run two registered enterprises known as SABBOB Enterprise later changed to BOBSAB Enterprise and SABNAB Enterprise dealing in dirty oil, empty drums and other merchandise goods including TVs and other electrical goods.
17. During the same period, 1982-2010, the appellant was a teacher who graduated from being a teacher to an Assistant Headmaster and finally to Headmaster. At the time he gave evidence on 5th March, 2014, he said his salary as Headmaster was Gh¢2,000.00. Even though he testified under cross-examination at page 412 of the ROA that he also started retailing cement in 1998, he stopped in 2003 and resumed in 2011 after the divorce.
During the subsistence of the marriage, the respondent advanced several sums of money to the appellant from the proceeds of her business but the respondent flatly denied this, taking absolute comfort in the fact that the marriage setting, not being a commercial enterprise, when money passes from one spouse to the other, no receipts are demanded or given, nor are there any witnesses.
18. We find that on account of all these instances of untruthfulness, the learned trial judge was right in preferring the evidence of the respondent to that of the appellant.
The appellant has not made out his case on the Akyempim Road house. It is dismissed.
19. In respect of the store in the UAC building this is what the trial judge held of page 547 of the ROA.
“The petitioner laid claim to a store in the UAC building which according to him is owned by the respondent. In her answer, the respondent alleged in paragraph 24 thereof that she had with the consent of the petitioner disposed of it.
In his testimony, the petitioner said he owned the store with the respondent. He denied the alleged sale of it by the respondent. Rather, he said it had been leased to one Emmanuel Akuffo the consideration for which was Gh¢14,000.00 which amount was with the respondent. On the totality of the evidence in record, I am satisfied this was the store from which the respondent operated her business. The parties are advanced in years. While the petitioner has his store from which he operates his cement business as well as those he has with his immediate family, the respondent would have nowhere to operate if she should resume her business when the lease expires. It is true the store was acquired during the course of the marriage. However, it would not be fair and equitable that it be shared as part of the marital assets. It is declared that the beneficial interest in the store remain with the respondent.”
20. The appellant’s beef with this holding by the trial judge is that having rightly held that the store was a jointly acquired property, he erred in holding that the beneficial interest in the store be given to the respondent while being silent on the legal interest. Counsel therefore prayed this court that in order that the legal status of the store may not to remain undeclared this court should reverse that portion of the judgment and order the store to be sold and the proceeds be equally shared between the parties.
21. The evidence on record on this UAC store is that per paragraph 10(j) of the appellant’s Further Amended Petition pursuant to leave granted by court on 29-10-13 which can be found at page 372 of the ROA, the appellant pleaded that he owns the store in the UAC building which store was started and operated during the subsistence of the marriage and that he lays claim to it. His evidence in-chief in support of same at page 408 of the ROA is as follows:
“A store within the UAC building Tarkwa, we both own the store … Both of us purchased the store. One Emmanuel Akuffo of No. 5 Swart Avenue-Nkroful Junction – Sekondi is in possession … it is not correct that the store has been sold but has been leased to the said Emmanuel Akuffo from January 2010 to December 2018. It is not correct that I was consulted for the sale of the store. I was neither consulted for the lease of the store. The proceeds of the store was Gh¢14,000 is with the respondent.”
The appellant says he was not consulted for the sale or lease of the property yet he knew the details of the transaction he narrated. He did not tell the court how he came by those details.
22. The respondent’s answer, found at paragraph 24 of her Further, Further, Further Amended Answer pursuant to leave of court granted by His Lordship Mr. Justice Kwame Ohene-Essel found at page 469 of the ROA is to the effect that she admitted the petitioner’s paragraph 10(j) but added that she has disposed of same and that she sought the opinion of the petitioner before disposing of same. The appellant, having denied that the store was sold bore the burden of proving same. He failed to call Emmanuel Akuffo who he said was in possession as a lessee to prove the existence and terms of the lease. He also admitted under cross-examination at page 419 of the ROA that the structure where the respondent was operating from is part of the property which originally belonged to UAC. The trial judge was therefore right based on the principles of fairness and equity to declare the beneficial interest in the store to vest in the respondent. This means that the trial judge believed the story of the petitioner that the property was leased and not sold. This court affirms the finding of the trial judge in respect of the store in the UAC building. As a function of rehearing, this court is also clothed with the power to make any consequential orders that may arise out of the matter. That being so, this court declares that the legal reversionary interest in the store is also vested in the respondent.
Ground 1 has not been made out and is consequently dismissed.
That the learned trial judge erred in stating a date which was neither pleaded by the petitioner/appellant nor given in evidence by any of the parties.
23. Counsel for the appellant did not proffer any submissions in support of this ground. He is consequently deemed to have abandoned same. In any event, there are so many dates mentioned in the judgment and the appellant did not indicate the particular date complained about for same to be verified from the record. This offends Rule 8(6) of the Court of Appeal Rules, 1997 C.I. 19 which directs that no ground which is vague…shall be permitted except the general ground that the judgment is against the weight of the evidence. The said Rule 8(6) further empowers the court to strike out any such ground of appeal or any part of the appeal which is not permitted under the Rule on its own motion or on application by the respondent. This court, accordingly suo motu strikes out ground II of the grounds of appeal as incompetent for offending Rule 8(6) of CI 19.
24. As part of arguing Ground 1 of the grounds of appeal, the appellant referred to the part of the judgment of the trial court at page 456 of the ROA where the learned judge stated that the Akyempim house was started in May 2010 and submitted that this wrong date of commencement formed the basis of the wrong decision by the trial court that the property be shared equally between the parties. Counsel’s argument is that this date was neither pleaded by the petitioner/appellant, nor given in evidence by any of the parties.
25. Earlier in this judgment, it was mentioned that the petitioner amended his pleadings five times during the course of the trial. Specifically, he filed the petition on 17th May, 2010 and with the leave of the court, amended same on 5-8-10, 5-10-10, 18-5-11, 24-6-11, 5-11-13. The numerous amendments were so messy that the court on the 10th day of May 2011, made the following order at page 301 of the ROA.
“BY COURT: The petitioner’s further amended petition should have included the facts between the original and (sic) amended petition. On that basis, lawyers for the parties are to withdraw the further amended petition pursuant to the order of court filed on 18th May 2011 and file another one to include all the facts the petitioner wants to rely upon. The amended answer filed on 6th June 2011 is also to be withdrawn. When served, the respondent is also to file all facts that she also intends to rely upon …”
26. In the second amended petition filed on 5th October 2010, the petitioner pleaded at paragraph 10(f) found at page 32 of the ROA that an on-going 4-bedroom house at Akyempim Road, Tarkwa was started in May 2010 and which is being fully built by the petitioner, should be given to the petitioner. This starting date was later changed to July 2010 in the amendment of 18th May 2011. Although technically the May 2010 date was deemed to cease to form part of the Petitioners case, yet his own haphazard and frequent amendments led to the trial judge referring to that date in his judgment. In any event, the trial judge believed the respondent’s version that the Akyempim Road house was started before the dissolution of the marriage. We find that no substantial injustice has been done to the petitioner by reference to a date that no longer forms part of the petitioner’s case.
27. The appeals is dismissed in its entirety and save for the consequential order that the legal reversionary interest in the UAC store is also vested in the respondent, the judgment of the trial court, Tarkwa, dated 30th January, 2017 is affirmed.
Angelina M. Domakyaareh (Mrs)
(JUSTICE OF APPEAL)
Irene C. Larbi (Mrs) JA I agree Irene C. Larbi (Mrs)
(JUSTICE OF APPEAL)
Lawrence L. Mensah, JA I agree L. L. Mensah
(JUSTICE OF APPEAL)