IN THE SUPERIOR COURT OF JUDICATURE
IN THE SUPREME COURT
ACCRA – AD 2008
CORAM: WOOD (MRS),C J (PRESIDING)
ANIN -YEBOAH, J.S.C
BAFFOE BONNIE, J.S.C
11TH FEBRUARY, 2009
NANA AMA AMPONSAH } PETITIONER/APPELLANT/RESPONDENT
FRANKLYN AMOAH NYAMAAH } RESPONDENT/RESPONDENT/APPELLANT
J U D G M E N T
Nana Ama Amponsah, (Respondent herein), was married to Franklyn Amoah Nyamaah, (Appellant herein) under Akan Customary law in 1991. They have 4 children out of the marriage, 3 girls and a boy.
On the 4th day of August 2003, the Respondent filed a petition at the High Court in Kumasi for dissolution of the marriage on the ground that the Appellant had exhibited a behavior of which she cannot be expected to live with him and that the appellant has caused her much anxiety, distress and embarrassment. Per the Respondent’s amended petition she claimed inter alia
“that the House Number Plot 15 Block “B” Odeneho Kwadaso, the matrimonial home be partitioned and the petitioner given her portion”
The Appellant cross petitioned for one of the two stores at the Central Market being used by the Respondent and custody of the 4 children. I would like to indicate that these were the only reliefs that the cross petition of the Appellant sought and there was no amendment to change or add to this petition.
The High Court did not have difficulty with the pronouncement that the marriage had broken down beyond reconciliation pursuant to Section 1(2) of the Matrimonial Causes Act 1971, Act 367 as both parties were adamant about the continuance of the marriage. At the end of proceedings the High Court made an order inter alia:
- That the Custody of the four children be given to the Respondent with the Appellant having reasonable access to them.
- That the House Number Plot 15 Block “B” Odeneho Kwadaso did not belong to the couple so it could not be settled on either of the parties.
- That the Respondent recovers possession of one of the two shops for his own business i.e. Shop Number AN 16.
The High Court Judge did not make any order for the payment of alimony to the Respondent as she claimed and asked both parties to bear the costs of their action. Surprisingly, the High Court judge made an order on a property, Hse number Plot 38 block B situated at Afiasiebon which was not a claim sought for by either the Appellant or Respondent.
The Respondent, not satisfied with the judgment of the High Court, appealed to the Court of Appeal against some of the orders made by the judge. One of such grounds of appeal which is the subject matter of this action at the Supreme Court was that;
“The trial judge erred when she held that H/No. Plot 15 Block ‘B’ more particularly situated at Odeneho Kwadaso, Kumasi was not the self acquired property of the Respondent and the Appellant when there are substantially overwhelming documentary evidence on record, irresistibly supporting the fact that Plot No. 15 Block “B”, Odeneho Kwadaso was acquired by the Respondent.”
The Respondent also appealed against the order of the High Court refusal to grant alimony.She also added that the trial judge erred when she held that the property situate at Afasiebon, Ashanti was jointly acquired by the parties.
The Court of Appeal unanimously allowed the appeal of the Respondent. The Court of Appeal held that the House Number Plot 15 Block “b” Odeneho Kwadaso, Kumasi,being the matrimonial home should be partitioned into two and shared amongst the Appellant and the Respondent. The court further held that House Number Plot 38 Block “A”, Atwima Afiasiebon is the property of Maame Ama Amponfi, the mother of Respondent and cannot be held as the matrimonial home. Custody of the four children was given to the Respondent as well as twenty million Cedis lump sum. It is this judgment that the Appellant is seeking to reverse.
The Appellant’s grounds of appeal relate to the order of the Court of Appeal on the houses in dispute namely House Numbered Plot 15 Block “B” Odeneho Kwadaso, Kumasi (the Odeneho Kwadaso house) and House Numbered Plot 38 Block “A”, Atwima Afiasebon (the Atwima Afiasebon House.) I will deal with the latter house first
Atwima Afiasebon House
In the petition and Cross Petition of the Respondent and Appellant respectively, the Atwima Afiasebon house was not a relief that any party made. The said house was only mentioned for the first time in the Appellant’s amended petition (at page 70 of the Record) when he was denying the claim of the respondent as to which house was the matrimonial home.
It is the duty of the court to make pronouncement on the reliefs that a party seeks. A judge’s omission to regard a relief must be explained with reasons. In all, the court ensures that the issues that it sets itself to deal with will aid it in making justifiable decisions on the reliefs sought. This I think is one of the reasons why relevance of evidence is at the heart of our legal jurisprudence.
A judge who makes an order for a relief that was not sought can be held to have exercised a jurisdictional irregularity. It was stated in the case of TIMITIMI v. AMABEBE  14 W.A.C.A. 374, by Coussey J.A. as summarized in the head note at p.375:
“A court is said to be of competent jurisdiction with regard to a suit or other proceeding when it has power to hear or determine it or exercise any judicial power therein. There is a distinction between an order and judgment which a court is not competent to make and an order which, even if erroneous in law or in fact is within the court’s competency: where there is no jurisdiction the proceedings are void; but where a court of competent jurisdiction makes an erroneous order, it is appealable. An irregularity in the exercise of jurisdiction should not be confused with a total lack of jurisdiction…”
This is how Ocran JSC put it in the case of Gihoc Refridgeration & Household Products Ltd V Hanna Assi 2005-2006 SCGLR
“….the courts are not in the business of conferring unsolicited remedies on those who had not invoked the court’s jurisdiction”
As the Atwima Afiasebon house was never in issue, the court did not have the mandate to make pronouncement as to the ownership of it.
See also the case of Dam vs J.K. Addo  2 GLR 200 SC where this court held
“A court must not substitute a case proprio motu, nor accept a case contrary to or inconsistent with that which the party himself puts forward whether he be plaintiff or defendant”
This omission cannot be seen in the light of the general rule in civil procedure as enunciated in the case of ABOWABA V ADESHINA  12 W.A.C.A 18 at pp. 19-20,
Where it was said that
“where evidence, which could have been ruled out as inadmissible to prove a material fact which was not pleaded, has nevertheless been adduced without objection and is before the judge… the trial judge was bound to take it into consideration…”
It is trite learning that judgment as it relates to the ownership of the house is a judgment in rem. A party who claims ownership but fails to be a party to an action involving the property is estopped from relitigating the matter as to the ownership of the land. For this reason the Appellant can use this judgment as it relates to the ownership in future actions. In the book Spencer –Bower and Turner on “The Doctrine of Res Judicata”  [2nd ed.], it is stated [at p.151] that:
“where one cause of action has been the subject of final adjudication between parties, those determinations of particular issues which are its essential foundation, without which it could not stand , may be used as the basis of issue estoppel between the same parties of when another cause of action altogether is set up.”
In my humble opinion per the reliefs sought by the parties in this action, the ownership of Atwima Afiasebon was not in issue and a ruling on it was therefore irrelevant for reliefs sought. I therefore hold that the decisions of both courts as to the ownership of the Atwima Afiasebon house were irregular exercise of jurisdiction.
Odeneho Kwadaso House
Another issue that the court had to contend with was whether the Odeneho Kwadaso house was the house of the Appellant and the Respondent or that of the Appellant’s father. Such determination was crucial in assisting the court in making orders.
The contentions of the Appellant in both courts were that the property belonged to his father. Before this court, counsel for the Appellant, in attacking the Court of Appeal’s judgment, dwelt more on the issue of whether the house belonged to the Appellant solely as was admitted, as counsel put it, by the Respondent, when asked who owned the house. For this reason he says by her own showing Respondent had no proprietary interest in the house.
The appellant cited the case of ACHIAMPONG V ACHIAMPONG [1982-83] GLR 1017 where it was held that
“Broadly speaking, a wife by going to live in a matrimonial home, the sole property of the husband, did not acquire any interest therein. The law did not recognize any such interest. She only had a right to live in the matrimonial home as long as the marriage subsisted. The right was conferred on her by virtue of her status as a wife and not by virtue of any permission from the husband. So long as her status as a wife remained, so long did that right survive. But the right would terminate automatically after divorce even if she was the successful petitioner…”
The Appellant further added that the cases of MENSAH V MENSAH [1998-99] SCGLR 350 and BOAFO V BOAFO [2005-2006] SCGLR dealt with situations in which the courts made a finding that the property was acquired jointly and as such applied an equitable sharing of the properties.
Despite this submission of the appellant, the Appellant still asserts that his father is the owner of the house.
It is quite interesting to note the conduct of the alleged owner of the house in this action, that is, the Appellant’s father. He failed to join as a party to the action and preferred to be witness in his case. It has been held
“where a grantor stands by in a case between his grantee and a third party involving the validity of the title he has conveyed, and is content to see the battle fought by the grantee, he the grantor will be bound by the result of the case and will be estopped by conduct from re-opening the issue determined in that case; ABRAHAMS V AKWEI  GLR 676
The issue of ownership of a house is normally entangled with to whom the land on which is sited was given. This will best be resolved by the person who granted the land. In the instant case, it was Nana Boakye Danquah who granted the land to the Appellant. By his evidence adduced he stated that he granted the land to the Appellant and it is in his name that the allocation papers were given.
The conduct of the parties confirm that the house is that of the appellant, as claimed by the respondent, and not that of the Appellant’s father. This is a house that the parties have enjoyed without any challenge as to its ownership. Section 48(2) of the Evidence Decree, NRCD 323 puts it that;
“A person who exercises acts of ownership over property is presumed to be the owner of it”
Thus in this instant case, since the Appellant and Respondent exercise acts of ownership over the property, they are presumed to be the owners. Even though this is a mere presumption and it can be rebutted, in my opinion the mere production of water and electricity bills cannot rebut this presumption as evidence has established that the building permit and allocation papers are in the name of the Appellant.
The Appellant further in his statement case raised the issue of joint ownership as against sole ownership. He pleads that the Respondent admitted that the house is the sole property of the Appellant. It was to support his claim that he cited ACHIAMPONG V ACHIAMPONG and he referred to the quote cited above court.
The appellant in his pleadings [page 68-70] of the record asserted that the Odeneho Kwadaso house belonged to his father [paragraph 23 of the Appellant’s response i.e. page 69 of the record] and even added that the father kicked against any alterations to the house. He did not in any way state that he owned the house. This was the appellant’s pleading.
In HAMMOND V ODOI & anor [1982-83] GLR 1215 @ 1235 Crabbe JSC stated
“Pleadings are the nucleus around which the case – the whole case – revolves. Their very nature and character thus demonstrate their importance in actions, as for the benefit of the court as well as for the parties. A trial judge can only consider the evidence of the parties in the light of their pleadings. The pleadings form the basis of the respective case of each of the contestants. The pleadings bind and circumscribe the parties and place fetters on the evidence that they would lead. Amendment is the course to free them from such fetters. The pleadings thus manifest the true and substantive merits of the case.”
Since this appeal is by way of rehearing, this court is entitled to make up its own mind on the facts and to draw inferences from them to the extent that the trial court could. PRAKA V KETEWA  GLR 423-427
By the pleadings of the Appellant, he cannot now claim that the house belonged to him alone. This conduct of the Appellant offends against the Rule of Departure. Order 11 Rule 10 of C.I 47.
In the HAMMOND V ODOI case (above cited) when a party sought to depart from his earlier pleading the court per Archer JSC(as he then was)said,(holding 1)
“Nowhere in the statement of claim did the plaintiff aver that his ancestors, being Osu subjects, settled on the disputed land as of customary right. The plaintiff’s pleading in the statement of claim only conveyed the impression that he and his brother were owners of the land in dispute because they took their grant from the Nii We family of the Osu Blohum quarter. Consequently, when he subsequently pleaded in his reply that he and his ancestors occupied the lane in dispute as Osu subjects he committed a decessus by changing his radical title and making new allegations of fact. He thus raised a new matter which was not intended to be a set-off nor did it controvert anything pleaded in the statement of defence. On the contrary, the reply raised [p. 1218] a new matter and abandoned the earlier stand and that amounted to a departure from his pleadings…”
The Appellant claim was that the Odeneho Kwadaso house belonged to his father, he cannot depart from his pleading and set off a new ground and claim that since the Respondent gave evidence that the house belonged to him he can plead that he solely acquired the house and therefore on the strength of the ACHIAMPONG V ACHIAMPONG case.
it cannot be subjected to a partition by an order of the court.
I am therefore of the view that the Court of Appeal was right in its holding with regard to the ODENEHO Kwadaso House and their decision ought not be disturbed.
On the issue of alimony the court of appeal reviewed the evidence on record relating to the financial standing of the parties and concluded thus
“Basing ourselves on the sad interpretation of Section 20(1) of the Matrimonial Causes Act, 1971, Act 367, we will award a lump sum payment of 20 million cedis to the petitioner which the respondent must pay to her as a send off money”
The appellant has taken issue with the alimony award stating it is inequitable. We do not think so. Based on the totality of evidence available to it, we are of the view that the Court of Appeal was right in awarding the 20 million cedis send off money to the respondent. This was in consonance with the meaning and spirit of Section 20(1) of the Matrimonial Causes Act 1971 (Act 367)
This Court’s decision will be summarized as follows:
The appeal is granted in part;
- The Court of Appeal’s decision declaring Amma Amponfi as the owner of the house No. 38 block A Atwima Afasiebon was done without jurisdiction and so same is set aside.
- The Alimony of 20 million cedis awarded to the respondent is confirmed.
- The Court of Appeal’s finding on the Odeneho Kwadaso house and the order partitioning same amongst the parties is confirmed.
P. BAFFOE BONNIE
(JUSTICE OF THE SUPREME COURT)
G. T. WOOD (MRS)
S. A. BROBBEY
(JUSTICE OF THE SUPREME COURT)
(JUSTICE OF THE SUPREME COURT)
(JUSTICE OF THE SUPREME COURT)
K. A. ASANTE-KROBEA FOR THE APPELLANT
HANSEN KWADWO KODUAH FOR THE RESPONDENT