OPAREBEA vs. MENSAH [1993]DLCA4974

Date	1993-12-16
Suit No.	[1992 – 1993] 3 G B R 1053 – 1068 C.A
Citation No.	[1993]DLCA4974

LAMPTEY JA

ADJABENG JA

LUTTERODT JA

DR W C EKOW DANIELS FOR THE APPELLANT.

DR SETH TWUM FOR THE RESPONDENT.

[1993]DLCA4974
																																						<div class="restriction-wrapper">
														<div class="container-lg">
															<div class="row">
																<div class="col-md-12 restricted-content">
																	<div class="restricted-content-img-wrapper">
																		<div class="lock-icon bounce-7">
																			<img class=""
																				src="https://www.dennislawgh.com/dl-assets/dl-images/lock-content.png"
																				alt="Subscription based content">
																		</div>
																	</div>
																	 
																		<a href="https://www.dennislawgh.com/login"
																		class="btn btn-primary btn-lg"
																		style="font-family: 'open sans'; text-transform: capitalize; border-radius: 8px"> 
																		Login to Read Full Case </a>
																	 
																	
																</div>
															</div>
														</div>
													</div>
													<main id="main" class="content" style="min-height: 60rem" >OPAREBEA<o:p></o:p>vs.<o:p></o:p>MENSAH<o:p></o:p>[COURT
OF APPEAL]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

[1992 – 1993] 3 G B R 1053 – 1068
C.A&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; DATE: 16 DECEMBER 1993<o:p></o:p>

DR
SETH TWUM FOR THE RESPONDENT.<o:p></o:p>

</div>CORAM:<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

LAMPTEY
JA, ADJABENG JA, LUTTERODT JA<o:p></o:p>

</div>LUTTERODT JA. <o:p></o:p>In
1958, the petitioner, whom I shall hereinafter describe as “the appellant” was
married to the respondent, S A Mensah, now deceased, under customary law.
Following the breakdown of their marriage, she instituted proceedings in the
High Court, Accra for a number of reliefs, including the following:<o:p></o:p>“2. That the respondent be granted
maintenance pending suit and financial provision.<o:p></o:p>3. That it be declared that the
petitioner has a beneficial interest in the family assets.”<o:p></o:p>By
a judgment dated 14 December 1984 the learned trial judge ordered among other
things as follows:<o:p></o:p>“For the petitioner’s matrimonial
reliefs concerning financial provision and beneficial interest in the
respondent’s assets, it is hereby ordered that the petitioner be given the
respondent’s house at Tesano where the petitioner resides and has already
staked her interests by making extensions thereto.”<o:p></o:p>The
respondent who was not at all happy with this order, appealed against the
decision. The appellant in turn cross-appealed for a variation of the order by
increasing the financial provision. In the course of the proceedings the
respondent died and his executors were, in conformity with the rules,
substituted. They however withdrew the appeal, leaving the cross-appeal to be
determined.<o:p></o:p>Although
the appellant sought two distinct reliefs, ie financial provision and a
declaration that she had a beneficial interest in the family assets, the court
did not grant these reliefs separately. What the learned judge did was to lump
the two awards together and declare the Tesano house as adequate for both.
This, the court did after reviewing the evidence and concluding that indeed she
was not only entitled to financial provision but she indeed had a beneficial
interest in the respondent’s assets. It seems to me that the learned judge drew
his authority from section 20(1) of the Matrimonial Causes Act 367, which
reads:<o:p></o:p>“The court may order either party to
the marriage to pay to the other party such sum of money or convey to the other
party such movable or immovable property as settlement of property rights in
lieu thereof or as part of financial provision as the court thinks just and
equitable.”<o:p></o:p>The
appellant is not challenging the validity of the order. Her main complaint, I
think, is that the quantum is grossly inadequate. Indeed I do think section
20(1) of Act 367 empowers a judge to make any of the orders specified therein
where the spouse is not merely praying for financial provision but is alleging
an interest in property. In other words, s 20(1) of Act 367 provides for two
basic reliefs namely, settlement of property rights arising from claims of
substantial contribution either in money or moneys’ worth and financial
provision: Achiampong v Achiampong [1982-1983] GLR 1017; see particularly the
speech of Abban JA which supports the views I have expressed.<o:p></o:p>I
have taken the trouble to examine the scope of the order made because of the
respondent’s counsel’s submission that the judge dismissed the motion of the petitioner
for a beneficial interest in any family assets and made the order in
substitution thereof, implying thereby that she was granted one relief only ie
maintenance or financial relief. Truly, the learned judge never used the&nbsp; term “family assets.” Lord Denning in the
decision of the Court of Appeal in Gissing v Gissing [1969] 2 Ch 85 explained
that term as follows:<o:p></o:p>“Where a couple by their joint
efforts, get a house and furniture, intending it to be a continuing provision
for them for their joint lives, it is prima facie inference from their conduct
that the house and furniture is a “family asset” in which each is entitled to
an equal share. It matters not who goes out to work and who stays at home.”<o:p></o:p>But
on the other hand the trial judge quite clearly found in favour of the
petitioner that she has a beneficial interest in the respondent’s assets. In
that light my view is that he granted the substance of the petitioner’s claims
as the following excerpt of his judgment would show:<o:p></o:p><o:p>&nbsp;</o:p>“Then follows the issue as to whether
or not sufficient grounds have been established to justify the award of
financial provision in her favour or claim by her of interest in the husband’s
properties. The two claims are different but I treat them under one head for
the sake of convenience. The clear unequivocal answer I give to this question
is that the petitioner has established sufficient grounds to justify judgment
being given to her on the two reliefs.”<o:p></o:p>It
is trite learning that because the respondent did not appeal against any of
these positive findings, we cannot in any way interfere with them, and neither
can we upset the order that part of the Tesano house was in settlement of the
appellant’s property rights.<o:p></o:p>Before
I deal with the main issue raised in this appeal, I would like to determine an
important issue raised by the respondent’s counsel. His argument runs like
this: The appellant asked for a variation of the order of financial provision.
Under s 28(2) of Act 36</main>