AFUA OFORIWAAH vs. PAUL K. ADU [2002]DLCA6220

Date	2002-03-28
Suit No.	CIVIL APPEAL NO. 196/2000
Citation No.	[2002]DLCA6220

ESSILFIE-BONDZIE J.A (PRESIDING)

FARKYE J.A

AKOTO-BAMFOR J.A.

[2002]DLCA6220
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													<main id="main" class="content" style="min-height: 60rem" >AFUA
OFORIWAAH<o:p></o:p>(PLAINTIFF/ APPELLANT)<o:p></o:p>vs.<o:p></o:p>PAUL K. ADU<o:p></o:p>(DEFENDANT/
RESPONDENT)<o:p></o:p>[COURT OF APPEAL, ACCRA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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APPEAL NO. 196/2000&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; &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: 28TH MARCH, 2002<o:p></o:p>

<p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;line-height:
115%;mso-outline-level:1;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
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(PRESIDING), FARKYE J.A, AKOTO-BAMFOR J.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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<p class="MsoNormal" align="center" style="margin-bottom:0in;margin-bottom:.0001pt;
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</div>MRS.
AKOTO-BAMFO, J.A. <o:p></o:p>This
is an appeal and a cross appeal filed against the decision of the Circuit Court
dated the 8th of November 1999. <o:p></o:p>In
order to appreciate the issues raised, I find it necessary to give a brief back
ground to the events culminating into the appeals filed by the respective
parties. <o:p></o:p>Afua
Oforiwaa was married to Paul Adu under custom sometime in 1965; they cohabited
in Kumasi and subsequently at Accra. The union was blessed with seven (7)
children. In the course of time the husband left the shores of Ghana to seek
greener pastures in Britain. He arranged for the wife to join him later. While
there Afua worked both as a cleaner and a seamstress while Paul worked with a
motor firm. Being an illiterate she gave all her earnings to the husband who
operated a joint account opened by them. It appears that all their earnings
were paid into this account and expenses taken therefrom. Out of the joint
savings they purchased a house and some household chattels. When they decided
to return to Ghana, they sold the house; used part of the proceeds in
establishing various businesses firstly clinker, rice and sugar imports and
secondly as dealers in 2nd hand goods. It is evident that the peace and quiet
of their matrimonial home was disturbed with advent of one Ama Serwaa into
their lives; the husband had an extramarital affair with Ama Serwaa, had a
child with her and she later moved to live closely to the matrimonial home.
This was to be the beginning of the end of this otherwise reasonably happy
marriage—for the couple till then operated businesses together and did many
things in common. <o:p></o:p>When
the wife felt she could no longer stand the heat, as it were, she petitioned
for divorce and prayed for a number of ancillary reliefs. The husband in his
answer claimed that the marriage had been dissolved as far back as 1990, and
that he had allowed the wife into his home because she was pregnant and custom
forbade a man divorcing a wife in that condition. The Court took evidence and
found that no such dissolution had taken place and therefore that the marriage
was subsisting. <o:p></o:p>The
Court therefore took evidence on the reliefs claimed by the wife among which
were for an order for a dissolution of the marriage, custody of the minor
children and a half share of their jointly acquired matrimonial home described
as identification No. D40 Abeka Lapaz and a half share of all the household
chattels. <o:p></o:p>For
the petitioner this ground was filed; <o:p></o:p>That
the Honourable Judge misdirected himself and also made an error in arriving at
the conclusion that the petitioner was entitled to 1/3 share of the matrimonial
home No. D40 Abeka Lapaz as well as his decision on the vehicle named in the
petition. Particulars of the misdirection were set out as follows; <o:p></o:p>(1)
The Hon. Judge disregarded Article 22(3) of the 1992 Constitution on the
distribution of properties acquired during marriage. <o:p></o:p>(2)
The Hon. Judge disregarded the legal implications of the disability of the
petitioner – an illiterate to be able to give correct account of names and for
work done in Britain. <o:p></o:p>The
respondent cross-appealed in these terms; <o:p></o:p>That
the Hon. Judge’s order or decision that 1/3 share of house no. D40 Abeka Lapaz
be given to the petitioner was not supported by the evidence and has
occasioned, for the cross appellant substantial miscarriage of justice. <o:p></o:p>Before
considering the issues raised in this appeal I wish to comment briefly on the
manner the grounds of appeal for the appellant were formulated. Under C19 rules
8(2) a and 5 the appellant is required to set out and under distinct heads the
grounds upon which the appellant intends to rely at the hearing. <o:p></o:p>A
look at the notice filed by the appellant shows that only one ground of appeal
was filed, namely that the decision on the matrimonial home was erroneous, it
is evident however that in giving the particulars as provided for under rule
8(4) thereof learned counsel did not confine herself to the alleged
misdirection in relation to the matrimonial home but did stray into other areas
like custody and maintenance of the children of the marriage which were not
subject of the appeal. This state of affairs cannot be described as
satisfactory. <o:p></main>