CATHERINE SIMMONS vs. ELOI KOFI MENSAH SIMMONS CROSS [2013]DLCA6676

Date	2013-04-11
Suit No.	SUIT NO.: HI/122/201
Citation No.	[2013]DLCA6676

ISAAC DUOSE J.A. (PRESIDING)

P. K. GYAESAYOR J.A.

MARGARET WELBOURNE (MRS) J.A.

MISS M. N. Y. ACHEAMPONG FOR THE PETITIONER/RESPONDENT

MR. MBEAH FOR THE RESPONDENT/APPELLANT

[2013]DLCA6676
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													<main id="main" class="content" style="min-height: 60rem" >CATHERINE SIMMONS<o:p></o:p>vs.<o:p></o:p>ELOI KOFI MENSAH SIMMONS
CROSS<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;
padding:0in 0in 1.0pt 0in">

SUIT NO.: HI/122/201&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: 11TH APRIL 2013<o:p></o:p>

MR.
MBEAH FOR THE RESPONDENT/APPELLANT<o:p></o:p>

<p class="MsoNormal" align="center" style="text-align:center;line-height:115%;
border:none;mso-border-top-alt:solid windowtext 1.5pt;mso-border-bottom-alt:
solid windowtext 1.5pt;padding:0in;mso-padding-alt:1.0pt 0in 1.0pt 0in">JUDGMENT<o:p></o:p>

</div>DUOSE, JA <o:p></o:p>The
decision of the court is unanimous. <o:p></o:p>A
brief history of the proceedings is as follows: <o:p></o:p>The
petition in this matrimonial litigation was filed on 19th December 1994.&nbsp; A cross petition was filed on 30th January
1995.&nbsp; On 18th February 1997 the trial
judge made the following order whereby the marriage was formally annulled.&nbsp; She stated "Upon both parties agreeing
that the marriage broken down beyond reconciliation and being convinced that it
is so it is hereby ordered that the marriage contracted between he[sic] parties
in London in 1983 be annulled.&nbsp; The
Registrar to draw up the divorce order". The main relief having been
obtained the suit proceeded with the testimony of the Petitioner until the 24th
day of June 1999.&nbsp; Prior to this day the
trial judge had on several occasions encouraged the parties to settle the
outstanding anciliary reliefs to no avail.&nbsp;
They were namely devolution of property acquired during the subsistence
of the marriage and custody of two issues from the marriage. <o:p></o:p>Inexplicably,
some how, the trial fell into abeyance until it was revived by a notice to
proceed filed on 6th June 2006 nearly seven years on. <o:p></o:p>As
at or on the 24th June 1999, the petitioner was under cross examination.&nbsp; When the matter was revived it came before
Isaac Lartey-Young J.&nbsp; It took some time
for the records to be produced for adoption.&nbsp;
When the record were finally ready for adoption, all the exhibits
tendered by the petitioner could not be found.&nbsp;
Further proceedings therefore stalled.&nbsp;
Eventually the learned trial judge found it necessary to suggest
settlement as the only reasonable way out of the predicament faced by the
court.&nbsp; By that time the issue of custody
of the children had become moot because during the fifteen years that the case
had been pending both children born out of the marriage had attained the ages
of majority.&nbsp; The parties agreed to file
separate proposals for settlement which was done.&nbsp; Subsequently, on the 30th day of October
2009, the court notes play out as follows:— <o:p></o:p>"By COUNSEL FOR RESPONDENT: <o:p></o:p>We
filed a proposal for settlement upon one? from the court.&nbsp; But the response we received show that we
have not reached any solution. <o:p></o:p>BY COURT: <o:p></o:p>The
two proposals have now been discussed with both parties and their Counsel.&nbsp; The petition is adjourned for ruling on the
proposal for settlement.&nbsp; Adjourned to
27th November 2009 for ruling at 10.00 am."&nbsp; However it was rather on the 19th day of
February 2010 that instead of a ruling, the trail judge delivered a judgment in
which he married the positive portions of the proposals for settlement and
deleted the negative red herrings. <o:p></o:p>The
concluding part of the judgment stated the following: <o:p></o:p>"The
court upon reading and comparing these proposals and responses shall make the
judgment and orders. <o:p></o:p>1)
The house No B835/25B Kwashieman is declared a joint matrimonial property of
the parties. <o:p></o:p>2)
The said properties shall be held by both parties in trust for their two
children, Alice and Kofi only. <o:p></o:p>3)
Though the respondent shall be recognized as a joint trustee the petitioner
alone shall occupy it for his life time only because he is now aged and the
respondent has a self-acquired residence and also doing a good business. <o:p></o:p>4)
The property shall never be disposed of by way of assignment, lease, mortgage or
sale by any of the parties (trustees) or their legal representatives. <o:p></o:p>5)
All tenants, assignees or persons occupying the said property upon a grant by
the respondent shall vacate it and give vacant possession to the petitioner to
have sole and peaceful enjoyment during his life time". <o:p></o:p>The
respondent appellant promptly filed an appeal on the 9th day of March 2010 on
one ground to wit "The trial judge erred in law when he treated the
proposals submitted without prejudice for consideration towards an amicable
settlement as the basis for his judgment when there was disagreement on the
said proposals".&nbsp; It is on record
that the parties and their lawyers discussed the terms in open court.&nbsp; The details of the discussion and whether an
agreement of any sort was reached is not apparent on the face of the record. <o:p></o:p>