2016
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
This case focuses on the appeal by the executors of David Ayiku Awotwi's estate against a High Court ruling allowing Maria Francesca Awotwi to substitute them in a longstanding divorce matter and declaring the 2006 divorce void. The Court of Appeal found that such substitution is impermissible as matrimonial matters are inherently personal. Furthermore, any procedural irregularities must be challenged within a reasonable timeframe. Consequently, the initial divorce order was reinstated, denying Maria's claim.
WELBOURNE (MRS), J.A.
This is an appeal against the Ruling of the High Court dated 5 th June, 2012.
For ease of reference the parties will be known as Petitioner and Respondent in this appeal.
The background facts:
On 19th November 1991, the Petitioner, David Ayiku Awotwi filed a divorce petition against Maria Francesca Awotwi the Respondent/Respondent seeking an order to annul the marriage between the parties and for the grant of custody to the children in the marriage.
The Respondent opposed the granting of the Petition but asked for financial and property settlement upon dissolution.
The matter travelled over a period of fourteen (14) years under different judges until 20 th February, 2006 when the court presided over by H/L Justice Lartey Young dissolved the marriage between the parties and granted the divorce order.
The court made no orders as to the ancillary reliefs but ordered that any party who was interested in any ancillary matter to pursue same within Twenty-one (21) days after the dissolution (this can be found at page 158 of the Record of Appeal). The Divorce Certificate issued to the parties is found at page 159 of the Record of Appeal.
No other ancillary proceedings were pursued by either party.
The parties had five children.
The children remained in the care and custody of the Petitioner as they had been since the separation of the parties and the filing of the divorce proceedings in November, 1991.
On 9th November, 2006, the Petitioner re-married Ms. Doris Nana Ama Akosah at the Registrar General’s Department in Accra.
A year later on the 10th November, 2007, the Petitioner died Testate.
His last Will and Testament was read at the High Court, Accra.
The Executors named in the Will applied for and obtained probate on 11 th February, 2008 (see pages 214-219 of the Record of Appeal). In November, 2011, the Respondent applied to the High Court to substitute the Petitioner with the executors of his Estate.
The Respondent’s case to the court was that she was not notified before the dissolution of the marriage in 2006 and that the divorce was therefore irregular and void.
Her application however did not seek an order to set aside the divorce order.
In her supporting affidavit, the Respondent also claimed that she was the Petitioner of the divorce matter; she deposed that she has an interest in the deceased Petitioner’s estate and that by the “Petition”, she asked for one of the houses of the deceased to be given to her as proper