MILLICENT ASAR BOAFO v. PETER ABABIO

J U D G M E N T

OFOE, J.A.

The claims made by the petitioner against the respondent in the trial court were as follows:

“(a) That the marriage between her and the respondent be dissolved.

(b) The matrimonial home which stands in the name of the Respondent be declared as jointly owned by the parties in equal share.

© That the unnumbered house at Railway Quarters, Achimota which was in the name of the Respondent but built from joint contribution of the parties be declared as jointly owned by the parties in equal share.

(d) That in the alternative in the event that the Respondent has sold the unnumbered house at Railway Quarters Achimota the Petitioner be given a half share of proceeds therefrom.

(e) That the Respondent is ordered to pay a lump sum as alimony to the petitioner’s.

(f) The Respondent is ordered to pay the petitioner’s cost for the suit.

(g) Any other order(s) that this Honourable Court may deem fit.”

Unfortunately the respondent died before the commencement of trial. The substituted respondent in the person of the head of family also died to be substituted by the nephew, Kwabena A. Mensah. After trial judgment was given the respondent, relevant for our purpose, in the following terms:

“In the interest of justice and equity both properties at Kokomlemle and the Achimota Railway houses should have been distributed equally, as I have already found that both properties were acquired during the subsistence of the marriage. However since the deceased Respondent had already sold the Railway Quarters property without the knowledge of the Petitioner, it is only fair that the Kokomlemle house be settled on the Petitioner for equality is equity……………………Looking at the evidence as a whole and in the interest of justice, equity and good conscience. I will order that the Matrimonial Home at Kokomlemle No. C 144/4 be settled on the Petitioner. I make no Order as to alimony or financial provision.”

The respondent is aggrieved at this decision and has appealed on three grounds:

“(i) That the learned judge erred in law when she granted a relief not claimed by the petitioner

(ii) That the decision of the trial court that H/No. Ci44/4 Kokomlemle was jointly acquired is against the weight of evidence

(iii) That the decision by the trial judge to settle H/No.C144/4 Kokomlemle on the petitioner because the respondent had already sold the Achimota Railway Quarters is unjust, inequitable and contrary to good conscience”.

A brief of the case of the parties