The Law: Claim for matrimonial property 17 years after grant of divorce fails

The parties were husband and wife and lived in Germany after their marriage in 1984.

The marriage was subsequently dissolved in Koblenz- Germany sometime in 1998. The Ex-Wife averred that in 1986, the couple acquired an immovable property in Ghana at the cost of (GH¢450).

According to the her, the parties paid for the house partly with a bank loan in addition to their own money, and that the bank loan was defrayed by the couple in an agreement.

After the dissolution of the marriage, her sister Janet Opoku continued to live in the house to protect her interest in the property.

But the ex-husband of late tried to eject Janet Opoku from the house by various means, hence this action. 

The ex-husband in his Statement of defence averred that the couple never decided to acquire any immovable property. He purchased the disputed property for (GH¢470) solely with his own funds and in his own name.

The ex-husband concluded that the ex-wife, during the divorce proceedings, never contested the property in issue.

Secondly, she never applied for any bank loan with the ex-wife to purchase the subject matter in dispute and that the ex-wife never contributed to the acquisition of the property in dispute. ex-husband averred that he allowed ex-wife’s sister Janet Opoku to live in the house in dispute on humanitarian grounds and that this suit has been brought in bad faith.

At the trial, the ex-wife testified through her sister Janet Opoku, to whom she had given the power of attorney.

High Court judgment:

The High Court gave a decision in favour of the ex-wife and held that the property in dispute was acquired during the subsistence of the marriage between the parties and therefore same is marital property which has to be shared equally between the parties.

The trial judge further ordered the property to be valued and granted the Ex-husband the right to buy ex-wife out of the property. 

Court of Appeal judgment:

The husband appealed to the Court of Appeal and the court allowed thereby setting aside the judgment of the High Court.

The Court of Appeal held that the power of attorney was invalid, and as such the evidence given by the attorney on behalf of the ex-wife/respondent was dismissed. 

The respondent’s case was reduced to the mere pleadings filed by her, and since pleadings do not constitute evidence, it means that no evidence was led by the respondent in support of her claims and upon which the trial court could have entered judgement for her"

Supreme Court judgement:

The ex-wife appealed to the Supreme Court. She argued that

- Judgment is wrong in law in that the Court erred in rejecting the power of attorney of the ex-wife.

- The Judgment is also wrong in law in that this suit is substantive and not ancillary.
Counsel for the ex-husband also argued the following; 

— That this is a matrimonial cause which should have been initiated by a process sanctioned by the Matrimonial Causes Act and Order 65 of the High Court (Civil Procedure) Rules, 2004 C.I. 47.

— That the ex-wife’s attorney, Janet Opoku is not clothed with capacity to commence and maintain this suit as the power of attorney was void as it was not notarised in the country of residence of the ex-wife, Germany, and the name of the witness was not on the document

— Counsel for the ex-husband also submitted that assuming without admitting that in the proceedings before the German Court, the respondent failed to include in the Petition claims for financial provision and property settlement, she can only do so through an application for ancillary relief.

The Judgment in the divorce petition was given on August 7, 1998. The action in this suit was filed on the 28 of June, 2015, and therefore, the ex-wife is woefully out of time under Order 65 Rule 23 (4) of C.I. 47.

— Counsel further argued that there was no indication that the action was instituted with the leave of the High Court. Consequently, the trial court had no jurisdiction to entertain the action and the Court of Appeal indirectly declared that the writ of summons did not invoke the jurisdiction of the High Court.

Therefore, all the proceedings before the trial court are void as the writ issued by the ex-wife did not invoke the jurisdiction of the court, as same did not comply with the rules of court as well as being statute barred.

The Supreme court in a unanimous decision dismissed the appeal. The Court held that the power of attorney was invalid as it did not contain the name of the witness, only the signature as required by the Power of Attorney Act, 1998 (Act 549) section 1 (1&2).

The Ex-wife ought to have commenced her action by a petition and not a writ and this is fatal to her case as required by Order 65 rule 2 of CI 47. 

The Supreme Court held that by Order 65 rule 23 (4) of C.I. 47 the action should have commenced not later than one month after the Judgment in the divorce petition, except with the leave of the Court. The ex-wife is woefully out of time and her claim should fail.

The Supreme Court further held that pursuant to section 10 of the Limitation Act 1972 (NRCD 54) (claim in respect of landed property) the action should have been brought within 12 years when her cause of action accrued; that was when the divorce was granted in 1998 pursuant. 

What this means

• Proper legal procedures matter: Legal claims must follow specific processes.

In family disputes involving property, the correct procedure (such as filing a petition) is essential.

• Timelines are critical: Both marital and land disputes are subject to strict time limits.

Delaying legal action can result in the loss of rights, no matter the merits of the case.

• Power of attorney must be valid: A power of attorney document must comply with all legal requirements, including proper notarisation and witness information as required by the Power of Attorney Act, 1998 (Act 549).

This case highlights the importance of understanding and adhering to legal processes and timelines, particularly in property and marital disputes.

It also underscores the consequences of procedural errors, which can overshadow substantive claims.

Credit:DennisLaw