Lithur Vrs Lithur [2021] GHASC 6 (21 April 2021)

GhaLII

Automated Summary

Key Facts

The case centers on a divorce and matrimonial dispute between Nana Oye Lithur (Appellant) and Tony Lithur (Respondent). During litigation, the Appellant sought interim relief to eject the Respondent from their matrimonial home in Accra and restrict his access to properties. The High Court granted partial relief, including alternate weekend use of the Ada house. The Respondent appealed this to the Court of Appeal, which allowed a repeat stay application. The Appellant then filed an appeal to the Supreme Court, challenging the Court of Appeal's decision on procedural and constitutional grounds, including claims of marital property rights under Article 22(3) of the Constitution.

Issues

  • This issue centers on the Court of Appeal's determination that the High Court's orders regarding the Ada property were non-executable and declaratory in nature. The Appellant contended this disregarded settled law on non-executable orders, challenging the legal basis for the stay of execution and the overruling of her preliminary objection.
  • The third issue involves the Court of Appeal's use of a supplementary affidavit introduced in the repeat stay application. The Appellant argued this procedural misstep violated principles of repeat applications, which should not introduce new evidence. The court addressed whether such affidavits could be considered under the independent jurisdiction of the Court of Appeal.
  • The primary issue was whether the Court of Appeal committed an error by granting the repeat stay application under exceptional circumstances, which the Appellant argued deprived her of her fundamental right to marital property as protected by Article 22(3) of the Constitution. The court's decision to uphold the stay despite the Appellant's objections to the procedural and legal basis forms the core of this issue.

Holdings

  • The Supreme Court upheld the Court of Appeal's authority to consider a supplementary affidavit in the repeat stay application, emphasizing that such applications grant the Court of Appeal independent jurisdiction to evaluate new evidence without being bound by prior proceedings.
  • The Supreme Court dismissed the appeal, affirming the Court of Appeal's decision that there were exceptional circumstances warranting the stay of execution. The Court held that the Court of Appeal did not err in granting the stay, as the orders in question, while declaratory, could lead to executable consequences (e.g., contempt of court) if not complied with.
  • The Supreme Court rejected the argument that the Court of Appeal erred in considering the High Court's orders as non-executable. It clarified that declaratory judgments can be stayed if they create enforceable obligations, referencing the case of Ogyeadom Obranu Kwesi Atta VI v Ghana Telecommunications Co. Limited.

Remedies

  • The Court of Appeal granted a stay of execution for the High Court's orders regarding the Ada property. They deemed the Appellant's (Nana Oye Lithur) exceptional circumstances—such as the hostile removal of items by the Respondent—sufficient to justify the stay, citing Article 22(3) of the Constitution and the Arthur v Arthur precedent.
  • The High Court ruled that both parties (Tony Lithur and Nana Oye Lithur) would have alternating weekend access to the Ada house. This interim arrangement aimed to manage shared property rights while avoiding further conflict, pending the substantive divorce proceedings.
  • The High Court issued an order preventing the Petitioner from visiting the matrimonial home at Plot No. 125, Okyeame Street, Accra, or taking any further items from it. This was intended to maintain stability in the marital home's condition during ongoing litigation.
  • The Supreme Court imposed a restriction on the Respondent (Tony Lithur) from taking steps to alienate the Ada property. This measure aimed to preserve the property's status during the ongoing divorce and matrimonial proceedings, preventing unilateral actions that could complicate its equitable distribution.
  • The High Court ordered that the Petitioner (Tony Lithur) must not dispose of any items in his possession during the interim period until the final resolution of the matrimonial petition. This restraint was granted to preserve marital property for equitable distribution upon dissolution of the marriage.
  • The Supreme Court affirmed the Court of Appeal's ruling, dismissing the Appellant's interlocutory appeal. The court emphasized that the appeal did not address substantive issues of marital property ownership, which remain pending in the lower court's divorce proceedings.

Legal Principles

The court addressed the principle that a declaratory judgment may be stayed if it creates executable consequences, even if the judgment itself is not directly executable. It also emphasized the Court of Appeal's independent jurisdiction in repeat applications, allowing consideration of new evidence via supplementary affidavits. Additionally, the court reaffirmed that interlocutory appeals should not resolve substantive issues like property rights but focus on procedural or interim matters.

Precedent Name

  • Golden Beach Hotels Ghana Limited v Pack Plus International Limited
  • N. B. Landmark Ltd. v Lakiani
  • Ogyeadom Obranu Kwesi Atta VI v Ghana Telecommunications Co. Limited
  • Arthur v Arthur
  • N.D.K Financial Services v Yiadom Construction and Electrical Works and Others
  • Republic v Court of Appeal Accra, Ex-parte Ghana Cable Ltd
  • Merchant Bank Ghana Limited v Similar Ways
  • Appiah v Pastor Laryea Adjei
  • A.D.M Cocoa Ghana Limited v International Loan Development Limited
  • Standard Chartered Bank Ghana Limited v Western Hardwood

Cited Statute

  • Constitution of the Republic of Ghana, 1992, Article 129 (3)
  • Constitution of the Republic of Ghana, 1992, Article 22 (3)

Judge Name

  • Pwamang, Jsc
  • Dotse, Jsc
  • Prof. Mensa-Bonsu (Mrs.), Jsc
  • Kulendi, Jsc
  • Dordzie (Mrs.), Jsc

Passage Text

  • the jurisdiction of the Court of Appeal is not only separate and distinct under this repeat application, but is also independent and not tied to the apron strings of any other processes other than those contained in the repeat application.
  • These matters indeed constituted exceptional circumstances for which the Court of Appeal cannot be faulted in the decision it came to on appeal by the Respondent herein. Prevention is definitely better than regret.
  • the appeal herein filed by the Appellant against the decision of the Court of Appeal dated the 3rd day of December 2019 fails and is accordingly dismissed.