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Matrimonial causes - Divorce –
Customary law – Marriage -
Dissolution – Subsisting
monogamous marriage - Marriages
of convenience – Bigamy -
Fictitious marriage and false
declarations for marriage -
Public policy - Joint acquired
property - Ownership –
Administration of estate -
Letters of Administration -
Whether or not the plaintiff was
co-owner of the properties in
issue - Section 44 of the
Marriage Ordinance 1951, (Cap
127) - Article 18(1) of the
Constitution, 1992 - Section 117
of the Evidence Act, 1975 (NRCD
323) - Order 11 Rule 8 of the
High Court (Civil Procedure)
Rules, 2004 (C.I.47) - Section
14(3) of the Conveyancing Act,
1973 (NRCD 175)
HEADNOTES
The plaintiff herein and the
deceased met and entered into a
relationship in Antwerp, Belgium
in 1988 and the relationship
lasted for nine years before
they came to marry at Kumasi in
1997 in accordance with Akan
custom. Problems developed in
the relationship in 2000 causing
the plaintiff to file a divorce
petition against the deceased
praying for dissolution of the
marriage and also for
declaration of joint ownership
of two landed properties situate
at Tantra Hill and Adabraka,
both in Accra. In his defence in
the divorce case the deceased
disputed the validity of the
marriage and denied the
plaintiff’s claim of joint
ownership of the properties. He
counterclaimed for annulment of
the purported marriage and for a
declaration of exclusive
ownership of the two properties.
Unfortunately, when the trial
was almost ending the respondent
died in a motor accident on 17th
February, 2007. On his death
the
defendants/appellants/respondents
(the defendants) herein claiming
as surviving spouse, customary
successor and eldest son
respectively, applied and were
granted
Letters of Administration
over his estate including the
two properties that were subject
matter of the pending
matrimonial case. The court
initially granted the
application but subsequently it
discharged the order of
substitution and struck out the
suit on the application of the
defendants who argued that
divorce proceedings are in
personam so the plaintiff’s
cause of action did not survive
the death of the respondent, the
plaintiff did not pursue her
appeal against the striking out
but rather commenced a fresh
action the High Court upheld the
case of the plaintiff that she
jointly acquired the disputed
properties with the deceased,
granted all the reliefs she
claimed and dismissed the
counterclaim, the Court of
Appeal who allowed the appeal,
dismissed the entire case of the
plaintiff and granted the
counterclaim of the defendants.
HELD
As a court of equity, having
taken the view that the
properties were jointly
acquired, we are to try as much
as possible to decide the case
in a just and fair manner taking
into consideration all the
circumstances surrounding the
acquisition of the properties
and the contributions of the
parties. We accordingly set
aside the judgments of the High
Court dated 30th July, 2012 and
of the Court of Appeal dated 4th
February, 2016 and make the
following orders. The parties
shall be entitled to the total
value of the Tantra Hill and
Adabraka houses in the
proportions of 40% to the
plaintiff and 60% to the
defendants. We order that the
two houses be sold on the basis
of the valuations that have been
filed before us and the proceeds
shared between them in the
stated proportions. The parties
are however at liberty, subject
to agreement of all of them, to
trade their entitlements between
themselves. Furthermore, we
consider it unacceptable for the
defendants to have ejected the
plaintiff from the Tantra Hill
house while her claims were
unresolved. She had an interest
in that property and until her
claims were determined by the
court she ought not to have been
ejected therefrom. We
accordingly award in her favour
and against the defendants
GHC10,000.00 as damages for
trespass.
STATUTES REFERRED TO IN JUDGMENT
1992 Constitution,
High Court (Civil Procedure)
Rules, 2004 (C.I.47).
Criminal and Other Offences Act,
1960 (Act 29)
Marriage Ordinance 1951, (Cap
127)
Evidence Act, 1975 (NRCD 323)
Exchange Control Act, 1961 (Act
71).
External and Diplomatic Missions
(Acquisition or Rental of
Immoveable Property) Law, 1986
(PNDCL 150),
Local Government Act, 1993 (Act
462)
CASES REFERRED TO IN JUDGMENT
R (Baia) v Secretary of State
for the Home Department (SSHD)
[2009]1 AC 287
Rosa v SSHD [2016] EWCA Civ 14
Sadovska v SSHD [2017] UKSC 54.
Godka Group of Companies v
P.S.Global [2001-2002] SCGLR
918,
Hughes v Assets Managers Plc
[1995] 3 All ER 669
Abadwam Stool & Ors v Akrokerri
Stool [2017-2018] 1 SCLRG
(Adaare) 1
Tinsley v Milligan [1994] 1 AC
240
Oxyley v Hiscock [2004] EWCA Civ
546.
Gregory v Tandoh [2010] SCGLR
971
Cooke v Head [1972] 2 All ER 38
Attorney-General v Faroe
Atlantic Co [2005-2006] SCGLR
271
Holman v Johnson (1775) 1 Cowp
341
Zagloul Real Estates Co. Ltd
(No. 2) v British Airways
[1998-99] SCGLR 378
City & Country Waste Ltd v Accra
Metropolitan Assembly
[2007-2008] SCGLR 409
Schandorf v Zeini [1976] 2 GLR
418
Patel v Mirza [2016] UKSC 42
Board of Governors of Achimota
School v Nii Ako Nortey II &
Ors, Civil Appeal No J4/9/2019
judgment dated 30th
May, 2020
Ware v Regent’s Canal Co (1858)
3 De G & J 212.
Morkor v Kuma [1998-99] SCGLR
620.
Malayan Credit Ltd v Jack Chia
[1986] AC 549
Gissing v Gissing ([1971] AC 886
Stokes v Anderson ([1991] 1 FLR
391
Midland Bank v Cooke ([1995] 2
FLR 915
Grant v Edwards ([1986] 1 Ch 638
Yaxley v Gotts ([2000] Ch 162
Drake v Whipp - see [1996] 1 FLR
826
BOOKS REFERRED TO IN JUDGMENT
DELIVERING THE LEADING JUDGMENT
PWAMANG, JSC:-
COUNSEL
O. K. OSAFO-BUABENG ESQ WITH HIM
PETRINA DEPHIA FOR THE
PLAINTIFF/ RESPONDENT/APPELLANT.
EDWARD DARLINGTON ESQ WITH HIM
VICTORIA ENCHILL FOR THE
DEFENDANTS/
APPELLANTS/RESPONDENTS.
PWAMANG, JSC:-
My Lords, the proceedings that
have culminated in this appeal
were commenced in the High
Court, Accra on 2nd
January, 2009 but are a sequel
to a partly-heard matrimonial
case in that court which was
struck out on 31st
July, 2007 following the death
of the respondent therein, Mark
Adu Prempeh (the Deceased).
The
plaintiff/respondent/appellant
(the plaintiff) herein and the
deceased met and entered into a
relationship in Antwerp, Belgium
in 1988 and the relationship
lasted for nine years before
they came to marry at Kumasi in
1997 in accordance with Akan
custom. Problems developed in
the relationship in 2000 causing
the plaintiff to file a divorce
petition against the deceased
praying for dissolution of the
marriage and also for
declaration of joint ownership
of two landed properties situate
at Tantra Hill and Adabraka,
both in Accra. In his defence in
the divorce case the deceased
disputed the validity of the
marriage and denied the
plaintiff’s claim of joint
ownership of the properties. He
counterclaimed for annulment of
the purported marriage and for a
declaration of exclusive
ownership of the two properties.
The deceased claimed that after
their marriage he got to know
that the plaintiff was in a
subsisting monogamous marriage
at the time of their
customary marriage which made
their marriage void so he
separated from her that same
year they married. In a reply to
the defence the plaintiff denied
that they separated and stated
that the deceased was all along
aware of her earlier monogamous
marriage which she said was only
for purposes of immigration
documents and not a proper
marriage. Extensive evidence was
led about the marriages and the
acquisition of the two
properties.
Unfortunately, when the trial
was almost ending the respondent
died in a motor accident on 17th
February, 2007. On his death
the
defendants/appellants/respondents
(the defendants) herein claiming
as surviving spouse, customary
successor and eldest son
respectively, applied and were
granted Letters of
Administration over his estate
including the two properties
that were subject matter of the
pending
matrimonial case. The
plaintiff therefore applied to
substitute the defendants for
the deceased so the case could
be concluded.
The court initially granted the
application but subsequently it
discharged the order of
substitution and struck out the
suit on the application of the
defendants who argued that
divorce proceedings are in
personam so the plaintiff’s
cause of action did not survive
the death of the respondent.
The plaintiff filed an appeal
against that ruling but later
withdrew it. As will soon become
evident, though the first case
was a matrimonial one the
parties joined issue on
ownership of properties so this
was not a divorce case
simpliciter that ended with
the death of one of the parties.
The plaintiff’s cause of action
in respect of the ownership of
the properties certainly
survived the death of her
husband so the action ought not
to have been struck out. Anyway,
the
plaintiff did not pursue her
appeal against the striking out
but rather commenced a fresh
action and claimed for the
following reliefs which make
reference to the earlier suit;
a.
Declaration that the plaintiff
herein as the legal wife of Mark
Adu Prempeh as at 17th February
2007 became the lawful widow of
same upon his death on that
date.
b.
Declaration that since the
Divorce petition in which the
plaintiff had prayed the court
to grant her joint share in the
properties acquired during the
subsistence of their marriage
was still pending before the
court, the court’s ruling that
her prayer before the court died
with the husband was totally
wrong in law and equity.
c.
Declaration that by the death of
the husband in the course of the
determination of the state of
their matrimonial properties,
the plaintiff herein
automatically became the sole
owner of same according to the
Law of Survivorship.
d.
Revocation of the Letters of the
Administration on the estate of
Mark Adu Prempeh on grounds that
it was obtained by fraud and
upon illegality.
e.
Perpetual Injunction against the
Defendants herein, their
assigns, agents and all those
who claim title through them
from in any way interfering with
the peaceful enjoyment of House
No. TH 67, Tantra Hill (sic)
where the Defendants have
illegally ejected her by
throwing out her personal
effects and renting out her
premises as well as other parts
of the said house.
f.
Order to the defendants to
render accounts on the
administration of the estate of
the dead husband.
g.
General damages for pain and
mental agony which the plaintiff
has been put through by those
illegal acts of the defendants.
h.
Costs.
On service of the writ of
summons and statement of claim
the defendants entered
appearance, filed a defence and
counterclaimed as follows;
a.
A declaration that the purported
marriage of the plaintiff to the
deceased Mark Adu Prempeh was
void ab initio.
b.
A declaration that the deceased
Mark Adu Prempeh died intestate
and therefore his surviving
spouse, children and family are
entitled to his estate under the
Intestate Succession Law.
c.
Declaration that the Defendants
were entitled to the grant of
Letters of Administration.
At the second trial, the record
of proceedings containing the
evidence of the parties and
their witnesses in the
matrimonial case was tendered as
Exhibit “A” and relied upon by
the plaintiff in addition to
evidence she led. The 1st
defendant testified and they
called two witnesses. In a
judgment dated 30th
July, 2012
the High
Court upheld the case of the
plaintiff that she jointly
acquired the disputed properties
with the deceased, granted all
the reliefs she claimed and
dismissed the counterclaim.
He said he would take judicial
notice that the monogamous
marriage of the plaintiff was
just for immigration purposes
and was therefore not a real
marriage in law but that it was
rather the customary marriage
that was valid. The defendants
felt dissatisfied and appealed
from the judgment of the High
Court to
the Court of Appeal who allowed
the appeal, dismissed the entire
case of the plaintiff and
granted the counterclaim of the
defendants.
In their judgment dated 4th
February, 2016 the Court of
Appeal held that as the
uncontested evidence on the
record was that the plaintiff
was in a subsisting ordinance
marriage as at the date she
purported to marry the
respondent under Akan customary
law in 1997, by the provisions
of our law, the plaintiff could
not contract another marriage so
the customary marriage was void.
They further held that the
evidence of the parties in the
aborted matrimonial case that
was relied on by the High Court
in coming to the conclusion that
plaintiff adduced sufficient
evidence of joint acquisition of
the properties was inadmissible
evidence and ought to have been
excluded from consideration by
the court. Their view was, that
aside the Exhibit “A”, the
plaintiff did not lead enough
evidence in this trial to prove
her claim of joint acquisition
of the disputed properties.
There was evidence in Exhibit
“A” to the effect that the
deceased was equally in a
subsisting ordinance marriage
with a woman in Belgium as at
the time the 1st
defendant claimed she entered
into a customary marriage with
him in Ghana. The plaintiff
therefore argued that that
marriage was void but the Court
of Appeal upheld its validity
holding that the evidence proved
that the 1st
defendant was made to go
through widowhood rights by the
deceased’s family upon his
death.
The plaintiff is aggrieved by
the judgment of the Court of
Appeal and has appealed against
it on the following grounds;
A.
The Learned Judges of the Court
of Appeal erred in disregarding
and or excluding Exhibit A which
is a certified copy of previous
court proceedings between
plaintiff and Mark Adu Prempeh
(deceased) in arriving at their
decision thereby occasioning a
miscarriage of justice.
B.
The Learned Judges of the Court
of Appeal erred in pronouncing
the customary marriage
celebrated between the plaintiff
and Mark Adu Prempeh (deceased)
in 1997 as void ab initio
thereby occasioning a
miscarriage of justice.
C.
The Learned Judges of the Court
of Appeal erred in declaring
the defendant as the
lawful spouse and widow of Mark
Adu Prempeh (deceased) and
therefore entitled to the grant
of letters of administration
thereby occasioning a marriage
of justice.
D.
Judgment is against the weight
of evidence.
In the statement of case of the
plaintiff, O. K. Osafo-Buabeng
Esq, of counsel for the
plaintiff concedes that since
the plaintiff was in a
subsisting monogamous marriage
in 1997 she could not validly
contract a customary marriage
with the deceased. That
notwithstanding, Edward
Darlington Esq, counsel for the
defendants, still went to town
on this aspect of the case and
recalled the evidence of the
plaintiff under
cross-examination whereby she
admitted entering into what she
called “connection marriages”
for money before her customary
marriage with the deceased and
even during the subsistence of
that marriage. In fact, she
stated openly in her testimony
that the monies so earned were
given to the deceased for their
joint business. She said the
deceased was aware of those
marriages and he himself also
indulged in “connection
marriages” after obtaining
proper immigration papers in
Belgium. According to the
plaintiff, “connection
marriages” was a common practice
among immigrants in Europe at
the time. The following is part
of the cross-examination;
Q. Do you recall telling the
court that you contracted a
connection marriage for the late
Mark Adu Prempeh
A. Yes I did My Lord….
Q. I am putting it to you what
you said you did was illegal
A. My Lord it is illegal but
that is what everyone who
travels outside does….
This type of marriages involving
immigrants, usually referred to
as
“marriages of convenience”,
are an old phenomenon not
unknown to the law except that
they are not countenanced. They
are not genuine marriages and if
the evidence proves that a
marriage was indeed contracted
only for collateral purposes and
not out of affection, love and
for establishment of family, it
may be disregarded as a marriage
even for immigration purposes.
Marriages of convenience have
come up severally in immigration
cases in Europe wherein they are
defined as marriages contracted
predominantly for purposes of
circumventing immigration laws.
See the cases of
R
(Baia) v Secretary of State for
the Home Department (SSHD)
[2009]1 AC 287, Rosa v SSHD
[2016] EWCA Civ 14 and Sadovska
v SSHD [2017] UKSC 54.
The defendants’ lawyer contends
that those “connection
marriages” the plaintiff
testified to were contracted in
breach of provisions of our
Criminal and Other Offences Act,
1960 (Act 29) on
bigamy,
fictitious marriage and false
declarations for marriage.
He therefore faults the trial
judge for seeming to condone the
plaintiff’s illegal conduct by
upholding her customary marriage
with the deceased. He submitts
as follows;
“For public policy
considerations it would be
improper to allow the
Plaintiff/Respondent to admit an
illegality in court which will
amount to a summary conviction
in a criminal court and for the
learned trial judge to give
judicial blessing to it by
taking judicial notice of
illegality. What the
Plaintiff/Respondent has done is
to take advantage of the law,
showing gross disrespect for the
law and the institution of
marriage and reducing the
concept of marriage to a wager.
A court of law and equity should
not be interested in the illicit
gains a litigant makes from her
illegal activities so much so as
to give its judicial blessings
to it.”
From the first part of the above
submission the defendants appear
to contend that some illegality
was associated with the
plaintiff’s monogamous marriage
that made it void so the trial
judge ought not to have taken
notice of it. But, this line of
argument of the defendants’
lawyer poses its own problems.
If that marriage were void on
grounds of illegality then the
consequences would be that the
plaintiff was unmarried at the
time she met the deceased and
therefore had capacity to
contract the customary marriage
with him in 1997. In that case
the conclusion reached by the
High Court judge on the
validity of the customary
marriage would have been right.
But that is not the legal status
of a marriage of convenience. As
a general principle of the law
of contract, except clearly
provided for in a statute, the
fact that a contract violates
provisions of a statute does not
automatically make it void.
Where there is no nullifying
provision in the statute the
legal consequence of violation
of a provision is a matter of
construction by a court but it
would not be ipso facto
void. See
Godka Group of Companies v
P.S.Global [2001-2002] SCGLR
918, Hughes v Assets
Managers Plc [1995] 3 All ER 669
and Abadwam Stool & Ors v
Akrokerri Stool [2017-2018] 1
SCLRG (Adaare) 1.
The customary marriage in this
case is held to be void because
Section 44 of the Marriage
Ordinance 1951, (Cap 127)
provides under Part 5 on
Invalid Marriages as follows;
“Any person who is married under
this Ordinance, or whose
marriage before the commencement
of this Ordinance is declared by
this Ordinance to be valid,
shall be incapable during the
continuance of such marriage of
contracting a valid marriage
under any native law or custom,
but save as aforesaid, nothing
in this Ordinance contained
shall affect the validity of any
marriage contracted under or in
accordance with any native law
or custom or in any manner apply
to marriages so contracted.”
The validity of a marriage
contracted under the Marriage
Ordinance is determined in
accordance with the provisions
of the Ordinance and not Act 29.
In Family Law a marriage is
either valid or invalid and
there is no third category of
“marriages of convenience” or
“connection marriages” which are
partly valid for some purposes
and partly invalid for others.
The trial
judge therefore was in error
when he failed to treat the
“connection marriage” as a valid
marriage and the Court of Appeal
rightly reversed him on that
point. Under Cap 127, once both
parties to a marriage entered
into as a monogamous marriage
have capacity to marry and
satisfy the statutory conditions
under Part 5 of the Ordinance,
they voluntarily consent and go
through the ceremony of marriage
and sign the register, it is a
valid marriage and cannot be
terminated except through
matrimonial proceedings in
court. In this case, the
monogamous “connection
marriage” was not dissolved by a
court of law before the
customary marriage involving the
plaintiff so the customary
marriage was void.
The second aspect of the
submissions of the defendants is
that, on public policy grounds,
the court ought not to assist
the plaintiff to recover
properties that by her own
showing were acquired with
proceeds of illegal marriages.
This we shall address
comprehensively later in the
judgment.
My Lords, though we have held
that the marriage between the
plaintiff and the deceased was
void, the voidness of the
marriage is distinct and
severable from the plaintiff’s
claim of joint acquisition of
the two properties in dispute.
Article 18(1) of the
Constitution, 1992
provides as follows;
“Every person has the right to
own property either alone or in
association with others.”
Acquisition of property with
others means co-ownership which
can be between persons who are
not married. The law has
recognized and upheld
co-ownership of property in
situations where parties have
only co-habited without being
married. See
Tinsley v Milligan [1994] 1 AC
240 and Oxyley v Hiscock
[2004] EWCA Civ 546. Such
too was the case in Gregory v
Tandoh [2010] SCGLR 971.
The facts of that case are that
an African American woman who
visited Ghana and wanted to
settle fell in love with a
traditional chief at Cape Coast.
The chief was already married
with family but the plaintiff
agreed to become a second wife
believing that in Africa a Chief
is entitled to marry several
wives. They went through a
ceremony at the office of the
District Assembly which the
woman understood to be a valid
marriage ceremony. Unknown to
her, the chief’s marriage to
the first wife was a monogamous
marriage contracted under the
Ordinance so her marriage to the
chief was null and void in law.
By the time she came by this
knowledge she had made
substantial financial
contribution to the building of
a house at Ankaful where the
three of them lived. Their
relationship naturally
deteriorated and she sued in
the High Court, Cape Coast for
a declaration of her joint
interest in the house but lost
and an appeal to the Court of
Appeal was dismissed. On further
appeal the Supreme Court by
unanimous decision upheld her
claim of joint acquisition as
there was ample evidence of her
financial contribution to the
building of the house. In his
concurring judgment, Gbadegbe,
JSC said as follows at page 998
of the Report;
“Although the appellant is not a
spouse of the 1st respondent, I
am of the opinion that it is
permissible for us to grant to
her a beneficial interest that
is proportionate to her
contribution. I think that the
effect of her contribution to
the acquisition of the disputed
property is creating a resulting
trust in her favour to the
extent of her contribution. In
the case of
Cooke v
Head [1972] 2 All ER 38, the
Court of Appeal applied the
doctrine of resulting trust
imposed by the courts on a legal
owner in the case of a husband
and wife who by their joint
efforts acquired property to be
used for their joint benefit to
the case of a mistress and a man
who had by their cumulative
efforts acquired a property for
the purpose of setting up a home
together.”
Therefore, the question to be
addressed in this appeal under
grounds (A) and (D) is whether
there is evidence on the record
which proves the contribution of
the plaintiff in the acquisition
of the properties in dispute.
The trial judge relied
substantially on the evidence
given in the aborted matrimonial
proceeding tendered as Exhibit
“A” and found that the plaintiff
contributed financially to the
acquisitions but the Court of
Appeal sided with the
defendants’ lawyer that Exhibit
“A” is inadmissible evidence and
reversed that finding of the
trial judge. Unfortunately, no
legal ground has been
articulated by the lawyer and
the Court of Appeal for their
position except to say that the
evidence was not led before the
judge in this trial but in the
earlier matrimonial case which
was by a different judge. By
that they imply that Exhibit “A”
is hearsay evidence.
Section 117 of the Evidence Act,
1975 (NRCD 323)
that makes hearsay evidence
inadmissible states that the
section is subject to exceptions
which are provided for in the
Act. Former testimony before a
judge in a different case is one
of those exceptions stated under
section 121 of NRCD 323.
It is as follows;
“Section 121—Former Testimony.
Evidence of a hearsay statement
is not made inadmissible by
section 117 if it consists of
testimony given by the declarant
as a witness in an action or in
a deposition taken according to
law for use in an action, and
when the testimony was given or
the deposition was taken the
declarant was examined by a
party with interests and motives
identical with, or similar to,
the party against whom the
evidence is offered in the
present action.”
Under section 121 of NRCD 323
the conditions that must exist
to make evidence in a previous
case admissible in a subsequent
case are as follows; (a) the
party in the current case
against whom the evidence is
offered was either a party in
the previous case or has
interests and motives that are
identical or similar to those of
a party in that previous case;
(b) the evidence from the
previous case that is sought to
be tendered in the second case
must have been subjected to
cross-examination by the party
with interests and motives
identical or similar to the
party against whom the evidence
is being offered; (c) the
evidence was admissible and
taken in accordance with law in
the previous case; and (d) the
evidence must be relevant for
the determination of an issue
in the current case.
First of all, the defendants in
the present case against whom
the evidence was offered are
standing in the shoes of the
deceased who was the respondent
in the first case. In fact,
their case here is the same as
that made by the deceased there
even to the extent of praying
for the nullification of the
marriage though it was between
the plaintiff and the deceased.
Second, the evidence in Exhibit
“A” was subjected to
cross-examination by the
opposing lawyers in the first
case. Third, the evidence was
taken in accordance with law and
was admissible evidence in that
previous case, and finally, the
evidence concerned the marriage
between the plaintiff and the
deceased and the manner of
acquisition of the Tantra Hill
and Adabraka houses and these
matters are issues for
determination in the current
case. Issue (2) of the issues
set down for trial in this case
which was proposed by the
defendants in their additional
issues says it all. It is as
follows;
“2 .
Whether or not the plaintiff was
co-owner of the properties in
issue.”
Therefore, Exhibit “A” satisfies
all the conditions to be
admitted in evidence in this
case as admissible former
testimony. In fact, it is more
in the interest of the
defendants to admit Exhibit “A”
because it contains the personal
account of the deceased himself
as to how he acquired the
properties that the defendants
claim were exclusively acquired
by him. In the absence of
Exhibit “A” the defendants would
be relying on third party
evidence alone whilst the
plaintiff has given first hand
testimony of what she and the
deceased discussed about the
joint businesses while they were
together in the relationship
that lasted twelve years. It was
therefore a grievous error on
the part of the Court of Appeal
to have excluded Exhibit “A” in
their assessment of the
respective claims of the parties
as same is clearly admissible.
In his statement of case Counsel
for the defendants maintained
his objection to the
admissibility of Exhibit “A” but
his view is misconceived as we
have explained. Counsel also
argued that the exclusion of
Exhibit “A” has not occasioned a
substantial miscarriage of
justice in the case. He referred
to us Section 5(3) of the
Evidence Act, 1975 (NRCD 323)
which provides as follows;
“3. No finding, verdict,
judgment or decision shall be
set aside, altered or reversed
on appeal or review because of
the erroneous exclusion of
evidence unless—
(a) the substance of the
excluded evidence was made known
to the court by the questions
asked, an offer of proof, or by
any other means; and
(b) the court which decides on
the effect of the error also
determines that the excluded
evidence should have been
admitted and that the erroneous
exclusion of the evidence
resulted in a substantial
miscarriage of justice.”
An instance where exclusion of
evidence would be said to result
in a substantial miscarriage of
justice is if it is demonstrated
that the judgment of the court
under appeal or review would
have been different had it taken
the excluded evidence into
account. Therefore, having held
that Exhibit “A” was erroneously
excluded by the Court of Appeal
we have to determine whether if
that evidence had been
evaluated, the conclusion of the
Court of Appeal on the issue of
joint acquisition of the
properties would have been
different. This calls for a
scrutiny of that evidence.
Counsel for the plaintiff has
argued forcefully that when the
evidence in Exhibit “A” is
evaluated together with the
evidence adduced at the trial in
this case it becomes clear that
the plaintiff contributed
substantially to the acquisition
of the disputed properties. He
pointed to various pieces of
evidence in Exhibit “A” to
support his submissions.
Unfortunately, the lawyer for
the defendants failed to analyse
the evidence contained in
Exhibit “A” and to indicate
any portions that support their
case of exclusive ownership of
the two properties in order to
justify his assertion that no
substantial miscarriage of
justice has been occasioned to
the plaintiff. Having argued
that the evidence is
inadmissible, he ought to have
taken the precautionary step of
evaluating it in relation to his
clients case in the event he is
wrong on the admissibility
question.
Be that as it may, we have read
Exhibit “A” thoroughly and taken
note of the totality of the
evidence therein and have also
considered the evidence that was
led at the trial in this case by
both sides and have formed the
opinion that there is sufficient
evidence that supports the
conclusion of the High Court
judge that plaintiff together
with the deceased acquired the
two properties in dispute. In
both cases the plaintiff
testified to the work she
engaged in in Belgium up to the
time she met the deceased in
1988. The main business through
which the properties were
acquired is the used vehicles
and spare parts business and the
deceased in Exhibit “A” admitted
that the plaintiff bought cars
in Belgium and shipped to Ghana
for sale and that he cleared the
cars for the plaintiff. Except
that the deceased maintained in
his testimony that the
plaintiff’s cars were different
from his own and that they did
the business separately.
Contrary to the contention of
the deceased, the evidence in
the matrimonial proceedings
tends to paint a picture of
joint business for the following
reasons:
The plaintiff tendered a
document that recorded the
particulars of the vehicles that
the parties bought and shipped
to Ghana for each year starting
from 1993 to 1999 to be found at
page 233 of Exhibit “A”. It
covers about 200 vehicles and
states the amount that each
vehicle was sold for. The
deceased admitted that it is a
record of vehicles he imported
and sold in Ghana but he claimed
that the plaintiff’s vehicles
were different and she had no
hand in the business that record
concerns. The question we ask
ourselves is, if the plaintiff
had no hand in that business,
how come she was the one who
tendered it in evidence? That
document appears to us to be an
account that was rendered for
the information of a partner in
the vehicle business and lends
credence to the case of the
plaintiff that it is the record
of the joint business by her and
the deceased. This statement of
accounts of the vehicle business
corroborates the testimonies of
PW1 and PW2 in the matrimonial
case who used to work for the
deceased in the vehicle
business. Their evidence was to
the effect that they got to know
through the deceased that the
business was for him and the
plaintiff and though they were
subjected to intense
cross-examination they
maintained their positions.
Furthermore, the plaintiff
tendered her 1999 bank statement
in Belgium which showed an
amount of 70,000 Belgian Francs
that was transferred from her
account to the account of
AUTODEPANNAGE ADU’S, the
business entity in which name
the vehicle business was
conducted in Belgium. The
plaintiff said the transaction
was by their banker in Belgium
and the transfer was to cover a
deficit in the business account
because the banker knew that the
business belonged to her and her
husband, meaning the deceased.
The deceased on the other hand
explained that at the time of
that transfer he was in Ghana
and there was the need to make
some payment from the business
account but there was no funds
so his banker informed the
plaintiff and transferred 70,000
Belgian Francs from her personal
account into the business
account and it was later
refunded to her. Whichever way
this fact is looked at the
inescapable impression is that
the plaintiff was involved in
the business of AUTODEPANNAGE
ADU’S if not the banker would
not have, of his own accord,
brought her into the picture
when the deceased had not so
directed. It also shows that the
plaintiff was not without
resources unlike the picture of
her the deceased’s lawyer sought
to portray in cross-examination
as being unemployed and
dependent on social welfare
benefits. This further rebuts
the deceased’s claim that he
separated from the plaintiff
shortly after they married in
1997.
Then there is the fact that the
Trantra Hill property had a sign
board on which was written
“MACPEB”. The plaintiff
testified that it is an acronym
for Mark Prempeh and Ernestina
Boateng but the deceased said
that the EB stands for Elizabeth
Betty who is the deceased’s
daughter. The evidence shows
that this daughter had not
previously been referred to as
Elizabeth Betty and no
explanation was given by
deceased for using initials of
his daughter on the house. If
the house indeed was acquired by
the deceased alone then there
must be a reason why he would
add his daughter’s name to his
name whereas he has five other
children. When he was
cross-examined on this matter
the following ensued;
Q. I am also putting it to you
that the acronym MACPEB stands
for Mark Adu Prempeh and
Ernestina Boateng.
A. She thinks so but it is Mark
Adu Prempeh and Elizabeth Betty.
The deceased appeared to have
been aware that the plaintiff
was all along under the
impression that the EB referred
to her. If that were so then
there would have been a reason
for the plaintiff having that
impression and what steps did
the deceased take to erase it?
On the contrary, the plaintiff
was given part of the house to
live in until she was forcefully
ejected by the defendants after
his death. We have taken note of
the testimony in both cases of
Mr Yeboah who sold the
uncompleted structure of the
Tantra Hill house to the parties
and we see some significant
discrepancies in his evidence.
In any event, he, the 1st
defendant and the DW1 would not
have been privy to the details
of the financial arrangements
between the plaintiff and the
deceased who lived as husband
and wife. If the plaintiff had
made this claim of co-ownership
only after the death of the
deceased that would have been a
harder case to prove but she
made the claim when he was
living way back in 2000 when she
filed her first case, the
divorce petition.
On the totality of the evidence,
and on account of the above
explanations in particular, we
are of the view that, on the
balance of probabilities, the
disputed properties were
acquired from the contributions
of the plaintiff and the
deceased. In our judgment,
if the
Court of Appeal had taken
Exhibit “A” into account and
evaluated carefully the evidence
therein contained they would not
have dismissed the plaintiff’s
case of joint acquisition. In
the circumstances, the exclusion
of Exhibit “A” occasioned a
substantial miscarriage of
justice in the case so we hereby
reverse the finding of the Court
of Appeal and take the view that
the Tantra Hill and Adabraka
houses were acquired by the
joint resources of the plaintiff
and the deceased. The title
deeds of both properties are in
the sole name of the deceased
but since the payment was by him
and the plaintiff, the law is
that a resulting trust arises
whereby the deceased held the
legal titles to the two houses
as trustee for the beneficial
enjoyment of the two of them.
This also means that the
defendants herein who are
successors in interest of the
deceased, hold the legal title
as trustees with the beneficial
interest co-owned with the
plaintiff.
This brings us to an examination
of the issue of
public
policy raised by the
defendants which they contend
ought in any event to cause the
court to disallow the claim of
the plaintiff. It is indeed
correct that on grounds of
public policy the law recognises
a defence known as the defence
of illegality and where it is
successfully raised a civil
claimant who is otherwise
entitled to rights would be
denied relief by the court.
Ordinarily, this type of defence
ought to be pleaded in
accordance with
Order 11
Rule 8 of the High Court (Civil
Procedure) Rules, 2004 (C.I.47).
Such pleading would provide
particulars of the illegality
relied on and the claim it is
proposed to defeat. In this case
probably because it was not
pleaded by the defendants but
raised in their submissions they
did not argue it elaborately in
their statement of case and the
plaintiff too failed to argue in
response though it was brought
to her attention by service of
the defendants statement of case
on her. Nonetheless, since it is
a matter of law that has been
raised on the basis of evidence
already on the record, the court
has to consider it. See
Attorney-General v Faroe
Atlantic Co [2005-2006] SCGLR
271.
The defence finds expression in
two Latin maxims; ex turpi
causa non oritur actio
and ex dolo malo non
oritur actio. Lord
Mansfield in
Holman
v Johnson (1775) 1 Cowp 341
at 343 explained the latter
maxim as follows; “No court will
lend its aid to a man who founds
his cause of action upon an
immoral or illegal act.” There
are public policy reasons for
this doctrine including the
argument that to allow a claim
tainted by illegality would be
for the law to forbid a certain
conduct and at the same time
reward that conduct. Another
reason is that if illegal claims
are disallowed by the court, it
will aid in the enforcement of
the law that the conduct has
violated which is in the wider
public interest. But the defence
of illegality is not an absolute
defence to a civil claim. The
common law has evolved a number
of principles on which courts
consider that defence.
Illegality as a defence may be
raised in varied situations
including a contract made in
violation of a positive statute,
a contract for illegal purposes,
and trust property tainted by
illegality as in this case. In
the cases of
Zagloul Real Estates Co. Ltd
(No. 2) v British Airways
[1998-99] SCGLR 378 and City &
Country Waste Ltd v Accra
Metropolitan Assembly
[2007-2008] SCGLR 409
this court considered the
defence of illegality against
claims that were based on
contracts that violated the
provisions of statute. In
Schandorf v Zeini [1976] 2 GLR
418 the Court of Appeal
dealt with that defence in a
case of sale of a house wherein
part of the purchase price was
paid in foreign currency
contrary to the
Exchange
Control Act, 1961 (Act 71).
In the case of Tinsley v
Milligan (supra) the
Claimant and Defendant were
lovers. Together they purchased
a property from which they
jointly ran a business by
letting out the rooms in the
house. It was agreed that the
house was to be registered in
the name of the Claimant alone.
This was so that the Defendant
would be able to fraudulently
claim social security benefits
which would go into their joint
bank account. The relationship
broke down and the Claimant
sought possession of the house
asserting full ownership. The
Defendant sought a declaration
that the property was held on
trust for both of them in equal
shares. The Court of Appeal
dismissed the defence of
illegality by the application of
a public conscience test and
held that it would be an affront
to the public conscience to
allow the Claimant to keep the
whole interest in the house. The
Claimant appealed to the House
of Lords. The House of Lords
reviewed the previous decisions
on the general issue of recovery
of trust property tainted by
fraud and concluded that where
the claimant can make her case
without necessarily relying on
the illegality, then her claim
ought to be allowed. So the
House of Lords came to the same
conclusion as the Court of
Appeal by allowing the claim but
through a different process of
reasoning called the reliance
principle.
Browne-Wilkinson L J in his
judgment explained the reliance
principle in relation to
resulting trusts, which concerns
us in this case, and stated as
follows at paragraph 23;
“The presumption of a resulting
trust is, in my view, crucial in
considering the authorities. On
that presumption (and on the
contrary presumption of
advancement) hinges the answer
to the crucial question "does a
plaintiff claiming under a
resulting trust have to rely on
the underlying illegality?".
Where the presumption of
resulting trust applies, the
plaintiff does not have to rely
on the illegality. If he proves
that the property is vested in
the defendant alone but that the
plaintiff provided part of the
purchase money, or voluntarily
transferred the property' to the
defendant, the plaintiff
establishes his claim under a
resulting trust unless either
the contrary presumption of
advancement displaces the
presumption of resulting trust
or the defendant leads evidence
to rebut the presumption of
resulting trust. Therefore, in
cases where the presumption of
advancement does not apply, a
plaintiff can establish his
equitable interest in the
property without relying in any
way on the underlying illegal
transaction.”
In Schandorf v Zeini the
Court of Appeal also applied the
reliance principle in rejecting
the illegality defence. Amissah
JA, who delivered the lead
judgment of the court, at page
433 of the Report said as
follows;
“ If the plaintiff can succeed
without disclosure of or
reliance upon the illegality or
immorality it does not matter
that at the trial an illegality
or immorality in the course of
the performance of a contract
becomes known to the court.”
In the Zagloul Estates
case, which involved rent
payment in violation of the
External and Diplomatic Missions
(Acquisition or Rental of
Immoveable Property) Law, 1986
(PNDCL 150), the Supreme
Court, aside Atuguba, JSC who
alluded to the principle in his
opinion, did not discuss the
reliance principle and based
their decision on the ground
that the indemnity agreement at
the centre of the dispute was a
clever device dishonestly
contrived by both parties to
defeat the ends sought to be
achieved by the statute.
Consequently, they upheld the
illegality defence.
Going by the reliance principle
applied in Schandorf v Zeini
and in the English cases, which
are referred to for comparative
learning, the plaintiff’s claim
ought to be allowed since she
can maintain her action without
necessarily relying on the
source of the money she used for
her contribution. However, the
reliance principle if
generalized in its application
can lead to atrocious results
that defeat the public policy
considerations that underpin the
doctrine of illegality. For
instance, if a person were to
claim recovery of trust property
and the evidence shows that the
money the person used for her
contribution to the acquisition
of the trust property was
proceeds of armed robbery
activities, should the court
allow the claim because she can
maintain her claim without
relying on the grave criminal
activity that is the source of
the funds? In order to avoid
such obnoxious outcomes that
could result from a strict
application of the reliance
principle, courts now adopt the
discretionary approach in
determination of when to allow a
claim affected by illegality and
when not to allow it. That is
the approach this court applied
in the City & Country Waste
case. The discretionary approach
had been in application in other
common law jurisdictions such as
the USA, Canada, and New
Zealand.
In the City & Country Waste
case the parties entered
into a contract whereby the
plaintiff was to collect and
dispose of the environmental
waste of the city of Accra on
behalf of the defendant at a
stated amount per ton of waste
carted. The defendant defaulted
in payment of large quantity of
waste carted by the plaintiff so
it sued for payment in
accordance with the rates agreed
to in the contract. In its
defence the defendant contended
that the agreement was entered
into without complying with
certain provisions of the
Local
Government Act, 1993 (Act 462)
so it was illegal. The court
found as a fact that there was a
violation of the Act and held
that it made the contract
illegal. In arguing the case the
parties propounded different
tests which they urged on the
court to adopt as the preferred
test for determining the defence
of illegality in contracts. It
must however be pointed out that
the reliance principle was not
discussed. After examining their
arguments the court took into
account recommendations of the
English Law Commission’s Paper
No 154 on ‘The Effect of
illegality on Contracts and
Trusts’ published in 1999 and
developed what can safely be
considered our approach to the
illegality defence, at least in
claims for contract enforcement.
At pages 436 of the Report the
court, through Date-Bah, JSC
approved of the following
recommendations in the Law
Commission’s Paper No 154;
“We have said that we believe
that there is a continued need
for some doctrine of illegality
in relation to illegal contracts
and that, in certain
circumstances, it is right that
the law should deny the
plaintiff his or her standard
rights and remedies. However,
we have also explained how, in
some situations, we believe that
the plaintiff is being unduly
penalized by the present rules.
This injustice would seem to be
the inevitable result of the
application of a strict set of
rules to a wide variety of
circumstances, including cases
where the illegality involved
may be minor, may be wholly or
largely the fault of the
defendant, or may be merely
incidental to the contract in
question. We consider that the
best means of overcoming this
injustice is to replace the
present strict rules with a
discretionary approach under
which the courts would be able
to take into account such
relevant issues as the
seriousness of the illegality
involved, whether the plaintiff
was aware of the illegality, and
the purpose of the rule which
renders the contract illegal.
The adoption of some type of
discretionary approach has the
support of the vast majority of
academic commentators in this
area; and it is the approach
which has been followed in those
jurisdictions where legislation
has been implemented.”
The court then concluded as
follows;
“We have decided to adopt this
structured discretionary
approach to the resolution of
issues arising from illegality
of contracts. The approach is to
be fleshed out on a case by case
basis. On the facts of the
present case, balancing the need
to deny enforceability to the
contract sued on by the
Plaintiff against the need to
prevent the unjust enrichment of
the Defendant, and, considering
that in relation to the
Defendant’s non-compliance with
the statutory provisions binding
on it, the Plaintiff was not in
pari delicto in a broad sense,
we have come to the conclusion
that the Plaintiff must be paid
reasonable compensation for the
services it rendered to the
Defendant.”
By this decision Ghana formally
adopted the discretionary
approach as the legal framework
of analysis of the defence of
illegality thereby joining many
other common law jurisdictions
that apply that approach. By
implication the reliance
principle has been jettisoned
and is no longer applicable in
Ghana. The United Kingdom
Supreme Court only recently in
the case of
Patel
v Mirza [2016] UKSC 42
also abandoned the reliance
principle as the scheme of
analysis for considering the
illegality defence and opted for
the discretionary approach.
In line with our decision in
City & Country Waste case we
adopt the discretionary approach
for determination of the
question whether or not to allow
a claim for recovery of trust
property that on the evidence is
tainted by illegality. The
discretion is to be exercised on
consideration of the following
factors; a) the seriousness of
the illegality, b) whether the
denial of the claim would be a
proportionate response to the
illegality, bearing in mind that
punishment is a matter for the
criminal courts, and c) whether
it would be harmful to the
integrity of the legal system to
allow the claim.
Applying the above factors to
the facts of this case, we note
that the defendant has not
identified any specific law that
the plaintiff violated on
account of the marriages of
convenience through which the
funds were realized and used as
part of her contribution in the
joint business. We have already
upheld the validity of that
marriage so we cannot at the
same time talk of it as a
fictitious marriage. Neither can
we talk of bigamy which may
arise only in respect of the
customary marriage but no money
was earned for that marriage.
From all accounts, the customary
marriage was the one contracted
out of love and affection but
the law in its peculiar way of
operation has rather nullified
that marriage and upheld the
validity of the “connection
marriage”. The only possible
illegality that appears on the
facts of this case is false
declaration for purposes of
marriage in that when the
plaintiff in those marriages
said for better for worse she
did not intend those
pronouncements.
Under
Section 268 of Act 29 the
offence of false declaration for
marriage is a misdemeanor which
means it is not grievous. We do
not consider the perceived
illegality in this case to be
serious enough to persuade us to
deny the plaintiff’s claim. We
also hold that a denial of her
claim would be a
disproportionate response to the
perceived illegality
particularly as she has already
lost her status of being married
to the deceased, which if it
existed would have entitled her
to a portion of the estate of
the deceased. The integrity of
our legal system would not
suffer by allowing the
plaintiff’s claim on the grounds
stated above. Consequently, we
hold that the plaintiff is
entitled to recover her part of
the two properties proportionate
to her contribution.
Before deciding the extent of
the plaintiff’s interest in the
properties we shall dispose of
ground C of the appeal which is
about the status of the 1st
defendant, whether or not she is
the lawful surviving spouse of
the deceased. The basic question
on this aspect of the case is
whether the plaintiff has
locus standi to challenge
the marital status of the 1st
defendant? In the unreported
case of
Board of Governors of
Achimota School v Nii Ako Nortey
II & Ors, Civil Appeal No
J4/9/2019 judgment dated 30th
May, 2020 I said as
follows at page 12 of my
judgment;
“Locus standing or simply
standing, is one of the core
principles on which the common
law operates. The jurisdiction
of the court at common law is
only to be invoked by persons
who have interest in the subject
matter in respect of which they
seek relief. This is so because
the courts do not try
hypothetical cases but only
actual controversies or
disputes. The policy
consideration is to make maximum
use of the resources of the
court by dealing only with life
issues. See
Ware v
Regent’s Canal Co (1858) 3 De G
& J 212. The requirement of
standing goes for the plaintiff
as well as the defendant. A
defendant must be shown to be an
actual and true antagonist to a
claim hence the power of a court
to discharge a person who has
been made a defendant who would
not be directly affected by the
outcome of the case. See
Morkor v
Kuma [1998-99] SCGLR 620.”
In the circumstances, having
concluded that the plaintiff’s
marriage to the deceased was
void, she loses any standing
to seek for a relief against
anyone who claims to have been
married to the deceased.
Consequently the issue raised
under ground C of the appeal
does not arise and that ground
of the appeal is hereby struck
out. The same goes for the
defendants’ reliefs (b) and (c)
of their counterclaim. The
plaintiff not having any
interest in the estate of the
deceased she is not a competent
defendant to the claim for
declaration of validity of the
Letters of Administration so
those reliefs of the defendants
are equally struck out.
Now to the extent of the
plaintiff’s interest in the two
houses. She argued that the
disputed properties were held by
the deceased and herself as
joint tenants with a right of
survivorship meaning on his
death she takes over the whole
properties as sole owner. But it
is important to point out that
the interest that the plaintiff
has in the properties in
question is an equitable one
arising from the resulting trust
that we have upheld on the basis
of her contribution. Her
interest does not arise on the
basis of the conveyances
covering the properties which
are all in the name of the
deceased alone. The settled
position in land law is that
equity favours tenancy in common
over joint tenancy. See
Malayan Credit Ltd v Jack Chia
[1986] AC 549.
Besides, Ghana law espouses a
preference for property that is
co-owned to be held as tenancy
in common instead of joint
tenancy even where there is a
conveyance to persons as
co-owners, except express words
are used to indicate an
intention of joint tenancy with
a right of survivorship.
Accordingly, it is provided
under
Section 14(3) of the
Conveyancing Act, 1973 (NRCD
175) as follows;
“A conveyance of an interest in
land to two or more persons,
except a conveyance in trust,
shall create an interest in
common and not in joint tenancy,
unless it is expressed in such
conveyance that the transferees
shall take jointly, or as joint
tenants, or to them and the
survivor of them, or unless it
manifestly appears from the
tenor of the instrument that it
was intended to create an
interest in joint tenancy.”
We therefore reject the
plaintiff’s claim of joint
tenancy with a right of
survivorship. She shall take the
beneficial interest in the two
properties under a tenancy in
common with the estate of the
deceased.
In cases of this nature the
difficult question that courts
have faced is how to determine
the extent of the respective
interests of the parties in the
absence of clear evidence of how
much each party contributed. In
the case of Gregory v Tandoh
the Supreme Court went for equal
beneficial ownership between the
plaintiff and the defendants but
apart from observing that the
plaintiff’s financial
contribution was substantial, no
legal principle was stated and
applied in arriving at the equal
ownership. The fact is that it
is not in all cases that equal
ownership is equitable. The
evidence in this case does not
show the proportions of the
respective contributions made by
the plaintiff and the deceased
towards the joint business and
the building of the two houses.
There is also no evidence of
proportions of ownership that
they intended to have in the
properties beyond the testimony
of the plaintiff that they
acquired two other lands to
build their individual houses
while keeping the Tantra Hill
and Adabraka houses as common
properties. The Tantra Hill
house was to be used for hotel
business and the Adabraka house
was being used partly for their
business and partly for rental.
The English courts have grappled
with this question over many
years and therefore developed
some principles that can serve
as persuasive reasoning in this
case.
In Oxyley v Hiscock (supra)
the English Court of Appeal
considered the question of the
extent of interest of beneficial
co-owners in a house acquired by
joint contributors who
co-habited but were not married.
After a thorough review of the
authorities Chardwick L J
summarized the position as
follows;
“Three strands of reasoning can
be identified. (1) That
suggested by Lord Diplock in
Gissing v
Gissing ([1971] AC 886, at
909D) and adopted by Lord
Justice Nourse in
Stokes v
Anderson ([1991] 1 FLR 391,
at 399G, 400B-C. The parties are
taken to have agreed at the time
of the acquisition of the
property that their respective
shares are not to be quantified
then, but are left to be
determined when their
relationship comes to an end or
the property is sold on the
basis of what is then fair
having regard to the whole
course of dealing between them.
The court steps in to determine
what is fair because, when the
time came for that
determination, the parties were
unable to agree. (2) That
suggested by Lord Justice Waite
in
Midland Bank v Cooke ([1995] 2
FLR 915, at 926F-H). The
court undertakes a survey of the
whole course of dealing between
the parties "relevant to their
ownership and occupation of the
property and their sharing of
its burdens and advantages" in
order to determine "what
proportions the parties must be
assumed to have intended [from
the outset] for their beneficial
ownership". On that basis the
court treats what has taken
place while the parties have
been living together in the
property as evidence of what
they intended at the time of the
acquisition. (3) That suggested
by Sir Nicolas Browne-Wilkinson,
Vice Chancellor, in
Grant v
Edwards ([1986] 1 Ch 638, at
656G-H, 657H) and approved by
Lord Justice Robert Walker in
Yaxley v
Gotts ([2000] Ch 162,
177C-E). The court makes such
order as the circumstances
require in order to give effect
to the beneficial interest in
the property of the one party,
the existence of which the other
party (having the legal title)
is estopped from denying. That,
I think, is the analysis which
underlies the decision of this
Court in
Drake v Whipp - see [1996] 1 FLR
826, at 831E-G.”
We think that the facts of the
case at hand fit more into the
first strand of cases which
adopt the approach that the
parties are assumed to have
deferred discussion of their
respective proportions of
ownership to the future but the
dispute arose before that
discussion. Therefore, the court
shall step in and determine
their respective proportions of
ownership taking into account
all the circumstances
surrounding the acquisition of
the common property. From the
evidence in this case, the
plaintiff and the deceased were
yet to complete building of the
Tantra Hill house after which
they would have had to equip it
before setting it up as a hotel.
Apart from agreeing to own the
properties together they did not
advert their minds to what
proportion each was to
contribute towards completion
and the proportion of ownership
each would have. Though the
Adabraka house was completed and
put to use there had been no
discussion as to proportions of
contribution and ownership.
Meanwhile it is plain from the
evidence that the deceased
undertook a greater part of the
work in the acquisition of the
lands and putting up the houses.
It is apparent that after the
joint business ceased the
deceased carried out further
works on the Tantra Hill house.
From the evidence, unlike the
plaintiff who used part of her
resources to build a house for
herself at Taifa, the deceased
did not put up any other
building for himself meaning he
invested every resource in these
two properties. At some point
the plaintiff left the
jurisdiction to work while the
deceased continued to apply his
effort and resources on these
properties.
As a court of equity, having
taken the view that the
properties were jointly
acquired, we are to try as much
as possible to decide the case
in a just and fair manner taking
into consideration all the
circumstances surrounding the
acquisition of the properties
and the contributions of the
parties. We accordingly set
aside the judgments of the High
Court dated 30th July, 2012 and
of the Court of Appeal dated 4th
February, 2016 and make the
following orders. The parties
shall be entitled to the total
value of the Tantra Hill and
Adabraka houses in the
proportions of 40% to the
plaintiff and 60% to the
defendants. We order that the
two houses be sold on the basis
of the valuations that have been
filed before us and the proceeds
shared between them in the
stated proportions. The parties
are however at liberty, subject
to agreement of all of them, to
trade their entitlements between
themselves. Furthermore, we
consider it unacceptable for the
defendants to have ejected the
plaintiff from the Tantra Hill
house while her claims were
unresolved. She had an interest
in that property and until her
claims were determined by the
court she ought not to have been
ejected therefrom. We
accordingly award in her favour
and against the defendants
GHC10,000.00 as damages for
trespass.
G. PWAMANG
(JUSTICE OF THE SUPREME COURT)
P. BAFFOE-BONNIE
(JUSTICE OF THE SUPREME COURT)
S. K. MARFUL-SAU
(JUSTICE OF THE SUPREME COURT)
N. A. AMEGATCHER
(JUSTICE OF THE SUPREME COURT)
G. TORKORNOO (MRS.)
(JUSTICE OF
THE SUPREME COURT)
COUNSEL
O. K. OSAFO-BUABENG ESQ WITH HIM
PETRINA DEPHIA FOR THE
PLAINTIFF/ RESPONDENT/
APPELLANT.
EDWARD DARLINGTON ESQ WITH HIM
VICTORIA ENCHILL FOR THE
DEFENDANTS/ APPELLANTS/
RESPONDENTS. |
