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Divorce -
Devolution of property - joint
ownership - Matrimonial home -
Whether or not the framers of
the Constitution mandated the
Parliament to enact relevant
legislation to regulate the
property rights of spouses -
Whether or not the petitioner is
a joint owner of the property -
Fundamental human rights -
Whether or not the petitioner is
entitled to her claim of 50%
share the property – Article 22
(2) - Article 33(5) -
Constitution 1992 - Section
20 (1) of the Matrimonial Causes
Act, 1971 (Act 367)
HEADNOTES
In the
instant case since the parties
are not contesting the issue of
divorce, but only devolution of
property acquired during the
subsistence of the marriage upon
divorce In a petition filed the
Petitioner averred that she and
the Respondent were married
under customary law in March of
1989 and converted to a marriage
under the Ordinance in June of
1989. . It however emerged from
the evidence that the parities
got married in 1987. About a
decade after the celebration of
this union, cracks started
appearing in the marriage with
the Petitioner accusing the
Respondent of acts of infidelity
which culminated in the
Respondent moving into their
jointly acquired home in Adenta
with his illicit lover giving
credence to the Petitioner’s
allegations. After diligent
efforts at reconciliation had
failed, the Petitioner filed her
petition for divorce at the High
Court. That the parties also
acquired substantial assets
during the subsistence of the
marriage. The Petitioner
therefore prayed for a
dissolution of the marriage and
for the assets jointly acquired
to be shared equally. It is the
distribution of these assets,
which the trial Court found to
have been jointly acquired that
has led to the present appeal.
We are therefore of the
considered view that the time
has come for this court to
institutionalise this principle
of equality in the sharing of
marital property by spouses,
after divorce, of all property
acquired during the subsistence
of a marriage in appropriate
cases. This is based on the
constitutional provisions in
article 22 (3) and 33 (5) of the
Constitution 1992, the principle
of Jurisprudence of Equality and
the need to follow, apply and
improve our previous decisions
in Mensah v Mensah and Boafo v
Boafo
HELD
In coming to
this conclusion, we are not
unaware of complications that
may arise in the application of
the principle of equality in the
context of polygamous marriages.
We are however of the view that
those complications can be
tackled on a case by case basis
in subsequent case law
development, or by direct
statutory intervention by the
Legislature. The Petitioner
should be treated as an equal
partner even after divorce in
the devolution of the
properties. The Petitioner must
not be bruised by the conduct of
the respondent and made to be in
a worse situation than she would
have been had the divorce not
been granted. The tendency to
consider women (spouses) in
particular as appendages to the
marriage relationship, used and
dumped at will by their male
spouses must cease. In the
premises, the appeal herein is
dismissed as being without any
merit and the Court of Appeal
decision of 23rd July
2009 is hereby affirmed
STATUTES
REFERRED TO IN JUDGMENT
Constitution
1992
Matrimonial Causes Act, 1971 ACT 367
Evidence Act
NRCD 323
CASES
REFERRED TO IN JUDGMENT
Quartey v
Martey [1959] GLR 377
Boafo v Boafo
[2005-2006] SCGLR 705
Packer v
Packer [1953-54] Law Reports,
Probate Division 15
Mensah v
Mensah [1998-99] SCGLR 350
Quartey v.
Martey [1959] GLR 377
Yeboah v.
Yeboah [1974] 2 GLR 114 HC
Marriage
Ordinance, Cap. 127
Abebrese v.
Kaah and Others [1976] 2 GLR 46
HC
Anang v.
Tagoe [1989 -90] 2 GLR 8 HC
Rimmer v.
Rimmer [1952] 1 QB 63
Gregory v
Tandoh IV & Anr. [2010] SCGLR
971
Obeng v
Assemblies of God, Church Ghana
[2010] SCGLR 300
Dzaisu v
Ghana Breweries Limited
[2007-2008] SCGLR 539
Ackah v
Pergah Transport Limited [2010]
SCGLR 728
Tabitha
Wangeci Nderitu v Simon Nderitu
Kariuki, Civil Appeal No. 203 of
1997
BOOKS
REFERRED TO IN JUDGMENT
Landmarks in
the Law” Butterworths, 1954
change in attitude of the
British people to Divorce
DELIVERING
THE LEADING JUDGMENT
JONES DOTSE
JSC
COUNSEL
SOMUAH
ASAMOAH FOR THE APPELLANT
ROBERTSON
KPATSA FOR THE RESPONDENT
_____________________________________________________________________________________
JONES DOTSE
JSC;
Lord Denning
in his book, “Landmarks
in the Law” Butterworths, 1954,
writes at page 176 “on
change in
attitude of the British people
to Divorce” as follows:
“There is no
longer any binding knot for
marriage. There is only a loose
piece of string which the
parties can untie at will.
Divorce is not a stigma. It has
become respectable. One parent
families abound.”
The above
quotation can equally be said to
be applicable to the Ghanaian
society as well.
In the
instant case since the parties
are not contesting the issue of
divorce,
but only devolution of property
acquired during the subsistence
of the marriage upon divorce, we
will focus our attention to
those issues.
What then are
the facts in this case? In view
of the importance that this
court attaches to the legal and
constitutional issues
determinable in this case, we
have considered it worthwhile to
narrate in great detail, not
only the facts of the case, but
the reasons behind the trial
court decision as well as the
dismissal of the appeal by the
Court of Appeal.
This will
necessarily lead to a discussion
of the principles upon which
concurrent findings of fact by a
trial and first appellate court
can be set aside or departed
from by this court, i.e. second
appellate court, as we have
indeed being requested to do.
FACTS
This is an
appeal from the judgment of the
Court of Appeal dated 23/7/2009
which affirmed the judgment of
the High Court dated the 31st
January 2003.
In a
petition filed on the 20th
of April 2000, the
Petitioner/Respondent/Respondent
(hereinafter Petitioner) averred
that she and the
Respondent/Appellant/Appellant
(hereinafter Respondent) were
married under customary law in
March of 1989 and converted to a
marriage under the Ordinance in
June of 1989.
It however emerged from the
evidence that the parities got
married in 1987. About a decade
after the celebration of this
union, cracks started appearing
in the marriage with the
Petitioner accusing the
Respondent of acts of infidelity
which culminated in the
Respondent moving into their
jointly acquired home in Adenta
with his illicit lover giving
credence to the Petitioner’s
allegations. After diligent
efforts at reconciliation had
failed, the Petitioner filed her
petition for divorce at the High
Court.
That the
parties also acquired
substantial assets during the
subsistence of the marriage
cannot be under emphasised.
These the Petitioner listed in
her petition as follows;
1.
Unnumbered three bedroom house
at Kasoa
2.
Unnumbered six bedroom house at
Adenta
3.
Unnumbered four bedroom house at
Krobo Odumasi
4.
Unnumbered three bedroom house
on Spintex Road
5.
Vacant plots of land at Adenta
6.
One and half vacant plot of land
at Krobo Odumasi
7.
Shares in Guidem Company Ltd.
8.
Shares in shop on the Airport
El-Wak Road
9.
Nissan Patrol GT 618 E
10.
Nissan Sunny GT 1073 D
11.
Pick-Up GT 3240 P
12.
Opel GT 9414 Q
13. 20
feet Container
14. SSB
Tudu Branch Current Account No.
120769006.
The
Petitioner therefore prayed for
a dissolution of the marriage
and for the assets jointly
acquired to be shared equally.
It is the distribution of these
assets, which the trial Court
found to have been jointly
acquired that has led to the
present appeal.
EVALUATION OF
EVIDENCE AND DECISION OF TRIAL
COURT
Before coming
to that conclusion, the trial
judge painstakingly set out the
evidence she had received and
after reviewing the evidence
determined that the issue to be
resolved was
whether
or not the petitioner is a joint
owner of the property and is
therefore entitled to her claim
of 50% share in them.
The evidence
was that before the Petitioner
married the Respondent, she used
to trade in rice, sugar and
groundnuts at the Odumase Krobo
Market. After marriage she moved
to Accra with the Respondent,
then a junior accounts officer
at the Controller and Accountant
General’s Department.
They both did
not own any properties and lived
in rented premises at La. At the
weekends, they would go to Krobo
to farm and plant cassava. After
processing the harvested cassava
into gari, the petitioner
realised 600,000 cedis which she
used as capital for trading. She
traded in palm oil and travelled
to various towns and villages to
buy palm oil. Aside from this,
she also traded in cooking oil,
rice and sugar from their house
at La. Respondent also sold some
of these items to his co-workers
in the office. She also at a
point in time took some money
from her father to reinvest in
their business. Gradually, they
built up their business and from
the proceeds, bought their first
landed property at Kasoa, on
which they put up a three
bedroom house. As the business
expanded, they acquired a shop
at the Ministries and petitioner
managed the shop whilst the
Respondent continued working at
the Controller and
Account-General’s Department. As
the business continued to boom,
the parties diversified to other
products, including electrical
appliances like fridges, TV,
deep freezers etc. They also
sold cloth, vegetable oil and
bicycles. The Respondent
arranged for these items from
their suppliers on credit.
They also got
their customers from the
Respondent’s co-workers, mostly
on credit basis. This was
deducted at source from their
salaries. All cash which was
realised from sales was recorded
into a book by the sales
assistants, which the petitioner
took home to the Respondent. He
would check the cash and if it
tallies with the amount in the
book, he would sign against it.
It was the Respondent who
handled the accounts of the
business. He also paid himself
500,000 cedis and paid the
petitioner nothing.
Both the
Petitioner and the Respondent
were members of a susu group and
Petitioner bought her personal
items with the returns from the
susu contribution. They also
invested in Pyram and made
healthy profits from there which
they ploughed back into their
business.
At the peak
of their business, they were
making between 150 million and
300 million a month. The
Petitioner therefore advised the
Respondent to acquire landed
properties as an investment. The
Respondent agreed and allowed
the Petitioner to keep a third
of all cash deposits towards
this acquisition.
The
Petitioner it seems was very
astute and acquired the Adenta
and Krobo Odumase properties on
which she built houses. They
also acquired a number of
vehicles and the first vehicle,
a pick-up was bought with part
of her susu contributions and
part of the business proceeds.
Subsequent vehicles and
properties were acquired from
the proceeds of the business
they run together.
The
Respondent however denied that
the Petitioner made any
contribution to the business.
According to him the Petitioner
was a housewife and never worked
to make a living. She had also
embezzled money from him which
resulted in the loss of his
capital and he was compelled to
go for a bank loan to
recapitalise his business.
The
Petitioner called no witnesses
in support of her case but the
Respondent called five witnesses.
The trial judge however found
the evidence of the petitioner
more convincing than that of
the Respondent and the reason
she alluded to for so finding
were that even though the
Respondent had maintained
throughout the trial that the
Petitioner never worked during
the decade the marriage lasted,
his own witnesses contradicted
him. The judge also made the
finding that the Respondent’s
own evidence supported the fact
that the Petitioner supervised
the running of the shop and also
worked in the shop. The judge
further made the finding that
the Respondents 4th
and 5th witnesses
were “serious liars” bent on
throwing dust into the court’s
eyes. Besides, when the
Respondent claimed that he took
a loan to recapitalise the
business after the Petitioner
had drained off all the monies,
the judge made the finding that
the loan was applied for long
after the petition had been
filed. Further, the Respondent
claimed he had acquired the
Spintex property with the bank
loan. Again the judge found that
the property had been acquired
long before the loan was
contracted and concluded that
the property was acquired with
proceeds from the business. The
judge further found that the
Respondent had not been entirely
honest when he stated that he
did not sign Exhibit C2 which
was the document on the Krobo
Property.
He had indeed
appended his signature on the
document and this led the trial
judge to conclude that the
parties intended the property to
be joint property.
Based on the
above facts and findings, the
learned trial Judge delivered
judgment in favor of the
Petitioner. Aggrieved by the
decision of the trial High
Court, the Respondent filed an
appeal to the Court of Appeal.
As was to be expected, the Court
of Appeal in a unanimous
decision dismissed the
Respondent’s appeal.
It is against
this Court of Appeal decision
that the Respondent has appealed
to this court based on the
following grounds of appeal.
GROUNDS OF
APPEAL
The
Respondent’s grounds of Appeal
are stated as follows:
-
The Court of Appeal failed
to consider adequately the
evidence of the Respondent
and placed unnecessary
weight on the evidence of
the Petitioner.
-
Exhibits 7 and 7A having
been admitted, the court
erred in assessing the
amount to be paid to the
Petitioner as her share of
the profits.
-
Since the Respondent’s
company was a limited
liability company and thus a
legal entity, the court
erred in ordering payment
out of its profits without
regard to the interests of
the other shareholders of
the company.
ISSUES FOR
DETERMINATION
We have
perused the statement of case of
the parties. From the arguments
contained in the Statements of
case by the parties, the
following issue stands out as
the main issue for
determination, although there
are some other ancillary issues.
This is:
i.
Whether the equality principle
used by the trial and appellate
courts in the distribution of
the martial property acquired
during the marriage following
the dissolution of the marriage
between the parties is
sustainable under the current
state of the laws in Ghana based
on the available evidence on
record.
In
determining this issue, matters
as to whether the trial and
appellate court correctly
evaluated the evidence of the
Petitioner by applying to it the
proper rules of the Evidence
Act, 1975 NRCD 323 and whether
the courts below correctly
awarded the lump sum payments
out of accounts of a limited
liability company on statement
of accounts that are not as
healthy as the Petitioner made
the court to believe, reference
exhibits 7 and 7a are consistent
with the evidence on record.
CONSTITUTIONAL PROVISIONS OF
SHARING MARITAL PROPERTIES ON
DIVORCE
In view of
the effect some provisions of
the
Constitution 1992 will have
on this case, we deem it
expedient to set out these
provisions in extenso.
1.
Article
22 (2)
(2)
“Parliament shall, as soon as
practicable after the coming
into force of this Constitution,
enact legislation regulating the
property rights of spouses.” and
(3)
“With a
view to achieving the full
realization of the rights
referred to in clause (2) of
this article
(a)
Spouses shall have equal access
to property jointly acquired
during marriage.
(b)
Assets which are jointly
acquired during marriage shall
be distributed equitably between
the spouses upon dissolution of
the marriage.”
2.
Article
33(5)
“The rights,
duties, declarations and
guarantees relating to the
fundamental human rights and
freedoms specifically mentioned
in this Chapter shall not be
regarded as excluding others not
specifically mentioned which are
considered to be inherent in a
democracy and intended to secure
the freedom and dignity of man.”
From the
above provisions of the
Constitution, it means that,
the
framers of the Constitution
mandated the Parliament to enact
relevant legislation to regulate
the property rights of spouses.
It is a sad
reflection that since 7th
January 1993 when this 4th
Republican Constitution came
into force, the above directive
has as yet not been complied
with.
Suffice it to
be that, there is now before
Parliament, a Bill in
fulfillment of this article 22
(2) of the Constitution.
It is also
important to note that article
22 (3) (a) & (b) give an inkling
of what the said legislation
should contain. For instance
it is quite clear from these
provisions that the principle of
having equal access to property
acquired during marriage and
that of equitable distribution
of property upon dissolution of
the marriage have been espoused.
In view of
the pride of place that our
Constitution has in the sources
of law in Ghana, reference
article 11 (1) of the
Constitution 1992, such
fundamental philosophical
principles which underpin
distribution of marital property
acquired during the subsistence
of a marriage upon its
dissolution should not be
glossed over. This
constitutional principle is
similar to the emerging
principle of “Jurisprudence of
Equality” which is now
applicable in issues concerning
gender affairs. We will revert
to this principle of
Jurisprudence of Equality later.
Furthermore,
the provisions spelt out in
article 33 (5) re-enforce the
guarantee and protection of all
the fundamental human rights
contained in chapter 5 of the
Constitution 1992 including the
property rights of women,
economic rights, cultural rights
and practices and general
fundamental freedoms and others.
There is this
proviso also in article 33 (5)
which enjoins the courts in
Ghana to look at other rights
not specifically mentioned but
which are considered to be part
and parcel of an emerging
democratic state intended to
secure the freedom and dignity
of man, and this includes the
opposite, woman.
APPLICABLE
GUIDELINES ON SHARING MARITAL
PROPERTIES
This judgment
will accordingly be discussed in
line with these and other
international laws and
conventions which give or are
designed to bring honour and
dignity to spouses in cases of
dissolution of the marriage.
Why did the
framers of the Constitution
envisage a situation where
spouses shall have equal access
to property jointly acquired
during marriage and also the
principle of equitable
distribution of assets acquired
during marriage upon the
dissolution of the marriage?
We believe
that, common sense, and
principles of general
fundamental human rights
requires that a person who is
married to another, and
performs various household
chores for the other partner
like keeping the home, washing
and keeping the laundry
generally clean, cooking and
taking care of the partner’s
catering needs as well as those
of visitors, raising up of the
children in a congenial
atmosphere and generally
supervising the home such that
the other partner, has a free
hand to engage in economic
activities must not be
discriminated against in the
distribution of properties
acquired during the marriage
when the marriage is dissolved.
This is so
because, it can safely be argued
that, the acquisition of the
properties were facilitated by
the massive assistance that the
other spouse derived from the
other.
In such
circumstances, it will not only
be inequitable, but also
unconstitutional as we have just
discussed to state that because
of the principle of substantial
contribution which had been the
principle used to determine the
distribution of marital property
upon dissolution of marriage in
the earlier cases decided by the
law courts, then the spouse will
be denied any share in marital
property, when it is ascertained
that he or she did not make any
substantial contributions
thereof.
It was
because of the inequalities in
the older judicial decisions
that we believe informed the
Consultative Assembly to include
article 22 in the Constitution
of the 4th Republic.
We shall
revert to a discussion of some
of the older cases spanning the
period 1959 to 2005 i.e. from
the cases of Quartey v Martey
[1959] GLR 377 to Boafo v
Boafo [2005-2006] SCGLR 705
which to me is to be regarded as
the locus classicus and a
restatement of the law on
distribution of marital property
acquired during the subsistence
of the marriage upon divorce.
HISTORICAL
CASE LAW DEVELOPMENT
Before we
embark upon this historical
discourse of the cases, let us
refresh ourselves with these
words of encouragement from Lord
Denning in the case of Packer
v Packer [1953-54] Law
Reports, Probate Division 15.
In this case,
Lord Denning in characteristic
fashion, stated that, not having
done something before should not
hinder a court from doing it for
the first time. He stated thus:-
“What is the
argument on the other side. Only
this, that no case has been
found in which it has been done
before. That argument does not
appeal to me in the least. If we
never do anything, which has not
been done before we shall never
act anywhere. The law will stand
still whilst the rest of the
world goes on and that will be
bad for both.
There is no
decision of this court that an
order cannot be made for custody
of an illegitimate child and in
the absence of direct decision
preventing us, I think that we
should follow the course which
is permitted by statute and
prescribed by good service”.
Like most of
the decisions of Lord Denning at
the material time, it was a
dissenting opinion in a
matrimonial case. But with the
passage of time his opinions
have become accepted as the
correct statement of the law.
What we take
note of is that, from the above
opinion, it is clear that the
fact that there is no precedent
to support a decision of a court
is now no bar to prevent a court
from arriving at a decision
provided the decision will not
be contrary to constitutional or
statutory provisions or in
conflict with the doctrine of
stare decisis if the court is
bound by its own decision or by
a decision of a Superior court.
Fortunately,
we do not find any such
impediment or inhibition in this
situation. This is because, the
Supreme Court has given the
green light in its previous
decisions in the cases of
Mensah v Mensah [1998-99] SCGLR
350 and Boafo v Boafo
already referred to supra.
This court is
of the view that the time is
ripe for improvements to be made
to the far reaching decisions in
the cases just referred to.
DEVELOPMENT
OF RELEVANT GHANAIAN CASE LAW
Let us now go
on our historical journey on the
development of case law on the
distribution of marital property
acquired during marriage upon
divorce. This exercise is
important as it will enable us
to explain the rationale for the
improvements being made and the
introduction of the “principles
of jurisprudence of equality.”
JOINT PROPERTY
Property acquired with the
assistance of a wife was
regarded as the sole property of
the husband. The customary law
position was that the wife and
children had a domestic
responsibility of assisting the
husband/father with his business
and as such the wife could not
claim any interest in any
property she assisted her
husband to acquire. Thus, in
Quartey v. Martey [1959] GLR
377, HC Ollennu J. (as he then
was) held at 380 that:
“The proceeds
of this joint effort of a man
and his wife and/or children,
and any property which the man
acquires with such proceeds, are
by customary law the individual
property of the man. It is not
the joint property of the man
and the wife and/or the
children. The right of the wife
and the children is a right to
maintenance and support from the
husband and father.”
SUBSTANTIAL CONTRIBUTION
PRINCIPLE
Clearly this position has since been
eroded by changes in the
traditional roles of men and
women and the economic
empowerment of women. In
Yeboah v. Yeboah [1974] 2 GLR
114 HC, Hayfron-Benjamin J
(as he then was) held that there
was no positive customary law
preventing the creation of joint
interest by persons not related
by blood.
The current position of the law
regarding joint property is that
substantial contribution by a
spouse to the acquisition of
property during the subsistence
of the marriage would entitle
that spouse to an interest in
the property.
In the Yeboah case, supra the
husband and wife were married
under the Marriage Ordinance,
Cap. 127. Before the marriage,
the wife had applied for a house
from the Housing Corporation.
She was allocated a plot of land
for which she paid a deposit.
After the marriage, she had the
plot of land transferred into
the name of her husband and the
deposit was refunded to her by
the corporation. The husband
then took a loan from his
employers to put up a house on
the plot. Just as he was about
to start constructing the
building, the husband was
transferred to London where he
was later joined by the wife.
The construction of the building
started while the couple were
resident in London. According to
the wife, during the
construction of the house she
flew to Ghana at the request of
her husband to supervise the
construction. She stated that
she paid the fare herself. She
alleged that she made several
structural alterations to the
building with the knowledge and
consent of her husband. The
parties returned to Ghana and
thereafter the marriage broke
down. The husband then served a
notice on the wife to quit the
matrimonial home on the ground
that he required the premises
for his own occupation.
When the wife failed to quit the
premises, the husband then
brought an action to eject the
wife from the house. Headnote 3
of the court’s holding stated
thus:
“The wife was
a joint owner of the house with
the husband because judging from
the factors attending the
acquisition of the house and the
conduct of the parties
subsequent to the acquisition,
it was clear that they intended
to own jointly the matrimonial
home. Where the matrimonial home
was held to be held jointly by
husband and wife as joint
owners, it would be improper to
treat the property as a subject
of mathematical division of the
supposed value of the house.
What the court could do in such
a case was to make what would
seem to be a fair agreement for
the parties.”
Similarly in Abebrese v. Kaah and
Others [1976] 2 GLR 46 HC,
the wife contributed
substantially to building the
matrimonial home. The husband
had provided the purchase money
for the land. She paid for the
timber, and contributed to
buying sand and iron sheets. She
also supervised work done by
labourers and helped to carry
water to the site. However, she
had not kept account of her
contribution. The husband died
intestate and his successor
purported to sell the house.
The court held that although the
wife could not state in terms of
cash how much her contribution
towards the building was, it was
clearly substantial. The
court pointed out that the
ordinary incidents of commerce
had no application in the
ordinary relations between
husband and wife and the wife’s
evidence as to the size of her
contribution and her intention
in so contributing would be
accepted.
Further in Anang v. Tagoe [1989
-90] 2 GLR 8 HC, it was held
at 11 that:
“ … where a
wife made contributions towards
the requirements of a
matrimonial home in the belief
that the contribution was to
assist in the joint acquisition
of property, the court of equity
would take steps to ensure that
belief materialised. That would
prevent husbands from unjustly
enriching themselves at the
expense of innocent wives,
particularly where there was
evidence of some agreement for
joint acquisition of property.”
MATRIMONIAL CAUSES ACT, 1971 ACT
367
The cases cited supra give an
indication that the courts seek
to provide some protection,
especially to wives, when there
is evidence that a spouse has
made a substantial contribution
to acquire property. What
amounts to substantial
contribution is determined by
looking at the facts surrounding
the acquisition of the property.
The facts would lead to an
inference that there was
intention by the parties to own
the property jointly. Section 20
(1) of the Matrimonial Causes
Act, 1971 (Act 367) provides
that
“ 20(1) The
court may order either party to
the marriage to pay to the other
party such sum of money or
convey to the other party such
movable or immovable property as
settlement of property rights or
in lieu thereof as part of a
financial provision as the court
thinks just and equitable.”
(e.s)
Even though
it has been held that the
ordinary incidents of commerce
do not apply in marital
relations and that the courts
will not employ mathematical
division to determine each
spouse’s share in the property,
the courts currently apply the
equality is equity principle.
This principle is backed by
Constitutional force in article
22(3) (b) of the 1992
Constitution referred to supra.
EQUALITY IS EQUITY PRINCIPLE OF
SHARING OF MARTIAL PROPERTY
Thus in Mensah v. Mensah
already referred to supra, the
court applied the equality is
equity principle to determine
which proportions the couple’s
joint property would be shared.
Bamford-Addo JSC held at 355
thus:
“… the
principle that property jointly
acquired during marriage becomes
joint property of the parties
applies and such property should
be shared equally on divorce;
because the ordinary incidents
of commerce has no application
in marital relations between
husband and wife who jointly
acquired property during
marriage.” (e.s.)
It would appear from Mensah v.
Mensah, supra that the court
favoured equal sharing of
joint property in all
circumstances. However, this
position has been modified and
clarified subsequently in the
case of Boafo v. Boafo
referred to supra.
In that case, the husband petitioned
for divorce and the wife
cross-petitioned for divorce.
The marriage was dissolved. On
the issue of distribution of
properties, the trial judge
found that the properties had
been jointly acquired; that the
couple had operated their
finances jointly, but that the
degree of financial contribution
by the wife to the acquisition
of the joint properties was not
clear.
The trial Judge then made
distribution orders which were
not on a half and half (equal)
basis. The wife appealed to the
Court of Appeal on the ground,
inter alia, that the trial judge
failed to distribute the
property in accordance with
article 22(3) (b) of the 1992
Constitution.
The Court of Appeal held that the
properties should have been
distributed equally on a half
and half basis and allowed the
appeal. The husband appealed to
the Supreme Court.
In delivering the judgment of the
court dismissing the appeal, Dr.
Date-Bah JSC referred to the
decision in Mensah v. Mensah
and further explained the
position of the court. At 711,
he said:
“On the facts
of Mensah v. Mensah (supra), the
Supreme Court (per Bamford-Addo
JSC) held that equal sharing was
what would amount to a “just and
equitable” sharing. The view of
Denning LJ (as he then was), in
Rimmer v. Rimmer [1952] 1 QB
63 at 73 that on the facts
of that case equality is equity
seems to have inspired the
learned Supreme Court Judge’s
approach. … Denning LJ’s view
was that where it is clear that
the matrimonial home or
furniture common use belongs to
one or the other of the married
couple, then the courts would
respect the proprietary rights
of the particular spouse. But
where it not clear to whom the
beneficial interest belongs or
in what proportions, then the
equitable maxim of equality is
equity would be applied. The
spirit of Bamford-Addo JSC’s
judgment in Mensah v. Mensah
appears to be that the principle
of the equitable sharing of
joint property would ordinarily
entail applying the equitable
principle, unless one spouse can
prove separate proprietorship or
agreement or a different
proportion of ownership.
This
interpretation of Mensah v.
Mensah as laying down the
principle of equitable sharing
of joint property, accords with
my perception of the
contemporary social mores …”
The learned judge also underscored
the essence of section 20(1) of
the Matrimonial Causes Act, 1971
Act 367 and article 22(3) (b).
At 713 he said of article 22(3)
(b):
“… Thus
article 22 firmly places within
the domain of social human
rights the distribution of the
property of spouses, on divorce…
It was meant to right the
imbalance that women have
historically suffered in the
distribution of assets jointly
acquired during marriage. An
equal division will often,
though not invariably, be a
solution to this imbalance.”
Then at 714, he said of section
20(1) of Act 367:
“The question
of what is “equitable”, in
essence, what is just,
reasonable and accords with
common sense and fair play , is
a pure question of fact,
dependent purely on the
particular circumstances of each
case. The proportions are,
therefore, fixed in accordance
with the equities of any given
case.” (e.s.)
Therefore even though Boafo v.
Boafo affirmed the equality
is equity principle as used in
Mensah v. Mensah, it gave
further meaning to section 20(1)
of Act 367 and article 22(3)(b)
of the 1992 Constitution.
Consequently, the issue of
proportions are to be fixed in
accordance with the equities of
each case.
The court duly recognized the fact
that an equal (half and half)
distribution, though usually a
suitable solution to correct
imbalances in property rights
against women, may not
necessarily lead to a just and
equitable distribution as the
Constitution and Act 367
envisages. It is submitted that
the court made room for some
flexibility in the application
of the equality is equity
principle by favouring a case by
case approach as opposed to a
wholesale application of the
principle.
The above notwithstanding, it must
be noted that the paramount goal
of the court would be to achieve
equality. Thus, the court
endorsed the Court of Appeal’s
position to the effect that an
inability or difficulty to
identify clearly distinct
contributions in the acquisition
of the joint property would not
in itself preclude a half and
half sharing. At 716 Date Bah
JSC quoted with approval a
passage from the judgment of
Wood JA (as she then was) :
“ …Indeed in
cases where the evidence clearly
points to a joint ownership, I
found no inflexible rule
stipulating that a spouse’s
inability to identify clearly
contribution automatically
disentitles him or her from a
half share. To the contrary, it
does appear that the courts have
been quick to apply the equality
is equity rule, and so lean
towards a half and half share,
if from all the circumstances,
such an approach would be
justifiable.”…
Again, we consider
this passage a sound statement
of the law. …
Where there
is substantial contribution by
both spouses, the respective
shares of the spouses will not
be delineated proportionally
like a shareholding in a
company. For, the marriage
relationship is not a commercial
relationship… equality is equity
will usually be an equitable
solution to the distribution
issue. The Court of Appeal was
therefore within its rights in
intervening to achieve
equality.”
It is
therefore apparent that the
Ghanaian Courts have accepted
this equality is equity
principle in the sharing of
marital properties upon divorce.
We believe that the death knell
has been sung to the substantial
contribution principle, making
way for the equitable
distribution as provided for
under article 22 (3) of the
Constitution 1992.
Let us now
examine the invitation being
made to us in this appeal to set
aside the judgment of the Court
of Appeal, and by necessary
implication, that of the High
Court in view of the concurrent
findings by the two lower
courts. Is there any sound legal
basis for this request?
CONCURRENT
FINDINGS OF FACT
The Supreme
Court has in the following cases
laid down the criteria that will
enable a second appellate court,
like this Supreme Court to
depart from concurrent findings
of fact by the trial court and
concurred in by the first
appellate court, the Court of
Appeal.
1.
Gregory v Tandoh IV & Anr.
[2010] SCGLR 971 and
2.
Obeng v Assemblies of God,
Church Ghana [2010] SCGLR 300
The principle
is therefore firmly established
that where findings of fact have
been made by a trial court and
concurred in by the first
appellate court, then the second
appellate court like this court
must be slow in coming to
different conclusions unless it
was satisfied that there were
strong pieces of evidence on
record which made it manifestly
clear that the findings by the
trial court were perverse.
In the
instant case, there being no
such evidence that the findings
of fact are perverse, this court
is unable to depart from the
findings of fact as they are
indeed supported by evidence on
record.
EVALUATION OF
EVIDENCE ON RECORD
In the
circumstances of this case, even
though the Petitioner did not
call any witnesses, there were
pieces of corroborative evidence
from the Respondents witnesses
which supported the Petitioner’s
case that she and the Respondent
took part in the trading
activities.
For example,
DWI, Ellen Dzifa Amugie contrary
to Respondent’s assertion that
the Petitioner did not play any
role in the business activities
stated on oath that she saw the
petitioner once in the premises
where the Respondent was selling
the items to the Civil Servants
in the Ministries.
Secondly, in
answer to a question from
Counsel for the Petitioner,
requesting explanation as to the
business deals or negotiations
that she DWI went out with the
Petitioner to conclude, DWI
answered thus:-
“Yes, but the
woman she led me to was not
ready to give us credit and so
we did not take anything from
her.”
These pieces
of evidence at least shows that
the Petitioner was not the type
of lazy housewife that the
Petitioner was portrayed to be.
The truth of the matter is that,
the Petitioner played a pivotal
role in the management of the
business before and after Guidem
was registered as a business
entity at the Registrar
General’s Department.
DW2 – Michael
Nii Amarh Ahuloo a colleague of
the Respondent at the Controller
and Accountant General’s
Department, testified that he
had ever met the Petitioner in
the House of the Respondent at
La. According to DW2, he went to
their house at La, very early in
the morning at the invitation of
the Respondent. In answer to a
question during
cross-examination, DW2 answered
that when he got to the house of
the parties at La, he saw Palm
oil in drums as well as
tomatoes, but he could not tell
who sold those items. The same
witness also testified that he
ever saw the Petitioner in the
store of the Respondent in the
Ministries but cannot tell
exactly what she was doing at
the material time. All these go
to confirm that the Petitioner
was really engaged in trading in
the house at La and also took
part in the business.
Finally, DW4,
Isaac kwao, a close blood
relation of the Respondent who
later came to work with him also
testified that, the procedure in
the management of the store was
that, “at the end of each day’s
sales Sister Gladys that is the
petitioner comes to collect the
cash. The respondent then was
working with the Accountant
Generals ‘Department”.
This
particular piece of evidence is
consistent with the evidence of
the petitioner under
cross-examination that she kept
a record of the daily sales and
gave it to the Respondent. This
particular record has been
tendered as exhibit E.
It has to be
noted that, DW4 is also a
Carpenter by profession and was
the one who worked on the
couple’s Adenta property. He
confirmed that it was the
Petitioner who took him to the
Adenta house and also that when
he first met the Petitioner, she
was a table top trader, dealing
in the sale of rice, cooking oil
and other consumables in their
house at La.
The combined
effect of all these pieces of
evidence is that, even though
learned Counsel for the
Petitioner was careless in not
calling evidence to support the
contentions of the Petitioner,
by the evidence of the Defence
witnesses referred to supra, the
necessary corroborative linkages
had been established to enable
this court draw the necessary
inferences. In this respect
therefore, we are of the
considered view that, once the
Respondent and his witnesses
have corroborated in material
particulars the evidence of the
Petitioner on the core issues
involved in this trial, the
failure by her to call evidence
of her own in support thereof is
immaterial.
We are
therefore of the considered view
that, in law the burden that is
cast on the Petitioner to lead
sufficient evidence to enable a
finding of those facts to be
made in her favour has been
established as required by
sections 10 and 14 of the
Evidence Act, 1975, already
referred to supra.
We
accordingly hold and rule that
taking all the above pieces of
evidence from Petitioner,
respondent and his witnesses
into consideration and on the
authority of the following
Supreme Court decisions, the
Petitioner must be deemed to
have discharged the burden cast
on her by and under the Evidence
Act, 1975 NRCD 323.
1.
Dzaisu v Ghana Breweries Limited
[2007-2008] SCGLR 539 where
the Court spoke with one voice
through our esteemed Sister
Sophia Adinyira JSC on
application of section 14 of
NRCD 323 at holding 1 thereof
and
2.
Ackah v Pergah Transport Limited
[2010] SCGLR 728 where the
Supreme Court again speaking
through our respected Sister
Sophia Adinyira JSC espoused
section 10 of NRCD 323 of the
Evidence Act.
This means
that, since it was the
Petitioner’s duty as required by
law to produce the evidence of
the facts in issue and that duty
has been satisfactorily
discharged, that burden has been
performed and the trial and
appellate courts were thus right
in coming to the conclusions
reached by them.
From the
above, it would appear certain
that all the lower courts
correctly applied the principles
of evaluating the evidence and
the probative values attached to
the party who has the burden of
proof. Under these
circumstances, it is our
considered view that this court
does not see it’s way clear in
interfering with the findings of
fact made by the trial court
which was concurred in by the
Court of Appeal.
We are
therefore of the very considered
view that the Court of Appeal
did not err in affirming the
findings of fact made by the
trial court.
Indeed, the
Court of Appeal correctly
applied the principles of
evidence in this case and
satisfied itself that the
standard of proof required in
law had been met.
Secondly, it
has to be considered that, the
facts of this case require that
the veil of incorporation be
lifted to enable the court
determine the real persons who
are managing the business of
Guidem.
This is a
situation where the respondent
cleverly explored the illiteracy
of the Petitioner and abused the
trust reposed in him by the
Petitioner. Since the primary
duty of courts of law is to do
substantial justice, the
decision of the lower courts to
be objective and consider all
the surrounding circumstances of
the case supports the decision
arrived at.
Having
reviewed the evidence on record
in great detail as well as the
constitutional provisions
dealing with devolution of
marital properties upon divorce,
it is appropriate at this stage
to consider the principle of
Jurisprudence of Equality.
Even though
the decision of this court in
effect is that, the Petitioner,
from the evidence on record,
must be reputed to have made and
contributed substantially to the
acquisition of the matrimonial
properties and assets on offer
for sharing in this case and
therefore entitled to an equal
share, the constitutional
provisions in article 22 (3) of
the Constitution, 1992 cannot be
overlooked.
This is
because, as a final appellate
and constitutional court, this
Supreme Court has a duty to make
its views clearly known on the
relevance and applicability of
constitutional provisions
whenever these arise or call for
interpretation in cases that
come up before it for
adjudication.
Our comments
as a court, on the
constitutional interpretation
and applicability of the
equality is equity principle
contained in article 22 (3) of
the Constitution 1992, in the
sharing of marital properties
acquired during the subsistence
of a marriage and the Principle
of Jurisprudence of equality,
(yet to be discussed) are to be
understood in that context.
Thus, even if
this court had held that the
petitioner had not made any
substantial contributions to the
acquisition of the matrimonial
properties, it would still have
come to the same conclusion that
the petitioner is entitled to an
equal share in the properties so
acquired during the subsistence
of the marriage. This is because
this court recognises the
valuable contributions made by
her in the marriage like the
performance of household chores
referred to supra, and the
maintenance of a congenial
domestic environment for the
respondent to operate and
acquire properties. Besides, the
constitutional provisions in
article 22(3) of the
Constitution 1992, must be
construed to achieve the desired
results which the framers of the
Constitution intended.
In coming to
this conclusion, we are not
unaware of complications that
may arise in the application of
the principle of equality in the
context of polygamous marriages.
We are
however of the view that those
complications can be tackled on
a case by case basis in
subsequent case law development,
or by direct statutory
intervention by the Legislature.
Finally, such
an interpretation and decision
would be consistent with earlier
decisions of this court in
Mensah v Mensah and Boafo v
Boafo already referred to supra.
JURISPRUDENCE
OF EQUALITY PRINCIPLE (JEP)
The
Jurisprudence of Equality
Principle, has been defined by
the International Association of
Women Judges in their November,
2006 USAID Rule of Law Project
in Jordan as “the application of
international human rights
treaties and laws to national
and local domestic cases
alleging discrimination and
violence against women.” Such
that the rights of women will no
longer be discriminated against
and there will be equal
application of laws to the
determination of women issues in
all aspects of social, legal,
economic and cultural affairs.
It is to be
understood that discrimination
and violence against women
differ from country to country
and each situation has to be
considered on a case by case
basis.
For example,
whilst in Ghana, it is perfectly
legitimate for issues such as
inhuman widowhood rites, trokosi
system and the inability of the
courts to apply all the human
rights provisions in the
Constitution 1992 in favour of
women so as to empower them in
their quest for equality in the
devolution of marital property
upon divorce may be considered
as discrimination and violence
against women, in other
countries, it may be the
prohibition on female students
wearing headscarves at
university campuses, or the
unequal payment of pensions to
widows as compared to widowers
that may be considered as such.
In our
Ghanaian context, we have
referred to the provisions of
article 33 (5) of the
Constitution which guarantee’s
other rights, duties,
declarations not specifically
mentioned in the Constitution as
applicable by our courts in
order to ensure the dignity of
the human race.
For example,
Article (1) of the Universal
Declaration of Human Rights
provides as follows:
“All human
beings are born free and equal
in dignity and rights.
They are endowed with reason and
conscience, and should act
towards one another in a spirit
of brotherhood.”
Article 12
(1) and (2) of the Constitution
1992 give the scope and content
of the fundamental Human Rights
and Freedoms which the
individual is entitled to enjoy.
As a matter
of fact, even though the
Universal Declaration of Human
Rights is not a binding treaty,
its principles and underpinning
philosophy has been incorporated
into national constitutions and
referred to by several national
courts. This is the context into
which our national Constitution
1992 has to be understood in
relation to this principle of
Jurisprudence of Equality.
Ghana is also
a signatory to the Convention on
the Elimination of all forms of
Discrimination Against Women
(CEDAW).
For example,
article 1 of CEDAW, provides a
definition of discrimination as
follows:-
“For the
purposes of the present
convention, the term
“discrimination against women”
shall mean any distinction,
exclusion or restriction made on
the basis of sex which has the
effect or purpose of impairing
or nullifying the recognition,
enjoyment or exercise by women,
irrespective of their marital
status, on the basis of equality
of men and women of human rights
and fundamental freedoms in the
political, economic, social,
cultural, civil or any other
field.”
Furthermore,
article 5 of CEDAW adds a key
concept to international equal
protection analysis; the need to
eradicate customary and all
other practices which are based
on the idea of the inferiority
or the superiority of the sexes
or on stereotyped roles for men
and women.
On the basis
of the above conventions and
treaties and drawing a linkage
between them and the
Constitution 1992, it is our
considered view that the time
has indeed come for the
integration of this principle of
“Jurisprudence of Equality” into
our rules of interpretation such
that meaning will be given to
the contents of the Constitution
1992, especially on the
devolution of property to
spouses after divorce.
Using this
principle as a guide we are of
the view that it is
unconstitutional for the courts
in Ghana to discriminate against
women in particular whenever
issues pertaining to
distribution of property
acquired during marriage come up
during divorce. There should in
all appropriate cases be sharing
of property on equality basis.
We therefore
endorse the Kenya Court of
Appeals decision in the case of
Tabitha Wangeci Nderitu v
Simon Nderitu Kariuki, Civil
Appeal No. 203 of 1997 where
the Court of Appeal ruled for
the wife, finding that the
Married Women Property Act,
superseded the customary law,
that the husband had failed to
show that the caesarian sections
had disabled her sufficiently to
warrant a reduction to 30
percent, and that a housewife’s
contribution to the family in
raising children counted as a
contribution to the marriage.
What are the
facts of the above case?
In the said
case both parties appealed from
a lower court decision dividing
marital property on divorce. The
lower court found that both of
the parties had contributed
equally to the marital assets
and ruled that the proceeds from
the sale of the matrimonial home
should be divided equally.
The husband
discounted the wife’s share of
the remaining assets to only
30%, based on what he termed the
“common sense notion” that the
three caesarian sections the
woman had endured to deliver the
couple’s children had diminished
her ability to fully exert
himself for the benefit of the
household.
The decision
arrived by the Kenya Court of
Appeals is not only in tandem
with common sense and
international human rights
conventions and principles, but
also in tune with our articles
22 (3) (a) and (b) of the
Constitution 1992.
Coming home
to the instant case and applying
the above constitutional
provisions, relevant case laws
enunciated in decisions such as
Mensah v Mensah and
Boafo v Boafo already
referred to supra and
international conventions and
Principles of Jurisprudence of
Equality, (JEP) this court is of
the considered view that the
Petitioners contribution even
as a housewife, in maintaining
the house and creating a
congenial atmosphere for the
respondent to create the
economic empire he has built are
enough to earn for her an equal
share in the marital properties
on offer for distribution upon
the decree of divorce.
From the
evidence on record, this court
will not permit the respondent
to use the petitioner as a
donkey and after offering useful
and valuable service dump her
without any regard for her
rights as a human being.
CONCLUSION
We are
therefore of the considered view
that the time has come for this
court to institutionalise this
principle of equality in the
sharing of marital property by
spouses, after divorce, of all
property acquired during the
subsistence of a marriage in
appropriate cases. This is based
on the constitutional provisions
in article 22 (3) and 33 (5) of
the Constitution 1992, the
principle of Jurisprudence of
Equality and the need to follow,
apply and improve our previous
decisions in Mensah v Mensah
and Boafo v Boafo already
referred to supra. The
Petitioner should be treated as
an equal partner even after
divorce in the devolution of the
properties. The Petitioner must
not be bruised by the conduct of
the respondent and made to be in
a worse situation than she would
have been had the divorce not
been granted. The tendency to
consider women (spouses) in
particular as appendages to the
marriage relationship, used and
dumped at will by their male
spouses must cease. Divorce as
Lord Denning stated long ago,
should not be considered as a
stigma.
In the
premises, the appeal herein is
dismissed as being without any
merit and the Court of Appeal
decision of 23rd July
2009 is hereby affirmed.
(SGD)
J.V.M DOTSE
JUSTICE OF
THE SUPREME COURT
(SGD)
S.A.B AKUFFO (MS)
JUSTICE OF
THE SUPREME COURT
(SGD)
DR. S.K. DATE-BAH
JUSTICE OF
THE SUPREME COURT
(SGD)
S.O.A ADINYIRA (MRS)
JUSTICE OF
THE SUPREME COURT
(SGD) V.
AKOTO BAMFO (MRS)
JUSTICE OF
THE SUPREME COURT
COUNSEL:
SOMUAH
ASAMOAH FOR THE APPELLANT
ROBERTSON
KPATSA FOR THE RESPONDENT
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