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Divorce – Matrimonial causes –
Husband and wife - Dissolution
of marriage – Joint Property –
Ownership – Gift - Order for
custody and Maintenance -
Binding deed -
Resolution of the board of
directors -
HEADNOTES
The
appeal before us is the
culmination of what, prima
facie, appeared to be a simple
matrimonial cause ignited by the
woman in the marriage (as
petitioner) against her husband
(the respondent), for the
dissolution of their ordinance
marriage. The second and last
relief the petitioner asked for,
apart from the dissolution, was
an order for the
custody
or maintenance (as she put
it), of the two issues in the
marriage. This second or last
relief of the petitioner, which
respondent also prayed for in
respect of the younger child in
his cross-petition, became
redundant in the course of the
trial, when all the two issues
in the marriage attained
adulthood. Petitioner did not
seek any relief on property
settlement, as her case was that
she never acquired any property
jointly with the respondent
during the subsistence of the
marriage, which needed to be
shared. The only thing she said
she had in common with
respondent was a limited
liability company which,
according to her, the two of
them established as the only
shareholders and directors with
fifty percent (50%) shares each.
In this answer, the respondent
did not challenge the
petitioner’s call for the
dissolution of the marriage
aside of the reasons behind the
call. He however, denied
petitioner’s assertion that they
never jointly acquired any
properties during the
subsistence of the marriage. He
contended that apart from the
two companies which the two of
them formed, they jointly
acquired several other
properties; some in his name,
some in petitioner’s name and
others in their joint names. He
mentioned fourteen (14)
different properties, which he
claimed the two acquired jointly
in the course of their
thirty-two (32) years of
marriage, mainly through the
operations of their two
companies. He accordingly
cross-petitioned for the
dissolution of the marriage, an
order for
custody of their younger
child who was then sixteen (16)
years old and then, an order for
the distribution of all the
properties jointly acquired by
them The trial High court, in
the evaluation of the evidence
before it, came to the
conclusion that Exhibit ‘E’ was
binding on the respondent,
therefore the properties and
businesses mentioned therein as
having been ceded to the
petitioner belonged exclusively
to the petitioner. The
respondent was not pleased with
the decision of the trial High
court so he appealed against
same to the Court of Appeal. The
Court of Appeal therefore
reversed the decision of the
trial High court
HELD
We
again endorse the Court of
Appeal’s directive that the
sharing of the properties on
50-50 basis must be left to the
parties and their lawyers to
decide and that the registrar of
the trial High court must not be
involved in it. We find wisdom
in that direction. We, however,
regret the break down in what
hitherto appeared to be a happy
and blissful marriage, judging
from the way and/or
understanding with which the
parties, as couple, jointly
acquired all those several
properties. Though it is said
that love rejected leads to
rancorous animosity, we admonish
the parties to put aside any
rancour, bitterness and/or
differences between them and
show once more love and maturity
in the sharing of their marital
properties, with the same zeal,
understanding and courage that
they mustered in acquiring all
the properties during the
subsistence of their marriage.
Appeal dismissed; cross-appeal
allowed.
STATUTES REFERRED TO IN JUDGMENT
Companies Act, 1963 [Act 179]
Conveyancing Act, 1973 [NRCD
175]
Companies Act, 2019 [Act 992])
Owusu-Asiedu vrs Adomako and
Adomako [2007-2008] SCGLR 591
CASES REFERRED TO IN JUDGMENT
FORI v AYIREBI [1966] GLR 627 –
SC;
QUAGRAINE v ADAMS [1981] GLR 598
– CA
TAKORADI FLOUR MILLS v SAMIR
FARIS [2005-2006] SCGLR 882
RAMIA v RAMIA [1981] GLR 275 –
CA
KUSI & KUSI v BONSU [2010] SCGLR
60, SC
AFRICAN DISTR. CO LTD v CEPS
[2011] 2 SCGLR 955
SALOMON v SALOMON & CO. LTD
[1897] A.C. 22;
MORKOR v KUMA (East Coast
Fisheries case) [1998-99] SCGLR
620
MENSAH V MENSAH [1998-99] SCGLR
350;
MENSAH v MENSAH [2012] 1 SCGLR
391
BOAFO V. BOAFO [2005-2006] SCGLR
705
ACHORO and Another v AKANFELA
and Another [1996-97] SCGLR 209
KOGLEX LTD (No. 2) v FIELD
[2000] SCGLR 175
GREGORY v TANDOH IV & HANSON
[2010] SCGLR 971
BOOKS REFERRED TO IN JUDGMENT
Black’s Law Dictionary, Ninth
Edition, edited by Bryan A.
Garner
GHANA LAND LAW AND CONVEYANCING’
by B. J. da Rocha & CHK Lodoh, 2nd
edition
LAND LAW, PRACTICE AND
CONVEYANCING IN GHANA, by
Dennis Dominic Adjei 2nd
edition
CONTEMPORARY TRENDS IN THE LAW
OF IMMOVABLE PROPERTY by Yaw D.
Oppong
DELIVERING THE LEADING JUDGMENT
APPAU, JSC:-
COUNSEL
O. K. OSAFU-BUABENG FOR THE
PETITIONER/RESPONDENT/APPELLANT.
EDWARD ANOKYE FOR THE
RESPONDENT/APPPELLANT/RESPONDENT
APPAU, JSC:-
My Lords,
the appeal before us is the
culmination of what, prima
facie, appeared to be a simple
matrimonial cause ignited by the
woman in the marriage (as
petitioner) against her husband
(the respondent), for the
dissolution of their ordinance
marriage. The second and last
relief the petitioner asked for,
apart from the dissolution, was
an order for the
custody
or maintenance (as she put
it), of the two issues in the
marriage. This second or last
relief of the petitioner, which
respondent also prayed for in
respect of the younger child in
his cross-petition, became
redundant in the course of the
trial, when all the two issues
in the marriage attained
adulthood. Petitioner did not
seek any relief on property
settlement, as her case was that
she never acquired any property
jointly with the respondent
during the subsistence of the
marriage, which needed to be
shared. The only thing she said
she had in common with
respondent was a limited
liability company called NAYAK
COMPANY LTD
which,
according to her, the two of
them established as the only
shareholders and directors with
fifty percent (50%) shares each.
However, as things turned out to
be, the petition assumed a
complex form resulting in its
long journey to this apex Court,
as a result of the respondent’s
answer or reaction to it.
In this
answer, the respondent did not
challenge the petitioner’s call
for the dissolution of the
marriage aside of the reasons
behind the call. He however,
denied petitioner’s assertion
that they never jointly acquired
any properties during the
subsistence of the marriage.
He
contended that apart from NAYAK
CO. LTD and another company
called RASHIDA LTD, which the
two of them formed, they jointly
acquired several other
properties; some in his name,
some in petitioner’s name and
others in their joint names. He
mentioned fourteen (14)
different properties, which he
claimed the two acquired jointly
in the course of their
thirty-two (32) years of
marriage, mainly through the
operations of their two
companies.
He
accordingly cross-petitioned for
the dissolution of the marriage,
an
order for custody of their
younger child who was then
sixteen (16) years old and then,
an order for the distribution of
all the properties jointly
acquired by them as itemized
under paragraph (3) of his
answer to the petition. It was
this answer and cross-petition
by the respondent that jolted
the petitioner to admit for the
first time that she indeed
acquired properties jointly with
the respondent. She then went
ahead to explain that some of
the properties they acquired
jointly, which the respondent
had included in his list, were
ceded to her by the respondent
upon an agreement between them
some years back so those
properties belonged to her
exclusively and could not be
shared. The remaining properties
belonged to their jointly-owned
company NAYAK COMPANY LTD in
which they held 50% shares each.
This was what petitioner said
under paragraphs 3 and 4 of her
Reply to respondent’s answer: -
“3. In further answer hereto,
the petitioner says the
properties specifically
designated at paragraph 3 (a),
(b), (c), (d), (h) & (j) and the
titles vested therein are
exclusively vested in the
petitioner and this was even
confirmed by the respondent in a
document prepared and signed by
the respondent.
4. The petitioner says that
properties designated at
paragraphs 3 (e), (g), (i), (k),
(l), (m) & (n) all belong to
NAYAK COMPANY LTD wherein
company both the petitioner and
respondent have 50% equal
shares.”
In our view, no issue concerning
the distribution of properties
owned by NAYAK COMPANY LTD or
any other company belonging to
the parties, did arise from the
parties’ pleadings. The
petitioner never prayed for that
neither did the respondent. In
fact, the petitioner did not
pray for the distribution of any
property at all between her and
the respondent. It was the
respondent who prayed for the
distribution of the properties
he listed under paragraph 3 of
his answer and in her reply,
petitioner claimed exclusive
ownership to some of those
properties. It is this claim of
exclusive ownership of some of
the properties by the
petitioner, but not the sharing
of their jointly-owned
properties, which has been the
bone of contention between the
parties from the trial stage to
this final stage of appeal.
These properties were described
as: “No. 233 Airport West,
Accra; another building at
Airport West (i.e. H/No. 21
Aviation Rd, Accra); one
three-storey building at
Adabraka Official Town (i.e.
29 Official Rd, Adabraka);
the building in Kumasi (i.e.
H/No. OTB 108 & 109 Adum, Kumasi);
the buildings in Sekondi; all
the lands at Elmina and New
Ashongman in Accra.”
{Emphasis ours}
From the totality of the
evidence on record, the
petitioner did not deny the fact
that the properties she claimed
belonged to her exclusively, as
scantly described above, were
acquired by both of them; i.e.
(petitioner and respondent)
jointly during the subsistence
of their marriage. Her case was
that the said properties were
ceded to her as exclusive owner
by the respondent per a document
she tendered in evidence as
Exhibit “E”. This means she
became owner of what hitherto
belonged to the two of them
jointly, by virtue of Exhibit
“E”.
The respondent who did not deny
the authorship of Exhibit “E”
explained that he was compelled
to execute the said document at
midnight in their bedroom from
harassments of the petitioner,
in order to maintain peace in
their relationship and that he
did not intend it to have any
legal binding force. He
buttressed his point with the
explanation that since he
unilaterally executed the
document in 2002, he had
continued to exercise ownership
and control over the said
properties like the collection
of rents from tenants, etc. to
date without any challenge from
petitioner. In fact, the
petitioner admitted this fact in
her evidence during
cross-examination by counsel for
the respondent. According to
her, apart from the Kumasi, Adum
House; i.e. OTB 108 & 109, which
she possesses, the respondent
has been in charge of the other
properties since the execution
of Exhibit ‘E’ in 2002.
This was the dialogue that took
place between petitioner and
respondent’s counsel on 17th
June 2014 during
cross-examination; i.e. twelve
(12) years after the authorship
of Exhibit ‘E’. It
appears at page 397-398, Volume
One of the record of appeal
(RoA) and it is that
cross-examination that brought
to close the case of the
petitioner:
“Q. Have a look at Exhibit ‘E’.
So, in spite of Exhibit E, the
Respondent continues to be in
charge of all your properties?
A. Not all because if you say
them the Kumasi building is
included.
Q. So it is only the Kumasi one
that he was not in charge of?
A. Yes. This is because he was
my husband so he could be in
charge of any property. Now that
I am not married to him he
cannot be in charge of my
properties.
Q. Since you divorced him in
September 2009, the respondent
has continued to collect rent on
all the properties except the
Kumasi one.
A. That is true, that is why I
have brought the matter to court
to collect my property for me.
{Emphasis ours}
Q. All the properties that you
have acquired either in the name
of Nayak Limited, in your name,
in the name of the respondent or
in your joint names have been
acquired during the subsistence
of the marriage.
A. Yes, and it is because of the
understanding between us that he
has put it on paper and I have
brought it to court.
{Emphasis ours}
Q. I put it to you that you are
not entitled to your reliefs.
A. That is not true.”
We have to emphasize that the
petitioner did not file this
petition to claim any property
from respondent contrary to her
evidence in cross-examination as
quoted above. Again, she neither
prayed nor sought any relief for
the enforcement of Exhibit
‘E’. The trial High court,
having found as a fact that all
the properties mentioned by the
parties in their pleadings were
acquired during the subsistence
of their marriage, set out to
determine the legal strength of
Exhibit ‘E’. The bone of
contention in the whole trial
was therefore on Exhibit ‘E’,
which both the trial High Court
and the Court of Appeal
interpreted differently,
culminating in the instant
appeal before us. Whilst the
petitioner contended that by
executing Exhibit ‘E’,
the respondent had ceded his
interest in the properties
mentioned therein to her, the
respondent’s case was that the
mere execution of Exhibit ‘E’
did not transfer ownership of
the properties mentioned therein
to the petitioner.
The decision of the trial High
Court
The trial High court, in the
evaluation of the evidence
before it, came to the
conclusion that Exhibit ‘E’
was binding on the respondent,
therefore the properties and
businesses mentioned therein as
having been ceded to the
petitioner belonged exclusively
to the petitioner.
According to the trial court,
Exhibit ‘E’ was an agreement
between the respondent and the
petitioner and since the
respondent did not deny its
voluntary authorship, he was
bound by it. Again, respondent
did not challenge the
authenticity of Exhibit ‘E’
during cross-examination so
there was no need for petitioner
to call further evidence on
same. The court said;
“since the respondent has signed
Exhibit E and the petitioner has
approved of it, it implies that
both of them have agreed that
the document should be binding
on them”. In response to
respondent’s argument that
Exhibit ‘E’ could not convey
landed property, the trial court
said ordinary incidences of
commerce have no application in
marital relationships so that
argument was untenable. The
trial court relied on the cases
of
FORI v AYIREBI [1966] GLR 627 –
SC; QUAGRAINE v ADAMS [1981] GLR
598 – CA & TAKORADI FLOUR
MILLS v SAMIR FARIS [2005-2006]
SCGLR 882, to buttress
its decision.
With regard to the other
properties over which there was
no dispute between the parties,
the trial court said those
properties must be shared
equally on 50-50 basis. The
court directed further that
since some of the properties
were not properly identified
during the trial, thus making
their distribution difficult,
the Registrar of the trial court
was to cause all the said
properties to be valued before
distribution.
Appeal to the Court of Appeal
The respondent was not pleased
with the decision of the trial
High court so he appealed
against same to the Court of
Appeal
on seven grounds. Apart from
ground 1, which was the usual
omnibus ground that the judgment
was against the weight of
evidence, the remaining six
grounds of appeal all centred on
the legality or otherwise of
Exhibit ‘E’ and its binding
nature in the transfer of landed
properties. In fact, the bone of
contention in the appeal was
purely a question of law as
there were no serious factual
differences between the parties
with regard to the acquisition
of the properties. This was;
whether or not Exhibit ‘E’,
without more, could validly
convey the properties named
therein to the petitioner as
held by the trial court.
The Decision of the Court of
Appeal
The Court of Appeal considered
the submissions of both parties
in the light of case law and
statute; i.e. the
Conveyancing Act, 1973 [NRCD
175] and the then
Companies
Act, 1963 [Act 179], (now
amended and consolidated by the
Companies Act, 2019 [Act 992])
and came to the conclusion
that Exhibit ‘E’ per se,
failed to qualify as a document
or deed that could transfer the
properties listed therein to the
petitioner.
The Court
of Appeal therefore reversed the
decision of the trial High court
to the effect that the
properties mentioned in
Exhibit ‘E’ exclusively
belonged to the petitioner.
According to the Court of
Appeal, apart from the Kumasi,
Adum house numbered OTB 108
&109, all the properties
mentioned in Exhibit ‘E’
belonged to the parties jointly
and should be shared equally on
the ‘equality is equity’
principle. The Court of Appeal
again reversed the order of the
trial High court which directed
the registrar of the court to
make certain enquiries about
some of the properties to be
distributed. This was what the
Court of Appeal said at page 13
to 14 of its judgment:
“There is no doubt that Exhibit
‘E’ sought to convey landed
properties to the petitioner.
The question to ask is; did this
document signed by the
respondent, succeed in conveying
the properties listed therein
according to law? The answer is
to be found by a perusal of the
Conveyancing Act, NRCD 175 of
1973. Section 40 of the
Conveyancing Act [NRCD 175]
provides that: -
1. A conveyance shall be
executed in the presence of and
attested to by at least one
witness.
2. Where an individual executes
a conveyance that individual
shall sign or place a mark of
the individual on it, and
sealing shall not be necessary.
3. Where a company to which the
Companies Act, 1963 [Act 179]
applies executes a conveyance,
that conveyance shall be
executed in accordance with the
Companies Act, 1963.
In the case of
Owusu-Asiedu vrs Adomako and
Adomako [2007-2008] SCGLR 591,
Date-Bah, JSC explained the
position as; ‘An
instrument that is sealed and
delivered would be recognized as
a binding
deed. In addition, an
instrument that is signed and
attested would be recognized as
a deed if it makes it clear on
its face that it is intended to
be a deed. Thus the formal
requirement of deeds, as far as
individuals are concerned are as
follows: A deed need not be
sealed but a deed that is not
sealed must be signed and the
signature must be witnessed and
attested. The deed must also
make it clear on its face that
it is intended to be a deed. An
attested and witnessed signature
will be recognized by the courts
as a substitute for the
requirement for a seal.’
An examination of Exhibit ‘E’
reveals that the document is
neither attested nor witnessed.
It therefore fails in material
particular to the Conveyancing
Act, [NRCD 175]. The document
referred to by the trial judge
as having been signed by the
respondent is not an ordinary
document the authorship of which
the respondent is denying but a
document which the law (Conveyancing
Act) requires to be made in a
particular form (attested and
witnessed). The purported
conveyance to the petitioner
therefore fails as Exhibit E is
of no effect and does not
transfer any property to the
petitioner. Exhibit ‘E’ also
sought to convey landed
properties belonging to or
registered in the name of Nayak
Limited by the sole act of the
respondent without a
resolution of the board of
directors. Any such
conveyance is also void as not
being in tandem with the
provisions of the Companies Act,
[Act 179]. In effect, the
holding by the trial judge that
Exhibit E is valid and binding
on the respondent and that the
properties ceded to the
petitioner are effective, is
wrong in law and are hereby
dismissed notwithstanding that
the parties are man and wife.”
The Court of Appeal, in ordering
for the sharing of the
properties on a 50-50 basis,
left the sharing to the parties
and their lawyers. The Court
held, per Ofoe, J.A. at page 32
of its judgment as follows:
“A lot of inconvenience and at
times confusion may arise from
such court orders directing
valuation and sale of jointly
owned properties. It is
legitimate to think of the
parties and their lawyers more
capable of effecting the
distribution after they have got
the court’s order, simply
ordering that the properties be
distributed equally….In the case
before us, there are no
particulars at all of these
several landed properties. All
we have are their house numbers
and location. I am of the view
that this is a case where the
parties should be given simply
the order to distribute all the
jointly owned properties in
50-50 proportions as found by
the trial court and this court.
Consequently the orders the
trial judge made engulfing the
registrar in the distribution is
hereby set aside.”
{See page 757 of the RoA}
Appeal and Cross-Appeal to the
Supreme Court
My Lords, the petitioner has
come before us with the judgment
of the Court of Appeal to be
impeached. Notwithstanding the
grounds of Appeal filed, the
main contention of the
petitioner/appellant in her
appeal was that the Court of
Appeal erred in holding that
Exhibit E’ was not a valid
legal document that could
effectively transfer the
properties mentioned therein to
the petitioner. She again
contended in her last ground of
appeal that the Court of Appeal
erred in distributing equally in
a 50–50 proportion, the
matrimonial home at Airport
Residential Area when, as a
matrimonial home, it should have
been ceded to or settled on the
female spouse. The petitioner
submitted further, citing the
case of
RAMIA v RAMIA [1981] GLR 275
- CA that the age old
position of the law was that
where a husband makes a purchase
or an investment in the name of
his wife, there is the
presumption of advancement of
the property in favour of the
wife. So therefore, the
acquisition of the matrimonial
home at Airport West, Accra by
the respondent in the sole name
of the petitioner, which
pre-dated the incorporation of
NAYAK COMPANY LTD, was a pointer
to the fact that it was so done
with the express intention of
benefitting the petitioner. She
however, did not appeal against
the reversal of the trial
court’s order to the Registrar
to investigate and evaluate
certain properties before
distribution.
The respondent has also
cross-appealed against the Court
of Appeal’s decision, which
declared petitioner the
exclusive owner of the Kumasi,
Adum House, i.e. OTB 108 & 109.
According to the respondent, the
Kumasi, Adum house was acquired
by NAYAK COMPANY LTD but not by
either the petitioner or Nayak
Fisheries Limited as found by
the Court of Appeal.
What is Exhibit ‘E’ which is the
bone of contention in this case?
Exhibit ‘E’
which is dated 16/8/2002 is a
unilateral document prepared by
the respondent in his
handwriting. It is headed:
“PROPERTY DECLARATION BY
ALHAJI ABDUL RASHID” and
it reads as follows:
“I, Alhaji Abdul Rashid, wish to
declare as follows:
1.
That I have ceded all ownership
interest of building number 233
Airport West, another building
at Airport West. One three-
storey building at Adabraka
official town, the building in
Kumasi, the buildings in Sekondi,
all the land at Elmina and New
Ashongman in Accra to Nana Yaa
Konadu.
2.
Nayak Plaza, One building at
Achimota. The Cold Store at Tema
and the One storey building at
New Town will be jointly owned.
3.
All the businesses has (sic)
been ceded to Nana Yaa Konadu
with the exception of the Fabric
business which will be jointly
owned.
4.
CARS – All the cars with the
exception of the NISSAN Patrol
and two Nissan Pick-ups has
(sic) also been ceded to Nana
Yaa Konadu.
KEEP THEM IN PEACE.
ALHAJI ABDU RASH
(Signed)”
Arguments by parties on the
enforceability or otherwise of
Exhibit ‘E’
On the main ground of appeal,
which is the enforceability or
otherwise of Exhibit ‘E’,
the petitioner who is the
appellant herein, contended that
Exhibit ‘E’ must be seen
as a declaration against
interest by the respondent
instead of as a deed or document
conveying title in property
within the meaning of section 40
of the Conveyancing Act, [NRCD
175], particularly because the
parties to the document were
married couple. She referred to
the cases of
KUSI &
KUSI v BONSU [2010] SCGLR 60, SC
and AFRICAN DISTR. CO LTD
v CEPS [2011] 2 SCGLR 955
to support her submissions.
The respondent, on the other
hand, prayed for the dismissal
of petitioner’s appeal.
According to the respondent,
Exhibit ‘E’ is a document
which purports to convey
interest in landed property
including properties owned by a
limited liability company NAYAK
COMPANY LTD, registered under
the
Companies Act, 1963 [Act 179].
It should therefore have
been witnessed and attested to,
notwithstanding the fact that it
was a transaction between a man
and wife, but it wasn’t. He
contended that notwithstanding
the execution of Exhibit ‘E’
as far back as 2002, he
continued to exercise control
over all the properties
mentioned therein as having been
ceded to the petitioner. This
means that the petitioner did
not approve of Exhibit ‘E’
as she never took any steps to
have the said properties
properly transferred into her
name if indeed, she knew the
respondent intended Exhibit
‘E’ to assume a binding
relationship between him and the
petitioner.
Is Exhibit ‘E’ legally
enforceable?
Clearly, the petitioner’s
argument in this appeal is
buttressed erroneously on the
standpoint that Exhibit ‘E’
is either an agreement or a
contract between her and her
husband the respondent. This was
part of her testimony in-chief
in respect of the Kumasi, Adum
house when she was led to
testify by her lawyer:
“Q. Do you have anything else to
show the court that the property
was solely acquired by you?
A. Yes. Apart from the exhibits
tendered yesterday, in the
course of the marriage there was
agreement between us in respect
of the properties those that are
solely mine and those that are
solely for the respondent and
this was reduced into writing. I
have the said document which I
will want to tender in
evidence…”
This document turned out to be
Exhibit ‘E’. The exhibits
which petitioner was referring
to in her testimony quoted above
were Exhibits ‘A’, ‘B’, ‘C’ and
‘D’. Exhibit ‘A’ is a copy of
the certificate of Incorporation
of Nayak Fisheries; Exhibit B is
a photocopy of part of the
second schedule of the Companies
Code, 1963 [Act 179] (now
repealed); Exhibit ‘C’ is a copy
of the certificate to commence
business issued to Nayak
Fisheries and Exhibit ‘D’ is a
copy of a building permit
application form in respect of
the Airport West matrimonial
house bearing the petitioner’s
name as applicant. These
exhibits had nothing to do with
the Kumasi, Adum House. So
impliedly, petitioner’s
exclusive claim to the Kumasi,
Adum house was hinged mainly on
Exhibit ‘E’.
The fact is that any document in
writing by which an interest in
land is transferred is a
conveyance and must comply with
the provisions of the
Conveyancing Act, 1973 [Act
175]. It is immaterial whether
or not it was a transaction
between a man and a wife. The
petitioner’s argument that
Exhibit ‘E’ should be
examined under a different legal
lens because it witnesses a
document between a man and a
wife is untenable. So far as
Exhibit ‘E’ purported to
transfer interest in land, it is
a conveyance and must be subject
to the provisions of the
Conveyancing Act. {See
sections 1, 40 and 45 of the
Conveyancing Act, 1973 [Act
175]}. To convey simply
means to transfer or deliver
something such as a right or
property to another, especially
by deed or other writing.
A conveyance is therefore
nothing more than a voluntary
transfer of a right or any
property to
another– {Page
383 of
Black’s Law Dictionary, Ninth
Edition, edited by Bryan A.
Garner}.
Exhibit ‘E’ falls within the
definition of ‘other
writing’, as used above or
‘other assurance’, as
used under section 45 of Act
175.
Though Exhibit ‘E’ is a
declaration purporting to
transfer to the petitioner
ownership in some properties,
mostly landed properties not
properly identified, it was
signed by only the declarant
without any witness or
attestation whatsoever, contrary
to section 40 of Act 175. It was
therefore neither a deed nor a
document capable of transferring
interest in land to another. At
best, it was only a declaration
of intent which, in the eye of
the law, did not create any
legal relations between the
respondent and the petitioner.
It is unfortunate that the trial
High court bought into the view
that Exhibit ‘E’ was a
document witnessing an agreement
between the respondent and the
petitioner so respondent was
bound by his own words. This was
what the trial judge said at
page 16 of his judgment:
“The respondent further says
that Exhibit ‘E’ does not
conform to any form of
alienation of landed property
known to law. It was not sworn
to, there was no witness and
some of the properties were
company properties which cannot
be transferred that way. That is
some of the properties belong to
Nayak Limited so they cannot be
transferred in that manner.
Exhibit ‘E’ therefore conveyed
nothing legally. I wish to state
that ordinary incidents of
commerce have no application in
marital relations between
husband and wife. In marital
relations, parties do not need
witnesses to take certain
decisions. When married couples
are (sic) taken decisions in
their bedrooms they do not need
witnesses around. It will rather
be the word of one party against
the other. Also in
the instant case the parties are
the only shareholders and
directors of Nayak Limited who
are supposed to take decisions
on behalf of the company. Since
the Respondent has signed
Exhibit ‘E’ and the Petitioner
has approved it, it implies that
both of them have agreed that
the document should be binding
on them”. {See p. 538
of Vol. One of RoA}.
The above-quoted legal reasoning
of the trial judge was seriously
flawed apart from the factual
errors contained therein. In the
first place, there is nothing in
Exhibit ‘E’ that shows
that it was ever approved by the
petitioner as the trial judge
contended. The petitioner
neither signed any portion, nor
approved of it in any form. Exhibit
‘E’ was far from being an
agreement or contract between
the parties so the authorities
cited by the trial court to
support its reasoning, were
inapplicable. If the respondent
meant Exhibit ‘E’ to
assume a binding nature, he
would have taken the necessary
steps to have the properties
properly transferred into
petitioner’s name.
Again, the fact that the parties
are the only shareholders and
directors of their limited
liability company does not mean
they can handle the affairs of
the company anyhow without
recourse to the company law
under which the company was
registered. The authorities are
legion that shareholders of a
limited liability company are
not the employers of the staff
of the company. The same applies
to directors. The employer is
the Company itself, which is
distinct from the shareholders
and directors. In this capacity,
a company is a corporate being
with an independent legal
existence, which can do or may
do everything that a natural
person might do. It can sue and
be sued, can own property, can
owe and be owed. It is thus
independent and totally distinct
from the persons who constituted
it –
SALOMON v SALOMON & CO. LTD
[1897] A.C. 22; MORKOR v KUMA
(East Coast Fisheries case)
[1998-99] SCGLR 620.
The respondent therefore,
could not divest properties of
their company per Exhibit ‘E’
without complying with the
provisions of the Companies Act.
The fact is that, Exhibit ‘E’
cannot pass title in the
properties mentioned therein to
the petitioner as correctly
explained by the Court of Appeal
in its judgment of 8th
June, 2016 as quoted supra. The
appeal in respect of the
validity or otherwise of
Exhibit ‘E’ is accordingly
dismissed.
Did the Court of Appeal err in
ordering the 50-50 sharing of
the Matrimonial Home?
On the last ground of appeal by
the petitioner that the
matrimonial home at Airport West
should have been settled on her
alone, the petitioner buttressed
her arguments on two main
points. The first was that since
the property was acquired by the
respondent in her name from day
one, the respondent intended it
to be her exclusive property.
The second was that as the
female spouse, the matrimonial
house should have been ceded to
her by the court as that is the
legal norm.
On the first point, the
petitioner based her arguments
on the presumption of
advancement, citing the
authority of Ramia v Ramia
(supra) which says that where
property is acquired by a
husband in the name of his wife
it is presumed the husband
intended the property to belong
exclusively to the wife. See
also ‘GHANA
LAND LAW AND CONVEYANCING’
by B. J. da Rocha & CHK Lodoh, 2nd
edition, page 113-114 and then
Dennis Dominic Adjei’s ‘LAND
LAW, PRACTICE AND CONVEYANCING
IN GHANA, 2nd
edition, published by Adwinsa
Publications.
Dennis
Dominic Adjei in his book
referred to supra stated at page
246 thus: “The law is settled
that there is a presumption of
advancement in favour of a wife
in respect of a property bought
in her name by the spouse”.
This presumption, however, as
rightly indicated by the author,
is rebuttable.
We agree in principle that the
pronouncement above used to be
the common law position on the
issue under consideration, i.e.
once property is purchased by
a husband in the name of his
wife it is presumed the husband
intended the property to belong
solely to his wife. However,
as Yaw D.
Oppong rightly commented in
his recent book, ‘CONTEMPORARY
TRENDS IN THE LAW OF IMMOVABLE
PROPERTY’, published in
2019 by Black Mask Publications
Ltd at page 715, the
applicability of this common law
principle or concept of
‘ADVANCEMENT’ to married couples
in modern day Ghana is now
moribund, in view of the radical
evolution of the law on property
rights of spouses. As the author
rightly stated, under the
current state of the law, once
property is acquired by a couple
during the subsistence of their
marriage, there is a presumption
that the property was jointly
acquired and therefore jointly
owned, irrespective of the
spouse in whose name it was
acquired – {See
Mensah v Mensah [1998-99] SCGLR
350; Boafo v. Boafo [2005-2006]
SCGLR 705 and Mensah v Mensah
(No. 2) cited infra and then
article 22 (3)(b) of the
Constitution, 1992.
In the instant case, a greater
number of the properties
acquired by the parties were
acquired in the name of the
respondent. Notwithstanding this
fact, the respondent admitted
that the properties belonged to
him and the petitioner jointly
since they were acquired during
the subsistence of their
marriage. Since the respondent
who purchased the matrimonial
house, has vigorously challenged
or rebutted the petitioner’s
claim of exclusive ownership to
same by virtue of it being
purchased in her name, the same
principle on property rights of
spouses must also apply to it so
long as that one too was
acquired during the subsistence
of the marriage, unless there
was a clear intention to the
contrary, which is absent in
this case.
On the second point that
matrimonial homes are normally
settled on female spouses during
divorce and for that matter the
Airport matrimonial home should
have been ceded to her, the
petitioner did not provide any
authority to support that
contention. Though the property
stood in petitioner’s name, she
could not establish her
exclusive ownership to same.
Having found that the Airport
West matrimonial home was also
acquired by the parties jointly
during the subsistence of the
marriage, just like all the
other properties mentioned in
their pleadings, the Court of
Appeal did not err in concluding
that it belonged to them
equally. As to how the
properties were to be shared on
a 50-50 basis, the Court of
Appeal left that to the
discretion of the parties and
their lawyers as quoted above.
That ground of appeal also
fails.
The Cross-appeal
The cross-appeal was basically
that the Court of Appeal erred
in declaring the petitioner as
the exclusive owner of the
Kumasi, Adum House OTB 108 &
109. According to the
respondent, apart from exhibits
3 and 3A which he tendered to
establish that the said house
was sold to NAYAK COMPANY LTD by
Divestiture Implementation
Committee (DIC) and therefore
belonged to NAYAK COMPANY LTD
but not to either petitioner or
Nayak Fisheries, the petitioner
did not tender anything to
suggest in the least that she is
the owner of the house. The
Court of Appeal therefore erred
in concluding that the Adum
house belonged to the
petitioner. The petitioner, on
the other hand, contended that
the Court of Appeal did not err
when it affirmed the trial High
court’s finding that the Kumasi,
Adum House belonged exclusively
to the petitioner so this Court
should not disturb that finding.
We have considered the
statements made by the parties
in the cross-appeal vis-à-vis
the evidence on record and we
are strongly of the view that
the Court of Appeal’s finding
that the Kumasi, Adum house was
acquired by Nayak Fisheries and
therefore belonged exclusively
to the petitioner was seriously
flawed. In fact, that finding
was not supported by the
evidence on record. The
petitioner did not tender in
evidence any document of
ownership either in her name or
in the name of Nayak Fisheries
Ltd throughout the trial. As
stated by the trial High court
in its judgment, Hse No. OTB 108
& 109, Adum, Kumasi was the
subject-matter of a dispute
between the parties before a
High Court in Kumasi at the time
this petition was before the
trial court. The trial court
therefore did not make any
positive or specific
pronouncement on that house. The
trial High court did not make
any finding that the Adum house
was acquired exclusively by
either the petitioner or Nayak
Fisheries Ltd. The High court’s
decision was that since the
respondent had ceded his
interest in the Adum property
together with the others
mentioned in Exhibit ‘E’
to the petitioner, petitioner
was the owner as respondent was
bound by Exhibit ‘E’.
After the Court of Appeal had
concluded that Exhibit ‘E
had no binding effect on the
respondent as it lacked the
legal strength to convey the
properties mentioned therein to
the petitioner, there was
nothing to support the Court of
Appeal’s finding that House No.
OTB 108 & 109, Kumasi, Adum
belonged exclusively to the
petitioner. The High Court made
no such finding so the Court of
Appeal’s finding cannot be a
concurrent one to any finding by
the trial High court on that
issue as contended by the
petitioner. Even if the Court of
Appeal’s finding were to be
concurrent to that of the trial
High court, this Court, as the
second appellant Court, could
still interfere with that
finding where it was established
with absolute clearness that
some blunder or error resulting
in a miscarriage of justice was
apparent in the way in which the
two lower courts had dealt with
the facts. See the cases of
ACHORO
and Another v AKANFELA and
Another [1996-97] SCGLR 209
and KOGLEX LTD (No. 2) v
FIELD [2000] SCGLR 175 @
176-177; GREGORY v TANDOH IV &
HANSON [2010] SCGLR 971@
975.
In fact, the respondent has
demonstrated that there was a
serious blunder in the
conclusion of the Court of
Appeal with regard to the Kumasi,
Adum House. If Exhibit ‘E’
is discounted, there is nothing
evidential that supports
petitioner’s exclusive claim to
the OTB Adum, Kumasi house. If
the petitioner’s contention that
the Kumasi house belonged to her
exclusively was true, then she
should have challenged its
inclusion in Exhibit ‘E’
as one of the properties the
respondent said he had ceded to
her. This is because the
respondent could not have ceded
to her what did not actually
belong to him. The only
unchallenged evidence on record
is that the said house was sold
to NAYAK COMPANY LTD by D.I.C.
Exhibits 3 and 3A bear testimony
to this unchallenged fact. There
was no contrary testimony that
the said house was either sold
to Nayak Fisheries or to the
petitioner. There is also no
evidence on record to suggest
that the house was ever
transferred to either the
petitioner or Nayak Fisheries by
NAYAK COMPANY LTD. The
respondent’s claim that the
house belonged to NAYAK COMPANY
LTD was therefore more probable
than petitioners exclusive claim
to it, and we so find. We
therefore reverse the Court of
Appeal’s decision that the
Kumasi, Adum house belonged
exclusively to the petitioner as
same was perverse. In our view,
it is one of the properties
acquired in the name of their
jointly owned company NAYAK LTD
and belongs to them equally. It
must therefore be resolved in
accordance with company law just
like the other properties held
in the names of their companies
including NAYAK LTD and NAYAK
FISHERIES LTD. We accordingly
allow the respondent’s
cross-appeal.
Conclusion
This Court is ad idem
with the Court of Appeal that
all the properties acquired
jointly by the parties during
the subsistence of their
marriage, which properties are
either in the individual names
or the joint names of the
parties, including those
mentioned in Exhibit ‘E’,
as having been ceded to the
petitioner, belong to the
parties equally and must be
distributed on the equality
principle as explained by our
able and distinguished brother
Dotse, JSC in
MENSAH
v MENSAH [2012] 1 SCGLR 391
@ 394 in the
following words: - “The
time has come for this Court to
institutionalize the principle
of ‘Jurisprudence of Equality’
in the sharing of marital
property by spouses, after
divorce, of all properties
acquired during the subsistence
of a marriage in appropriate
cases. This is based on the
provisions in articles 22 (3)
and 33 (5) of the 1992
Constitution, 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. The wife should be
treated as an equal partner even
after divorce in the devolution
of the properties…” {See
also Mensah v Mensah [1998-99]
SCGLR 350 and Boafo v Boafo
[2005-2006] SCGLR 705}.
We again endorse the Court of
Appeal’s directive that the
sharing of the properties on
50-50 basis must be left to the
parties and their lawyers to
decide and that the registrar of
the trial High court must not be
involved in it. We find wisdom
in that direction. We, however,
regret the break down in what
hitherto appeared to be a happy
and blissful marriage, judging
from the way and/or
understanding with which the
parties, as couple, jointly
acquired all those several
properties. Though it is said
that love rejected leads to
rancorous animosity, we admonish
the parties to put aside any
rancour, bitterness and/or
differences between them and
show once more love and maturity
in the sharing of their marital
properties, with the same zeal,
understanding and courage that
they mustered in acquiring all
the properties during the
subsistence of their marriage.
Appeal dismissed; cross-appeal
allowed.
Y. APPAU
(JUSTICE OF THE SUPREME COURT)
V. J. M. DOTSE
(JUSTICE OF THE SUPREME COURT)
G. PWAMANG
(JUSTICE OF THE SUPREME COURT)
A.
M. A. DORDZIE (MRS.)
(JUSTICE OF THE SUPREME COURT)
PROF. N. A. KOTEY
(JUSTICE OF THE SUPREME
COURT)
COUNSEL
O. K. OSAFU-BUABENG FOR THE
PETITIONER/RESPONDENT/APPELLANT.
EDWARD ANOKYE FOR THE
RESPONDENT/APPPELLANT/RESPONDENT
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