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Matrimonial cause – Divorce –
dissolution of customary
marriage - Property jointly
acquired - Custody of children -
Matrimonial home – Maintenance -
lump-sum payment – Property
rights of spouses - Protection
of rights by Courts - Whether or
not the Court of Appeal err when
it reversed the order of the
trial High Court in respect of
the matrimonial house or the
settlement of one of the four
units of flats - Whether
or not the Court of Appeal err
when it affirmed the decision of
the trial High Court in awarding
an amount of money to the
Respondent by way of alimony or
compensation after the
dissolution of the marriage -
Article 18 of the 1992
Constitution of Ghana
HEADNOTES
This appeal originates from the
High Court in a
matrimonial cause initiated
by the man of the marriage as
Petitioner against the wife as
Respondent. The petitioner
prayed the trial court to
dissolve
the twelve-year-old
customary
marriage between him and the
Respondent. The Petitioner again
requested for
custody
of the two children of the
marriage The Respondent, in an
amended answer to the petition,
cross-petitioned and prayed for
five (5) reliefs against the
Petitioner and an order that the
Petitioner be made to foot the
cost of litigation. The trial
High Court granted the
Petitioner’s prayer for the
dissolution of the marriage but
dismissed the second one for
custody of the two children. The
court granted Respondent custody
of the children but allowed
Petitioner limited rights of
access to them. On Respondent’s
cross-petition, the trial High
Court granted the first three
(3) reliefs prayed for by the
Respondent. The trial Court made
an order that the matrimonial
home, which is one out of the
four units of flats built by the
Petitioner, be settled on the
Respondent, The Petitioner
appealed against the decision of
the trial High Court to the
Court of Appeal, The Court of
Appeal set aside the order of
the trial High Court settling
one of the four units of flats
on Petitioner’s Cantonment
property or plot of land on the
Respondent, Interestingly, this
judgment of the Court of Appeal,
did not find favour with the two
parties. Each of them was
aggrieved by different parts of
the decision so both appealed
against it on separate grounds
to this Court. It was the
Respondent who filed her appeal
first and the Petitioner later
cross-appealed.
HELD
LEADING JUDGMENT
We shall therefore refrain from
disturbing same but affirm it,
the Petitioner having failed to
demonstrate to us where the two
lower courts went wrong. In
effect, we find merit in the
decision of the Court of Appeal
dated 30th January,
2019 and affirm it in its
entirety. We accordingly dismiss
the appeal and cross-appeal
filed by the Respondent and
Petitioner respectively. We
decline to make any award as to
costs. Parties are to bear their
own costs of litigation.
DISSENTING OPINION
The only ground for the cross
appeal is that the Court of
Appeal erred when it upheld the
High Court’s award of
GHc5000,000 to the respondent as
lump sum payment without
considering the petitioner’s
case. The submission made in
support of this ground is that
the respondent prayed for Ghc
400, 000 lump sum payment. The
trial court granted her Ghc
500,000 without stating the
basis for the grant. The court
of Appeal affirmed the grant
without offering any basis
either. The trial court granted
Ghc100,000 to the respondent to
use to complete the uncompleted
matrimonial home she occupies
with the children. The court
went ahead to analyze the
evidence on the affluent life
style of the family which the
petitioner supported. The trial
court further said that it took
the stand as taken in the case
of Quartson v Quartson (supra)
that the respondent must have
some money to live on whilst she
reorganizes her life and went on
to grant the Ghc400,000 the
respondent prayed for as lump
sum payment. It is therefore not
the case that the trial court
offered no basis for the grant.
This court in my view has no
justifiable ground to interfere
with the discretion exercised by
the trial court in the award. I
would therefore dismiss the
cross petition.
STATUTES REFERRED TO IN JUDGMENT
1992 Constitution
Matrimonial Causes Act, 1971
[Act 367].
Evidence Act, 1975 NRCD 323
CASES REFERRED TO IN JUDGMENT
ACHORO v AKANFELA [1996-97]
SCGLR 209;
OBRASIWA II v OUT [1996-97]
MENSAH v MENSAH [2012] 1 SCGLR
391
MENSAH v MENSAH [1998-1999]
SCGLR 350,
QUARTSON v QUARTSON [2012] 2
SCGLR 1077;
ARTHUR (No.1) v ARTHUR (No. 1)
[2013-2014] SCGLR 543.
FYNN v FYNN & OSEI [2013-2014] 1
SCGLR 727.
DJIN v MUSAH BAAKO [2007-2008]
SCGLR 687
MENSAH v MENSAH [2012] 1 SCGLR
391
Boafo v. Boafo [2005-2006] SCGLR
705
RIMMER v RIMMER [1952] 1 QB 63
OBENG v ASSEMBLIES OF GOD
CHURCH, GHANA [2010] SCGLR 300
GREGORY v TANDOH IV & HANSON
[2010] SCGLR 971
FAGE UK LTD V CHOBANI UK LTD.
[2014] FSR 29
BOOKS REFERRED TO IN JUDGMENT
Black’s Law Dictionary
S. A. Brobbey JSC in his book
Practice and Procedure in the
Trial Courts and Tribunal of
Ghana (second Edition)
DELIVERING THE LEADING JUDGMENT
MAJORITY DECISION
APPAU, JSC:-
DISSENTING OPINION
DORDZIE (MRS.), JSC:-
COUNSEL
M.N.Y ACHIAMPONG (MRS.) ESQ FOR
RESPONDENT/RESPONDENT/APPELLANT
BRIGHT OTCHERE-AGYEKUM ESQ FOR
PETITIONER/ APPELLANT/
RESPONDENT/ CROSS-APPELLANT
THE
MAJORITY DECISION OF THE
COURT WAS DELIVERED BY APPAU JSC
APPAU, JSC:-
This appeal originates from the
High Court in a matrimonial
cause initiated by the man of
the marriage as Petitioner
against the wife as Respondent.
The petitioner prayed the trial
court to dissolve the twelve
year old customary marriage
between him and the Respondent.
The Petitioner again requested
for custody of the two children
of the marriage aged eleven (11)
and eight (8) years old. The
Respondent, in an amended answer
to the petition,
cross-petitioned and prayed for
five (5) reliefs against the
Petitioner. The first was that
the
matrimonial home,
which is one of four flats or
units of flats constructed by
the Petitioner on his
self-acquired plot of land at
Cantonments, Accra, should be
settled on her. In her second
relief, she prayed for a
lump-sum
payment of the sum of four
hundred thousand Ghana cedis
(GHc400,000.00) to her by the
Petitioner by way of alimony and
then thirdly, a monthly stipend
of two thousand Ghana cedis
(GHc2,000.00) as
maintenance for herself and
the two children. She again
prayed to be given two (2) out
of a chain of stores (number not
stated), on the Spintex Road,
Accra and then an order that the
Petitioner be made to foot the
cost of litigation.
The Decision of the High Court
The trial High Court granted the
Petitioner’s prayer for the
dissolution of the marriage but
dismissed the second one for
custody of the two children. The
court granted Respondent custody
of the children but allowed
Petitioner limited rights of
access to them. On Respondent’s
cross-petition, the trial High
Court granted the first three
(3) reliefs prayed for by the
Respondent. The trial Court made
an order that the matrimonial
home, which is one out of the
four units of flats built by the
Petitioner, be settled on the
Respondent.
The trial Court further ordered
Petitioner to pay the sum of
five hundred thousand Ghana
cedis (GHc500,000.00) to the
Respondent as alimony and one
thousand five hundred Ghana
cedis (GHc1,500.00) instead of
the GHc2,000.00 prayed for, as
monthly maintenance for the two
children who should be in the
custody of the Respondent.
The reason the trial court gave
for settling one of the four
units of flats on the Cantonment
plot on the Respondent was that
the said flats were acquired by
the Petitioner during the
subsistence of the marriage at a
time the Respondent was the one;
“nurturing the family unit
by cooking meals, cleaning,
doing laundry and all the
associated chores that the
stay-at-home partner in a
marriage is expected to do
without remuneration”.
The trial judge again made an
award of GHc500,000.00 to the
Respondent instead of the
GHc400,000.00 she prayed for,
the reason being that,
Respondent should use the
additional GHc100,000.00 to
complete the uncompleted
matrimonial house which the
court had settled on her. The
trial court, however, dismissed
the claim for two stores along
the Spintex road as the
Respondent could not lead any
evidence to establish the
existence of the alleged chain
of stores along the Spintex
road.
Appeal to the Court of Appeal
The Petitioner appealed against
the decision of the trial High
Court to the Court of Appeal.
The appeal was buttressed on six
(6) grounds as stated in the
amended notice of appeal. These
were:
a.
The learned trial judge erred in
law when, notwithstanding the
fact that the matrimonial home
was acquired before the marriage
and solely funded by the
Petitioner, she settled part of
it on the Respondent.
b.
The learned trial judge erred in
law when she awarded the amount
of five hundred thousand Ghana
cedis (Gc500,000.00) as lump sum
or alimony to the Respondent
without considering the means of
the parties.
c.
The learned judge erred in law
when she held that the
Petitioner should pay an amount
of one thousand, five hundred
Ghana cedis (GHc1,500.00) as
maintenance to the Respondent
without evaluating the means of
the parties.
d.
The learned trial judge erred
when she granted custody of the
children of the marriage to the
Respondent.
e.
The learned trial judge erred in
law when she relied on evidence
gathered at the locus inspection
which said evidence was not
formally admitted for petitioner
to cross-examine same thus
resulting in the Petitioner
suffering substantial
miscarriage of justice.
f.
The judgment of the Court is
against the weight of evidence.
The Decision of the Court of
Appeal
After a careful evaluation of
the evidence on record and
guided by the decisions of this
Court on factors appellate
courts must consider in
interfering with findings of
facts made by trial courts in
cases like
ACHORO
v AKANFELA [1996-97] SCGLR 209;
OBRASIWA II v OUT [1996-97]
and other related cases, the
Court of Appeal granted the
appeal in part. It granted
grounds (a) and (f) of the
appeal but dismissed grounds
(b), (c), (d) and (e).
The Court of Appeal set aside
the order of the trial High
Court settling one of the four
units of flats on Petitioner’s
Cantonment property or plot of
land on the Respondent.
The Court of Appeal held that,
from the evidence on record, the
Cantonment property could not be
said to have been
jointly
acquired by the couple for
it to qualify to be devolved on
the ‘equality is equity’
principle as enunciated in the
cases of
MENSAH v MENSAH [2012] 1
SCGLR 391; QUARTSON v QUARTSON
[2012] 2 SCGLR 1077; ARTHUR
(No.1) v ARTHUR (No. 1)
[2013-2014] SCGLR 543.
The Court arrived at this
decision after carefully
reviewing the above cases of
this Court and that of
FYNN v
FYNN & OSEI [2013-2014] 1 SCGLR
727. It is worth quoting
this part of the judgment of the
Court of Appeal in the
settlement of grounds (a) and
(f), which can be found at pages
244 to 245 of the Record of
Appeal (RoA).
“The High Court Judge relied on
Mensah v Mensah [2012] 1 SCGLR
391 and held that once the
property was acquired during the
subsistence of the marriage, the
respondent by operation of law,
had an interest in it. The case
of Mensah v Mensah supra is a
case where both parties at the
beginning of the marriage did
not have money. The husband was
a staff at the Ministries in
Accra while the wife was a petty
trader. From the facts of that
case, it would have sinned
against equity and good
conscience for the husband alone
to have taken over the
properties they acquired during
the marriage as the contribution
of the wife to the acquisition
of the properties was
immeasurable even though she
could not quantify it in
monetary terms. We are thus of
the opinion that Mensah v Mensah
supra did not lay down a general
principle of law that any
property acquired during
marriage including through
inheritance and loans, ought to
be shared between the parties,
especially in cases like this
where the loan has not been
repaid.
In the case of Quartson v
Quartson [2012] 2 SCGLR 1077,
the Supreme Court, while
affirming the position in Mensah
v Mensah, held that in
partitioning properties acquired
during marriage, the court must
consider the equities of the
particular case. The Supreme
Court in the case of ARTHUR v
ARTHUR (No. 1) [2013-2014] SCGLR
543 affirmed the ratio in Mensah
v Mensah supra and further held
that properties acquired during
the subsistence of marriage is
presumed to be jointly acquired
property. However, the
presumption is rebutted under
certain instances, particularly
where the other spouse acquired
the property by gift or through
succession. In the same vein,
where a party takes a loan to
develop his self-acquired plot
during the subsistence of the
marriage, the property shall not
be considered a family property
until the loan is repaid.
In the case of Fynn v Fynn
[2013-2014] 1 SCGLR 727, the
Supreme Court distinguished the
right of an individual to
acquire a property from its
earlier decisions rendered in
Mensah v Mensah and Quartson v
Quartson supra. The Supreme
Court held that there are
situations where, within the
union, parties may acquire
property in their individual
capacities and that position is
envisaged by
article
18 of the 1992 Constitution of
Ghana.”
{Emphasis ours}
The Court of Appeal then held
that the monetary award of
GHc500,000.00 made in favour
of the Respondent plus the
business or store which
Petitioner established for her
at a time she was unemployed,
should be enough or adequate
compensation to her as she could
not establish that she and the
Petitioner jointly acquired any
family property during the
subsistence of their twelve year
marriage. Further to this, the
Court of Appeal sustained the
order of the trial High Court
for the payment of
GHc1,500.00 per month by the
Petitioner to the Respondent, as
monthly maintenance for the two
children of the marriage.
Though the Court of Appeal said
it had granted ground (d) in
part, we do not see it as such,
thus our indication above that
ground (d) was also dismissed.
The fact that the Court of
appeal affirmed the custody
order of the trial High Court
made in favour of the Respondent
and added that the Petitioner be
given limited access during
weekends and vacations did not
mean that ground (d) had been
granted in part. The ground of
appeal as prayed under ground
(d) was; “The learned
trial Judge erred when she
granted custody of the children
of the marriage to the
Respondent”. The Court
of Appeal did not reverse this
order. It only repeated an order
giving limited visitation rights
to the Petitioner which, perhaps
unknown to the Court of Appeal,
had already been given to the
Petitioner by the trial High
Court in its judgment. The mere
addition to the custody order
that Petitioner be given limited
access to his children on
weekends and during vacations
did not change the order
granting custody of the children
to the Respondent. The trial
High Court said at page 12 of
its judgment, which is at page
164 of the RoA that;
“Custody of the two children of
the marriage is hereby given to
the Respondent herein with
reasonable rights of access and
visitation to the Petitioner”.
What the Court of Appeal also
said with regard to this was;
“Custody of the children is
given to the Respondent and the
Petitioner is given limited
access during weekends and
vacations”. This order,
in substance, is not different
from that of the trial High
Court recalled above.
Since the order granting custody
to the Respondent was not
reversed, the mere addition of
the period within which the
Petitioner could visit the
children could not be
interpreted to mean that ground
(d) of Petitioner’s notice of
appeal had been granted in part.
We consider it as a total
dismissal but not one granted in
part. Though none of the parties
addressed this anomaly in their
submissions before us, as there
was no further appeal with
regard to the custody order, we
deem it necessary to correct
same.
Reaction of both parties to the
Decision of the Court of Appeal
Interestingly, this judgment of
the Court of Appeal, did not
find favour with the two
parties. Each of them was
aggrieved by different parts of
the decision so both appealed
against it on separate grounds
to this Court. It was the
Respondent who filed her appeal
first and the Petitioner later
cross-appealed.
Respondent’s appeal to this
Court
The Respondent, who was the
respondent in the Court of
appeal, invariably was not happy
with the order of the Court of
Appeal that reversed the
settlement of the matrimonial
house on her. Her appeal to this
Court, which she filed on 8th
February, 2019, was only against
that order. According to her,
the reversal of the High Court
order had denied her, “her
legal and constitutional right”
to one of the four flats or
units of flats, which were
acquired during the subsistence
of their marriage. She prayed
this Court to declare that part
of the order or decision of the
Court of Appeal, as null and
void and an order by this Court
restoring the order of the High
Court.
Petitioner’s cross-appeal to
this Court
The Petitioner, on the other
hand, who filed his notice of
cross-appeal on 21st
February, 2019, was also not
happy about the Court of
Appeal’s decision affirming the
award of five hundred thousand
Ghana cedis (GHc500,000.00)
as compensation or alimony to
the Respondent made by the trial
High Court. His only ground of
cross-appeal was that the Court
of Appeal erred when it upheld
the High Court’s award of
GHc500,000.00 to the
Respondent as lump sum payment
without considering the
Petitioner’s case. He prayed
this Court to reverse that
award.
Issues for determination
The fundamental issues raised in
this appeal and cross-appeal for
determination are twofold:
(i)
Did the
Court of Appeal err when it
reversed the order of the trial
High Court in respect of the
matrimonial house or the
settlement of one of the four
units of flats at
Cantonments on the Respondent as
contended by the Respondent in
her appeal? and
(ii)
Did the Court of Appeal err
when it
affirmed the decision of the
trial High Court in awarding an
amount of GHc500,000.00
to the Respondent by way of
alimony or compensation after
the dissolution of the marriage
as contended by the
Petitioner in his cross-appeal?
Evaluation by the Court of the
submissions by the parties on
issue (i) above
The Respondent/appellant who
appealed on two grounds
including the omnibus ground
that the judgment of the Court
of Appeal was against the weight
of evidence adduced at the
trial, recalled in her written
submissions, this Court’s
decision in the celebrated case
of
DJIN v MUSAH BAAKO [2007-2008]
SCGLR 687 where this
Court outlined the duties
imposed on an appellant who
appeals on the omnibus ground.
The Court said: “Where an
appellant complains that a
judgment is against the weight
of evidence, he is implying that
there were certain pieces of
evidence on record which, if
applied in his favour, could
have changed the decision in his
favour, or certain pieces of
evidence have been wrongly
applied against him. The onus is
on such an appellant to clearly
and properly demonstrate to the
appellate court the lapses in
the judgment being appealed
against”.
However, throughout her
submissions, the Respondent, as
appellant, did not identify the
errors alleged to have been
committed by the Court of Appeal
in its reasons for reversing the
order of the trial High Court
with regard to the matrimonial
house. The only argument made by
the Respondent is that since the
four units of flats were
constructed during the
subsistence of the marriage
between the parties, the
Respondent, as wife, was
entitled to a share under the
well-known authorities of this
Court in cases like
MENSAH
v MENSAH [2012] 1 SCGLR 391,
etc. According to the
Respondent, the authorities are
legion that irrespective of how
property was acquired during the
subsistence of a marriage, a
wife is automatically entitled
to a share of such property by
operation of law. She calls this
a ‘legal or constitutional
right’. Respondent quoted a
statement made by this Court in
the Mensah case supra to
support her position that
the sharing of spousal property
should no longer be dependent
upon the substantial
contribution principle and that
property acquired during
marriage is presumed to be joint
property.
Respondent argued that, by the
above decision and others that
followed later, it was her legal
and constitutional right to be
entitled to a share of the
Cantonment property since the
four unit flats were acquired
during the subsistence of the
marriage between her and the
Petitioner. It was therefore
wrong on the part of the Court
of Appeal to defy the previous
decisions of this Court to deny
her a share as ordered by the
trial High Court.
The crucial question we have
been called upon to determine on
this issue is; whether or not
the Court of Appeal has decided
contrary to the authoritative
decisions of this Court in
Mensah v Mensah (supra);
Arthur (N0. 1) v Arthur (N0.1)
(supra);
Boafo v. Boafo [2005-2006]
SCGLR 705; Quartson v
Quartson (supra), Fynn v
Fynn (supra), etc. on the
distribution of spousal property
upon divorce. To determine this
issue, it is important to
appreciate what the position of
the law is, per the judgments of
this Court and what the Court of
Appeal grounded its decision on.
The position of the law on
jointly acquired marital
properties
It is trite law that no two
cases are alike and that every
case is fact-sensitive, for that
matter, each case must be
determined on its peculiarities.
However, this apex Court has, by
its decisions, laid down general
principles that guide the Courts
in their application of the laws
to peculiar circumstances. With
regard to the distribution of
jointly acquired properties
during marriage upon divorce,
this Court, in a plethora of
decisions, has outlined and
refined the principles that
should guide the courts in their
determinations. The decisions of
this Court, dating back to the
case of
MENSAH v MENSAH [1998-1999]
SCGLR 350, per
Bamford-Addo, JSC, which we
shall term the first Mensah
case, then to Boafo v Boafo
(supra); then the second
Mensah v Mensah, (supra) per
Dotse, JSC; Quartson v
Quartson (supra); Arthur
v Arthur (supra) and Fynn
v Fynn (supra), have set out
the parameters for determining
which properties could be termed
as ‘jointly-acquired marital
properties’ and the criteria for
the distribution of such
properties. All these decisions
were influenced by the
provisions of the 1992
Constitution under articles
22(2) & (3) on ‘Property
rights of spouses’;
33 (5) on ‘Protection
of rights by Courts’ and
the provisions of section 20 of
the
Matrimonial Causes Act, 1971
[Act 367]. Articles
22(2) & (3) and 33(5) of the
1992 Constitution particularly,
read: -
“22 (2) Parliament shall, as
soon as practicable after the
coming into force of this
Constitution, enact legislation
regulating the property rights
of spouses.
(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.”
The combined effect of the
decisions referred to supra is
that; any property that is
acquired during the subsistence
of a marriage, be it customary
or under the English or
Mohammedan Ordinance, is
presumed to have been jointly
acquired by the couple
and upon divorce, should be
shared between them on the
equality is equity principle.
This presumption of joint
acquisition is, however,
rebuttable upon evidence to the
contrary – {See the Arthur
case supra, holding (3) at
page 546}. What this means, in
effect is that, it is not every
property acquired
single-handedly by any of the
spouses during the subsistence
of a marriage that can be termed
as a ‘jointly-acquired’ property
to be distributed at all cost on
this equality is equity
principle. Rather, it is
property that has been shown
from the evidence adduced during
the trial, to have been jointly
acquired, irrespective of
whether or not there was direct,
pecuniary or substantial
contribution from both spouses
in the acquisition. The
operative term or phrase is;
“property jointly acquired
during the subsistence of the
marriage”. So where a
spouse is able to lead evidence
in rebuttal or to the contrary,
as was the case in Fynn v
Fynn (supra), the
presumption theory of joint
acquisition collapses.
In the 1998 Mensah case
(supra) per Bamford-Addo, JSC,
this Court held that;
“property jointly acquired
during marriage would become
joint property of the parties
and such property should be
shared equally on divorce,
because the ordinary incidents
of commerce had no application
in marital relations between
husband and wife who had jointly
acquired property during
marriage”.
Notwithstanding this decision,
there was still a little bit of
confusion as to which property
could be described as jointly
acquired marital property when
spouses in such litigations, lay
exclusive proprietary rights or
ownership over some of the
properties disputed as joint
properties. It was this
confusion that prompted this
Court in the second Mensah
case (supra) per Dotse, JSC,
to introduce the
‘presumptive ownership’
principle, which was affirmed
and became rooted in Arthur v
Arthur (supra) per Date-Bah,
JSC. In the Arthur case, the
Court held at holding (3) as
follows:
“The Supreme Court in Mensah v
Mensah had interpreted the
provision in article 22(3)(b) of
the 1992 Constitution liberally
and purposively to mean that
joint acquisition of assets was
not limited to property that had
been acquired as joint or as
common tenants; but rather any
property acquired by the spouses
during marriage was presumed
to be marital property. Thus
marital property was to be
understood as property acquired
by the spouses during the
marriage, irrespective of
whether the other spouse had
made a contribution to its
acquisition. The Supreme Court
would affirm that concept of
marital property. However,
consideration of cases and
statutes in the United States
would suggest that property
acquired by gift during the
marriage should be excluded from
the concept of marital property.
That exception seemed sound
in principle. Indeed, other
exceptions might need to be
carved out to the broad
definition of marital property”.
{Emphasis added}
With the decisions in the
Mensah, Quartson and Arthur
cases (supra), it was no
longer essential for a spouse to
prove a direct, pecuniary or
substantial contribution in any
form to the acquisition of
marital property to qualify for
a share. It was sufficient if
the property was acquired during
the subsistence of the marriage.
However, where such evidence
exists, it is necessary that a
spouse alleging such a
contribution must render or
offer it to quantify his/her
share or portion in the property
so acquired on the equity
principle. The rationale behind
this position was that the
duties performed by the wife in
the home like cooking for the
family, cleaning and nurturing
the children of the marriage,
etc. which go a long way to
create an enabling atmosphere
for the other spouse to work in
peace towards the acquisition of
the properties concerned, was
enough contribution that should
merit the wife a share in the
said properties.
It must be emphasized, however,
that it is not every wife to a
marriage who diligently performs
this marital role that the
courts, since the days of
RIMMER
v RIMMER [1952] 1 QB 63
@ p 73, per Denning LJ,
have talked so much about. It is
therefore necessary that such a
contribution or non-contribution
must be demonstrated in the
evidence adduced at the trial.
It is for this reason that the
authorities regard this general
principle of ‘joint-acquisition’
as a presumption that could be
rebutted by contrary evidence.
Thus, in the Fynn case
(supra), this Court
distinguished the right of an
individual to acquire property
exclusively during the
subsistence of a marriage, from
its earlier decisions in the
Mensah and Quartson cases
(supra). This Court held that
there are situations where,
within the marital union,
parties may acquire property in
their individual capacities as
envisaged under article 18 of
the 1992 Constitution, which
provides under clause (1) as
follows: “Every person has
the right to own property either
alone or in association with
others”.
Again, in the Arthur case
supra, this Court affirmed the
position that properties
acquired by gift or through
succession cannot be described
as jointly acquired marital
properties. If a spouse acquires
property by gift from a donor or
through succession (either
intestate or testate), the other
spouse who was not a beneficiary
in any way under any of the
circumstances, cannot be
described as a joint or part
owner just because the donation,
bequest or devise was made
during the subsistence of the
marriage between the donee or
successor and his/her partner.
Such property cannot be termed
jointly acquired marital
property since it was not
acquired through the sweat of
any of the spouses with the
support of the other, either
financially or in kind or by the
provision of marital services.
In situations like this, there
is no correlation between the
acquisitions of the said
property by any of those means,
i.e. either by gift or
succession, and the proper
keeping of the home by the other
spouse whose duty it is to do
so. The Court went further to
suggest that there might be
other exceptions that need to be
carved out outside the broad
definition of marital property.
It was in line with the
reasoning of this Court in the
Arthur and Fynn cases
supra that the Court of Appeal
appeared to have buttressed its
decision in the instant case on
appeal before us.
Unlike the Mensah, Boafo,
Quartson and Arthur cases
cited supra, where there was
ample evidence from both sides
in each of the cases to
demonstrate how the disputed
properties were acquired and the
alleged role played by each of
the spouses to their
acquisition, the Respondent in
this case did not lead any
evidence to show how the four
units of flats on the Cantonment
plot were built. Meanwhile, the
Respondent admitted that the
building plot on which they were
built belonged exclusively to
the Petitioner since he acquired
same long before he met and
married her. It even appeared
from the evidence on record that
the Respondent did not know the
work her own husband was doing
at the time they met and got
married. In one instant, the
Respondent said when she first
met the Petitioner in 2002, both
of them were unemployed. At a
later stage, she said the
Petitioner told her he was a
businessman and that he was in
estate development. So seriously
speaking, the Respondent did not
give any indication as to the
work the Petitioner was doing
and his earnings and how he
allegedly acquired the
properties she was claiming a
share in. The only contention of
the Respondent was that so long
as the Petitioner constructed
the flats during the subsistence
of their twelve year marriage,
she was entitled to a share of
same notwithstanding the fact
that Petitioner acquired the
Plot of land on which they were
constructed before their
marriage.
Significantly, no reference
whatsoever was made by the
Respondent about the acquisition
of the four units of flats,
which includes the uncompleted
one being used as a matrimonial
home. However, the trial court,
relying on the general
presumptive principle that
property acquired during the
subsistence of a marriage is
presumed to be joint marital
property, without giving any
serious thought to the case
presented by the Petitioner,
concluded that so long as the
four units of flats constructed
on Petitioner’s Cantonment plot
were began during the
subsistence of the marriage
between them, the said property
was jointly acquired marital
property for which the
Respondent was entitled to a
share. That was the basis for
which the trial High court held
that she was entitled to the
uncompleted flat being used as a
matrimonial home.
In his testimony, the Petitioner
contended, without any challenge
whatsoever from the Respondent
that, he single-handedly took a
loan from the Bank to put up the
four units of flats; three of
which he was renting to tenants
to liquidate the loan and to
maintain his family since he was
on pension. Again, the loan had
still not been fully liquidated,
with a balance of GHc300,000.00
yet to be paid. With this
testimony, what the Petitioner
was implying was that he had not
yet fully acquired the four
units of flats at the time of
the dissolution of their
marriage, since the loan that he
single-handedly took to build
them had not been fully repaid.
With this unchallenged testimony
coming from the Petitioner, the
Court of Appeal, relying on the
decision of this Court in the
Arthur case (supra) on the
existence of other exceptions
from the general presumptive
joint ownership principle, like
properties acquired by gift or
through succession, held that;
where a party or spouse
takes an individual loan to
develop his self-acquired plot
during the subsistence of a
marriage, the property so
acquired shall not be considered
a family property jointly
acquired until the loan has been
fully paid whilst the marriage
subsists. It is this
decision of the Court of Appeal
that the Respondent has
impeached before us. Strangely
enough, the Respondent has not
shown us, in any way, where the
Court of Appeal went wrong.
We are of the view that the
Court of Appeal’s holding that
until the loan that the
Petitioner took to acquire the
said properties is fully
liquidated, the properties so
acquired could not be termed
jointly acquired family
properties, is sound reasoning
and falls within the exceptions
envisaged by this Court in the
Arthur case (supra). By
this decision, the Court of
Appeal has not taken a contrary
position to that of this Court
in the cases referred to supra
that; assets or property
acquired during the subsistence
of a marriage are presumed to be
jointly acquired marital
properties that shall be
distributed equitably between
the spouses upon divorce. The
petitioner was emphatic in his
evidence that; “the house
was acquired by a bank loan. I
have not finished paying the
loan. Right now, the balance is
about GHc300,000.00, so how can
I give her the house? What help
did she offer me?”
The above testimony of the
Petitioner was not contested by
the Respondent. It was only in
the written statement of case of
the Respondent that she tried to
belatedly deny that fact. The
Court of Appeal’s position could
be interpreted to mean that,
with the loan that was
contracted to put up the houses
still outstanding as at the time
of the divorce, the property
stands the risk of being lost
upon failure to liquidate the
full loan, so same could not be
said to have been jointly
acquired during the subsistence
of the twelve-year marriage to
qualify for distribution under
the equality is equity
principle. It could only qualify
to be termed jointly acquired
marital property after the loan
that was contracted
single-handedly by the
Petitioner for its construction,
had been fully liquidated whilst
the marriage was subsisting. In
that situation, it could be said
that the Petitioner’s ability to
liquidate the loan was
influenced by the role the
Respondent played as a good wife
in cooking meals, cleaning and
doing laundry and all associated
chores for the Petitioner during
the period.
On the contrary, however, the
evidence on record, as accepted
by both the trial court and the
Court of Appeal is that the
Petitioner is still owing the
bank in respect of the loan
taken to build the flats and is
still paying the loan from rents
collected from three of the
flats which have been rented out
for that purpose. There is no
evidence on record showing how
much revenue the Petitioner is
earning from the rent payments,
the proportion of the revenue
from the rents the Petitioner is
using to maintain his big family
of about eighteen (18) children,
including Respondent’s two
children after the divorce
whilst servicing the loan and
when the entire loan would be
liquidated. It was therefore
wrong for the trial High Court
to conclude that if the
Petitioner gives one of the
flats to the Respondent and uses
one as his residence, rents from
the remaining two flats could
liquidate the balance of the
loan yet to be paid.
We wish to emphasize that there
is a reason behind the
abandonment of the substantial
contribution principle, which
was hitherto used to determine
the nature of property acquired
during the subsistence of a
marriage where it was
established that only one
spouse, particularly the male
spouse, single-handedly did
physically acquire the
properties. It was buttressed on
the understanding that the role
of the wife in keeping the home
by cooking for the family and
preparing and performing other
chores that enables the man to
have a peace of mind to acquire
the properties, is a form of
contribution. From the peculiar
facts of this case, this Court
agrees with the Court of Appeal
that the Respondent has not been
able to establish that at the
time of the dissolution of their
marriage in 2014, the parties
had jointly acquired any
property to be distributed
between them.
Evaluation by the Court of the
submission of the parties on
issue (ii) above
On the second issue with regard
to the cross-appeal against the
award of GHc500,000.00 as
compensation to the Respondent,
which decision was based on a
concurrent finding of the Court
of Appeal with the trial High
Court, this Court is of the view
that, that decision can only be
interfered with by this Court on
the legal principles governing
appeals against concurrent
findings of fact by the two
lower courts (i.e. the trial
court and the first appellate
court) as laid down in a
plethora of cases. Some of these
cases that readily come to mind
are:
ACHORO v AKANFELA [1996-97]
SCGLR 209; OBRASIWA II v OTU
[1996-97] SCGLR 618; OBENG v
ASSEMBLIES OF GOD CHURCH, GHANA
[2010] SCGLR 300; @ 322-323;
GREGORY v TANDOH IV & HANSON
[2010] SCGLR 971 @
986-987 and Fynn v Fynn
(supra).
The principle is that a second
appellate court like this apex
Court would overturn such
findings and conclusions only in
exceptional cases, particularly
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
lower tribunals had dealt with
the facts. It must be
established, for example, that
the two lower courts had clearly
erred in the face of crucial
documentary evidence, or that a
principle of evidence had not
been properly applied, or that
the finding was based on an
erroneous proposition of law
that if the proposition were
corrected, the finding would
disappear.
Apart from contending that both
the trial High Court and the
Court of Appeal did not offer
any basis for the award, the
Petitioner, who is the appellant
with regard to this issue, did
not canvass any arguments to
challenge the award in any way
in his submissions, but left its
determination entirely to the
discretion of this Court. This
was what the Petitioner said on
the last page of his written
submission filed on 11/08/2020:
“My Lords, the appellant
prayed for GHc400,000 as
alimony. The High Court granted
her GHc500,000.. The Court of
Appeal affirmed this figure.
Both courts, in our humble view
however, did not offer a basis
for the award. We, however,
leave the matter entirely to
Your Lordships”.
We do not find anything wrong
with this award as it is in
compliance with section 20(1) of
the Matrimonial Causes Act, 1971
[Act 367], which provides:
“On any decree for dissolution
of marriage, the Court may, if
it thinks fit-
(a)
Order a spouse (hereinafter in
this section referred to as the
contributing spouse) to secure
the other spouse (hereinafter in
this section referred to as the
dependant spouse), to the
satisfaction of the Court –
(i)
Such gross sum of money; or
(ii)
Such annual sum of money for any
term not exceeding the life of
the dependant spouse, as having
regard to the means of the
dependant spouse, the ability of
the contributing spouse and to
all the circumstances of the
case, the Court thinks
reasonable”.
We shall therefore refrain from
disturbing same but affirm it,
the Petitioner having failed to
demonstrate to us where the two
lower courts went wrong.
In effect, we find merit in the
decision of the Court of Appeal
dated 30th January,
2019 and affirm it in its
entirety. We accordingly dismiss
the appeal and cross-appeal
filed by the Respondent and
Petitioner respectively. We
decline to make any award as to
costs. Parties are to bear their
own costs of litigation.
Y. APPAU
(JUSTICE OF THE SUPREME COURT)
PWAMANG, JSC:-
My Lords, I read both opinions
in their draft state and having
scrutinised the record in this
particular case and considered
the submissions of the Counsel,
I am inclined to support the
opinion of my esteemed brother
Appau, JSC. I had moments of
pause when I read the opinion of
my honourable sister Dordzie,
JSC but then I easily parted
company with her for the reason
that in this case the trial
judge clearly misconstrued the
jurisprudence of the Supreme
Court on the distribution of
marital property on dissolution
of marriage. It is imperative to
understand that the commendable
and progressive presumption that
property acquired during a
marriage is jointly acquired is
not stated by the constitutional
provisions in Article 22 which
is abundantly clear. It is as
follows;
(1) A spouse shall not be
deprived of a reasonable
provision out of the estate of a
spouse whether or not the spouse
died having made a will.
(2) Parliament shall, as soon as
practicable after the coming
into force of this Constitution,
enact legislation regulating the
property rights of spouses.
(3) With a view to achieving the
full realisation 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.(emphasis
supplied).
Article 22(2)(b) is the
provision that governs cases of
property distribution on
divorce and it does not say
“assets which are acquired
during a marriage shall be
distributed equitably between
the spouses upon dissolution of
the marriage”. It is
explicit in referring to
properties JOINTLY acquired so
the impression should never be
created that it is the 1992
Constitution that says that
property acquired during a
marriage is joint property. If
the framers of the Constitution
had wanted to cover all property
acquired in the course of a
marriage they would have said so
expressly. It is a judicially
created presumption and as such
it is a rule of evidence only
and does not confer substantive
rights as the trial judge sought
to imply. Being an evidential
presumption, it is rebuttable by
the spouse whose ostensible
property is in question or any
person challenging the
presumption by adducing
evidence to prove that the other
spouse contributed nothing in
the acquisition of the property.
See Fynn v Fynn & Osei
[2013-2014] 1 SCGLR 727.
When sufficient evidence in
rebuttal is introduced by the
spouse who is the ostensible
owner of the property, or a
party challenging the
presumption, the evidential
burden shifts onto the other
spouse to also introduce any
evidence of her contribution to
the acquisition of the property.
Section 14 of NRCD 323 provides
as follows:
Except as otherwise provided by
law, unless and until it is
shifted, a party has the burden
of persuasion as to each fact
the existence or non-existence
of which is essential to the
claim or defence he is asserting
It is here that the decisions
say that non-pecuniary
contribution in the form of
emotional support, unpaid
domestic services such as
cooking, washing and caring for
children of the marriage are
admissible as proof of
contribution.
In Quartson v Quartson
[2012]2 SCGLR 1077 at page
1090 the Supreme Court speaking
through Ansah, JSC said as
follows;
“The Supreme Court’s previous
decision in the Mensah v Mensah
is not to be taken as a blanket
ruling that affords spouses
unwarranted access to property
when it is clear on the evidence
that they are not so entitled.
Its application and effect will
continue to be shaped and
defined to cater for the
specifics of each case. The
decision as we see it should be
applied on a case by case basis,
with the view to achieving
equality in the sharing of
marital property. Consequently,
the facts of each case would
determine the extent to which
the decision in Mensah v Mensah
applies”
In this case, as copiously
explained by Appau, JSC in the
lead majority opinion, the
evidence of the Petitioner in
rebuttal of the presumption of
joint acquisition was not
impeached. In that situation the
respondent had a duty to
introduce evidence of her
contribution for the
consideration of the court and
not hang onto the mantra of the
property was acquired during the
marriage. Meanwhile, the
evidence of the petitioner is
that the respondent was
torturing him emotionally in the
marriage and that is the reason
he filed for the divorce. In
these circumstances, the
presumption of joint acquisition
was rebutted in this case. The
highest policy of the law is to
be fair to all parties who come
before the court. Our thoughts
ought not to focus only on
protecting female spouses where
the ostensible owner is the male
spouse, which is more frequent,
but the principles we evolve
should equally aspire to protect
female spouse when she is the
ostensible property owner and a
male spouse wants to take
advantage of her. That explains
why the Constitution uses the
gender neutral term, spouse.
It is for the above additional
reasons that I support Appau,
JSC in affirming the judgment of
the Court of Appeal and
dismissing this appeal.
G. PWAMANG
(JUSTICE OF THE SUPREME COURT)
I.O TANKO AMADU
(JUSTICE OF THE SUPREME COURT)
DISSENTING OPINION
OF THE COURT WAS DELIVERED BY
DORDZIE (MRS.) JSC
DORDZIE (MRS.), JSC:-
I have read the majority
decision of this court written
by my respected brother Appau
JSC. It is my opinion however
that the appeal ought to
succeed. I perfectly agree with
the statement of the law on
property settlement which the
courts have painstakingly
developed all over the years. My
concern has to do with the
inferences the Court of Appeal
drew and upon which it
overturned the decision of the
trial court on property
settlement. Those inferences in
my opinion are flawed, in that
they are not supported by the
evidence on record. The
inferences drawn by the Court of
Appeal are: 1) The properties in
question were acquired by bank
loan therefore cannot be
classified as property jointly
acquired in the marriage until
the loan is paid. The respondent
did not provide any answer to
the averment by the petitioner
in his amended reply and answer
to the cross petition that he
obtained a bank loan to acquire
the properties. However in her
evidence in cross examination
she disputed it. In my view the
Court of Appeal ought to have
addressed the credibility or
otherwise of these facts in
order to do substantial justice;
especially where it relied on
this assertion to interfere with
the trial court’s decision, but
the court failed to do so.
2) In considering the equities
in sharing the properties the
Court of Appeal dwelled much on
its finding that the petitioner
set up the respondent in
business. That the petitioner
set the respondent up in
business was vehemently
contested by the respondent and
from the evidence on record the
petitioner failed to produce
convincing evidence to prove
this assertion yet the Court of
Appeal came to the conclusion
that it was the petitioner who
set up the respondent in
business thereby justifying its
interference with the trial
court’s exercise of discretion
in sharing the properties.
My reasoning for holding the
view that the appeal should
succeed is fully set out in my
judgment below
Facts:
The parties herein formally
married under the customary law
and had lived together and had
two children. Differences set
into the relationship which they
could not settle. In 2014 the
petitioner who is the respondent
in this appeal (The parties will
be referred to as petitioner and
respondent) took out a divorce
petition praying for the
dissolution of the marriage. He
also asked for custody of the
two children of the marriage
with reasonable access to the
respondent.
The respondent did not contest
the dissolution of the marriage
but cross petitioned for the
following:
1.
The Respondent prays that one of
the four flats which serves as
their matrimonial home be
settled on the Respondent.
2.
The Respondent is asking for a
lump sum of GHȼ400,000 (Four
hundred thousand Ghana Cedis
only) by way of alimony.
3.
The Petitioner should provide a
monthly maintenance of GHȼ 2,000
for the family.
4.
The Petitioner be made to foot
the cost of the litigation.
5.
The Respondent prays that two
(2) out of the chain of stores
on the Spintex Road being one
each on the ground and first
floors be settled on the
Respondent.
The trial High Court granted the
divorce and gave custody of the
two children to the respondent
with reasonable access to the
petitioner. The court further
granted reliefs 1 to 3 of the
cross petition, awarded
Ghc500,000 as lump sum financial
settlement on the respondent;
Ghc 1,500 as monthly maintenance
of the children.
The petitioner not satisfied
with this decision appealed to
the Court of Appeal.
The Court of Appeal allowed the
appeal in part by affirming the
award of Ghc5000,000 as alimony
to the respondent. The court
also affirmed the grant of
custody of the children to the
respondent and gave the
petitioner limited access. The
court however set aside the
award of one of the four houses
which served as the matrimonial
home to the respondent.
The respondent is in this court
praying that this court declares
as null and void the decision of
the Court of Appeal setting
aside the property settlement on
her; and restore the award of
the matrimonial home to her by
the High Court.
The grounds of appeal before us
are as follows:
a)
That the judgment is against the
weight of evidence adduced
b)
The learned Appeal Judges erred
in Law in overturning the award
of one of the 4 houses within
the complex at Cantonments to
the Respondent
The petitioner also cross
appealed against the award of
Ghc 500, 000 as lump sum payment
to the respondent affirmed by
the Court of Appeal and prayed
this court to reverse the said
award.
Submissions for and against the
appeal
It is the submission of the
appellant’s counsel that the
position of the law on property
settlement on spouses is that a
spouse does not have to prove
substantial financial
contribution to the acquisition
of property acquired during the
subsistence of the marriage in
order to be entitled to a share
in the property. Where one
partner takes care of household
chores such as washing, cooking
raising children and supervising
the home so that the other
partner has the free hand to
engage in economic activities
that partner qualifies to have a
share in properties acquired
during the marriage. The award
of one of the houses out of 4 to
the respondent is just and in
accordance with the provisions
of Article 22(3) (a) & (b) of
the 1992 Constitution. He made
reference to the following cases
in support of his submission:
Quartson v Quartson; Mensah v
Mensah [2012] 1 SCGLR 391.
On the cross petition it is
submitted on behalf of the
appellant that Alimony as
defined by
Black’s
Law Dictionary is “a court
ordered allowance that one
spouse pays to the other spouse
for maintenance and support
while they separated; while they
are involved in a matrimonial
law suit or after they are
divorced.” Section 20 of the
Matrimonial causes Act gives the
right to the respondent to be
given alimony. This must be
considered separately from her
entitlement to property
settlement.
In reply, petitioner’s counsel
argued that the properties
acquired during the subsistence
of the marriage were not jointly
acquired as such the respondent
cannot be entitled to a share in
the properties. Arguing the
cross petition, it is submitted
that both lower courts did not
offer any basis for award of
Ghc500,000 to the respondent the
said award ought to be reversed
by this court.
I will consider the two grounds
of appeal together. In doing so
I intend to consider the
following issues as issues this
court has to consider in
determining the grounds of
appeal.
Issues
i)
Whether the trial court erred in
settling the matrimonial house
on the respondent and whether
the Court of Appeal was
justified in setting aside the
trial court’s decision
ii)
Whether the alimony order was in
line with the requirements of
the Matrimonial Causes Act
The first ground of appeal which
is that the judgment of the
court of appeal is against the
weight of evidence requires that
this court re-evaluates the
evidence on record and draws its
own conclusions from the
inferences made.
A recap of the evidence at the
trial is therefore necessary for
its effective re-evaluation.
Evidence of Petitioner
According to the petitioner they
married under the customary law
in 2002. At the time of the
marriage he was a businessman
but the respondent was
unemployed. At the time he was
giving evidence, that was 2014,
the respondent had a shop at
Labadi. He the petitioner set
her up to start the business
years back by giving her
GHȼ5,000.
He gave her another GHȼ5,000 as
a loan when she was bereaved. He
acquired the land at Cantonments
before he married the Appellant.
He took a loan from the bank to
build the houses in Cantonment
he had an outstanding debt of
GHȼ300,000 to pay. The appellant
did not contribute anything to
the acquisition of the house she
is asking for therefore she is
not entitled to it.
Evidence of Respondent
The respondent’s testimony is
that she met the husband in 2001
and they had been in a
relationship until the formal
customary marriage at the time
she was pregnant with their
first child. She was living in a
two bedroom apartment at Labadi,
near the trade fair site when
they met. The Petitioner joined
her in the said apartment. She
became pregnant in 2002 that was
when they got married formally.
The petitioner took her to a
piece of land in Cantonments
which he promised to build on
for her. The land was big so she
encouraged him to build multiple
unit of houses on it.
The respondent denied that she
was unemployed when she married
the Petitioner. According to
her, she was working as a
supplier of goods to stores. The
Petitioner promised to build her
a store and asked her to stop
working and be a housewife.
Between 2001 and June 2009, they
lived in her rented apartment.
She admitted in cross
examination that though the
petitioner joined her in her
apartment, he had a house
elsewhere and did not live with
her all the time in Labadi. She
further admitted that when the
lease on her rented apartment
expired the petitioner paid the
rent monthly. The husband that
is the petitioner built four (4)
houses on the plot of land in
Cantonment. None of them was
completed as at June 2009 but
they moved into one. He
completed 3 of the houses and
rented them out. As at the time
she was giving evidence, that
was 2015, the one they lived in
was still uncompleted, no
windows, no light, no tiles.
When it was suggested to her
that the husband took a loan to
construct the Cantonments houses
she replied that is not true.
She further said as a house wife
she performed her duties as
such. Until the husband
initiated the divorce petition
and moved out of their bedroom
she did the domestic chores as a
wife, she cooked, cleaned and
warmed his bed.
According to Respondent when
they moved to Cantonments the
Petitioner completed a chain of
stores he was building on the
Spintex Road but did not give
her any. He said the stores were
too far from their house, he
promised to give her a store
from a new set he would build so
she remained a housewife.
Since the petitioner refused to
give her a shop she looked for
one she could rent. She found
one that was costing GHȼ5000.
She had only GHȼ3,000, she
borrowed GHȼ2,000 from her
friend Auntie Rose Perry to
enable her rent the shop. Her
husband told her because the
construction work was going on
she should wait, he would give
her money to pay back the loan
of GHȼ2,000 but to date he had
failed to do so. In the course
of running the shop she asked
him for help financially and he
gave her GHȼ5,000 to pay back a
loan she took to buy shoes for
sale. She made ‘susu’
contributions and based on that
she was given GHȼ5,000 loan from
the bank to back up her
business.
According to the respondent
because of their differences,
the Petitioner completed the
boys quarters of the house they
live in and moved in but he left
her and the children of the
marriage in the uncompleted main
house.
In cross examination the
Respondent maintained that she
supplemented the housekeeping
money the petitioner provided
and she paid the hospital bills
of the children. It is therefore
not true that the petitioner was
solely responsible for the
upkeep of the household. She
forfeited a car the husband
wanted to buy for her and
encouraged the husband to invest
that money in the construction
work that was on going in
respect of the houses.
She further stated that the
husband owns several properties
about 20 but she is not
interested in any. What she is
asking for is where they are
living which the husband had
promised to build for her. It is
still not completed. The other 3
had been completed and he had
been collecting the rents for
the past 6 years.
Findings made by the trial court
on the issue of property
settlement.
From my analysis of the evidence
of both parties, there is no
dispute that the land on which
the Cantonments houses were
built was acquired by the
Petitioner before he married the
respondent. In his pleadings the
petitioner averred he had
acquired the properties in issue
before marrying the respondent,
but in the course of his
evidence he admitted it was the
land he acquired before the
marriage. The buildings were
constructed during the
subsistence of the marriage.
There is therefore no
controversy that the houses were
built during the subsistence of
the marriage and the trial court
rightly found so. Therefore in
settling the matrimonial home on
the respondent this is how the
court put its reasoning:
“There was no controversy in
regards to the fact that the
construction of the matrimonial
home together with the 3
additional buildings on that
compound, were done during the
subsistence of this marriage.
The contribution of the
Respondent herein to her
household and the recognition
that our superior courts have
given to such contributions even
when undocumented, cannot be
discounted or ignored by the
court. In distributing marital
property it is paramount that
the court does so in all
fairness and equity to ensure
that Justice is done. The
Petitioner’s proposition to deny
the entirety of the Respondent’s
counterclaim will in effect
deprive the Respondent and her
children of accommodation and
financial support, whilst
ignoring the fact that more than
ten years of the Respondent’s
life have been invested into
nurturing the family unit,
cooking meals, cleaning, doing
laundry and all the associated
chores that the stay-at-home
partner in a marriage is
expected to do without
remuneration. Certainly the time
and effort it takes to run a
home has some value. The
children of the marriage and
their mother should not be
rendered homeless because the
Respondent has no receipts to
show how she contributed towards
the effective running of her
household, or how much time she
spent supervising construction
workers. This court therefore
deems it fit that the Respondent
herein be awarded one house
amongst the 4 located at
Cantonments, more specifically
the matrimonial home of the
parties. The Court’s financial
award made at the end of this
judgment will enable the
Respondent to complete and
furnish same and make it
habitable. The court’s
preference for the award of the
matrimonial home of the parties
to the Respondent is based on
the fact that the other units
within the complex have already
been leased out to tenants and
as is customary in our
jurisdiction, the landlord may
have collected rent in advance
of years. That situation will
make it impossible for the
Respondent to reside in same or
to lease it out for valuation
consideration. This court
therefore makes an award of one
of the 4 houses within the
complex at Cantonments to the
Respondent herein, leaving the
remaining 3 in the possession of
the Petitioner. The revenue
generated from leasing the two
of those properties to tenants,
assuming that the Petitioner
decides to occupy one himself,
should sufficiently help the
Petitioner herein to service the
GHȼ300,000 alleged to be the
balance on the loans he may have
contracted to build the houses.
The Respondent may use this
property as the primary dwelling
place for herself and the two
minor children of the marriage
or rent it out to tenants to
earn revenue. The transfer order
related to this award is to be
completed and deposited with the
court within 180 days of this
order.”
The above decision in my view is
in line with the constitutional
provision of article
22(3) of the Constitution
and the statutory provision of
section 20 of the
Matrimonial Causes Act, 1971 Act
367. It is also in line
with the current case law as
laid down in Mensah v Mensah and
Quartson v Quartson
Constitutional Provision on
property rights of spouses
Article 22 of the 1992
Constitution guarantees rights
of spouses to properties I may
describe as spousal properties,
the article reads:
“(1)
A spouse shall not be deprived
of a reasonable provision out of
the estate of a spouse whether
or not the spouse died having
made a will.
(2) Parliament shall, as soon as
practicable after the coming
into force of this Constitution,
enact legislation regulating the
property rights of spouses.
(3) With a view to achieving the
full realisation 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.
Legislation on property rights
of spouses
The legislation that regulates
the property rights of spouses
is section 20 of the Matrimonial
Causes Act, 1971 Act 367 which
provides as follows:
“20.
Property settlement
(1) The Court may order either
party to the marriage to pay to
the other party a sum of money
or convey to the other party
movable or immovable property as
settlement of property rights or
in lieu thereof or as part of
financial provision that the
Court thinks just and equitable.
(2) Payments and conveyances
under this section may be
ordered to be made in gross or
by instalments.”
Case Law
It is well known that for almost
30 years since the 1992
Constitution of this nation came
in to effect Parliament had
failed to comply with Article 22
(2) of the Constitution which
requires it to as soon as
practicable after the coming
into effect of the constitution
enact laws to regulate the
property rights of spouses. The
court being an institution aimed
at doing substantial justice to
the citizenry of this nation had
taken steps to develop equitable
principles of determining
property rights of spouses,
bearing in mind the changes in
social values and practices that
modernization has introduces
societies to globally.
It is in this vein that this
court in the case of Quartson v
Quartson [2012]2 SCGLR 1077
strongly criticized the position
the Court of Appeal took when it
held in its decision in the said
case that, in Ghana no
legislation had been enacted to
commercialize domestic services
rendered by wives therefore the
issue of taking into
consideration services rendered
by a woman in the home as
substantial contribution to
property acquired during the
subsistence of marriage is at
large. The Supreme Court
overturned the Court of Appeal
decision in this case and
particularly showed its
dissatisfaction to the position
the of Court of Appeal when the
Supreme Court reproduced at page
1088 of the report the offending
portion of the Court of Appeal
decision and stated its reaction
to same. The Court of Appeal
held that “….In the
instance case, the appellant
[wife] from the record did not
contribute financially towards
the acquisition of the property.
The contribution she relied upon
is the services she rendered as
a wife during the construction
of the house. The question I ask
is this: does it amount to a
substantial contribution? In
other words, what price or
commercial value do we ascribe
to domestic services rendered by
wives in Ghana, like cooking for
workmen and supervising workers
constructing a house solely
funded by a husband? In
Ghana this issue, particularly
upon dissolution of marriage is
still at large in the sense that
no legislation has been enacted
to commercialize domestic
services rendered by wives …… In
the absence of such legislation
in Ghana. We are of the
considered opinion that domestic
services rendered, however
important they may be, for now,
cannot amount to a contribution
by a spouse in a property
acquired through the financial
resources of the other spouse.
We are of the view that if the
courts are left on its own to
quantify such domestic services
without legislative guidance,
the result will be judicial
chaos in matrimonial suits”
This court’s reaction to the
above quoted decision of the
Court Appeal in the Quartson v
Quartson case is found at page
1089 of the record, it reads
“In view of the changing
times, it would defy common
sense for this court to attempt
to wait for Parliament to awaken
from its slumber and pass a law
regulating the sharing of joint
property. As society evolves, a
country’s democratic development
and the realization of the
rights of the citizenry cannot
be stunted by the inaction of
Parliament. We do not think that
this court is usurping the role
of Parliament, especially in
cases where the inaction of
Parliament results in the denial
of justice and delays in the
realization of constitutional
rights…….. happily this court
has taken a progressive step and
put the matter to rest in its
recent decision of Mensah v
Mensah [2012] 1 SCGLR 391.”
The Mensah v Mensah case cited
supra was decided by this court
in February 2012, the Quartson v
Quartson was decided in October
the same year, this court in the
Quartson v Quartson case
followed the principle laid down
in the Mensah v Mensah case with
the caution that the principle
should be applied on the
circumstances of each case. At
page 1090 of the report the
court expressed this view this
way “The Supreme Court’s
previous decision in the Mensah
v Mensah is not to be taken as a
blanket ruling that affords
spouses unwarranted access to
property when it is clear on the
evidence that they are not so
entitled. Its application and
effect will continue to be
shaped and defined to cater for
the specifics of each case. The
decision as we see it should be
applied on a case by case basis,
with the view to achieving
equality in the sharing of
marital property. Consequently,
the facts of each case would
determine the extent to which
the decision in Mensah v Mensah
applies”
The Supreme Court in the Mensah
v Mensah case took a purposive
approach in interpreting article
22(3) of the 1992 Constitution
and came out with a principle
which is now the locus classicus
on the issue of property
settlement on spouses upon
divorce. It is clear from the
decision of this court in the
Mensah v Mensah case (supra)
that to qualify as a joint
owner, and to be entitled to a
share in property acquired
during the subsistence of
marriage does not depend solely
on substantial monetary
contribution. Domestic services
offered by a wife in the
marriage qualify her to have a
share in property acquired
during the subsistence of the
marriage. Making reference to
Article 22 (3) of the 1992
Constitution the court at page
401 of the report (Mensah v
Mensah supra) posed this
rhetoric question “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?”
The court went on to
analyse the situation as
follows: “We believe that,
common sense and principles of
general human rights require
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
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 marriage when
the marriage is dissolved. This
is so because, it can be safely
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…….. 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, the spouse would be
denied any share in marital
property, when it is ascertained
that he or she did not make any
substantial contributions
thereof. It was inequities found
in the older judicial decisions
that we believe informed the
Consultative Assembly to include
article 22 in the constitution
of the Fourth Republic.”
To emphasize that the Supreme
Court in this decision is making
a departure from the substantial
financial contribution
principle, in accordance with
the provisions of the 1992
Constitution, coupled with the
obligation on the court to
safeguard the fundamental human
right of spouses in property
settlement, the court further
held at page 412 as follows:
“ Thus, even if this court
had held that the wife had not
made any substantial
contribution to the acquisition
of the matrimonial properties,
it would still have come to the
same conclusion that the wife is
entitled to an equal share in
the properties so acquired
during the subsistence of the
marriage. This is because this
court recognizes the valuable
contributions made by her in the
marriage like the performance of
household chores referred to
(supra), and the maintenance of
a congenial environment for the
husband to operate and acquire
properties. Be sides, the
constitutional provisions in
article 23(3) of the 1992
Constitution, must be construed
to achieve the desired results
which the framers of the
constitution intended.”
Thus the current position of the
law as stated above is once a
property is acquired during the
subsistence of a marriage it
becomes a marital property that
entitles the other spouse to it
whether the said spouse made any
contribution towards acquiring
it or not.
In February 2013 about a year
after the decisions in Mensah v
Mensah and Quartson v Quartson,
this court, in the case of
Arthur v Arthur (No 1)
[2013-2014] 1 SCGLR 543
re-affirmed this principle as
the current position of the law
in property settlement on a
spouse in the event of divorce.
The court made it unequivocally
clear what must be regarded as
marital property. At page 560 of
the report this court per Dr.
Date-Bah JSC held “We are
bound to follow this holding of
the Supreme Court in Mensah v
Mensah. Marital property is thus
to be understood as property
acquired by the spouses during
marriage, irrespective of
whether the other spouse has
made a contribution to its
acquisition. We would re-affirm
this concept of marital
property.” The court
went on to say at page 565 that
“It should also be
emphasized that, in the light of
the decision of the Supreme
Court in Mensah v Mensah, it is
no longer essential for a spouse
to prove a contribution to the
acquisition of marital property.
It is sufficient if the property
was acquired during the
subsistence of the marriage.”
It is strange that counsel for
the petitioner considered all
these cases in his submission
but concluded that the
respondent did not contribute to
the property in question the
property is not a joint property
and therefore she is not
entitled to a share in same. The
respondent had been a house wife
for 12 years, she carried out
domestic chores and cared for
the children of the marriage,
that is a contribution the cases
considered above recognize and
should be considered in the
settlement of marital
properties. This argument on
behalf of the petitioner in my
view flies in the face of the
current position of the law as
stated in the cases I have made
reference to above.
I have earlier quoted
extensively the reasoning of the
trial High Court judge and the
conclusions she drew in settling
one of the four houses acquired
during the subsistence of the
marriage. The trial court’s
decision is in line with the
current law on distribution of
marital properties as laid down
in Mensah v Mensah (supra). It
is my view that in coming to the
conclusions the trial court came
to, it carefully considered the
circumstances of this particular
case and did not apply the
principle in a blanket manner.
It is also my view that she
exercised her discretion fairly
in the distribution;
particularly she took into
consideration the right of the
respondent and the children of
the marriage to be provided with
shelter when she stated that the
children and their mother should
not be rendered homeless simply
because the respondent has no
documentary proof to her
contribution to the acquisition
of the property.
Findings made by the Court of
Appeal
It is clear from the totality of
the evidence of the parties on
the record that there was no
contention as to who funded the
construction of the four
separate buildings in
Cantonments one of which was
settled on the respondent by the
trial court. The parties agreed
that it was the petitioner who
funded the construction of the
houses. There was therefore no
issue joined between the parties
on this and the trial judge
needed not make any
determination on a non-issue. It
is therefore not in place for
the Court of Appeal to state in
its judgment, page 241 of the
record that the trial court
failed to make a determination
as to the person who provided
money for the construction of
the houses at Cantonments and
the source of the funding
thereby opening the door for it
to make its own finding of fact.
The Court of Appeal further
faulted the trial court for
failing to make findings of fact
on a material issue, which is
that the respondent was
unemployed during the marriage
yet she alleged she set up a
business. . It is trite that
every appeal is a re-hearing,
particularly where grounds of
appeal include the ground that
the judgment is against the
weight of evidence as in the
case of the grounds the Court of
Appeal considered in this case.
The Court of Appeal had the
obligation to re-evaluate the
evidence on record and based on
inferences drawn from the
evidence, and weighing the
preponderance of probabilities
come to its own conclusions on
issues joined between the
parties. In the judgment on
appeal before us the Court of
Appeal in its bid to discharge
this obligation made findings of
fact which unfortunately are not
supported by the evidence on
record. Some of the findings
the Court of Appeal made are not
based on proven facts before the
court. In order to demonstrate
this I will quote extensively
portions of the judgment on
appeal where the first appellate
court made those findings.
“From the evidence on record, at
the time of the marriage, the
respondent was unemployed.
However, at the time of the
pendency of the suit before the
court below, the Respondent had
set up a shop around Kpogas in
Labadi. The Petitioner in his
evidence testified that he
provided a capital of GHȼ
10,000.00 to the Respondent to
operate the shop. The Respondent
did not admit that it was the
Petitioner who provided the
capital for her business. It was
material to determine how at the
time of the marriage, the
Respondent, being unemployed was
able to set up a business but
the trial High Court Judge
failed to make a finding of fact
to that issue. The following
questions and answers came up
during the cross-examination of
the Petitioner by the
Respondent’s lawyer.
“Q: You have told
the court that you set her up in
business?
A: Yes, that is so.
Q: What kind of
business is that?
A: I gave her GHȼ5,000 and then
another GHȼ5000 and she set up a
shop herself around Kpogas in
Labadi. As for the business, I
know nothing about it, she does
it herself.
Q: I am suggesting to you that,
your wife took a loan from her
friend to start the business.
A: I gave her GHȼ 10,000.00, if
she took a loan I am not aware
of it”.
The Petitioner claimed that he
gave the Respondent an amount of
GHȼ 10,000.00 to set up her shop
at Labadi but the Respondent
said she took a loan from a
friend. When the Respondent was
under cross-examination, she
admitted that she did not take a
loan from a friend to set up her
business but she took an amount
of GHȼ2,000.00 to secure the
shop. The following questions
and answers came up when the
Respondent was under
cross-examination.
“Q: Your evidence that you
obtained a loan from your friend
to set up your store at Trade
Fair is untrue.
A: I didn’t say I set up the
store with a loan. When I was to
start the business, I did not
have enough money. Rose is a
family friend, she agreed to
help us to secure the shop and
she gave me GHȼ 2,000 which he
has not repaid to date.
From the above evidence, we find
as a fact that it was the
Petitioner who set up the
Respondent’s business by
providing am amount of
GHȼ10,000. We further find that
Rose provided an amount of GHȼ
2,000.00 to enable the parties
secure the shop at Lababdi which
sum the Petitioner was supposed
to repay. This fact corroborates
the assertion that it was the
Petitioner who set up the
Respondent’s business.
We also find from the evidence
that, the Petitioner, who is an
estate developer; took a loan to
put up four buildings on his
plot at Cantonments. We find
that he rented three of them out
and was living in the other
which was uncompleted, with the
Respondent and the children of
the household. We further find
as a fact that the Petitioner,
during the pendency of the suit,
still owed an amount of
GHȼ300,000.00 to his creditors,
being the amount outstanding on
the loan.”
(See page 261 to 263 of the
record of appeal)
The
question of whether the
respondent was working at the
time she married the petitioner
and whether the petitioner set
her up in business were matters
that were in controversy and
could be resolved by the
preponderance of probabilities.
It is the petitioner who
asserted that he set the
respondent up in business,
therefore he bears the burden of
producing evidence in proof of
his assertion.
11(1) of the
Evidence
Act, 1975 NRCD 323
defines the burden of producing
evidence as follows:
“For the purposes of this Act,
the burden of producing evidence
means the obligation of a party
to introduce sufficient evidence
to avoid a ruling on the issue
against that party.”
The petitioner in my view failed
to discharge this burden.
The petitioner barely asserted
without any proof that at the
time he married the respondent,
she was not working. The
respondent denied this and said
in her evidence that she was
trading, she was supplying
stores with goods therefore she
had her own apartment at Labadi
where she was living with her
son before she met the
petitioner in 2001. When the
petitioner married her they
cohabited in the said apartment
and the petitioner asked her to
stop working and be a house
wife. She obeyed and became a
house wife. The petitioner took
over payment of rent for the
apartment, they lived there
until 2009 (that is 8 years)
when they moved to live in the
uncompleted house in Cantonment.
In his pleadings, (reply and
answer to amended
cross-petition) paragraph 5, the
petitioner averred that “It was
rather the petitioner, having
regard to his financial status;
who set the respondent up in
business after the marriage.
Petitioner therefore denies that
he asked the respondent to stop
work as alleged or at all.” His
evidence in chief in proof of
this averment is found on page
72 of the record of appeal and
goes this way: Q: “Can
you tell the court, at the time
of your marriage, what work were
you doing?
A: I was a business man.
Q: And can you tell the court,
at the time of the marriage,
what work was the Respondent
doing?
A: She was unemployed
Q: Can you tell the court what
work the respondent currently
does?
A: She has a store around Kpogas
near Labadi.
Q: This store at Kpogas, how did
she get it?
A: I gave her GHȼ5,000 to start
the business.
Q: When was this?
A: About 5 years ago.
At page 73 of the record of
appeal his evidence in chief on
the issue continues:
“Q: we will now look at the
answer filed by the respondent.
In paragraph 3 of the answer,
she says that at the time of the
marriage both of you were
unemployed.
A: If I was not working how was
I able to give her GHC 5,000. In
addition to the GHC5,000 I also
gave her another GHC5000 as a
loan after she was bereaved.
In cross examination (page 76 of
the record of appeal) a question
was put to the petitioner as to
the type of business she set up
for the respondent; his answer
was: “I gave her GHC5000 and
then another GHC5000 and she set
up a shop herself around Kpogas
in Labadi” From his answer as
stated above he gave the
respondent GHC 5000 five years
prior to the time he was giving
evidence. He gave evidence on 13th
November 2014 it means he gave
the money somewhere in 2009. The
subsequent GHC5000 he gave to
the respondent according to the
petitioner was a loan after she
was bereaved. That he set up the
respondent in business with GHC
10,000 does not flow from his
own evidence.
The respondent clearly narrated
how she set up the shop at
Labadi. The Court of Appeal’s
finding on the issue of the
petitioner setting up the
respondent in business or not
ought to be based on weighing
the evidence of both parties on
the issue and determining which
of the situations was more
probable.
This being a civil case,
section 11(4) of the Evidence
Act, 1975 NRCD 323
requires the petitioner to lead
sufficient evidence to establish
the truth of his assertion.
Section 11(4)
provides: “In other
circumstances the burden of
producing evidence requires a
party to produce sufficient
evidence which on the totality
of the evidence, leads a
reasonable mind to conclude that
the existence of
the fact was more probable than
its non-existence.”
Section 12(2) of the Evidence
Act
defines preponderance of the
probabilities as follows:
“Preponderance of the
probabilities” means that degree
of certainty of belief in the
mind of the tribunal of fact or
the Court by which it is
convinced that the existence of
a fact is more probable than its
non-existence.
The Court of Appeal did not
follow this requirement of the
law in weighing the evidence
placed before the court when it
came to its conclusion that
“they found as a fact that the
petitioner set up the respondent
in business.”
Details of the respondent’s
evidence in chief on when and
how she set up the shop is found
on page 101 of the record of
appeal. She said the husband
promised to give her a shop out
of some shops he was building
but that never materialized so
in 2011 she decided to find a
shop for herself. To quote her
“In 2011 I decided to go and
find a shop myself, because my
husband refused to give me a
store. I found a store that
would cost Ghc 5000, but I
already had GHc 300, so a friend
of mine Auntie Rose Perry gave
me GHc2000. Since I had no money
I asked my husband for money, he
told me that because of the
construction he had no money and
that I should wait he would sort
me out. To date my husband has
still not reimbursed the
GHc2000. …. When I started the
business I was selling
cosmetics, shoes dresses etc.
and at that point I asked him to
help me and he gave me GHC5000
to defray the cost of money I
had borrowed to buy shoes to
sell….. After that I was working
so in 2013, I went to the bank
for a loan based on my susu
contributions. I was given a
loan of GhC5000.”
The respondent remained
consistent with her story as to
how she set up the store she
runs at Labadi. It is really
absurd that in the face of the
evidence of the respondent on
how she established the shop she
runs, the Court of Appeal would
prefer the bare assertion of the
petitioner without proof that he
set up the respondent in
business with Ghc10, 000. He
claimed in setting her up in
business he gave the first GHc
5000 in 2009. From the
respondent’s evidence it was his
persistent refusal to assist her
that eventually in 2011 she got
a shop with the assistance of a
friend whose full name and
profession she disclosed in her
evidence. The second GHc 5000
petitioner claimed he gave her,
according to his own evidence
was a loan he gave her after she
was bereaved. The respondent
admitted that at a point in
running the shop she asked him
for assistance and he gave her
GHc 5000. Even if the petitioner
gave a Ghc5,000 to the
respondent in 2009, the probable
situation is that it could not
have been towards setting up the
respondent in trading in the
face of the respondent’s
evidence that it was the
petitioner’s persistence refusal
to assist her that she set out
to look for a shop in 2011. The
second GHc 5000 the petitioner
alleged he gave to the
respondent, he himself
clarified, he gave it as a loan
after the respondent was
bereaved. The reason for the
giving of the second GHc 5000 as
given by the petitioner himself
does not point to setting up the
respondent in business. The
respondent magnanimously
admitted that in the cause of
running her business she asked
her husband for assistance when
she needed money to pay for
shoes she took to sell and he
gave her GHc 5000.
From the totality of the
evidence on record on the issue
of whether it was the petitioner
who set up the respondent in
business or not. It is clear
that the petitioner failed to
provide convincing evidence in
proof of his assertion. The
respondent on the other hand has
produced creditable evidence
establishing how she came by the
business she is running and the
assistance she received from the
petitioner in the course of
running the business. It ought
to be noted that there is no
evidence on the record as to how
much the respondent earned from
this business. What the evidence
shows is that the respondent
depended on the financial
support the petitioner gave her
throughout the marriage.
The findings of the Court of
Appeal that it was the
petitioner who set the respond
up in business by providing a
capital of GHc 10000 weighed
heavily on the first appellate
court’s consideration of the
equities of the circumstances of
this case. At page 245 of the
record of appeal the court’s
reasoning went as follows: “We
have carefully considered all
the above quoted Supreme Court
cases and the facts of the
instant case, and we are of the
considered opinion that the
petitioner took a loan to build
his plot as an estate developer.
At the same time, he set up the
respondent who was unemployed to
do business. It will be
unconscionable to hold that the
respondent should take the
business which the petitioner
set up for her and further take
one quarter of the buildings
built out of loans which have
still not been paid off. We are
of the opinion that considering
the equities, the monetary award
in addition to the business
which she has exclusive rights
over should be adequate to
compensate her.” This conclusion
in my view is flawed, in that it
is not supported by the evidence
on record.
On the property settled on the
respondent by the trial court,
the petitioner in his pleadings
maintained he acquired the
property before marrying the
respondent but in his evidence
he eventually admitted that it
was the land he acquired before
the marriage, the 4 houses were
constructed during the
subsistence of the marriage. At
page 243 of the record of appeal
the Court of Appeal made
findings that the petitioner
took a loan to build the 4
houses in cantonment, he still
owes an amount of GHc300, 000 to
his creditors as the outstanding
amount on the loan. The court
went on to say at page 245 that
though in the case of Arthur v
Arthur (supra) the Supreme Court
affirmed the ratio in Mensah v
Mensah and held that properties
acquired during subsistence of
marriage is presumed to be
jointly acquired property, the
presumption is rebuttable under
certain instances such as
properties acquired by gift or
through succession. The Court of
Appeal then made a pronouncement
that “in the same vein where a
party takes a loan to develop
his self- acquired plot during
the subsistence of the marriage,
the property shall not be
considered a family property
until the loan is paid.” The
respondent denied in her
evidence in cross examination
that the petitioner took a loan
to build the houses. It is
required of the first appellate
court therefore to be cautious
in accepting the assertion that,
the petitioner took a loan and
he was still owing a debt of
GHc300,000. The court had no
proven evidence before it that
the property in question was
acquired by bank loan and the
loan had not been paid. The
court’s pronouncement is based
on an assumption, therefore it
can not stand.
It is trite that findings of
fact are based strictly on the
evidence placed before the
court. S.
A. Brobbey JSC in his book
Practice and Procedure in the
Trial Courts and Tribunal of
Ghana (second Edition)
page 180 paragraph 383
wrote: “With the
exception of matters in respect
of which judicial notice may be
taken and points of law, every
judgment and every finding of
fact should be based strictly on
the evidence put before the
court”
In the face of the respondent’s
denial in her evidence in cross
examination that her husband
took a loan to develop the land
and her further evidence that
the petitioner had been
collecting rents for 3 of the
houses for about 6 years as at
the time of her evidence which
was December 2014. The
petitioner ought to produce
evidence to prove certain
essential facts on the issue,
such as where the petitioner
took the loan from, how much he
took, how much he had paid and
whether the outstanding balance
was really Ghc 300,000 after he
had collected rents for 6
years. The petitioner however
failed to offer any evidence
proving these matters. The
finding the Court of Appeal made
that the petitioner took a loan
to build the houses and he had
GHc300, 000 outstanding as debt
to be paid on the loan is not
based on any evidence on record,
it was an assumption made by the
Court of Appeal based on the
bare assertions made by the
petitioner without proof, and
without taking in to
consideration other evidence on
record by the other party
denying that he took a loan and
that he had collected rents on
the three houses for 6 years.
Interference with the findings
of the trial court.
The Court of Appeal faulted the
trial court on two grounds to
justify its decision to
interfere with the trial court’s
finding and to set aside the
decision of the trial court
which settled the matrimonial
home on the respondent. Firstly
the first appellate court
alleged the trial court failed
to make determination as to the
person who provided money for
the construction of the
Cantonment houses and the source
of the funding. In my earlier
analysis of the evidence placed
before the court by both
parties, I have demonstrated
that there was no controversy
between the parties as regards
who financed the construction of
the houses at Cantonments, the
onus lies on the petitioner to
provide evidence on the source
of the money, which evidence he
failed to produce. Irrespective
of that situation the trial
court gave consideration to all
relevant matters concerning the
acquisition of the houses and
the living condition of the
parties. To help her make a fair
and equitable decision on the
property settlement she visited
the locus in quo i.e. the
subject matter houses in
Cantonments.
Though I may sound repetitive I
will quote the evaluation of the
learned trial judge of the
evidence placed before her that
led to the conclusions she came
to:
“In
regards to the landed or
immovable property of the
parties, the Respondent
indicated to the Court that the
Petitioner owned a chain of
stores on the Spintex Road,
stores in East Legon as well as
20 properties. Details of these
properties were not disclosed to
the Court. The said stores on
the Spintex Road were shown to
the court via Exhibit MA1. The
Respondent denied personal
ownership of same, and alleged
that the stores belong to a
company called Medical Equipment
and Services Limited. No further
evidence was adduced in respect
of this property. However, in
regards to the matrimonial home
of the parties, the Court
verified its existence and
location during its visit to the
locus in quo on the 15th
of July 2015. The Petitioner’s
position on this property was
that the land on which the
matrimonial home was built was
acquired before he met the
Respondent. During the
inspection of the said property
it was recorded that 3 out of
the 4 houses on the said land
had so far been completed and at
least 2 out of those 3 houses
had been leased out to tenants
for income generation purposes.
The 4th unit that
served as the matrimonial home
of the parties even though
inhabited by the couple, had not
yet been finished completely at
the time of the locus visit.
During the Petitioner’s evidence
in chief on the 13th
of November 2014, this is what
ensued when counsel for
Petitioner sought his responses
to the Respondent’s
counterclaims?
Q: The respondent has
also cross petitioned and is
asking the court to give her the
home where both of you live
right now, GH¢400,000 as alimony
and GH¢ 2000 as maintenance
monthly?
A: The house was acquired
by a bank loan, I have not
finished paying the loan, right
now the balance is about
GH¢300,000. So how can I give
her the house? What help did she
offer me? She has been married
before, did her husband give her
a house?
Q: The Cantonments house
you said you took a loan to
acquire it, what was the
respondent’s contribution to
same?
A: She did not contribute
to it. When I met her I had
already bought the land, I just
went for a loan to build the
house.
Q: So should the court
grant her the things she is
asking for?
From the petitioner’s evidence
he had already acquired the land
on which the matrimonial home
was built when he married the
Respondent. The Respondent
corroborated this evidence and
added that the petitioner took
her to the bare land before
construction commenced and
promised to build a house for
her on the said land. The
Respondent further stated that
she advised the Petitioner to
build multiple units on the
land. Both parties agreed that
the houses were built during the
subsistence of the marriage. On
the 23rd of April
2015 this is what the Respondent
said during cross-examination by
Counsel for the Petitioner in
regards to the couple’s current
living arrangement:
Q: Where you are living
now, what has happened?
A: Where we live now, he
has finished the boys quarters
and moved in with AC and
furniture and he has left me and
the children in the uncompleted
main house.
There was no controversy in
regards to the fact that the
construction of the matrimonial
home together with the 3
additional buildings on the
compound were done during the
subsistence of this marriage.
The contribution of the
Respondent herein to her
household and the recognition
that our superior courts have
given to such contributions even
when undocumented, cannot be
discounted or ignored by the
court. In distributing marital
property it is paramount that
the court does so in all
fairness and equity to ensure
that justice is done. The
Petitioner’s proposition to deny
the entirety of the Respondent’s
counterclaim will in effect
deprive the Respondent and her
children of accommodation and
financial support, whilst
ignoring the fact that more than
ten years of the Respondent’s
life have been invested into
nurturing the family unit,
cooking meals, cleaning, doing
laundry and all associated
chores that the stay-at-home
partner in a marriage is
expected to do without
remuneration. Certainly, the
time and effort it takes to run
a home has some value. The
children of the marriage and
their mother should not be
rendered homeless because
Respondent has no receipts to
show how she contributed towards
the effective running of her
household, or how much time she
spent supervising construction
workers. This court therefore
deems it fit that the Respondent
herein be awarded one house
amongst the 4 located at
Cantonments, more specifically
the matrimonial home of the
parties. The Court’s financial
award made at the end of this
judgment will enable the
Respondent to complete and
furnish same and make it
habitable. The court’s
preference for the award of the
matrimonial home of the parties
to the Respondent is based on
the fact that the other units
within the complex have already
been leased out to tenants and
as is customary in our
jurisdiction, the landlord may
have collected rent in advance
for a number of years. That
situation will make it
impossible for the Respondent to
reside in same or to lease it
out for valuation consideration.
This court therefore makes an
award of one of the 4 houses
within the complex at
Cantonments to the Respondent
herein, leaving the remaining 3
in the possession of the
Petitioner. The revenue
generated from leasing two of
the property to tenants,
assuming that the Petitioner
decides to occupy one himself,
should sufficiently help the
Petitioner herein service the
GH¢ 300,000 alleged to be the
balance on the loans he may have
contracted to build the houses.
The Respondent may use this
property as the primary dwelling
place for herself and the two
children of the marriage or rent
it out to tenants to earn
revenue. The transfer order
related to this award is to be
completed and deposited with the
court within 180 days of this
order. “
It is important to note that
though there was no proof of the
alleged loan taking and the
balance of GHc300, 000 due on
same, the judge gave
consideration to that allegation
by the petitioner when she said
“The revenue generated from
leasing two of those properties
to tenants, assuming that the
petitioner decides to occupy one
himself, should sufficiently
help the petitioner herein to
service the Ghc300, 000
alleged to be the balance on the
loans he may have contracted to
build the house” (emphasis
mine) The choice of words here,
“alleged” and “loans he may have
contracted” points to the trial
judge’s acknowledgement that no
proof had been provided to
support the allegations;
however she took the possibility
of that situation into
consideration in the exercise of
her discretion in the
distribution of the properties
between the parties.
The second accusation the first
appellate court leveled against
the trial court is that the
trial judge failed to make a
finding of fact on a material
issue, which is that it was the
petitioner who set up the
respondent in business. The
findings the Court of Appeal
made on this issue that it was
the petitioner who set up the
respondent in business with
GHc10,000 I have demonstrated
earlier that it is not supported
by the evidence on record. The
trial court however in
considering the means of the
parties did not lose sight of
the fact that the respondent got
some earnings from the business
she was running and that the
earnings from that business had
not been the respondent’s main
sustenance, she depended largely
on the petitioner’s financial
support.
It is a well-established
principle, not only in our
jurisdiction but the wider
Common Law jurisdiction that it
is the trial court that has the
exclusive right to make primary
findings of fact; this is
because it is the trial court
that observes the demeanor of
witnesses and therefore in a
position to determine the
truthfulness of their
testimonies. Hence the appellate
court is expected to exercise
great caution in interfering
with the findings of fact by the
trial court. The appellate court
interferes only when certain
specific flaws occur in the
findings of the trial court and
those specific circumstance had
been identified in many
decisions of the Supreme Court.
In the case of
Agrenim-Boateng v Ofori & Yeboah
[2010] SCGLR 861 at 863
this court relying on Fofie v
Zanyo [1992]2GLR 475 held per
Aryeetey JSC that “It is
the trial court that has
exclusive right to make primary
findings of fact which would
constitute building blocks for
the construction of the judgment
of the court where such findings
of fact are supported by
evidence on the record and are
based on the credibility of
witnesses. It is also the trial
tribunal which must have the
opportunity and advantage of
seeing and observing the
demeanor of the witnesses and
become satisfied of the
truthfulness of their
testimonies touching on any
particular matter in issue.
……The appellate court can only
interfere with the findings of
the trial court where the trial
court: (a) has taken into
account matters which were
irrelevant in law; (b) has
excluded matters which were
critically necessary for
consideration; (c) has come to
conclusion which no court
properly instructing itself
would have reached and (d) the
court’s findings were not proper
inferences drawn from the
facts.”
Thus though the appellate court
is entitled to draw its own
inferences on the primary facts
found at the trial it is not
allowed to knock out the
building blocks that constructed
the judgment of the trial court
unless specific conditions as
specified in the quote above
prevails.
Lewison LJ in a more resent
English case of
Fage UK Ltd v Chobani UK Ltd.
[2014] FSR 29
at 114 sounded the
warning and set out very
interesting principles that the
appellate court must consider
when it comes to interfering
with findings of fact made by
the trial court. Not only that
but the evaluation of those
facts and the inferences to be
drawn from them. I consider
these principles useful for
guidance in our jurisdiction l
will therefore quote them in
detail. The learned jurist
expressed his view as follows:
“Appellate
courts have been repeatedly
warned, by recent cases at the
highest level, not to interfere
with findings of fact by trial
judges, unless compelled to do
so. This applies not only to
findings of primary fact, but
also to the evaluation of those
facts and to inferences to be
drawn from them. …The
reasons for this approach are
many. They include
i. The expertise of a trial
judge is in determining what
facts are relevant to the legal
issues to be decided, and what
those facts are if they are
disputed.
ii. The trial is not a dress
rehearsal. It is the first and
last night of the show.
iii. Duplication of the trial
judge’s role on appeal is a
disproportionate use of the
limited resources of an
appellate court, and will seldom
lead to a different outcome in
an individual case.
iv. In making his decisions the
trial judge will have regard to
the whole of the sea of evidence
presented to him, whereas an
appellate court will only be
island hopping.
v. The atmosphere of the
courtroom cannot, in any event,
be recreated by reference to
documents (including transcripts
of evidence).
vi. Thus even if it were
possible to duplicate the role
of the trial judge, it cannot in
practice be done.”
The point I am driving home here
is that the judgment on appeal
is full of the phrase “we find
as a fact” meanwhile the
findings so made are not
supported by the evidence on the
record. I therefore consider it
an error on the part of the
first appellate court to
overturn the decision of the
trial court to settle one of the
houses particularly the one
providing shelter for the
respondent and the children of
the marriage on the respondent.
I hold the view that the
conclusions the trial court came
to in settling the matrimonial
property on the respondent is
fully supported by the evidence
on the record. The learned trial
judge carefully weighed the
equities of the circumstances.
The evidence on the record
demonstrates that the respondent
was not making much from the
business the Court of Appeal
made so much capital of. The
petitioner himself provided
evidence on how much the wife
depended on him financially. The
property distribution is in line
with the applicable law as well;
in exercising her discretion in
the distribution she acted
fairly according to the
circumstances of this case. The
Court of Appeal therefore had no
justifiable reason to interfere
with that decision.
For the above stated reasons I
would allow the appeal, set
aside the judgment of the Court
of Appeal on the property
settlement and restore the
judgment of the High Court which
settled one of the four houses
acquired during the subsistence
of the marriage on the
respondent.
Cross Appeal
The only ground for the cross
appeal is that the Court of
Appeal erred when it upheld the
High Court’s award of
GHc5000,000 to the respondent as
lump sum payment without
considering the petitioner’s
case.
The submission made in support
of this ground is that the
respondent prayed for Ghc 400,
000 lump sum payment. The trial
court granted her Ghc 500,000
without stating the basis for
the grant. The court of Appeal
affirmed the grant without
offering any basis either.
The trial court granted
Ghc100,000 to the respondent to
use to complete the uncompleted
matrimonial home she occupies
with the children. The court
went ahead to analyze the
evidence on the affluent life
style of the family which the
petitioner supported. The trial
court further said that it took
the stand as taken in the case
of Quartson v Quartson (supra)
that the respondent must have
some money to live on whilst she
reorganizes her life and went on
to grant the Ghc400,000 the
respondent prayed for as lump
sum payment. It is therefore not
the case that the trial court
offered no basis for the grant.
This court in my view has no
justifiable ground to interfere
with the discretion exercised by
the trial court in the award. I
would therefore dismiss the
cross petition.
A.
M. A. DORDZIE (MRS.)
(JUSTICE OF
THE SUPREME COURT)
LOVELACE-JOHNSON (MS.), JSC:-
I have read the judgment of my
esteemed sister Agnes Dordzie (JSC)
and I am in complete agreement
with it, that, the judgment of
the Court of Appeal be set aside
and that of the High Court
restored because it is borne out
by the evidence on record and
supported by the consistent
position taken by this Court to
do substantial justice regarding
the property rights of a married
woman upon divorce in respect of
property acquired in the course
of the marriage. This position
is in line with Constitutional
provisions.
It is my opinion that a very
clear case has to be made for
departing from this consistent
position. In my opinion no such
case has been made in this case
and so the trial Court’s
exercise of discretion, having
been done duly, should not be
disturbed. The appeal by the
Appellant succeeds while the
cross- appeal by the
Respondent fails. The Judgment
of the Court of Appeal is set
aside and that of the High Court
restored.
A. LOVELACE-JOHNSON (MS.)
(JUSTICE OF THE SUPREME COURT)
COUNSEL
M.N.Y ACHIAMPONG (MRS.) ESQ FOR
RESPONDENT/RESPONDENT/APPELLANT
BRIGHT OTCHERE-AGYEKUM ESQ FOR
PETITIONER/ APPELLANT/
RESPONDENT/ CROSS-APPELLANT |
