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NANA YAA KONADU

(PETITIONER/RESPONDENT/APPELLANT)
vs.
ALHAJI ABDUL RASHEED

(RESPONDENT/APPELLANT/RESPONDENT)

[SUPREME COURT, ACCRA]

CIVIL APPEAL NO. J4/06/2017 DATE: 18TH NOVEMBER, 2020

COUNSEL:
O. K. OSAFU-BUABENG FOR THE PETITIONER/RESPONDENT/APPELLANT.
EDWARD ANOKYE FOR THE RESPONDENT/APPPELLANT/RESPONDENT.

CORAM:
DOTSE, JSC (PRESIDING), APPAU, JSC, PWAMANG, JSC, DORDZIE (MRS.), JSC,
PROF. KOTEY, JSC

JUDGMENT

APPAU, JSC:-

My Lords, the appeal before us is the culmination of what, prima facie, appeared to be a
simple matrimonial cause ignited by the woman in the marriage (as petitioner) against
her husband (the respondent), for the dissolution of their ordinance marriage. The second
and last relief the petitioner asked for, apart from the dissolution, was an order for the
custody or maintenance (as she put it), of the two issues in the marriage. This second or
last relief of the petitioner, which respondent also prayed for in respect of the younger
child in his cross-petition, became redundant in the course of the trial, when all the two
issues in the marriage attained adulthood. Petitioner did not seek any relief on property
settlement, as her case was that she never acquired any property jointly with the
respondent during the subsistence of the marriage, which needed to be shared. The only
thing she said she had in common with respondent was a limited liability company called
NAYAK COMPANY LTD which, according to her, the two of them established as the
only shareholders and directors with fifty percent (50%) shares each.

However, as things turned out to be, the petition assumed a complex form resulting in
its long journey to this apex Court, as a result of the respondent’s answer or reaction to
it. In this answer, the respondent did not challenge the petitioner’s call for the dissolution
of the marriage aside of the reasons behind the call. He however, denied petitioner’s

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assertion that they never jointly acquired any properties during the subsistence of the
marriage. He contended that apart from NAYAK CO. LTD and another company called
RASHIDA LTD, which the two of them formed, they jointly acquired several other
properties; some in his name, some in petitioner’s name and others in their joint names.
He mentioned fourteen (14) different properties, which he claimed the two acquired
jointly in the course of their thirty-two (32) years of marriage, mainly through the
operations of their two companies. He accordingly cross-petitioned for the dissolution of
the marriage, an order for custody of their younger child who was then sixteen (16) years
old and then, an order for the distribution of all the properties jointly acquired by them
as itemized under paragraph (3) of his answer to the petition. It was this answer and
cross-petition by the respondent that jolted the petitioner to admit for the first time that
she indeed acquired properties jointly with the respondent. She then went ahead to
explain that some of the properties they acquired jointly, which the respondent had
included in his list, were ceded to her by the respondent upon an agreement between
them some years back so those properties belonged to her exclusively and could not be
shared. The remaining properties belonged to their jointly-owned company NAYAK
COMPANY LTD in which they held 50% shares each. This was what petitioner said
under paragraphs 3 and 4 of her Reply to respondent’s answer: -

“3. In further answer hereto, the petitioner says the properties specifically designated
at paragraph 3 (a), (b), (c), (d), (h) & (j) and the titles vested therein are exclusively
vested in the petitioner and this was even confirmed by the respondent in a document
prepared and signed by the respondent.

4. The petitioner says that properties designated at paragraphs 3 (e), (g), (i), (k), (l), (m)
& (n) all belong to NAYAK COMPANY LTD wherein company both the petitioner and
respondent have 50% equal shares.”

In our view, no issue concerning the distribution of properties owned by NAYAK

COMPANY LTD or any other company belonging to the parties, did arise from the
parties’ pleadings. The petitioner never prayed for that neither did the respondent. In
fact, the petitioner did not pray for the distribution of any property at all between her
and the respondent. It was the respondent who prayed for the distribution of the
properties he listed under paragraph 3 of his answer and in her reply, petitioner claimed
exclusive ownership to some of those properties. It is this claim of exclusive ownership
of some of the properties by the petitioner, but not the sharing of their jointly-owned
properties, which has been the bone of contention between the parties from the trial stage
to this final stage of appeal. These properties were described as: “No. 233 Airport West,

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Accra; another building at Airport West (i.e. H/No. 21 Aviation Rd, Accra); one three-
storey building at Adabraka Official Town (i.e. 29 Official Rd, Adabraka); the building
in Kumasi (i.e. H/No. OTB 108 & 109 Adum, Kumasi); the buildings in Sekondi; all the
lands at Elmina and New Ashongman in Accra.” {Emphasis ours}

From the totality of the evidence on record, the petitioner did not deny the fact that the
properties she claimed belonged to her exclusively, as scantly described above, were
acquired by both of them; i.e. (petitioner and respondent) jointly during the subsistence
of their marriage. Her case was that the said properties were ceded to her as exclusive
owner by the respondent per a document she tendered in evidence as Exhibit “E”. This
means she became owner of what hitherto belonged to the two of them jointly, by virtue
of Exhibit “E”.

The respondent who did not deny the authorship of Exhibit “E” explained that he was
compelled to execute the said document at midnight in their bedroom from harassments
of the petitioner, in order to maintain peace in their relationship and that he did not
intend it to have any legal binding force. He buttressed his point with the explanation
that since he unilaterally executed the document in 2002, he had continued to exercise
ownership and control over the said properties like the collection of rents from tenants,
etc. to date without any challenge from petitioner. In fact, the petitioner admitted this fact
in her evidence during cross-examination by counsel for the respondent. According to
her, apart from the Kumasi, Adum House; i.e. OTB 108 & 109, which she possesses, the
respondent has been in charge of the other properties since the execution of Exhibit ‘E’
in 2002. This was the dialogue that took place between petitioner and respondent’s
counsel on 17th June 2014 during cross-examination; i.e. twelve (12) years after the
authorship of Exhibit ‘E’. It appears at page 397-398, Volume One of the record of appeal
(RoA) and it is that cross-examination that brought to close the case of the petitioner:

“Q. Have a look at Exhibit ‘E’. So, in spite of Exhibit E, the Respondent continues to be
in charge of all your properties?

A. Not all because if you say them the Kumasi building is included.

Q. So it is only the Kumasi one that he was not in charge of?

A. Yes. This is because he was my husband so he could be in charge of any property. Now
that I am not married to him he cannot be in charge of my properties.

Q. Since you divorced him in September 2009, the respondent has continued to collect
rent on all the properties except the Kumasi one.

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A. That is true, that is why I have brought the matter to court to collect my property for
me. {Emphasis ours}

Q. All the properties that you have acquired either in the name of Nayak Limited, in your
name, in the name of the respondent or in your joint names have been acquired during the
subsistence of the marriage.

A. Yes, and it is because of the understanding between us that he has put it on paper and
I have brought it to court. {Emphasis ours}

Q. I put it to you that you are not entitled to your reliefs.

A. That is not true.”

We have to emphasize that the petitioner did not file this petition to claim any property
from respondent contrary to her evidence in cross-examination as quoted above. Again,
she neither prayed nor sought any relief for the enforcement of Exhibit ‘E’. The trial High
court, having found as a fact that all the properties mentioned by the parties in their
pleadings were acquired during the subsistence of their marriage, set out to determine
the legal strength of Exhibit ‘E’. The bone of contention in the whole trial was therefore
on Exhibit ‘E’, which both the trial High Court and the Court of Appeal interpreted
differently, culminating in the instant appeal before us. Whilst the petitioner contended
that by executing Exhibit ‘E’, the respondent had ceded his interest in the properties
mentioned therein to her, the respondent’s case was that the mere execution of Exhibit
‘E’ did not transfer ownership of the properties mentioned therein to the petitioner.

The decision of the trial High Court

The trial High court, in the evaluation of the evidence before it, came to the conclusion
that Exhibit ‘E’ was binding on the respondent, therefore the properties and businesses
mentioned therein as having been ceded to the petitioner belonged exclusively to the
petitioner. According to the trial court, Exhibit ‘E’ was an agreement between the
respondent and the petitioner and since the respondent did not deny its voluntary
authorship, he was bound by it. Again, respondent did not challenge the authenticity of
Exhibit ‘E’ during cross-examination so there was no need for petitioner to call further
evidence on same. The court said; “since the respondent has signed Exhibit E and the
petitioner has approved of it, it implies that both of them have agreed that the document
should be binding on them”. In response to respondent’s argument that Exhibit ‘E’ could
not convey landed property, the trial court said ordinary incidences of commerce have
no application in marital relationships so that argument was untenable. The trial court

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relied on the cases of FORI v AYIREBI [1966] GLR 627 – SC; QUAGRAINE v ADAMS
[1981] GLR 598 – CA & TAKORADI FLOUR MILLS v SAMIR FARIS [2005-2006]
SCGLR 882, to buttress its decision.

With regard to the other properties over which there was no dispute between the parties,
the trial court said those properties must be shared equally on 50-50 basis. The court
directed further that since some of the properties were not properly identified during the
trial, thus making their distribution difficult, the Registrar of the trial court was to cause
all the said properties to be valued before distribution.

Appeal to the Court of Appeal

The respondent was not pleased with the decision of the trial High court so he appealed
against same to the Court of Appeal on seven grounds. Apart from ground 1, which was
the usual omnibus ground that the judgment was against the weight of evidence, the
remaining six grounds of appeal all centred on the legality or otherwise of Exhibit ‘E’
and its binding nature in the transfer of landed properties. In fact, the bone of contention
in the appeal was purely a question of law as there were no serious factual differences
between the parties with regard to the acquisition of the properties. This was; whether or
not Exhibit ‘E’, without more, could validly convey the properties named therein to the
petitioner as held by the trial court.

The Decision of the Court of Appeal

The Court of Appeal considered the submissions of both parties in the light of case law
and statute; i.e. the Conveyancing Act, 1973 [NRCD 175] and the then Companies Act,
1963 [Act 179], (now amended and consolidated by the Companies Act, 2019 [Act 992])
and came to the conclusion that Exhibit ‘E’ per se, failed to qualify as a document or deed
that could transfer the properties listed therein to the petitioner. The Court of Appeal
therefore reversed the decision of the trial High court to the effect that the properties
mentioned in Exhibit ‘E’ exclusively belonged to the petitioner. According to the Court
of Appeal, apart from the Kumasi, Adum house numbered OTB 108 &109, all the
properties mentioned in Exhibit ‘E’ belonged to the parties jointly and should be shared
equally on the ‘equality is equity’ principle. The Court of Appeal again reversed the order
of the trial High court which directed the registrar of the court to make certain enquiries
about some of the properties to be distributed. This was what the Court of Appeal said
at page 13 to 14 of its judgment:

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“There is no doubt that Exhibit ‘E’ sought to convey landed properties to the petitioner.
The question to ask is; did this document signed by the respondent, succeed in
conveying the properties listed therein according to law? The answer is to be found by
a perusal of the Conveyancing Act, NRCD 175 of 1973. Section 40 of the Conveyancing
Act [NRCD 175] provides that: -

1. A conveyance shall be executed in the presence of and attested to by at least one

witness.

2. Where an individual executes a conveyance that individual shall sign or place a mark
of the individual on it, and sealing shall not be necessary.

3. Where a company to which the Companies Act, 1963 [Act 179] applies executes a
conveyance, that conveyance shall be executed in accordance with the Companies Act,
1963.

In the case of Owusu-Asiedu vrs Adomako and Adomako [2007-2008] SCGLR 591,
Date-Bah, JSC explained the position as; ‘An instrument that is sealed and delivered
would be recognized as a binding deed. In addition, an instrument that is signed and
attested would be recognized as a deed if it makes it clear on its face that it is intended
to be a deed. Thus the formal requirement of deeds, as far as individuals are concerned
are as follows: A deed need not be sealed but a deed that is not sealed must be signed and
the signature must be witnessed and attested. The deed must also make it clear on its
face that it is intended to be a deed. An attested and witnessed signature will be
recognized by the courts as a substitute for the requirement for a seal.’ An examination
of Exhibit ‘E’ reveals that the document is neither attested nor witnessed. It therefore
fails in material particular to the Conveyancing Act, [NRCD 175]. The document
referred to by the trial judge as having been signed by the respondent is not an
ordinary document the authorship of which the respondent is denying but a document
which the law (Conveyancing Act) requires to be made in a particular form (attested
and witnessed). The purported conveyance to the petitioner therefore fails as Exhibit
E is of no effect and does not transfer any property to the petitioner. Exhibit ‘E’ also
sought to convey landed properties belonging to or registered in the name of Nayak
Limited by the sole act of the respondent without a resolution of the board of directors.
Any such conveyance is also void as not being in tandem with the provisions of the
Companies Act, [Act 179]. In effect, the holding by the trial judge that Exhibit E is valid
and binding on the respondent and that the properties ceded to the petitioner are
effective, is wrong in law and are hereby dismissed notwithstanding that the parties
are man and wife.”

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The Court of Appeal, in ordering for the sharing of the properties on a 50-50 basis, left
the sharing to the parties and their lawyers. The Court held, per Ofoe, J.A. at page 32 of
its judgment as follows:

“A lot of inconvenience and at times confusion may arise from such court orders directing
valuation and sale of jointly owned properties. It is legitimate to think of the parties
and their lawyers more capable of effecting the distribution after they have got the
court’s order, simply ordering that the properties be distributed equally….In the case
before us, there are no particulars at all of these several landed properties. All we have
are their house numbers and location. I am of the view that this is a case where the
parties should be given simply the order to distribute all the jointly owned properties in
50-50 proportions as found by the trial court and this court. Consequently the orders the
trial judge made engulfing the registrar in the distribution is hereby set aside.” {See page
757 of the RoA}

Appeal and Cross-Appeal to the Supreme Court

My Lords, the petitioner has come before us with the judgment of the Court of Appeal to
be impeached. Notwithstanding the grounds of Appeal filed, the main contention of the
petitioner/appellant in her appeal was that the Court of Appeal erred in holding that
Exhibit E’ was not a valid legal document that could effectively transfer the properties
mentioned therein to the petitioner. She again contended in her last ground of appeal that
the Court of Appeal erred in distributing equally in a 50–50 proportion, the matrimonial
home at Airport Residential Area when, as a matrimonial home, it should have been
ceded to or settled on the female spouse. The petitioner submitted further, citing the case
of RAMIA v RAMIA [1981] GLR 275 - CA that the age old position of the law was that
where a husband makes a purchase or an investment in the name of his wife, there is the
presumption of advancement of the property in favour of the wife. So therefore, the
acquisition of the matrimonial home at Airport West, Accra by the respondent in the sole
name of the petitioner, which pre-dated the incorporation of NAYAK COMPANY LTD,
was a pointer to the fact that it was so done with the express intention of benefitting the
petitioner. She however, did not appeal against the reversal of the trial court’s order to
the Registrar to investigate and evaluate certain properties before distribution.

The respondent has also cross-appealed against the Court of Appeal’s decision, which
declared petitioner the exclusive owner of the Kumasi, Adum House, i.e. OTB 108 & 109.
According to the respondent, the Kumasi, Adum house was acquired by NAYAK

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COMPANY LTD but not by either the petitioner or Nayak Fisheries Limited as found by
the Court of Appeal.

What is Exhibit ‘E’ which is the bone of contention in this case?

Exhibit ‘E’ which is dated 16/8/2002 is a unilateral document prepared by the

respondent in his handwriting. It is headed: “PROPERTY DECLARATION BY ALHAJI
ABDUL RASHID” and it reads as follows:

“I, Alhaji Abdul Rashid, wish to declare as follows:

1. That I have ceded all ownership interest of building number 233 Airport West, another
building at Airport West. One three- storey building at Adabraka official town, the
building in Kumasi, the buildings in Sekondi, all the land at Elmina and New Ashongman
in Accra to Nana Yaa Konadu.
2. Nayak Plaza, One building at Achimota. The Cold Store at Tema and the One storey
building at New Town will be jointly owned.
3. All the businesses has (sic) been ceded to Nana Yaa Konadu with the exception of the Fabric
business which will be jointly owned.
4. CARS – All the cars with the exception of the NISSAN Patrol and two Nissan Pick-ups
has (sic) also been ceded to Nana Yaa Konadu.
KEEP THEM IN PEACE.
ALHAJI ABDU RASH
(Signed)”

Arguments by parties on the enforceability or otherwise of Exhibit ‘E’

On the main ground of appeal, which is the enforceability or otherwise of Exhibit ‘E’, the
petitioner who is the appellant herein, contended that Exhibit ‘E’ must be seen as a
declaration against interest by the respondent instead of as a deed or document
conveying title in property within the meaning of section 40 of the Conveyancing Act,
[NRCD 175], particularly because the parties to the document were married couple. She
referred to the cases of KUSI & KUSI v BONSU [2010] SCGLR 60, SC and AFRICAN
DISTR. CO LTD v CEPS [2011] 2 SCGLR 955 to support her submissions. The
respondent, on the other hand, prayed for the dismissal of petitioner’s appeal. According
to the respondent, Exhibit ‘E’ is a document which purports to convey interest in landed
property including properties owned by a limited liability company NAYAK COMPANY
LTD, registered under the Companies Act, 1963 [Act 179]. It should therefore have been
witnessed and attested to, notwithstanding the fact that it was a transaction between a

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man and wife, but it wasn’t. He contended that notwithstanding the execution of Exhibit
‘E’ as far back as 2002, he continued to exercise control over all the properties mentioned
therein as having been ceded to the petitioner. This means that the petitioner did not
approve of Exhibit ‘E’ as she never took any steps to have the said properties properly
transferred into her name if indeed, she knew the respondent intended Exhibit ‘E’ to
assume a binding relationship between him and the petitioner.

Is Exhibit ‘E’ legally enforceable?

Clearly, the petitioner’s argument in this appeal is buttressed erroneously on the

standpoint that Exhibit ‘E’ is either an agreement or a contract between her and her
husband the respondent. This was part of her testimony in-chief in respect of the Kumasi,
Adum house when she was led to testify by her lawyer:

“Q. Do you have anything else to show the court that the property was solely acquired
by you?

A. Yes. Apart from the exhibits tendered yesterday, in the course of the marriage there
was agreement between us in respect of the properties those that are solely mine and
those that are solely for the respondent and this was reduced into writing. I have the
said document which I will want to tender in evidence…”

This document turned out to be Exhibit ‘E’. The exhibits which petitioner was referring
to in her testimony quoted above were Exhibits ‘A’, ‘B’, ‘C’ and ‘D’. Exhibit ‘A’ is a copy
of the certificate of Incorporation of Nayak Fisheries; Exhibit B is a photocopy of part of
the second schedule of the Companies Code, 1963 [Act 179] (now repealed); Exhibit ‘C’ is
a copy of the certificate to commence business issued to Nayak Fisheries and Exhibit ‘D’
is a copy of a building permit application form in respect of the Airport West matrimonial
house bearing the petitioner’s name as applicant. These exhibits had nothing to do with
the Kumasi, Adum House. So impliedly, petitioner’s exclusive claim to the Kumasi,
Adum house was hinged mainly on Exhibit ‘E’.

The fact is that any document in writing by which an interest in land is transferred is a
conveyance and must comply with the provisions of the Conveyancing Act, 1973 [Act
175]. It is immaterial whether or not it was a transaction between a man and a wife. The
petitioner’s argument that Exhibit ‘E’ should be examined under a different legal lens
because it witnesses a document between a man and a wife is untenable. So far as Exhibit
‘E’ purported to transfer interest in land, it is a conveyance and must be subject to the
provisions of the Conveyancing Act. {See sections 1, 40 and 45 of the Conveyancing Act, 1973

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[Act 175]}. To convey simply means to transfer or deliver something such as a right or
property to another, especially by deed or other writing. A conveyance is therefore
nothing more than a voluntary transfer of a right or any property to another– {Page 383
of Black’s Law Dictionary, Ninth Edition, edited by Bryan A. Garner}. Exhibit ‘E’ falls within
the definition of ‘other writing’, as used above or ‘other assurance’, as used under section
45 of Act 175.

Though Exhibit ‘E’ is a declaration purporting to transfer to the petitioner ownership in

some properties, mostly landed properties not properly identified, it was signed by only
the declarant without any witness or attestation whatsoever, contrary to section 40 of Act
175. It was therefore neither a deed nor a document capable of transferring interest in
land to another. At best, it was only a declaration of intent which, in the eye of the law,
did not create any legal relations between the respondent and the petitioner. It is
unfortunate that the trial High court bought into the view that Exhibit ‘E’ was a
document witnessing an agreement between the respondent and the petitioner so
respondent was bound by his own words. This was what the trial judge said at page 16
of his judgment: “The respondent further says that Exhibit ‘E’ does not conform to any
form of alienation of landed property known to law. It was not sworn to, there was no
witness and some of the properties were company properties which cannot be transferred
that way. That is some of the properties belong to Nayak Limited so they cannot be
transferred in that manner. Exhibit ‘E’ therefore conveyed nothing legally. I wish to state
that ordinary incidents of commerce have no application in marital relations between
husband and wife. In marital relations, parties do not need witnesses to take certain
decisions. When married couples are (sic) taken decisions in their bedrooms they do not
need witnesses around. It will rather be the word of one party against the other. Also in
the instant case the parties are the only shareholders and directors of Nayak Limited
who are supposed to take decisions on behalf of the company. Since the Respondent has
signed Exhibit ‘E’ and the Petitioner has approved it, it implies that both of them have
agreed that the document should be binding on them”. {See p. 538 of Vol. One of RoA}.

The above-quoted legal reasoning of the trial judge was seriously flawed apart from the
factual errors contained therein. In the first place, there is nothing in Exhibit ‘E’ that
shows that it was ever approved by the petitioner as the trial judge contended. The
petitioner neither signed any portion, nor approved of it in any form. Exhibit ‘E’ was far
from being an agreement or contract between the parties so the authorities cited by the
trial court to support its reasoning, were inapplicable. If the respondent meant Exhibit
‘E’ to assume a binding nature, he would have taken the necessary steps to have the
properties properly transferred into petitioner’s name.

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Again, the fact that the parties are the only shareholders and directors of their limited
liability company does not mean they can handle the affairs of the company anyhow
without recourse to the company law under which the company was registered. The
authorities are legion that shareholders of a limited liability company are not the
employers of the staff of the company. The same applies to directors. The employer is the
Company itself, which is distinct from the shareholders and directors. In this capacity, a
company is a corporate being with an independent legal existence, which can do or may
do everything that a natural person might do. It can sue and be sued, can own property,
can owe and be owed. It is thus independent and totally distinct from the persons who
constituted it – SALOMON v SALOMON & CO. LTD [1897] A.C. 22; MORKOR v
KUMA (East Coast Fisheries case) [1998-99] SCGLR 620. The respondent therefore,
could not divest properties of their company per Exhibit ‘E’ without complying with the
provisions of the Companies Act. The fact is that, Exhibit ‘E’ cannot pass title in the
properties mentioned therein to the petitioner as correctly explained by the Court of
Appeal in its judgment of 8th June, 2016 as quoted supra. The appeal in respect of the
validity or otherwise of Exhibit ‘E’ is accordingly dismissed.

Did the Court of Appeal err in ordering the 50-50 sharing of the Matrimonial Home?

On the last ground of appeal by the petitioner that the matrimonial home at Airport West
should have been settled on her alone, the petitioner buttressed her arguments on two
main points. The first was that since the property was acquired by the respondent in her
name from day one, the respondent intended it to be her exclusive property. The second
was that as the female spouse, the matrimonial house should have been ceded to her by
the court as that is the legal norm.

On the first point, the petitioner based her arguments on the presumption of
advancement, citing the authority of Ramia v Ramia (supra) which says that where
property is acquired by a husband in the name of his wife it is presumed the husband
intended the property to belong exclusively to the wife. See also ‘GHANA LAND LAW
AND CONVEYANCING’ by B. J. da Rocha & CHK Lodoh, 2nd edition, page 113-114 and
then Dennis Dominic Adjei’s ‘LAND LAW, PRACTICE AND CONVEYANCING IN
GHANA, 2nd edition, published by Adwinsa Publications. Dennis Dominic Adjei in his
book referred to supra stated at page 246 thus: “The law is settled that there is a presumption
of advancement in favour of a wife in respect of a property bought in her name by the spouse”.
This presumption, however, as rightly indicated by the author, is rebuttable.

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We agree in principle that the pronouncement above used to be the common law position
on the issue under consideration, i.e. once property is purchased by a husband in the name of
his wife it is presumed the husband intended the property to belong solely to his wife. However,
as Yaw D. Oppong rightly commented in his recent book, ‘CONTEMPORARY TRENDS
IN THE LAW OF IMMOVABLE PROPERTY’, published in 2019 by Black Mask
Publications Ltd at page 715, the applicability of this common law principle or concept of
‘ADVANCEMENT’ to married couples in modern day Ghana is now moribund, in view
of the radical evolution of the law on property rights of spouses. As the author rightly
stated, under the current state of the law, once property is acquired by a couple during
the subsistence of their marriage, there is a presumption that the property was jointly
acquired and therefore jointly owned, irrespective of the spouse in whose name it was
acquired – {See Mensah v Mensah [1998-99] SCGLR 350; Boafo v. Boafo [2005-2006]
SCGLR 705 and Mensah v Mensah (No. 2) cited infra and then article 22 (3)(b) of the
Constitution, 1992.

In the instant case, a greater number of the properties acquired by the parties were
acquired in the name of the respondent. Notwithstanding this fact, the respondent
admitted that the properties belonged to him and the petitioner jointly since they were
acquired during the subsistence of their marriage. Since the respondent who purchased
the matrimonial house, has vigorously challenged or rebutted the petitioner’s claim of
exclusive ownership to same by virtue of it being purchased in her name, the same
principle on property rights of spouses must also apply to it so long as that one too was
acquired during the subsistence of the marriage, unless there was a clear intention to the
contrary, which is absent in this case.

On the second point that matrimonial homes are normally settled on female spouses
during divorce and for that matter the Airport matrimonial home should have been
ceded to her, the petitioner did not provide any authority to support that contention.
Though the property stood in petitioner’s name, she could not establish her exclusive
ownership to same. Having found that the Airport West matrimonial home was also
acquired by the parties jointly during the subsistence of the marriage, just like all the
other properties mentioned in their pleadings, the Court of Appeal did not err in
concluding that it belonged to them equally. As to how the properties were to be shared
on a 50-50 basis, the Court of Appeal left that to the discretion of the parties and their
lawyers as quoted above. That ground of appeal also fails.

The Cross-appeal

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The cross-appeal was basically that the Court of Appeal erred in declaring the petitioner
as the exclusive owner of the Kumasi, Adum House OTB 108 & 109. According to the
respondent, apart from exhibits 3 and 3A which he tendered to establish that the said
house was sold to NAYAK COMPANY LTD by Divestiture Implementation Committee
(DIC) and therefore belonged to NAYAK COMPANY LTD but not to either petitioner or
Nayak Fisheries, the petitioner did not tender anything to suggest in the least that she is
the owner of the house. The Court of Appeal therefore erred in concluding that the Adum
house belonged to the petitioner. The petitioner, on the other hand, contended that the
Court of Appeal did not err when it affirmed the trial High court’s finding that the
Kumasi, Adum House belonged exclusively to the petitioner so this Court should not
disturb that finding.

We have considered the statements made by the parties in the cross-appeal vis-à-vis the
evidence on record and we are strongly of the view that the Court of Appeal’s finding
that the Kumasi, Adum house was acquired by Nayak Fisheries and therefore belonged
exclusively to the petitioner was seriously flawed. In fact, that finding was not supported
by the evidence on record. The petitioner did not tender in evidence any document of
ownership either in her name or in the name of Nayak Fisheries Ltd throughout the trial.
As stated by the trial High court in its judgment, Hse No. OTB 108 & 109, Adum, Kumasi
was the subject-matter of a dispute between the parties before a High Court in Kumasi at
the time this petition was before the trial court. The trial court therefore did not make any
positive or specific pronouncement on that house. The trial High court did not make any
finding that the Adum house was acquired exclusively by either the petitioner or Nayak
Fisheries Ltd. The High court’s decision was that since the respondent had ceded his
interest in the Adum property together with the others mentioned in Exhibit ‘E’ to the
petitioner, petitioner was the owner as respondent was bound by Exhibit ‘E’.

After the Court of Appeal had concluded that Exhibit ‘E had no binding effect on the
respondent as it lacked the legal strength to convey the properties mentioned therein to
the petitioner, there was nothing to support the Court of Appeal’s finding that House No.
OTB 108 & 109, Kumasi, Adum belonged exclusively to the petitioner. The High Court
made no such finding so the Court of Appeal’s finding cannot be a concurrent one to any
finding by the trial High court on that issue as contended by the petitioner. Even if the
Court of Appeal’s finding were to be concurrent to that of the trial High court, this Court,
as the second appellant Court, could still interfere with that finding where it was
established with absolute clearness that some blunder or error resulting in a miscarriage
of justice was apparent in the way in which the two lower courts had dealt with the facts.

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See the cases of ACHORO and Another v AKANFELA and Another [1996-97] SCGLR
209 and KOGLEX LTD (No. 2) v FIELD [2000] SCGLR 175 @ 176-177; GREGORY v
TANDOH IV & HANSON [2010] SCGLR 971@ 975.

In fact, the respondent has demonstrated that there was a serious blunder in the
conclusion of the Court of Appeal with regard to the Kumasi, Adum House. If Exhibit
‘E’ is discounted, there is nothing evidential that supports petitioner’s exclusive claim to
the OTB Adum, Kumasi house. If the petitioner’s contention that the Kumasi house
belonged to her exclusively was true, then she should have challenged its inclusion in
Exhibit ‘E’ as one of the properties the respondent said he had ceded to her. This is
because the respondent could not have ceded to her what did not actually belong to him.
The only unchallenged evidence on record is that the said house was sold to NAYAK
COMPANY LTD by D.I.C. Exhibits 3 and 3A bear testimony to this unchallenged fact.
There was no contrary testimony that the said house was either sold to Nayak Fisheries
or to the petitioner. There is also no evidence on record to suggest that the house was
ever transferred to either the petitioner or Nayak Fisheries by NAYAK COMPANY LTD.
The respondent’s claim that the house belonged to NAYAK COMPANY LTD was
therefore more probable than petitioners exclusive claim to it, and we so find. We
therefore reverse the Court of Appeal’s decision that the Kumasi, Adum house belonged
exclusively to the petitioner as same was perverse. In our view, it is one of the properties
acquired in the name of their jointly owned company NAYAK LTD and belongs to them
equally. It must therefore be resolved in accordance with company law just like the other
properties held in the names of their companies including NAYAK LTD and NAYAK
FISHERIES LTD. We accordingly allow the respondent’s cross-appeal.

Conclusion

This Court is ad idem with the Court of Appeal that all the properties acquired jointly by
the parties during the subsistence of their marriage, which properties are either in the
individual names or the joint names of the parties, including those mentioned in Exhibit
‘E’, as having been ceded to the petitioner, belong to the parties equally and must be
distributed on the equality principle as explained by our able and distinguished brother
Dotse, JSC in MENSAH v MENSAH [2012] 1 SCGLR 391 @ 394 in the following words:
- “The time has come for this Court to institutionalize the principle of ‘Jurisprudence of
Equality’ in the sharing of marital property by spouses, after divorce, of all properties
acquired during the subsistence of a marriage in appropriate cases. This is based on the
provisions in articles 22 (3) and 33 (5) of the 1992 Constitution, the principle of
‘Jurisprudence of Equality’ and the need to follow, apply and improve our previous

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decisions in Mensah v Mensah and Boafo v Boafo. The wife should be treated as an equal
partner even after divorce in the devolution of the properties…” {See also Mensah v
Mensah [1998-99] SCGLR 350 and Boafo v Boafo [2005-2006] SCGLR 705}.

We again endorse the Court of Appeal’s directive that the sharing of the properties on
50-50 basis must be left to the parties and their lawyers to decide and that the registrar of
the trial High court must not be involved in it. We find wisdom in that direction. We,
however, regret the break down in what hitherto appeared to be a happy and blissful
marriage, judging from the way and/or understanding with which the parties, as couple,
jointly acquired all those several properties. Though it is said that love rejected leads to
rancorous animosity, we admonish the parties to put aside any rancour, bitterness
and/or differences between them and show once more love and maturity in the sharing
of their marital properties, with the same zeal, understanding and courage that they
mustered in acquiring all the properties during the subsistence of their marriage. Appeal
dismissed; cross-appeal allowed.

Y. APPAU
(JUSTICE OF THE SUPREME COURT)

V. J. M. DOTSE
(JUSTICE OF THE SUPREME COURT)

G. PWAMANG
(JUSTICE OF THE SUPREME COURT)

A. M. A. DORDZIE (MRS.)
(JUSTICE OF THE SUPREME COURT)

PROF. N. A. KOTEY
(JUSTICE OF THE SUPREME COURT)

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