K. A. ACQUAYE, J.A.

The facts leading to this appeal are that the parties, both Ghanaians, got married under the Ordinance in 1977 and had two issues aged 29 years and 16 years as at 2009 when the petition was filed. The petitioner stated that they have not jointly acquired any properties except that they both have fifty percent shares each in Nayak Company Limited. According to the petitioner for the past ten years they have not enjoyed any meaningful or peaceful marriage and that due to certain deadly threats from the respondent she was compelled to desert the matrimonial home in 2009. The petitioner’s case was that the marriage had broken down beyond reconciliation and petitioned for a dissolution of the said marriage and an order that the petitioner should continue to maintain the issues of the marriage.

The respondent admitted that the marriage between the parties had broken down beyond reconciliation but blamed the petitioner for the situation. The respondent vehemently denied that the parties have not jointly acquired any property and listed fourteen (14) landed properties jointly acquired by them as well as two companies, Nayak Group Limited and Nayak Fisheries Limited jointly owned by them in equal shares. The respondent thus cross-petitioned for the dissolution of the marriage, custody of Fatayi Rashid (aged 16 years) and an order for distribution of all properties jointly acquired by the parties as listed in the answer to the petition.

In her reply to the respondent’s answer the petitioner stated that six out of the fourteen landed properties listed by the respondent are vested exclusively in the petitioner as confirmed in a document prepared and signed by the respondent. The other seven landed properties all belong to Nayak Company Limited jointly owned by the parties in 50 % equal shares. The petitioner also stated that she is the sole owner of Nayak Fisheries Limited which operates in a building owned by Nayak Company Limited. The petitioner further answered that Nayak Company Limited also owned four separate plots of land in the Accra and Central Regions.

At the close of pleadings it being apparent that the marriage between the parties had broken down beyond reconciliation, the trial judge declared the marriage dissolved on 23rd September 2009 and proceeded to take evidence on the ancillary reliefs relating to the distribution of the properties acquired during the marriage

In her evidence the petitioner recounted how they together imported and sold fabrics under Rashida Limited and Nayak Limited and used the resources and profits therefrom in acquiring various properties, some in the names of the company Nayak Limited and some in their individual names. The petitioner also testified on how she undertook other businesses such as fisheries importation under Nayak Fisheries Limited which she exclusively set up, import of buttons and linoleum and tie and die on her own and acquired properties mostly in the name of the company Nayak Limited. The petitioner testified that in the course of the marriage the respondent signed a document which recited that the respondent had “ceeded 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 business has been ceeded 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 NISSIAN Pick-up has also been ceeded to Nana Yaa Konadu

KEEP THEM IN PEACE”

The petitioner therefore claimed the properties listed in the document which she tendered as exhibit E as her exclusive properties and also claimed a share of the other properties acquired in the name of Nayak Limited.

The respondent on his part testified that they jointly applied their income earned in the United States of America where they settled immediately after they married to setting up Rashida Limited and Nayak Limited in Ghana under which companies they both traded principally in fabrics and later on in fisheries. The respondent admitted that while later the petitioner engaged in buttons and tie and dye they were small businesses set up, financed and operated under Nayak Limited. The respondent testified that under Nayak Limited the parties also operated Choice FM Radio Station, Forex Bureau, Travel and Tours Company and a financial institution all of which did not do well and were thus disposed off. According to the respondent all the properties acquired by the parties during their marriage were acquired through their joint trading under the companies Rashida Limited and Nayak Limited and must be shared equally between them. With respect to Exhibit E headed “Property Declaration by Alhaji Abdul Rashid”, the respondent explained that that document was executed by him one midnight when the petitioner was troubling him and as the document was not witnessed and some of the properties belonged to their company, his lawyer advised him that Exhibit E could not pass title to the petitioner and that he has since been in control of all those properties.

In his judgment the trial judge stated that the main issue to be determined by the court is whether or not the court should consider the declaration made by the respondent in Exhibit E as valid and binding on him. The trial judge ruled that the respondent did not challenge the petitioner on the fact that Exhibit E was authored and signed by the respondent so he is deemed to have admitted the contents of the exhibit on the authority of Takoradi Flour Mills vrs Samir Faris (2005 -2006) SCGLR 882 Holding I. The trial judge thus decided not to give any weight to the testimony of the respondent on the authority of Fori vrs Ayirebi (1966) GLR 627. According to the trial judge if the respondent “knew he could not dispose of anything in that manner then why did he give it at all. Was it his intention to give the document to the petitioner in deception. It is pertinent to note that in marriage parties are expected to operate in honesty to each other so there should be no deception. If to the respondent he could not dispose of anything in that manner then he should not have given it in deception which is frowned upon in marriage. The respondent cannot, therefore, turn round to say that he gave the document to the petitioner knowing very well that he could not dispose of anything in that manner…………. The principle on this is that when parties sign a document devoid of fraud, coercion or duress, the courts have no business to vary its terms. See the case of Wilson vrs Brobbey (1974) GLR 250 in which Osei-Hwere J. held at holding 1 as follows:-

“where parties had embodied the terms of their contract in a written document extrinsic or oral evidence would be inadmissible to add to, vary, substract from or contradict the terms of that instrument. Thus a party of full age and understanding would normally be bound by his signature to a document, whether he read it or understood it or not….”

The trial judge held that the explanation of the respondent is an afterthought as the exhibit is in his own handwriting and oral evidence is inadmissible to overcome a written document. On the respondent’s evidence that there was no signature to witness Exhibit E the trial judge held that “the 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 taking decisions in their bedrooms they do not need witnesses around”. The trial judge therefore held that “it is therefore the opinion of this court that Exhibit E is valid and binding on the respondent. So by that exhibit all the properties stated therein as ceded to the petitioner by the respondent are admitted by this court as belonging to the petitioner and I so hold”. The trial judge therefore proceeded to affirm the contents of Exhibit E as belonging to the petitioner. The trial judge continued his judgment by finding that “other properties stated in paragraph 3 of the amended answer not covered by Exhibit E are rented premises……………. “No evidence was given on these rented premises as to the terms of the tenancy agreement and their description. It therefore becomes difficult for this court to take a decision on how to distribute those rented premises between the parties. In view of that the Registrar of this court is ordered to ask the parties to provide further and better particulars on those rented premises in respect of rent and their description which must be put before the court for a decision to be made on them if it is their intention that the court should share those rented premises between them”. The trial judge concluded his judgment by finding on the issue of custody of Fatayi Rashida that he had become of age so he struck that counter petition out as being irrelevant.

Dissatisfied with the judgment the respondent filed an appeal against “The declaration of ownership of properties and businesses listed in Exhibit E in favour of the Petitioner, that is H/No. 233, Airport West, Accra, H/No. 21 Aviation Road, Airport West, Accra. Storey building at Adabraka Official Town, Accra, H/No. 108/109 Adum, Kumasi, buildings in Sekondi, Lands at Elimina and New Ashongman”.

The following are the grounds of appeal filed:-

1. The judgment was against the weight of evidence

2. The trial court erred in holding that Exhibit E was a legally competent and binding document, a deed which conveyed the landed properties listed therein from the respondent to the petitioner

3. The trial court erred in holding that Exhibit E was not challenged by the respondent’s Counsel when it is on the record that its validity as a proper legal document was put in issue by the respondents Counsel and ruled upon.

4. The trial court erred in holding that the respondent’s Counsel did not cross-examine the petitioner on the content of Exhibit E which the petitioner was not the author of and the respondent had conceded that he authored it.

5. The trial court erred in holding that the respondent’s lawyer did not cross-examine the petitioner on Exhibit E when he had put it to her and she conceded that the respondent continued to exercise control of and managed the properties listed in Exhibit E after he signed it.

6. The trial court erred when it failed to take account of the duress implicit in the content of the document, Exhibit E.

7. The trial court erred when it misapprehended the issue before it for determination which was the distribution of assets acquired during the pendency of a marriage and not the interpretation of a purported contract, that is exhibit E which was not made in contemplation of divorce.

From the part of the judgment complained of and the grounds of appeal stated above, it is clear that this appeal is only against that part of the judgment which concerns Exhibit E and its contents. The parties have thus accepted the distribution of the properties not listed in Exhibit E by the trial court.

Arguing the first ground of appeal that the judgment was against the weight of evidence Counsel for the respondent listed the fourteen (14) landed properties belonging to the estate and the two companies Rashida Limited and Nayak Limited owned in equal shares by the parties and submitted that the other properties were sold long before the divorce. Counsel submitted that it was clear that all the properties were acquired from a common source being proceeds from their companies. Counsel for the respondent pointed out that the evidence showed that Nayak Fisheries was set up with proceeds from Nayak Limited and not through proceeds from the petitioner’s petty trading. Counsel referred to the suit between U.S. Exim Bank vrs Nayak Limited and the parties and their children over the loan taken from the bank to establish Nayak Fisheries, the VAT exemption sought by Nayak Limited for the importation of the cold store equipment and machines and the fact that the fisheries business was located in premises owned by Nayak Limited at the fishing harbor to support the respondents stance. Counsel pointed out that Nayak Fisheries was set up in the year 2000 whilst House Number OTB 108/109 Adum was acquired by Nayak Limited in 1999 so proceeds from Nayak Fisheries could not have been used to acquire OTB 108/109. Counsel for the respondent pointed out inconsistencies and contradictions between the petitioners pleadings and her evidence in chief and cross-examination and referred to the case of Appiah vrs Takyi (1982-83) GLR 1 which held that in such a situation the case of the other party whose evidence conform with his pleadings ought to be preferred. Counsel submitted that DW1’s evidence confirmed the respondent’s that it was the later who acquired all the properties from Nayak Limited’s resources in the name of himself, the petitioner or Nayak Limited. Counsel for the respondent referred to the case of Asare vrs Donkor and Serwah II (1962) 2GLR 176 where it was held that where the evidence of an independent witness on a vital issue corroborates the evidence of one party or the other, the court is bound to accept the evidence of the party so corroborated unless there are good reasons for discrediting the witness. Counsel referred to Article 22 clause 3 of the 1992 Constitution of Ghana which stated that “spouses shall have equal access to property jointly acquired during marriage” and “assets which are jointly acquired during marriage shall be distributed equitably between the spouses upon dissolution of the marriage”. Counsel referred to the cases of Mensah vrs Mensah (1998-99) SCGLR 250 and Boafo vrs Boafo (2005-2006) SCGLR 250 in which the underlying principle was stated that where property had been acquired by one spouse with the contribution of the other, that is jointly acquired, then the “equality is equity” principle shall apply. Counsel submitted that there is no evidence on the record showing that the parties did any substantial business exclusively that would enable any of them to build the residential and commercial buildings they acquired over the years before Nayak Fisheries Limited was set up in the year 2000. Counsel concluded by saying that it was wrong for the trial judge to rely on the interpretation of Exhibit E to deliver the judgment against the weight of the evidence led at the trial. Counsel for the respondent thus urged us to distribute the properties equally between the parties.

Counsel for the respondent then argued grounds 2, 3, 4 and 5 of the appeal together. Counsel said the petitioner set a lot of store in Exhibit E which the trial court agreed. Counsel submitted that Exhibit E does not conform to any form of alienation of landed property known to the law. It was not sworn to, there was no witness nor attestation and some of the properties were company properties which cannot be transferred without board resolution. Counsel submitted that the fact that the parties were husband and wife did not absolve them from acting in conformity with the Companies Act 179 of 1963. Counsel cited the case of Owusu-Asiedu vrs Adomako and Adomako (2007 - 2008) SCGLR 591 where Date-Bah, JSC, held that “A deed need not be sealed, but a deed that is not sealed must be signed and the signature must be witnessed and attested …… An attested and witnessed signature will be recognized by the courts as a substitute for the requirement of a seal”. Counsel submitted that despite exhibit E the respondent continued to manage and control all the properties by executing tenancy agreements and collecting rents until he was injuncted in respect of House No. OTB 108/109 Adum Kumasi. On ground 6 Counsel for the respondent submitted that exhibit E was signed under duress or undue influence at midnight as evidenced by the last sentence “KEEP THEM IN PEACE” and hence unenforceable. On the last ground of appeal Counsel submitted that exhibit E made in 2002 was not made in contemplation of divorce which occurred in 2009 so the most important consideration was that the properties were acquired during the pendency of the marriage and that the court was obliged to distribute the properties in line with recent Supreme Court authorities cited by both Counsel in their written addresses which is 50% each. Counsel for the respondent therefore urged us to set aside the judgment of the court below as far as the enforcement of Exhibit E is concerned.

In answer to the submissions above, Counsel for the petitioner posited what he termed the mother of all issues to be determined in this appeal as “whether or not the court should consider the declaration made by the respondent in exhibit E as valid and binding on him”. Counsel for the petitioner cited the cases of Doku vrs Doku and Another (1992-93) 1 GLR 367 and Nsiah vrs Atuahene (1992-93) 2 GLR 898 to support his submission that “the generally accepted principle of law is that findings of fact made by a trial court ought not be disturbed unless they were perverse or unsupported by the evidence on record “or that the inference from the facts was wrong”. Counsel for the petitioner submitted that the trial judge rightly digested and stated the law impeccably with a litany of cases to support his decision. Counsel stated that there was no doubt that the respondent authored exhibit E devoid of fraud, coercion or duress of any kind and that he intended exhibit E to be binding on him. Counsel for the petitioner quoted the case of Gallie vrs Lee (1969) CH 17 that “whenever a man of full age and understanding, who can read and write sign a legal document which is put before him for signature, by which I mean a document which is apparent on the face of it is intended to have legal consequences, then if he does not take the trouble to read but signs it as it is relying on the words of another as to its character or contents or effect, he cannot be heard to say that it is not his document”. Counsel reiterated that exhibit E is in the handwriting of the respondent, it bears his signature and nowhere in the proceeding does he deny its content and authorship. Counsel quoted the respondent’s answer that he executed exhibit E “knowing very well that I could not dispose anything in this manner” and that “some of them were company property that could not be disposed of in this manner and that this document did not give her anything legally” and submitted that the respondent was inviting the court to give validity to his self confessed dishonesty. Counsel for the petitioner referred to the respondent’s answers under cross-examination that the documents on house number 233, Airport, Accra was acquired in the name of the petitioner and submitted that it did not need the resolution of a company’s board to dispose of it to the petitioner. Counsel quoted Wilson vrs Brobbey (1974) 1 GLR 250 that “when parties had embodied the terms of their contract in a written document, extrinsic or oral evidence would be inadmissible to add to, vary, subtract from or contradict the terms of the instrument. Thus a party of full age and understanding would normally be bound by his signature to a document whether he read or understood it or not …….” Counsel therefore urged us not to disturb the findings made by the trial judge as no serious questions of law have been raised by this ground of appeal.

Responding to the respondent/appellant’s arguments on grounds 2, 3, 4 and 5, Counsel for the petitioner/respondent submitted that the courts have over the years tried to equitably distribute property acquired during the subsistence of marriage mostly in the absence of clear and express agreement, but in this case, the parties themselves have expressly and voluntarily put the intention on paper i.e. exhibit E. Counsel quoted the case of Fosua and Adu-Poku vrs Dufie and Adu-Poku (2009) SCGLR 310 that “it is settled law that documentary evidence should prevail over oral evidence……” and submitted that it will be grossly inequitable and manifestly unjust to distribute all the properties here at stake equally to the parties in spite of the existence of Exhibit E.

In answer to grounds 6 and 7 of the appeal Counsel for the petitioner stated that there is no evidence that Exhibit E was executed by the respondent under duress or undue influence because the evidence disclosed that the respondent was more powerful and domineering than the petitioner who had to seek court order for police protection as per Exhibit A1 at page 426 of the Record of proceedings. Counsel for the petitioner submitted that the respondent has failed to establish the matters raised in the grounds of appeal and impressed upon us to dismiss the appeal and affirm the judgment of the trial court.

It can be seen from the judgment appealed against and the notice of appeal that Exhibit E entitled “Property Declaration by Alhaji Abdul Rashid” played a major role in the distribution of the properties acquired during the marriage of the two parties. The question before this court is whether effect should be given to it or it should be discountenanced. 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 by at least one witness.

2. Where an individual executes a conveyance that individual shall sign or place the 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 requirements 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 179. In effect the holding by the trial judge that “exhibit E is valid and binding on the respondent” and that “the properties ceeded to the petitioner are effective” is wrong in law and are hereby dismissed notwithstanding that the parties are man and wife. Our courts have long recognized that even when gifts are made between husband and wife they must conform to the laws or customs relating to gifts. See Sese vrs Sese (1984 – 86) 2 GLR 166, Asare vrs Kumordji (1996 – 79) SCGLR 660. The arguments made on behalf of the respondent/appellant on these grounds are hereby upheld.

Having discounted the legality and validity of exhibit E, the next issue to consider is how the various properties acquired by the parties during their marriage which were listed in exhibit E are to be shared. It must be pointed out that the various properties though acquired from the earnings of the companies were not in the name of the company but in the parties personal names. It is now settled that parliament having so far failed to enact legislation regulating the property rights of spouses in accordance with Article 22 (2) of the 1992 Constitution, what now bores sway is clause 3 of Article 22 which provides that:

a) Spouses shall have equal access to property jointly acquired during marriage and

b) Assets which are jointly acquired during marriage shall be distributed equitably between the spouses upon the dissolution of the marriage.

Thus in the case of Boafo vrs Boafo (2005-2006) SCGLR 705 it was held that:

The principle of equitable sharing of property jointly acquired by a married couple would ordinarily entail the equality principle, unless one spouse could prove separate proprietorship or agreement or a different proportion of ownership.

1) The provision in Article 22(3)(b) of the 1992 Constitution and Section 20 (1) of the Matrimonial Causes Act 1971 (Act 367) only made provision for the equitable distribution of property jointly acquired without laying down the proportions in which such property might be distributed. The reason for that omission was that the question of what was “equitable”, in essence, what was just, reasonable and accorded with common sense and fair play, was a pure question of fact, dependent purely on the particular circumstances of each case. The proportions would therefore be fixed in accordance with the equities of any given case”.

2) The case of Quartson vrs Quartson (2012) 2 SCGLR 1077 affirmed the above position of the law except that it added per incuriam “that the principle of equality is equity” is the preferred principle to be applied in the sharing of joint properties, unless in the circumstances of a particular case, the equities of the case would demand otherwise”.

In the light of the principles discernible from the two cases cited above, we will proceed to distribute the properties acquired by the parties during their marriage as equitably as possible in the light of the equality is equity principle, and also consider the separate proprietorship doctrine. We are also mindful of the fact deducible from the evidence led that the properties were acquired mainly from the profits accruing from the operations of Nayak Limited which was jointly owned by the parties in equal shares. We are also mindful of the fact that when it comes to distribution of properties among parties a lot of caution has to be exercised because matters such as the location of the properties, their nature, size, architecture and the like which affect their values will arise in which sufficient evidence may not be available to the court.

Property No O.T.B. 108/109 Adum Kumasi,

In respect of this property whilst the petitioner contends in her pleadings that the property was vested in her the respondent claims this property was bought by Nayak Limited from her resources and the documents covering them are in the name of Nayak Ltd. What the petitioner meant by this property is vested in her she explained in her evidence in chief. She testified that she got that property from the profit she made from Nayak Fisheries which was her sole company and other businesses. She tendered exhibits A, B and C in support of her evidence. These are Certificate of Incorporation, regulations of the company and certificate to commence business. All these documentations are in the name of Nayak Fisheries. But very significant is the regulations of the company which mentions the petitioner as the sole shareholder. The respondent’s evidence on this property was that the property was acquired by Nayak Ltd and it was Nayak Ltd that sued when the building was to be sold. Asked in evidence in chief where Nayak bought the property from respondent said from the D.I.C. He tendered exhibit 3 and 3A. Exhibit 3 was a letter written by the respondent to the Executive Secretary asking the DIC to furnish him with the date the property was sold to Nayak Ltd and the answer in Exhibit 3A was that it was sold in August 1999. The letter was addressed to the respondent as the chairman of Nayak Group of companies. We are of the view that the best evidence to establish Nayak Ltd ownership of this property is documentation in its name, particularly when there is a challenge to its ownership. These letters exhibit 3 and 3A cannot be conclusive evidence of the company’s ownership of the property, when examined in the totality of the evidence. In cross examination the respondent was asked

“Q. So as you sit here the Nayak Fisheries belongs exclusively to the petitioner. Is that right?

A. Yes, but the importation was being done by Nayak Ltd and also the building premises was built by me.

So the Nayak Fisheries belong to the petitioner. It was the importation of the fish that was being handled by Nayak Ltd. That Nayak Ltd was importing fish was evidenced by exhibits 2 series dated between 2004 to 2006. But these are periods that Nayak Fisheries had already been incorporated in 2002. There is also evidence that the respondent was doing the fishing business before formally incorporating Nayak Fisheries. It follows that the respondent was in this fishing business before Nayak Fisheries Ltd started its imports. But was there any linkage between these two companies? There is no evidence to that effect.

Further in his cross examination the respondent admitted that the application forms for the property was filled by the petitioner but when it got to the purchase it was made from the sale of fish. Which fish sales? The property itself was bought in 1999. The petitioner was already in the fishing business, admittedly with a loan of $100,000 from Nayak Ltd. It appears to us that if she was the only person in this fishing business, and that’s why the respondent gave her a loan, which fish sales paid for the property as testified to by the respondent, then the safest conclusion on the evidence, after assessing the evidence on its probabilities, is that the petitioner applied and paid for the property from the D.I.C. It may be true that the respondent or Nayak Ltd was involved in one way or the other in the operation of this fishing business but the extent of the involvement we have on record would not convert him or Nayak Ltd into a part owner of this property. We declare the property, No OTB 108/109, Adum Kumasi as belonging to the petitioner and her company Nayak Fisheries.

Property No. 233, Osibisa Close Airport residential area

On reading the records we find that there is sufficient evidence for a finding that this property was jointly acquired. Both parties admit that even though the land was bought in the name of the petitioner it was acquired from proceeds from an earlier company Rashida Ltd which they set up in 1981 which they both operated when they arrived from the United States. The respondent told the court he bought two plots, one in the petitioner’s name and the other in his own name. Unfortunately the one he bought in his name was resold by his vendor so he retrieved his money from the vendor and began building house No. 223 which eventually became their matrimonial home. Petitioner admits that it was the respondent who got the plots for this house through a friend of his but then both of them negotiated and paid for the land. Even thought the petitioner claimed that this property was put up solely by her, the evidence she gave in court clearly established a property they jointly acquired. Probably it is because the land is in her name, including the building permits, that misleads her into thinking that the property belongs to her alone. But she admits that the respondent bought several other plots in her name, some the respondent sold and some she does not know where they are. Respondent even bought some plot of land in the name of Rosemary Addai, a name the respondent gave her when they were about to go to the U.S. These clearly show that the property No. 223 being in her name does not make her the sole owner. This property we will declare as jointly owned to be distributed equally in the proportion of 50 – 50.

Property No. 21, Aviation Road, Airport West

The only reliable evidence on this property was given by the respondent. In his pleadings before the court he stated that this property was built with resources from Nayak Ltd. He bought this property from Ghana Railways with funding from Nayak Ltd and Rashida Ltd. Even though the said property is in his name he told the court it is a property jointly acquired. We have every reason to declare this property jointly acquired as their personal property to be distributed in equal shares of 50 – 50.

29 Official Road, Adabraka

In respect of this property the petitioner in her pleadings claimed that she took a loan to put up this property. Respondent on the other hand claims this property was put up with the resources of Nayak Ltd but it is in the name of the respondent. Strangely enough no evidence came from the petitioner on the loan she took from the bank, leaving the court with only the evidence of the respondent that this property was bought from Nayak resources. We understand Nayak resources as earnings the couple got from operating Nayak Ltd. Even though the property is in the name of the petitioner, on the evidence on record it would be fair to accept this property as jointly acquired for the benefit of the couple. We find that the couple are beneficiaries in equal share of 50 – 50.

House number 21, Achimota

The respondent testified that this house was acquired with sales from Nayak Limited in his name but they gave the house to their daughter Rashida Rashid on her marriage and the petitioner stated that she has no problem with that. We confirm the gift to Rashida Rashid.

Even though there is mention of a Sekondi property in Exhibit E nothing was said by the parties either in their pleadings or evidence in chief. If there is any such property that should also be enjoyed by the parties in equal share of 50 – 50.

All lands at Elmina and New Ashongman, if they had not been sold by either party should be shared equally by the parties.

This is a case which the parties having worked together at Rashida Limited and Nayak Limited for a long time should be able to share the properties they have jointly acquired. Accordingly the directive by the trial judge to the Registrar to make certain enquiries and place them before the trial judge for distribution is hereby set aside.

To the extent of the redistribution as held the appeal succeeds.

K. A. Acquaye

(Justice of Appeal)

Welbourne (Mrs.), J. A.          I agree               M. Welbourne (Mrs.)

(Justice of Appeal)

OFOE, J.A:

This is a supporting judgment to that delivered by my brother Justice Acquaye. I am in agreement with the facts as stated in his judgment and his brief narration of the evidence of the parties. I am also in agreement as to the distribution and the order that the property be distributed in those proportions. I will refer to the appellant as the respondent and the respondent in this appeal as the petitioner, that is the description as they were in the trial court.

The record of appeal discloses a straight forward case of dispute over ownership of properties acquired during marriage by parties recently divorced by the trial High Court. The petitioner in her divorce petition stated in paragraph 7 as follows:

“7. The petitioner says that they have not jointly acquired any property during the subsistence of their said monogamous marriage except that both parties have a fifty-fifty share in NAYAK Co. Ltd”.

This paragraph was fiercely challenged by the respondent. In his amended reply he stated

“3. In further reply to the said paragraph 7, the respondent states that the properties listed below were jointly acquired by the petitioner and respondent in the names of the petitioner, respondent or Nayak in the manner hereafter stated...”.

The said properties were then listed by the respondent. I will reproduce the list presently. Respondent cross petitioned for an order for the distribution of all properties jointly acquired by the parties as itemized in paragraph 3 and 4 of his answer to the petition.

The petitioner challenged the claim of the respondent that the said properties were jointly acquired. Out of the properties listed petitioner claimed in paragraph 2 of her amended reply and answer to the cross petition that 5 of the listed properties were exclusively vested in her and this was confirmed in by the respondent himself in a document which was admitted in evidence and marked as exhibit E. This exhibit took a centre stage in the trial and would be given the required attention.

From the positions taken by the parties it is clear to me that one of the major issues to be determined was the ownership of these properties listed by the respondent. It is thereafter that any other further orders may be made. Were the properties owned solely by the petitioner, were they jointly acquired with the intention of 50/50 ownership or some were company properties?

The properties listed by the respondent are as follows. I will list them in the order and lettering as presented by the respondent

“a. House No. OTB 108 & 109, Adum Kumasi

b. House No 223, Osibisa Close, Airport West Residential Area

c. House No 21, Aviation Road, Airport West Accra

d. 29 Official Road, Adabraka

e. 59 Kwame Nkrumah Avenue, Accra(Nayak Plaza)

f. Plot No 21, Achimota, Accra

g. Storey Building at Accra New Town

h. 10 building plots at Elmina

I Cold Store at H/No TDC/107/IND/A/3/9 Tema

j. Storey Building at Kaneshie

k. Rented Shop at Borwah House, Adabraka

l. Rented shop at Sight and Sound Building, Adabraka

m. Rented shop at Trade Fair

n. Nayak Ltd which deals in Fabrics and Fishing Business”.

Five of the properties the petitioner, Nana Yaa Konadu, claimed sole ownership of, in paragraph 2 of her amended reply, which she claims the respondent further confirmed in exhibit E as her own in writing are:

“1.The Odum, Kumasi property,

2. H/No. 223 Osibisa Close Airport West,

3. H/No 21 Aviation Road, Airport West

4. 29 Official Road, Adabraka,

5. Building Plots at Elmina”.

Reading the pleadings of the parties a legal duty is imposed to determine the legal significance of exhibit E, the alleged confirmatory document which conferred the properties on the petitioner. That will not be all. There is also the need to make a finding whether the properties in exhibit E were solely acquired by the petitioner. This approach to me is obligatory because the petitioner is not relying only on exhibit E for her claims but also that those properties were acquired solely by her.

On reading the judgment of the trial court it appears to me that the trial judge unfortunately proceeded as if he was bound to determine the ownership of the properties only on the basis of exhibit E without examining further the evidence whether the petitioner solely acquired and owns those properties. He said:

“So from the evidence given by the respondent all the properties were acquired during the pendency of their marriage from either Rashida Limited or Nayak Limited which is owned by both of them so the properties must be distributed to them on equal basis. The petitioner however insists that the respondent has ceded his interest in some of the properties to her as stated in exhibit E so the property cannot be distributed on equal basis as alleged by the respondent. In view of that the main issue that should be determined by this court is whether or not this court should consider the declaration made by the respondent in exhibit E as valid and binding”.

He accordingly proceeded to clear his way, disposing of submissions made by counsel for the respondent, to enable him make use of this exhibit. To a submission by the counsel for the respondent that exhibit E needed a signature to make it enforceable the trial judge stated that the ordinary incidents of commerce have no application in marital relations between a man and a husband and that in such relationship they do not need witnesses to take certain decisions. When they are taking decisions in the bedroom they do not need witnesses, it is the word of one against the other. A further submission that some of the properties are company properties did not hold the hand of the judge from declaring that the parties are entitled to half share of those properties. His view of the matter was that since the parties were the only shareholders of the company they could take decision for the company and that is what they did by transferring the company properties on exhibit E. So far as he is concern exhibit E is valid. He concluded the trial as follows:

“a. It is hereby declared that House No 233 Airport West, Accra: House No  21 Aviation Road, Airport West, Accra; one three storey building at Adabraka Official Town: House No OTB 108and 109 Adum Kumasi: buildings in Sekondi and all the lands at Elmina and New Ashongman in Accra are settled in favour of the petitioner in accordance with the eclaration made by the respondent in exhibit E.

b. It is further declared that all business except the Fabric business operated by Nayak Ltd are settled in favour of the petitioner in accordance with the declaration made by the respondent in exhibit E.

c. It is declared that 59 Kwame Nkrumah Avenue, Accra(Nayak Plaza) a building as Achimota: a cold store at Tema: a storey building at New Town, Accra: a storey building at Kaneshie, Accra and the Fabric business operated by Nayak Ltd are jointly owned by the petitioner and the respondent so each of them has 50% share in those properties. It is therefore ordered that the registrar of this court should cuase the said properties to be valued and based on the valuation report the properties shared equally between the parties

d. It is ordered that if it is the intention of the parties that the rented premises made up of shops at Sight and Sound buildings and 4 rented shops at Trade Fair should be shared between them then they should provide further and better particulars in terms of the rent and description of the premises for equitable sharing of the said rented premises between them”.

e. It is further declared that all the cars with the exception of the Nissan Patrol and two Nissan Pick Ups are settled in favour of the petitioner. The Nissan Patrol and the two Nissan Pick Ups are therefore settled in favour of the respondent”.

The respondent is unhappy at these conclusions of the trial judge and has filed 7 grounds of appeal. They are

“1. The judgment is against the weight of evidence.

2. The trial judge erred in holding that exhibit E was a legally competent and binding document, a Deed which conveyed the landed properties listed therein from the respondent to the petitioner.

3. The trial court erred in holding that exhibit E was not challenged by the respondent’s counsel when it is on the record that its validity as a proper legal document was put in issue by the respondent’s counsel and ruled upon.

4. The trial court erred in holding that the respondent’s counsel did not cross examine the petitioner on the content of exhibit E when the petitioner was not the author of the document and the respondent had conceded that he authored it.

5. The trial court erred in holding that the respondent the respondent’s lawyer did not cross examine the petitioner on exhibit E when he had put it to her and she conceded that the respondent continued to exercise control of and managed the properties listed in exhibit E after he signed it.

6. The trial judge erred when it failed to take account of the duress implicit in the content of the document, exhibit E.

7. The trial court erred when it misapprehended the issue before it for determination which was the distribution of assets acquired during the pendency of a marriage and not the interpretation of a purported contract,that is exhibit E which was not made in contemplation of divorce”.

As is commonly known, in an appeal we are doing a hearing and thisdemands a review of the whole evidence on record whether there is any reason to question the judgment of the trial court. Sieving through the record of appeal in performance of this duty of rehearing is a sole duty of an appellate court but where the appellant alleges that the judgment is against the weight of evidence then the appellant also assumes the duty to assist the appellate court by drawing the court’s attention to any evidence he believes has not been properly utilized by the trial judge.

It is also very necessary to appreciate the nature of the reliefs sought by an appellant so as not to unnecessarily exceed the jurisdiction the appellant by his appeal has conferred on the appellate court. The question to always ask is what part of the judgment is the appellant complaining of and what relief is he seeking from the appellate court? Rules 8(3) of the Court of Appeal rules demand that these should be incorporated in the notice of appeal. Reading the notice of appeal the part the respondent is complaining of is stated in paragraph 2 of the notice of appeal. I will quote this:

“The declaration of ownership of properties and business listed in Exhibit E in favour of the petitioner, that is: House No 233 Airport West, Accra, House No 21 Aviation Road, Airport West, Accra, Storey Building at Adabraka Official Town, Accra, Hse No 108/109 Adum Kumasi, buildings in Sekondi, Lands at Elmina and New Ashongman”.

The relief he is seeking is for this court to set aside the part of the judgment he is complaining of. That is, above quoted. And that is all that the respondent is in this court for. Has exhibit E the competence to dispose of the said properties as the respondent sought to do by exhibit E? Even though in certain circumstances the court can make other orders not sought for by an appellant we need to have in mind that limits are placed by the appellant on the issues for hearing in the appeal and there should be reason why an appellate court will want to exceed the limit. It is also for this reason appellate courts frown upon appellants who file grounds of appeal but fail to argue them, and in certain cases consider those unargued grounds as abandoned. With this in mind I proceed to rehear this appeal.

I have mentioned that exhibit E is pivotal in this appeal so let’s be very clear what is on this exhibit E.

“Property Declaration By Alhaji Abdul Rashid”

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 building in Sekondi, all the lands at Elmina and New Ashongman in Accra to Nana Yaa Konadu.

2. Nayak Plaza, one building at Achimota. The cold store at Tema and one storey building at New Town will be jointly owed (sic)

3. All the business has been ceded to Nana Yaa Konadu with the exception of the Fabric business which will be jointly owed (sic)

4. CARS- All the cars with the exception of the Nissan Patrol and two Nissan Pickup have also been ceded to Nana Yaa Konadu.

KEEP THEM IN PEACE

ALHAJI ABDUL RASHID

SIGNED”.

The properties mentioned in exhibit E, by the respondent’s pleadings are purported to be privately acquired properties and company properties. In that case the relevant statute to look at, to begin with, in the case of the landed properties, is the Conveyancing Act, 1973 NRCD 175. By its section 40 it provides:

“EXECUTION OF CONVEYANCES

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

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

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

By these provisions to convey the landed properties listed in exhibit E it must be attested to by at least one witness. This is not the case in exhibit E. Further, where any of these mentioned properties in exhibit E are company properties sub-section 3 says that for legal conveyance they must be executed in accordance of the Companies Code. On review of the evidence I do not find any of the properties concerning this appeal before us company properties. They are properties acquired from the proceeds of the companies for the benefit of the parties and not company properties. The Companies Code is therefore inapplicable.

Exhibit E, not having been witnessed as demanded by section 40 of the Conveyancing Decree, has not the legal competence to effect transfer of any of the landed properties, the subject matter of this appeal.

Having released these properties from the clutches of exhibit E, those on appeal before us, as mentioned earlier, are now available to be examined on individual basis whether the petitioner indeed owns any of them solely as he claims. This examination has been ably and satisfactorily carried out in the lead judgment.

We now have to make orders in respect of these properties. I have taken note that the registrar made certain orders intending to distribute the properties between the parties. It is not surprising he had to confess his difficulty because detail particulars of the properties were not before him. He thought that ordering the registrar to value all the properties for distribution was the solution. He had the same difficulty with the rented premises. He ordered the registrar to ask the parties to provide further and better particulars of the rented premises, including their description and place the results before him for a decision to be made on them, as he put it “if it is their intention that the court should share those rented premises between them”.

Such orders, if not carefully examined before issue, may have the effect of sharing the trial judge’s trial jurisdiction with the registrar It has always remained my view that when it comes to such matters involving distribution of properties amongst parties before the court a lot of caution has to be exercised lest we muddy the waters. Matters that immediately call for consideration is the nature of the property, its architecture, location etc. How many rooms are in a particular building for example. For a 50-50 distribution or equitable distribution the court necessarily needs to have detail particulars. Where the parties or one of them asks for an order for distribution, as in our instant case, I don’t think it is a request necessarily seeking the courts involvement in distribution of the properties, to the extent the court can suo motu order the valuation and sale of the properties. Who says the parties want the properties sold? We may have cases where one of the parties is occupying one of the properties the court orders to be sold. 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. Where the parties fail to amicably distribute they still have the option to seek the courts intervention. Then will the court, depending upon the circumstances, this time ask for detail particulars that may be needed of each property to effect the distribution on 50-50 terms or equitably. 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 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.

Subject to these observations I agree that the appeal be upheld in terms as declared by the lead judgment

V. D. OFOE

(JUSTICE OF APPEAL)