COMFORT OFORIWA vs. DANIEL DENTEH ANYIMADU
  • IN THE SUPERIOR COURT OF JUDICATURE
    IN THE COURT OF APPEAL
    ACCRA - A.D 2016
COMFORT OFORIWA - (Plaintiff/Respondent)
DANIEL DENTEH ANYIMADU - (DEFENDANT/APPELLANT)

DATE:  12TH MAY, 2016
SUIT NO:  H1/38/2015
JUDGES:  KANYOKE JA (PRESIDING), OFOE JA, DZAMEFE JA
LAWYERS:  MR. HUBERT SEVOR FOR THE APPELLANT
MR. SAMMANI ZATHANY FOR THE RESPONDENT
JUDGEMENT

 

OFOE, JA

The respondent, who in this judgment we would refer to as the plaintiff was the wife of the deceased, Nana Ampem Darko otherwise known as Mr. John Okyere Nyarko. The parties got married somewhere in late nineties. The husband, hereinafter referred to variously as the deceased or Nana Darko, left this part of the world on the 19th August 2002. It is the dispute over who is entitled to letters of administration to administer his estates that brought the parties face to face in the trial High Court eventually disputing whether all the properties known and mentioned in this case by the defendant were solely acquired by the deceased. In the plaintiff’s application for letters of administration the properties she mentioned were House No. D644/4 Tudu, House No.C86/5 Nima, House No.B 1060A/ 23 Abeka and unnumbered House at Muoso, Akim. But when she was compelled to go through a full trial for a determination who owns these properties she sued the head of family and the customary successor of the deceased asking from the trial court;-

 

“1.A declaration that all properties standing in the name of the late Nana Ampem Darko, also known as John Okyere Darko were jointly acquired and owned jointly by the deceased and the plaintiff Comfort Oforiwa.

2. A declaration that the plaintiff as surviving joint owner and spouse is entitled to administer all the properties jointly owned and standing in the name of the deceased.

3. In the alternative, a declaration that the deceased held in trust all the properties standing in his name for the benefit of the plaintiff his surviving spouse”

 

The defendant did not only deny the joint ownership claim of the plaintiff but counterclaimed for a declaration that all the following houses are personal acquisitions of the deceased: No D644/4 Tudu, C86/5 Nima, B 1060A/23 Abeka, 35, 41 Kojo Ashan Street, North Alajo, 103 Nii Tetteh Kpeshie Street, Kwashieman, D686/4 Okaishie, 143/16 Alajo, Unnumbered House Akim Manso, Unnumbered House at Obo Kwahu, Land at Alajo.

 

Other claims of the defendant related to movables of two cars, pistol, mobile phone, fridge, sound system, video deck, jewellery etc. The trial court concluded, rightly in our view, that no evidence was led on these movables. Indeed the parties did not give any prominence at all to these properties throughout the trial. Other claims made in the counterclaim were for the court to declare that one Mercy Koranteng was also a wife of the deceased, and that all the properties should be distributed according to PNDC Law 111.

 

At the end of trial the court found some of these properties jointly owned as claimed by the plaintiff and made the following orders and declarations

 

“1. A declaration that House Number D644/4 Tudu, House No C86/5 Nima with adjoining land, House No B1060A/23 Abeka and House No.35 41 Kojo Ashan Street, North Alajo were jointly acquired and owned by Nana Darko and Plaintiff as Tenants in Common.

2. An order granting plaintiff leave to choose any two houses from House No.D644/4 Tudu,House No.C86/5 Nima, House No. B1060A/23 Abeka and House No.35, 41 Kojo Ashan Street, North Alajo as her share of the properties held as Tenants in Common with Nana Darko.

3. An order given land adjoining House No. C86/5 Nima to plaintiff as part of her share of the properties held as Tenants in Common with Nana Darko

4. An order declaring that the remaining two houses not chosen by the plaintiff from House No D644/4 Tudu, House No. C86/5 Nima, House No B1060A/23 Abeka and House No.35, 41 Kojo Ashan Street, North Alajo House constitute immovable properties within the estates of Nana Darko and directing that they should be shared among the beneficiaries of his estate in accordance with PNDC Law 111.

5. An order dismissing plaintiff’s claim that the unnumbered house at Muorso Akim was the joint property of plaintiff and Nana Darko and declaring that the house at Mourso Akim is the sole property of Nana Darko(Deceased).

6. An order declaring that the land situate at Alajo and currently sold to Fraga Oil is the sole property of Nana Darko(Deceased)

7. An order dismissing the defendant’s claim that No 103 Nii Tetteh Kpeshie Street, Kwashieman, House No D686/4 Okaishie, House No. 143/16 Alajo and unnumbered house at Obo Kwahu were the self acquired properties of Nana Darko(Deceased) and declaring that No 103 Nii Tetteh Kpeshie Street, Kwashieman, House No D686/4 Okaishie and unnumbered house at Obo Kwahu are the solely held properties of the plaintiff.

8. An order declaring that House No 143/16 Alajo did not form part of the properties of either plaintiff or Nana Darko(Deceased)

9. An order appointing the plaintiff and the defendant as co- administrators of the estate of Nana Darko’s estate.

10. No order is made as to costs.

 

Aggrieved at these declarations and orders of the trial court the defendant has appealed to this court praying that we set aside the whole judgment and orders of the trial court and enter judgment for him. What he wants us to consider in honouring his request he has provided for under the 8 grounds of appeal filed in this court on the 13th of June 2013. We reproduce these grounds of appeal:

 

The judgment is against the weight of evidence adduced at the trial.

 

The learned trial judge erred when she failed to give any or adequate consideration to and examination of the case and evidence of the defendant. The trial judge erred when she disregarded the serious inconsistencies in the case and evidence of the plaintiff and her witnesses

 

The trial judge erred when she held that the plaintiff provided more income for the acquisition of the properties The trial judge erred when she held that the plaintiff ought to have a greater share of the properties.

 

The trial judge erred when she declared houses numbered D644/4 Tudu, C86/5 Nima, B1060A/43 Abeka and House No 35/41 Kojo Ashan Street, North Alajo as jointly acquired properties.

 

The learned trial judge erred when she ordered the plaintiff to choose any two houses from the list of four houses that she erroneously declared as jointly acquired properties.

 

The trial judge erred when she gave land adjoining House No C86/5 Nima to the plaintiff as part of her share of the properties.

 

On reading the record of appeal we noticed that the defendant has abandoned grounds 2 and 3 of the grounds of appeal and has inadvertently numbered what should be ground 4 as ground 2 in his submissions. We will therefore give no consideration to grounds of appeal numbers 2 and 3.

 

The question we pose for consideration, and which is primary, in disposing off this appeal is whether there was evidence for the trial judge’s conclusion that the properties herein mentioned located in Tudu, Nima,Abeka and North Alajo were jointly owned. On this issue the plaintiff claimed that these properties were acquired through their joint trading effort using the J.K.O. Darko Stores, a registered trading enterprise, as the vehicle for this trading activity. The defendant on the other hand claimed that the deceased was trading alone. In addition to the trading, the defendant contended that the deceased also had a filing station, a cocoa farm, herds of cattle and palm plantation which additional incomes the deceased used in acquiring all the properties he has counterclaimed for in the trial.

 

In proceeding to review the evidence put before the trial court whether this appeal is sustainable we must state as a reminder the legal inhibition placed on an appellate court. It is that where findings of the trial court is based solely on the demeanour and credibility of the witnesses then the trial court which had the opportunity of seeing and hearing the witnesses was in a better position than the appellate court. The appellate court should therefore be slow in interfering with such findings. This rule however is not without limitations. Where however the findings are based on established facts an appellate court is entitled to draw its own inferences from the established facts. This is the way the Supreme Court stated it in the case of Agbeshie vrs Amorkor (2009) SCGLR594 at 601

 

“The principle of law is that where a trial court took into consideration the demeanour of the witnesses before him/her as well as the substance and quality of their oral and documentary testimonies, before giving judgment, then an appellate court has no power to disturb or interfere or reverse the judgment of the trial court: see Ntiri vrs Essien (2001-2002) 451, where this court held that

 

“It is the trial court which determines matters of credibility of a witness: these include the demeanour of the witnesses, the substance of his testimony, the existence or non existence of any fact testified to by the witness”

 

But then it is also recognized that an appellate court may reverse findings of facts made by the trial court based on established facts, in which case the appellate court was in the same position as the trial court and could draw its own inferences from those established facts”

 

For a clearer and better application of these principles refer further to the case of Koglex Ltd (No2) vrs. Field (2000) SCGLR175.

 

In fact these principles which guide appeal situations in appellate court is what could also be understood as an appeal by way of a rehearing and an appellate court has a duty to make its own independent examination of the record of proceedings and reverse the trial court if it finds strong reasons for such a step.

 

This appeal has not presented us with any dispute for settlement as to who bears the burden of proof in this dispute. We will still mention, just by way of reminder, however that the burden of proof carried by parties at a trial is provided for by the blending of section 10 to 17 of the Evidence Act NRCD323. These provisions have been subjected to several judicial decisions we can state with confidence that the resultant position is a duty imposed on the court to find out whether a party who carries the evidential burden has successfully led sufficient evidence in discharge of this burden at the end of the trial for a determination to be made in his favour. On sufficiency of evidence Her Ladyship Mrs. Wood, as she then was, in the Court of Appeal case of Yeboah vrs. Amofa (1997-1998) 1 GLR 674 at 682-684 has this to say at page 683 and we adopt it

 

“I notice from section 11 of NRCD 323 that the statute does not attempt any definition of “sufficient evidence”. In other words no attempt is made in disclosing what evidence will be deemed sufficient and what could be classified as insufficient. The reason is not difficult to find. It is definitely a question of fact determinable on the peculiar facts of each particular case. So that what constitutes sufficient evidence in case A may not necessarily be sufficient evidence in case B………….. I think when the two cases are read in the light of sections 11(1) and (4) and 12 of NRCD323, all the law required of a person who seeks declaration of title is to lead such particular or sufficient evidence as the circumstances of the case would permit, so that on all the evidence a reasonable mind would conclude the probabilities of the existence rather than the non existence of the fact”.

 

After quoting the cases of Majolagbe vrs. Larbi (1959) GLR 190 and Sabrama vrs. Segbedzi (1991) 2GLR221 Her Ladyship continued on the evidence of a single person or witness and the issue of corroboration. She said:

 

“And the principle discernible is that a person may be required to produce corroborative evidence only where the circumstances demand that such evidence must necessarily be in existence. Thus a court would be satisfied with the evidence of only one person without insisting on corroborative evidence, and reckon such evidence to be sufficient where in the nature of the relief sought and more particularly, the particular circumstances of the case, the party has none in existence to offer. I think therefore that what we have to do is to examine the facts of this case and find out if the evidence of the plaintiff alone is nevertheless sufficient”

 

And for a party who has been provoked to counterclaim also has a duty, as stated in Aryeh & Akakpo vrs Ayaa Idrissu (2010)SCGLR 891 as follows

 

“..A counterclaimant bears the burden of proving his counterclaim on the preponderance of probabilities and would not win on that issue only because the original claim has failed. The party wins on the counterclaim on the strength of his own case and not on the weakness of his opponent’s case”

 

Suffice it to say therefore that the plaintiff had a duty to lead sufficient evidence that she indeed traded with the deceased husband and from the proceeds of the trading they acquired these properties. The defendant who also has a counterclaim has a similar duty to convince the court that indeed the deceased traded alone, had these other income generating ventures, which together provided him the resources to acquire these properties solely.

 

We have reviewed the evidence on record and we found, as did the trial judge, that there was more than sufficient and convincing evidence from the plaintiff and witnesses that she traded together with the deceased and it was from the trading they acquired all the properties. The evidence is unchallenged that the plaintiff was already doing some trading before the deceased joined him after his resignation from the police service in 1969 as a Constable. 92 years old Comfort Antwi, the deceased’s only sister and Emmanuel Nyarko who testified for the plaintiff told the court how the plaintiff was already trading before the deceased joined him and after sometime they gave their trading enterprise the status of a registered company with the name JKO Darko Stores. . Comfort Antwi, in corroboration of the plaintiff’s evidence, mentioned how the deceased tried driving as his means of living but had to abandon it because he was not successful and joined the plaintiff in her trading. Comfort Antwi’s evidence was emphatic that, yes, the deceased had a cocoa farm which he inherited from his uncle but this farm and the palm farm were not productive. She said the deceased abandoned these farms subsequently. She told the court that at a certain point in time she was in charge of the cocoa farm. There is no reason to doubt the evidence of Comfort Antwi. Despite her age she appeared from the record of appeal, to have good recollection of events and convincing in her narration of what she knew of the brother and the wife.

 

The evidence is unchallenged that before their business boomed and they started acquiring properties, the deceased stayed with the plaintiff in her rented place at Asylum Down. Mr. Yaw Obeng Darko, the fourth defence witness added further corroborative evidence to that of the plaintiff and her witnesses on the joint trading activities of the couple and subsequent acquisition of properties. He told the court he stayed with the couple in and around 1974 at Alajo. He narrated how the deceased would send him to purchase goods and when he came back the distribution would be directed by the plaintiff into various outlets they had then opened for their trading. There was also a Nyarko who also told the court he was a trader buying goods from the plaintiff and husband for sale.

 

The defendant testified and called 4 witnesses. None of the witnesses said anything supportive of the defendant’s case. The 1st witness testified to the funeral of the deceased and the expenses and accounts of the funeral. The 2nd witness testified to $8000 which was found in the deceased hospital bed and how that money was spent. The 3rd defendant witness was from the Internal Revenue Service who virtually abandoned the trial midway. The 4th defendant’s witness we have already pointed out testified corroborative of the plaintiff’s case. By the evidence of the 5th defence witness, DSP Adjei, subpoenaed from the police service, the deceased joined the police service in 1957 at age 23. He resigned in 1969 but was paid no entitlements because he resigned from the service. A review of the evidence led by the defendant and witnesses will give support to the trial judge when she said;-

 

“It is only the defendant who tried to present to the court that Nana Darko set up business by himself, for himself, and with only himself. And in that attempt he was not at all successful…”

 

The evidence is clear on the record that the business JKO Darko was a continuation of the business started by the plaintiff. It was to formalize the trading activities that they registered this firm. Defendant was not able to convince the trial judge how the deceased alone raised and capitalized this JKO Darko firm and how it operated without the involvement of the plaintiff. What income came from the other enterprises he claimed funded the wealth of the deceased? Defendant led no convincing evidence leading to the trial judge concluding that the properties, the subject matter of the trial, were jointly acquired. The evidence about the ammunition business, the road construction business, and the filling station which the defendant relied on also as the wealth generating source for the wealth of the deceased was considered by the trial judge but she held that these businesses were established long after the properties in issue in this case were acquired. She stated and concluding as follows:

 

“I will now answer the question from what income were the properties being disputed acquired? Of the indentures brought to court to cover the properties at Tudu (1980), two at Nima (1976 and 1979), Abeka (1978) North Alajo (December 1978) and Abossey Okai (1977), all the properties are in the name John Kwadwo Okyere Darko. They were all acquired between 1976 and 1980- during the time when JKO Darko Stores was dealing in provisions and ammunitions. I have already made the finding that the Construction and Filling Station and alleged Shark Fin business of Nana Darko were conducted long after these properties were acquired. This brings us squarely back to income from JKO Darko Stores. I have also stated that I find that although on paper JKO Darko Stores was a sole proprietorship owned by Nana Darko, in actual fact the business conducted with that name was initiated and capitalized by plaintiff alone although its income from 1972 thereafter was created by the joint endeavours of plaintiff and Nana Darko in the provisions and arms business. Whatever money Nana Darko made during the time that the properties were acquired came from JKO Darko Stores whether it is from the trading in provisions, plastic ware and other goods or from trading in arms and ammunitions. Since the business of JKO Darko Stores was solely capitalized and jointly managed and expanded after the marriage in 1972, it’s a necessary inference that all the money that came into the hands of Nana Darko through the business of JKO Darko Stores was partly owned by the plaintiff in the same way that any money that came into the hands of the plaintiff after they starts to do business as JKO Darko Stores was partly owned by Nana Darko as a part owner of JKO Darko Stores……….”

 

On reading the record of appeal it is our view that these are justifiable and acceptable assessment and findings made by the trial judge. Also acceptable are the trail judge’s findings that houses located in Tudu, Nima, Abeka, and North Alajo were jointly acquired. We think the records give ample support to her findings we have no reason to depart. If there is anything else we want to put on record then it is rather to commend the trial judge for her methodogical and incisive analysis of the evidence. This disposes off ground 6 of the grounds of appeal.

 

On a close reading of the remaining grounds of appeal i.e. grounds 4, 5, 7 and 8 we came to the conclusion that they all expressed dissatisfaction at the nature of the distribution ordered by the trial judge. Counsel for the defendant in his submission asked whether the evidence disclose that the plaintiff provided more income for the acquisition of the properties than the deceased and therefore ought to have a greater share as found by the trial judge? Counsel went further quoting the trial judge at page 341 and 337 of the judgment and submitted that the trial judge was inconsistent in her conclusions in respect of the ownership of the property. According to counsel in one breath the trial judge found that the properties were jointly owned by the plaintiff and the deceased and in another breath she found some of the properties solely own by the plaintiff.

 

We need to be clear in our minds what properties were identified as properties in the trial. It appears there was not much disagreement as to what these properties were. The defendant mentioned them as

 

House No D644/4 Tudu, Accra.

 

House No. C86/5 Nima

 

House No B1060A/23 Abeka, Accra

 

House No.35,41 Kojo Ashan Street, North Alajo, Accra

 

House No 103 Nii Tetteh Kpeshie Street, Kwashieman, Accra.

 

House No.D686/4 Okaishie Accra

 

House No. 143/16 Alajo, Accra

 

Unnumbered House at Akim Mourso

 

Unnumbered House as Obo Kwahu

 

. Land at Alajo

 

This is what she said:-

 

“ Now if Nana Darko and the plaintiff jointly owed the following disputed properties, House No D644/4 Tudu, House No C86/5 at Nima, House No. B 1060A/23 Abeka, House No 35, 41 Kojo Ashan Street North Alajo and the land at Nima, what ought to be the just declarations of this court concerning them? In keeping with the tenets of Tenancy in Common these properties ought to be shared between the plaintiff and Nana Darko. There are 4 houses and one plot of land involved. I hold that the plaintiff ought to be given two of these houses as belonging to her from her share of the jointly owned properties and she has the option of choosing which two. I have already said that the evidence is obvious that JKO Darko Stores was capitalized by the plaintiff and so in the inequality of the quantum of the properties, the plaintiff ought to have the greater share of the properties. For the above reason, I also give her the land at Nima. The remaining two houses will be Nana Darko,s share of the joint properties and will form part of his estates to which the plaintiff will have a share under PNDC Law 111…..”

 

Now what about House No. 143/16 Alajo, House No. 103 Nii Tetteh Kpeshie Street (Hong Kong), and House No. D686/4 Okaishie which were part of the properties mentioned by the defendant as owned by the deceased? These were found by the trial judge as solely belonging to the plaintiff and his son and were therefore not taken account of in the distribution she ordered. We will come back presently to this question.

 

It would appear from the evidence that the land at Nima given to the plaintiff is land adjoining the property C86/5 at Nima. There is another piece of land at Alajo which the trial judge gave to the deceased. From the evidence on record this Alajo land was sold to a company Fraga Oil to raise funds for the funeral of Nana Darko. Balance of the sale price is still awaited from the company. Since the family has treated this land as that of the deceased and sold it for the funeral of the deceased it was in order that that land is confirmed for the deceased and another piece of land, which the trial judge found at Nima, be given to the plaintiff. On the evidence the sharing of these plots by the trial judge we find equitable. We have no reason to disturb it. There are two other properties located in Obo and Mourso Akim which she found also jointly acquired. The trial judge shared these amongst the parties giving the Obo property to the plaintiff who hails from Obo and the Mourso property she gave to the deceased. Here also we think the trial judge was fair.

 

Now to properties House No 103, Nii Tetteh Kpeshie Street, Kwashieman (Hong Kong) Accra, House No D686/4 Okaishie, Accra and House No. 143/16, Alajo Accra we mentioned earlier.

 

Ownership in the two which were already in the plaintiff were endorsed for the plaintiff by the trial judge and one, the Alajo house which was also already in the name of the plaintiff’s son she declared to be that of this son. Having stated firmly that all the properties acquired during the marriage between the plaintiff and defendant were acquired from the jointly owned income of the parties there should be reason why these properties should be considered as belonging solely to the plaintiff and son and not included in the distribution ordered by the trial judge. If all the properties in the deceased name have been pooled together and distributed why should that in the name of the plaintiff which were also part of the jointly acquired property not be amongst the pool for distribution? The evidence is undisputed that property No 103, Nii Tetteh Kpeshie Street (Hong Kong) had been in the name of the plaintiff during the lifetime of the deceased just like other properties have been in the name of the deceased. The property House No 143/16 Alajo was also transferred by the deceased to Kofi Nyarko, the plaintiff’s son during the life time of the deceased. From the evidence this property was bought for and intended to be for Kofi Nyarko. In respect of the Okaishie property the evidence is that the plaintiff at a point in their marriage put pressure on the deceased and got this property transferred from the deceased’s name to her name. The pressure was the type that resulted in quarrels where witnesses in this case had to intervene. One of such quarrels was at a Kofi Nyarko’s funeral. Plaintiff’s evidence and corroborated by these witnesses was that she started demanding the properties because she was told by the son that all these properties were in Nana Darko’s name. She smelled the rat and felt cheated and decided to mount pressure on the deceased for release of these properties. The question is at the time when she started demanding the properties from Nana Darko was she demanding that all the properties which the trial judge found the couple jointly acquired be put in her name or she was asking for her share? The defendant was captured by the trial judge as follows;-

 

“He (the deceased) said he had built the Alajo property for the plaintiff’s son. He had acquired Kwashieman Hong Kong house for the plaintiff. When plaintiff asked for properties from the deceased, she was asked to choose and plaintiff chose the Okaishie building. My brother told me that he initially did not agree because Alajo was in his son’s name and Honk Kong in plaintiff’s name because it would mean that she would have greater part of properties for the sake of peace. He also said what he intended for persons other than himself were put in their names”

 

So far as the defendant is concerned the deceased told him that the plaintiff has been given her share of the properties and should be entitled to nothing anymore. This evidence of the defendant we think should have been given more attention by the trial judge

 

It is worth quoting the reasoning and conclusion of the trial judge as it relates to these three properties She said;-

 

“Whether this uncorroborated evidence (i.e. the defendants evidence captured by the trial judge quoted above) is to be believed or not, it shows clearly that in his life time, Nana Darko acknowledged that these three properties ought to be in the sole names of persons other than himself. It was acknowledged by Nana Darko that the Alajo property should be in Kofi Nyarko’s name and Kwashieman Hong Kong and Okaishie properties should be in plaintiff’s name- for whatever reason, then at the point of their deliberate transfer in his life time- from his name into their names, the Alajo and Okaishie properties ceased to be joint property and became the sole property of the transferees. By that deliberate transfer I hold that Nana Darko relinguished whatever interest he may have had in the Alajo and Okaishie properties. Concerning the Kwashieman property, Nana Darko obviously knew that it was in plaintiff’s name and made no effort to lay a claim to it. No evidence has been led by the whole parade of witnesses to show that Nana Darko also sought a transfer into his name during his life time as plaintiff was doing with the other properties and which he accepted as right before witnesses………… In the clear face of evidence that Nana Darko expressed no intention to own a part of the Kwashieman property, I find that it is the sole property of the plaintiff”.

 

In the view of the trial judge Nana Darko having voluntarily transferred the properties at Okaishie and Alajo into plaintiff and his son Nyarko’s name respectively and not making any attempt at questioning in his life time also the Kwashieman- Hong Kong property which was in the plaintiff’s name then Nana Darko should be seen as having relinquished his interest in the Okaishie house to the plaintiff and Alajo house to Kofi Nyarko and that the Kwashieman property should be seen as the sole property of the plaintiff.

 

The question that agitates the mind is why was Nana Darko refusing to transfer the properties to the plaintiff and had to be compelled to transfer the Okaishie house to the plaintiff? Is it not reasonable in the light of the evidence before the court to infer that Nana Darko had in mind sharing of the properties and thought that the plaintiff had had enough and that was why he was reluctant adding the Okaishie property to the Kwashieman Honkon property which was already in plaintiff’s name? It should not be forgotten that this Kwashieman property, even though in plaintiff’s name was one of the jointly acquired properties? Could it be the intention of Nana Darko to give out all these three houses to the plaintiff and his son before beginning to share the remainder of the properties equally between himself and the plaintiff or his intention for hesitating in sharing the property with the plaintiff was to take account of the fact that the plaintiff and son already had some of the properties and that should be enough for them? The answer appears obvious to us that the deceased did not intend giving the plaintiff any more of the properties than what he had given the plaintiff and son. That surely would be unfair. But it would also be unfair to have any other property jointly acquired like the two in the plaintiff’s name to be left for the benefit of the plaintiff alone. We think apart from the Alajo property given to Kofi Nyarko plaintiff’s son, all other properties in the name of the plaintiff which were also found to be part of the jointly acquired properties of the couple should be part of the properties to be shared between them. Therefore the Okaishie and the Kwashieman properties in the name of the plaintiff, i.e. No 103 Nii Tetteh Kpeshie Street, Kwashieman (Honkong) and No D686/4 Okaishie, Accra should also be shared equally. Just like the trial court gave the plaintiff the first option to choose 2 out of the 4 she preferred we will also give the plaintiff the option to choose one of the two houses she prefers.

 

After reviewing the evidence in our rehearing function we endorsed the distribution ordered by the trial judge but it is our view that the trial judge misapplied his discretion only in respect to the two houses and as permitted by the authorities we hereby rectify. Refer to the cases of Gatco vrs. Pharmadex (1999-2000)2GLR262, Kyenkyenhene vrs. Adu (2003-2004)1SCGLR142, Sappor vrs. Wigatap (2007-2008) SCGLR676. The choice granted the plaintiff both in the High Court and this court should be exercised within a month from today.

 

Subject to this variation we dismiss the appeal.