KUMASI - A.D 2016
E & CO.383 FRANKLIN STREET BLOOMFIED - (Plaintiff/Appellant)

DATE:  27TH JUNE, 2016
SUIT NO:  H1/1/2016


The Plaintiff/Appellant in this matter sued three Defendants and obtained judgment. He then attached H/No Plot 70, Block E, Kwadaso South, Kumasi in execution of the judgment. The 1st Defendant/Judgment/Debtor had executed a mortgage over the property as security for the debt over which judgment had been obtained and this was ostensibly the reason why the Appellant attached the property.


The claimant Respondent filed a claim to the attached property on the ground that he had a joint interest in the property. His position was that the property was willed to him, other siblings, and the 3rd Defendant/Judgment/Debtor by their father. As such, the property could not be mortgaged by the 3rd judgment debtor acting through the 1st judgment debtor without his consent, and could not be disposed off in settlement of the 3rd Defendant/Judgment/Debtor’s debt because of his joint interest.


His claim was resisted by the Appellant and the competing claims were set down in an interpleader action and settled through trial. After the trial, the judge gave his judgment setting aside the attachment. The final paragraphs of the judgment, which were reproduced in the Appellant counsel’s submissions before this court are significant and I set them down here verbatim.


‘There is no evidence before me that after the property vested in the beneficiaries they went ahead to divide the vacant land which forms part and parcel of the house put up by their father among themselves.


I believe they did not do so in order to protect their joint interest in the remaining vacant land. Thus each of the beneficiaries had equal right/interest in the vacant land. This therefore means even though Susana had the right to put up the office complex on that portion of land she only has a life interest in same.


For this reason she should have sought the consent of the other beneficiaries before using same as security


For this reason this court cannot carve out the office complex and order its sale in execution of the judgment


For this reason I enter judgment for the Claimant


Apart from my indication that these words are significant to the evaluation of the appeal, I do not much agree with Appellant counsel on the language, expressions and tenor of his submissions.


Cases in court are determined by the application of law to the issues of fact and law presented within the problems brought to court. This is what distinguishes courts from other forums for discussing and resolving disputes. Thus when counsels argue matters before courts, they must consistently do what I will term ‘legal 360 thinking’. They must swing their looking glasses over the entire problem looking for the legal positions on evidence, procedure, and the substantive law of the case. What are the kernels of law to be distilled and cracked from the conundrum presented? If the rules of procedure have been properly followed, and the evidential burdens regarding facts are discharged, then the legal issues left to be settled lie within the substantive law of the transaction under review.


In the current case, the conclusions of the judge evoked a look at principles in land law and conveyancing, and the proper construction of the Will through which the property was given to the


Claimant/Respondent and 3rd Defendant/Judgment Debtor. Counsel for Appellant used many harsh words regarding this judgment without identifying the necessary principles in these areas of law necessary for resolving the dispute, except the usual references to jurisprudence on the rules for evaluating evidence. To my mind, such a posture is not helpful to the due resolution of cases.


Fortunately, every appeal is a rehearing of a case, as directed by Rule 8 (1) of the Court of Appeal Rules 1997 CI 19.


These are the grounds of appeal set out by the Appellant counsel

i. The trial judge erred in law when he held that 3rd Defendant/Judgment/Debtor had only a life interest in the office complex.

ii. The trial judge erred in law when he held that 3rd Defendant/Judgment/Debtor should have sought the consent of her two brothers before consenting to the use of the office complex as security for 1st Defendant’s loan.

iii. The trial judge erred in law when he failed to appreciate the fact that outside the right of 3rd Defendant to mortgaged, inter alia, the office complex, Plaintiff was within its right to proceed against 3rd Defendant’s personal property pursuant to her personal guarantee of 1st Defendant’s loan and subsequent judgment against 3rd Defendant personally.

iv. The judgment was against the weight of evidence.


The issue before the court was whether in view of the undisputed devise of the attached property to the claimant and the 3rd Defendant judgment debtor by their father, the property could be attached and sold in settlement of the 3rd Defendant judgment debtor’s debts.


A preliminary issue which I believe was not contested but needs to be established is that even if the mortgage executed by the 1st Defendant/Judgment/Debtor over its lease in the office complex as security for the debt failed for various reasons, as long as the 3rd Defendant/Judgment/Debtor was also liable for the debt, her personal property could be attached in settlement of her debts. The only problem was whether the attached property could be regarded as ‘her property’ for the purpose of settling her debts. The answer of the learned trial judge was that she had a joint interest with the claimant and others, and without their consent to the property’s use as security for her debts, it could not.


I must disagree with the learned judge for two strong reasons. My first reason is that the interest of the 3rd judgment debtor in the willed property was not held as a joint indivisible interest, and the second was that even if it was, (which it was not), joint interest in property may be divided or severed without the consent of the other interest holders. These answers have been clearly and strongly settled in statute and our jurisprudence and it is these legal answers that Appellant counsel, as an officer of the court, should have invested in. I will deal with the second issue first.


In Owusu-Asiedu v Adomako & Adomako 2007 – 2008 SC GLR 591, the issue for resolution was whether a divorced husband could gift his portion of property acquired jointly with his former wife, which property remained in their joint names after their separation, without her knowledge and consent. Their deceased caretaker’s wife had alleged that the husband had gifted the property to her late husband and the wife contested this alleged gift on the ground of her joint interest and the lack of knowledge or consent to the alleged gift. She also contested the validity of the alleged instrument evidencing the said gift. The caretaker’s wife lost the case in the High Court. On appeal, the Court of Appeal per Owusu-Ansah JA, answered the issue of severability of joint interest in landed property without the knowledge and consent of the other owner with these words quoted by the Supreme Court


In view of the joint ownership of the property one of the Plaintiffs could not have alienated any part of the property without reference to the other party. This is the result of the principle of unity of interest….I hold


therefore that where, as in this case, property is owned jointly (as opposed to tenancy in common) either party may alienate his interest only with the knowledge and consent of, or with the concurrence and approval by, or in concert and consultation with, the other joint owner for obvious reasons.’ ‘


The Supreme Court, per Date-Bah JSC, heartily disagreed with him. These were his words on page 595


This statement of the law is, with the greatest respect, incorrect because alienation by a joint tenant of his or her interest without the knowledge or consent of the other joint tenant will usually be an act of severance by which the joint tenancy is converted into a tenancy in common. An act of severance determines the joint tenancy. ‘


The Supreme Court went on to give an example of such a situation which is akin to the case before us. In First National Securities v Hegerty 1985 1 QB 850, a husband had signed his wife’s signature on a loan application and legal charge over the property, without her knowledge or consent. He fell into arrears on the loan application. In divorce proceedings by the wife in which she sought to have the husband’s interest transferred to her, the courts had held on page 834 of the Report that ‘..this disposition (the loan agreement and charge) by the husband was a sufficient act of alienation to sever the beneficial joint tenancy and convert the husband and wife into tenants in common’.


The Supreme Court cited a second English case of Cedar Holdings Ltd v Green 1981 CH 129 where at page 138, Buckley LH had said inter alia concerning the creation of a legal charge by one party in a joint interest over the property in issue ‘…the legal charge or the contract would have effected a severance of the joint beneficial ownership. The legal charge or the contract would constitute an act by one of the joint owners operating upon his own share. This would fall within the first of the three methods of severance mentioned by Page Wood V-C in Williams v Hensman (1861) 1 John & H 546, 557. The effect of such an act is to destroy the unity of interest theretofore existing between the joint owners and so to put an end to the joint ownership


The Supreme Court went on to draw attention to the fact that in the cases relied on by the Court of Appeal to reach the determination that a joint interest in property was not severable, the joint interest concerned had not been severed by an act of alienation. The court concluded that ‘since a joint tenant is capable of severing his interest in the joint property by an act of alienation, the issue is reduced to whether the acts purported to have undertaken were effective as acts of alienation.’ This clarification settles the issue of severance of joint interest in situations where one party had clearly undertaken acts which amount to alienating their interest in the property. The other interest holders are no longer required to remain clinched to him, like helpless Siamese twins with no hope of escape from that person’s readiness to risk or give away their share. Acts of alienation to third parties, even if done without the knowledge and consent of other joint interest holders, amounts to severance of the joint tenancy and the creation of a tenancy in common.


In the current case, my respectful view is that this court does not need to disturb itself with a consideration of whether the 3rd Defendant/Judgment/Debtor severed her joint interest in the attached property when she was alleged to have given her permission to the 1st Defendant/Judgment/Debtor to mortgage their lease of the office complex.


This is because it is clear that the devises to the claimant and 3rd Defendant under the Will of their late father created a tenancy in common for the beneficiaries of that Kwadaso house and not joint tenancy in that property. Thus the court was wrong in construing that they held a joint interest in the house and land around it.


The Conveyancing Act 1973 NRCD 175 makes it clear that in Ghana, unless an instrument is explicit that the interest created in property is a joint interest, that interest is presumed to create a tenancy in common. Section 14 (3) of the Conveyancing Act 1973 NRCD 175 provides:


(3) A conveyance of an interest in land to two or more persons, except a conveyance in trust, shall create an interest in common and not in joint tenancy, unless it is expressed in such conveyance that the transferees shall take jointly, or as joint tenants, or to them and the survivor of them, or unless it manifestly appears from the tenor of the instrument that it was intended to create an interest in joint tenancy.


The words of the statute could not be clearer in its intention that unless an instrument creates a trust over property, or the instrument explicitly uses the words ‘shall take jointly’, ‘shall take as joint tenants’ or ‘I give to them and the survivor of them’, the law must always construe an instrument giving interest in land as creating a tenancy in common. With trusts, it is the trustees who hold as joint tenants, not the beneficiaries. I will quote the two leading authors on land law in Ghana, BJ Da Rocha and Hans Lodoh in Ghana Land Law and Conveyancing, Anansesem Publications 1995 and Sir Dennis Adjei in his LAND LAW, PRACTICE AND CONVEYANCING IN GHANA, Adwinsa Publications Ltd, 2015.


Da Rocha and Lodoh state on page 128 regarding the import of Section 14 (3) of NRCD 175


The present state of the law in Ghana is that where a grant of land is made to two or more persons, it is presumed to be made to them as tenants in common unless a contrary expression is expressed. If a grant intends a joint tenancy, it must expressly state so. The only exception to this presumption is where property is conveyed to two or more persons as trustees. Trustees hold the property as joint tenants’


Sir Dennis Adjei summarizes this position in the following words on page 146


In Ghana the position is that a conveyance in trust is presumed to be joint tenancy and in all other cases the presumption is in favor of tenancy in common….


In effect the position in Ghana may be summed up as follows:


A conveyance in trust creates a joint tenancy


Where there are clear words or intention creating a joint tenancy, effect shall be given to it


In all other cases a conveyance to two or more persons shall create a tenancy in common’


When one examines the Will that gave interests in the attached property to the claimant and the 3rd Defendant/Judgment/Debtor, the intention of the testator was clearly stated as sharing the property in clean proportions instead of creating a joint interest in the property in a group with a right of survivorship. These were the words of the testator found in the Will on page 79 of the Record of Appeal:


1. I give and devise my house number 70 Block ‘E’ Kwadaso Estate Extension as follows:-


The Main Building to my son Julius Ekow Atta Coleman and his sister Susana Aba Coleman in equal shares absolutely (emphasis mine)


The Outhouse or Boys Quarters

i. One Room to my son Alex Kofi Coleman

ii. One Room to my daughter Susana Aba Coleman

iiii. One Room to my son Julius Ekow Atta Coleman

iv. One Room to any woman who may be co-habiting with me whether as wife or concubine or girlfriend at the time of my death


Under no circumstance can such grants be described as conforming with the limited statutory conditions under which joint interest can be created. It is my finding and holding that the property in issue was bequeathed to the claimant and 3rd Defendant/Judgment/Debtor as tenants in common with other persons and the 3rd judgment debtor’s interest in House No 70, is distinct and separate from that of the claimant and those other persons. These distinct interests in the properties would extend to a proportionate share in the land around the main building or the boys quarters.


The 3rd Defendant/Judgment/Debtor had two sets of distinct interests in this property. One half of the main house, and one quarter of the boys quarters. Each of these interests may be used to pay off her debts. The appeal is upheld and the order setting aside the attachment is reversed. House No 70 Kwadaso Estate may be attached and sold and the 3rd Defendant/Judgment/Debtor’s portion used to set off her debts. No order as to costs.