IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
CAPE COAST - A.D 2019
ATO ARHIN - (Petitioner/ Respondent)
PHILOMINA APPIAH - (Respondent/ Appelant)
DATE: 27TH MARCH, 2019
CIVIL APPEAL NO: HI/32/2018
JUDGES: IRENE CHARITY LARBI MRS. J.A (PRESIDING), L. L. MENSAH (J.A) AND ANGELINA M. DOMAKYAAREH MRS.( J.A)
RICHARD KWAKU BOADU ESQ. FOR THE RESPONDENT/APPELLANT PRESENT
DANIEL ARTHUR ESQ. FOR THE PETITIONER/RESPONDENTS PRESENT
IRENE CHARITY LARBI (MRS) J.A
(1) This is an appeal against the decision of the Circuit Court, Cape Coast dated 18th March,2016.
(2) The parties married under Custom around 1996. After the Customary Marriage, the Petitioner/Respondent who was then domiciled in Italy went back while the Respondent/Appellant continued to stay in Cape-Coast. The Respondent/Appellant later joined Petitioner/Respondent in Italy briefly. Thereafter they returned to Ghana and lived at Brafoyaw a Suburb of Cape-Coast.
(3) In 1998, the parties converted their customary marriage into an Ordinance Marriage. The parties acquired properties together both in concubinage and during the subsistence of their marriage. They also sojourned to Europe and United States of America (USA) for greener pastures and returned later to settle in Ghana having acquired some wealth together. Amongst the properties they acquired is House Number MJNI Moree Junction, which the Court declared as joint property acquired during the subsistence of the marriage. However, the marriage did not produce any children.
(4) The marriage turned sour when the Respondent/Appellant discovered that the Petitioner/Respondent has fathered a child out of wedlock. It is out of the subsequent degeneration of the marriage that the Petitioner/Appellant filed for divorce upon the grounds that the marriage had broken down beyond reconciliation as follows that:-
· The Respondent/Appellant made the home insecure for him to stay, rained insult on him at will, is extremely jealous and would not allow him to visit his only child and that the parties sometimes engaged in fights. The Petitioner/ Respondent contended that their differences could not be resolved by family members.
· The Respondent/Appellant refuted the claims contained in the averments of Petitioner/Respondent but agreed with the Petitioner/Respondent in her cross-petition for dissolution of the marriage with the reason that the marriage has broken down beyond reconciliation and prayed for ancillary reliefs.
(5) During the trial, it was established that the parties during the subsistence of the marriage had acquired properties which were to be shared lawfully. Thus on 12th December, 2014 the Circuit Court delivered its judgment.
It is worthy to state that there was no contention as to the joint ownership of the properties nor to their sharing.
(6) This appeal hinges solely on the ruling of the Circuit Court dated 14th March, 2016 dismissing the argument of the Respondent/Appellant that that the Petitioner/Respondent has failed to comply with the judgment of the Trial Court dated 12th December 2014 particular the portion of the orders of the court as follows:-
“I order that one (1) year from the day of judgment the Petitioner acquires a Three (3) bedroom Self-contained apartment for the Respondent for her to vacate the matrimonial home and move in, in the alternative the matrimonial home is to be disposed of and the proceeds shared equally among the parties”.
(7) On 22nd December, 2015 the Petitioner filed a Notice of Deposit of keys into Court a Three (3) bedroom house situate and being at Yamoransa near Cape Coast in pursuance of the order by the Court on 12th December 2014. A search conducted at the Registry of the Court indicated that the notice of the deposit of the keys to the building was served on the lawyer for the Respondent/Appellant on the 8th of January, 2016.
(8) The Respondent/Appellant, having failed to take possession of the keys to the building and failing to vacate the matrimonial home, the Petitioner/Respondent filed a motion before the Trial Circuit Court seeking an order to compel the Respondent/ Appellant to vacate the matrimonial home.
The Respondent/Appellant opposed the application; The Circuit Court, in its ruling of 18th March, 2016 however, granted the application. It is this ruling that has culminated in the instant appeal.
(9) The sole ground of appeal filed by the Respondent/Appellant is that “the ruling is against the weight of the evidence adduced at the trial”. The crux of the argument of counsel for the Respondent/ Appellant is that the building was acquired over a period of one (1) year contrary to the order of the court and that same is not accompanied by any proof of evidence of documentary title to the building in the name of the Respondent/Appellant.
(10) Counsel for the Respondent/Appellant submitted that in the absence of any documentary proof, including pictures of the property, direction or location of the property defeats the order of the court. Counsel submitted further, that mere possession of keys to a house does not confer title or ownership in the property.
(11) The Petitioner/Respondent’s counsel in response concedes that the Respondent/Appellant’s counsel is right in his submission that the Petitioner/Respondent failed to complete the acquisition of the house within one (1) year from the date of the judgment. Counsel conceded further that the mere production of the keys to the building is not enough to complete the acquisition of the property to the Respondent/Appellant. However, counsel for the Petitioner/Respondent entirely agreed with the trial Circuit Court Judge that as counsel for the parties the owed a duty not to plunge their clients into needless litigation under the cloak of exhibiting their legal prowess.
(12) Counsel for the Petitioner/Respondent argued that in as much as counsel for the Respondent/Appellant is right in wishing that the keys to the building should have been accompanied by documents showing ownership or title to the property, it is absurd for him to push forward his argument in the absence of any evidence to the contrary that the building had not been acquired by the Petitioner/Respondent for the Respondent/ Appellant.
(13) In our view, the need to ensure that the Respondent/Appellant gets a documentary proof of ownership of the building is expedient and legitimate. This is because a good title to landed property is always documentary. This is endorsed by Section 23(5) of Land Title Registration Law, 1986 (PNDCL 152) which defines good title as “any title founded on documentary evidence”.
(14) Section 1 of the Conveyancing Decree 1973 (NRCD 175) provides;
“(1) A transfer of an interest in land shall be in writing signed by the person making the transfer or by his agent duly authorized in writing, unless relieved against the need for such writing by the provisions of Section 3.
(2)A transfer of an interest in land made in a manner other than as provided in this part shall confer no interest on the transferee”.
The order of the court which directed the Petitioner/ Respondent to acquire a Three (3) bedroom Self-contained house for the Respondent/Appellant implies an acquisition of an interest in land which complies with the law as provided under the Sections of NRCD 175 stated supra.
(15) In our view the mere holding of keys to a house by a person cannot be construed as conclusive evidence of ownership of the property in that person. It seems the Trial Judge failed to appreciate the concerns of the Respondent/Appellant because in granting the application the Trial Judge ordered the Respondent/Appellant to vacate the matrimonial home within Thirty (30) days of making the order and give up the house to the Petitioner/Respondent. The Court also awarded cost of One Thousand Five Hundred Ghana Cedis (Gh₡1,500.00) against the Respondent/Appellant.
(16) Rule 32 of the Court of Appeal Rules, 1997 (C.I.19) gives this court power as follows:-
(1)The Court may in respect of an appeal before it give a judgment and make an order that ought to have been made and to make a further or any other order as the case may require including order as to costs.
(2 )The powers of the Court
(a) may be exercised although the Appellant may have asked that a part only of a decision be reversed or varied; and
(b) May be exercised in favour of all or any of the Respondents or parties, although the Respondent or parties may not have appealed from or complaint of the decision”.
(17) In the instant case and in order to avoid a multiplicity of suits, it is our view that further orders be made to ensure that legal title in the house the Petitioner/Respondent has constructed in pursuance of the judgment of the High Court dated 12th December 2014 is perfected.
(18) Accordingly, we hereby make the following orders:
(1) That the Petitioner/Respondent shall take steps to have the title documents covering the land on which the building is situated to be made in the name of the Respondent/ Appellant free from all encumbrances.
(2) The Petitioner/Respondent shall cause architectural drawings of the building to be made in the name of the Respondent/Appellant.
(3) The Petitioner/Respondent shall deposit both the title documents and architectural drawings with the Registrar of this court with notice to the Respondent/Appellant or her counsel within Thirty (30) days from the date of this judgment.
(4) Upon service of the notice on the Respondent/Appellant that the Petitioner/Respondent has deposited the title document and architectural drawings with the Registrar, the Registrar shall arrange with the parties within seven days with or without their counsel to inspect the house which shall be in a habitable state ready for occupation by the Respondent/Appellant and the keys and the building handed over to Respondent/Appellant in satisfaction of the judgment dated 12th December, 2014.
(19) The Respondent/Appellant shall then vacate the matrimonial home within seven (7) days from the date of handing over the keys and building to the Respondent/Appellant. Failing which the matrimonial home shall be sold and the proceeds shared equally by the parties.