IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
ACCRA - A.D 2018
EMMANUEL SARFO WIAFE -(Plaintiff/ Respondent)
ADWOA HARRIS WIAFE - (Defendant/ Appellant)
DATE: 5 TH JULY, 2018
CIVIL SUIT NO: H1/128/17
JUDGES: M. OWUSU (J.A.) – PRESIDING, ADJEI (J.A.), KWOFIE (J.A.)
MR. AGYABENG AKRASI FOR DEFENDANT/APPELLANT
ANGELA QUARDE FOR PLAINTIFF/RESPONDENT
MARIAMA OWUSU, J.A.:
On 4th of November, 2014, the High Court, Accra, dismissed the defendant’s counterclaim in this suit.
The trial court then entered judgment for the plaintiff and made the following Orders:
“I grant the plaintiff’s relief (a) and declare that the plaintiff has proprietary interest in Plot N0. 9 Benjin Street, East Legon, Accra and all the buildings situate thereon.
I also grant relief (b) and therefore order that the disputed property be sold forthwith and the proceeds distributed among the parties after a proper valuation has been done.
The parties shall have the first option to purchase the disputed property, Ordered accordingly.”
Dissatisfied with the decision of the High Court, the Defendant mounted this appeal on the following grounds:
1. The judgment is against the weight of evidence.
2. Further grounds to be filed upon receipt of certified true copy of the judgment.
On 16/12/2015, the defendant filed five further grounds of appeal. They are;
1. The court erred in law when it purported to give plaintiff what he had not asked for, i.e. to give him fifty per centum interest in the subject matter, instead of one third interest, if at all, which was what plaintiff himself sought for in his claim before the court.
2. The trial court misdirected itself by holding that the 40 IK account is exclusively for the plaintiff and did not constitute “marital property” to be shared by the parties at the dissolution of the marriage.
3. The trial court failed to take into account the improvement on the property which was solely made by the defendant, after the dissolution of the marriage.
4. The trial court arrived at the wrong conclusion when it conjectured that the plaintiff expended more money on the construction of the house than the defendant “possibly out of the 40 IK account.
5. The court erred in law when it failed to evaluate reasons for the defendant’s invitation to the court to deny the plaintiff of any interest in the subject matter property.
The relief sought from the Court of Appeal is to set aside the judgment of the High Court dated 4/11/2014.
Before dealing with the arguments advanced in support and against this appeal, I will give a brief background of the case.
The plaintiff/respondent (herein referred to as plaintiff) by his writ of summons claims against the defendant/appellant (hereinafter referred to as defendant) the following;
(a) A declaration that he has a proprietary interest (1/3) share in Plot No. 9 BENJIN STREET, EAST LEGON, Accra and all buildings situate thereon.
(b) An order from the Honorable Court for the sale of the house and the proceeds shared among the parties.
(c) An interim injunction restraining the defendant and all persons acting through her from ever disposing of the subject matter or dealing with it in a manner inconsistent with or adverse to the interest of the plaintiff till the final determination of the matter.
(d) Any other order(s) as the court deems fit”.
In the 17-paragraph statement of claim which accompanied the writ of summons, the plaintiff averred among other things that, the parties were husband and wife from 1997 to 2004 when the marriage was dissolved by the Circuit Court in the State of Florida, USA. There is one issue of the marriage by name Kwaku Sarfo. The plaintiff averred that, in 2000, he acquired Residential Plot No. 9 Benjin Street, East Legon, Accra. The documentation of the land was prepared in the name of the parties. According to the plaintiff, he gave the title documents to the defendant for safe keeping. The plaintiff continued that, after the acquisition of the plot, he caused it to be developed to the foundation level from his own resources before he left for the USA. It is the case of the plaintiff that, after the plot had been developed to the foundation level, he permitted the defendant to supervise the construction of the building by providing monies for the continuation of the construction works on the building which is almost completed. The plaintiff concluded that, when the Circuit Court in Florida dissolved the marriage between the parties, per a mutual agreement between the parties, ordered the disputed house to be sold and the proceeds shared into three equal parts. One third to the plaintiff; one third to the defendant and one third to the child of the marriage, Kwaku Sarfo. However, the defendant is making it difficult for the disputed property to be sold and the proceeds shared hence this action.
In her amended statement of defence and counterclaim, the defendant denied plaintiff’s claim. In particular, she averred that, the Circuit Court in Florida which dissolved the marriage between the parties found that, all parties meaningfully contributed for the good and welfare of the family. Defendant continued that, in addition to the distribution formula, the Court varied the distribution of US$40,263.53 which plaintiff withdrew from his 40 IK Investment and concealed from the Court. It is the case of the defendant that, the plaintiff alleged he spent the said money from his 40 IK Investment on the disputed property but when he was challenged to produce receipt for monies allegedly paid for works he could not. As a result, the defendant told plaintiff he could keep the said money in lieu of his share in the disputed property. The defendant concluded that, she had continued to sink thousands of dollars to develop the disputed property. Therefore, the allegation that they have agreed to sell the disputed property is false as the plaintiff does not have legal or equitable interest in the property. Defendant therefore counterclaimed against plaintiff for the following:
i. Declaration of title to all that piece or parcel of land situate and being at Otinshie Residential Area, East Legon, Accra and bounded on the North/West by a road measuring 101.0 feet, more or less; on the North/East by Lessors land measuring 205.1 feet more or less; on the South/East by a road measuring 87.9 feet more or less; on the South/West by a road measuring 30.2 feet more or less; on the South/West by a road measuring 185.3 more or less and containing an approximate area of 0.461 Acre or 0.186 Hectare which piece of land is particularly delineated on the Plan.
ii. An order of Perpetual Injunction against plaintiff, his agents, assigns and whosoever from interfering with defendant’s enjoyment of the subject matter of the suit as described above.
iii. General Damages.
iv. Costs, including legal fees.
At the trial, the plaintiff testified through his attorney. Defendant also testified and called four witnesses. As stated above, plaintiff’s claim was upheld. The defendant’s counterclaim was dismissed hence this appeal.
In arguing the appeal, counsel for the defendant argued grounds 2, 3, and 4 of the further grounds of appeal together. He then submitted that, the defendant’s case is that, in the distribution of the common assets between the parties in Florida USA, pursuant to the dissolution of the marriage, the plaintiff concealed from the Court, US$40,263.54 which he withdrew from his 40 IK Investment and alleged that he spent the said money on the disputed property. This allegation the defendant denied. The Court asked plaintiff to produce bank statement from Bank of America to prove that the money was indeed deposited and transferred out of America, as well as show receipt for money allegedly paid for specific works on the building but he had none.
Counsel for the defendant continued that, defendant consistently maintained that, she was entitled to half of the US$40,263.54 but the plaintiff refused to pay her, her due share. He then submitted that, since there was no truth in the plaintiff’s assertion of his alleged investment in the subject matter from the said 40 IK Investment, the defendant could not waive her claim to it. Secondly, counsel argued, since the dissolution of the marriage between the parties, the defendant continued to invest in the disputed property and this is corroborated by DW4. Counsel for defendant submitted that, the conduct of the plaintiff in relation to the subject matter after the counter offer or proposal of the defendant to the plaintiff that the latter should keep the entire USS 40,263.54 and forfeit any interest in the subject matter, coupled with his conduct of actually holding onto the entire sum of money clearly constituted his acceptance of the counter offer.
Counsel continued that, the finding by the trial judge that the money from the 40 IK Investment “squarely falls outside the ambit of marital property and constitutes one of the exceptions to what constitutes marital property” is neither supported by law or the history of the case. He referred to Exhibit B, the Mediation Agreement. Thirdly, counsel submitted, on the authority of MENSAH V. MENSAH  SCGLR 391, the exclusive right of anyone party to a marital asset or property has ceased to be the law. He argued that, the trial judge did not take into account the massive improvements solely made on the property by the defendant after the dissolution of the marriage between the parties. Based on the above submissions, counsel for the defendant urged us to consider whether it is fair and equitable for plaintiff to stand by whilst defendant alone developed the property after the dissolution of the marriage in 2004 after keeping the entire sum of US$40,263.54
On ground (a), that is the judgment is against the weight of evidence;
Counsel for the defendant argued that, the trial judge erred when he failed to evaluate the reasons for the defendant’s invitation to the Court to deny the plaintiff any interest in the subject matter. He referred to the case of TUAKWA V. BOSOM [2001-2002] SCGLR 61 and submitted that, the totality of the evidence before the Court was not adequately or properly considered by the trial judge, hence his dismissal of the defendant’s counterclaim. He continued that, a determination of the issue of the 40 IK Investment did not depend on it being part of the judgment of the Circuit Court in Florida per se but the fact of the matter forming part of the evidence before the trial Judge.
On the trial judge’s justification of want of jurisdiction to probe the defendant’s claim of her share of the 40 IK Investment, counsel for the defendant submitted that, the reliance by the trial judge on the case of REPUBLIC V. MALLET; EXPARTE BRAUN  1 GLR 68-78. He disabled himself from doing substantial justice to this case. Counsel therefore invited us to look at the facts of the case from every angle and give weight to every relevant material and evidence before it so as to ensure that the plaintiff does not gain any advantage from his wrong doing of concealing what is obvious a marital asset, standing by for the defendant to improve on the disputed property after the dissolution of the marriage. In this regard, the evidence of DW4 cannot be ignored simply because there is no reciprocity in the enforcement of judgments between Ghana and USA. He concluded on this ground that, since an appeal is by way of rehearing, this Court should consider the evidence of DW4 as the trial judge failed to consider same. Secondly, the agreement by the parties to submit to DW4 in the settlement of the controversy cannot be wished away by the plaintiff. Thirdly, Exhibits B and 3 must be looked at as forming part of the evidence before the trial Court to be evaluated. Based on the foregoing, counsel for the defendant invited us to set aside the judgment of the High Court on the ground that, the plaintiff forfeited one third interest in the disputed property for his failure to release half of the 40 IK Investment to the defendant.
In response to the above submissions, counsel for the plaintiff on grounds 2, 3 and 4 of the appeal argued that, Ghana is an independent nation, hence its Courts are subject to no Court outside the jurisdiction of Ghana. He continued that, the current position of the Law is towards equitable distribution of property between the parties to the marriage after dissolution. Counsel cited the case of MENSAH V. MENSAH (supra) and submitted that, there is a presumption in favor of sharing of marital property on an equality basis in all appropriate cases between spouses after divorce. He referred to Article 22 (3) of the 1992 Constitution. He submitted that, the trial judge has a discretion in such matters if he deems it fit do so. Consequently, counsel argued, the grant of 50% interest in the disputed property instead of the one third prayed for is fair as the property is a marital property and thus both parties are entitled to equal share.
In respect of the holding that the 40 IK Investment/Account is exclusively for the plaintiff and did not constitute marital property to be shared by the parties after the dissolution of the marriage, counsel for the plaintiff argued that, the jurisdiction of the Courts in Ghana is confined to matters within the boundaries of Ghana. The 40 IK Account is in the USA and outside the jurisdiction of this Court. He therefore submitted that, the trial judge was right to refrain itself from seeking to make any pronouncement on it as it would have been unable to enforce it.
The reason being that, Ghana does not have reciprocity of enforcement of judgment with the USA. A look at LI 1575 shows that, USA is not listed therein. That being the case, the Court in Florida that dissolved the parties’ marriage was the proper forum to settle the issue of the 40 IK Investment and not Ghana.
On the failure of the trial judge to take into account the improvement on the property which according to the defendant was solely made by her after the dissolution of the marriage, counsel for the plaintiff submitted that, “he who comes to equity must come with clean hands”. He argued that, the claims to have made improvements on the property was done after the dissolution of the marriage of the parties and at a time the defendant knew that the property was to be sold and the proceeds shared between the parties. Therefore, the conduct of the defendant in spending on the property was done in bad faith. Consequently, the defendant cannot use that as a basis for which judgment must be given in her favor. Secondly, counsel submitted, the defendant did not provide any documentary evidence to back her claim of having added value to the property. He cited the case of MAJOLAGBI ORS V. LARBI (1959) GLR 190 on what constitutes proof in Law to buttress his point.
On counsel for the defendant’s submission that, plaintiff after agreeing to keep the whole amount in the 40 IK account in satisfaction of his interest in the disputed property and therefore cannot now seek to claim an interest in it, counsel for the plaintiff referred us to the Book, The Law of Contract in Ghana by Christine Dowuona Hammond, page 36, where the Author explains what constitutes an Acceptance and submitted that, a Counter Offer constitutes a rejection of the original Offer and amounts to a new Offer by the Offeree. Secondly, a Counter Offer operates to destroy or nullify the original Offer such that, it cannot subsequently be accepted. He cited the case of HYDE V. WRENCH (1840) 3 BEAV 334 in support of this point. He concluded on this point that, an acceptance of an offer ought to be stated in clear terms. Since the defendant did not receive any acceptance of her offer to buy plaintiff out, the property is still marital property. Consequently, the trial judge was right when it declared that plaintiff had a proprietary interest in the disputed property.
On ground 1 of the appeal, counsel for the plaintiff referred to the evidence of DW1 to DW3 and argued that, these witnesses are artisans who were employed by the defendant. Therefore, even if some improvement works on the building was carried out by them, they will not be in the position to tell the Court whether it was someone’s else’s money that was used. He continued that, all along, the plaintiff in his evidence had said he is a pharmacist and when he married the defendant, the latter was unemployed. This assertion the latter has denied but did not provide any evidence to back her claims of employment. On the 40 IK Account, counsel referred us to page 276 of the Record of Appeal and submitted that, the plaintiff presented bills reflecting plastering receipt of GH¢115,000.00 and GH¢150,000.000 for the windows and doors. He then submitted that, plaintiff provided documentary evidence to show what he used the money for as opposed to the defendant who denied plaintiff’s assertion without any evidence to the contrary. Counsel for the plaintiff therefore urged us to disregard the defendant’s assertion. For these and the arguments advanced in support of the other grounds of appeal, he invited us to dismiss the appeal since the trial judge properly evaluated the evidence placed before him and came to the right conclusions.
In this appeal, the appellant initially filed one ground of appeal with a rider to file additional grounds on receipt of the Record of Appeal. However, in his written submission filed on the 11/12/2017 pursuant to relisting this appeal on 27/11/17, counsel for the defendant argued the further grounds of appeal. I have gone through the record of appeal and have not sighted the further grounds of appeal. By way of case management, I caused the Registrar of this Court to call counsel for the defendant to furnish us with the said process which counsel did.
From the arguments of counsel for the defendant, three main issues stand out. They are as follows:
The failure of the plaintiff to account for the 40 IK account and to give defendant her half share.
Whether the US$40,263.54 in the 40 IK account fell outside the ambit of matrimonial property.
The massive improvements in the disputed property by the defendant after her counter offer to plaintiff.
Counsel for the defendant in his written submissions argued that, it would be unfair and inequitable for plaintiff by his conduct of having stood by whilst defendant alone developed the property to suddenly wake up after six years of gradual investment in the building to say he is still entitled to his original fair share of the disputed property.
With all due respect to counsel for the defendant, from the evidence on record, there is no indication plaintiff at any point and time abandoned his interest or share in the disputed property after the dissolution of the marriage between the parties as counsel would want this court to believe. The evidence of DW4, the father of the defendant is clear on this when he testified that:
“In my earliest evidence, I tried to settle the differences between the parties. I did so by talking to my daughter and also to my in law but both of them refused to listen to my advice. I visited the property after accepting the task entrusted to me. The house is located at East Legon near American House. At the time I went there, the building had been roofed but there were no doors or windows and the building had not been plastered. I could not sell the house entrusted to me. I could not get a buyer. At the time the Order came to me to sell the house, there was a caretaker. I called Mr. Wiafe and told him about the condition of the house. He said when he comes to Ghana we will discuss it. When he came to Ghana, he came to my house and proposed that in spite of what the Court in Florida has said, he would like to take the house and give my daughter GH¢30,000.00. I said okay, I would convey these to my daughter and did convey Mr. Wiafe’s offer to my daughter. Her reaction was that, her husband had to account for some monies due her. They had an investment called 40 IK and in it they had an amount of about US$40,000.00 in it. She said she wants her portion of US$ 20,000.00 to be given her before she can say anything about the proposal.
Later, my daughter brought a counter proposal. Before then, I had informed Mr. Wiafe about my daughter’s demand for an account as regards the US$40,000.00 investment in the 40 IK but he did not render the accounts. In her counter proposal my daughter said he should keep the US$20,000 in place of her one third share so that she would take the property. I conveyed the said counter proposal to Mr. Wiafe on telephone. He said my daughter was joking (my emphasis). This was around 2006 and 2007, some years after the dissolution of the marriage”.
I have quoted extensively, the evidence of DW4, just to show that, at no point in time did the plaintiff abandoned his share/interest in the disputed property. This writ was issued in 2010. Between 2007 and 2010 is about three years. So, the question of the plaintiff suddenly waking up to claim his share of the disputed house does not arise in the context of this case. This argument is rejected as not reflecting the evidence on record.
The defendant in her evidence said;
“It is true that I consented to the sale of our Florida property which proceeds we both shared. I am refusing to have the East Legon house in issue sold because the plaintiff is refusing to give me my half share of the US$40,263.54. When I sent my father to inform plaintiff to keep the US40,263.54 so that I and the child keep the house that ended the issue. The plaintiff has not appealed against the judgment of the Florida Court. I want the Court to decree the house to myself and in the child because I have spent money to renovate it. Besides my ½ share of the US$40,263.54 has been forfeited to the plaintiff for that purpose”.
From the evidence of the defendant quoted above, she is raising two issues. First the fact that she has spent money on the disputed property. Secondly the plaintiff has not appealed against the decision of the Florida Court. On the first issue of spending money on the disputed house, I have already found as a fact that, the plaintiff never abandoned his share/interest in the disputed property and I quoted the evidence of DW4 to support this finding. That being the case, the defendant cannot use the fact that she spent money on the disputed house as a basis not to share same with the plaintiff. In any case, it is not in dispute that the plaintiff purchased the land and built the disputed house to the roofing level. Again, the answers of DW4 under cross examination is clear on this.
X X X X X of DW4 by counsel for plaintiff;
Q. The land on which the subject matter is situate, were you involved in its acquisition?
A. Yes, my Lord
Q. In fact you accompanied the plaintiff to go and acquire the land?
A. Yes, my Lord.
Q. The plaintiff purchased blocks from you for the initial development of the land?
A. Yes, my Lord.
Q. In fact it was the plaintiff who financed the building to the roofing level?
A. Yes, my Lord, but the monies were coming to me through my daughter. My daughter brought in the monies from the USA and gave the monies to me for the purchase of the blocks but she engaged the artisans who were working on the project.
Q. But you know that the money that defendant brought came from the plaintiff and the engagement of the artisans was at the instance of the plaintiff?
A. I presume so”.
So, talking of expenditure on the disputed property, the plaintiff also spent monies on the project. In any case, in the distribution of marital property, the current position of the law is the principle of having equal access or share in the property jointly acquired during marriage and that of equitable distribution of such property upon divorce. See the case of MENSAH v MENSAH cited supra. What constitute marital property was defined in the subsequent case of ARTHUR (No.1) v ARTHUR (No.1) [2013-2014] 1 SCGLR 543, 546 holding (3) thereof, where their Lordships held that;
“The Supreme Court in Mensah v Mensah had interpreted the provision in article 22 (3) (b) of the 1992 Constitution liberally and purposely to mean that joint acquisition of assets was not limited to property that had been acquired as joint or as common tenants, but rather any property acquired by the spouses during the course of their marriage was to be presumed to be jointly acquired. In order words, property acquired by the spouses during their marriage was presumed to be marital property. Thus, marital property was to be understood as property acquired by the spouses during their marriage irrespective of whether the other spouse had made a contribution to its acquisition”
It is clear that, by its decisions, our Supreme Court has now endorsed the ‘Jurisprudence of Equality principle’ in the sharing of marital property upon divorce.
From the decisions quoted supra, what constitutes marital property has now been settled by the highest Court of the land.
On the issue of the plaintiff’s failure to appeal against the decision of the Florida Court, the trial judge came to the conclusion that, under our Law, there is the need for a party to satisfy specific statutory regulations before that party can seek to enforce a foreign judgment in Ghana. He referred to Sections 81 (1) and 89 (1) of the Courts Act, 1993 (Act 459) and Foreign Judgments and Maintenance Orders (RECIPPROCAL ENFORCEMENT), Instrument, 1993 (LI 1575), to support his position.
Counsel for the defendant seems to concede this point but submitted that, in order to do substantial justice to this case, this court must look at the facts of the case from every angle and give weight to every relevant material and evidence before it so as to ensure that the plaintiff does not gain any advantage from his wrong doing of concealing what is an obvious a marital asset, that is the US$40,263.54 in the plaintiff’s account.
It is true the consent judgment of the Florida Court was tendered in evidence as Exhibit B and 3. But the trial Court was right in not enforcing the said judgment by virtue of LI 1575. This position is reinforced by the case of REPUBLIC v HIGH COURT (FAST TRACK DIVISION), ACCRA; EX PARTE NATIONAL LOTTERY AUTHORITY (GHANA LOTTO OPERATORS ASSOCIATION & OTHER INTERESTED PARTIES)  SCGLR 390, 393 holding (2), where their Lordships held that:
“The question of the constitutionality of the National Lotto Act, 2006 (Act 722, vis-à-vis Article 35 (5) of the 1992 Constitution, has been settled by the Supreme Court in its recent decision given on 23rd July, 2008. And even if it were not, a statute was presumed to be valid until it was otherwise decided. Therefore, the proper exercise of the discretion in the instant case, would have been for the trial High Court to have refused the application for interim injunction. Otherwise the interested parties, Ghana Lotto Operators’ Association and others would thereby be assisted by the Court to commit an illegality…”.
In the words of DR Date-Bah JSC;
“The learned judge acted in obvious excess of his jurisdiction. No judge has authority to grant immunity to a party from the consequences of breaching an Act of Parliament. But this was the effect of the Order granted by the learned judge. The judicial oath enjoins judges to uphold the Law, rather than condoning breaches of Act of Parliament by their Orders” (my emphasis)
Suffice to say that, the Law of Foreign Judgments and Maintenance Orders (Reciprocal Enforcement) Instrument, 1993 (LI 1575) is an Act of Parliament. To breach it in the interest of doing substantial justice to the parties is not the way to go. That argument falls flat in its face and it is accordingly rejected.
This brings me to the monies in the 40 IK account. The defendant’s case seems to revolve round this account. The defendant says she is entitled to half of this amount. The plaintiff said he used the said money on the disputed house, a claim the defendant has denied. In this suit defendant counterclaimed for a declaration of title to the disputed property. The position of the law is that she is in the same position as the plaintiff on the burden of proof. See the case of JASS CO LTD v APPAU & Another  SCGLR 265. The defendant alleges that, unless the plaintiff account to her the money in the 40 IK account, she would keep the disputed property. This position does not advance her case in anyway. As rightly pointed out by counsel for the plaintiff in his submissions, the sharing of the disputed property is not contingent on the rendering of the 40 IK accounts. The defendant should have counterclaimed for it and prove same since she is the one raising that issue.
This brings me to ground (1) of appeal that, the judgment is against the weight of evidence.
Per Rule 8 (1) of the Court of Appeal Rules as amended, CI 19, an appeal is by way of rehearing. Both counsel for the plaintiff and the defendant stated the law correctly as to what is required of us as an appellate court when an appellant appealed on the ground that the judgment is against the weight of evidence. We are required to examine the entire record to ascertain whether the decision reached by the trial court is amply supported by the evidence on record. Additionally, the appellant is under an obligation to pinpoint the lapses he is complaining about. See the following cases;
ABBEY & Others v ANTWI v  SCGLR, 17, 20
ARYEH & AKAKPO v AYAA IDDRISU  SCGLR 891894
OPPONG v ANARFI  1 SCGLR, 556, 558 and
OPPONG KOFI & Others v ATTIBRUKUSU III  1 SCGLR 176, 178.
I have addressed ground 1 of the appeal in dealing with grounds 2, 3 and 4 of the appeal. I have gone through the entire record of appeal, there are no pieces of evidence wrongly applied against the defendant or pieces of evidence if applied in her favor would have changed the decision in her favor.
For the above reasons, the appeal fails in its entirety. And it is accordingly dismissed. The judgment of the High Court, Accra dated 4/11/2014 together with the consequential Orders are hereby affirmed.