IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
KUMASI - A.D 2018
MARY TWUMASIWAA - (Plaintiff/Respondent)
ASAMOAH BOA AMPONSEM -(Defendant/Appellant)
DATE: 21 ST DEC. 2018
SUIT NO: H1/19/2013
JUDGES: MARIAMA OWUSU J.A (PRESIDING), HENRY A. KWOFIE J.A, AMMA GAISIE J.A
MOSES KOFI OBAH FOR THE DEFENDANT/APPELLANT WILLIAM
ORLEANS ODURO FOR THE PLAINTIFF/RESPONDENT
HENRY KWOFIE J.A:
The present appeal has been launched by the defendant/appellant against the judgment of the High Court, Sunyani delivered on 5th March 2012.
The trial High Court in that judgment entered judgment in favour of the plaintiff and dismissed the defendant’s counterclaim. Dissatisfied with the said judgment, the defendant/appellant (hereinafter referred to as the defendant) launched the instant appeal on 09/03/2012 on the following grounds:
a) The decision/judgment delivered by the Court was against the weight of evidence adduced in Court by the parties;
b) The petitioner’s action is/was caught by laches, acquiescence, and the Limitation
c) The petitioner/respondent was estopped in law from initiating the present action
d) The petitioner having divorced the respondent long ago cannot in law institute this action
e) Additional grounds of appeal shall be filed on receipt of the record of proceedings.
It is noted for the record that no additional grounds of appeal were filed. The reliefs sought from the Court of Appeal is an order or reverse set aside the judgment of the honourable Court dated 05/03/2012 and all the consequential orders thereof. The notice of appeal is at pages 183 to 184 of the record of appeal whilst the judgment appealed from is at pages 171 to 182 of the record of appeal. Before dealing with the arguments advanced in support and against this appeal, I will give a brief background of the case.
By a writ of Summons filed on 02/08/2010, the plaintiff/respondent claimed against the defendant the following reliefs:
a) A declaration that all that building plot at La-Bawaleshi, East Legon, Accra measuring 0.32 acres and plot No. 65 Block A Sector 21, Airport Residential Area, Sunyani and the building thereon are the joint properties of the plaintiff and the defendant who were a married couple until about 10 years ago when the said marriage was dissolved
b) A declaration that the plaintiff is entitled to one-half (1/2) share of the two (2) properties described in (a)supra or in the alternative, an order that one each of the two (2) properties be settled on the plaintiff and the defendant respectively
c) An order of perpetual injunction restraining the defendant, his agents, workmen, relations, assigns or anybody claiming through them from interfering with the plaintiff’s share of the said properties.
The plaintiff Mary Twumasiwaa also known as Mary Boa-Amponsem and the defendant were married under customary law in or about 1980 in Sunyani. The marriage was then subsequently celebrated under the Marriage Ordinance (Cap 127) on March 17, 1980. The couple then moved to England and lived there together as man and wife until the marriage was dissolved at the Wandsworth County Court in the London Borough of Lambeth sometime in 1999. It was the case of the plaintiff that during the pendency of the marriage she and the appellant jointly acquired two immovable properties one in Sunyani and the other in Accra. The plaintiff contends that she made financial contributions towards the acquisition of the two (2) properties and is therefore asking for her share of those properties.
On the other hand, the defendant denied the plaintiff’s claim and contended that it was agreed during the pendency of the marriage that each party should acquire his/her property separately. The defendant’s case is that he acquired the two disputed properties from his own resources without any contribution from the plaintiff.
Counsel for the defendant argued grounds (b), (c) and (d) together. Arguing these grounds, counsel submitted that the three grounds of appeal could be summarised to read that the petitioner is estopped from mounting this action by laches, acquiescence, statute and conduct. Counsel asserted that the marriage between the parties was dissolved on 19/03/99 in the Wandsworth County Court in the United Kingdom and that in the divorce proceedings in the U.K, the plaintiff never made any claim of joint ownership of the, disputed properties. Counsel submitted that the respondent never mentioned the existence of the 2 properties in the divorce proceedings in the United Kingdom and this supports the defendant’s contention that the said properties were not jointly owned. He referred to the rule in Henderson Vs Henderson (1843) Have 100 and submitted that the respondent failed to bring up all her case in the divorce proceedings in the London Court for adjudication and the present suit was thus an abuse of the Court process. Counsel further submitted that the marriage was dissolved in 1999 and for eleven (11) years the respondent never took any action in respect of the two properties until 2010 when she mounted the instant action.
He asserted that for all this period the defendant has been in possession of the properties and has developed same. He asserted that the plaintiff having sat by for over eleven (11) years before mounting this action is caught by laches and acquiescence. Counsel further asserted that it would be unjust and inequitable for the respondent to benefit from her indolence if indeed she is a joint owner of the disputed properties especially since the defendant as per his evidence has spent money in improving the properties.
Responding to the submissions of counsel for the appellant, counsel for the respondent referred to Section 10(1) of the Limitation Act, 1972 (NRCD 54) and submitted that the marriage between the parties was dissolved in 19th March 1999 and the plaintiff commenced her action on 02/08/2010, eleven (11) years 5 months after the dissolution of the marriage. Counsel referred to the statement of claim of the plaintiff where she averred that the appellant who has been frequenting Ghana has forcefully taken over the two (2) properties acquired jointly by them in the course of their marriage. Counsel further asserted that the respondent indicated that she tried several times to convince the appellant and also appealed through others to have an amicable settlement as regards the properties jointly acquired during the marriage but to no avail. He further submitted that from the pleadings and the evidence of the respondent, the appellant made it impossible for the parties to share the properties in dispute and added that in any case the plaintiff’s action was commenced before the expiration of twelve (12) years from the dissolution of the marriage.
He referred to Article 22 of the constitution 1992 and submitted that no estoppel operates to defeat the effect of existing legal or statutory rules of fundamental rights. He added that since properties jointly acquired during marriage are to be distributed equitably as a constitutional imperative, nothing prevented the defendant from calling on or looking for the respondent to have the properties distributed. He finally submitted that the plaintiff’s case does not amount to an abuse of the Court process.
The whole essence of grounds (b), (c), and (d) of defendant’s grounds of appeal is that the plaintiff’s action was not maintainable. The evidence on record shows that the marriage between the parties was dissolved on 19th March 1999 and the plaintiff commenced the instant action against the defendant on 02/08/2010 that is a period of 11 years five months.
Section 10(1) of the Limitation Act 1972 (NRCD 54) provides as follows:
“10(1) A person shall not bring an action to recover land after the expiration of twelve (12) years from the date on which the right of action accrued to the person bringing it or if it first accrued to a person through whom the first mentioned claims to that person”.
Clearly therefore with regard to the period of limitation, the plaintiff’s action was within time as the claim related to the recovery of land or landed property. In paragraphs 22 and 23 of her reply to the defendant’s statement of defence, the plaintiff pleaded as follows:
“22 The plaintiff says that during the divorce proceedings in the Wandsworth County Court in the District of Lambeth in the London Borough of Lambeth, she raised the issue of their joint properties in Ghana but the Court advised that plaintiff could only pursue the matter in Ghana since the Court in the United Kingdom did not have jurisdiction over properties in Ghana.
23. The plaintiff avers that thereafter, she has tried several times to convince defendant and also appealed through others to the defendant to let them have an amicable solution to the issue of property acquired jointly during their marriage but to no avail
24. The plaintiff states that the dissolution of the marriage is not yet 12 years old and she is not estopped from bringing this action”
Under cross-examination the plaintiff was asked by counsel for the defendant:
Q. At the time of the divorce what was the state of the house at Sunyani Airport now in dispute
A. We have completed the house, by roofing and wiring same.
Q. I am putting it to you that it was (sic) up to even lintel level at the time of divorce.
A. It is not true.
Q. In fact, through the effort of respondent, for the past 9 years, he has been able to make it a house.
A. It is not true, that was why after the divorce, I was looking for him so that we share the Accra house and Sunyani house. But he was playing hide and seek and was nowhere to be found. Even in the U.K. nobody knows where he stays. We jointly acquired these properties and the document bears our names. When the Sunyani plot was bought, a questionnaire was given to us and same was filled and he appended his signature. And the site plan as well as the receipt bears the name of both of us. If he is in doubt about the Accra plot, he should go and check on the document that bears our names. And I have evidence to that effect.
Q. It is not correct that you were looking for the respondent and he was nowhere to be found.
A. It is correct.
The Black’s Law Dictionary 8th Edition edited by Bryan A. Garner defines acquiesce as “to accept tacitly or passively; To give consent to an act”.
It also defines acquiescence “as a person’s tacit or passive acceptance; implied consent to act”. Clearly from the record there was no evidence to support the defendant’s contention that the plaintiff’s action was caught by laches acquiescence and/or limitation. It is also important to note that the properties in dispute being located in Ghana, the Lambeth County Court in the United Kingdom which dissolved the marriage between the parties legally could not have distributed the said properties as they were clearly outside its jurisdiction. The plaintiff was clearly within her rights to commence the action in respect of the properties in the High Court Sunyani. In my view the plaintiff had not slept on her rights to warrant the plea of laches and acquiescence. Grounds (b), (c) and (d) of the appeal have no merit and are hereby dismissed.
I will now consider ground a) of appeal which is that the judgment is against the weight of evidence adduced in Court by the parties. It is trite that when an appellant alleges that the judgment is against the weight of evidence, the appellate Court is under an obligation to go through the entire record of appeal to satisfy itself that the trial Court came to a fair and just decision. This is because an appeal is by way of rehearing. While it is true that the appellate Court has to go through the entire record of appeal, it is incumbent on the appellant, on whom the onus rests, to demonstrate from the judgment that there were pieces of evidence which were either overlooked by the trial Court or were wrongly applied, and if same had been properly applied, the decision would have gone in his favour.
See the cases of Tuakwa Vs Bosom (2001-2002) SCGLR 61; Djin Vs. Baako (2007 – 2008) SCGLR 686 Ankrah Vs. Pergah Transport Ltd and Others (2010) SCGLR 728 and several other cases.
Arguing this ground of appeal, counsel for the defendant attacked the trial judge’s finding that the petitioner is a joint owner of the two properties and asserted that the trial judge’s finding that the plaintiff made substantial contribution to the acquisition of the 2 properties is not supported by the evidence on record He also submitted that the plaintiff throughout the evidence was not able to indicate the exact contributions she made except to say that she had a joint account with the appellant. Counsel further asserted that the appellant acquired the 2 properties on his own without any contribution from the plaintiff. He submitted further that the plaintiff used her income separately to acquire her own properties at Zongo Abetifi, Sunyani and Wamfie in the Brong Ahafo Region and it would be equitable for the plaintiff to keep her 2 houses whilst the defendant also keeps the disputed properties. Alternatively, counsel submitted that since equality is equity, then if the plaintiff is to have a share in the defendant’s properties, then the defendant must also have a share in the plaintiff’s properties.
Arguing in response to the submissions of counsel for the appellant, counsel for the plaintiff submitted that a scrutiny of the record of appeal would reveal that the testimony of the respondent and her witnesses and the documentary evidence clearly justify the trial judge’s judgment on the preponderance of probabilities. Counsel referred to the evidence of PW1, and PW2 and submitted that the respondent discharged the burden thrust on her. He submitted further that the appellant also failed to discharge the burden thrust upon him in respect of his counterclaim and the trial judge was right in dismissing his counterclaim.
For a proper analysis and evaluation of the evidence on record, one should not lose sight of the fact that although this case is a civil matter, the properties in dispute were acquired during the marriage of the parties. The record shows that the parties were married from 1980 until the marriage was dissolved in 1999 a period of almost nineteen (19) years. There is also no doubt that the properties in dispute were also acquired during the period when the marriage between the parties subsisted. The 2 properties in issue are House No. 65 Block A, Sector 21 Sunyani Airport Residential area (referred to simply as the Sunyani property) and the La-Bawaleshie East Legon, Accra property referred to as the East Legon property.
The gravamen of this appeal is whether the trial judge was right in holding that the petitioner contributed substantially to the acquisition of the 2 properties and is thus a joint owner.
It is important to note that the Supreme Court has in several landmark cases such as Mensah Vrs. Mensah (1998-99) SCGLR 350 at 358-359 Boafo V Boafo (2005-2006) SCGLR 705 and Mensah Vrs. Mensah (2012) 1 SCGLR 39 enunciated the principles on how the distribution of marital property can be effected in terms of article 22 (2) and (3), of the 1992 Constitution which provides as follows:
“22(2) Parliament shall, as soon as practicable after the coming into force of this constitution, enact legislation regulating the property right of spouses.
(3) With a view to achieving the full realisation of the rights referred to in clause (2) of this article.
(a) spouses shall have equal access to property jointly acquired during marriage.
(b) assets which are jointly acquired during marriage shall be distributed equitably between the spouses upon dissolution of the marriage”.
In these landmark decisions, the Supreme Court was of the view particularly in Mensah Vs Mensah (Supra) holding 1 that:
“It is quite clear from these provisions that the principle of having equal access to property jointly acquired during marriage and that of equitable distribution of such property upon dissolution of the marriage have been espoused”.
The Supreme Court then explained the principle of “Jurisprudence of Equality “and thus departed from the old cases like Achiampong Vrs. Achiampong (1982-83) GLR 1017 which had towed the line that the wife was expected to prove that she made a substantial contribution to the acquisition of property in the course of the marriage.
The evidence shows that the defendant went to London after the marriage and subsequently was joined in London by the plaintiff/wife in 1981. It was the case of the plaintiff that in London she worked as a customer Advisor at Marks and Spencer for over 20 years and also did additional cleaning jobs. She said she and the defendant operated several joint bank accounts and tendered Exhibit E series i.e. Exhibit E, E1 to E4 in support of this assertion. Exhibit E series were bank passbooks and cheque books in the name of Mr. A Boa Amponsem and Mrs. Mary Boa Amponsem i.e. the parties herein with various banks including Halifax Building Society, Woodrich Equitable Building Society, National Westminster Bank, Abbey National Bank and Lloyds Bank.
The plaintiff said that all her salaries and income from the various employment were paid into these joint accounts. The plaintiff said that she and the defendant acquired the plot at La-Bawaleshie, East Legon through one Mr. Krofa and jointly financed the construction of a building up to lintel level on the plot. According to the plaintiff, unknown to her the defendant used his name in the preparation of the documents on the plot as the sole owner. On becoming aware of this she protested and the defendant prepared a document Exhibit B transferring the land from his sole name into the joint name of the defendant and herself. The plaintiff further gave evidence to show that she and the defendant jointly acquired the building plot at Sunyani from the PW1 Joseph Kwadwo Konadu alias Joe Kona also known as Joe Korang of Abesim and both of them jointly paid for the plot and also financed the construction of the house thereon to the roofing level. The plaintiff tendered documents Exhibit C series to show that the Sunyani plot was registered in the joint names of Mr. Asamoah Boa Amponsem and Mrs. Mary Boa Amponsem.
The PW1 Joseph Kwadwo Konadu testified in support of the plaintiff’s case and confirmed that he was the original owner of the Sunyani plot and subsequently sold it to the plaintiff and the defendant. He testified that both the plaintiff and the defendant gave him the money in respect of the acquisition of the plot and gave him money to start the construction of the building on the plot. He built the house up to the lintel level before they took over the construction from him.
The PW2 N.K. Frimpong Nsoah who is related to both the plaintiff and the defendant also testified in support of the plaintiff in respect of the East Legon property. He testified that it was one Mr. Krofa who bought the land for the parties. Subsequently the parties handed over the caretakership of the plot to him (the PW2). He confirmed that the defendant initially used his name for the preparation of the documents on the land and following protests from the plaintiff, the defendant agreed to prepare a new document in the joint name of the plaintiff and the defendant. On the other hand, the defendant gave evidence and maintained that he single handedly acquired the 2 properties without any contribution from the plaintiff. He said he included the name of the plaintiff in respect of the documents in respect of the Sunyani property on humanitarian grounds.
I have perused the statement of case of the parties, the record of appeal and the judgment of the trial Court and it is obvious that the trial judge’s findings that the plaintiff contributed substantially to the acquisition of both properties in East Legon and Sunyani is adequately borne out by the evidence on record. It must be noted that the paramount goal of the Court in such cases of distribution of marital property after divorce is to achieve equality.
In the case of Boafo Vrs Boafo (Supra) at page 716 the Supreme Court per Dr. Date Bah stated that:
“Where there is substantial contribution by both spouses, the respective share of the spouses will not be delineated proportionally like a shareholding in a company. For the marriage relationship is not a commercial relationship – where there is a substantial contribution by both spouse, equality is equity will usually be an equitable solution to the distribution issue”
It should also be pointed out that in the Boafo Vs. Boafo case though the Supreme Court affirmed the equality is equity principle as used in Mensah Vs. Mensah (1998-99) SCGLR 350 giving further meaning to Section 20(1) of the Matrimonial causes Act 1971 (Act 367) and Article 22 (3) (b) of the 1992 Constution, the Court still made room for some flexibility in the application of the equality is equity principle by favouring a case by case approach as opposed to a wholesale application of the principle.
In this instant case, the trial judge after finding that the plaintiff had made a substantial contribution to the acquisition of the 2 properties, then made an order vesting the Sunyani property in the defendant and the East Legon property in the plaintiff. In my view, the trial judge correctly exercised his discretion in what amounts to settlement of property rights for Section 20(1) of the Matrimonial Causes Act 1971 (Act 367 provides that:
“20(1) The Court may order either party to pay to the other party a sum of money or convey to the other party moveable or immovable property as settlement of property rights or in lieu thereof or as part of financial provision that the Court thinks just and equitable”
In the case of Oparebea Vs Mensah (1993-94) I GLR 61 at page 75 it was held by the Court of Appeal per Lamptey JA thus:
“Where a judge sets out to vest property as settlement of property rights under Section 20 (1) of the Matrimonial Causes Act 1971 (Act 367) he was exercising a discretion and was the best judge of what was adequate, having regard to the peculiar facts of the case before him”
I am of the view that the trial judge correctly excised his discretion in this case. With respect to the defendant’s counterclaim, I find that the defendant failed to lead the requisite evidence to establish that degree of certainty of behalf in the mind of the Court that he was entitled to his counterclaim. See JASS Co. Ltd Vrs Appau (2009) SCGLR 265. Indeed, the defendant failed to prove that the properties at Wamfie and Zongo Abetifi, Sunyani were the properties of the plaintiff. The trial judge in my view correctly dismissed the counterclaim.
On the whole the appeal fails and is dismissed.
HENRY A. KWOFIE
(JUSTICE OF THE COURT OF APPEAL)
I Agree SGD
(JUSTICE OF THE COURT OF APPEAL)
I Also Agree SGD
(JUSTICE OF THE COURT OF APPEAL)