IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
ACCRA - A.D 2017
DR. LANSINA MUMUNI - (Respondent/Appellant)
MADAM FATIMATAH MUMUNI - (Petitioner/Respondent)
DATE: 1ST JUNE, 2017
CIVIL APPEAL SUIT NO: H1/64/14
JUDGES: K. A. ACQUAYE JA (PRESIDING), B. ACKAH-YENSU JA, A.S.K. GYAN JA
MR. RAYMOND BAGNABU FOR APPELLANT
EDITH AKIWUMI FOR RESPONDENT
Dr. Lansina Mumuni, the original Respondent in this matter, trained as a medical officer in the then West Germany and returned to Ghana in 1971 when he met the Petitioner, Madam Fatimatah Mumuni, the Petitioner, then a young nurse. While the two of them were working at Korle Bu Teaching Hospital Accra, a relationship started. They both hail from Wa in the Upper West Region. Shortly after, the Respondent was posted to Tamale to work in the hospital and the Petitioner joined him there. From Tamale, Respondent was posted to Salaga Hospital and he went with the Petitioner. During this period the Parties had their first child. In 1973 Respondent won another scholarship to do his specialization course in West Germany. In 1975, the Petitioner joined him there but due to language difficulties he relocated her to London. They had two additional children in 1977 and 1982.
The Petitioner filed a petition on 14th July 2006 for divorce on grounds that the marriage between them had broken down beyond reconciliation. The Petitioner stated that she and the Respondent were married under Wala custom in April 1970. The Petitioner’s claim is that the Parties jointly acquired two houses at Achimota and Tamale and she acquired one by herself at Dzorwulu. It is Petitioner’s further claim that the Respondent had rented out the houses at Achimota and Tamale to people and organizations without rendering any accounts to her and had also used her self-acquired property at Dzorwulu as a Guest House. That, as a result of Respondent’s behaviour she could not reasonably be expected to live with the Respondent any longer. She therefore prayed for the following reliefs:
a. That the said marriage be dissolved.
b. That the Respondent be made to account for all the rents collected from the three houses.
c. That the Petitioner recovers possession of her self-acquired house, named A/No.A60 Osu-Badu Link, Dzorwulu Residential Area, Accra.
d. That one of the two jointly acquired houses at Achimota and Tamale be settled in favour of the Petitioner.
e. That the Respondent be ordered to pay costs of and incidental to this suit.
The Respondent on the other hand contends that while working at Tamale and Salaga, he applied to State Housing Corporation (SHC) for a house to buy but could not get the offer letter before leaving for West Germany. It was while in Germany that the allocation process was concluded and he sent money to the Petitioner to pay for the house. The papers of the house were put in their joint names by Respondent. When Respondent sent the Petitioner to London he bought a house, No.3 Edison Road, London, where the Petitioner and their children resided. This property too was put in their joint names. Thereafter, Respondent bought another house, No.185 Philip Lane, Tottenham North London. Respondent contends further that the Petitioner sold off his two properties in London and used the proceeds of the sale to acquire a new house in her sole name and resided there.
After his specialist training Respondent states that he returned to Ghana but Petitioner and the children remained in London. The Respondent after working for the Government, established his own private medical practice in Tamale. In 1989, Respondent contends that he acquired another house at Dzorwulu, Accra. He stated that he paid for the house which was not fully completed. He also applied to SHC for a house in Accra and was allocated an uncompleted house at Achimiota in 1992 which he paid for and subsequently completed.
By consent of both Parties the trial Court on 6th April, 2009 dissolved the marriage and set the case down for trial on the other reliefs claimed by the Petitioner. Judgment was delivered, after the trial, on 30th July, 2010 dismissing Petitioners reliefs (b), (d) and (e). In effect the trial Court ordered that the houses situate at Achimota and Tamale be given to the Respondent. There is no appeal against the dismissal of those claims.
The trial Court however granted Petitioner’s relief (c), which was for the house at Dzorwulu. This is what the trial Judge stated:
“The Respondent’s evidence was that he alone purchased the property but he intended it for the children so he used the names of himself and his wife for the receipts. I may therefore infer joint ownership but since the respondents did not (to) keep his interest I will enter judgment for the Petitioner and declare her title in the Dzorwulu House/Airport property”.
The trial Judge also granted Petitioner another relief; albeit not one indorsed in the petition.
The order was as follows:
“There are other properties in the petitioner’s reply. However in the evidence she mentioned (only) two cars. These were the blue and white Mercedes Benz cars. She said she bought the white car and the Respondent bought the blue one. I accept that evidence and therefore enter judgment for the petitioner on the white car and declare her the owner of it. She may recover possession.”
It is therefore only in respect of the grant of the reliefs in respect of the Dzorwulu property and the white Mercedes Benz car that this instant appeal has been brought. Aggrieved with the part of the Judgment where the trial Judge inferred joint ownership of the Dzorwulu house and then declared title in it for Petitioner as well as the entry of judgment in respect of the car to Petitioner, the
Respondent filed a Notice of Appeal on 16th August 2010 and subsequently filed an amended Notice of Appeal on 8th July 2014 stating the following grounds:
1. The decision of the trial court in declaring title to the Dzorwulu House in Petitioner is against the weight of evidence.
2. The trial judge committed an error of law by substituting a case contrary to and inconsistent with that which the Petitioner had pleaded in that Petitioner pleaded that she solely acquired the Dzorwulu House whereas the judge held that she was a joint owner of the house with Respondent and this occasioned a miscarriage of justice against the Respondent/Appellant.
3. The Entry of Judgment for Petitioner with regard to the white Mercedes benz car is a nullity as the judge did not assign any reasons for accepting the evidence of Petitioner and a judgment without reasons is a nullity in law”.
On 6th December 2010, Dr. Lansina Mumuni, the original Respondent/Appellant, died and was substituted by Madam Asimawu Lansina Mumuni. I shall continue to refer to the Parties by their designations at the trial Court for ease of reference.
I shall start with the 2nd ground of appeal: The trial Judge committed an error of law by substituting a case contrary to and inconsistent with that which the Petitioner had pleaded in that Petitioner pleaded that she solely acquired the Dzorwulu House whereas the judge held that she was a joint owner of the house with Respondent and this occasioned a miscarriage of justice against Respondent/Appellant.
Counsel for the Petitioner in his written submissions submits that the wording of this ground of appeal offends Rule 8(5) of the Court of Appeal Rules, C.I.19. The rule requires that a ground of appeal shall be concise and shall not be argumentative nor narrative. It reads as follows:
“8(5) The grounds of appeal shall set out concisely and under distinct heads the grounds upon which the appellant intends to rely at the hearing of the appeal without any argument or narrative and shall be numbered consecutively”.
My brother Kanyoke JA succinctly stated the position of the law in the unreported case of John Akorli vrs Golden Tulip Hotel Suit No.H1/22/2011 delivered on 20th October 2011, thus:
“In formulating grounds of appeal lawyers or appellants for that matter are required to formulate the grounds in accordance with the rules of this Court. The Notice of Appeal or the grounds of appeal are not the place for arguments or submissions in support of or against the judgment appealed from. Rule 8(5) stipulates that, the grounds of appeal shall set out concisely and under distinct heads the grounds upon which the appellant intends to rely at the hearing of the appeal without any argument or narrative. Rule 8(7) of C.I.19 also enjoins this court to exercise its discretion in appropriate cases to strike out any ground of appeal or any part of the appeal which is not permitted under rule 8 (6) of C. I. 19”.
In the instant appeal, it appears to me that ground (2) above is not permitted under Rule 8(5) of C.I.19 as it is argumentative and/or narrative in nature, and the proper order to make in the circumstances is to strike it out as inadmissible and unarguable. An appeal, it is trite learning, is a creature of statute and the statute that created the right of appeal has also provided rules of procedure for seeking or obtaining this remedy. Non-compliance with the rules should not be countenanced. I shall therefore strike out Ground (2).
With respect to Ground (3) formulated as follows: The Entry of Judgment for Petitioner with regard to the white Mercedes Benz car is a nullity as the judge did not assign any reasons for accepting the evidence of Petitioner and a judgment without reasons is a nullity in law; Counsel for the Respondent argued in his written submissions that the trial Judge did not give any reasons for his decision that the car should be given to Petitioner. That, a judgment or order of a court not backed by reasons is void. Counsel relied on In Re Aryeetey [1987-88] 2 GLR 444 to support his position. He consequently submitted that the order for the white Mercedes Benz car to be given to Petitioner be set aside as void.
Counsel for the Petitioner on the other hand, submits in his written submissions thus:
“My lords, the Entry of Judgment filed by Respondent on the 28th day of August 2010 does not make mention of a white Mercedes Benz vehicle neither is it contained in the petition filed by Petitioner/Respondent. No evidence was led by either party on the Mercedes Benz and my Lords, Respondent wishes to put on record that she had no interest in the said vehicle even though it was acquired by her close to two decades ago.”
This, in my view, should put the matter to rest. Petitioner’s position makes this ground as argued by Respondent uncontested and therefore I am entitled to make an order granting the ground. I accordingly set aside the order of the trial Court in respect of the white Mercedes Benz car.
The only ground on which this appeal is being contested between the Parties is therefore the omnibus ground of appeal set out by the Respondent thus: The decision of the trial Court declaring title to the Dzorwulu house in the Petitioner is against the weight of the evidence.
This appeal being premised upon the contention that the judgment is against the weight of evidence is a call on the Court to rehear the appeal by analyzing the record of appeal before us, taking into account the testimonies and documentary as well as any other evidence adduced at the trial and arriving at a conclusion one way or the other. This is the import of the numerous decisions on the point. Notable among these are Tuakwa vrs Bosom [2001-2002] SCGLR 61; Djin vrs Musah [2007-2008] 1 SCGLR 686; Abbey vrs Antwi  SCGLR 17; and Oppong Kofi & Ors vrs Attibrukusu III  1 SCGLR 176.
In the Djin case (above) the Supreme Court per Aninakwa JSC held that when an appellant complains that the judgment is against the weight of evidence, “he is implying that there were certain pieces of evidence on the record which, if applied in his favour, could have changed the decision in his favour, or certain pieces of evidence have been wrongly applied against him. The onus is on such an appellant to clearly and properly demonstrate to the appellate court the lapses in the judgment being appealed against”.
It was the case of the Respondent that he solely purchased the Dzorwulu property while the Petitioner also made the same claim. Counsel for the Respondent in his written submissions as the appellant herein tries to draw a distinction between the case of the Petitioner and that of the “usual matrimonial causes that we encounter.”
Counsel submits that the petition was filed eighteen (18) years after the Parties had been living separately; Petitioner in the UK and Respondent in Ghana and not living as husband and wife. The Dzorwulu house was not claimed by the Petitioner on account of it being a matrimonial home or being jointly acquired during the marriage. Thus, Counsel argues that this particular matter is not one in which the principles of the distribution of property jointly acquired during marriage ought to be applied. He contends that the Petitioner was asking for declaration of title in her favour, and thus the principles enunciated in Jass Co, Ltd vrs Appau  SCGLR 265 for declaration of title to land ought to have been applied instead.
Counsel contends further that Counsel for the Petitioner, at the trial, placed substantial reliance on the decisions in Boafo vrs Boafo [2005-2006] SCGLR 705 and Mensah vrs Mensah  1 SCGLR 391 although the said decisions had not been given when the instant case was decided by the High Court. That, those cases deal with our modern jurisprudence being developed by the Supreme Court of Ghana concerning the property rights of spouses in the face of the provisions of Article 22(2) and (3) of the 1992 Constitution of the Republic of Ghana.
I must point out here that it is the same Counsel for the Respondent who relied on the case of Quartson vrs Quartson  2 SCGLR 1077 in his written submissions to support his contention that the trial Judge made an error in declaring that the Petitioner was the sole owner of the Dzorwulu house, although the said case was also decided after the decision of the instant matter by the High Court. In my view what is important here is that in 2006 when the petition was filed, the 1992 Constitution was already in force, and therefore any decision based on the provisions of the Constitution would apply.
The Respondent herein is inviting this Court to hold that because the Petitioner asked for a declaration of title to the Dzorwulu property, her claim does not fall within the remit of matrimonial property. Respondent wants this Court to apply the principles of Majorlagbe vrs Larbi  GLR 190 in determining whether Petitioner was able to adduce enough evidence to prove her claim.
In my view, this argument by the Respondent’s Counsel is not supported by the facts and the authorities on the matter. The Petitioner did not institute a separate action for recovery of possession but it was a part of reliefs she was seeking as an ancillary relief to her petition for divorce.
It is instructive to note that the Court of Appeal had this to say in the case of Achiampong v Achiampong [1982-83] 2 GLR 1017-1039. Holding 5 was that: “The words of section 20(1) of Act 367, clearly showed that the purpose of the section was to empower the court to settle property rights between spouses. Normally, litigations in respects of title to or interest in property were commenced by either a writ of summons or by summons of some sort. But that process has been circumvented by section 20(1) of Act 367 in favour of spouses engaged in divorce proceedings or in any other proceedings under the Act. The section was therefore partly procedural, intended to provide a cheap and speedy forum for spouses for the solution of disputes concerning their respective rights or interests in any real or personal property. It conferred jurisdiction on the court to hear applications pursuant thereto and to make the necessary orders irrespective of the value or the nature of the properties involved. As the object of this section was to provide an informal method of procedure whereby property disputes between husband and wife would be determined in a summary manner, either spouse could bring an application in [p.1021] an appropriate case under the section, praying for an order that the property or some beneficial interest therein be given to him or her.”
I find therefore that the principles that have been propounded by the various authorities for the distribution of property jointly acquired during marriage upon divorce do apply in the instant case.
The fundamental issue raised in this appeal therefore is whether the Dzorwulu property should be declared as the property of either the Petitioner or the Respondent solely, or the joint property of the parties, and not just be inferred as the trial Judge did in his judgment.
From the Respondent’s Counsel’s written submissions, the Respondent has no problem with the trial Court’s findings “regarding the primary facts as to who paid for the Dzorwulu house. The problem of Respondent is the inference of joint ownership and that the court made on the facts as found when he said ‘I may therefore infer joint ownership but since the respondents did not (to) keep his interest I will enter judgment for the Petitioner and declare her title in the Dzorwulu House/Airport property.’”
Counsel for Respondent submitted that the pronouncement by the trial Judge that the house belonged to the Petitioner solely because the Respondent did not keep his interest was erroneous. He maintained in his written submissions that “By the reference of joint ownership the judge appears to be referring to the equitable principles of resulting trust and presumption of advancement but his application of these equitable principles is with respect misplaced as far as the facts of this case are concerned.”
Counsel argued that the trial Judge wrongly applied the equitable principles of resulting trust and presumption of advancement. He maintained that the facts of this case were quite similar to the facts in Quartey vrs Amar  2GLR 231, and therefore he invited this Court to arrive at the same decision as the above-mentioned case. In that case, the defendant gave as his reason for the conveyance of the house in contention in his wife’s name as follows; that he wanted “to ensure in case of my death intestate my wife would have possession of the house for my children”. The trial Judge opined therein that the plaintiff’s claim was not based on the equitable doctrine of advancement. The plaintiff’s case was that she bought the house in contention with her own money. However, the trial Judge was of the view that the conveyance of the house in the plaintiff’s name was a mere arrangement for convenience. That, having decided that the purchase money for the said house was supplied by the defendant, the defendant’s claim should succeed. He accordingly declared that the defendant was the owner of the house in contention and the plaintiff held it as a trustee for the defendant.
Counsel contends that, the intention of the Respondent herein in adding the name of the Petitioner to the title deed was not to make her an owner but it was because he intended that their children should benefit upon his demise since he was the breadwinner. The conclusion by Counsel for the Respondent was that no presumption of advancement arose in this case, as such the trial Judge erred in holding that the Respondent did not keep his interest in the property and therefore the Petitioner was the sole owner.
It is trite learning that the presumption of advancement arises in circumstances where a person voluntarily transfers property into the name of another, or contributes to its purchase; then the law presumes that a gift was intended and that the transferor/contributor did not intend to retain any interest in the property concerned. This presumption displaces the presumption of resulting trust. Broadly, the presumption states that where a husband transfers property to his wife, or father to his child or someone to whom he has assumed parental responsibility, then in the absence of other evidence the court will presume that the transfer was by way of gift.
Respondent stated in his amended response to the petition at paragraph 18 (ii), (iii) as follows:
“ii) The reasons for the respondent associating petitioner with the acquisition was that in the event of any calamity happening to respondent, who is the major breadwinner and provider of the welfare of the children, petitioner would be able to cater for the education and welfare of the children from their proceeds...
iii) In any case all the children are now fully grown independent adults – petitioner is not entitled to any of the respondent’s houses in Ghana or to any form of support from respondent.”
In Respondent’s testimony (page 96 of ROA) he testified as follows:
“It is true that the Dzorwulu property was acquired in the names of both of us because I decided to acquire it for the children. That was in 1989. At that time our relationship was not at all that cordial.”
He confirmed that he had not seen any of his 3 children with the Petitioner for about 20 years. That, they were all adults with the youngest being 38 years old. All the 3 children had acquired British passports.
It looks to me that the Respondent’s case is that he acquired the Dzorwulu property for his children (when they were young), and not for the wife as Counsel appears to be inferring. The learned trial Judge appears to be of the same opinion when he stated in his judgment that “The respondent’s evidence was that he alone purchased the property but he intended it for the children so he used the names of both himself and his wife for the receipts. I may therefore infer joint ownership …..”
In my opinion therefore, if the trial Judge was inferring a presumption of advancement, it was in respect of the Parties’ children. However, there cannot be any presumption of advancement in favour of these children because the title to the Dzorwulu property was not in the names of the children. The law is settled that when a father obtains a conveyance in the name of his child, the presumption is that of advancement in favour of such child; that is he intended to part with both his legal and beneficial interest in the property to the child. See Sasu-Twum (Decd); SasuTwum vs Twum  1 GLR 23 and Richards (Juliana) v Nkrumah [2013-14] 2 SCGLR 1577. In the instant case, the legal title was in both the Petitioner and the Respondent. I find therefore that the principle of presumption of advancement does not apply in the instant case.
Does that mean therefore that the Petitioner was not entitled to her claim of ownership? Counsel for the Respondent contends the facts of this case show that the intention of the Respondent in adding Petitioner’s name to the title deed was not to make her a co-owner but he intended to own the house exclusively. That, the Petitioner failed to prove her claim of ownership of the Dzorwulu house and the decision of the trial court declaring title to Petitioner ought to be set aside. He contends further that the issue of joint ownership was raised suo moto by the trial Judge in his judgment so Respondent was not given an opportunity to be heard on it.
Counsel argued in his written submissions that the evidence available before the trial Court proved that Respondent was the one who paid for the Dzorwulu property. He referred to the receipts that were issued to the Respondent after the made the payments and the fact that those receipts were in his name solely. He further argued in support that the Respondent had exclusive possession of the house since its acquisition in 1989 and that he (Respondent) had been collecting rents all that time without the Petitioner ever asking him to account for the rents. The Petitioner on the other hand, failed to prove her case by failing to call the said Kwame Addo to testify on her behalf. Neither did she call Chinibuah Owusu Agyepong & Co to confirm that indeed Kwame Addo paid some money on behalf of the Petitioner towards the acquisition of the house.
This is what he had to say on page 96 or the Record of Appeal “with regard to the Dzorwulu property I dealt with the owner of the property Alhaji Mohammed Yahaya and his lawyer Mr. Agyepong. I paid for that property. After payment he gave me a receipt and promised to give me a final receipt when all the documents were ready. I have two copies of the receipts here, exhibits 8 and 8a. It is true that the Dzorwulu property was acquired in names of both of us because I decided to acquire it for the children. This was in 1989. At that time our relationship was not that cordial”.
Counsel for the Respondent therefore contended that the trial Judge upon rightfully finding that it was the Respondent who paid for the purchase price of the house ought not to have declared that the Parties were joint owners.
In response to the arguments by Counsel for the Respondent, the Petitioner per her Counsel’s written submission argued that she played a role in the acquisition of all the properties. Counsel indicates that there is authority for the determination of the ownership of the matrimonial home. Reference was made to Article 22 of the 1992 Constitution and the cases of Achiampong vrs Achiampong [1982-83] 2 GLR 1010 and Mensah vrs Mensah [1998-1999] SCGLR 350. Counsel alluded to holding 4 of Achiampong vrs Achiampong which was as follows: “Even if there was no agreement, the circumstances surrounding the acquisition of these properties and the conduct of both parties, were such that equity and good conscience would not have permitted either of them to claim exclusive beneficial interest in the properties and leave the other destitute”.
The Petitioner during her evidence-in-chief on page 69 of the Record of Appeal, said “I also know House No. A/660 Osu Badu Link, Dzorwulu. My cousin Alhaji Bukari found it for me. I showed interest. I therefore rang Kwame Addo who was a Police CID officer and a friend. In asked my husband to accompany Kwame Addo to go and do the transaction for me and pay the money to one Tweneboah Agyapong who acted for the landlord. The property was sold to me by Alhaji Yahaya and his son. The conveyance was done in the name of Mr. and Mrs. Mumuni. I paid £36,000.00 for it. There was an argument between the respondent and Alhaki Bukari my cousin who found the building for me. This argument took place in Mr. Agyepong’s office. I therefore asked my husband to have the conveyances in our son’s name but he disagreed that we used to do things together so I also just agreed that it should be in the names of both of us. I did refurbishing, gutters and swimming pool and paid for them when my husband sent me the estimate. I paid £8,000.00 to Alhaji Kadiri and my husband went to collect the cedi equivalent”.
The trial Court did not accept the Petitioner’s claim that she purchased the Dzorwulu property. On page 146 of the Record of Appeal he said “in the case of the Dzorwulu house the Petitioner’s evidence was that a cousin, Alhaji Bukari located the property and informed her to buy it. She therefore contacted police CID officer called Kwame Addo to go with her husband to pay for it. She said after the disagreement of the use of their son’s name for the document as agreed the document of title should be in their joint names; that is Mr. and Mrs. Lansina. The Petitioner tendered some bank documents of account and investment policies she owned to show that she was financially capable to have purchased that property at that time. These were, however, not receipts for the payments made at that property or payments to anybody. She did not also call Kwame Addo to corroborate her evidence of the payment through him Kwame Addo.”
The Petitioner did not produce any evidence to back these claims. She called Alhaji Bukari as a witness but he was also not able to provide any receipts to support the Petitioner’s claim.
I am however of the considered opinion that the decision of the trial High Court judge in not declaring the Dzorwulu property as the joint property of the Parties was erroneous.
The law regarding how property acquired by a couple during marriage should be shared upon the dissolution of the marriage has travelled a long way. In the case of Quartey v Martey & Anor  GLR 377, the parties were married customarily and on the death of the husband, the wife issued a Writ of Summons against the administrators of her late husband’s estate claiming a share of the properties. Ollenu J had this to say; “by customary law it is a domestic responsibility of a man’s wife and children to assist him in the carrying out of the duties of his station in life e.g. farming or business. The proceeds of this joint effort of a man and his wife and /or children, and any property which the man acquires with such proceeds are by customary law the individual property of the man. It is not the joint property of the man and the wife and /or the children…I must hold that, in the absence of strong evidence to the contrary, any property a man acquires with the assistance or joint effort of his wife is the individual property of the husband.”
The legal development to award spouses their due in properties acquired during the subsistence of marriage, even under customary marriage, began with the case of Abebrese v Kaah & Others  2 GLR 46, where Sarkodee, J, departed from the case of Quartey v Martey & Anor (supra) and delivered as follows:
“Taking the evidence as a whole I am of the view that the part played by the plaintiff in the construction of the house No J/1-182 Awaso, was more than mere assistance given by a wife married under customary law to her husband. She in her own right actively participated and contributed in no small way towards the completion of the house. My humble view is that Quartey vrs Martey does not apply to this case. The wife is in the instant case made direct payment intended solely for the construction to the husband. She supplied building materials. I hope that House No. J/1-182 Awaso was owned jointly by the plaintiff and the husband. It did not become family property and the whole did not vest in Dapaa, Aidoo’s customary successor.”
A similar decision was held in Domfe vrs Adu [1984 -86] 1 GLR 653. In Anang vrs Tagoe (1989-90) 2GLR 8, a wife sued her husband for a declaration that she was the joint owner of the house in Accra. She contended that even though the land was registered in the husband’s name, the land was acquired after the marriage, and as a trader she used part of her profits to purchase building materials (though not receipted). She further contended that when her husband went on transfer from Accra, she supervised the construction of the building, provided meals for the workers and incurred diverse expenses on the building. The husband receiving any such assistance from the wife, and argued that the indenture on the land and all receipts in respect of the purchases were in his name. The High Court held that the wife was a joint owner of the property. Brobbey, J as he then was, delivered at page 11 of the report as follows:
“It is true that the plaintiff (that is the wife) has not been able to establish the precise extent of the contributions in terms of cash or materials. That however, should constitute no bar to her claim for joint ownership. This is because the house was built at a time when the defendant was married to the plaintiff, and where no incident had occurred to adversely affect the relationship or cause their marriage to founder. In the normal run of affairs, transactions between a man and his wife cannot be viewed with the scrutiny which is associated with commercial transactions pertaining to normal business people for purchases and such like matters to be formally documented or receipted.”
The case of Anang vrs Tagoe (supra) seems to be on all fours with the instant appeal. In that appeal the building in question was constructed during the subsistence of the marriage, but the petitioner had no receipts to prove her contribution in cash. Further, the lease covering the property was taken in the name of the respondent but these should not deprive the petitioner any share in the property, the reasons amongst others, being that the property was acquired during their marriage. The other reason is what Atkin, LJ said in Balfour vrs Balfour (1919) 2K.B 571, at 579 as follows:
“The common law does not regulate the form of agreement between spouses. Their promises are not sealed with seals and sealing wax. The consideration that really obtains for them is that natural love and affection which counts for so little in these cold courts.”
The last case I seek to refer to in developing jurisprudence is: Berchie-Badu vrs Berchie-Badu (1987-
2GLR 260; where this Court held that decreeing title in a petitioner simply because the land was in her name was an error. The Court held amongst others as follows:
“Where spouses jointly acquired property but the legal estate was vested solely in one spouse, the amount of the share of the other spouse is the beneficial interest in cases where he had made a direct or identifiable contribution to the acquisition, had to be proportionate to the payment made. but where the contributing spouse made indirect or unidentifiable contribution, although his share then would be less easy to evaluate, the difficulty of the evaluation does not in itself justify the application of the maxim “equality is equity” if the fair estimate of the intended share might be some fraction other than one-half…”
The sound reasoning behind the cases I have referred to above is that when spouses acquire properties during their marriage through their joint efforts, whether quantified in commercial terms or not, no spouse should be denied a share or interest in the properties so acquired. The position of the law since Abebrese vrs Kaah (supra) is that a customary wife’s assistance and services that have commercial value should not be treated by the courts as mere domestic service rendered by a wife to her husband. The customary law principle espoused by Ollenu, J, (as he then was) in Quartey vrs Martey (supra) was buried by Abebrese vrs Kaah (supra) and no attempt should be made by any court in this 21st century to resurrect that customary law rule.
Since the promulgation of the 1992 Constitution of the Republic of Ghana, the development started by Sarkodee, J, Abebrese vrs Kaah, in recognizing the property rights of spouses even under customary law has received constitutional backing. To develop the law further in this area, the framers of the 1992 Constitution of the Republic of Ghana made provision for how property jointly acquired during marriage is to be distributed upon the dissolution of the marriage.
Article 22 of the 1992 Constitution is as follows:
1) A spouse shall not be deprived of a reasonable provision out of the estate of a spouse whether or not the spouse died having made a will.
(2) Parliament shall, as soon as practicable after the coming into force of this Constitution, enact legislation regulating the property rights 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.
The Supreme Court has been called upon a number of times to interpret and give effect to this particular article of the Constitution. Thus in Mensah v Mensah [1998-99] SCGLR 350, based on the evidence available the Supreme Court held that the parties were entitled to equal shares in the property.
In Boafo v Boafo [2005-2006] SCGLR 70, the Supreme Court held that it would not enumerate all the circumstances under which an appellate court will set aside the findings of a trial court regarding the proportion and distribution of property jointly acquired during marriage. Dr. Date-Bah JSC had this to say “…under which circumstances we as an appellate Court would have the power to substitute our own findings on what the equities are in this case. Plainly put would the wife in this case be entitled to a half share of their estimated wealth or something less? Having given this matter a careful thought, I am of the opinion that the equality rule should apply…where there is a substantial contribution by both spouses, the respective shares 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 spouses, equality will usually be an equitable solution to the distribution issue”.
In Mensah v Mensah  1 SCGLR 391, the Supreme Court upon considering the evidence available before it confirmed that the wife had contributed to the acquisition of the properties because she played a very active role in the operation and running off the couples’ business from which the various properties were purchased. The Supreme Court per Doste JSC said: “…We are therefore of the considered view that the time has come for this court to institutionalise this principle of equality in the sharing of marital property by spouses, after divorce, of all property acquired during the subsistence of a marriage in appropriate cases. This is based on the constitutional provisions in article 22 (3) and 33 (5) of the Constitution 1992, the principle of Jurisprudence of Equality and the need to follow, apply and improve our previous decisions in Mensah v Mensah and Boafo v Boafo already referred to supra. The Petitioner should be treated as an equal partner even after divorce in the devolution of the properties. The Petitioner must not be bruised by the conduct of the respondent and made to be in a worse situation than she would have been had the divorce not been granted. The tendency to consider women (spouses) in particular as appendages to the marriage relationship, used and dumped at will by their male spouses must cease. Divorce as Lord Denning stated long ago, should not be considered as a stigma”.
It is instructive to note that Dotse JSC in applying Articles 22(3)(b), 33 (5) of the 1992 Constitution and Section 20(1) of Act 367 came to the conclusion that it was no longer equitable to apply the principle of substantial contribution as laid down in the cases of Achiampong v Achiampong, Yeboah v Yeboah and Boafo v Boafo (supra). This is what he said on the matter “Thus, even if this court had held that the petitioner had not made any substantial contributions to the acquisition of the matrimonial properties, it would still have come to the same conclusion that the petitioner is entitled to an equal share in the properties so acquired during the subsistence of the marriage. This is because this court recognises the valuable contributions made by her in the marriage like the performance of household chores referred to supra, and the maintenance of a congenial domestic environment for the respondent to operate and acquire properties. Besides, the constitutional provisions in article 22(3) of the Constitution 1992, must be construed to achieve the desired results which the framers of the Constitution intended”.
In Quartson v Quartson  2 SCGLR 1077 and Arthur v Arthur [2013-14] 1 SCGLR 543 the Supreme Court held that substantial contribution is no longer a requirement for the award of interest in matrimonial property.
In Quartson v Quartson, the Supreme Court held per Ansah JSC that “It is our opinion that on the strength of Gladys Mensah v. Stephen Mensah supra, the wife would be entitled on a share of the value of the matrimonial home. The evidence is abundantly clear that she performed her supervisory tasks over the building of the house satisfactorily. Even though she was a housewife, she single-handedly took charge of the household when her husband, the appellant, was incarcerated for years in Liverpool. We would agree with the reasoning in Gladys Mensah v. Stephen Mensah supra, that the inability to adequately quantify the appellant’s wifely assistance towards the construction and upkeep of the matrimonial home does not in itself bar her from an equitable sharing of the matrimonial property”.
In Arthur v Arthur (supra), the Supreme Court endorsed the decision made in Mensah v Mensah. Date-Bah JSC gave an interpretation on marital property; that property jointly acquired means any property acquired by the spouses during marriage irrespective of whether one spouse made a contribution or not.
In the instant case, at the time of the acquisition of the Dzorwulu property the Petitioner was living and working in the United Kingdom. She was taking care of the three children while the Respondent was here in Ghana. The Petitioner bore the burden of getting them ready for school, preparing food for them to eat and paying their tuition in the United Kingdom. Even if the Respondent did contribute financially to the upkeep of the children, one cannot understate the stress of single-handedly caring for three children in the United Kingdom. The firm words of Dotse JSC in Mensah v Mensah (supra) is quite instructive: “Thus, even if this court had held that the petitioner had not made any substantial contributions to the acquisition of the matrimonial properties, it would still have come to the same conclusion that the petitioner is entitled to an equal share in the properties so acquired during the subsistence of the marriage. This is because this court recognises the valuable contributions made by her in the marriage like the performance of household chores referred to supra, and the maintenance of a congenial domestic environment for the respondent to operate and acquire properties”.
I am of the view that based on the above-named authorities, the Petitioner herein is a beneficial owner of the Dzorwulu property. The Respondent communicated that intention when he agreed to have her name on the conveyance documents. I will therefore opine that the Petitioner and the Respondent are joint owners of the Dzorwulu property.
Two out of the properties in contention during the divorce were awarded exclusively to the Respondent in the judgment of the trial Court and only the Dzorwulu property was given to the Petitioner. The couple were married for almost 40 years and it would be unconscionable to leave an elderly woman of about 70 years with nothing from the marriage because she was not able to quantify the extent of her contribution (if any) to the acquisition of the property. Even without the authorities listed above, it is my considered opinion that Section 20(1) of the Matrimonial Causes Act 1971, Act 367 is applicable in this matter. It states thus: “The court may order either party to the marriage to pay to the other party such sum of money or convey to the other party such movable or immovable property as settlement of property rights or in lieu thereof or as part of financial provision as the court thinks just and equitable”. Just as in the Supreme Court’s decision in Ribeiro v Ribeiro [1989-90] 2 GLR 109, it is my opinion that the Petitioner is entitled to be settled with any of the three houses in contention and this Honourable Court should not be hesitant in awarding her the Dzorwulu house. I am of the opinion that the Dzorwulu house should be settled in favour of the Petitioner.
In summation, it is my considered opinion that the trial Judge came to the right conclusion by entering judgment for the Petitioner regarding the Dzorwulu property albeit for the wrong reasons.
Though the evidence on record does not support the reasons given by the trial Judge, in my opinion, it will be unreasonable to allow this appeal. Doing so will, in my view, amount to substantial miscarriage of justice. For reasons derived from the evidence adduced at the trial, I find that the Petitioner is indeed joint owner of the Dzorwulu property with the Respondent, and I so declare. I will go further and make an order to settle the Dzorwulu property in favour of the Petitioner.
In consequence, save ground (3) of the appeal which I have found that the Petitioner did not contest, this appeal is dismissed.