i. Introduction:

[1] The Execution Creditor in this claim being EM Capital Partners caused a Writ of Summons to be issued against the Defendants herein and obtained a summary judgment from this Court differently constituted on July 13, 2015 for the reliefs endorsed on the writ including “an Order for the payment of the sum of GH¢10, 732.568.68 being the outstanding debt of the matured Corporate Bonds as at 26th May 2015 to date of final payment”.

[2] In pursuit of levying execution to realize the fruits of the judgment, the Plaintiff proceeded to attach the landed property of the 2nd Defendant/Judgment Debtor’s unnumbered House opposite the Malaysia Embassy in Accra situate at Osu Badu Street Airport West, Accra on May 13, 2016 to sell and to satisfy the amount of the judgment debt. From the record, an auction sale was scheduled for January 13, 2017.

[3] Against the background of the execution and the imminent sale on January 12, 2017 the Claimant, Selina Fatima Owusu who is the wife of the 2nd Defendant/judgment Debtor in the suit filed a claim that as a lawful wife she has legal and proprietary rights in the attached property. The Execution Creditor upon being served with the Notice of Claim filed a Notice of Dispute on January 31, 2017.

[4] Upon a motion filed by the Registrar of this Court, an order was made to enable the Claimant and the Execution Creditor to appear in Court so that their claim could be determined. Both the Claimant and the Execution Creditor filed their respective processes arguing for and against the execution. The claim was subsequently tried summarily after the Claimant had been made the Plaintiff in the action with the Execution Creditor being made a Defendant.

[5] Before setting out the evidence as presented by the parties I wish to state that I have read carefully the foundation affidavit of the Claimant, filed on 8th March, 2017, in support of the claim and I am satisfied, that the grounds upon which she relies in her claim before the court are well captured in paragraphs 3 to 19. For ease of reference, I shall quote them verbatim. That I am the lawful wife of the 2^nd defendant/Judgment Debtor, having been married to him on 6^th July 1982 which marriage is evidenced by a marriage certificate (attached hereto and Marked “EXHIBIT AX) That at the time of our marriage on 6^th July 1982, I was 25 years old while the second judgment debtor who is my husband was 28 years and that prior to this marriage we had been customarily married five years earlier at ages 20 and 23, having met for the first time on 10^th June 1972. That at the time of our marriage, we were living in Nigeria but came down to Ghana for the ceremony because the second Defendant/ Judgment Debtor had to leave to the UK for his Masters Degree program and in those days it was customarily demanded to properly marry before leaving. The 2^nd Defendant/ Judgment Debtor then left for the UK in September 1982 and I joined him on 9^th January 1983 where I worked in a nursing home and supported him financially while living together at Flat 3, 17 Parkway Liverpool. That on completion of the Master’s Program, the 2^nd Defendant/Judgment Debtor came to Ghana while I remained working in the UK in order to give birth to our first child, and soon started a Mother Care shop in Accra Newtown from 1989 to 2006. (Attached herewith is a picture of the shop taken many years ago and marked Exhibit BX) That my contribution to his education was because we were building our lives together and that 12 years after our marriage we purchased the bare land where we intended to build and did indeed our matrimonial home, which is today the subject of the present action for the property. (Attached hereto are EXHIBIT CX series, showing a time line of or lives together in the said property;)

1. CX1 – Renewal of our marital vows in the year 2002

2. CX2 – Renewal of our marital vows in the year 2002

3. CX3 – Renewal of our marital vows in the year 2002

4. CX4 – A picture of myself and the kids taken in the property in the year 1997

5. CX5 – A picture of our children taken in the year 2000 in the property

6. CX6 – A picture of our children taken in the year 1998 in the garage

7. CX7 – A picture of myself and our daughter (Evelyn) taken in the year 1985 in UK.

8. CX8 – A picture of our children taken in the year 1999 in the property.

That I did not only contribute as a wife, a mother to our children and a support to his efforts as human being and a husband, but even indeed paid for certain portions of the property as it was being developed.

That as some period in our lives between 2006 and 2015, the strains of life led to a period wherein I stayed away in the US stayed briefly with little by way of full and unhindered communication between contact us a couple, save for such decisions about the children, developments to the property, the extended family and the general direction of our lives but with little or no room for discussions about the conduct of his life as a businessman, and hence I knew nothing about the dealings of the first Defendant.

That I became aware of the fact upon my return back to my matrimonial home in 2015 when certain staff of the Plaintiff institution and the Court came into our rented AU Village home and gave me an idea of the fact of a default on the part of the first Defendant and further that the Plaintiff/Judgment Creditor has issued a Writ against the 1^st and 2^nd Defendants on 26^th May 2015 for the reliefs thereon and later amended same.

That sometime in 2016 after the officers of the Court had burst into the house in issue here and proceeded to take items in the house such as Fridges and TV etc and pasted a document which I was told was a Fifa, my husband subsequently informed me that the matter had been “sorted out” for which reason I did not seek legal advice in the beginning. And he further informed me that the antecedents of that action were something I never knew about as they occurred before my arrival in Ghana.

That I am advised and verily believe same to be true that the principal action was against the 1^st Defendant and the 2^nd Defendant was joined to the suit by reason of the fact that he was deemed to be alter ego of the 1^st Defendant (A fact borne out by paragraph 9, 10 and 11 of the Judgment Creditor’s Affidavit in Opposition to a motion for disjoinder by 2^nd Defendant filed on 11^th June 2015 a copy of which is attached hereto and marked “EXHIBIT DX).

That sometime later the Plaintiff got Judgment against the Defendants, the first of which is a company in which I have no interest whatsoever (I have attached a copy of the relevant forms from the Registrar General to show that I have no interest whatsoever in the company attached as “EXHIBIT EX”) and the 2^nd Defendant, who happens to be my lawfully wedded husband.

That at the time I became aware of the judgment and the attachment of the said property, I had not at any point in time been informed of my full legal rights as I had not consulted Counsel, however about a week or so to the auction, I decided to resist the sale because I had lived all my life in the expectation of retiring to my matrimonial home only to see it sold by reason of the acts or omissions of the 1^st Defendant and my husband when indeed the Laws of Ghana afford me a right to the property as a wife who has contributed to the said property.

That having worked my entire life and knowing that the said property was my matrimonial home, a home I had channeled a lot of my efforts into making it what it is today and the very home which my children were heirs to, it now appears that by reason of the intended auction of the property which is not owned entirely by the 2^nd Defendant/ Judgment Debtor, I stand to lose property I contributed materially, financially and physically to make it what it is today. That I am advised by counsel and verily same to be true that the purported attachment of my matrimonial home when indeed I have no interest in the 1^st Defendant/Judgment Debtor and or the professional life of the 2^nd Defendant/ Judgment Creditor is wrong both in law and equity and that as a wife, my interest in the property is vested by Law. That I beseech the Court therefore to make a declaration that upon all the facts deposed hereto, I have a vested right in the said property, and that half of the property is mine and can thus not be taken in purported execution of the acts of the 1^st and 2^nd Defendant.

[6] To the above averments, the Judgment Creditor, per Michael Ashong, the Chief Executive Officer, demurred in an Affidavit to Dispute Claim filed on 22nd March, 2017 from paragraph 6 to 32 as follows:

6. The claimant who claim to have been customarily married to the Judgment Debtor five years before the purported Ordinance Marriage does not provide any evidence including photo evidence of the customary marriage.

7. That surprisingly, the Claimant fails to provide any photo evidence of the said Ordinance Marriage purportedly celebrated on 16^th July, 1982 or place of celebration of the said marriage.

8. The I am advised and verily believed same to be true that the purported Marriage Certificate, Exhibit AX, is a fraudulent document submitted by Claimant to sway this Honourable Court that she was married to the 2^nd Defendant under the Ordinance.

PARTICULARS OF FRAUD

a. The format of Exhibit AX was not the format of marriage certificates issued by the department in 1982

b. The entries to be made on all marriage certificates are to be handwritten and not typed as portrayed by Exhibit AX, assuming without admitting that exceptions are made, the type setting of the document was not known in 1982; and

c. The couples, witnesses and the registrar are to sign the marriage certificate in their own handwriting and not have it typed out as Exhibit AX portrays.

9. That I am further advised and verily believe same to be true that the Claimant’s Exhibit CX1, CX2 and CX3, are not conclusive evidence of the Claimant’s claim of her marriage to the Judgment Debtor.

10. That I am advised and verily believe same to be true that in the circumstances, the Claimant cannot be said to be the lawful wife of the Judgment Debtor.

11. That I am advised and verily believe same to be true that in any event merely being married to a man does not ipso facto give you an interest in the man’s property acquired during the marriage.

12. That I am advised and verily believe same to be true that the suggestion by the Claimant in paragraph 9 of her supporting affidavit that she “indeed paid for certain portions of the property as it was being developed” without any evidence in support is not and cannot suffice as proof of interest in the property.

13. That the claimant who conveniently remembers the exact date she joined the Judgment Debtor in the UK as claimed in paragraph 6 of her affidavit and the year the land on which the house she now clam was bought has failed to provide details on how and when the house was built.

14. That in any event during the early days of my commercial relationship with the Judgment Debtor he informed me that he and the Claimant were no longer together.

15. That the Judgment Debtor has always dealt with the property in dispute as his self-acquired property including at some point in time mortgaging the property to Agricultural Development Bank (ADB) for a loan without the prior consent or approval and notice of the Claimant.

16. That I am aware that the Judgment Debtor made extensive renovations and development to the property in dispute to its current state sometime from 2014 to 2015 ostensibly with some of the loans from the Judgment Creditor.

17. That I am advised and verily believe same to be true that in the circumstance the Claimant cannot make any claim of interest in the property in dispute.

18. That I am further reliably informed that in any event the house in dispute cannot be said to be the matrimonial home of the Claimant and the Judgment Debtor because I have known the Judgment Debtor to be living with his family at the luxurious condominium of No. 4 African Union Village, Cantonment, Accra.

19. That the Judgment Debtor has always stated his residence address to be No. 4 African Union Village, Cantonment, Accra; cases in point being at page 3 of the Claimant” Exhibit EX, the particulars of the 1^st Defendant Company and the Judgment Debtor’s address stated in his affidavits filed in support of his applications to the court.

20. That the Claimant had had correspondences with the plaintiff towards an out of the court settlement of the case even to the extent of getting his son, Maxwell Owusu, to sometime in 2016 make an offer, without reservations of the property in dispute to the Judgment Creditor in full and final settlement of the liabilities of his father, the Judgment Debtor.

21. That I verily believe the claimant and the Judgment Debtor only moved into the property in dispute on hearing of the Judgment Creditor’s intention to attach the said property pursuant to its judgment in order to frustrate the Judgment Creditor’s benefit of the judgment.

22. That I am advised and verily believe same to be true that the Claimant who has at all material time been aware of the pendency of the suit exhibited conduct which clearly is inconsistent with the conduct of a person who has no knowledge of the pending sale of a house she has an interest in.

23. That on the day of the attachment of the property in May, 2016 the Claimant who was present in the house totally ignored the bailiff’s knock on the gate and even kept the gate locked.

24. That even when the bailiffs forcibly entered the compound of the house pursuant to the order of this Honourable Court the Claimant remained locked in the inner chambers of the house and totally ignored the bailiffs.

25. That it took a lot of search efforts in the house before the Claimant eventually came out to speak to the bailiff to be briefed on the nature of the visit to the house and the intended auction of the house.

26. That I am advised and verily believe same to be true that the Claimant conduct aforesaid is inconsistent with her claim of lack of knowledge of the suit or the Judgment Debtor’s dealings with the Judgment Creditor for that matter.

27. That dispute being given clear notice of the pending sale of the house particularly on the date of its attachment, the Claimant waited for over 7 months before bring the instant application and more so, filed the instant notice of claim on a day to the auction sale of the house.

28. The in the circumstances I am advised and verily believe same to be true that not only has the claimant brought the instant application in bad faith, but she is also before this Honourable Court without clean hands.

29. That further, I am advised and verily believe same to be true that a wife cannot in on breath make a claim to a specific property of her husband acquired during the marriage and in another breath claim that she has no interest in other properties acquired by the husband during marriage.

30. That in the circumstance I am advised and verily believe same to be true that assuming without admitting that the Claimant is a wife of the Judgment Debtor entitled to an interest in the property by reason of their marriage, the Claimant is equally entitled to a share ofJudgment Debtor’s share in the 1^st Defendant Company.

31. That I am advised and verily believe same to be true that in the circumstances of the immediately preceding paragraph, the Claimant is jointly liable with the Judgment Debtor to pay the judgment debt which has arisen essentially as a result of his shareholding in the 1^st Defendant Company.

32. That I verily believe that assuming without admitting that the property is a jointly acquired material property the same could be sold in satisfaction of the judgment debt which is the joint liability of the Claimant and the Judgment Debtor.

ii. Viva Voce Evidence:

[7] The Claimant’s testimony in Court as per the Witness Statement filed and adopted was a re-hash of the affidavit filed. Her case is that the Property is not owned entirely by her husband, the 2nd Defendant/Judgment Debtor because she as a wife has a beneficial interest in the property based on the fact that she is the wife and also that she contributed materially, financially and physically to the property. The Claimant testified that they moved into the property in issue in the March 1997 when it was not entirely complete. She also testified that as a family they had many functions and celebrated many occasions in there including the renewal of their wedding vows in 2002.

[8] Mrs. Owusu further testified that in the year 2006, “the relationship between myself and my husband had soured to the point where I decided that it was better that I moved to the United States to work and look after my children and secure their future”. She also said even though she was absent from the home “I took part in decisions regarding my children and my home”. According to the Claimant by reason of her interest, the attached property cannot be auctioned without her consent and approval. Mrs. Fatima Owusu was extensively cross-examined by Counsel for the Plaintiff/Judgment Creditor. I shall make references to same and consider that evidence as part of this ruling.

[9] Mrs. Owusu also called her daughter Anita Owusu to testify. The substance of her testimony was that when the Claimant arrived in Ghana in 2015 she was not in the country but the claimant and the 2nd Defendant judgment Debtor were living “at Airport West and AU Village”. She added “they were going back and forth” between the AU village and the Airport West property because her mother “brought stuff so some of the stuff were at the AU village and some at Airport West”. Also, a Principal Executive Officer, Ms. Naomi Diantuey was subpoenaed from the Registrar’s General’s Department by the Claimant to testify on her behalf. She came to Court with the original copy of the Claimant’s marriage certificate number RGM199/82 (Exhibit “B”) and confirmed the marriage of the Claimant and the 2nd Defendant/Judgment Debtor to the Court.

[10] The Plaintiff/Judgment Creditor/Disputant on the other hand contend that the 2nd Defendant has always dealt with the property as his self-acquired property. According to the Judgment Creditor to show that the property is the self-acquired property of the 2nd Defendant, he for instance mortgaged the property to the Agricultural Development Bank (ADB) for a loan without the prior consent of the Claimant. The Plaintiff also contends that merely being married to a man does not ipso facto give the Claimant an interest in the self-acquired property of the 2nd Defendant.

[11] It is also the case of the Plaintiff/Judgment Creditor that it is not true that the Airport Residential property is the matrimonial home of the 2nd Defendant because since 2011 he has been known to be living with his family at the “luxurious condominium of No. 4 African Union Village, Cantonments, Accra”. The Judgment Creditor further says the residential address of the 2nd Defendant in all affidavits filed with the Court in all applications has always been No. 4 African Union Village, Cantonments, Accra and it was the same address the 1st Defendant provided to the Registrar General’s Department and tendered by the Claimant.

iii. Legal Arguments in Support:

[12] Learned Counsel for the Claimant argued in the written submission filed that there is evidence that his client. Mrs. Selina Fatima Owusu is the wife of the 2nd Defendant/Judgment Debtor who in the course of the marriage managed to acquire a home, which is the subject matter of the claim and they moved in in 1997 at the time when the property was not complete in terms of “finishing but complete in terms of structure”. Further, Counsel relying on the Supreme Court case of MENSAH v. MENSAH [2012] 1 SCGLR 391 and the dictum of Dotse JSC with regards to the equality principle argued and submitted that “the right of a married woman to a matrimonial property crystalizes upon the acquisition of the property and becomes vested in her at that point hence the name “matrimonial property” and not at the point of divorce or upon death”.

[13] The claimant’s Counsel has also argued that the Claimant was neither a Director nor a shareholder of the 1st Defendant/Judgment Debtor Company and indeed was not a party to the agreement with the Judgment Creditor which has resulted in the judgment of the Court whose execution has led to the attachment of the property the subject matter of the claim. Counsel also seems to argue that the judgment was wrong in law because the agreement was between the 1st Defendant/Judgment Debtor “Ecosafe Ghana” and not the Claimant’s husband, Samuel Owusu. Before proceeding further, I need to put it on record that I have no difficulty in dismissing this argument as sterile. This is because in my respectful opinion this is not an appeal against the judgment of my learned brother and indeed I cannot sit in judgment of his decision being a Court of co-ordinate jurisdiction. In any case, Mr. Andrews is not before me as Counsel of Mr. Owusu and he cannot therefore under the guise of a claim raise issues with regards to the judgment his client was not a party to.

[14] Further, according to Mr. Andrews the terms of the agreement between the Judgment Creditor and the 1st Defendant/Judgment Debtor was very clear in apportioning responsibilities to the parties but the Claimant’s husband was “personally brought on only by reason of the fact that he controlled the actions and inactions of the 1st Defendant”. Learned Counsel also questions the basis for the attachment of the subject matter property when looked at the fact that the 2nd Defendant/Judgment Debtor was held as the alter ego of the 1st Defendant Company but the “KYC that was carried out by Judgment Creditor prior to the placement of its funds in corporate bonds” in his view was not properly done.

[15] Arguing next on the Claimant’s right as a spouse to the property Mr. Andrews referred to Articles 22 and 35 of the 1992 Constitution, the Matrimonial Causes Act, 1971, Act 367 and such cases as BOAFO v. BOAFO [2005-2006] SCGLR 705, QUARTSON v. QUARTSON, MENSAH v. MENSAH supra and submitted that his client as a spouse has a right to property that became vested upon marriage and based on her contributions and sacrifices in the marriage and same ought to be recognized by the law and not upon her husband’s death or divorce. According to Counsel this is a novel legal position this Court ought to adopt and apply. Counsel further submits that because the “institution of marriage is not one to which the ordinary incidents of commerce would apply” the Court in essence should ignore the fact that the Claimant did not provide any evidentiary proof of her contribution to the property and hold that as a wife she lived with her husband as a good wife and had children and assisted him throughout his life, contributed as a wife would but did not keep any documents or records to support her claim.

[16] Mr. Andrews also submits that “the Claimant acknowledges that a judgment in her favour might open the Pandora box for fraudulent wives to perhaps collude with their husbands to make a claim on attached properties, however every case must be distinguished”. According to Counsel the Claimant’s case is unique because she did not know of the business transactions of her husband as she was not in the country. Counsel invites the Court not to drive the Claimant’s out of her home because she is not in collusion with her husband but exercising her legitimate legal right based on legal advise. Finally, Counsel submitted because the property is in the name of the 2nd Defendant/Judgment Debtor does not mean that he is the sole owner. He thus urged on the court to allow the claim and set aside the attachment.

iv. Arguments in Opposition of Claim:

[17] Mr. Kwabena Gyamfi Nimako has canvassed four arguments in his written legal submission. Firstly, he has argued most strongly and reiterated the law that the Claimant bears the burden of proof on the preponderance of probabilities regarding the credibility of her claim both in law and in fact. Counsel relied on the Evidence Act including the case of MAJOLAGBE v. LARBI [1959] GLR 191 GLR 221 for the submission that where a person makes an averment or assertion which is denied by his adversary, the one making the averment has the burden to satisfy the Court by establishing that the averment or assertion is true. In this case Counsel submitted that the Claimant has failed in law and in fact to prove her case for the discharge of the attached property in execution of the judgment of the Court.

[18] Learned Counsel has submitted that it is not the position of the law to convert every property acquired by spouses into a jointly owned property. According to learned Counsel, the fact of marriage does not ipso facto give one an interest in a spouse’s property acquired during the marriage. Counsel relied on the Supreme Court decision in MENSAH v. MENSAH supra for the submission. Mr. Gyamfi Nimako submitted that there is no evidence put before the Court to support the claimant’s alleged contribution to the acquisition of the subject matter property. Relying on the case of REINDORF v. REINDORF [1974] 2 GLR 36 Counsel submitted that “for evidentiary purpose where a spouse was unable to tender receipts showing his or her contribution, such spouse ought to be able to prove her contribution by other means”. In this case Counsel submitted that no evidence has been submitted by the Claimant to support her case that as a nurse she earned income from her work in Nigeria and the UK and also from her alleged employment in the United States of America. Also, Counsel submitted that no evidence was submitted that whilst operating the mother care shop at Accra Newtown the Claimant financially contributed to the acquisition of the building.

[19] Learned Counsel for the Judgment Creditor also submitted and implored the Court to disregard the Claimant’s claim based on kind contribution on the grounds that she spent more time outside the home as he lived outside the jurisdiction for many years. According to learned Counsel based on the Claimant’s testimony she is making a claim for 50% interest in the property on the basis of her marriage to the 2nd Defendant/Judgment Debtor and not because she made any contribution whatsoever to the acquisition. Counsel’s submission is based on the Claimant’s answer to the question that her claim is based on her marriage when she said “Yes, other than that we have been together for 45 years and I sponsored his education and so I cannot sit down for this house to go away without me getting nothing”.

[20] Further, learned Counsel submits that the evidence before the Court does not support the

Claimant’s case that the property is the matrimonial home of the Claimant. According to the Judgment Creditor, based on all of the evidence it is the case that “the 2nd Defendant/Judgment Debtor lives with his family at the luxurious condominium of No. 4 African Union Village, Cantonments, Accra”. Counsel referred to the Claimant’s Exhibit EX being the particulars of the 1st Defendant Company wherein the residential address is shown to be “No. 4 African Union Village, Cantonments, Accra” and also the evidence of Anita Owusu that when her mother, the Claimant returned from the USA they lived both at the AU village and the Airport West property.

[21] On the same issue, learned Counsel further submitted that the incontrovertible evidence is that the Claimant had correspondence with the Judgment Creditor towards an out of Court settlement of the matter and actually had her son, Maxwell Owusu to make an offer, without reservation, of the subject matter property to the Judgment Creditor “in full and final settlement of the liabilities of his father, the Judgment Debtor” but same was rejected by the Judgment Creditor. Further, it was submitted that the Claimant failed to impeach the Judgment Creditor’s evidence that in respect of the same property, the 2nd Defendant/Judgment Debtor together with his cousin made a similar offer to it for the same subject matter property but that was also rejected. Finally, Mr. Gyamfi Nimako submitted that the Claimant again failed to impeach the Judgment Creditor’s evidence that the Claimant’s story of how the property was acquired cannot be true because sometime in 2014 the 2nd Defendant/Judgment Debtor confirmed to him that he had acquired the said property and renovating same. Based on all of the facts, Counsel submitted that the Court should not make a finding that it is a matrimonial home.

[22] Counsel therefore relied on the case of QUARTSON v. QUARTSON [2012] 2 SCGLR 1077 where the Supreme Court held that:

“…the previous decision in Mensah v. Mensah…is not to be taken as blanket ruling that affords spouses unwarranted access to property when it is clear on the evidence that they are not so entitled. Its application and effect will continue to be shaped and defined for the specifics of each case”.

Counsel also referred to the latest Supreme Court decision on the subject matter in the case of FYNN v. FYNN [2013-2014] SCGLR 727 for the submission that the attached property is the self-acquired property of the 2nd Defendant/Judgment Debtor and the Claimant has no interest in same and it is not a matrimonial home.

[23] The third legal argument advanced by learned Counsel for the Judgment Creditor is that the conduct of the Claimant in the proceedings in this Court has been in direct contradiction with her claims or the conduct of an innocent joint owner. According to Counsel the Claimant resisted several efforts to open the property for attachment and therefore “the bailiffs had to bring in artisans to cut the metal grills, cut glass doors and electrified fence” before they could enter. According to Counsel it is therefore not true that the Claimant had no knowledge of the attachment. Counsel also questioned why the Claimant only filed her claim a day before the auction when the property was attached to her knowledge about seven months earlier.

[24] Counsel’s fourth and final submission was that should the Court find that the property is a joint property by reason of the Claimant’s marital status and relations to the 2nd Defendant/Judgment Debtor, then the Claimant should be held to be jointly liable for the 2nd Defendant’s debts to the judgment creditor, which said debt is predicated on the shareholding of the 2nd Defendant in the 1st Defendant Company. Mr. Gyamfi Nimako submits that it is strange that the Claimant says she is entitled to the property, that is the Airport West house of the 2nd Defendant but says she is not interested in the other properties including the shares of the 2nd Defendant in the 1st Defendant Company even though it is clear that those shares were acquired during the course of the marriage.

[25] According to learned Counsel if the house is a joint property, then it follows that the shares would also joint property and therefore the Claimant is jointly liable with the Judgment Debtor to pay the judgment debt. Based on the analogy learned Counsel submits that the subject matter if a joint property of the Claimant; then it should be sold in satisfaction of their joint debt, albeit incurred by the acts of one party. Based on all of the above, Counsel submitted and prayed the Court to dismiss the claim made.

vi. Opinion of the Court:

[26] At this stage, having read thoroughly the full spectrum of the respective cases of the parties, noting in particular the nature of the case and the grounds upon which the contentious issues are premised and argued by Counsel, I propose to deal with the matter in controversy by reference to a single issue, which in my view was correctly identified by learned Counsel for the Plaintiff/Judgment Creditor and it is set below as:

“Whether or not the Claimant has an interest in the attached property on the ground that she is the lawful wife/spouse of the 2nd Defendant/Judgment Debtor”?

[27] In the opinion of the court the burden rest on the Claimant to prove her assertion. For, sections

14 and 17 of the Evidence Act 1975 (NRCD 323) states that:

“14. Allocation of burden of persuasion

Except as otherwise provided by law, unless it is shifted a party has the burden of persuasion as to each fact the existence or non-existence of which is essential to the claim or defence that party is asserting.

17.  Allocation of burden of producing evidence

Except as otherwise provided by law,

(a) The burden of producing evidence of a particular fact is on the party against whom a finding on that fact would be required in the absence of further proof;

(b) The burden of producing evidence of a particular fact is initially on the party with the burden of persuasion as to that fact.”

[28] The court has also explained in the case of OKUDZETO ABLAKWA (No. 2) v. ATTORNEY GENERAL & ANOTHER [2012] 2 SCGLR 845 at 867 that

“If a person goes to court to make an allegation, the onus is on him to lead evidence to prove that allegation, unless the allegation is admitted. If he fails to do that, the ruling on that allegation will go against him. Stated more explicitly, a party cannot win a case in court if the case is based on an allegation which he fails to prove or establish. This rule is further buttressed by section 17 (b) which, emphasizes on the party on whom lies the duty to start leading evidence…”

See also Bank of West Africa Ltd vs. Ackun [1963] 1 GLR 176.

[29] Now to the claim filed. As stated in the affidavit filed and the testimony in Court, the Claimant says she has a beneficial interest in the property attached as the spouse of the 2nd Defendant/Judgment Debtor. The claim is anchored in the fact that she contributed financially from her occupation as a nurse both in Nigeria and in the UK and also in kind. It is important to refer to the evidence of Mrs. Fatima Owusu under cross-examination by the Plaintiff/Judgment Creditor’s counsel on June 1, 2017.

Q: Do you still practice as a Nurse?

A: No.

Q: How long did you practice as a Nurse?

A: About 7 years.

Q: Will that be from 1978 when you got your certificate of enrolment to somewhere in 1985?

A: Yes.

Q: In your own statement in paragraph 15 and I quote “at all material times I have been in gainful employment as a nurse in Lagos Nigeria” tell the Court when you were in Lagos to practice as a Nurse?

A: From 1978 to 1983.

Q: Could you confirm to the Court the name of the nursing home that you worked at Dorkings?

A: Yes, it was a Jewish home for the blind.

Q: The name of the hospital you worked as a nurse in Nigeria?

A: It was called Ogbaley Adji Clinic and Maternity Home.

Q: Are you in a position to produce any documentary proof that you worked at Ogbaley Adji clinic and maternity home?

A: No it has been a long time.

Q: Your answer is no because you never worked in Nigeria as a nurse.

A: I have a picture of me in my uniform….

The Cross-Examination continued on June 2, 2017 as follows:

Q: You were given some contract of employment by the maternity clinic in Nigeria, not so?

A: Yes but I don’t have anything to show now because it has been many years.

Q: How much were you earning in a month at the nursing maternity home?

A: 350 Naira

Q: Is there any documentary proof?

A: No

Q: I am suggesting to you that you do not have any documentary proof for working as a nurse in Nigeria because you did not work in Nigeria as a nurse.

A: I did because the uniform shows and in my passport that I tendered you could see that it was written in there as a nurse and the stamps showing going in to and fro to Nigeria.

[30] From the evidence, the Claimant says she worked as a nurse in Nigeria and the proof of her assertion and evidence that she financially contributed to the acquisition of the property under attachment is a photograph of her in a Nursing Uniform and her passport showing that she travelled “to and fro to Nigeria”. The Claimant further averred and also testified that after her nursing career in or about 1989 she started a mother care shop which she operated at Newtown in Accra. Again, the answers provided by Mrs. Fatima Owusu under cross-examination are revealing and interesting as borne out below:

Q: What was the name of the mother care shop you claim you were running in Lagos Town?

A: It was Selsam Mother Care Enterprise.

Q: I believed you were paying your tax for Selsam Mother Care Enterprise?

A: Yes.

Q: Do we also take it that you had cash receipts books or journal entries?

A: No. I travelled outside to US and when I was away the landlady wanted the store back and I left the store with my store girl so everything had to be taken out of the store including everything I had in there and papers.

Q: Are you asking this Court to believe that you lost all documentary proof in relation to the mother care shop?

A: Yes.

Q: Even some receipts to show payments of rent for the mother care shop?

A: I have none….

Q: Exhibit G2 as well was taken in the shop before early 2007?

A: Yes

Q: These pictures did not get lost together with your other documents, is that your case?

A: Yes, I kept these pictures at home and for the mother care documents it was at the shop.

I note that the Claimant went on to explain that she kept the shop documents at work because “the IRS will go around checking the documents so if I take it home and they come I won’t have anything to show to them”.

[31] Again, from the above evidence the Claimant’s evidence of employment and therefore financial contribution is a photograph. I entirely agree with Counsel for the Plaintiff/Judgment Creditor that admitting the photographs as proof of employment and therefore the Claimant’s assertion that she financially contributed to the acquisition would be affront to the rules of evidence and commonsense. With the greatest respect to the Claimant wearing a nursing uniform in a photograph without more does not in any way shape or form mean that one is an employed nurse. Same applies to a photograph of a person sitting in front of a shop does not make the one the owner of the shop. The Claimant could have obtained certified true copies of documents to show the registration of the Enterprise and tax receipts if indeed the said business existed and she paid taxes as she alleged from the relevant state agencies. The basic rule of the Court process is that the Court deals with evidence and not speculation and empathy. It is perplexing that the Claimant could not provide any documentary proof of her alleged contribution as well.

[32] Based on the evidence I find as a fact that the Claimant made no financial contribution to the acquisition of the attached property. It is also my finding that even if the subject matter property was acquired before the Claimant travelled to the United States where she lived for almost a decade, the evidence show that she and the husband lived separate economic lives as she demonstrated that she has no idea of the husband’s business dealings and therefore the husband acquired the property and has treated same as his personal property.

[33] Be that as it may, the Claimant’s Counsel submitted that “though she did not keep any document or records to support her claim”, the Court should consider her claim based on her kind contribution. I shall consider the submission later in my analysis in the context of whether or not the attached property is a matrimonial home.

[34] Based on the affidavit evidence and the testimony, it is my finding that the Claimant is the wife of the 2nd Defendant/Judgment Debtor. I reject the Judgment Creditor’s allegation of fraud in respect of the marriage certificate tendered. Can it be said that the Claimant has a beneficial interest in the attached property because it is a matrimonial home and therefore as a spouse her interest is “vested” as submitted by her counsel? But what is a matrimonial home? I have looked at both the Matrimonial Causes Act, 1971 (ACT 367) and the Intestate Succession Law, 1985 (PNDCL 111) for guidance by way of definition but found none. The Black’s Law Dictionary, defines Matrimonial Home under the definition of “Domicile” as “the place at which a person has been physically present and that person regards as home; a person’s true, fixed, principal and permanent home to which that person intends to return and remain even though currently residing elsewhere”.

[35] In an old case of WHICKER v. HUME [1858] 7 H.L.C 124 @ 160 Lord Cranworth delivered himself as to what constitute a matrimonial home as follows:

“…we mean home, the permanent home; and if you do not understand your permanent home, I am afraid that no illustration drawn from foreign writers or foreign languages will very much help you to it”.

From the above it is clear that physical presence and the intention to make the place fixed and a permanent is to shown. The facts of the instant case show that for many years the Claimant was not within the jurisdiction as she lived in the United States of America. Upon her return the evidence is that she had her “stuff” at the property the subject matter of the claim but also lived at No. 4 AU Village, Cantonments, Accra with the husband. There is also the incontrovertible evidence that the Claimant’s husband always used the address of No. 4 AU Village as her home address. If indeed the Airport West is the matrimonial home, then why is the 2nd Defendant/Judgment Debtor “renting” the AU village condominium? No explanation was proffered by the Claimant to the Court regarding that. Based on all of that can it be said that the 2nd Defendant/Judgment Debtor and the Claimant have always been present at the Airport West property and regarded the place as their fixed, principal and permanent home? In my view, based on the affidavit and the viva voce evidence I am not convinced that the property the subject matter of the claim is a matrimonial home.

[36] Further, even if I am wrong it is extremely important to observe that the Claimant failed to rebut the Plaintiff/Judgment Creditor’s positive averment that to her knowledge and with her consent her son, Maxwell Owusu approached it to make an offer, without reservation, of the subject matter property to the Judgment Creditor “in full and final settlement of the liabilities of his father, the Judgment Debtor” but same was rejected by the Judgment Creditor. The question is, is the Claimant now saying it is a matrimonial property she contributed in acquiring because the offer was rejected?

[37] It is quite significant that the Judgment Creditor’s testimony is material but same have not been denied, controverted or rebutted in any way by the Claimant. And it is trite law that where a party has averred to a material fact but was not denied the proponent carries no further burden to prove that assertion. The cardinal presumption of law is that the party against whom the averment was made admits albeit sub silentio the material averment. See: AYEREBI v FORI (1966) GLR 627 SC and HAMMOND v AMUAH [1991] GLR 89. And IBRAHIM v ABUBAKARI (2001-2002) 1 GLR 540 illustrates the following principle:

“… if the respondent in his affidavit in opposition did not deny specifically a particular allegation of fact contained in a supporting affidavit or did not answer the point of substance in the supporting affidavit, he was deemed to have admitted the fact. Consequently, it was not enough to depose to a general traverse in answer to specific allegations of facts.”

[38] Indeed silence is sometimes golden. However, in this case the silence is neither golden nor prudent because where a party is required to respond to an allegation or assertion that requires immediate reaction but she remains silent as in this case the law presumes admission of the allegations. In BESSAKA v STERN (1877) 37 LT 88 C/A the law was stated that silence may amount to an admission when it is natural to expect a reply.

[39] In the light of the above, it is my ruling that once it has not been denied that to the Claimant’s knowledge and consent, her son and husband offered the same property to the Plaintiff/Judgment Creditor as a final settlement of the judgment debt but same was rejected; it is my finding that the present claim is filed just to assist the 2nd Defendant/Judgment Debtor to avoid his genuine liability because the property is not a matrimonial home.

[40] Demeanour as a measure of credibility can often be misleading and should not, standing alone, be determinative. However examining the Claimant’s testimony in the light of its internal consistency and its consonance with the other evidence heard and before the Court and with the probabilities inherent in the circumstances, it is my judgment that the Claimant’s evidence led is not worthy of any credit on the key parts relevant to her claim and I do not believe her. I found that the Claimant was often evasive and unresponsive in her cross-examination. For instance she earlier told the Court that her husband and the children lived at the AU village because she was not in the Country but she later said upon her return to Ghana she lived at the Airport West property but the husband continued to live at the AU village and the children lived at both places. Her daughter however said her parents lived at both Airport West and at the AU village.

[41] Also, even though she testified that she did not record her contribution to the acquisition of the property because “since we are one I think being a wife I know how much I gave but I don’t put anything down” however in a sharp turn around she said she made a contribution of Eight Thousand Two Hundred pounds (8,200) somewhere in 1993 and 1994. As to how she all of a sudden without any documentation remembered the said contribution is beyond my comprehension. On the whole, I was not impressed with the Claimant’s testimony on the key parts of the evidence. I assessed her as a witness who was selective as to what she was prepared to tell the Court and admit. She did not present herself as a witness who was being entirely candid. Her testimony was given with a view to her own interest rather than in accordance with the oath which she had taken. To my mind, all that exposes the claim as a sham and a façade.

[42] In order that I am not misunderstood, I wish to state that I have always understood the position of the law based on the recent decisions of the courts starting from such cases as ABEBRESEH v. KAAH (1976) 2 GLR 46 – 62 that where there is a clear evidence of contribution by the wife, financial or otherwise, to the acquisition of the property then the wife could have beneficial interest in the property. Therefore, to my mind where a woman can show that she made substantial financial contributions to the acquisition of the property in question the courts are willing to vest beneficial interest in the woman even if the legal title is vested in the husband alone as in this case.

[43] Further, I also wish to state that I have considered the Supreme Court decision in MENSAH v MENSAH Supra and the other decisions including QUANTSON v. QUANTSON supra to the effect that the sharing of spousal property should no longer be dependent on the substantial contribution principle and that property acquired during marriage is joint property even if the spouse did not make any contribution and that a spouse where it is equitable and just may be entitled to an equal share in the said property. In my view the facts of this case is distinguishable because it is clear that the property in question is the self-acquired property of the 2nd Defendant/Judgment Debtor based on my earlier finding in this judgment and there is no evidence that he held same up in trust for the Claimant.

[44] In FYNN v. FYNN [2013-2014] 1 SCGLR 727, the Supreme Court had to address the issue of whether a spouse in the course of the marriage could acquire a personal property pursuant to his or her Constitutional right. The apex Court speaking through Wood CJ (as she then was) stated at page

741 that:

“We do not think this court’s thinking on the status of property acquired during the existence of any marriage is shrouded in confusion. Indisputably, during the existence of the marriage union, it is most desirable that the couple pool their resources together to jointly acquire property for the full enjoyment of all members of the nuclear family in particular. But, the decided cases envisage situations where within the union parties may still acquire property in their individual capacities as indeed is their guaranteed fundamental right as clearly enshrined under article 18 of the 1992 Constitution, in which case they would also have the legal capacity to validly dispose of same by way of sale, for example, as happened in this instant case. No court in such clear cases would invalidate a sale transaction on the sole legal ground that the consent and concurrence of the other spouse was not obtained”.

I understand the apex Court to say that despite the law it espoused in the earlier cases, a spouse can still acquire a property in his/her individual capacity in the course of the marriage. It is therefore my finding based on the evidence that the attached property is owned by the 2nd Defendant/Judgment Debtor as his self-acquired property.

[45] In this case there is no evidence that Mrs. Selina Owusu made any financial contribution. Her kind contribution based on her marriage is on the other hand undermined by my finding that the subject matter property is not a matrimonial home and even if it is, the fact that the same property was offered to the Judgment Creditor as a final and settlement of the debt of her husband to her knowledge clearly undermines her present claim and contention. I am of the view that Claimant cannot have it both ways. So she is on the horns of a dilemma. She cannot say that it is a matrimonial home and so it cannot be sold but at the same time offer it to the Judgment Creditor in settlement of the same debt. That simply will not do.

[46] Finally, Mr. Andrews raised in his written legal submission the spectre of unintended consequences if I were to declare that the Claimant has a beneficial interest in the property. He points to the fact that, this claim is unique because it is a claim for property rights not based on divorce or death. According to Counsel this Court should be bold to make a decision in the Claimant’s favour and not fear that a Pandora’s box would be opened for fraudulent spouses to collude to protect legitimately attached properties. I wish to simply say that my decision is made based on the law as I understand it and the evidence heard. The so-called unintended consequences and the opening of the “floodgates” for fraudulent spouses have never been part of my thinking in arriving at my decision.

Conclusion

[47] Whilst it is correct to say that the issues as to what is joint property in marriage have undergone considerable development in our legal jurisprudence and considerable strides seem to have been made, in my opinion a time has come for Parliament to show leadership by passing a Spousal Property Rights Law as enshrined in the Constitution and thereby follow what exists in other jurisdictions as to the rights of spouses to property acquired in the course of the marriage. The Judiciary has taken the bold decisions based on the cases cited supra but it is not enough. The time has come for legislation to be passed to take into consideration the socio-cultural and economic realities of our time in this jurisdiction including the facts as presented in this unique case. Claim is DISMISSED

Cost of 2500 to the Plaintiff/JC