IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT (GENERAL JURISDICTION DIVISION),
ACCRA- A.D 2019
ELECTROLAND GHANA LTD - (Plaintiff)
PAULINA ADOMAKO AND ANOTHER - (Defendant)
DATE: 19 TH N OVEMBER, 2018
SUIT NO: GJ 1420/17
JUDGES: ERIC K. BAFFOUR, ESQ.JUSTICE OF THE HIGH COURT
Plaintiff/Judgment Creditor/Defendant (hereinafter called obtained called Execution Creditor/Defendant for the purposes of this interpleader suit) obtained judgment against Defendant/Judgment Debtor (hereinafter called the Judgment Debtor) on the 20th of December, 2017 for the recovery of an amount of Ghc1, 004,747.00 as monies owed by the Judgment Debtor for the supply of products to Judgment Debtor together with interest and cost. In its quest to execute the judgment and recover the monies, property H/No 04800375-10, NNK 04 Jamorky, Opposite Zion Prayer Centre, Ashaley Botwe Accra was attached. It is the attachment of this property that has precipitated the filing of notice of claim by Kingley Adomako, the Claimant/Plaintiff (hereinafter called the Claimant/Plaintiff).
When called upon by the court to file an affidavit of interest, the Plaintiff filed one and deposed among others, that the property attached is his bona fide property, in his sole name even though he admit that the Judgment Debtor is his wife. That he acquired the property long before the Judgment Debtor registered her business in July, 2009 under the business name and style Bigma Enterprise and that she is not part of his wife’s business and neither was he part of the suit that resulted in the judgment against the Judgment Debtor and hence claim that his house cannot be used to defray the debt simply because he is the husband of the Judgment Debtor.
When the matter came before the court for a determination in accordance with Order 44 Rule 13 of the High Court (Civil Procedure) Rules, C. I. 47 which states as follows:
13. (1) Where on the hearing of proceedings pursuant to an order made under rule 12(4) all the persons by whom adverse claims to the property in dispute, in this rule referred to as "the claimants" appear, the Court may
(a) summarily determine the question in issue between the claimants and execution creditor and make an order accordingly on such terms as may be just; or
(b) order that any issue between the claimants and the execution creditor be stated and tried and may direct which of them is to be plaintiff and which defendant”.
Judging from the nature of the Affidavit of Interest deposed to by the Claimant/Plaintiff the court in exercise of its functions for the determination of the dispute in a summary manner took viva voce evidence from the Claimant/Plaintiff and ordered the lawyers to file written submissions and address the court in respect of the following questions:
1. Whether or not the Judgment Debtor has any interest in the property attached as a wife of the husband.
2. Whether or not the interest of a spouse in a matrimonial property, if any, can be attached in satisfaction of a judgment debt incurred by that spouse alone.
From the affidavit evidence and the oral examination of the Claimant/Plaintiff, the court before proceeding to deal with the two questions posed make the following findings of fact:
1. That the Claimant/Plaintiff is the husband of the Judgment Debtor having been married to the Judgment Debtor in the 1980’s under customary law and converting same into marriage under the Ordinance in 1995.
2. That the attached property was acquired in 1994 for a period of fifty years.
3. That the attached property was acquired during the subsistence of the marriage between the parties.
4. That the attached property is in the sole name of the Claimant/Plaintiff.
5. That the business enterprise of the Judgment Debtor is solely run by the Judgment Debtor without the involvement of the Claimant/Plaintiff.
HAS THE JUDGMENT DEBTOR ANY INTEREST IN THE PROPERTY ATTACHED IN EXECUTION OF THE JUDGMENT OBTAINED?
With no evidence that the Judgment Debtor contributed to the acquisition of the attached property, the right of a spouse to hold a property either alone or jointly has clearly been entrenched under article 18 of the Constitution which states as follows:
“(1) Every person has the right to own property either alone or in association with others.”
Before me there is no evidence that the Judgment Debtor contributed to the acquisition of the attached property and the only basis for the property having been attached is that the Judgment Debtor is the wife of the Claimant/Plaintiff. The decision in the case of MENSAH v MENSAH  SCGLR 1 SCGLR 391; QUARTSON v QUARTSON  2 SCGLR 1077; ARTHUR v ARTHUR  67 G.M.J 110 where the principle of equal access to property acquired during the subsistence of the marriage must be viewed against the background of distribution of the matrimonial properties upon divorce but not to take away the right of a spouse to hold a property alone and in his/her sole name.
In the MENSAH case supra Justice Dotse noted as follows when he interpreted article 22 of the Constitution that:
“Why did the framers of the Constitution envisage a situation where spouses shall have equal access to property acquired during marriage and also the principle of equitable distribution of assets acquired during marriage upon dissolution of the marriage?[emphasis mine] We believe that, common sense and principles of general fundamental human rights requires that a person who is married to another and performs various house hold chores for the other partner like keeping the home, washing and keeping the laundry generally clean, cooking and taking care of the partner’s catering needs … raising up the children in a congenial atmosphere and supervising the home such that the other partner has a free hand to engage in economic activities must not be discriminated against in the distribution of properties acquired during the marriage when the marriage is dissolved [emphasis mine”
From the MENSAH case there has developed what has been termed a principle or a presumption in Ghanaian law in favour of the sharing of marital property on an equality basis on the dissolution of the marriage. Therefore the principle flowing from MENSAH is not a carte blanche to take away the constitutional right of a person to hold a property in his/her personal name. Presumption of equality in the sharing of the marital properties acquired during the subsistence of the marriage is relevant, I so find, only during divorce or dissolution of the marriage. Even during the dissolution of a marriage it is not a straight forward case of equal distribution as in the case of QUARTSON supra, the Supreme Court noted that the application of the equality principle during divorce will have to be shaped and defined to cater for the specifics of each case. For instance there cannot be a straight forward equality of distribution of marital properties when the marriage is a polygamous one or one marriage under the Mohammedan Ordinance where the husband probably has three or four wives. If only one wife who is being divorced seeks equal sharing of all the marital properties between her and the husband that will obviously work manifest injustice since there may be three or so women still in the marriage and who might have even stayed married to the man for more years than the woman who is exiting the marriage.
I therefore find that in the absence of any evidence to show that the Judgment Debtor contributed to the acquisition of the attached property and the Claimant/Plaintiff is only a trustee, I hold that the presumption of property acquired during the subsistence of the marriage being joint property as established in the cases like MENSAH v MENSAH, QUARTSON v QUARTSON. ARTHUR v ARTHUR operates during divorce or dissolution of the marriage. In the case of FYNN v FYNN [2012-2013] 1 SCGLR 727 where a husband whiles married sold a store acquired by him whereupon the wife claimed that she was a joint owner of the property sold and her consent had not been sought and therefore sought to invalidate the sale. Her claim of the husband being a trustee of the property was dismissed by the Supreme Court in the following:
“We do not think this court’s thinking on the status of property acquired during the existence of any marriage is shrouded in confusion. … 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 the members of the nuclear family in particular. But the decided cases envision situations where within the union, parties may still acquire property in their individual capacities as indeed it is their guaranteed fundamental right as clearly enshrined under article 18 of the 1992 Constitution. In which case they will also have the legal capacity to validly dispose of individually acquired property by way of sale … no court will in such clear cases invalidate a sale transaction on the sole legal ground that the consent and concurrence of the other spouse has not been obtained”.
CAN THE INTEREST OF A SPOUSE IN A MATRIMONIAL PROPERTY BE ATTACHED IN SATISFACTION OF A JUDGMENT DEBT?
As I have found that the attached property is held solely by the Claimant/Plaintiff, with the incidents of ownership attached to it which means the Claimant/Plaintiff can alienate the property, sell it or do whatsoever he wants with the property and if the Judgment Debtor has any interest whatsoever it does not arise until there is divorce, it follows that the property of a husband cannot be liable for any attachment for the debt of a wife.
I do not find it useful to rely on the foreign cases cited to me in view of the binding authoritative decision of the Supreme Court in the FYNN case supra. With no interest of the Judgment Debtor in the attached property shown to the court, I will order the attached property to be released from attachment.
I make no order as to cost.