IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT (GENERAL JURISDICTION DIVISION)
ACCRA - A.D 2018
GLOBAL INVESTMENT BANKERS LTD AND OTHERS - (Plaintiff)
BROOKS ASSET MANAGEMENT LTD AND OTHERS AND JULIANA ASABEA KUJAR - (Defendants)
DATE: 19 TH NOVEMBER, 2018
SUIT NO: CM/RPC/0631/16
JUDGES: ERIC K. BAFFOUR, ESQ.JUSTICE OF THE HIGH COURT
Plaintiffs/Judgment Creditors (hereinafter called the Execution Creditors/Defendants) proceeded in execution of a consent judgment for the recovery of an amount of Gh¢3,986,143.99 by attaching property H/No 141 Gye Nyame St. (Atomic Down) North Dome, Accra. Without any success with motions upon motions in this court and the Court of Appeal to stay the execution of the judgment by the 3rd Judgment Debtor, the Claimant (hereinafter called the Claimant/Plaintiff), Juliana Asabea Kujar has filed a notice of claim that she is the wife of the 3rd Judgment Debtor and has an interest in the attached property at North Dome.
The court in exercise of its powers to control the mode of its proceedings and guided by the rules of court ordered the Claimant to file its affidavit of interest. In the affidavit of interest filed on the 15th of August, 2018 she noted that she is the wife of the 3rd Judgment Debtor having been married to him since 30th of March, 2002. And that the property attached in satisfaction of the judgment debt is a jointly acquired property having been acquired during the subsistence of the marriage. And even though 3rd Judgment Debtor’s name appear on the title documents but has always held the property in trust for himself and the Claimant/Plaintiff.
Execution Creditors in an affidavit disputed the claims of the Claimant/Plaintiff that she has an interest in the property attached and that her interest may only be triggered if the action had to do with a divorce proceedings. 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”.
The court accordingly made the Claimant the Plaintiff and the Execution Creditor the Defendant, for the purposes of this trial. 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 ordered the lawyers to file written submissions and address the court in respect of the following questions: whether the subject matter attached property is separately owned by 3rd Judgment Debtor or jointly owned by the Claimant/Plaintiff and the 3rd Judgment Debtor and whether being a spouse entitle the Claimant/Plaintiff to one half share of the property in the name of the husband.
From the affidavit evidence I find as a fact that the Claimant/Plaintiff is the wife of the 3rd Judgment Debtor. But as to whether by being a wife entitles her from stopping the attachment of the property depends on the analysis infra. First there is no evidence of when this attached property was acquired.
No copy of the title document or the lease/indenture was exhibited. Was it deliberate such that its exhibition would have exposed the Claimant/Plaintiff that the property was acquired by the 3rd Judgment Debtor long before his marriage to the Claimant/Plaintiff? Counsel for Claimant/Plaintiff in his written address claim that the original lease of ninety nine years was assigned in 2012 November to 3rd Judgment Debtor and the Claimant/Plaintiff. Where is that evidence, as the title certificate or the lease was not exhibited? Is a court of law permitted to go beyond the evidence before it and behave like a magician to discern other matters not before it and make findings of fact? The burden of proving that the attached property was acquired during the existence of the marriage was on the Claimant/Plaintiff and in the face of the denial of such assertion by the Judgment Creditors, I find that the deposition contained in paragraph 6 of the affidavit of interest of the Claimant/Plaintiff that the attached property was acquired during the subsistence of the marriage has not been proved.
And even if this finding above is wrong and assuming that the attached property was acquired after the marriage came into existence and with the property being in the sole name of the 3rd Judgment Debtor, would that property be deemed to be joint property by virtue of the marriage?
Claimant/Plaintiff has deposed under paragraph 7 and 11 of the Affidavit of Interest that the North Dome property is registered in the sole name of the 3rd Judgment Debtor but only that 3rd Judgment Debtor holds same in trust. There being an admission by the Claimant/Plaintiff that the legal title of the property is in the name of the husband 3rd Judgment Debtor the presumption under section 35 of the Evidence Act, NRCD 323 operates and the said presumption states as follows:
“The owner of the legal title to property is presumed to be the owner of the full beneficial title”.
This being a rebuttable presumption in law the burden again is on the Claimant/Plaintiff to prove to the court that the 3rd Judgment Debtor whose name she admit is on the registered Dome property is not the only owner of that property and she also is a co-owner. Did she do that? Claimant/Plaintiff put forward her marriage since 2002 as the main evidence of her part ownership of the property. For this is what she says at paragraph 10 of the affidavit of interest:
“That since the said marriage property was acquired during the subsistence of our marriage, the property is jointly owned by the 3rd Defendant judgment Debtor and myself and that and that by law and equity I have legal and equitable interest in the said property”,
I have already blasted the claim of the acquisition of the property during the subsistence of the marriage and find it needless to flog it once more. Claimant/Plaintiff did not show how she became a joint owner of the property. In fact the record of the main suit is replete with affidavits deposed to by 3rd Judgment Debtor wherein he categorically claim to be the bona fide owner of the North Dome property. I reckon that the claim of ownership by Claimant/Plaintiff is only by virtue of her marriage to the 3rd Judgment Debtor which she claim by law and equity gives her an interest in the property. It is true that the line of cases beginning with MENSAH v MENSAH  SCGLR 1 SCGLR 391; QUARTSON v QUARTSON  2 SCGLR 1077 has taken the wind out of the sail of Parliament by laying down rules which has come to be known as equality is equity principle in the distribution of marital properties. For this is what Dotse JSC said in the MENSAH case supra 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? 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”
The line of cases with the MENSAH principle should never be taken out of context. The principle of equality is equity in the distribution of marital property is applicable only on two grounds. First when there is divorce and two in the event of death. The equality is equity in marriage is not meant to be that a spouse cannot have an individual property of his/her own and dispose same off as he/she chooses. The principle developed by the Supreme Court is based on the provisions under article 22 of the Constitution and I find it apt to reproduce what the Constitution says:
“(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.
Clearly then it is only when there is dissolution of the marriage that a spouse can claim that her contribution should be measured even though her name does not appear on the title of the property, in terms of her performance of household chores at home. It does not take away the other constitutional right of a spouse during the marriage to acquire property in her/his right own right and in her/his own name. It does not away the constitutional right of a party to marriage to sell or dispose off the property acquired in her/his own name.
For article 18 of the Constitution states as follows:
“(1) Every person has the right to own property either alone or in association with others.”
By this the existence of marriage will not deprive a spouse the right to own property in his/her own right. Such a matter came up 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 like the one this Claimant/Plaintiff is making before me 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”.
From this decision therefore, where there is no evidence of part ownership of the property by Claimant/Plaintiff save only her marriage which she claim entitles her to joint ownership, the property can wholly be sold in satisfaction of a judgment debt the same way 3rd Judgment Debtor has the right to sell the property as 100% owner without the consent of the Claimant/Plaintiff. Any interest she has can only be founded upon divorce as stated supra but does not deprive the Judgment Creditors the power to attach the property for sale.
I need to make a clear distinction in respect of the case of AKUA KUENYEHIA v NDK FINANCIAL SERVICES (unreported) Suit No BDC 43/12 cited by counsel for Claimant/Plaintiff. In that case there was unimpeachable evidence that Judge Akua Kuenyehia at the time the property was acquired contributed immensely towards the acquisition of the attached property as she was a lecturer at the Faculty of Law, University of Ghana, Legon earning more than her husband who was just barely five years as a lawyer, and a junior struggling then.
In the case before me the Claimant/Plaintiff entered the marriage as a twenty three year old national service personnel who had met a Fund Manager, Stock Broker well-seasoned in investment management in the person of the 3rd Judgment Debtor and any claim of being a part owner of the property by Claimant/Plaintiff must be backed with evidence. The judgement obtained by Execution Creditors is jointly and severally against all the Judgment Debtors and the deposition contained in paragraph 14 of the Affidavit of Interest that 3rd Judgment Debtor did not use the property as collateral is unfounded. She is not the owner of the property and she is not a party to the suit and should not pretend to mourn more than the bereaved.
It is not for the Claimant/Plaintiff to direct which property of the 3rd Judgment Debtor for the Execution Creditors to attach to satisfy the judgment debt. Finding no substance in this interpleader suit save this trial being evidence of another well calculated attempt by 3rd Judgment Debtor to frustrate the execution of the judgment after the numerous frivolous applications for stay of execution and other processes had all been dismissed, I dismiss this claim as unmeritorious. I exercise my discretion and award cost of GH¢2,000 against Claimant/Plaintiff in favour of the Plaintiffs/Judgment Creditors/Defendants.