AMMA OWUSU SARPONG V KOJO OWUSU SARPONG

JUDGMENT

ACKAAH-BOAFO, JSC:

Overview:

[1] My Lords, this appeal brings into sharp focus the contentious issue of spousal property distribution in Ghana, as governed by Article 22 of the 1992 Constitution. Specifically, it invites this Court to determine whether the analytical framework established in leading authorities such as Mensah v. Mensah (1998-99) 2 GLR 350, Boafo v. Boafo (2005-2006) SCGLR 705, and subsequent decisions such as Mensah v Mensah [2012] 1 SCGLR 391, Quartson v Quartson [2012] 2 SCGLR 1077, Arthur (No. 1) v. Arthur (No. 1) (2013-2014) 543 - which dealt with the distribution of spousal property after the dissolution of marriage - is being appropriately applied by trial courts.

[2] Amma and Kojo Owusu Sarpong were married under customary law in 2002. They celebrated an ordinance marriage on Valentine's Day, 2005. From the evidence, they separated sometime in November 2015, when, according to Amma, Kojo refused her advances for intimacy, though they remained in the same home until sometime in 2017, when Amma left after making a complaint of domestic abuse to the police. The police attended at their residence and subsequently arrested Kojo though no charges were laid against him.

[3] The Owusu Sarpongs have no children together although Mr. Owusu Sarpong has two adult children who, according to the evidence, have never lived with them. The petition, which has given rise to this appeal, was filed by Mrs. Owusu Sarpong in October 2018 at the High Court, Koforidua.

[4] The parties contested two principal issues: first, whether the marriage had broken down beyond reconciliation and was therefore ripe for dissolution; and second, whether the Petitioner was entitled to an equitable share of the house that Mr. Owusu Sarpong began constructing prior to their relationship but completed during the marriage. Following a brief trial, the High Court dissolved the marriage and awarded the Petitioner a fifty percent (50%) interest in the property. Dissatisfied, the Respondent appealed to the Court of Appeal, which, in a unanimous decision, overturned the judgment of the trial court.

[5] The Court of Appeal held that the High Court erred in granting the Petitioner a 50% interest in the house. It instead granted the Petitioner a 20% interest. This appeal is by the Petitioner, who is dissatisfied with the decision of the Court of Appeal.

[6] Amma Owusu Sarpong bases her appeal on two main grounds and prays this Court to set aside the variation made by the Court of Appeal in respect of the house - the subject matter of the litigation - and to restore the distribution order made by the trial court.

ii. Material Background Facts:

[7] The background facts, which can be distilled from the petition filed at page 3 of the Record of Appeal (ROA), Volume 1, are that the Petitioner/Respondent/Appellant - who will be referred to in this opinion as the Appellant - and the Respondent/Appellant/Respondent - hereinafter referred to as the Respondent - were married customarily in 2002 and subsequently celebrated an ordinance marriage in February 2005 at Koforidua. At the time, the Respondent was ordinarily resident in the United Kingdom and assisted the Appellant to join him there. They, thereafter, lived in different locations within the city of London.

[8] The record reveals that the marriage was an unhappy one, with each party attributing the breakdown to the other. The police were summoned to their residence in London, and legal counsel became involved after the Appellant reported to the police that the Respondent had assaulted her. The Appellant further alleged that the Respondent had refused to engage in sexual relations with her. The Respondent, in turn, claimed that the Appellant had confessed to marrying him merely to secure entry into Europe and that he was not her type of man. He initially sought to terminate the marriage customarily by notifying her family and subsequently filed a divorce petition before the District Court in Koforidua. For reasons that are not clear on the record, he could not carry through with the divorce.

[9] The Petitioner, on October 16, 2018, filed a petition at the High Court, Koforidua, and prayed the Court to dissolve the marriage, make an order for the equitable sharing of the house at Kasoa, Titibu Junction, near Panbros Ghana Limited, make an order for compensation for several years of service, and make any other order(s) the Court may deem fit.

[10] The Respondent was agreeable to the dissolution of the marriage, as he accused the Petitioner of being responsible for its breakdown. The Respondent contended that the Petitioner was not entitled to the reliefs sought. Mr. Owusu Sarpong stated that he did not own a house at Kasoa but had commenced the construction of a building at Tetegu long before he met and married the Petitioner, who, he said, did not contribute "a pesewa towards the construction."

iii. The High Court Decision:

[11] After considering the evidence, the trial court on December 13, 2019, found that both parties consented to the dissolution of their marriage, acknowledging that they had not lived together as husband and wife for three years. On the basis of the evidence presented, the trial judge concluded that the marriage had irretrievably broken down beyond reconciliation and accordingly made an order dissolving the marriage.

[12] The Court declined to grant the Petitioner's request for an order of compensation for several years of service. The trial judge observed that the consequences of a divorce should not be borne by only one party, particularly where it is evident that both parties share responsibility for the breakdown of the marriage. The Court further held that services rendered during the course of a marriage are generally reciprocal, unless it can be shown that one spouse performed duties that went beyond what is ordinarily expected within a marital relationship.

[13] Regarding the Appellant's prayer for division of property, the trial judge started at pages 85-87 of the ROA as follows:

"The Petitioner is asking for the equitable sharing in a house at Kasoa, Tetebu junction, close to Pambros Ghana Ltd.According to her the Respondent started the building before the marriage; it was at the window level then. She supervised the construction whenever he sent money to her and she got it to the lintel level before she left to the United Kingdom. Whilst in the United Kingdom, the Respondent told her to take care of the expenditure in the house whilst he took care of the rent and utilities. She helped build the house at Tetebu to the level that it is now. Since they lived out of the jurisdiction, the continued supervision of the construction of the house was by the respondent's own brother-in-law and sometimes, Petitioner's sister, Esther Amponsah.Petitioner said she could not conceive and therefore saved £4,000 to undertake In Vitro Fertilization (IVF). The Respondent asked to borrow that money and never gave it back. Later, she learned that he had used it to buy windows and doors for thehouse. On another occasion, she gave him £800 for filling a portion of the front house. In proof of the monies that Petitioner said she gave to the respondent, she exhibited a copy of the statement of account at NatWest. There was evidence of payment of £4,000 into the Petitioner's account by the Respondent as well as withdrawal of £3,000 by Respondent. There is evidence that on two other occasions £1,000 and £200 were paid to the Respondent by the petitioner. The Respondent insisted that any time that the Petitioner gave him money, he paid her back. The bank statement lends credence to the Respondent's contention.Article 22(3) of the Constitution 1992 provides that assets which are jointly acquired during marriage shall be distributed equally between the spouses upon dissolution of the marriage. For the petitioner to have supervised the construction of the house after the marriage when it was only at the lintel level, for her to have contributed to their upkeep in the course of the marriage when they got to the United Kingdom, for her to have given up £4,000 which she said was meant for IVF for the building of the house, for her sister to have continued with the supervision of the construction of the house in the absence of this couple the only conclusion that I come to is that she contributed to the building of that house. Her aim in contributing was to be a joint owner.When a spouse contributes towards the requirement of a matrimonial house in the belief that the contribution is meant to assist in the joint acquisition of the property, this belief must be materialised with the aid of the court of equity...With the above in mind, the petitioner may not have contributed to the acquisition of the land itself, but all her actions after the marriage, her supervision of the property, her contribution in the course of the marriage to the marriage itself, and her sister's supervision in her absence, lend the property the colour of a marital property, I find.I therefore award a 50% portion in the property described in this petition by the petitioner and respondent to the petitioner".

iv. The Court of Appeal Decision:

[14] Dissatisfied with the decision of the trial court, the Respondent, in May 2020, sought leave to appeal to the Court of Appeal, Koforidua, and same was granted on November 25, 2020, by the High Court. The Respondent filed his Notice of Appeal on December 4, 2020, praying the court to set aside the judgment of the High Court for granting the Appellant 50% share in the house situate at Tetegu junction. The Court of Appeal, by its decision dated November 15, 2022, after reviewing the jurisprudence of this Court established in such cases as Mensah v. Mensah (supra), Boafo v. Boafo (supra), Quartson v. Quartson (supra), Arthur (No. 1) v. Arthur (supra), and Peter Adjei v. Margaret Adjei (34/6/2021, delivered on April 21, 2021), varied the decision of the High Court on the ground that the trial court erred by failing to consider the equities of the parties in the Kasoa house before making its awards.

[15] After a careful evaluation of the evidence on record and guided by the decisions of this Court at page 29 of the ROA, Volume 2, stated as follows:

"Having examined the record of appeal in its entirety and considered the arguments of Counsel as well as the applicable legal principles and case law, we are of the firm opinion that, the finding of the court below to the effect that the house in issue has the "colour of a marital property" cannot be faulted. However, the subsequent finding and decision of the High Court that, the Petitioner intended to be a joint owner which led the court to settle of the house in dispute in her favour, cannot be justified on the basis of the evidence and in equity. We proceed to state our reasons".

[16] My Lords, the reasons given by the first appellate court for its decision were that, firstly, the land on which the house at Kasoa was built was solely acquired by the Petitioner (sic) before the marriage. It is undisputed that at the time the parties contracted the marriage, construction of the building had already progressed to the "window level." Secondly, at the commencement of the marriage, there were no primary facts upon which any reasonable inference or presumption of joint ownership could be drawn. However, by the conduct of the parties during the marriage, the nature of their respective interests inthe building changed significantly. In particular, the Respondent acted in a manner that would reasonably lead any wife to believe that she had an interest in the property.

[17] The Court of Appeal, referencing pages 23-24 a ROA, Volume 1, observed that the Petitioner testified in her evidence-in-chief as follows:

"When the Respondent married me, he was putting up a house, and it was at the window level. I continued construction upon his instruction when he sent money to me, up to the lintel level, before I left for the UK. It is located at a place called Tetegu near Pambros on the Kasoa Road. I supported him financially in building the house. Because we lived in the UK, the house was supervised by my husband's brother-in-law and later by my sister, Esther Amponsah, and Kwasi Baah. I took a loan of £4,000 for IVF treatment, but he used it to buy doors for his building. I want the court to dissolve the marriage and award me my share of the house."

The Court said:

"Despite his efforts in cross-examination, the Respondent failed to establish that he refunded the sum of four thousand pounds (£4,000) to the Petitioner. Earlier, at page 23 of the record, the Respondent also told the Court:''When I first went to the UK, the Respondent told me to take responsibility for household expenses, while he took charge of rent and utilities. That was our arrangement.'"

[18] The Court of Appeal further stated that the Respondent could not discredit the foregoing evidence. The Court observed that the import of this finding is that the Respondent received both direct and indirect financial support from the Petitioner, which enabled him to continue the construction of the Kasoa house during the subsistence of the marriage. This distinguishes the facts of the present case from Adjei v. Adjei (supra).

[19] The court also stated that:

"We therefore agree with the submission of counsel for the Petitioner that the equities in this case are not the same. Awarding a 50% share of the Kasoa house - originally acquired solely by the Respondent - to-the Petitioner cannot be considered equitable. Had the trial judge properly evaluated the evidence and applied the relevant law to the peculiar facts of this case, she would have reached a different conclusion regarding the apportionment of the disputed property. In the circumstances, we find merit in the appeal. Accordingly, we set aside the order of the trial High Court awarding a 50% share of the Kasoa house to the Petitioner. In its place, we substitute an award of a 20% interest in favour of the Petitioner".

v. The Instant Appeal:

[20] The Appellant was dissatisfied with the judgment of the Court of Appeal and has accordingly filed the instant appeal. The Petitioner/Appellant appeals against the decision and prays this Court to set aside the variation order on the following grounds:

Grounds of Appeal:

i. The judgment is against the weight of evidence.ii. The learned justices of the Court of Appeal erred in law when they varied the trial High Court's decision for the parties to share the matrimonial property in equal halves into the ratio of 80% to 20% in favour of the respondent, especially more so as there is evidence of substantial contribution by the Petitioner/Respondent/Appellant on record.iii. Further grounds of Appeal will be filed upon the receipt of a copy of the Full record of appeal.See pages 36-37 of the ROA, Volume 1

vi. Issues for determination:

[21] My Lords, the Appellant did not file any additional grounds of appeal. As stated above, even though the Appellant bases her appeal on two grounds, in my view, a single issue arises for determination to dispose of the appeal, namely:

Whether the Court of Appeal erred when it reversed, by way of variation, the order of the trial High Court in respect of the property that is the subject matter of the dispute.

vii. Submissions of Counsel:

[22] The Appellant, who appealed on two grounds including the omnibus ground that the judgment of the Court of Appeal was against the weight of evidence adduced at the trial, relied on the case of Ampomah v. V.R.A [1989-90] 2 GLR 28 (CA) to submit that she bore the burden of demonstrating, from the record of evidence, the lapses in the judgment she sought to challenge.

[23] Counsel further referred to this Court's decision in the celebrated case of Kakraba v. Kwesi Bio [2012] 2 SCGLR 834, to contend that where an appellant alleges that the Court of Appeal failed to adequately consider the case of the plaintiff, it is incumbent upon the appellant to establish that failure. As stated in that case:

"It was the duty of counsel for the appellant, that is, the plaintiff in the instant appeal, to demonstrate where the Court of Appeal failed to consider the case of the plaintiff, thereby denying him justice. Counsel could have done so by drawing the Supreme Court's attention to pieces of evidence which were led but ignored, to the detriment of the plaintiff."

Counsel also cited other celebrated decisions of this Court, including Tuakwa v. Bosom [2001-2002] SCGLR 61, Djin v. Musah Baako [2007-2008] SCGLR 688, and Duodu v. Benewah [2012] 2 SCGLR 103, in reaffirmation of the above-stated legal principle.

[24] Having laid out the law as stated above, the question is: did Counsel, in his submission, identify the errors alleged to have been committed by the Court of Appeal in its reasons for reversing the order of the trial High Court with regard to the disputed property?

[25] The main thrust of the Appellant's counsel's argument, as outlined in the statement of case, is that the Court of Appeal - at pages 29 - 30 of Volume 2 of the Record of Appeal (ROA) - acknowledged the Appellant's testimony that, at the time of the marriage, the Respondent had already constructed the house up to window level. Acting on. his instructions, she continued the construction with funds he remitted to her until the building reached the lintel level, after which she travelled to the United Kingdom. She further asserted that she contributed £4,000 - money initially borrowed for IVF treatment - which the Respondent instead used to purchase doors for the property. On that basis, she sought both the dissolution of the marriage and an equitable share in the house.

[26] Counsel submits that the Appellant's case is that the sum of £4,000 was indeed given to the Respondent for the construction of the house, and that the Respondent never denied receiving the money. In fact, during cross-examination (pages 39-40 of Volume 1 of the ROA), the Respondent admitted asking for the loan, claimed ignorance of its purpose (IVF treatment), but asserted - somewhat vaguely - that he had repaid it, though he could not recall when or into which account.

[27] From the referenced testimony, Counsel submits that it is clear the Respondent admitted receiving the funds, and that his alleged repayment was unsupported by evidence. Consequently, the Appellant's unrebutted evidence regarding her financial contribution remains unchallenged. Relying on established case law, including:

• In Re Presidential Election Petition: Akufo-Addo & Ors v. Mahama & Ors (No. 4) [2013] SCGLR (Special Edition) 73 at 425,
• Takoradi Flour Mills v. Samir Faris [2005-2006] SCGLR 882, and
• 
  
• Amontia IV v. Akortia Oworsika [2001-2006] SCGLR 637,

the Appellant argues that unchallenged evidence ought to have been accepted by the Court of Appeal.

[28] Based on the foregoing, the Appellant submits that the Court of Appeal erred in holding that, although the Appellant contributed to the property, her contribution was not substantial enough to merit a 50% share. The Appellant contends that the law does not require proof of a substantial contribution before recognising a spouse's financial input in matrimonial property. According to counsel, modern judicial principles reject the rigid application of commercial standards to marital relationships. In essence, the Appellant maintains that her financial contribution - even if relatively smaller in quantum vis-a-vis what the Respondent contributed - was real, proven, and legally cognizable, thereby entitling her to a fair share of the matrimonial home.

[29] The Respondent, for his part, argued that the central issue for determination is whether the property he began constructing up to window level. before the marriage constitutes jointly acquired or matrimonial property. The undisputed facts show that the Respondent solely purchased the land and built the structure to that level before marrying the Petitioner. Although the Petitioner claims to have contributed to the completion of the building, the evidence does not support this assertion.

[30] According to Counsel, the Respondent's unchallenged testimony indicates that he proposed joint financial arrangements, but the Petitioner refused, citing his two children from a previous relationship. The Respondent maintained that any money he received from the Petitioner was by way of loans, which he repaid, not as contributions toward the building.

[31] Given these facts, Counsel submits that the property cannot be considered jointly acquired. The parties neither intended it to be matrimonial property nor demonstrated any joint effort or contribution toward its completion. The equities of this case, counsel contends, therefore, differ from those in which clear joint acquisition and contribution have been established. Accordingly, the Court of Appeal was right in finding that the Petitioner has only a limited interest in the property, and that finding should not be disturbed. Counsel accordingly prays this Honourable Court to dismiss the appeal.

viii. The Law and Analysis:

[34] My Lords, the Appellant, by contending that the judgment is against the weight of evidence, has invited this Court to undertake a fresh evaluation of the entire body of evidence on record. In essence, we are urged, as the final appellate court, to place ourselves in the position of the trial court and the first appellate court to determine whether we would have arrived at the same conclusions as the first appellate court. Put differently, an appeal on the ground that a judgment is against the weight of evidence calls upon this Court to re-examine the record to ascertain whether the findings and conclusions reached at trial and the Court of Appeal are duly supported by the evidence adduced, or whether those conclusions are, in fact, perverse.

(35) There is no paucity of judicial authority on the omnibus ground of appeal. Among the notable decisions elucidating this principle are Republic v. Conduah; Ex Parte Aaba (substituted by) Asmah [2013-2014] 2 SCGLR 1032 and Owusu Domena v. Amoah (2015- 2016] SCGLR 790. In these cases, this Court emphasized that:

"Where the sole ground of appeal is that the judgment is against the weight of evidence, it calls for a fresh evaluation of all the facts and the applicable law by the appellate court. Thus, when an appeal is founded on the omnibus ground that the judgment is against the weight of evidence, both factual and legal arguments may properly be advanced, provided that the legal arguments serve to assist or facilitate the determination of the factual issues."

[36] Also, as established by law - and indeed acknowledged by Counsel for the Appellant in his statement of case - it is incumbent upon the Appellant to clearly and succinctly identify before this Court the specific pieces of evidence on record that were either ignored or overlooked by the Court of Appeal, and which, if properly considered, would have led the justices of that court to enter judgment in the Appellant's favour. This principle was further affirmed by this Court in the unreported decision of Olivia Anim v. William Dzandzi, Civil Appeal No. 34/10/2018, delivered on 6th June, 2019.

[37] My Lords, before addressing the sole issue identified above and the merits of this appeal, I consider it necessary to first deal with two matters that have emerged upon my careful examination of the record of appeal and the statements of case filed by learned Counsel.

[38] The first matter concerns the description of the subject property. In both the notice of appeal and the statement of case, Counsel for the Appellant consistently referred to the property in question as the "matrimonial property" "matrimonial home. "My Lords, having reviewed the evidence and the applicable law, I am of the considered view that such acharacterization is erroneous and thus must be corrected.

[39] Blacks Law Dictionary (11th Edition), edited by Bryan A. Garner, defines a matrimonial home under the entry "Domicile" as:

"The place at which a person has been physically present and which 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".

[40] In the classic case of Whicker Yume (1858] 7 H.L.C. 124 at 160, Lord Cranworth provided further illumination on what constitutes a matrimonial home in the following words:

"...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."

[41] My Lords, it is pertinent to note that, from the Record of Appeal, the Appellant herself admitted under cross-examination that she had never resided in the property which forms the subject matter of this dispute. On 13th May 2019, when cross-examined by Counsel for the Respondent, the following exchange was recorded:

"Q: I put it to you that you have not spent a pesewa on the house.A: That is not true. In respect of the £800, for instance, he commended me and assured me that he would never cheat me.Q: In your own evidence you told this Court that you have never lived in the house at Tetegu.A: That is true.Q: I put it to you that it has never served as a matrimonial home.A: Itis not true". [Emphasis mine]See page 27, ROA, Volume 1

[42] From the foregoing, it is evident that for a property to qualify as a matrimonial home, there must be both physical presence and an intention to make the place fixed and permanent. The facts of this case, however, reveal that the Appellant has never lived in the property. Furthermore, there is no evidence on record indicating that the parties - who were resident in the United Kingdom - ever intended to make the Tetegu property their permanent home. In the circumstances, I am unable to hold that the property in dispute constitutes a matrimonial home or matrimonial property.

[43] My Lords, the next matter I wish to address concerns one of the reasons given by the Court of Appeal for varying the trial court's order, which had granted equal shares of 50% each to the Appellant and the Respondent. Although the Court of Appeal did not expressly state that it was making findings of fact contrary to those made by the trial court, its reference to the Respondent's alleged failure to establish that he had refunded the amount of £4,000 to the Appellant runs counter to the trial court's own findings.

[44] The Court of Appeal relied on the Appellant's testimony that she had supported the Respondent financially in building the house that forms the subject matter of this dispute. In particular, the Court referred to her statement:

"I took a loan to do IVF treatment (£4,000) but he got it and used it to buy doors for his building. I want the court to dissolve the marriage and I want my part of the house."

The Court of Appeal then concluded that, despite efforts made during cross-examination, the Respondent failed to establish that he had duly refunded the said amount to the Appellant.

[45] My Lords, on this same issue - whether or not the Respondent refunded the amount to the Appellant - the High Court came to a different conclusion. At page 66 of the Record of Appeal, Volume 1, the learned trial judge stated as follows:

"...In proof of the monies that the petitioner said she gave to the respondent, she exhibited a copy of her statement of account at NatWest. There was evidence of payment of £4,000 into the petitioner's account by the Respondent, as well as a withdrawal of £3,000 by the Respondent. There is evidence that on two other occasions, £1,000 and £200 were paid to the Respondent by the petitioner. The Respondent insisted that whenever the Petitioner gave him money, he paid her back. The bank statement lends credence to the Respondent's contention." [Emphasis mine].

[46] Having reviewed the evidence, I am of the view that the trial judge's conclusion was well grounded in the evidence before the court. On 13th May 2019, during cross-examination by Counsel for the Respondent, the following exchange was recorded at page 26 of the Record of Appeal, Volume 1:

"Q: I put it to you that these statements rather contain lodgments or payments made by him into your account.A: That is not true, my Lady.Q: By your exhibit C, I put it to you that on 21st January 2014, Mr. Kwadwo Owusu paid £4,000 into your account.A: Itis true that he paid. It was an amount meant for IVF treatment which I lent to him. He paid it back to me, but after the settlement at home I gave it back to him.Q: It was on 15th May 2014 that you instructed him to withdraw £3,000 out of the £4,000 he had paid to you.A: That is not so. I gave him £1,000 initially and later gave him £3,000 in bulk because I did not want to give it to him piecemeal.Q: I further put it to you that it was rather the Respondent who paid £1,000 into your account on 30th January 2015 as per exhibit C.A: It is true. I rather gave that money to him...Q: I put it to you that by your own exhibit C, the only withdrawal the Respondent made from your account was the sum of £3,000 on 15th May 2014.A: My Lord, that is not true. I gave that cash to him". [Emphasis Mine].

[47] It was on the basis of this exchange and the documentary evidence that the trial court held that the bank statements tendered by the Appellant lent credence to the Respondent's version of events. I, therefore, find no proper basis upon which the Court of Appeal concluded that, despite his efforts under cross-examination, the Respondent failed to rebut the Appellant's contention. The Court of Appeal's conclusion stands in clear contradiction to the trial judge's findings. In my view, it was incumbent upon the Court of Appeal, if it intended to depart from those findings, to justify its position on the evidence. In the absence of such justification, its finding of fact is erroneous and must accordingly be reversed.

[48] Turning to the merits of the appeal, the Court of Appeal held that, on the evidence before it, the property in dispute constituted marital property, having been jointly acquired by the parties during the subsistence of their marriage. It therefore fell to be distributed in accordance with the principle that "equality is equity," as affirmed in the decisions of this Court in Boafo v Boafo (supra), Mensah v Mensah (supra), Quartson v Quartson (supra), and Arthur (No.1) v Arthur (supra). The Court of Appeal's position was consistent with that of the trial court in so far as it recognised the Tetugu property as a joint marital asset. The divergence between the two courts lay only in the determination of the proportion of the property to be allocated to the Appellant.

ix. The law on jointly acquired marital properties:

[49] In resolving the merits or otherwise of this appeal, it is necessary to ascertain the true position of the law as settled by the judgments of this Court, and to examine the legal foundation upon which the Court of Appeal rested its decision.

[50] My Lords, it is important to recognize that there has been a laudable and progressive presumption, through this Court's interpretative decisions, that property jointly acquired during marriage should be equitably divided. This Court's position is further grounded in Article 22 of the 1992 Constitution. The necessary constitutional foundation is found in Article 22 (3), which provides that:

"(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."

Through judicial interpretation, this Court has operationalized this provision. Beginning with what I refer to as the first major decision -Mensah v. Mensah [1998-99] SCGLR 350- this Court valorized indirect (non-monetary) contributions of spouses, such as domestic work.

[51] Subsequent to the decision in the first Mensah v. Mensah, this Court, through a trilogy of cases, revisited and refined the principle therein established. Those authorities - Mensah v. Mensah, (2012) Quartson v. Quartson, and Arthur (No. 1) v. Arthur (No, 1)- collectively marked the Court's deliberate effort to clarify and consolidate the law on the subject.

[52] In the second Mensah v. Mensah (supra), this Court effected a landmark shift in the jurisprudence on spousal property rights. The Court held that Article 22(3) of the 1992 Constitution accords constitutional recognition to the equal rights of spouses in respect of property acquired during the subsistence of a marriage. The Court, however, clarified that the principle of equality does not, in every instance, translate into an equal division of property in numerical terms. Rather, it requires an equitable distribution informed by the peculiar circumstances of each case. The Court further acknowledged that domestic work and supportive roles undertaken by a spouse constitute substantial contributions to the acquisition and preservation of marital property and must, therefore, be given due consideration in any determination of property rights upon dissolution of marriage.

[53] In Quartson v Quartson (supra), this Court, while affirming the principle enunciated in the second Mensah v Mensah, reiterated that the determination of the division of property acquired during the subsistence of a marriage must be guided by. the equities of each particular case. At page 1090 of the decision, Ansah JSC, stated as follows:

"The Supreme Court's earlier decision in Mensah v Mensah is not to be construed as a blanket authority granting spouses an unfettered right of access to property where the evidence does not warrant such entitlement. Its application and effect must necessarily evolve in accordance with the peculiar circumstances of each case. The decision, as we apprehend it, ought to be applied on a case-by-case basis, with the objective of achieving equity in the distribution of marital property. Consequently, the specific facts of each case will determine the extent to which the principle in Mensah v. Mensah is applicable." [Emphasis Mine].

Thus, the Court underscored the need for a contextual and equitable approach in the application of the Mensah v Mensah principle, making clear that entitlement to matrimonial property is not automatic but dependent upon the proven facts and equities of each individual case.

[54] In Arthur (No. 1) v. Arthur (No. 1) (supra), this Court reaffirmed the principle earlier enunciated in Mensah v. Mensah, to the effect that property acquired during the subsistence of a marriage is presumed to be the joint property of the spouses. The Court, however, was careful to observe that this presumption is not irrebuttable. It may be displaced upon satisfactory proof that the property in question was acquired by gift, inheritance, or under other circumstances which, by their nature, exclude the element of joint acquisition.

[55] My Lords, before proceeding to resolve the main question in this appeal, it is appropriate to briefly discuss two recent decisions of this Court, both of which concerned the distribution of property following the dissolution of marriage. I consider it necessary to refer to these authorities in order to situate the Court's most recent position on the subject, post- the trilogy. It is pertinent to note that, unlike the trilogy, the two more recent decisions involved polygamous marriages. The first is Ayishetu Abdul Kadiri v. Abdul Dwamenah, Civil Appeal No. J4/36/2024, delivered on 12 March 2025 and authored by Amadu JSC. The second is Abena Pokua v. Yaw Kwakye, Civil Appeal No. 34/17/2025, delivered on 9 July 2025 and authored by Asiedu JSC.

[56] I start off with the case of Ayishetu Abdul Kadiri v. Abdul Dwamenah supra - Coram: Lovelace-Johnson JSC (Presiding), Amadu JSC, Asiedu JSC, Kwofie JSC, Darko Asare JSC. The appeal concerned the dissolution of a customary Muslim marriage contracted in 1987 and registered pursuant to the Customary Marriage and Divorce (Registration) Law, 1985. Although the Petitioner initially invoked the Marriage of Mohammedans Ordinance (Cap. 129), the Court held that the statutory preconditions for the application of that regime had not been satisfied. It reasoned that the marriage, being simultaneously Islamic and customary in character, was by its nature potentially polygamous; indeed, the evidence showed that the Respondent had taken two additional wives and fathered several children. The Petitioner had one child with the Respondent.

[57] Upon the dissolution, each party alleged unreasonable behaviour and adultery. The central question before the courts concerned the distribution of the marital properties - namely, the Ashalley Botwe property, the matrimonial home, and an adjoining parcel of land.

[58] The trial court found that both parties held equal interests in the matrimonial home and the adjoining plot. It ordered that the Respondent retain the matrimonial home, while the Petitioner was to take the second house situated on the adjoining plot as her exclusive property. The Petitioner's claim to an interest in the matrimonial home was accordingly dismissed.

[59] On the Respondent's appeal, the Court of Appeal held that the trial court's distribution was erroneous and inequitable, particularly in light of the Respondent's responsibilities within a polygamous household. Rejecting a mechanical application of the principle of equal division, the court set aside the property distribution and substituted in its place a monetary award of GH¢50,000 to the Petitioner, while affirming her exclusive ownership of the Ashalley Botwe property.

[60] The Supreme Court affirmed the orders of the Court of Appeal, upholding both the monetary award of GH¢50,000 and the vesting of the Ashalley Botwe property in the Petitioner as constituting an equitable distribution consonant with Article 22 of the 1992 Constitution and section 20 of the Matrimonial Causes Act, 1971 (Act 367).

Key Legal Principles Articulated by the Court

[61] The Court reiterated that property acquired during the subsistence of any marriage - whether customary, Islamic, or ordinance - constitutes marital property, whereas pre-marital acquisitions do not. Such property may be acquired jointly or solely, but the constitutional mandate of equitable distribution applies only to jointly acquired assets. The Court affirmed that equity does not invariably signify equality; each case must be assessed on its own peculiar facts. Joint acquisition may be demonstrated through financial or non-financial contributions. Courts may, where appropriate, substitute monetary compensation for a proprietary interest, and may, in certain circumstances, vest a marital asset wholly in one spouse, especially where the property was solely acquired, gifted, or subject to distinct financial arrangements.

[62] It was also affirmed that a court is empowered to make a monetary award in lieu of a direct proprietary interest where such an order is just, reasonable, and supported by the circumstances of the case.

[63] The Court also held that the polygamous nature of a marriage does not preclude a spouse from receiving up to one-half of jointly acquired marital property. The determinative factor remains proof of joint acquisition, not the number of spouses or children. The principles of equitable distribution apply with equal force to polygamous unions. Based on the above analysis, the Court accordingly dismissed the appeal and affirmed the distribution ordered by the Court of Appeal.

[64] My Lords, following the decision in Ayishetu Abdul (March 2025), the Court subsequently decided Abena Pokua v. Yaw Kwakye (supra). Coram: Lovelace Jofhnson (Ms) JSC (Presiding), Prof Mensa-Bonsu (Mrs), Kulendi, Asiedu, and Gaewu, JISC.

[65] The facts presented are that, in 1998, the Petitioner (Abena Pokua) and the Respondent (Yaw Kwakye) entered into a customary polygamous marriage, the husband having two other wives. The couple had three children together. When the marriage broke down, the Petitioner sought dissolution of the marriage and a share in all matrimonial property before the High Court. The High Court divided certain properties between the parties; however, the Court of Appeal overturned aspects of that decision, holding that the couple operated separate businesses and acquired property individually. The Court of Appeal awarded the Petitioner two houses (at Achiase and Ajara Junction, Kade) and GH¢100,000.

[66] The Supreme Court, in a unanimous decision (per Asiedu JSC), affirmed the Court of Appeal's judgment and dismissed the Petitioner's appeal. The Court outlined key principles on property distribution after divorce, including the following:

i. Jointly acquired property is not automatically shared 50/50. Equal sharing applies only when spouses cannot prove their individual contributions.ii. A spouse must demonstrate contribution - whether financial, through household chores, or other assistance - to claim a share in property acquired during the marriage.iii. Not every property acquired during the marriage is "marital property," as spouses retain a constitutional right to acquire property individually. The court stated that"The Court must not trample upon constitutional rights in its quest to ensure equity and justice in the distribution ofproperty acquired during marriage. The definition given by the Court to 'marital property' in Arthur (No.1) vs. Arthur (No.1) has the potential to provoke injustice Paragraph 4.6 page 14.iv. On the distribution of property, the Court reasoned that jointly acquired property implies equal access during marriage, but after divorce, equal sharing applies only if contribution ratios cannot be determined. If contributions are proven, the property share is allocated according to contributions. Asiedu JSC further affirmed that spouses may own individual property if evidence supports exclusive ownership.v. In polygamous unions, equal sharing is not the default position. The Court must consider the interests of other wives and children when distributing property.vi. The Supreme Court held that courts have broad discretion under Act 367, s.20, in the distribution of property. Therefore, even if property was individually acquired, the court may allocate property or money to a spouse if necessary to achieve fairness.vii. There is no automatic 50/50 rule under Ghanaian law, as the Constitution does not support automatic equal sharing of all marital property. Each case depends on the evidence and considerations of fairness.viii. Special considerations apply to polygamous marriages. The Court noted that, since the Respondent had three wives, it would be unfair to share all his assets equally with the Petitioner alone.

[67] My Lords, as.indicated, the two recent cases dealt with polygamous marriages. In my view, the two decisions, in pith and substance, affirm the general principles established in the trilogy. I observe, however, that our two respected brothers took different paths in the distribution of marital property in a polygamous marriage.

[68] Amadu JSC does not approach the distribution of property with a different lens for polygamous marriages as compared to monogamous ones. He reasoned that the polygamous nature of a marriage does not preclude a spouse from receiving up to one-half of jointly acquired marital property. In his view, the determinative factor remains proof of joint acquisition, not the number of spouses or children. To that extent, the principles of equitable distribution apply with equal force to polygamous unions.

[69] Asiedu JSC, by contrast, explicitly acknowledges that there are certain incidents peculiar to polygamous marriages that are not found in monogamous ones. In considering the distribution of property, he states that "the Respondent has a responsibility of maintaining the other wives of the marriage as well as all the children of the marriage. All these factors must be taken into consideration in deciding on the distribution of the properties ofthe marriage' (Paragraph 10.4, page 38).

[70] My Lords, these differing positions are thought-provoking, given that both decisions were unanimous. I do not think this is the appropriate case for us to resolve the issue, having regard to the facts before us. I trust, however, that in due course the Court will have the opportunity to clarify the issue and establish a common position on the matter.

[71] Having set out the governing principles of law as articulated by this Court above, I now revert to the determination of the sole issue arising for consideration in the present appeal. The central question to be resolved is whether the Appellant has distinctly, precisely, and with sufficient particularity identified before this Court the specific items of evidence on the record which the Court of Appeal is alleged to have ignored or failed to consider, and which, had they been duly evaluated, would have materially influenced the first appellate court to enter judgment in favour of the Appellant.

[72] My Lords, throughout the submissions before this Court, the Appellant failed to point to any specific error of law or fact allegedly committed by the first appellate court in its reasoning, which led to the reversal of the order of the trial High Court concerning the property, the subject matter of the dispute. From the Record of Appeal (ROA), it is evident that the Appeliant's principal contention was that the Appellant made financial contributions towards the construction of the property in question by advancing certain sums of money - including funds originally earmarked for in-vitro fertilisation (IVF) - to the Respondent, which sums were not subsequently refunded. Further reliance was placed on the supervisory role exercised by the Appellant and her sister during the construction process, as corroborative of her claim against the finding of the Court of Appeal.

[73] In my considered view, all these matters were adequately canvassed and duly evaluated by the first appellate court. The Appellant's present stance, therefore, in my view, amounts to nothing more than a mere disagreement with the conclusions reached by the Court of Appeal, and does not, in substance, disclose any error of law or misdirection capable of warranting the intervention of this Court.

x. Conclusion & Disposition:

[74] My Lords, the facts in the cases I refer to as the trilogy establish that there was ample evidence that the parties contributed to the acquisition of the disputed properties acquired during the subsistence of their respective marriages as spouses.

In the present appeal, however, the evidence on record presents a distinct factual matrix. The uncontroverted evidence is that the parcel of land upon which the house in dispute was constructed belonged exclusively to the Respondent. The record further reveais unimpeachable evidence that the Respondent had commenced construction of the saidhouse up to window level before he met the Appellant.

[75] There is, nonetheless, evidence that after the marriage, the Appellant took on a supervisory role in the continuation of the construction, albeit with funds solely provided by the Respondent. As already referred to in this opinion, the Appellant's own bank statement, tendered during the trial, shows that although she advanced certain sums of money to the Respondent, these were duly refunded to her. While the Appellant contended that she thereafter returned the refunded amount to the Respondent, there is no corroborative evidence on record to substantiate that assertion. It was only the Appellant's assertion and nothing more. It is my view, therefore, that the Appellant failed to discharge the burden of proof pursuant to sections 11(4) and 12 of the Evidence Act, 1975 (NRCD 323).

[76] Be that as it may, the above does not mean that the Appellant has no interest whatsoever in the property. As previously observed, although the house in question does not constitute the matrimonial home, the Appellant has a recognisable equitable interest. However, as the Court of Appeal correctly found, the equities between the parties are not equal.

[77] In my considered view, therefore, the evidence adduced by the Appellant regarding her contribution to the acquisition and completion of the property does not warrant an equal division of fifty per cent (50%) as ordered by the trial court. Her supervisory role during construction, her domestic contributions as a spouse, and any ancillary financial inputs reasonably justify the Court of Appeal's assessment that a twenty per cent (20%) interest is fair and equitable in the circumstances of this case.

[78] My Lords, before I bring this opinion to a close, I consider it imperative, in light of the circumstances of this case and others of a similar nature pending before our trial courts, to reflect on the implications arising from the trilogy of decisions of this Court referenced above, as well as the key legal principles enunciated in the recent cases of Ayishetu Abdul Kadiri v. Abdul Dwamenah (supra) and Abena Pokua v. Yaw Kwakye (supra), and to set out clear guiding principles for the consideration of trial courts when confronted with matters of this kind. In my respectful view, it is a necessary corollary of the realities addressed by this Court in the trilogy and the recent cases that properties jointly acquired in the course of marriage are presumed to be jointly owned and, upon dissolution of the marriage, are to be equitably distributed between the spouses.

[79] It cannot be denied that fairness must be the guiding principle when dealing with the distribution of marital property. Yet, fairness itself cannot be separated from the objective realities and the legitimate expectations that were within the contemplation of parties at the inception of their relationship and throughout the duration of the marriage. Accordingly, the pertinent question is: what should guide the equitable distribution of such property when the marriage is dissolved?

[80] In the case at bar, the learned trial judge, upon consideration of the facts, held that the equities of the case warranted an equal division - 50% to the Appellant and 50% to the Respondent. The Court of Appeal, however, varied that determination, reducing the Appellant's share to 20% and increasing that of the Respondent to 80%, on the ground that the equities were not the same. The question that arises, and not without justification, is this: upon what basis did the Court of Appeal arrive at the figure of 20%? Why not 30%, or 25%? In my respectful opinion, without properly articulated guidelines, such determinations risk descending into the realm of subjectivity and inconsistency.

[81] Itis, therefore, necessary to formulate guiding considerations that will enable trial judges to provide cogent reasons demonstrating a logical connection between what- the decision to award a particular percentage of interest to a spouse - and why- the rationale or evidential foundation for such an award. Once this is achieved, the reasoning process of the court becomes transparent and the decision discernible when examined in the context of the evidence adduced by the parties.

[82] Applying the analytical framework articulated by this Court in the established trilogy of authorities, as well as in the more recent jurisprudence exemplified by the present appeal, it is my considered view that, where a trial court determines to award a particular percentage in the distribution of marital property, it ought - respectfully - to articulate the basis for that determination by considering, inter alia, the following matters:

1. Duration of the marriage - The length of the marriage must be assessed in relation to the time at which the disputed property was acquired.
2. Ownership of the land - How was the land on which the property stands acquired? Was it owned solely by one of the parties?
3. Chronology of construction - At what point relative to the marriage did construction of the property begin?
4. Source of acquisition - Was the property acquired from the pre-existing financial resources of one of the spouses or by a loan which is not paid off?
5. Pre-marital assets - Did either spouse bring property or resources into the marriage that significantly contributed to the acquisition of the disputed property?
6. Financial standing and indebtedness - Did one spouse commence the marriage encumbered by debt and subsequently became solvent owing to the contributions or management of the other?
7. Financial contributions - What were the respective financial contributions of the parties during the marriage toward the acquisition or enhancement of the property in dispute?
8. Mutual financial understanding - Did the parties have an explicit or implicit agreement to maintain financial equality during the marriage?
9. Non-monetary contributions - The intangible yet invaluable contributions of a spouse, such as domestic work, child-rearing, and emotional or moral support, must equally be accorded due recognition and weight.

My Lords, the analytical framework articulated in the trilogy and reaffirmed in such decisions as Adjei v. Adjei (supra) underscores a contextual and evidence-based approach to the equitable distribution of properties acquired during marriage. The above guidelines are not intended to fetter judicial discretion but to aid trial judges in making determinations that reflect the totality of the parties' relationship and the justice of each case. When that is done, an objective assessment can then be made as to whether a 50% interest or a lesser (or greater) share ought properly to be granted.

[84] Based on all of the above, I am of the respectful opinion that I have sufficiently dealt with all the crucial and related issues raised by the instant appeal. Accordingly, I find no reversible error in the reasoning or conclusion of the Court of Appeal. The decision of the first appellate court is firmly anchored in the jurisprudence of this Court, notwithstanding that certain aspects of its analysis may not fully accord with the reasoning herein expressed.

[85] In my view, based on the pleadings and the evidence on record, the first appellate court did not commit any reversible error. The judgment, in my opinion, is not against the weight of the evidence. To that extent, the decision of the first appellate court was correct. Consequently, based on the evidence contained in the record of appeal, the instant appeal should be, and is hereby, dismissed. The decision of the Court of Appeal is accordingly affirmed.

K. T. ACKAAH-BOAFO

(JUSTICE OF THE SUPREME COURT)

(SGD.)

A, LOVELACE-JOHNSON (MS.)

(JUSTICE OF THE SUPREME COURT)

(SGD.)

S. K. A. ASIEDU

(JUSTICE OF THE SUPREME COURT)

(SGD.)

Y. DARKO ASARE

(JUSTICE OF THE SUPREME COURT)

CONCURRING OPINION

ADJEI, JSC:- I have had the privilege of reading the lead opinion of my brother Ackaah-Boafo, JSC. I agree with the reasons and the conclusion reached to dismiss the appeal. I, however, wish to provide this opinion in support of the lead judgment.

The Petitioner/Respondent/Appellant (hereinafter referred to in this appeal as Petitioner) and the Respondent/Appellant/Respondent ( hereinafter referred to as Respondent got married under customary law in Ghana on 13th April, 2002, and converted the same to an ordinance marriage in February, 2005, after solemnization at the District Court, Koforidua. The matter not in controversy is that, at the time of the marriage, the Respondent had acquired a plot of land at Tetegu, which was below window level; by the time the Petitioner joined the Respondent in the United Kingdom, the building was below lintel level. The Petitioner lived in Ghana, while the Respondent, who has both British and Ghanaian citizenship, lived in England. The Respondent sponsored the Petitioner to travel to the United Kingdom after the solemnization of their ordinance marriage in 2005. The parties had several differences after the marriage and living under one roof in the United Kingdom, as a result of which the petitioner filed a petition in the High Court on 16th October, 2018, to seek the following reliefs:

"(a) An order to dissolve the ordinance marriage between the parties.(b) An order for equitable sharing of the house at Kasoa, Titibu Junction, close to Panbros Ghana Limited.(c) An order for compensation of several years of service.d) Any other order (s) the Court may deem fit and proper."

The Respondent disputed the Petitioner's claim and averred that the Petitioner is the cause of the breakdown of the marriage and was agreeable to the dissolution of the marriage, but resisted the other reliefs.

The Petitioner, in her evidence regarding the acquisition of the property at Tetegu, stated that at the time of their marriage, the Respondent had a plot which he had developed to the lintel level. After the marriage, the Respondent sent her money for use on the property, and when she joined the Respondent in the United Kingdom, the house was at the lintel level. The Petitioner further testified that she supported the Respondent in constructing the remaining part of the building when she joined him in the United Kingdom. She said that the Respondent's brother-in-law handled the supervision of the building, and that, subsequently, it was handled by her sister and one Kwasi Baah. The Petitioner, in proving her contribution towards the construction of the house, said that she took a loan of £4,000 for In Vitro Fertilization (IVF), but diverted it to the construction of the house to provide for doors. She also spent £800 on sand to fill the part of the house with stagnant water.

The Respondent denied the amount that the Petitioner claimed to have invested in the building, but the Petitioner sought to explain during cross-examination. The Respondent also testified and was cross-examined about the money the Petitioner invested in the building and the breakdown of the marriage.

The High Court delivered its judgment on 13th December, 2019, and held, inter alia, that both parties were responsible for the breakdown of the marriage and that neither was entitled to compensation. The High Court Judge relied heavily on the Supreme Court case of Arthur No.1 v Arthur No.1 [2013-2014] SCGLR 543 and said that the decision is to the effect that acquisition of joint assets is not limited to property that has been acquired as joint or common tenants during the marriage whether the other spouse has contributed to its acquisition or not and proceeded to award 50 percent portion of the property to cater for her contribution and the supervision made by her sister.

The Respondent, dissatisfied and aggrieved by the order of the High Court declaring the house at Tetegu as a joint property, filed an appeal against that part of the Judgment. The notice of appeal filed on 4th December, 2023, contained two grounds of appeal, namely;

"(a) The judgment is against the weight of evidence.(b) The trial judge was wrong in law when she adjudgedThat the Petitioner has equal shares in the marital property, although there was evidence on record that the said property was acquired before marriage."

The Court of Appeal sitting at Koforidua in its judgment delivered on 15th November, 2022, found merit in the appeal after it evaluated the entire record and reversed the judgment of the High Court by awarding 80 percent of the property to the Respondent, and 20 percent to the Petitioner. The Petitioner, dissatisfied with the judgment of the Court of Appeal, filed an appeal against its judgment to this Court. The notice of appeal filed on 17th January, 2023, has two main grounds of appeal, namely;

"(i) The judgment is against the weight of evidence.(iii) That the learned justices of the Court of Appeal erred in law when they varied the trial High Court's decision for the parties to share the Matrimonial property in equal halves into the ratio of 80% to 20% in favour of the Respondent, especially more so as there is evidence of substantial contribution by the Petitioner/Respondent/Appellant on record.

PARTICULARS OF ERROR OF LAW

(a) Failure to recognize that when properties are jointly acquired during the subsistence of marriage, the properties shall be distributed equitably between the spouses upon dissolution of marriage.

The Petitioner submitted in respect of the omnibus ground of appeal and stated that as an appellant, the burden is upon her to demonstrate the lapses in the judgment of the Court of Appeal for the same to be corrected by this Court, evaluate the evidence, apply the applicable laws, and arrive at a conclusion that is consistent with the law. The Petitioner referred to some judgments of the Supreme Court including Abbey and Others v Antwi [2010] SCGLR 17, Kakraba v Kwesi Bio [2012] 2 SCGLR 834, Tuakwa v Bosom [2001-2002] SCGLR 61, Djin v Musah Baako [2007-2008] SCGLR 688, Agyeman v Bonsu [2010-2012] 1 GLR 536, Duodu v Benewah [2012] 2 SCGLR 1036, Oppong Kofi and Others v Attibrukusu [2011] SCGLR 176, and Hussein v Moru [2013-2014] SCGLR 363 and referred to relevant portions of the record of appeal to buttress her point.

The Petitioner discussed the scope of the omnibus grounds of appeal, stating that they cover both factual and legal arguments that require evidence to resolve, and referred to the ratio in the case of Owusu Domena v Amoah [2015-2016] 1 SCGLR 790. The petition draws the Court's attention to the relevant part of the record of appeal where the Respondent is said to have admitted the contribution made by the Petitioner to the house. For the avoidance of doubt, the cross-examination of the Respondent, in which he is said to have admitted the Petitioner's claim, shall be reproduced for comparison and evaluation.

"Q: I am suggesting to you that you know that at one time she took a loan to go IVF?A: I remember she took a loan, but she did not tell me exactly what she needed the money for.Q: I suggest to you that it was that money that you took from her.A: I asked her for a loan, and I did not know she was going to use it for IVF.Q: I further suggest to you that it reflects in Exhibit C on 21st January, 2014.A:I did not think it was for IVF. I only knew that she had money.Q: When did you pay this money?A: I cannot remember the exact date. It has been a long time.Q: In which bank account did you pay the money?A: I cannot remember. She had two bank accounts, but I know that I paid."

Based on the above questions and answers, the Petitioner concluded that the Respondent contributed financially to the construction of the house. The Respondent rebutted the Petitioner's position and referred to the relevant part of the cross-examination of the Petitioner, which is as follows:

"Q: By your exhibit C, I put it to you that on 21st January, 2014, Mr. Kwadwo Owusu paid £4000 into your account.A: It is true that he paid. It was an amount meant for IVF treatment which I learned to him. He paid it back to me after the settlement at home I gave it back to him.Q: It was on the 15th May, 2014 that you instructed him to withdraw £3000 out of the £ 4000 he had paid to you?A: That is not so. I gave him £1000 initially and then gave him £3000 in bulk because I did not want to give it to himQ: I further put it to you that, it was rather the Respondent who paid £1000 into your account on 30th January 2015 as per exhibit C.A: It is true. I rather gave that money to him.

The Petitioner reproduced the cross-examination of the Respondent without marching it against the Petitioner's evidence under cross-examination when she admitted that the £4000 which was allegedly used on the property was refunded to her by the Respondent. The Petitioner further testified that she returned the money to the Respondent, but the Respondent denied receiving it.

From the totality of the evidence on record, the Respondent purchased the plot and developed it up to window level before he married the Petitioner. He provided funding to expand it to the lintel level under the Petitioner's supervision. When the Petitioner joined the Respondent, the Respondent's brother-in-law took over the supervision until the baton was finally passed on to the sister of the Petitioner. The trial High Court judge held that the supervision made by the Petitioner's sister added up to the contribution made by the Petitioner, which cannot be true. There is no evidence on record that she supervised the construction of the building to add to the Petitioner's interests in the property.

The Respondent denied the Petitioner's monetary contribution, but the documentary evidence on record shows that the Respondent refunded most of the amount to her. Exhibit "B" attests to the fact that it was the Respondent who refunded most of the money he received from the Petitioner back into her accounts. The Petitioner stated that she gave the money refunded by the Respondent back to him, but could not prove it. The standard burden of proof in civil matters, as in the instance case, is proof by the preponderance of probabilities, and there is no exception to it. Sections 11 (4) and 12 of the Evidence Act, 1975 (NRCD 323), are the authoritative sources of the burden of proof, as all case law on the subject derives from them. The ground (a) of the appeal fails in its totality and same is dismissed as unmeritorious.

The ground (b) of appeal is that the Court of Appeal erred in law when it held that the Respondent acquired the plot and developed it to an advanced stage before he got married to the Petitioner, and cannot be treated as marital property to give them equal shares. The Petitioner, in response to the Petitioner's submission, stated that the Respondent acquired and developed the property with his own money, and the alleged contribution by the Respondent cannot be quantified to give her a half share of the property.

The individual's right to acquire and own property is a fundamental right inherent in human beings. Article 18 (2) of the Constitution of Ghana guarantees a person's right to own property, either alone or in association with others. It does not deprive a person of the right to own property during marriage.

Ghana is a signatory to the African Charter on Human and Peoples' Rights, which also guarantees the individual's right to own property, either alone or in association with others. Article 14 of the African Charter on Human and Peoples' Rights, which is binding on Ghana and domesticated in Article 18 (1) of the Constitution of Ghana, provides thus:

"The right to property shall be guaranteed., It may only be encroached upon in the interest of the community and in accordance with the provisions of appropriate laws.

Every individual in Ghana has a right to own property, and marriage does not take that right away unless it can be established that the spouse contributed to the acquisition of the property, in cash, in kind, or both. The ratio in Fynn v Fynn [2012-2013] 1 SCGLR 727, the Supreme Court justified the individual's right to acquire property during the subsistence of marriage and dispose of same without reference to the other spouse; however, where the property is jointly acquired during marriage for a valuable consideration, the spouses shall be deemed to be co-owners. Where a conveyance is prepared in the name of one of the parties, that spouse shall be considered to hold the landed property or the interest in trust for the other spouse.

Section 38 of the Land Act (2020) Act 1036, which discusses a property jointly acquired by a couple during marriage, is as follows:

"(3) In a conveyance for valuable consideration of an interest in the Land that is jointly acquired during marriage, the spouses shall be deemed to be parties tothe conveyance, unless a contrary intention is expressed in the conveyance.(4) Where contrary to subsection (3) a conveyance is made to only one spouse, that spouse shall be presumed to be holding the land in trust for the spouses, unless a contrary intention is expressed in the conveyance.

Whether a property acquired during marriage is jointly acquired or is independently acquired within the legal right of a party shall be determined by the facts of the acquisition of the property. Where a property is jointly acquired during marriage, restrictions shall be made on the transfer of the property to secure the interest of the other spouse. They shall be regulated by section 47 of the Land Act, 2020 (Act 1036). It provides thus:

"Except as provided in subsections (3) and (4) of section 38, in the absence of a written agreement to the contrary by the spouses in a marriage, a spouse shall not, in respect of land, right or interest in land acquired for valuable consideration during marriage,(a) sell, exchange, transfer, mortgage, or lease the land, right, or interest in land.(b) enter into a contract for the sale, exchange, transfer, mortgage, or lease of the land, right, or interest in the land.(c) give away the land, right or interest in the land inter vivos, or(d) enter into any transaction in relation to the land, right, or interest in the land without the written consent of the other spouse, which Shall not be unreasonably withheld."

The sections quoted above give credence to the fact that a property acquired during the subsistence of marriage shall not automatically become a joint property, as in the instant case, where the Respondent acquired and developed his property to the window level, and continued to the lintel level with his own money with the supervision of the Petitioner. Where there was evidence that after the marriage, the Petitioner contributed substantially either in kind as a housewife or in cash, which could have been quantified, the identity of the property would have changed from a property independently acquired by the Respondent to a property jointly acquired. Furthermore, a property jointly acquired during marriage shall not automatically become fifty-fifty shares. Still, it shall be based on the extent of the contribution, whether in cash, in kind, or in a combination of both, unless at the beginning or during its acquisition, the parties agreed to equal shares.

Article 22 (2) and (3) of the Constitution also draws a clear distinction between property acquired during marriage and property jointly acquired during marriage. It provides as follows:

(2) Parliament shall, as soon as practicable after the coming into force of this Constitution, enact legislation relating to 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 marriage.

The choice of words in the constitution makes it clear that spouses shall have equal access to property acquired jointly during marriage. Therefore, a spouse who independently acquires land in the exercise of her fundamental right to own property during the subsistence of the marriage shall remain the sole property of that spouse by virtue of the fact that it was not jointly acquired.

The decisions in Ghana regarding property acquired during marriage and property jointly acquired during marriage have received several interpretations from Article 22 (3) (a) of the Constitution. Some of them clearly defeat the purpose and intention of the framers of the Constitution as they treat property acquired during marriage, and property jointly acquired during marriage, with the same lens when the Constitution emphasizes properties jointly acquired during marriage. It is that property that the spouses shall have equal access to.

The Respondent in his submissions referred this Court to the case of Arthur No 1 v Arthur No. 1 [2013-2014] SCGLR 543 where this Court took inspiration from the Canadian Matrimonial Property Act which exempted gifts, inheritance, trust, business assets, property exempted under a marriage contract or separation agreement, reasonable personal effects of one person, award of settlement of damages in court in favour of one spouse, and settlement received from a person other than the other spouse except to the extent to which they are used for the benefit of both spouses or their children.

Some of the exceptions, including property exempted under a marriage contract or a separation agreement, are alien to Ghanaian law and cannot serve as a source of inspiration. In Ghana, the veil of incorporation may be lifted for business assets when necessary. It cannot be entirely exempt from spousal property as exists in Canada. There are different matrimonial property regimes on the globe and in cases where inspiration is to be taken, it should be from a country with the same regime to give effect to the true purpose and intent of the Constitution of Ghana, 1992, as the property settlement act, which is supposed to bepassed to make the law more straightforward, has not been passed. The constitutional provision is the only binding law on the subject matter. The different matrimonial property regimes shall be addressed to reduce the inspirations that are taken from countries with other regimes, and make comparative analysis very dangerous.

There are types of matrimonial property regimes that have been mixed up in some decisions, rather than confining themselves to the Constitution's intention and purpose. The types of known matrimonial property regimes are: community of property, separate property, deferred community property, accrual system, partnership of acquests, and equalization of net family property. The community of property is a regime in which all property acquired during the marriage is jointly owned by both parties, and it is mainly practised in countries such as France, Argentina, and Brazil. The separate property system, which is widely practised worldwide, including in Ghana, Australia, India, most States in the USA, and Malaysia, is one in which each spouse retains ownership of their individual property acquired before or during the marriage, with the resources of that spouse or through inheritance or gift. Still, they may agree to jointly develop properties in addition to their separate properties. Deferred Community Property is a regime in which property acquired during marriage is treated as separate property during the marriage but is subject to division upon death or divorce. An accrual regime is a system in which the increase in value of each spouse's assets during the marriage is shared between them upon death or divorce. A partnership of Acquests is a form of property division in which the parties share the value of property accumulated during the marriage, while keeping their individual property separate, and it is practised in some provinces of Canada, including Quebec. The Equalization of Net Family Property is a system under which spouses are entitled to an equalization payment equal to half the difference between their net family properties, and it is mainly practiced in some provinces in Canada, including Ontario.

The decisions rendered recently by the courts, in most cases, combine community of property and separate property regimes, whereas the Constitution of Ghana envisages a separate property regime in which property jointly acquired during marriage is the joint property of the spouses. The issue of whether or not a property is jointly acquired during marriage is determined by the contribution made either in kind or in cash towards the acquisition of the property, including taking care of the home to give peace of mind for the other spouse to work to raise money, shared responsibilities between the parties, and supervision of the construction of the house. Several decisions conform with article 18(1) and 22(3) of the Constitution of Ghana with regards to the right to acquire a property by an individual including; Quartson v Quartson [2012] 2 SCGLR 1077, where the Court held that partitioning of properties jointly acquired during marriage should take into accounts the equities of the case; Fynn v Fynn [2013-2014] 1 SCGLR 727, where the right of separation acquisition of spouse during marriage is guaranteed; and Peter Adjei v Margaret Adjei (J4/6/2021) dated 21st April, 2021 which recognized the individual's right to acquire property, and a property acquired during marriage belongs to the spouse who acquired it, unless the parties jointly acquire it during marriage. It was out of place when the Court of Appeal treated Peter Agjei v Margaret Adjei, supra, as an exception to the general position of the law, when in fact, the decision was rendered in accordance with articles 22(3) and 18(1) of the Constitution which acknowledge separate property and property jointly acquired during marriage, and does not impose community of property regime which is alien to the Constitution of Ghana.

From the facts of the case, the Court of Appeal applied the appropriate provisions under articles 18 (1) and 22(3) of the Constitution of Ghana which accord with the separate regime principle, and it would be unfair to share the property acquired and developed by the Respondent up to a level before he married the Petitioner who could not prove her contribution in cash apart from the supervision she undertook over the construction before she joined the Respondent in the United Kingdom. The twenty percent share given to the Petitioner is fair and just, reflecting her contribution to the property.

The ground (b) of the appeal fails as unmeritorious. Consequently, I conclude that the appeal should fail in its entirety, and the judgment of the Court of Appeal delivered on 15th November 2022 be affirmed.

D. D. ADJEI

(JUSTICE OF THE SUPREME COURT)

Appearances

SULEMAN MUSAH ESQ. FOR THE PETITIONER/RESPONDENT/APPELLANT. WITH HIM EMMANUEL WILSON ESQ CORNELIUS YAWSON ESQ. FOR THE RESPONDENT/APPELLANT/ RESPONDENT