WUNRN
GHANA - LANDMARK MATRIMONIAL LEGAL & PROPERTY CASE APPLIES CEDAW PRINCIPLES
The Supreme Court
of Ghana applied CEDAW (Articles 2 and 5) in support of its decision to apply
the principle of equality in the sharing of property between a couple. This
Decision is remarkable for wives who until now have to prove substantial
contribution to acquisition of property to get a share in joint property.
Bernice Sam (LLB,
BL, LLM)
National Programme Co-ordinator
WiLDAF Ghana
FULL COURT
DOCUMENT FOLLOWS.
CONCLUSION
We are therefore of the considered view that the time has come for
this court to institutionalise this principle of equality in the sharing of
marital property by spouses, after
divorce, of all property acquired during the subsistence of a marriage in
appropriate cases. This is based on the constitutional provisions in article 22
(3) and 33 (5) of the Constitution 1992, the principle of Jurisprudence of
Equality and the need to follow, apply and improve our previous decisions in Mensah
v Mensah and Boafo v Boafo already referred to
supra. The Petitioner should be treated as an equal partner even after divorce
in the devolution of the properties. The Petitioner must not be bruised by the
conduct of the respondent and made to be in a worse situation than she would
have been had the divorce not been granted. The tendency to consider women
(spouses) in particular as appendages to the marriage relationship, used and
dumped at will by their male spouses must cease. Divorce as Lord Denning stated
long ago, should not be considered as a stigma.
IN THE SUPREME COURT
ACCRA, A.D.2012
Civil Appeal
No. J4/20/2011
22ND
February, 2012
CORAM: AKUFFO (MS) JSC (PRESIDING)
DATE-BAH JSC
ADINYIRA (MRS) JSC
DOTSE JSC
AKOTO-BAMFO (MRS) JSC
GLADYS MENSAH - PETITIONER/RESPONDENT/
RESPONDENT
VRS
STEPHEN MENSAH - RESPONDENT/APPELLANT
/APPELLANT
JUDGMENT
JONES DOTSE JSC
Lord Denning in his
book, “Landmarks in the Law” Butterworths, 1954, writes at page 176 “on change in attitude of the British people
to Divorce” as follows:
“There is no
longer any binding knot for marriage. There is only a loose piece of string
which the parties can untie at will. Divorce is not a stigma. It has become
respectable. One parent families abound.”
The above quotation
can equally be said to be applicable to the Ghanaian society as well.
In the instant case
since the parties are not contesting the issue of divorce, but only devolution
of property acquired during the subsistence of the marriage upon divorce, we
will focus our attention to those issues.
What then are the
facts in this case? In view of the importance that this court attaches to the
legal and constitutional issues determinable in this case, we have considered
it worthwhile to narrate in great detail, not only the facts of the case, but
the reasons behind the trial court decision as well as the dismissal of the
appeal by the Court of Appeal.
This will necessarily lead to a discussion of the
principles upon which concurrent findings of fact by a trial and first
appellate court can be set aside or departed from by this court, i.e. second
appellate court, as we have indeed being requested to do.
FACTS
This is an appeal
from the judgment of the Court of Appeal dated 23/7/2009 which affirmed the
judgment of the High Court dated the 31st January 2003. In a
petition filed on the 20th of April 2000, the
Petitioner/Respondent/Respondent (hereinafter Petitioner) averred that she and
the Respondent/Appellant/Appellant (hereinafter Respondent) were married under
customary law in March of 1989 and converted to a marriage under the Ordinance in
June of 1989. It however emerged from the evidence that the parities got
married in 1987. About a decade after the celebration of this union, cracks
started appearing in the marriage with the Petitioner accusing the Respondent
of acts of infidelity which culminated in the Respondent moving into their
jointly acquired home in Adenta with his illicit lover giving credence to the
Petitioner’s allegations. After diligent efforts at reconciliation had failed,
the Petitioner filed her petition for divorce at the High Court.
That the parties
also acquired substantial assets during the subsistence of the marriage cannot
be under emphasised. These the Petitioner listed in her petition as follows;
1. Unnumbered three bedroom house at Kasoa
2. Unnumbered six bedroom house at Adenta
3. Unnumbered four bedroom house at Krobo
Odumasi
4. Unnumbered three bedroom house on Spintex
Road
5. Vacant plots of land at Adenta
6. One and half vacant plot of land at Krobo
Odumasi
7. Shares in Guidem Company Ltd.
8. Shares in shop on the Airport El-Wak Road
9. Nissan Patrol GT 618 E
10. Nissan Sunny GT 1073 D
11. Pick-Up GT 3240 P
12. Opel GT 9414 Q
13. 20 feet Container
14. SSB Tudu Branch Current Account No.
120769006.
The Petitioner therefore prayed for a dissolution of the
marriage and for the assets jointly acquired to be shared equally. It is the
distribution of these assets, which the trial Court found to have been jointly
acquired that has led to the present appeal.
EVALUATION OF EVIDENCE AND DECISION OF TRIAL COURT
Before coming to
that conclusion, the trial judge painstakingly set out the evidence she had
received and after reviewing the evidence determined that the issue to be
resolved was whether or not the petitioner is a joint owner of the property and
is therefore entitled to her claim of 50% share in them.
The evidence was
that before the Petitioner married the Respondent, she used to trade in rice,
sugar and groundnuts at the Odumase Krobo Market. After marriage she moved to
Accra with the Respondent, then a junior accounts officer at the Controller and
Accountant General’s Department.
They both did not
own any properties and lived in rented premises at La. At the weekends, they
would go to Krobo to farm and plant cassava. After processing the harvested
cassava into gari, the petitioner realised 600,000 cedis which she used as
capital for trading. She traded in palm oil and travelled to various towns and
villages to buy palm oil. Aside from this, she also traded in cooking oil, rice
and sugar from their house at La. Respondent also sold some of these items to
his co-workers in the office. She also at a point in time took some money from
her father to reinvest in their business. Gradually, they built up their
business and from the proceeds, bought their first landed property at Kasoa, on
which they put up a three bedroom house. As the business expanded, they
acquired a shop at the Ministries and petitioner managed the shop whilst the
Respondent continued working at the Controller and Account-General’s
Department. As the business continued to boom, the parties diversified to other
products, including electrical appliances like fridges, TV, deep freezers etc.
They also sold cloth, vegetable oil and bicycles. The Respondent arranged for
these items from their suppliers on credit.
They also got their
customers from the Respondent’s co-workers, mostly on credit basis. This was
deducted at source from their salaries. All
cash which was realised from sales was recorded into a book by the sales
assistants, which the petitioner took home to the Respondent. He would check
the cash and if it tallies with the amount in the book, he would sign against
it. It was the Respondent who handled the accounts of the business. He also paid himself 500,000 cedis and paid
the petitioner nothing.
Both the Petitioner
and the Respondent were members of a susu group and Petitioner bought her
personal items with the returns from the susu contribution. They also invested
in Pyram and made healthy profits from there which they ploughed back into
their business.
At the peak of their
business, they were making between 150 million and 300 million a month. The
Petitioner therefore advised the Respondent to acquire landed properties as an
investment. The Respondent agreed and allowed the Petitioner to keep a third of
all cash deposits towards this acquisition.
The Petitioner it seems was very astute and acquired the
Adenta and Krobo Odumase properties on which she built houses. They also
acquired a number of vehicles and the first vehicle, a pick-up was bought with
part of her susu contributions and part of the business proceeds. Subsequent vehicles and properties were
acquired from the proceeds of the business they run together.
The Respondent however denied that the Petitioner made
any contribution to the business. According to him the Petitioner was a
housewife and never worked to make a living. She had also embezzled money from
him which resulted in the loss of his capital and he was compelled to go for a
bank loan to recapitalise his business.
The Petitioner called no witnesses in support of her
case but the Respondent called five witnesses. The trial judge however found the
evidence of the petitioner more convincing than that of the Respondent and the reason she alluded to for
so finding were that even though the
Respondent had maintained throughout the trial that the Petitioner never worked
during the decade the marriage lasted, his own witnesses contradicted him.
The judge also made the finding that the Respondent’s own evidence supported
the fact that the Petitioner supervised the running of the shop and also worked
in the shop. The judge further made the finding that the Respondents 4th
and 5th witnesses were “serious liars” bent on throwing dust into
the court’s eyes. Besides, when the Respondent claimed that he took a loan to
recapitalise the business after the Petitioner had drained off all the monies,
the judge made the finding that the loan was applied for long after the
petition had been filed. Further, the Respondent claimed he had acquired the
Spintex property with the bank loan. Again the judge found that the property
had been acquired long before the loan was contracted and concluded that the
property was acquired with proceeds from the business. The judge further found
that the Respondent had not been entirely honest when he stated that he did not
sign Exhibit C2 which was the document on the Krobo Property.
He had indeed
appended his signature on the document and this led the trial judge to conclude
that the parties intended the property to be joint property.
Based on the above
facts and findings, the learned trial Judge delivered judgment in favor of the
Petitioner. Aggrieved by the decision of the trial High Court, the Respondent
filed an appeal to the Court of Appeal. As was to be expected, the Court of
Appeal in a unanimous decision dismissed the Respondent’s appeal.
It is against this
Court of Appeal decision that the Respondent has appealed to this court based
on the following grounds of appeal.
GROUNDS OF APPEAL
The Respondent’s
grounds of Appeal are stated as follows:
a. The Court of Appeal
failed to consider adequately the evidence of the Respondent and placed
unnecessary weight on the evidence of the Petitioner.
b. Exhibits 7 and 7A
having been admitted, the court erred in assessing the amount to be paid to the
Petitioner as her share of the profits.
c. Since the
Respondent’s company was a limited liability company and thus a legal entity,
the court erred in ordering payment out of its profits without regard to the
interests of the other shareholders of the company.
ISSUES FOR DETERMINATION
We have perused the
statement of case of the parties. From the arguments contained in the Statements
of case by the parties, the following issue stands out as the main issue for
determination, although there are some other ancillary issues. This is:
i. Whether
the equality principle used by the trial and appellate courts in the
distribution of the marital property acquired during the marriage following the
dissolution of the marriage between the parties is sustainable under the
current state of the laws in Ghana based on the available evidence on record.
In determining this
issue, matters as to whether the trial and appellate court correctly evaluated
the evidence of the Petitioner by applying to it the proper rules of the
Evidence Act, 1975 NRCD 323 and whether the courts below correctly awarded the
lump sum payments out of accounts of a limited liability company on statement
of accounts that are not as healthy as the Petitioner made the court to
believe, reference exhibits 7 and 7a are consistent with the evidence on
record.
CONSTITUTIONAL PROVISIONS OF SHARING MARITAL PROPERTIES
ON DIVORCE
In view of the
effect some provisions of the Constitution 1992 will have on this case, we deem
it expedient to set out these provisions in extenso.
1. Article 22
(2)
(2) “Parliament shall,
as soon as practicable after the coming into force of this Constitution, enact
legislation regulating the property rights of spouses.” and
(3) “With a view to
achieving the full realization 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.”
2. Article
33(5)
“The rights, duties,
declarations and guarantees relating to the fundamental human rights and freedoms
specifically mentioned in this Chapter shall not be regarded as excluding
others not specifically mentioned which are considered to be inherent in a
democracy and intended to secure the freedom and dignity of man.”
From the above
provisions of the Constitution, it means that, the framers of the Constitution
mandated the Parliament to enact relevant legislation to regulate the property
rights of spouses.
It is a sad
reflection that since 7th January 1993 when this 4th
Republican Constitution came into force, the above directive has as yet not
been complied with.
Suffice it to be
that, there is now before Parliament, a Bill in fulfillment of this article 22
(2) of the Constitution.
It is also important
to note that article 22 (3) (a) & (b) give an inkling of what the said
legislation should contain. For instance
it is quite clear from these provisions that the principle of having equal
access to property acquired during marriage and that of equitable distribution
of property upon dissolution of the marriage have been espoused.
In view of the pride
of place that our Constitution has in the sources of law in Ghana, reference
article 11 (1) of the Constitution 1992, such fundamental philosophical
principles which underpin distribution of marital property acquired during the
subsistence of a marriage upon its dissolution should not be glossed over. This
constitutional principle is similar to the emerging principle of “Jurisprudence of Equality” which is now
applicable in issues concerning gender affairs. We will revert to this
principle of Jurisprudence of Equality later.
Furthermore, the
provisions spelt out in article 33 (5) re-enforce the guarantee and protection
of all the fundamental human rights contained in chapter 5 of the Constitution
1992 including the property rights of women, economic rights, cultural rights
and practices and general fundamental freedoms and others.
There is this
proviso also in article 33 (5) which enjoins the courts in Ghana to look at
other rights not specifically mentioned but which are considered to be part and
parcel of an emerging democratic state intended to secure the freedom and
dignity of man, and this includes the opposite, woman.
APPLICABLE GUIDELINES ON SHARING MARITAL PROPERTIES
This judgment will
accordingly be discussed in line with these and other international laws and
conventions which give or are designed to bring honour and dignity to spouses
in cases of dissolution of the marriage.
Why did the framers
of the Constitution envisage a situation where spouses shall have equal access
to property jointly acquired during marriage and also the principle of
equitable distribution of assets acquired during marriage upon the 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 household 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 as well as those of visitors, raising up of the
children in a congenial atmosphere and generally 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.
This is so because,
it can safely be argued that, the acquisition of the properties were
facilitated by the massive assistance that the other spouse derived from the other.
In such
circumstances, it will not only be inequitable, but also unconstitutional as we
have just discussed to state that because of the principle of substantial
contribution which had been the principle used to determine the distribution of
marital property upon dissolution of marriage in the earlier cases decided by
the law courts, then the spouse will be denied any share in marital property,
when it is ascertained that he or she did not make any substantial
contributions thereof.
It was because of the
inequalities in the older judicial decisions that we believe informed the
Consultative Assembly to include article 22 in the Constitution of the 4th
Republic.
We shall revert to a
discussion of some of the older cases spanning the period 1959 to 2005 i.e.
from the cases of Quartey v Martey
[1959] GLR 377 to Boafo v Boafo
[2005-2006] SCGLR 705 which to me is to be regarded as the locus classicus
and a restatement of the law on distribution of marital property acquired
during the subsistence of the marriage upon divorce.
HISTORICAL CASE LAW DEVELOPMENT
Before we embark
upon this historical discourse of the cases, let us refresh ourselves with
these words of encouragement from Lord Denning in the case of Packer
v Packer [1953-54] Law Reports, Probate Division 15.
In this case, Lord
Denning in characteristic fashion, stated that, not having done something
before should not hinder a court from doing it for the first time. He stated
thus:-
“What is the argument on the other side. Only this, that
no case has been found in which it has been done before. That argument does not
appeal to me in the least. If we never do anything, which has not been done
before we shall never act anywhere. The law will stand still whilst the rest of
the world goes on and that will be bad for both.
There is no decision of this court that an order cannot
be made for custody of an illegitimate child and in the absence of direct
decision preventing us, I think that we
should follow the course which is
permitted by statute and prescribed by good service”.
Like most of the
decisions of Lord Denning at the material time, it was a dissenting opinion in
a matrimonial case. But with the passage of time his opinions have become
accepted as the correct statement of the law.
What we take note of
is that, from the above opinion, it is clear that the fact that there is no
precedent to support a decision of a court is now no bar to prevent a court
from arriving at a decision provided the decision will not be contrary to
constitutional or statutory provisions or in conflict with the doctrine of
stare decisis if the court is bound by its own decision or by a decision of a
Superior court.
Fortunately, we do
not find any such impediment or inhibition in this situation. This is because,
the Supreme Court has given the green light in its previous decisions in the
cases of Mensah v Mensah [1998-99] SCGLR 350 and Boafo v Boafo already
referred to supra.
This court is of the
view that the time is ripe for improvements to be made to the far reaching
decisions in the cases just referred to.
DEVELOPMENT OF RELEVANT GHANAIAN CASE LAW
Let us now go on our
historical journey on the development of case law on the distribution of
marital property acquired during marriage upon divorce. This exercise is
important as it will enable us to explain the rationale for the improvements
being made and the introduction of the “principles
of jurisprudence of equality.”
JOINT PROPERTY
Property
acquired with the assistance of a wife was regarded as the sole property of the
husband. The customary law position was that the wife and children had a
domestic responsibility of assisting the husband/father with his business and
as such the wife could not claim any interest in any property she assisted her
husband to acquire. Thus, in Quartey v. Martey [1959] GLR 377, HC
Ollennu J. (as he then was) held at 380 that:
“The
proceeds of this joint effort of a man and his wife and/or children, and any
property which the man acquires with such proceeds, are by customary law the
individual property of the man. It is not the joint property of the man
and the wife and/or the children. The right of the wife and the children
is a right to maintenance and support from the husband and father.”
SUBSTANTIAL CONTRIBUTION PRINCIPLE
Clearly
this position has since been eroded by changes in the traditional roles of men
and women and the economic empowerment of women. In Yeboah v. Yeboah [1974] 2 GLR 114
HC, Hayfron-Benjamin J (as he then was) held that there was no positive
customary law preventing the creation of joint interest by persons not related
by blood.
The current position of the law
regarding joint property is that substantial contribution by a spouse to the
acquisition of property during the subsistence of the marriage would entitle
that spouse to an interest in the property.
In
the Yeboah case, supra the husband
and wife were married under the Marriage Ordinance, Cap. 127. Before the
marriage, the wife had applied for a house from the Housing Corporation. She
was allocated a plot of land for which she paid a deposit. After the marriage, she had the plot of land
transferred into the name of her husband and the deposit was refunded to her by
the corporation. The husband then took a loan from his employers to put up a
house on the plot. Just as he was about to start constructing the building, the
husband was transferred to London where he was later joined by the wife. The
construction of the building started while the couple were resident in London.
According to the wife, during the construction of the house she flew to Ghana
at the request of her husband to supervise the construction. She stated that
she paid the fare herself. She alleged that she made several structural
alterations to the building with the knowledge and consent of her husband. The
parties returned to Ghana and thereafter the marriage broke down. The husband
then served a notice on the wife to quit the matrimonial home on the ground
that he required the premises for his own occupation.
When
the wife failed to quit the premises, the husband then brought an action to
eject the wife from the house. Headnote 3 of the court’s holding stated thus:
“The wife was a joint owner of the
house with the husband because judging from the factors attending the
acquisition of the house and the conduct of the parties subsequent to the
acquisition, it was clear that they intended to own jointly the matrimonial
home. Where the matrimonial home was held to be held jointly by husband and
wife as joint owners, it would be improper to treat the property as a subject
of mathematical division of the supposed value of the house. What the court
could do in such a case was to make what would seem to be a fair agreement for
the parties.”
Similarly
in Abebrese
v. Kaah and Others [1976] 2 GLR 46 HC, the wife contributed
substantially to building the matrimonial home. The husband had provided the
purchase money for the land. She paid for the timber, and contributed to buying
sand and iron sheets. She also supervised work done by labourers and helped to
carry water to the site. However, she had not kept account of her contribution.
The husband died intestate and his successor purported to sell the house. The
court held that although the wife could not state in terms of cash how much her
contribution towards the building was, it was clearly substantial. The
court pointed out that the ordinary incidents of commerce had no application in
the ordinary relations between husband and wife and the wife’s evidence as to
the size of her contribution and her intention in so contributing would be
accepted.
Further
in Anang
v. Tagoe [1989 -90] 2 GLR 8 HC, it was held at 11 that:
“ … where a wife made contributions
towards the requirements of a matrimonial home in the belief that the
contribution was to assist in the joint acquisition of property, the court of
equity would take steps to ensure that belief materialised. That would prevent
husbands from unjustly enriching themselves at the expense of innocent wives,
particularly where there was evidence of some agreement for joint acquisition
of property.”
MATRIMONIAL CAUSES ACT, 1971 ACT 367
The
cases cited supra give an indication that the courts seek to provide some
protection, especially to wives, when there is evidence that a spouse has made
a substantial contribution to acquire property. What amounts to substantial
contribution is determined by looking at the facts surrounding the acquisition
of the property. The facts would lead to an inference that there was intention
by the parties to own the property jointly. Section 20 (1) of the Matrimonial
Causes Act, 1971 (Act 367) provides that
“ 20(1) The court may order either
party to the marriage to pay to the other party such sum of money or convey to
the other party such movable or immovable property as settlement of property
rights or in lieu thereof as part of a financial provision as the court thinks
just and equitable.” (e.s)
Even
though it has been held that the ordinary incidents of commerce do not apply in
marital relations and that the courts will not employ mathematical division to
determine each spouse’s share in the property,
the courts currently apply the equality is equity principle. This
principle is backed by Constitutional force in article 22(3) (b) of the 1992
Constitution referred to supra.
EQUALITY IS EQUITY PRINCIPLE OF SHARING
OF MARTIAL PROPERTY
Thus
in Mensah
v. Mensah already referred to supra, the court applied the equality is
equity principle to determine which proportions the couple’s joint property
would be shared. Bamford-Addo JSC held at 355 thus:
“… the principle that property jointly
acquired during marriage becomes joint property of the parties applies and such
property should be shared equally on divorce; because the ordinary incidents of
commerce has no application in marital relations between husband and wife who
jointly acquired property during marriage.” (e.s.)
It
would appear from Mensah v. Mensah, supra
that the court favoured equal sharing of joint
property in all circumstances. However, this position has been modified and
clarified subsequently in the case of Boafo v. Boafo referred to supra.
In
that case, the husband petitioned for divorce and the wife cross-petitioned for
divorce. The marriage was dissolved. On the issue of distribution of
properties, the trial judge found that the properties had been jointly
acquired; that the couple had operated their finances jointly, but that the
degree of financial contribution by the wife to the acquisition of the joint
properties was not clear.
The
trial Judge then made distribution orders which were not on a half and half
(equal) basis. The wife appealed to the Court of Appeal on the ground, inter
alia, that the trial judge failed to distribute the property in accordance with
article 22(3) (b) of the 1992 Constitution.
The
Court of Appeal held that the properties should have been distributed equally
on a half and half basis and allowed the appeal. The husband appealed to the
Supreme Court.
In
delivering the judgment of the court dismissing the appeal, Dr. Date-Bah JSC
referred to the decision in Mensah v. Mensah and further
explained the position of the court. At 711, he said:
“On the facts of Mensah v.
Mensah (supra), the Supreme Court (per Bamford-Addo JSC) held that equal
sharing was what would amount to a “just and equitable” sharing. The view of
Denning LJ (as he then was), in Rimmer
v. Rimmer [1952] 1 QB 63 at 73 that on the facts of that case equality is
equity seems to have inspired the learned Supreme Court Judge’s approach. …
Denning LJ’s view was that where it is clear that the matrimonial home or
furniture common use belongs to one or the other of the married couple, then
the courts would respect the proprietary rights of the particular spouse. But
where it not clear to whom the beneficial interest belongs or in what
proportions, then the equitable maxim of equality is equity would be applied.
The spirit of Bamford-Addo JSC’s judgment in Mensah v. Mensah appears to be
that the principle of the equitable sharing of joint property would ordinarily
entail applying the equitable principle, unless one spouse can prove separate
proprietorship or agreement or a different proportion of ownership.
This interpretation of
Mensah v. Mensah as laying down the principle of equitable sharing of joint
property, accords with my perception of the contemporary social mores …”
The
learned judge also underscored the essence of section 20(1) of the Matrimonial
Causes Act, 1971 Act 367 and article 22(3) (b). At 713 he said of article 22(3)
(b):
“… Thus article 22 firmly places within
the domain of social human rights the distribution of the property of spouses,
on divorce… It was meant to right the imbalance that women have historically
suffered in the distribution of assets jointly acquired during marriage. An
equal division will often, though not invariably, be a solution to this
imbalance.”
Then
at 714, he said of section 20(1) of Act 367:
“The question of what is
“equitable”, in essence, what is just, reasonable and accords with common sense
and fair play , is a pure question of fact, dependent purely on the particular
circumstances of each case. The proportions are, therefore, fixed in accordance
with the equities of any given case.” (e.s.)
Therefore
even though Boafo v. Boafo affirmed the equality is equity principle as
used in Mensah v. Mensah, it gave further meaning to section 20(1) of
Act 367 and article 22(3)(b) of the 1992 Constitution. Consequently, the issue
of proportions are to be fixed in accordance with the equities of each case.
The
court duly recognized the fact that an equal (half and half) distribution,
though usually a suitable solution to correct imbalances in property rights
against women, may not necessarily lead to a just and equitable distribution as
the Constitution and Act 367 envisages. It is submitted that the court made
room for some flexibility in the application of the equality is equity
principle by favouring a case by case approach as opposed to a wholesale
application of the principle.
The
above notwithstanding, it must be noted that the paramount goal of the court
would be to achieve equality. Thus, the court endorsed the Court of Appeal’s
position to the effect that an inability or difficulty to identify clearly
distinct contributions in the acquisition of the joint property would not in
itself preclude a half and half sharing. At 716 Date Bah JSC quoted with approval a passage from the
judgment of Wood JA (as she then was) :
“ …Indeed in cases where the evidence
clearly points to a joint ownership, I found no inflexible rule stipulating
that a spouse’s inability to identify clearly contribution automatically
disentitles him or her from a half share. To the contrary, it does appear that
the courts have been quick to apply the equality is equity rule, and so lean
towards a half and half share, if from all the circumstances, such an approach
would be justifiable.”…
Again, we consider this passage a sound
statement of the law. …
Where there is substantial contribution
by both spouses, the respective shares of the spouses will not be delineated
proportionally like a shareholding
in a company. For, the marriage relationship is not a commercial relationship…
equality is equity will usually be an equitable solution to the distribution
issue. The Court of Appeal was therefore within its rights in intervening to
achieve equality.”
It is therefore
apparent that the Ghanaian Courts have accepted this equality is equity
principle in the sharing of marital properties upon divorce. We believe that
the death knell has been sung to the substantial contribution principle, making
way for the equitable distribution as provided for under article 22 (3) of the
Constitution 1992.
Let us now examine
the invitation being made to us in this appeal to set aside the judgment of the
Court of Appeal, and by necessary implication, that of the High Court in view
of the concurrent findings by the two lower courts. Is there any sound legal
basis for this request?
CONCURRENT FINDINGS OF FACT
The Supreme Court
has in the following cases laid down the criteria that will enable a second
appellate court, like this Supreme Court to depart from concurrent findings of
fact by the trial court and concurred in by the first appellate court, the
Court of Appeal.
1. Gregory
v Tandoh IV & Anr. [2010] SCGLR 971 and
2. Obeng v Assemblies of God, Church Ghana
[2010] SCGLR 300
The principle is
therefore firmly established that where findings of fact have been made by a
trial court and concurred in by the first appellate court, then the second
appellate court like this court must be slow in coming to different conclusions
unless it was satisfied that there were strong pieces of evidence on record
which made it manifestly clear that the findings by the trial court were
perverse.
In the instant case,
there being no such evidence that the findings of fact are perverse, this court
is unable to depart from the findings of fact as they are indeed supported by
evidence on record.
EVALUATION OF EVIDENCE ON RECORD
In the circumstances
of this case, even though the Petitioner did not call any witnesses, there were
pieces of corroborative evidence from the Respondents witnesses which supported
the Petitioner’s case that she and the Respondent took part in the trading
activities.
For example, DWI,
Ellen Dzifa Amugie contrary to Respondent’s assertion that the Petitioner did
not play any role in the business activities stated on oath that she saw the
petitioner once in the premises where the Respondent was selling the items to
the Civil Servants in the Ministries.
Secondly, in answer
to a question from Counsel for the Petitioner, requesting explanation as to the
business deals or negotiations that she DWI went out with the Petitioner to conclude,
DWI answered thus:-
“Yes, but the woman
she led me to was not ready to give us credit and so we did not take anything
from her.”
These pieces of
evidence at least shows that the Petitioner was not the type of lazy housewife that
the Petitioner was portrayed to be. The truth of the matter is that, the
Petitioner played a pivotal role in the management of the business before and
after Guidem was registered as a business entity at the Registrar General’s
Department.
DW2 – Michael Nii
Amarh Ahuloo a colleague of the Respondent at the Controller and Accountant
General’s Department, testified that he had ever met the Petitioner in the
House of the Respondent at La. According to DW2, he went to their house at La,
very early in the morning at the invitation of the Respondent. In answer to a
question during cross-examination, DW2 answered that when he got to the house
of the parties at La, he saw Palm oil in drums as well as tomatoes, but he
could not tell who sold those items. The same witness also testified that he
ever saw the Petitioner in the store of the Respondent in the Ministries but
cannot tell exactly what she was doing at the material time. All these go to
confirm that the Petitioner was really engaged in trading in the house at La
and also took part in the business.
Finally, DW4, Isaac
kwao, a close blood relation of the Respondent who later came to work with him
also testified that, the procedure in the management of the store was that, “at
the end of each day’s sales Sister Gladys that is the petitioner comes to
collect the cash. The respondent then was working with the Accountant Generals
‘Department”.
This particular
piece of evidence is consistent with the evidence of the petitioner under
cross-examination that she kept a record of the daily sales and gave it to the
Respondent. This particular record has been tendered as exhibit E.
It has to be noted
that, DW4 is also a Carpenter by profession and was the one who worked on the
couple’s Adenta property. He confirmed that it was the Petitioner who took him
to the Adenta house and also that when he first met the Petitioner, she was a
table top trader, dealing in the sale of rice, cooking oil and other
consumables in their house at La.
The combined effect
of all these pieces of evidence is that, even though learned Counsel for the
Petitioner was careless in not calling evidence to support the contentions of
the Petitioner, by the evidence of the Defence witnesses referred to supra, the
necessary corroborative linkages had been established to enable this court draw
the necessary inferences. In this respect therefore, we are of the considered
view that, once the Respondent and his witnesses have corroborated in material
particulars the evidence of the Petitioner on the core issues involved in this
trial, the failure by her to call evidence of her own in support thereof is
immaterial.
We are therefore of
the considered view that, in law the burden that is cast on the Petitioner to
lead sufficient evidence to enable a finding of those facts to be made in her
favour has been established as required by sections 10 and 14 of the Evidence
Act, 1975, already referred to supra.
We accordingly hold
and rule that taking all the above pieces of evidence from Petitioner,
respondent and his witnesses into consideration and on the authority of the
following Supreme Court decisions, the Petitioner must be deemed to have
discharged the burden cast on her by and under the Evidence Act, 1975 NRCD 323.
1. Dzaisu
v Ghana Breweries Limited [2007-2008] SCGLR 539 where the Court spoke
with one voice through our esteemed Sister Sophia Adinyira JSC on application
of section 14 of NRCD 323 at holding 1 thereof and
2. Ackah
v Pergah Transport Limited [2010] SCGLR 728 where the Supreme Court
again speaking through our respected Sister Sophia Adinyira JSC espoused
section 10 of NRCD 323 of the Evidence Act.
This means that,
since it was the Petitioner’s duty as required by law to produce the evidence
of the facts in issue and that duty has been satisfactorily discharged, that
burden has been performed and the trial and appellate courts were thus right in
coming to the conclusions reached by them.
From the above, it
would appear certain that all the lower courts correctly applied the principles
of evaluating the evidence and the probative values attached to the party who
has the burden of proof. Under these circumstances, it is our considered view
that this court does not see it’s way clear in interfering with the findings of
fact made by the trial court which was concurred in by the Court of Appeal.
We are therefore of
the very considered view that the Court of Appeal did not err in affirming the
findings of fact made by the trial court.
Indeed, the Court of
Appeal correctly applied the principles of evidence in this case and satisfied
itself that the standard of proof required in law had been met.
Secondly, it has to
be considered that, the facts of this case require that the veil of
incorporation be lifted to enable the court determine the real persons who are
managing the business of Guidem.
This is a situation
where the respondent cleverly explored the illiteracy of the Petitioner and
abused the trust reposed in him by the Petitioner. Since the primary duty of
courts of law is to do substantial justice, the decision of the lower courts to
be objective and consider all the surrounding circumstances of the case
supports the decision arrived at.
Having reviewed the
evidence on record in great detail as well as the constitutional provisions
dealing with devolution of marital properties upon divorce, it is appropriate
at this stage to consider the principle of Jurisprudence of Equality.
Even though the
decision of this court in effect is that, the Petitioner, from the evidence on record,
must be reputed to have made and contributed substantially to the acquisition
of the matrimonial properties and assets on offer for sharing in this case and
therefore entitled to an equal share, the constitutional provisions in article
22 (3) of the Constitution, 1992 cannot be overlooked.
This is because, as
a final appellate and constitutional court, this Supreme Court has a duty to
make its views clearly known on the relevance and applicability of
constitutional provisions whenever these arise or call for interpretation in
cases that come up before it for adjudication.
Our comments as a
court, on the constitutional interpretation and applicability of the equality
is equity principle contained in article 22 (3) of the Constitution 1992, in
the sharing of marital properties acquired during the subsistence of a marriage
and the Principle of Jurisprudence of equality, (yet to be discussed) are to be
understood in that context.
Thus, even if this
court had held that the petitioner had not made any substantial contributions
to the acquisition of the matrimonial properties, it would still have come to
the same conclusion that the petitioner is entitled to an equal share in the
properties so acquired during the subsistence of the marriage. This is because
this court recognises the valuable contributions made by her in the marriage
like the performance of household chores referred to supra, and the maintenance
of a congenial domestic environment for the respondent to operate and acquire
properties. Besides, the constitutional provisions in article 22(3) of the
Constitution 1992, must be construed to achieve the desired results which the
framers of the Constitution intended.
In coming to this
conclusion, we are not unaware of complications that may arise in the
application of the principle of equality in the context of polygamous
marriages.
We are however of
the view that those complications can be tackled on a case by case basis in
subsequent case law development, or by direct statutory intervention by the Legislature.
Finally, such an
interpretation and decision would be consistent with earlier decisions of this
court in Mensah v Mensah and Boafo v Boafo already referred to
supra.
JURISPRUDENCE OF EQUALITY PRINCIPLE (JEP)
The Jurisprudence of
Equality Principle, has been defined by the International Association of Women
Judges in their November, 2006 USAID Rule of Law Project in Jordan as “the application of international human
rights treaties and laws to national and local domestic cases alleging
discrimination and violence against women.” Such that the rights of women
will no longer be discriminated against and there will be equal application of laws to the
determination of women issues in all aspects of social, legal, economic and
cultural affairs.
It is to be
understood that discrimination and violence against women differ from country
to country and each situation has to be considered on a case by case basis.
For example, whilst
in Ghana, it is perfectly legitimate for issues such as inhuman widowhood rites,
trokosi system and the inability of the courts to apply all the human rights
provisions in the Constitution 1992 in favour of women so as to empower them in
their quest for equality in the devolution of marital property upon divorce may
be considered as discrimination and violence against women, in other countries,
it may be the prohibition on female students wearing headscarves at university
campuses, or the unequal payment of pensions to widows as compared to widowers
that may be considered as such.
In our Ghanaian
context, we have referred to the provisions of article 33 (5) of the
Constitution which guarantee’s other rights, duties, declarations not
specifically mentioned in the Constitution as applicable by our courts in order
to ensure the dignity of the human race.
For example, Article
(1) of the Universal Declaration of Human Rights provides as follows:
“All human beings are born free and equal in dignity and
rights. They are endowed
with reason and conscience, and should act towards one another in a spirit of
brotherhood.”
Article 12 (1) and
(2) of the Constitution 1992 give the scope and content of the fundamental
Human Rights and Freedoms which the individual is entitled to enjoy.
As a matter of fact,
even though the Universal Declaration of Human Rights is not a binding treaty,
its principles and underpinning philosophy has been incorporated into national
constitutions and referred to by several national courts. This is the context
into which our national Constitution 1992 has to be understood in relation to
this principle of Jurisprudence of Equality.
Ghana is also a
signatory to the Convention on the Elimination of all forms of Discrimination
Against Women (CEDAW).
For example, article
1 of CEDAW, provides a definition of discrimination as follows:-
“For the purposes
of the present convention, the term “discrimination against women” shall mean
any distinction, exclusion or restriction made on the basis of sex which has
the effect or purpose of impairing or nullifying the recognition, enjoyment or
exercise by women, irrespective of their marital status, on the basis of
equality of men and women of human rights and fundamental freedoms in the
political, economic, social, cultural, civil or any other field.”
Furthermore, article
5 of CEDAW adds a key concept to international equal protection analysis; the
need to eradicate customary and all other practices which are based on the idea
of the inferiority or the superiority of the sexes or on stereotyped roles for
men and women.
On the basis of the
above conventions and treaties and drawing a linkage between them and the
Constitution 1992, it is our considered view that the time has indeed come for
the integration of this principle of “Jurisprudence
of Equality” into our rules of interpretation such that meaning will be
given to the contents of the Constitution 1992, especially on the devolution of
property to spouses after divorce.
Using this principle
as a guide we are of the view that it is unconstitutional for the courts in
Ghana to discriminate against women in particular whenever issues pertaining to
distribution of property acquired during marriage come up during divorce. There
should in all appropriate cases be sharing of property on equality basis.
We therefore endorse
the Kenya Court of Appeals decision in the case of Tabitha Wangeci Nderitu v Simon
Nderitu Kariuki, Civil Appeal No. 203 of 1997 where the Court
of Appeal ruled for the wife, finding that the Married Women Property Act, superseded the customary law, that the
husband had failed to show that the caesarian sections had disabled her
sufficiently to warrant a reduction to 30 percent, and that a housewife’s
contribution to the family in raising children counted as a contribution to the
marriage.
What are the facts
of the above case?
In the said case
both parties appealed from a lower court decision dividing marital property on
divorce. The lower court found that both of the parties had contributed equally
to the marital assets and ruled that the proceeds from the sale of the
matrimonial home should be divided equally.
The husband
discounted the wife’s share of the remaining assets to only 30%, based on what
he termed the “common sense notion” that the three caesarian sections the woman
had endured to deliver the couple’s children had diminished her ability to
fully exert himself for the benefit of the household.
The decision arrived
by the Kenya Court of Appeals is not only in tandem with common sense and
international human rights conventions and principles, but also in tune with our
articles 22 (3) (a) and (b) of the Constitution 1992.
Coming home to the
instant case and applying the above constitutional provisions, relevant case
laws enunciated in decisions such as Mensah v Mensah and Boafo
v Boafo already referred to supra and international conventions and
Principles of Jurisprudence of Equality, (JEP) this court is of the considered
view that the Petitioners contribution even
as a housewife, in maintaining the house and creating a congenial
atmosphere for the respondent to create the economic empire he has built are
enough to earn for her an equal share in the marital properties on offer for
distribution upon the decree of divorce.
From the evidence on
record, this court will not permit the respondent to use the petitioner as a donkey
and after offering useful and valuable service dump her without any regard for
her rights as a human being.
CONCLUSION
We are therefore of
the considered view that the time has come for this court to institutionalise
this principle of equality in the sharing of marital property by spouses, after divorce, of all property
acquired during the subsistence of a marriage in appropriate cases. This is
based on the constitutional provisions in article 22 (3) and 33 (5) of the
Constitution 1992, the principle of Jurisprudence of Equality and the need to
follow, apply and improve our previous decisions in Mensah v Mensah and Boafo
v Boafo already referred to supra. The Petitioner should be treated as
an equal partner even after divorce in the devolution of the properties. The
Petitioner must not be bruised by the conduct of the respondent and made to be
in a worse situation than she would have been had the divorce not been granted.
The tendency to consider women (spouses) in particular as appendages to the marriage
relationship, used and dumped at will by their male spouses must cease. Divorce
as Lord Denning stated long ago, should not be considered as a stigma.
In the premises, the
appeal herein is dismissed as being without any merit and the Court of Appeal decision
of 23rd July 2009 is hereby affirmed.
(SGD) J.V.M DOTSE
JUSTICE OF THE
SUPREME COURT
(SGD) S.A.B AKUFFO (MS)
JUSTICE OF THE
SUPREME COURT
(SGD) DR. S.K. DATE-BAH
JUSTICE OF THE
SUPREME COURT
(SGD) S.O.A ADINYIRA (MRS)
JUSTICE OF THE
SUPREME COURT
(SGD) V. AKOTO BAMFO (MRS)
JUSTICE OF THE
SUPREME COURT
COUNSEL:
SOMUAH ASAMOAH FOR
THE APPELLANT
ROBERTSON KPATSA FOR
THE RESPONDENT