Sackey Vrs Boakye-mensah (HI/218/07) [2008] GHACA 22 (13 March 2008);

                                      IN THE SUPERIOR COURT OF JUDICATURE

                                       IN THE COURT OF APPEAL  -  A C C R A



CORAM: - ROSE OWUSU, [MS.] JA  (Presiding)

                  S. MARFUL SAU, JA

                  YAW APPAU, JA


                                                                                                           13TH MARCH,  2008








On the 8th day of November 1999, the plaintiff/appellant (hereinafter referred to as the appellant), instituted this action in the court below against the defendant/respondent (hereinafter referred to as the respondent), claiming the following reliefs: -

  1. A declaration that she is entitled to or owner of a half share interest in House No. C69/22, Abofu near Achimota, Accra.
  2. An order of partition of House No. C69/22 Aborfu, near Achimota into two equal parts, with one part going to her, or in the alternative,
  3. An order for the sale of the said house and the payment of half the proceeds to her.
  4. An order restraining the defendant from interfering with the enjoyment of her half share interest in the said house pending its partition or sale.
  5. An account of the sale of a 130-acre farm situate at Assin Nyankomasi in the Central Region of the Republic of Ghana and
  6. The refund of the sum of US$1,000.00 with interest thereon at the prevailing bank rate from 1984 to the date of payment.

The appellant was the former wife of the respondent. From her pleaded case, they contracted a customary marriage in August 1978, however, the marriage broke down seven (7) years later in 1985. The basis for her claim was contained in her statement of claim that was filed together with her writ of summons on 8/11/1999.  

The respondent denied appellant’s claim in a statement of defence filed on 10/2/2000 and also counter claimed for the following:

  1. a declaration that he was the sole owner of the house in dispute;
  2. an order of perpetual injunction restraining the plaintiff and her privies, etc from interfering with his quiet enjoyment of the house;
  3.  a declaration that plaintiff breached the partnership agreement he entered into with her in respect of the farm at Assin Nyankomasi by her abandonment;
  4.  an order requesting plaintiff to go into accounts with him over the farm and for plaintiff to contribute equally towards the payment of any debt found due from the partnership;
  5. an order requesting plaintiff to return to him his BMW 525 Saloon car which she borrowed in 1987 but never returned same;
  6. general damages for the conversion of the said car and
  7.  special damages for the loss of use of that car at a per diem rate of GHC5.00 beginning from August 1987 up to the date of judgment.

During the trial in the court below, the appellant testified and called one witness. The respondent also testified but called no witness. The trial court, after evaluating the evidence before it, dismissed the first four reliefs of the appellant’s claim but gave her judgment on the last two; [i.e. reliefs (v) and (vi)]. With regard to respondent’s counter claim, the trial court dismissed reliefs (iii), (v), (vi) and (vii) but gave him judgment on reliefs (i), (ii) and (iv). Incidentally, relief (v) of appellant’s claim is almost the same as relief (iv) of respondent’s counter claim. The two border on the rendering of accounts in respect of the Assin Nyankomasi farm, which both parties claimed they owed as partners.

Being aggrieved with part of the judgment of the court below dated 19th December 2005, the appellant filed the instant appeal before this Court. The notice of appeal was filed on 8/2/2006 and according to the notice of appeal, the part of the decision of the trial court complained of is that part that gave judgment to the respondent on reliefs (i), (ii) and (iv) of his counter claim. In effect, the appellant was against the dismissal of the first four (4) reliefs of her claim as endorsed on her writ of summons, thus this appeal. The grounds of appeal were as follows: -

  1. The judgment of the learned trial judge is against the weight of evidence adduced at the trial.
  2. The learned trial judge erred when she held that the Abofu house was built at the time when the parties herein were living in concubinage.
  3. The learned trial judge erred when she held that the appellant did not make any contributions towards the acquisition of the Abofu house.

Despite the fact that the notice of appeal contained three grounds of appeal as indicated above, the appellant canvassed only the first two grounds in her statement of case or written submissions filed on 07/05/2007. Her reason for doing so was that there was no need to advance separate arguments for the third ground as that ground was taken care of in her arguments in support of the first ground.

The crux of the appellant’s case in respect of the first four reliefs that were dismissed by the trial court was that as the wife of the respondent, she contributed to the acquisition of the disputed house; i.e. House No. C69/22, Abofu near Achimota, Accra so upon the dissolution of their marriage, she was entitled to one-half share of the said house. The reasons she gave as grounding her contribution to the acquisition of the disputed house were four-fold. These were:

  1. That between 1974 and 1977, she travelled extensively with the respondent to the Central and Western Regions of Ghana assisting the respondent in the purchase of African fauna like parrots, tortoises, snakes, etc, which they exported abroad, the proceeds of which trade the respondent utilized in acquiring the disputed house.
  2. That it was her mother who gave the respondent interest-free capital to finance this export trade.
  3. That she personally purchased cement and assisted the respondent in the manufacture of 6,000 blocks, which were used in the construction of the disputed house.
  4. That between 1982 and 1984, at the request of the respondent, she assumed complete responsibility for the entire house-keeping thus enabling the respondent to channel earnings from the export trade into the construction of the disputed house.

The authorities are legion that in an action for the settlement of properties acquired by a man and wife after divorce, if the courts come to the conclusion that the properties in dispute have been acquired and maintained by the joint efforts of both husband and wife during the marriage, then when the marriage breaks down, it should be regarded as the joint properties of both of them, no matter in whose name the properties stand and such property should be shared equally. See the Supreme Court case of MENSAH v. MENSAH [1998-99] SCGLR, 350 @ 351 and also the dictum of Lord Denning (MR) in the English case of RIMMER v. RIMMER [1953] 1QB, 63.

This principle has been given a Constitutional effect and force by Article 22(3) (b) of the 1992 Constitution of our fourth Republic on the property rights of spouses. This article reads:

“With a view to achieving the full realization of the rights referred to in clause (2) of this article, assets which are jointly acquired during marriage shall be distributed equitably between the spouses upon dissolution of the marriage”.

It should however be noted that this principle is based on the ground that the properties in question were jointly acquired or were acquired through the joint efforts of the couple during the subsistence of their marriage, or that it was agreed between the couple that the said properties were to be owned jointly or they intended by their conduct that the said properties were jointly owned but not otherwise. The mere fact that the couple were living together in the disputed house cannot, however, be a sole basis for establishing joint-ownership.

This Court, per Francois, Edward Wiredu and Abban, JJ.A (as they then were) encapsulated this principle in the first and second holdings of their judgment, in its right perspective in the case of ACHIAMPONG v. ACHIAMPONG [1982-83] GLR, 1017 @ page 1019 as follows:

“Broadly speaking, a wife by going to live in a matrimonial home, the sole property of the husband, did not acquire any interest therein. The law did not recognize any such interest. She only had a right to live in the matrimonial home as long as the marriage subsisted. That right was conferred on her by virtue of her status as a wife and not by virtue of any permission from the husband. So long as her status as a wife remained, so long did that right survive. But that right would terminate automatically after divorce even if she was the successful petitioner…The basis for the termination was that after the grant of a divorce decree the right to cohabitation went together with her right in respect of the husband’s house in the absence of agreement or settlement. For, her general right to live in the husband’s house was a right in personam and not in rem attaching to the matrimonial home…

However, a situation might arise whereby a wife’s general personal right – which was derived from her status to live in the matrimonial home, might be transferred into a right in rem adhering to the matrimonial home and its contents. Those were cases where there had been agreement between the husband and wife in respect of the matrimonial home, giving the wife some beneficial interest in it, notwithstanding that the property was in the sole name of the husband as the legal owner, or where the wife directly or indirectly made substantial contribution in money or money’s worth towards the acquisition of the property, e.g. making direct financial improvements, renovations or extensions in respect thereof or applying her income for the common benefit of both of them and the children so as to enable the husband financially to acquire the property in dispute”.

In the recent case of BOAFO v. BOAFO [2005-2006] SCGLR, 705, which was determined by the Supreme Court, Dr. Date-Bah, JSC, who delivered the unanimous judgment of our highest Court expressed the following at page 716 of the Report:

“Indeed, in cases where the evidence clearly points to a joint ownership, I found no inflexible rule stipulating that a spouse’s inability to clearly identify a 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”{Emphasis added}.

From the authorities cited above, it is clear that the requirement of the law is that before a court can find for a spouse who claims joint ownership of property held in the name of the opposite spouse, the spouse who is making such a claim must lead cogent or satisfactory evidence to support his/her claim of joint ownership. He can do so by establishing any of the following:

  1.      That there was an agreement between the couple that the property in dispute, belonged to both of them or to them jointly.
  2.       That they evicted the intention, either by deed or by their conduct that they were acquiring the property in dispute as joint-owners, e.g. like registering the documents covering the property in their joint names notwithstanding the fact that it was one of them who solely financed its acquisition.
  3.      That both couple contributed financially, either directly or indirectly in their effort to acquire the disputed property, like providing money purposely meant for the construction or the purchase of building materials towards the construction, or where one of the spouses uses his/her earnings to provide for the household while the other uses his/hers for the acquisition of the property in dispute, whichever way it goes, notwithstanding that the property is in the name of one of the spouses.


The guiding principle can be siphoned from the dictum of Date-Bah, JSC, as quoted above; i.e. ‘where the evidence clearly points to a joint-ownership’.

Meanwhile, before establishing any of the above, the plaintiff spouse must establish as a matter of course that the disputed property was acquired during the subsistence of the marriage through their joint efforts.

As the respondent rightly pointed out in his statement of case filed on 1/6/2007, customary law does not recognize concubinage. A concubine cannot therefore claim for a share in her boyfriend’s property or girlfriend’s property just because of services rendered to the boyfriend or girl friend during concubinage.

In the instant appeal, the reason’s the appellant gave in both her pleading and her evidence in the court below to support her claim of joint ownership of the disputed house were four (4), as quoted supra.

The first was that she travelled to some regions with the respondent to purchase African fauna for export so she contributed to the business, the proceeds of which the respondent used in constructing the disputed house. This, according to her, was between 1972 and 1977 when she was not married to the respondent.

The parties became legally married in 1978. They were only close friends or concubines; so to speak, at the time the appellant claimed she was accompanying the respondent on his trips for the purchase of the fauna. These trips by the appellant, in my view, were pleasure and fun trips, which had no legal significance, as the respondent rightly contended in his statement of case filed in this Court on 1/6/2007. The fact of her accompanying the respondent on some of the trips did not therefore make her a joint owner of the business in question, which business the respondent was already conducting before he met the appellant.  This renders the first reason for her claim of joint ownership of the disputed house impotent and sterile.

The trial judge was therefore on course when she concluded that since the assistance the appellant claimed she gave the respondent between 1972 and 1977, granted it were true, was given when they were in concubinage relationship, even if it could be quantified, it could not be claimed under customary law since the law frowned and gives no recognition to concubinage.

The second reason appellant gave was that it was her mother who financed the respondent’s export business by giving him an interest-free capital from which business respondent raised revenue to construct the disputed house so she the appellant did contribute to the business which gave birth to the disputed house. This therefore makes her a joint owner. 

I do not see how tenable this argument is and the court below was right in dismissing it with the reasons it gave. If the respondent was given interest-free capital by appellant’s mother or the respondent owed the appellant’s mother, this did not make the appellant a joint owner of properties the respondent acquired from the proceeds of the business the respondent embarked on with the money of appellant’s mother. The appellant is different from her mother. She cannot talk for her mother without any authority. If indeed the respondent owed the appellant’s mother at the time of her death in 1983, it was for the customary successor or the personal representative of appellant’s mother to take the matter up for the retrieval of the amount owed. The evidence, however suggested that any money the appellant’s mother allegedly advanced to the respondent was a loan. It was only interest-free.

The third reason the appellant gave was that she contributed to the purchase of cement for the manufacture of 6,000 blocks for the construction of the disputed house. The fact is that if a spouse is able to establish that he or she did contribute financially in the purchase of building materials for the construction of property during his or her marriage, like the purchase of cement as the appellant is claiming, the courts, as was held in MENSAH v. MENSAH (supra) would lean towards decreeing him or her a joint owner with an equity share. However, the mere mention that he or she did contribute, without more, is not enough. He or she must prove the claim of contribution with satisfactory evidence, though not on mathematical or commercial basis. The evidence must, however, point clearly to joint ownership. In this case, the respondent denied any contribution by the appellant in the manufacture of the blocks. This placed a burden on the appellant to prove her assertion, having admitted that the appellant acquired and commenced the construction of the disputed property before he met and later married her.

From the onset, the evidence on record suggested clearly that the parties never intended to acquire the disputed property as a joint property because;

  1. The respondent purchased the building plot long before he met the appellant and befriended her.
  2. The respondent commenced the construction of the disputed house in 1975/76 when he was not married to the appellant.

The two of them could not therefore have intended the disputed property to be their joint property or their joint matrimonial home at the time of its acquisition unless there is an agreement to that effect. From the evidence on record before the Court, there is no such agreement.

The question, however is, could the appellant prove her claim of contributing to the manufacture of the blocks? The answer is No. In fact, the court below did not make any finding of fact in favour of the appellant that she did purchase cement for the manufacture of blocks as the appellant wanted this Court to believe in her statement of case. What the court below said was as follows: “Apart from the purchase of cement for blocks which the plaintiff claimed she did…” This is not a finding of fact. The court below was referring to appellant’s claim.

In fact, the respondent denied this assertion thus placing a burden on the appellant to establish same, which she could not do. The question is, at what time did she contribute in the manufacture of the 6,000 blocks when in her own pleaded case, the building was commenced before she got married to the respondent? The appellant even contradicted herself on this issue. Under paragraphs 8 and 9 of her statement of claim, she contended that both she and the respondent bought cement and manufactured 6,000 blocks for the construction of the disputed house while in her reply and defence to respondent’s defence and counter claim, she averred differently under paragraph 9 that she solely financed the manufacture of the 6,000 blocks. Which is which? Coupled with her inability to produce any documentary evidence to support her claim of having purchased cement and when she did that, this contradiction melted away appellant’s credibility on this issue.

The fourth and final reason appellant gave to ground her claim of joint ownership was that between 1982 and 1984,the respondent requested her to cater for the house hold from proceeds of her trading business along the West Coast of Africa while he used proceeds from the fauna trade to construct the disputed house. This was her pleaded case. Meanwhile, the evidence on record suggests that the business the appellant claimed she was embarking on along the West Coast was not her own business but that of her mother. She was only assisting her mother to do this business. She was, as a matter of fact, deputizing for her mother anytime her mother could not go on the trip. She admitted this herself. How could she therefore have used proceeds of a business which did not belong to her to fend for her household, which included three children of her own and four other children the respondent had from a previous marriage, not to mention she and her husband?

In her evidence in chief, however, the appellant said something different from the above. This time, she said she won a case in Monrovia, Liberia and earned $9,000.00 from that case. With the request of the respondent, she used $3,000.00 out of this amount to fend for her household to enable the respondent use the proceeds from the export trade to construct the disputed house. It is no more earnings from her trading business along the West Coast of Africa. Though this piece of evidence was not pleaded but was allowed to go in, it portrayed how inconsistent the appellant was.

Clearly, from the totality of the evidence on record, the appellant could not lead any evidence to support her claim of joint ownership of the disputed property and for that matter the findings of the trial judge that she was not a joint owner of the disputed property with the respondent were supported by the evidence on record, contrary to the submission of the appellant that they do not.

I, however, agree with the appellant that the customary law position enunciated by Sarbah in his ‘Fanti Customary Law’ book that “under customary law whatever a wife helps her husband to acquire is the sole property of the husband,” has outlived its purpose. It is no more good law since the determination of joint ownership of spouses has nothing to do with the form of marriage entered into by the spouses. The decision of Ollenu, J. (as he then was) in QUARTEY v. MARTEY [1959], GLR, 377 @ 380, which was premised on this customary legal principle of Sarbah has therefore long been confined to the archives. It was one of the injustices that women under customary law suffered sometime back before the courts of our land became emboldened, with the support of Act 367 (i.e. The Matrimonial Causes Act of 1971) and developments in the common law, to change that unjust situation. Date-Bah, JSC in his judgment in the Boafo case cited supra described this customarily law principle as outmoded. See the last paragraph of page 711 of the report. Also, article 20 of the Constitution of 1992 has now given effect to this progressive change.

Having failed to establish her claim of joint ownership as the trial court rightly found, the appellant’s appeal crumbles. I would therefore dismiss it as it is pointless to waste time on the second ground of appeal.

I am however of the view that it was unfair for the court below to have awarded costs against the appellant. The fact is that both parties made various claims against each other in their respective claim and counter claim. The appellant succeeded in some of the claims and lost in others. The same applied to the respondent. There was therefore no need to have awarded costs in favour of one party against the other. Though the award of costs is at the discretion of the judge, the law is that the discretion must be exercised judicially and judiciously. It is fair and just that the parties should have been made to bear their own costs of litigation. I think this Court should reverse the order awarding costs to the respondent and substitute in its place an order that the parties bear their own costs of litigation in the court below.




                                                                        [SGD.]   YAW APPAU

                                                                              JUSTICE OF APPEAL




OWUSU, JA:-   I have had the opportunity to read the Judgment of my brother and I agree with the conclusion arrived at that the appeal fails and same be dismissed.



                                                                      [SGD.]   R. C. OWUSU

                                                                              JUSTICE OF APPEAL



I also agree.                                                [SGD]  S. MARFUL SAU

                                                                             JUSTICE OF APPEAL