Property Rights of Spouses in Relation to Economic Violence Against

Women in Ghana

Genna A. S. Evelyn, LLBin association with

Women in Law and Development Africa (WiLDAF – Ghana)

December 2013

Table of Contents

INTRODUCTION TO THE ANALYSIS ................................................... 6

INTRODUCTION TO THE CONCEPT OF "ECONOMIC VIOLENCE"...............................6

LEGAL FRAMEWORK OF HUMAN RIGHTS IN GHANA ............. 7

A SHORT HISTORY OF HUMAN RIGHTS IN GHANA.....................................................7

OVERVIEW OF GHANA’S CURRENT LEGAL FRAMEWORK.......................................10

SOURCES OF LAW IN GHANA....................................................................................................10Court System in Ghana............................................................................................................................10Legislation................................................................................................................................................11Customary Laws......................................................................................................................................11

PRESENTATION OF DATA AND ANALYSIS ................................... 13

INTRODUCTION............................................................................................................13

OVERVIEW OF THE DEVELOPMENT OF THE CURRENT LAW IN RELATION TO THE PROPERTY RIGHTS OF SPOUSES IN GHANA...............................................................13Quartey v. Martey, [1959] GLR 377, High Court Accra.........................................................................13Yeboah v. Yeboah (1974), 2 GLR 114, High Court..................................................................................14Abebrese v. Kaah, [1976] 2 GLR 46, High Court....................................................................................14Achiampong v. Achiampong, [1982-83] G.L.R. 1017, Court of Appeal – Accra....................................15Anang v. Tagoe, [1989-90] 2 GLR 8, High Court....................................................................................16Ribeiro v. Ribeiro (No 2), [1989-90] G.L.R. 130, April 10 1990, Supreme Court – Accra.....................16Mensah v. Mensah, [1998-99] SCGLR 350, Supreme Court..................................................................17Boafo v. Boafo, [2005-2006] SCGLR 705, Supreme Court.....................................................................18Verdoes v. Verdoes-Kurnchie, May 11 2009, High Court – Accra, Court File BDMC 11/2008..............19Kwawukume v. Kwawukume, July 30 2009, Court of Appeal – Accra, Court File H1/173/2009............19Shardow v. Shardow, July 31 2009, High Court – Accra, Court File BDMC 258/2005.........................20Owusu v. Owusu, March 17 2011, Court of Appeal – Accra, Court File HI/144/2010............................21

THE MARRIAGE ORDINANCE: GLADYS MENSAH.....................................................21Mensah (G.) v. Mensah (S.), [2012] 1 SCGLR 391, February 22 2012, Supreme Court – Accra, Court File J4/20/2011.........................................................................................................................................21“Woman gets property after 13 years of litigation” (Daily Graphic).....................................................22

THE STATE OF THINGS FOLLOWING MENSAH (G.) V. MENSAH (S.).......................25Mensah (E.) v. Mensah (V.), June 11 2012, High Court – Accra, Court File BDMC 195/2011..............25Quartson v. Quartson, October 31 2012, Supreme Court – Accra, Court File J4/8/ 2012......................26Dadjawah v. Dadjawah, June 21 2013, High Court – Accra, Court File BDMC 317/2011....................28Tweneboah v. Tweneboah, June 24 2013, High Court – Accra, Court File BDMC 82/2011...................29

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CUSTOMARY MARRIAGE DISSOLUTION.....................................................................30

DISSOLUTION OF CUSTOMARY MARRIAGE AS HANDLED BY TRADITIONAL LEADERS.............30Table of Interview Responses..................................................................................................................31

DISSOLUTION OF CUSTOMARY MARRIAGE AS HANDLED BY THE COURTS...............................33Dwumah v. Asare, July 19 2013, High Court – Accra, Court File BDMC 198/2012..............................34Adzenya v. Adzenya, November 25 2010, Court of Appeal – Accra, Court File H1/43/08.....................36Abubakari v. Abubakari, May 18 2006, Court of Appeal – Accra, Court File H1/152/2005, Reported by the Judicial Training Institute..................................................................................................................37Sackey v. Boakye-Mensah, March 13 2008, Court of Appeal – Accra, Court File HI/218/07, Reported by the Judicial Training Institute.............................................................................................................37

MUSLIM MARRIAGE DISSOLUTION............................................................................38Esseku v. Inkoom et al, March 14 2013, Court of Appeal -- Accra, Court File H1/233/2008.................39Adamu v. Adams, June 18 2007, Court of Appeal – Accra, Court File H1/360/05..................................42

“CONSENSUAL UNIONS”/ “CONCUBINAGE”..............................................................43

RECOMMENDATIONS ....................................................................... 45

OVERALL RECOMMENDATIONS..................................................................................45

PROPERTY RIGHTS OF SPOUSES BILL, 2013.............................................................46

REFERENCES ....................................................................................... 48

Introduction to the Analysis.....................................................................................................................48Legal Framework of Human Rights in Ghana.........................................................................................48Presentation of Data and Analysis...........................................................................................................48Recommendations....................................................................................................................................49Appendix A: Property Rights of Spouses Bill 2013 and Memorandum..................................................49Appendix B: All Case Summaries...........................................................................................................49

APPENDIX A: PROPERTY RIGHTS OF SPOUSES BILL 2013 AND MEMORANDUM ......................................................................... 50

APPENDIX B: ALL CASE SUMMARIES .......................................... 75

LANDMARK CASES ON PROPERTY RIGHTS OF SPOUSES 1959-2012........................75

SUMMARY..................................................................................................................................75Quartey v. Martey, [1959] GLR 377, High Court Accra.........................................................................75Yeboah v. Yeboah (1974), 2 GLR 114, High Court..................................................................................75Abebrese v. Kaah, [1976] 2 GLR 46, High Court....................................................................................76Achiampong v. Achiampong, [1982-83] G.L.R. 1017, Court of Appeal – Accra....................................76

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Anang v. Tagoe, [1989-90] 2 GLR 8, High Court....................................................................................77Ribeiro v. Ribeiro (No 2), [1989-90] G.L.R. 130, April 10 1990, Supreme Court – Accra.....................77Mensah v. Mensah, [1998-99] SCGLR 350, Supreme Court..................................................................77Boafo v. Boafo, [2005-2006] SCGLR 705, Supreme Court.....................................................................77Mensah (G.) v. Mensah (S.), [2012] 1 SCGLR 391, February 22 2012, Supreme Court – Accra, Court File J4/20/2011.........................................................................................................................................78Quartson v. Quartson, October 31 2012, Supreme Court – Accra, Court File J4/8/ 2012......................79

TOPICAL CASE SUMMARIES OF NOTE.......................................................................80

MARRIAGE ORDINANCE CASES.................................................................................................80Hansen v. Hansen, January 26 2009, High Court – Cape Coast, Court File E6/04/08............................80Akoto v. Akoto, [2008-2009] 1 GLR 447, February 13, 2009, Court of Appeal – Accra.........................80Gyamfi v. Gyamfi, March 2 2009, High Court – Koforidua, Court File E6/2/09....................................81Verdoes v. Verdoes-Kurnchie, May 11 2009, High Court – Accra, Court File BDMC 11/2008..............82Hood v. Hood, June 26 2009, High Court – Accra, BDMC 81/2009.......................................................82Nuque v. Nuque, July 7 2009, High Court – Accra, Court File BDMC 45/2006.....................................82Kwawukume v. Kwawukume, July 30 2009, Court of Appeal – Accra, Court File H1/173/2009............84Shardow v. Shardow, July 31 2009, High Court – Accra, Court File BDMC 258/2005.........................84Amissah v. Applerh, December 18 2009, High Court – Accra, Court File BDMC 192/2009..................84Williams v. Williams, February 18 2010, Court of Appeal – Accra, Court File HI/20/09, Reported by the Judicial Training Institute........................................................................................................................85Afriyie v. Abrefi, February 23 2011, Supreme Court of Ghana, Court File J4/24/2010...........................86Owusu v. Owusu, March 17 2011, Court of Appeal – Accra, Court File HI/144/2010............................86Anyaful v. Anyaful, November 17 2011, Court of Appeal – Accra, Court File H1/49/2011....................87Mensah (E.) v. Mensah (V.), June 11 2012, High Court – Accra, Court File BDMC 195/2011..............87Adjepong v. Adjepong, March 28 2013, High Court – Accra, Court File BDMC 190/2009...................88Dadjawah v. Dadjawah, June 21 2013, High Court – Accra, Court File BDMC 317/2011....................88Tweneboah v. Tweneboah, June 24 2013, High Court – Accra, Court File BDMC 82/2011...................89

CUSTOMARY MARRIAGE CASES................................................................................................90Abubakari v. Abubakari, May 18 2006, Court of Appeal – Accra, Court File H1/152/2005, Reported by the Judicial Training Institute..................................................................................................................90Owusua v. Akotua, November 3 2006, Court of Appeal, Court File HI/207/2005, Reported by the Judicial Training Institute........................................................................................................................90Quaye v. Quaye, Court of Appeal – Accra, Court File H1/150/2006.......................................................90Sackey v. Boakye-Mensah, March 13 2008, Court of Appeal – Accra, Court File HI/218/07, Reported by the Judicial Training Institute.............................................................................................................91Amponsah v Nyamaah, February 11 2009, Supreme Court – Accra, Court File J4/10/2008, Reported by the Judicial Training Institute..................................................................................................................92Adzenya v. Adzenya, November 25 2010, Court of Appeal – Accra, Court File H1/43/08.....................93Dwumah v. Asare, July 19 2013, High Court – Accra, Court File BDMC 198/2012..............................94

MUSLIM PROPERTY RIGHTS CASES...........................................................................................95Adamu v. Adams, June 18 2007, Court of Appeal – Accra, Court File H1/360/05..................................95Esseku v. Inkoom et al, March 14 2013, Court of Appeal -- Accra, Court File H1/233/2008.................96

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INTESTACY CASES.....................................................................................................................97Ankomah-Sey v. Embra-Quansah, [1971] 2 GLR 274-280, July 5 1971, Court of Appeal.....................97Kardo v. Billa, February 12 2004, Court of Appeal – Accra, Court File 25/2003, Reported by the Judicial Training Institute........................................................................................................................98Avesi et al. v. Johnson, February 12 2004, Court of Appeal – Accra, Court File HI/15/2004, Reported by the Judicial Training Institute.............................................................................................................98Obeng et al v. Omane et al, July 15 2009, High Court Koforidua, Court File E1/47/2007...................100

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Introduction to the AnalysisWomen in Law and Development Africa (WiLDAF) is a non-governmental organisation (NGO) based in Ghana which engages in multi-strategy initiatives to promote equity between women and men, provides economic opportunities for women, informs women of their legal rights, educates both men and women on gender equality and women’s health issues, and works to change societal beliefs and attitudes that lead to exploitative behaviour. A large part of WiLDAF’s work is in combating economic violence against women and attempting to ensure that all levels of decision-makers in Ghana take serious measures toward ensuring that the rights of Ghanaian women are protected and the voices of Ghanaian women are heard and acknowledged in all levels of government.

Towards their stated goals, WiLDAF has been heavily involved in the issue of the property rights of women in Ghana among other things. In 2013 WiLDAF performed legal and community research to determine the current trends throughout the country and produced the following analysis on the property rights of spouses. The purpose of this analysis is to educate Ghana’s public and equip Ghana’s decision-makers with the information necessary to begin to seriously address the crucial issue of the respective property rights of spouses as a way of combating economic violence against women specifically and combating gender-based violence generally.

Introduction to the Concept of "Economic Violence"

Most research studies and analyses on gender-based violence focus on the physical and psychological manifestations of this worldwide problem. One often-overlooked form of gender-based violence, however, is the economic violence experienced by women – often hand-in-hand with physical and psychological violence.

By controlling and limiting a woman’s access to financial resources, an abuser can ensure that a victim will be financially limited if she chooses to leave the relationship. As a result, victims of gender-based violence are often forced to choose between staying in an abusive relationship versus facing economic hardship, extreme poverty or homelessness. Women who choose to leave a relationship despite the obstacles or women who are forced out of a relationship by their partners without a choice in the matter are left far more vulnerable to sexual exploitation, human trafficking and other forms of gender-based violence and degradation.

Examples of economic violence include restricting access to such things as education, employment, medical treatment, money or the necessities of life. Economic violence also includes discriminatory cultural norms surrounding property rights/inheritance/family lands, and excluding women from financial decision-making. Women who are, for instance, prohibited by their partners from working partners or who have children with a partner who subsequently abandons the family, can be left in positions equally as distressing and cyclical as women who suffer physical violence from their partners. Economic violence leads directly to poverty as its victims are often left with very few developmental or occupational opportunities to address their situations. As such, it is important that strategies to reduce gender-based violence include a consideration of the prevalence of economic violence in a community and how it can be dealt with head-on.

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Legal Framework of Human Rights in Ghana

A Short History of Human Rights in Ghana

The Republic of Ghana has a varied population with several different clans, languages and traditions. Since Ghana’s independence from colonial rule in 1957, its judiciary has made several long but slow strides in attempting to balance the need to reduce the rate of violence against women with the need to respect cultural traditions and local governance systems throughout the country.

It was in the 1400s that Europeans first came to Ghana (which they called the “Gold Coast” at the time). Slavery became common and for over 150 years the Gold Coast was the centre of the British Slave trade. In 1874 slavery was abolished by Britain and the Gold Coast was declared a British Crown Colony. During the Berlin Conference from 1884-1885, the colonialists in Africa divided up the continent, apparently without any consideration for the locations and traditional areas of the various people groups. To add to the tension that this created, the colonialists often refused to promote or defend the notion that the natives of Africa had basic human rights – possibly as a strategy to maintain colonialist control of their respective territories. It was under these conditions that the current state of human rights in modern-day Ghana had its origins.

As the country developed economically and a higher percentage of the population became educated and more economically independent of the colonialists, the natives of the Gold Coast began to have more influence in their governance and began to demand the freedom to pursue their own economic, social and cultural development.

In 1952 Kwame Nkrumah was appointed Prime Minister of the country. Nkrumah was committed to working towards the country’s independence from colonial rule and built his political following on the ideals of self-determination and independence for the country. In 1957 Nkrumah led the country to independence from colonial rule and created a Republic. The country’s name was changed from “Gold Coast” to “Ghana”.

While Ghana’s independence was based on ideas of development, equality and sovereignty, Ghana’s early history as an independent nation is marked by many instances of deliberate campaigns by the government to limit and, in many cases, blatantly violate the basic freedoms of individual Ghanaian citizens in the interest of maintaining the government’s control over the population (ostensibly in order to promote other socio-economic rights). This led to approximately two decades of political unrest for Ghana as it underwent coups, failed coups and periods of military rule. Rampant human rights violations resulted as Ghana continued to work toward developing as a nation.

During this time, marital property/divorce issues for Ghanaians who were married under the Marriage Ordinance were governed by English law until Ghana passed its own Matrimonial Causes Act, 1971. The Matrimonial Causes Act, 1971 was an attempt to integrate and consolidate the laws applicable to all forms of marriage in Ghana and make it so that all types of marriage in

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Ghana could be dissolved through the Courts. The Act applies to all monogamous marriages as well as any polygamous marriage if one of the spouses of the marriage applies under the Act. Since both customary Ghanaian and Islamic marriages are potentially polygamous, parties to these marriages have the option of dissolving their marriages through the customary or Islamic traditions or through the Courts under the Act. When parties to a marriage choose to dissolve their marriage under the Act, the matter goes before the Court, which must then take into consideration both the provisions of the Act as well as the customary or Islamic law of the particular parties when deciding on issues such as the division of marital property. However, the Court is only to apply the customary or Islamic law of the parties as far as “the requirements of justice, equity and good conscience” allow.

While the coming into force of the Matrimonial Causes Act, 1971 could have marked the beginning of progress in this area of law (given the potential it had for encouraging innovative and progressive approaches to the division of marital property), for reasons unknown, legal counsel and the Courts have generally ignored this Act when dealing with the property rights of spouses. Instead, the Court developed its own tests and guidelines to be followed in the distribution of marital property (for instance, the “substantial contribution” test, see Achiampong v. Achiampong1).

Ghana’s last military coup in 1981 was an important turning point for the country in the development of its human rights policies. Jerry Rawlings was in power following the coup and he operated the country in much the same way as his predecessors, namely, repressing opposition and single-handedly making decisions through the façade of a council. However, the economic decline since the 1970s left the country in need of external sources of funding – a problem since major donors tended to only fund proposals that were compatible with their ideals. Since the ability to attract financial assistance was now synonymous with obtaining and maintaining power over the country, Rawlings was forced to modify his strategies. By the end of the 1980s, Rawlings was relying on NGOs to provide funding and free services in several key sectors such as infrastructure, education and private community cooperatives. NGOs multiplied greatly during this time, which was likely a factor that contributed to the initiation of protests against Rawlings’ regime in 1991. The protests resulted in the country returning to being a constitutional presidential republic in 1991 and an election being called in 1992. Rawlings won the election under the new name of his party, the National Democratic Congress.

In 1992, the government introduced the Constitution of the Republic of Ghana 1992, which, in 1993, became the supreme law of the Republic of Ghana, and is still in force today. Before 1992, Ghana had three previous Constitutions (the 1960 Constitution, the 1969 Constitution and the 1979 Constitution). The 1992 Constitution largely mirrors the Universal Declaration of Human Rights and, in addition to fulfilling other functions, the Constitution was the first law in Ghana to guarantee fundamental human rights to every person in the country. The Constitution called for the creation of the Commission on Human Rights and Administrative Justice (CHRAJ), which was to be charged with promoting human rights and investigating cases of human rights abuses and corruption in the country. This Commission was created in 1993. During this time period Ghana also signed and/or ratified a large majority of the United Nations’ treaties and protocols aimed at

1 Achiampong v. Achiampong, [1982-83] G.L.R. 1017, Court of Appeal – Accra, summary at page 15.8

protecting and promoting human rights.

As NGOs continued to become more prominent in Ghana, they started to play an important role in shaping public policy in the country. NGO and international donor support became a more integral part of the government’s strategy to reduce Ghana’s poverty levels and domestic debt, and so it became more important for Ghana to adjust its public policies to come into line with international expectations. NGOs went from being simple service providers in Ghana to becoming government watchdogs – included in the research on effective development and taking part in debate and advocacy with the government on necessary social reforms and the implementation of development assistance, which Ghana relied heavily upon.

Theoretically, the adoption of the Constitution, the creation of the CHRAJ, the dramatic increase in the voice given to NGOs in shaping policy and Ghana’s commitment as a country to various treaties on human rights should together have signalled the start of a significant reduction of the widespread human rights violations throughout Ghana – especially at the government level. However, the reality is that not all areas of concern regarding human rights violations have been acted on sufficiently by the government – despite lobbying from various stakeholders. For instance, some of the key provisions of the Constitution dealing with human rights issues have been ignored by government which renders those provisions entirely impotent to the citizens who have no where else to turn to for the protection of their human rights.

With regard to the problem of economic violence against women, one glaring example of the failure of the government to take steps to act upon the alleged “supreme law” of the country is seen in its failure to comply with Article 22 of the Constitution which, among other things, stipulates that “Parliament shall, as soon as practicable after the coming into force of this Constitution, enact legislation regulating the property rights of spouses [….] spouses shall have equal access to property jointly acquired during marriage. Assets which are jointly acquired during marriage shall be distributed equitably between the spouses upon dissolution of the marriage”. Clearly the framers of the Constitution intended that Parliament would follow-through with the necessary legislation to deal with this issue. However, in the words of Justice Jones Dotse in the 2012 Supreme Court case of Mensah (G.) v. Mensah (S.), “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. [….] 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.”2

Law reform in Ghana has, throughout Ghana’s history as an independent nation, been piecemeal and dependent on the help of the donor community. However, as far back as the 1950s women’s interest groups in Africa have been voicing concern about issues such as the confusion over the various forms of marriage and the need for a more secure position for women in relation to matters of inheritance and property rights. The coordinated efforts of women’s rights advocates and various NGOs were the driving force behind the passing of the Children’s Act, the Marriage, Divorce and Inheritance Bill, certain provision of the Constitution, the Disability Act of 2006 and

2 Mensah (G.) v. Mensah (S.), [2012] 1 SCGLR 391, February 22 2012, Supreme Court – Accra, CourtFile J4/20/2011.

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the Domestic Violence Act of 2007. Similarly, it is women’s rights advocates and NGOs which are currently continuing efforts to have the Property Rights of Spouses Bill, 2013 passed3.

Overview of Ghana’s Current Legal Framework

Sources of Law in Ghana

Ghana’s Constitution states that the laws of Ghana shall be made up of:- The Constitution;- Legislation enacted by Parliament or by other lawmaking authorities under the

Constitution;- The written and unwritten laws of Ghana that existed immediately before the coming into

force of the 1992 Constitution;- The common law (which includes English law, Judge-made law (judicial precedents), and

the rules of customary law).

The nation of Ghana is divided up into ten regions, all of which are under the authority of the central government. Legislation passed by Parliament are known as “Acts”. Legislation passed under the previous military regimes are called “Decrees” or “Laws” and legislation from the colonial period are known as “Ordinances”. Despite the different terms used, Acts, Laws and Ordinances all have the same force of law in Ghana and there are both colonial period Ordinances and military regime period Ordinances still in force today (in 2013) alongside the more recent Parliamentary Acts.

The National House of Chiefs along with the Ghana Law Reform Commission have, since 2006, been attempting to ascertain and codify the customary law in Ghana, particularly with regard to the issues of land ownership and family life. According to a review on Ghana’s Justice Sector and the Rule of Law, as of 2007 this project was still ongoing.4

Court System in Ghana

Ghana’s Constitution created a three-level Court system with the Supreme Court having the highest authority, followed in order by the Court of Appeal, High Court and regional tribunals. There is also a lower level of Courts which includes circuit Courts, district Courts, juvenile Courts, the National House of Chiefs and the traditional councils of each community.

Ghana’s Supreme Court is the final appellate Court in the country. It consists of nine justices and has exclusive jurisdiction over all matters relating to the enforcement or interpretation of the Constitution. The Supreme Court exercises a supervisory jurisdiction over the other Courts of the country. The Supreme Court’s decisions on questions of law are, theoretically, binding on all other levels of Court in the country. The Supreme Court is not bound by any precedent, nor is it bound

3 See the discussion of the “Property Rights of Spouses Bill, 2013” at page 45.4 AfriMAP et al, Ghana: Justice Sector and the Rule of Law, (2007) at page 33, available at: http://www.afrimap.org/english/images/report/AfriMAP_Ghana_Justice.pdf

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by its own earlier decisions.

Because widespread problems such as poverty and illiteracy prohibited many people from seeking justice through the traditional Courts, Ghana, like some other African nations, has established a system of informal tribunals and procedures specifically in the area of family law. Family Courts are a part of the Community Tribunals and operate at the district level so that they can be accessed by many rural and urban populations. A family tribunal sits in a panel of three and often includes a social worker. The procedures that these panels utilise in deciding matters between spouses are very informal and are conducted in the local language. This is all done with the aim of creating an accessible and impartial environment conducive to solving family disputes.

Legislation

The following is a non-exhaustive chronological list of notable legislation in Ghana which relate to the issue of human rights in general and the issue of violence against women in particular:

- Marriage Ordinance, 1881 (Rev. 1951)- Marriages Act, 1884-1985 (CAP 127)- The Criminal Offences Act (Act 29), 1960- Matrimonial Causes Act, 1971 (Act 367)- Intestate Succession Act, 1985 (PNDCL 111)- Constitution of the Republic of Ghana, 1992- Legal Aid Scheme Act, 1997 (Act 542)- Criminal Code (Amended) Act, 1998 (Act 554)- The Children’s Act, 1998 (Act 560)- The Juvenile Justice Act, 2003 (Act 653)- The Human Trafficking Act, 2005 (Act 694)- The Disability Act, 2006 (Act 715)- The Domestic Violence Act 2007 (Act 732)

In addition to this list, written and unwritten customary and Islamic laws also have a significant effect on human rights and the prevalence of violence against women in Ghana. The following section goes into more detail on customary law in Ghana.

Customary Laws

One of the main aspects of economic violence in Ghana particularly relates to customary marriage and inheritance issues. In patrilineal communities, inheritance is through the male line. In essence, only sons of the father (or a close male relative of the father’s if he has no sons) may inherit property. In matrilineal communities a man’s sister’s sons or his own brothers (born to his mother) may inherit his property. In both patrilineal and matrilineal communities, the wife is not, customarily, entitled to any particular property rights. The theoretical justification for this is that as the mother of the sons who will inherit (in patrilineal communities) or the sister or aunt of the brother or nephew who will inherit (in matrilineal communities), a woman will be able to enjoy access to the property through her male relations. Unfortunately, in practice, there arise countless

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scenarios where a wife finds herself with no right of access or enjoyment of property she may or may not have helped to acquire during her marriage. And since single mothers often find themselves bearing the sole responsibility for raising their children, a lack of an inherent right to a share in the property necessary to maintain those children places women in a uniquely vulnerable position.

The Intestate Succession Law of 1985 (PNDC Law 111) is an example of legislation that was enacted to address this issue. It gives wives and children (both sons and daughters) the right to inherit the property of a deceased person. However, when it comes to a question of property sharing following a divorce, the customary inability for a wife to enjoy an entitlement by right to a portion of the marital property upon the death of her husband appears to act essentially in the same way upon the divorce of a couple – but without a corresponding statutory reform to address this situation.

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Presentation of Data and Analysis

Introduction

As previously discussed in this analysis, Ghana’s formal laws not only come from the statutes enacted by Parliament, they are also determined by the precedent set down by the Courts as they attempt to apply Parliament’s statutes and the Constitution to the various fact situations brought before them. While this has the positive effect of allowing the law to develop and evolve with the changing times and values of society, it can also lead to problems, such as a gradual deviation from the original intent behind the enactment of certain statutes or the risk of an incorrect decision by an appellate Court becoming binding on the Courts below it.

Because of the supervisory role that appellate Courts play in monitoring the developing shape of a common law nation’s legal framework, a discussion of the development of the current law in Ghana in relation to the property rights of spouses centres mostly on decisions coming out of the Supreme Court of Ghana and the Courts of Appeal because those decisions have a far greater impact on Ghanaians as a whole as opposed to just the parties involved in the case.

Overview of the Development of the Current Law In Relation to the Property Rights of Spouses in Ghana

A discussion of the historical development of the current law regarding the property rights of spouses should begin with the decision of Quartey v. Martey which was handed down in 1959, shortly after Ghana became independent of its colonial rule. The Quartey v. Martey decision largely mirrors the traditional customary law position which generally asserts that a family’s property is to remain entirely with the man or the male relatives (in the event of the man’s death) upon the termination of the marriage:

Quartey v. Martey, [1959] GLR 377, High Court Accra

In this decision, the Court held that by customary law, it was the responsibility of a man’s wife and children to assist him in the carrying out of the duties of his station in life (i.e. farming, business, etc.). However, the proceeds of such a 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. Specifically, the Court held that such property is not the joint property of the man and the wife and/or the children.  The right of the wife and the children was specified to be a right to maintenance and support from the husband and father. In the absence of strong evidence to counter the presumption, any property a man acquires with the assistance or joint effort of his wife is the individual property of the husband and

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not the joint property of the husband and the wife.

Over the thirty years following the decision of Quartey v. Martey, the law continued to change and develop as the traditional roles of men and women in Ghanaian society continued to evolve. As women became more economically independent and played a greater role in the acquisition of family property, it became necessary for the law to recognise women’s contribution to family property, as seen in the 1974 decision of Yeboah v. Yeboah, the 1976 decision of Abebrese v. Kaah and the 1982 decision of Achiampong v. Achiampong :

Yeboah v. Yeboah (1974), 2 GLR 114, High Court

In this case, 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 was 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 testified 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 brought an action to eject the wife from the house.

The Court held that there was no positive customary law preventing the creation of a joint interest by persons not related by blood. The Court held that 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 the matrimonial home jointly. Where the matrimonial home was deemed to be held jointly by husband and wife, 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 make what would seem to be a fair agreement for the parties.

Abebrese v. Kaah, [1976] 2 GLR 46, High Court

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In this case, the wife contributed substantially to building the parties’ matrimonial home. The husband had provided the purchase money for the land while the wife 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, the wife 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.

Achiampong v. Achiampong, [1982-83] G.L.R. 1017, Court of Appeal – Accra

Specifically with regard to the matrimonial home, the Court in this case held that a spouse by going to live in a matrimonial home, the sole property of the other spouse, did not acquire any interest therein. The spouse only has a right to live in the matrimonial home as long as the marriage subsisted. That right was conferred on the spouse by virtue of that spouse’s status as a spouse and not by virtue of any permission from the other spouse. That right would terminate automatically after divorce. The general right of the spouse to live in the matrimonial home owned by the other spouse is a right “in personam” and not “in rem” attaching to the matrimonial home.

The Court noted, however, that the situation might arise where a spouse’s general personal right to live in the matrimonial home by virtue of being a spouse might be converted into a right to joint ownership of the house and/or its contents. Those were cases where there had been some agreement between the spouses in respect of the matrimonial home, giving the spouse who is not named on the title some beneficial interest in the home, notwithstanding that the property was in the sole name of the other spouse as the legal owner. It would also arise where the spouse who is not named on the title 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 income for the common benefit of both the spouses and the children so as to enable the other spouse financially to acquire the property in dispute.

The foregoing decisions helped to shape and clarify the principle that as long as the wife could

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prove “substantial contribution” to the family property in question, she was entitled to a share of it. This can be contrasted with the customary law principle that unless it is quite clear that it was the wife alone who acquired a certain piece of property, there is a presumption that the property belongs to the husband upon the termination of the marriage.5

As Ghana’s dependence on the services and funding from NGOs became greater through the 1980s and 1990s, the influence of organisations dedicated to the improvement of the status and condition of women in Ghana grew continuously stronger. The Court decisions coming out of the 1980s and 1990s demonstrate Ghanaian society’s changing attitudes towards the importance of a woman’s contribution to the family and a recognition of the particular vulnerability of women following the termination of a marriage (either through death or separation/divorce). See, for instance, the 1990 decisions of Anang v. Tagoe and Ribeiro v. Ribeiro (No. 2):

Anang v. Tagoe, [1989-90] 2 GLR 8, High Court

In this case the Court held 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 . It was noted that this 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.

Ribeiro v. Ribeiro (No 2), [1989-90] G.L.R. 130, April 10 1990, Supreme Court – Accra

In this case the Court made clear that there is an important distinction between the settlement of property rights between spouses on the one hand and the provision of decent accommodation/ maintenance/ financial provision for a spouse on the other. Whereas with the former, the Court must determine the share in the properties which belongs to one or the other parties, in the latter the question of contributions, substantial or otherwise, is irrelevant. In this particular case, the Supreme Court upheld the High Court’s award of a house to the wife and states that the award was not based on a finding that it belonged to the wife, that she was part-owner, or that she had contributed in any way whatsoever to its acquisition. Rather, it was conveyed as part of a package of financial provision which the Court considered the wife to be entitled to. Further, the award of the house was not necessarily for the wife’s accommodation, it is the equivalent of a financial award which the wife is free to expend as she chooses.

With the coming into force of the Constitution of the Republic of Ghana (1992), the Courts were

5 See further discussion of customary laws at “Customary Laws” at page 11 and “Customary MarriageDissolution” at page 30.

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faced with a dilemma. Article 22 of the Constitution stipulated that Parliament was to enact legislation regulating the property rights of spouses such that spouses would have equal rights to property jointly acquired during a marriage. However, Parliament has enacted no such legislation. The Constitution is, supposedly, the supreme law in Ghana to which all of Ghana’s legal framework must conform. Nevertheless, the Court could not force Parliament to act on its obligation under Article 22. The changing and somewhat conflicting attitudes of the times including the influence of Article 22 of the Constitution are somewhat reflected in the Supreme Court’s 1998 landmark case of Mensah v. Mensah which marked the beginning of significant changes in the law of the property rights of spouses:

Mensah v. Mensah, [1998-99] SCGLR 350, Supreme Court

In this dispute over a marital home and extension, the Court relying upon the evidence led in the trial, found as a fact that the matrimonial home had been acquired in 1973 and that the extension works were started between 1978 and 1979 when the parties were still married and cohabiting. The husband was able to establish that he had been the one to contribute the large majority of the funds for the property. He had applied to the State Housing Corporation for permission to build the extensions to the house and had also procured someone to make the drawings of the purposed extensions. He had provided a room divider in 1983 and had also paid for the panelling of the ceiling. During the period of the construction of the extension works, the husband had also made contributions to the household expenses. However, the Court nevertheless found that the evidence demonstrated that the intention of the parties in acquiring the main house was for it to be for their joint use. Similarly, the intention of the parties in proceeding with the extension to the property was to provide more space for their joint benefit and that of their children.

This case is significant as it laid down the principle of “equitable sharing of joint property”. The Court specifically found that property jointly acquired during marriage becomes joint property of the parties and such property should be shared equally on divorce. Further, the Court stated that the ordinary incidents of commerce have no application in marital relations between husband and wife who jointly acquired property during marriage. As such, the fact that one party had contributed more, proportionately, than the other, did not necessarily mean that that party was entitled to a larger share of the property. This case is credited as having established the presumption that “equality is equity” when determining issues of proportionality in the division of joint property.

The general principle from Mensah v. Mensah was that “equality is equity” or, in other words, that it is presumed that jointly acquired property will be shared 50/50 unless there is evidence of some

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compelling reason that the proportions should be different. Cases following Mensah v. Mensah served to clarify and, in some instances, qualify this principle. For instance, the 2005 Supreme Court case of Boafo v. Boafo clarified the principle in Mensah v. Mensah and discussed the fact that awards in these types of cases are meant not only to deal with the individual family before the Court but also to address the historical imbalances borne by Ghanaian women in the past:

Boafo v. Boafo, [2005-2006] SCGLR 705, Supreme Court

In this case, the couple had operated their finances jointly during their marriage, but the degree of financial contribution by the wife to the acquisition of the couple’s properties was not clear. Despite this uncertainty, on the issue of distribution of the properties, at trial the Court found that the properties in question had been jointly acquired. The Court then went on to make distribution orders which were not on a half and half (equal) basis. The wife appealed to the Court of Appeal alleging, among other things, that the trial judge failed to distribute the property in accordance with Article 22(3) (b) of the Constitution of the Republic of Ghana (1992).

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, [1998-99] SCGLR 350 and further clarified the position of the Court. The principle of the equitable sharing of joint property would ordinarily entail applying the “equality is equity” principle, unless the equities of the case demand otherwise, such as when one spouse can prove separate proprietorship or agreement or a different proportion of ownership. The question of what is “equitable” 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.

In obiter, the Court also noted that Article 22(3)(b) of the Constitution of the Republic of Ghana (1992) was meant to right the imbalance that women have historically suffered in the distribution of assets jointly acquired during marriage. As such, an equal (half and half) division will often, though not invariably, be a solution to this imbalance.

However, 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

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half and half sharing. 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. The Court will lean towards an equal sharing of the property if an equal division is justifiable in the circumstances.

While the Mensah v. Mensah and Boafo v. Boafo decisions were significant steps forward in addressing economic violence issues against women in Ghana, a review of decisions coming out of the Courts in the years following demonstrate that the assumptions drawn from the evidence by the Courts still seemed to be generally biased towards the interest of the man when there is a dispute over property. For instance, see the 2009 High Court decision in Verdoes v. Verdoes-Kurnchie and the note about the lower Court’s decision in the 2009 Court of Appeal decision in Kwawukume v. Kwawukume:

Verdoes v. Verdoes-Kurnchie, May 11 2009, High Court – Accra, Court File BDMC 11/2008

The husband, a Dutch national, married a Ghanaian woman. They were married for 26 years following which the husband petitioned for divorce, seeking several forms of relief including a declaration that the matrimonial home be settled in his favour, and the “Nsuta” house be settled in favour of the wife. The wife cross-petitioned for several forms of relief, including a declaration that she was entitled to the matrimonial home.

Both the husband and the wife asserted that they had been the one to build the two properties in question (the matrimonial home and the Nsuta house) without the aid of the other. The wife had, as evidence, several receipts in her name for the purchase of building materials, but did not tender any evidence as to the source of the money. The husband asserted that all of the things the wife paid for were bought using his money. The Court felt that it was unlikely that either side’s assertion was completely true. The Court held that the matrimonial home and the other properties acquired during the marriage were likely acquired as a joint effort, stating “how could the wife […] build a Matrimonial home, without any contribution from the expatriate husband earning a substantial monthly income of $5000”. As such, the properties in question were deemed to be held jointly and were divided accordingly.

Kwawukume v. Kwawukume, July 30 2009, Court of Appeal – Accra, Court File H1/173/2009

The wife petitioned for a divorce from her husband of 17 years. The husband then cross-petitioned seeking a declaration that he was a joint owner of the matrimonial home.

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The wife stated that the home in question was not the matrimonial home but was, instead, a home built on land that the wife purchased herself from her mother. She alleged that while the couple lived in the husband’s house, the wife commenced the building of the house in question by herself. She later left her husband’s house because of harassment by her husband, and went to live in the house she had built. The husband, however, later came to live with her there. The husband also claimed that he had contributed to the acquisition of the house by allegedly paying three quarters of the cost of construction of the building. He was unable, however, to prove this assertion during the trial. The lower Court determined that although the wife had built the disputed house entirely from her own resources, there should be an order for the sharing of the property in proportion of two thirds to the wife and one third to the husband. The wife appealed this decision.

The Court of Appeal agreed that where the husband had failed to establish that he had contributed to the cost of the construction of the house, the trial judge had no business finding that there was contribution. Where the Court came to the conclusion that the husband could not establish the basis for his supposed three-quarters contribution to the cost of construction of the house in dispute, there was nothing left for the Court to do but to dismiss his claim. As such, the decision was set aside and the wife was declared the sole and exclusive owner of the property.

There are, however, some refreshing exceptions to this trend. See, for instance, the 2009 High Court decision in Shardow v. Shardow and the Court of Appeal’s helpful clarification to problematic judicial precedents in the 2011 decision in Owusu v. Owusu:

Shardow v. Shardow, July 31 2009, High Court – Accra, Court File BDMC 258/2005

In a petition for divorce, the wife alleged that she had acquired two properties without any contribution from the husband. The husband, however, alleged that he had helped the wife to pay rent on one of the premises before she exercised her option to purchase and that he had paid to erect a fence on the other property. The Court held that the husband’s payment of some of the rent neither made him a tenant nor made him a joint owner of the first property when it was subsequently purchased by the wife. The Court also held that the cost involved in erecting the fence on the second property was insignificant in comparison to the cost of the building, which was paid by the wife. There was no agreement by the parties that the properties would be owned jointly and no evidence that the husband had made any

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substantial contribution to their acquisition. The Court referred to the Constitution as well as the decisions in Achiampong v. Achiampong [1982-83] GLR 1017 in determining that in the circumstances, the husband could not claim any portion of either property.

Owusu v. Owusu, March 17 2011, Court of Appeal – Accra, Court File HI/144/2010

In this case, the Court of Appeal clarified the principle in Anang v. Tagoe, [1989-90] 2 GLR 8. In transactions between a man and his wife, the mere fact that one of them has the document of title on a property in dispute in his or her name does not make that party the sole owner of the property. If there is evidence that the other party has made substantial contributions towards the property the Court of equity will intervene and declare the property as jointly owned. The Appellate Court added, however, that in the absence of evidence of contribution by the other party, it is not necessary for the Court to infer contribution or confer a beneficial interest on that party.

Additionally, the Court noted that when attempting to determine claims to ownership of or interests in property, it is not appropriate for the Court to simply weigh the parties’ respective financial resources and conclude that the party of more substantial means likely acquired the property in question. Rather, the question must be whether, from a particular party’s resources, he or she could have made the acquisition or contribution in issue.

As women’s interests groups continued to lobby for change and voice their dissatisfaction that Parliament still had not fulfilled its duty under the Constitution to enact legislation related to the property rights of spouses, the Mensah (G.) v. Mensah (S.) case was working its way up through the various levels of Court. In 2012, the Supreme Court in its decision on the appeal in Mensah (G.) v. Mensah (S.) expressed its disapproval of Parliament’s failure and then took matters into its own hands – drastically changing the landscape in this area of law again, as discussed in the next section.

The Marriage Ordinance: Gladys Mensah

While getting married under Ghana’s Marriage Ordinance seems to be widely viewed as the way for women to protect themselves in marriage, a marriage under the Ordinance carries with it its own set of unique challenges which Gladys Mensah’s saga illustrates well.

In 2013, mentioning “Gladys Mensah” or “Mensah v. Mensah” to a lawyer is synonymous with referring to the 2012 groundbreaking decision of the Supreme Court of Ghana:

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Mensah (G.) v. Mensah (S.), [2012] 1 SCGLR 391, February 22 2012, Supreme Court – Accra, Court File J4/20/2011

The Court speaking unanimously through Dotse J.S.C. noted that the framers of the Constitution of the Republic of Ghana (1992) envisaged 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. As such, the Court held 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 (such as 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 be reasonably argued that the acquisition of the properties was facilitated by the assistance that the one spouse derived from the other. As such, the Court found that it was both inequitable and unconstitutional to apply the “substantial contribution” principle to such cases such that, upon dissolution of the marriage, one spouse would be denied any share in the marital property because he or she did not make any “substantial contribution” to it.

The Court held that the inability to adequately quantify one spouse’s assistance towards the marital property will not, in itself, bar him or her from an equitable sharing of the matrimonial property. The application and effect of this principle to a particular case will continue to depend on the facts of each case, with a view to achieving equality in the sharing of marital property.

But what is not often in the minds of people when they hear the name “Gladys Mensah” is the incredible length of time, effort, money and, undoubtedly, frustration that were involved in her finally being awarded her rightful share of the marital property acquired by her and her husband during their marriage:

“Woman gets property after 13 years of litigation” (Daily Graphic)

Daily Graphic Published August 23, 2013[http://edition.myjoyonline.com/pages/news/201308/111960.php]

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A middle-aged woman, Mrs Gladys Mensah, who has, for the past 13 years, been fighting through the legal system in pursuit of her legitimately acquired properties has, at long last, got justice.

This followed a landmark Supreme Court judgement which affirmed an earlier decision by the Court of Appeal that the properties acquired jointly with her divorced husband should be shared equally.

The properties include a three-bedroom house at Kasoa, a six-bedroom house at Adenta, a four-bedroom house at Krobo Odumasi and a three-bedroom house on the Spintex Road in Accra.

Others are plots of land at Adenta and Krobo Odumasi, as well as shares in Guidem Company Limited and a shop on the Airport-El Wak road, both in Accra.

The rest are a Nissan Patrol, a Nissan Sunny, a pick-up, an Opel vehicle, a 20-footer container and a current account at the Tudu branch of the SSB Bank.

In a scenario that can be described as “poverty in the midst of plenty”, Mrs Mensah has, since her divorce, lived in a chamber and hall rented premises in Accra.

[….]In arriving at the decision, the Court said the time had come for the highest Court of the land to institutionalise the principle of equality in the sharing of marital property by spouses after divorce.

That, it said, was based on the constitutional provisions on jurisprudence and equality.

According to the Court, Mrs Mensah must not be bruised by the conduct of her ex-husband 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 a marriage relationship, used and dumped at will by their male spouses, must cease,” the Court held.

Facts of the Case

The facts of the case were that Mrs Mensah got married to Mr Stephen

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Mensah under the ordinance in 1987.

[….]

About a decade after the celebration of the union, cracks started appearing in the marriage, with Mrs Mensah accusing her husband of infidelity, which culminated in Mr Mensah moving into their jointly acquired home at Adenta with his illicit lover.

After diligent efforts at reconciliation had failed, Mrs Mensah filed a petition for divorce at the High Court.

Based on the facts and findings, the High Court delivered judgement in favour of Mrs Mensah.

Aggrieved by the decision of the trial High Court, Mr Mensah filed an appeal at the Court of Appeal which, after the trial, unanimously dismissed the case.

It was against the Court of Appeal’s decision that Mr Mensah appealed to the Supreme Court.

According to the facts of this case, Gladys Mensah’s relationship with Stephen Mensah ran into irreconcilable problems in 1997. In 2001 the trial of Mrs. Mensah’s petition for divorce was heard at the High Court. Mrs. Mensah was successful in her petition and judgment was awarded in her favour in 2003. Yet because of the persistent and ultimately unsuccessful appeals made by Stephen Mensah to each level of appellate Court, Mrs. Mensah had no recourse but to continue to defend the appeals over the next 10 years until finally, in the summer of 2013, she was awarded her rightful share of the marital property.

One lawyer interviewed in preparation of this analysis put it succinctly when he described how to him, a trial has nothing to do with the trial judge and everything to do with creating the best possible appeal record for his client. He indicated that all his trial preparation is done with the appeal in mind since lower Court judges so often get the law wrong. While this would seem to be a diligent practice for any competent lawyer practicing in a common law system, it serves to underline the main weakness of the current Court system.

Gladys Mensah managed to find the resources and stamina necessary to see this case through the 13 years it took to get from filing her petition to collecting her property and her sacrifices in that respect will go a long way toward improving the situation for other Ghanaian women. The lower Courts are now forced to consider the principles enunciated by the Supreme Court in Mensah (G.). Mensah (S.) when deciding issues involving the property rights of spouses. But the reality is that the women who are most in need of the protections set out in this Supreme Court decision are not always going to have the financial resources or time necessary to pursue it through the Courts. However, if a couple chooses to have an Ordinance marriage, they cannot, thereafter, choose to go

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the customary route to obtain a divorce. They must proceed through the Courts. And while there are Family Tribunals to help keep Courts more accessible to those who need it, without any clear legislation in place to deal with the property rights of spouses, women are more vulnerable to the risk of receiving a poor judgment from a lower Court and having to appeal to higher levels in order to eventually (hopefully) obtain justice.

The State of Things Following Mensah (G.) v. Mensah (S.)

In order to evaluate how effective the Mensah (G.) decision has been, thus far, in its attempt to accomplish the duty the Supreme Court feels Parliament has failed in, it is necessary to first examine the cases which have followed Mensah (G.) in the Courts.

As of the writing of this analysis, the Mensah (G.) decision had been out for one year and nine months but had only very recently been published. However, because this Supreme Court case takes such a bold and new approach to an issue which is at the centre of a large portion of family law cases, it would seem that the case has become well-known and referred to throughout the judiciary and the legal profession at large even before it was officially published. An informal survey indicates that as of mid to late 2013, Ghanaian legal counsel are generally conscious that Mensah (G.) is the new authoritative precedent on the issue of spousal property rights. The case law seems to generally reflect this observation as it appears as though the principles laid down in Mensah (G.) are being referred to and acknowledged as the new default in cases where the “old substantial contribution” principle would have acted to stop a woman from having a share in the property in earlier cases. See, for instance, the 2012 decision in Mensah (E.) v. Mensah (V.) below, and the 2013 decision in Dadjawah v. Dadjawah.6

Mensah (E.) v. Mensah (V.), June 11 2012, High Court – Accra, Court File BDMC 195/2011

The parties were married customarily in 1967 and converted the marriage to an Ordinance marriage in 1996. The wife asserted that she was forced to quit the marital home when the husband told her that her rent had expired. The husband, however, stated that the wife abandoned the home when he returned to it after an absence of 11 years.

The wife suffered a stroke during the course of the marriage which left her partially incapacitated by paralysis. Because of her medical condition, the Court ordered that the husband pay her GH₵ 5,000.00 as financial compensation for her services during the subsistence of the marriage.

With regard to the marital property, the husband asserted that while the land on which the matrimonial house was built was solely acquired by the

6 Dadjawah v. Dadjawah, June 21 2013, High Court – Accra, Court File BDMC 317/2011, summary at page 28.

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wife, he had contributed substantially towards the erection of the building itself. However, in his prayer for relief, the husband asked that the wife be “in possession” of the matrimonial home. The Court was not clear as to what the husband meant here, but chose to interpret it as saying that he was foregoing his alleged contributions to the construction of this property and was agreeable to it being settled entirely in favour of the wife.

The husband also owned a three-storey building which he started constructing during the subsistence of the marriage. While the Court did not allude to any particular contribution to this property by the wife (except that she used to accompany the husband to the building site), the Court deemed this property to be joint property and ordered that the wife be given the second floor of the property for her own use, since the parties were already working under this arrangement prior to the trial.

The inevitable reality in countries that operate under common law is that parties who feel disadvantaged by a new precedent in authoritative case law will try every angle to find exceptions and loopholes in the new rules of the game. In fact, the Supreme Court itself handed down a decision that made exceptions to its Mensah (G.) principle only eight months after Mensah (G.) was decided. Like Mensah (G.), the 2012 decision in Quartson v. Quartson criticized Parliament for its “regrettable [….] inaction” and “failure to awaken from its slumber” in regard to its responsibility for passing a law regulating the sharing of joint property. The Court then went on to hold that, according to the principle in Mensah (G.), Mrs. Quartson’s provision of the services of a “dutiful wife” in the home entitled her to a share in the matrimonial property, despite the fact that it was the husband who had contributed all of the finances that went into the acquisition of the marital property. However, the Court went on to point out that the Mensah (G.) decision does not grant unwarranted access to property to spouses who “clearly” should not have it. As such, the Court was able to hold that Mrs. Quartson’s contribution, while enough to earn her a share in the property, was not enough to merit half-and-half sharing. The “equality is equity” principle was explicitly waived because it was decided that the equities of this particular case did not warrant an equal share for Mrs. Quartson:

Quartson v. Quartson, October 31 2012, Supreme Court – Accra, Court File J4/8/ 2012

In this case, the Supreme Court took note of the fact that because Parliament has not, as of yet, enacted legislation to regulate the distribution of jointly acquired property, as mandated by the Constitution of the Republic of Ghana (1992), the Courts have over the years carved out principles to deal with the division of property upon dissolution of a marriage. The Court also noted that the framers of the Constitution evidently intended that there should be no discrimination in the sharing of joint property, particularly discrimination against women. The Court then

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stated that it would not be in accordance with common sense for the Court to wait for Parliament to “awaken from its slumber” and pass a law regulating the sharing of joint property.

In times past, the principle was that where a spouse makes a substantial financial contribution to the acquisition of property pursuant to an agreement or inferred intention by the couple that the property acquired should be owned jointly, the Court will hold the property to be jointly owned and it would be shared proportionately. Later cases clarified that the principle known as “equality is equity” was to be preferred when determining the proportions in which joint property would be shared by the spouses, unless the circumstances of the case would demand otherwise.

After reviewing the evolution of these principles from the older cases on the division of marital property, the Court re-affirmed the recent decision of Mensah (G.) v. Mensah (S.), February 22 2012, namely, 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. It can be reasonably argued that the acquisition of the properties were facilitated by the assistance that the one spouse derived from the other. As such, it is both inequitable and unconstitutional to deny one spouse a share in the marital property because he or she did not make any “substantial contribution” to it. The inability to adequately quantify one spouse’s assistance towards the marital property will not, in itself, bar him or her from an equitable sharing of the matrimonial property.

The Court went on to point out, however, that the Mensah (G.) decision was not to be taken as a “blanket” ruling granting unwarranted access to property to spouses who clearly should not be so entitled. The Mensah (G.) principle was to be applied on a case by case basis such that the facts of each case would determine the extent to which the judgment would apply. As such, the Court was able to hold that Mrs. Quartson’s contribution, while enough to merit a share in the property, did not call for a half-and-half sharing. The “equality is equity” principle was explicitly waived because it was deemed that the equities of this particular case clearly called for unequal sharing.

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The Quartson decision has, unfortunately, taken the edge off of Mensah (G.) and once again muddied the waters of how exactly property is to be shared between spouses. One wonders whether the outcome in Quartson would have been different had the Supreme Court Judges involved in Quartson been the same as those who decided Mensah (G.). Unfortunately, none of the Judges who heard and decided the Mensah (G.) case were involved in the subsequent Quartson v. Quartson decision.

Given the door opened by the Quartson case, it is no wonder that counsel representing parties who are opposed to the idea of equal sharing with their spouses have focused aggressively on the language used in the Mensah (G.) decision and are arguing successfully that there is a residual discretion with the Court to order a non-equal distribution of marital property “in appropriate cases”. See, for instance, the 2013 cases of Dadjawah v. Dadjawah and Tweneboah v. Tweneboah:

Dadjawah v. Dadjawah, June 21 2013, High Court – Accra, Court File BDMC 317/2011

The parties were married under the Ordinance in 1985, previous to which they had been married customarily. The wife petitioned for divorce in 2011. The husband had abandoned the home in 2000 and the couple had lived separately since that time. The wife alleged that because the husband had abandoned the house and had not sent any money to the family after that time, she began renting out rooms in the matrimonial home to maintain herself and the children (both of whom were adults by the time of the petition for divorce).

The wife tendered evidence of her contribution towards the construction of the matrimonial home which indicated that she had only contributed what the Court considered to be a "very insignificant if not negligible" amount.

The Court found that prior to the marriage between the parties, the husband had acquired an undeveloped piece of land that comprised three plots. After the marriage, the husband along with an "insignificant" contribution from the wife, built the matrimonial home on a portion of that land and intended only to use that portion as matrimonial property. As such, the undeveloped portion of the land remained the sole property and self-acquired land belonging to the husband. However, the Court held that the matrimonial home was the joint property of the parties for the sole reason that it was constructed or at least completed while the parties lived together as a married couple. The Court then went on to consider the Supreme Court decision in Mensah (G.) v. Mensah (S.), [2012] 1 SCGLR 391, and noted that it left the discretion with the High Court to make orders for the equitable distribution of marital property acquired during the subsistence of the marriage "in appropriate cases". As such, the Court

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ordered that the husband was to have, exclusively, the main house on the property, while the wife was to have the self-contained outhouse on the property. The husband was to pay to erect a dividing wall between the two.

In deciding the issue of whether to make a financial award to the wife, the Court stated that the fact that the parties had been separated from each other for the past 13 years would "whittle down" the financial award to be made to the wife. The Court went on to award the wife GH₵ 6,000.00 to enable her to resettle.

Tweneboah v. Tweneboah, June 24 2013, High Court – Accra, Court File BDMC 82/2011

The parties were married under the Marriage Ordinance in 1998. They constructed a two-bedroom boys’ quarters on land acquired by their joint efforts during the course of the marriage.

The wife, who ran a bakery, built a one room structure on the couple’s property to house the girls employed at the bakery. The husband took issue with the fact that this structure was started on the property without his permission and became violent with the wife. The wife’s uncle got the police involved after the incident. The marriage further deteriorated when the wife brought the husband before the Family Tribunal for payment of maintenance despite the fact that they were still living together. The husband, after consulting with other family members, decided to petition for divorce.

The Court noted that it was “unfortunate” that at trial, after the Judge provided the parties with several opportunities to settle their differences, the wife continued to refuse to reconcile and restore the marriage despite the remorse expressed by the husband.

The couple had jointly acquired a double-plot of land upon which they had erected the matrimonial home and a garage. The wife had also built the one-room structure for her bakery girls.

The Court considered the decision in Mensah (G.) v. Mensah (S.), [2012] 1 SCGLR 391 and noted that it, and the previous cases of Mensah v. Mensah, [1998-99] SCGLR 350, and Boafo v. Boafo, [2005-06] SCGLR 705 mandated equal sharing of joint property in all circumstances.

In deciding how to share the property, the Court noted that while it may have been the husband who funded the purchase of the land

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itself, the parties jointly put up the marital home while the wife single-handedly put up the one room structure. The Court noted that the wife’s bakery business did not provide her with enough to be able to build a new structure, while the husband was in a better financial position to construct his own house on the second plot. Accordingly, the Court ordered that the husband take the second plot with the one-room structure on it and the wife take the first plot with the matrimonial home on it.

When considering the wife’s petition for a financial award to compensate her for services rendered during the marriage, the Court noted that it would be fair and equitable for the husband to pay a lump sum to the wife to allow her a new start in life. As such, he was ordered to pay GH₵ 3,600.00 in that regard.

The question of whether or not the Mensah (G.) principle means that there must still be a finding that there was “substantial contribution” from a spouse seeking to share in the marital property is not entirely clear from the wording of the decision. The above cases of Dadjawah and Tweneboah seem to insinuate that substantial contribution is no longer needed, but cases like Esseku v. Inkoom et al7 seem to indicate that substantial contribution must still be proved by a spouse seeking to share in marital property. Whether or not the threshold test of “substantial contribution” has truly survived Mensah (G.), what is important is that both Mensah (G.) and Quartson make it clear that the typical homemaking activities of a wife are now considered to be “substantial contribution” to the acquisition of marital property. That alone is a huge step towards equality for women.

Customary Marriage Dissolution

Dissolution of Customary Marriage as handled by Traditional Leaders

As discussed in an earlier section of this analysis, the Courts are not the only bodies that have jurisdiction over marriage and divorce in Ghana. While marriages that are registered under the Marriage Ordinance (whether initially or through conversion to an Ordinance marriage at any point in time after the customary marriage) must be dissolved through the Ordinance, customary marriages and Muslim marriages can be dissolved using customary law by the traditional leaders.

In preparing this analysis on the state of property sharing between spouses, ten interviews were conducted in 2013 with various traditional leaders and community members in the Volta, Eastern and Greater Accra Regions of Ghana. Interviewees provided mostly anecdotal information about how property issues are handled in their respective communities upon the termination of a marriage (either by divorce or by the death of the husband).

7 Esseku v. Inkoom et al, March 14 2013, Court of Appeal -- Accra, Court File H1/233/2008, summary at page 39.

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The information obtained through the interviews seems to indicate generally that the way in which property sharing is dealt with by the traditional community as between customarily married spouses is a mirror of how the matter was being dealt with by the Courts back in 1959, as articulated in the Quartey v. Martey8decision.

The large majority of interviewees expressed the situation in this way (with some minor variations): The responsibility of the man is to provide for his family, the responsibility of the woman is to support the work of the man by taking care of the household and the children. While it is the woman’s responsibility to take care of the children, the children are, ultimately, the responsibility of the man. As such, since the property being acquired by the family throughout the marriage is being acquired for the ultimate benefit of the children of the marriage, there is no reason for the woman to expect to obtain any right to the property upon the termination of the marriage. It should remain with the man until the children can inherit it. If the children are going with the woman, then of course the man should continue to provide the woman with money for their school fees, medical expenses, and, in some cases only, a home in which to raise the children. In any event, the woman is not entitled to any of the marital property, it is being held and developed for the enjoyment of the children.

All of the interviewees indicated that there is a great deal of flexibility and subjectivity to the decisions made by the traditional leaders when it comes to the property rights of spouses. There are no set rules or precedents and certainly no reference is made to the rights of the parties under the Constitution. Rather, every situation is weighed on its own merits and will, sometimes, take into consideration whether either party has a good or bad relationship with the traditional leader in question and also whether the woman, specifically, is thought to be of good or bad character. Essentially, the idea conveyed was that if the woman brought the divorce on herself by her poor or disrespectful behaviour, there was a far lesser chance she would be awarded any particular share in the marital property. However, if the woman was of good reputation and was not seen as having brought the divorce on herself through her behaviour, then there may be cause to compensate her for her contribution to the marriage.

Where property is shared between spouses by a traditional leader, the ratio of what the man would keep versus what the woman may receive varied considerably between the interviewees, as demonstrated by the following table of responses. It was often pointed out that while the woman generally has no right to receive a share in the marital property, there was always the possibility that the man may choose to give her something in his own discretion:

Table of Interview Responses9

Interviewee How Property is SharedLocal Chief of Hevi village (Volta Region)

If the man insists on a divorce, he must share his personal belongings equally with his children (where it is not a polygamous

8 Quartey v. Martey, [1959] GLR 377, High Court Accra, see summary at page 13.9 All interviews conducted between September and October 2013.

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marriage). All of the couple’s property is for the children, as such, none should go to the wife.

Paramount Chief of the Kpalime Traditional Area, South Dayi District (Volta Region)

If the woman was with the man before the property was put up, the woman will have a stake in the property. We would sell the property and divide the proceeds equally between the husband and wife if they do not have any children. If there are any children, though, all of the proceeds of the sale would go to the children.

Local Chief of Kojo Ashon, Amasaman(Greater Accra Region)

The property owned by the couple is for the children. The woman will not inherit it in order to care for them. A lot depends on how lovely the woman’s character is.

Female Traditional Leader, member of the Stool Council, Amasaman(Greater Accra Region)

If the man insists on sending the woman away, we look at his cash flow to determine the appropriate amount of “sending away” money to give to the wife upon divorce. Property would be divided between the couple so that 50% plus 1 goes to the man, the rest to the woman.

If the woman is insisting on the divorce, she gets nothing.

Focus group with local Chiefs, Queen Mothers and other members of the stool councils in Amasaman(Greater Accra Region)

If and only if it is very publicly clear that the wife contributed financially to the acquisition of the marital property, then she can appeal to the traditional leaders for a fair division of the property (this would be in a case such as if the man were incapacitated for some reason and it clearly and publicly fell on the woman to build up the properties on behalf of the family).

However, if it is the wife insisting on the divorce, there is no division of property in any event.

Focus group with the Paramount Chief along with a group of local Chiefs and Queen Mothers from Suhum/Korfoidua(Eastern Region)

Both the husband and the wife will be asked to provide financial disclosure. If there are more than one wife, the value of the properties will be divided into the number of wives plus the husband (i.e. if there are 3 wives, the value of the property would be divided into 4). The wife who is leaving the marriage will be given one of the shares, the rest stays with the husband. If

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there is only one wife, all of the marital property is being built up for the benefit of the children so the man will keep all of the property so that the children will inherit it upon his death.

However, if the divorce is as a result of the misbehaviour of the wife or is otherwise at the insistence of the wife, she is not entitled to anything. If she gets anything, it is the discretion of the husband to offer it to her.

Female Chief of Adumahdum Awisa (Eastern Region)

In the rural areas, the wife is not just a housewife, she is also a farmer, so she is entitled to get something if the marriage ends. Its never a 50/50 sharing. The best she can expect to receive is one third of the marital property.

However, if the woman is of poor character, this will certainly affect what she receives. What she receives will also be affected by whether or not there are children of the marriage.

Meeting with a female community member, member of the Manko We Family (Greater Accra Region)

Whether or not the family heads decide that the woman should get a share in the property depends entirely on the behaviour of the woman. If the family heads like her, they will help her. If she is seen as disrespectful, they won’t.

Meeting with a female community member, member of the Okaileytse We Family(Greater Accra Region)

If it is just an “engagement” (i.e. customary marriage that has not been converted to an Ordinance marriage) then the wife will get nothing upon divorce.

If the couple owns houses, the wife may be given one to raise the children in. It depends on the circumstances.

The wife’s character makes no difference.

The opinions expressed by the interviewees are similar to those expressed by experts in customary marriages in other parts of the Africa as well. For instance, in the Zambian case of Mwiya v. Mwiya, [1977] Zambia Law Reports 113, 114, 118-19 (High Court, May 12, 1977), the Court

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heard from experts on the Lozi people who opined that there is no Lozi custom which compels a husband to share property with his wife. The experts agreed that if the husband so wished he may share property but he is not bound by custom to do so. Similarly, in a study of customary property rights in Zimbabwe, it was observed that under customary law a woman is, on divorce, entitled to her “mavoko” property which usually consists of kitchen utensils and the cow if she had a married daughter. Most of the rural women did not question this entitlement. They saw it as their natural lot and were grateful if they were given anything at all and unquestioning if they were not.

Dissolution of Customary Marriage as handled by the Courts

As stated above, the Courts and Traditional Leaders seemed to be handling spousal property rights along the same lines as each other as of 1959. A review of the case law indicates that by 1974 the treatment of customary marriages by the Courts had begun to evolve in the same way the treatment of Ordinance marriage had begun to change. However, it seems that the Courts have had some difficulty in determining the Court’s role in dealing with customary marriages and in knowing how far the Court’s jurisdiction reaches on customary marriage issues, which has sometimes resulted in conflicting or inconsistent decisions.

In the case of Dwumah v. Asare, below, the High Court decided that the moment of separation is the moment a customary marriage ends even if none of the formalities of the dissolution of a customary marriage had taken place. It would seem that the Court chose this position so that it could avoid the seeming inequality of granting the wife a share in the husband’s farm acquired after the date of separation but before the Court’s official dissolution of the marriage. However, in the decision in Esseku v. Inkoom et al10, the Court held that parties who marry under customary law must dissolve their marriage according to the same custom in which they entered it, failing which the marriage would continue. In that case the Court held that an attempt to dissolve an Akan customary marriage using traditional Muslim divorce proceedings was void as the marriage must be dissolved according to Akan tradition. Contrast Dwumah and Esseku to the decision in Adzenya v. Adzenya, below, where the High Court and Court of Appeal held that a purported customary dissolution of a customary marriage was void because it had failed to include the woman’s input or participation during the deliberations between the elders from both families:

Dwumah v. Asare, July 19 2013, High Court – Accra, Court File BDMC 198/2012

The parties were married customarily sometime between 1982 and 1984. The wife filed for divorce in 2012. The parties each asserted that he/she alone was entitled to the matrimonial home. The husband claimed that he alone bought the land the house was on and put it in the names of the children. The wife, however, claimed that the she lent the husband GH₵ 570.00 when he was having trouble finding work and that her husband used that plus only GH₵ 30.00 of his own money to purchase, in the name of the children, the land the matrimonial house is located on. She further alleged that while it was the husband who built the two bedroom

10 Esseku v. Inkoom et al, March 14 2013, Court of Appeal -- Accra, Court File H1/233/2008, see summary at page 39.

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house on the land, she was the one to expand the porch and build another room on the land which the parties used as a kitchen and store. The wife also asserted that the husband later sold part of the land without her permission.

The Court noted the odd nature of the situation in that the disputed marital property was acquired in the names of the children rather than in the names of either of the parties. An additional oddity was the fact that both the husband and wife still lived in the home at the time of trial.

While the Court did not find the wife’s evidence of substantial contribution to the acquisition of the marital home credible given the evidence before it, it noted that she still had an interest in it given that it was clearly acquired during the subsistence of the marriage. Because the house was in the names of the three children, the Court held that the matrimonial home was being acquired for the beneficial interest of the parties for the duration of their life with a resulting trust for the children.

As such, the property could not be settled on either party and it was held that the parties were to continue to occupy the house jointly (each party occupying a separate bedroom, the wife to also occupy the kitchen, the husband to occupy the hall, and both parties to share the toilet and bath facilities). The Court noted that both parties were at liberty to quit the property and find other uses for their respective interest in it if this arrangement was not suitable.

The Court also dealt with the matter of the farm properties in the Western Region. The Court noted that the wife failed to lead evidence as to how this land was acquired and what crops she herself had helped to plant on it. The husband, however, alleged that he had acquired the farm after the couple had separated and described the crops he cultivated there. In this case, the Court held that in a customary marriage, separation signals the end of marriage whether or not the parents or family of either party accepted the return of the drinks which the other party brings to dissolve the marriage. As such, the Court held that it was likely that the husband had started his farming business for himself and not for the wife he was separated from. The Court then considered the decision of Mensah v. Mensah [2012] 1 SCGLR 391 and concluded that the qualification that marital property should be shared in equal proportions in appropriate cases indicated that there could be exceptions to this general rule and that this case should fall under such an exception. One of the parties had shown a clear intention of acquiring a personal property during the period of separation in the marriage, an endeavour in which the other party did not participate

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at all. As such, that property was held to not form part of the marital property.

The Court further noted that according to Mensah v. Mensah [2012] 1 SCGLR 391, parties are entitled to equal shares in marital property that was in existence at the time of the divorce and not what was not in existence at the institution of the divorce proceedings.

In considering whether the wife was entitled to an award of her claim of GH₵ 10,000 in financial provision, the Court noted that it was "trite" knowledge that the order for the payment of a lump sum as financial provision is alternative to property settlement under section 20(1) of the Matrimonial Causes Act, Act 367. Further, the Court noted that it had already shared the marital property equally between the parties despite the fact that there was "some doubt" surrounding the contribution to it by the wife. The Court then stated that the serious antagonism and hostilities displayed between the parties during the trial made the Court unable to award any lump sum payment to the wife since any such award would have the tendency of heightening the already bitter relationship existing between them. The husband was, however, ordered to pay GH₵ 100.00 monthly and the school fees specifically with regard to the youngest child. The Court also ordered that the child was to respect her father and perform domestic chores for him such as fetching water for him, washing his clothes and cooking utensils in return for his fatherly responsibilities. Finally, the Court "formally" dissolved the customary marriage contracted between the parties.

Adzenya v. Adzenya, November 25 2010, Court of Appeal – Accra, Court File H1/43/08

In this case the question to be determined by the Court was whether the customary marriage between the husband and wife had been dissolved by customary law.

There was a meeting for the dissolution of the marriage of the parties which was attended by the elders from both sides. There were two meetings which the wife refused to attend even though she had been notified. The meeting went ahead and purported to dissolve the marriage. What was given to the wife as a send-off was unclear (the husband said she was given 500,000 cedis whereas the wife’s father said she was not given anything because she was not present).

Although she did not attend the meeting, the wife, through her lawyer, had written to the husband and the heads of both families indicating that she was prepared not to stand in the way of the divorce but that she

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wanted 250 million cedis financial provision and a two-bedroom house valued at 60 million cedis. It appeared that the family heads may not have received this letter, but the husband admitted having received it. Nevertheless, the letter was not considered at the meeting.

Despite the fact that the meeting purported to dissolve the marriage, at trial, it was determined that the husband and wife were still married. The Court of Appeal agreed with this finding, noting that those present at the meeting had failed to consider the views of the wife which she had attempted to communicate to them. Such a failure to consider these demands of the wife was held as fatal to the purported dissolution the gathering sought to have concluded. As such, the customary marriage was still subsisting between the parties. The implication of this decision was that the husband could not obtain an order ejecting the wife from the marital home due to the fact that the parties were still married and the wife had a right to remain in the marital home.

One sentiment that arose from time to time during the interviews with traditional leaders and community members was the vague inference that Ordinance marriage was on a different tier quality-wise than customary marriage and that, as a result, it is natural that a marriage that is only customary would not provide the same level of property rights to women that Ordinance marriage does. A review of the case law, however, indicates that the same trend does not seem to appear in the Courts, which seem to have attempted to treat both customary and Ordinance marriages as being on the same level. See, for instance, the 2006 decision in Abubakari v. Abubakari and the 2008 decision in Sackey v. Boakye-Mensah:

Abubakari v. Abubakari, May 18 2006, Court of Appeal – Accra, Court File H1/152/2005, Reported by the Judicial Training Institute

In a case focussing on the issue of spousal and child support to be paid upon the dissolution of a customary marriage, Justice Dotse for the Court of Appeal stated that “the Law is fairly well settled that it is the responsibility of both parents to cater for their infant children”.

He also reaffirmed the principle that awards for daily maintenance for a spouse and children upon dissolution of a marriage (including a customary marriage) will be calculated based on what makes “sense” and is “sound and in consonance with present day economic realities”. Specifically with respect to child support amounts, Justice Dotse noted that the Court must calculate an amount that ensures that the interests and welfare of the children are adequately catered to because this is the only way effect and meaning can be given to the relevant sections of the Children’s Act, 1998 Act 560.

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Sackey v. Boakye-Mensah, March 13 2008, Court of Appeal – Accra, Court File HI/218/07, Reported by the Judicial Training Institute

The parties were married under customary law in 1978. The marriage broke down after 7 years.

In this case, the Court of Appeal made several authoritative statements concerning the division of property between spouses.

Firstly, the Court re-stated 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:

(i) That there was an agreement between the couple that the property in dispute, belonged to both of them or to them jointly.(ii) That they demonstrated 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.(iii) That both parties 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 Court went on to note that the mere mention by a party that a spouse did “contribute”, without more, is not enough. He or she must prove the claim of contribution with satisfactory evidence, though not on a mathematical or commercial basis. The evidence must clearly point to joint ownership.

John Sarbah in his text, Fanti Customary Law, once stated that “under customary law whatever a wife helps her husband to acquire is the sole property of the husband”. The Court of Appeal reiterated the decision in Boafo v. Boafo [2005-2006] SCGLR 705 where it was noted that this statement of the law had outlived its purpose. Specifically, it is no longer applicable since the determination of joint ownership of spouses does not depend on the form of marriage entered into by the spouses.

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The Court further noted that customary law does not recognize concubinage. A concubine cannot therefore claim for a share in his or her boyfriend or girlfriend’s property just because of services rendered to the boyfriend or girl friend during concubinage. The Court went so far as to say that customary law frowns on and gives no recognition to concubinage. In this particular case, because work the wife did with the husband (in regard to the purchase and export of African fauna to contribute to the construction of the disputed house) took place before she was married to the husband (i.e. during their period of concubinage), this work did not meet the requisite test for joint ownership of marital property.

Overall, it is encouraging to see that the Courts have attempted to provide equal protections to parties who are married under either customary law or through the Ordinance. However, in reality this protection does not amount to much in a legal environment where the majority of parties cannot and do not bring their marital dissolution to Court or who are faced with an adversary who is bent on setting up every obstacle available to avoid sharing the marital property.

Muslim Marriage Dissolution

The Marriage Act 1884-1985 regulates all marriages in Ghana. In 2006, Ghana’s Attorney-General consolidated all of Ghana’s marriage laws but for some reason, while the Marriage Act defines three distinct types of marriages (Ordinance marriage, customary marriage and Mohammadan or Muslim marriage), for some reason the government has only facilitated the registration of Ordinance and customary marriages, forcing Muslims to either not register their marriages at all (leaving Muslim women especially vulnerable because they are unable to avail themselves of the protections that come with a registered marriage) or register their marriage as a customary or Ordinance marriage, which is considered by some to be an insult and violation of the Muslim faith. Muslim marriages which are not registered in some way under the Marriage Act are considered invalid at law, yet the Government has consistently and inexplicably failed to provide the necessary tools to allow Muslims to validate their marriages through registration.

An example of the effects of the failure of the Government to make it possible for Muslims to register their marriages under the Marriage Act can be seen in the 2013 decision of Esseku v. Inkoom et al:

Esseku v. Inkoom et al, March 14 2013, Court of Appeal -- Accra, Court File H1/233/2008

The wife was married to the husband for over 30 years. The marriage was originally contracted under Akan customary law but was subsequently blessed at a Mosque. The husband claimed he had divorced the wife in

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1995 according to Muslim tradition and custom. This marriage had produced 5 children. The husband had bought a one-bedroom house which the wife upgraded to a three-bedroom house in 1998. The wife occupied the house with the husband and their five children until 2003 when the husband sold the house to a third party. That third party entered the house in 2003 and forcibly evicted the wife and children from the premises. Consequently, the wife initiated an action against the husband and the third party for a declaration of title to the disputed house, an order restraining the husband from disposing of the property, an order setting aside the purported sale of the property and damages for trespass.

At trial the Court found that the marriage between the husband and wife had not been dissolved, that the disputed house was the joint property of the husband and wife and that the purported sale of the house to the third party was a nullity. The husband and third party appealed the decision.

The husband claimed that he had lodged a complaint against the wife before the Ahmadiyya Marriage Committee at Tema. According to him, the Committee investigated the marriage and, finding the complaint to be substantiated, dissolved the marriage in 1995 in a traditional Muslim fashion.

The wife, conversely, claimed that the marriage was not dissolved and that she had lived together with the husband and children in the disputed house until 2003 when the husband left unceremoniously.

The Court noted that Akan customary marriage is a marriage between the family of the man and the family of the woman. When it is dissolved, both families meet to go into the matter to promote settlement and if settlement fails the marriage is dissolved in accordance with Akan/Fante custom. Both the husband and wife were Fante. Accordingly, the Court of Appeal upheld the trial Court’s decision that the evidence indicated that the customary marriage between the parties had not been dissolved and the parties were still married. Parties who marry under customary law must dissolve it according to the same custom or else the marriage will continue. Conversely, when any form of marriage is contracted under the Marriage Ordinance, the marriage may be dissolved in accordance with the law regulating that particular marriage.

The Court then went on to consider section 27 of the Marriage Act 1884-1985 (part 2) (the section dealing with the marriage of Mohammedans) where it indicates that a Muslim marriage is not valid unless registered in accordance with the Act. Since there was no evidence that the parties had registered their marriage in accordance with section 27 of the Marriage Act, the Muslim marriage celebrated at the

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Mosque was invalid according to law. As such, the purported Muslim divorce issued by the Ahmadiyya Committee was ineffectual since there was no legal Muslim marriage to dissolve in accordance with Muslim tradition. There was only the customary Akan marriage between the parties, which the parties had not dissolved according to Akan custom. As such, the Court of Appeal upheld the trial Court’s decision that the parties were still married.

With regard to the disputed house, both the husband and the wife asserted that they had been the one, respectively, to pay the purchase price of the house. However, the wife had no evidence to support her assertion and did not cross-examine the husband on the issue. As such, the Court found that the husband had paid the purchase price. This did not, however, change the fact that the wife had an interest in the property, it being their matrimonial home and also having been acquired during the period of the marriage. The Court noted that the wife maintained the husband and children when he had been laid off by his employees, which was substantial contribution on her part, earning her a half-share in the matrimonial home. The wife’s addition of the two bedrooms to a one-bedroom house was also a substantial contribution.

The Court took note of the 2012 decision in Mensah v. Mensah, Suit No. J4/20/2011, where it was held that where a spouse has contributed substantially to the acquisition of the matrimonial home, the parties are entitled to equal shares of the property in accordance with the true intent of Article 22(3) of the 1992 Constitution of the Republic of Ghana. Further, having found that the husband and wife had equal shares in the matrimonial home, the Court of Appeal upheld the trial Court’s finding that the husband did not have the unilateral right to sell the matrimonial home. The Court of Appeal also held that the third party’s purchase of the house was not bona fide due to his lack of diligence in failing to ask basic questions about the property before purchasing it.

In Mrs. Esseku’s case, above, it is fortunate that her marriage took place according to customary law since if the couple had only been married according to Muslim tradition, the Courts may have decided to treat the relationship on a par with concubinage11 since Muslim marriages are invalid at law. If that had been the case, Mrs. Esseku would not have been entitled to any protection from either the Courts or at customary law.

A female chief interviewee in the Adumahdum Awisa area who is also a leader in her Muslim community confirmed that since Muslim marriage does not “exist” under current Ghanaian law (since, practically speaking, it is impossible to register a Muslim marriage and all unregistered

11 See the section on “Consensual Unions” at page 43. 41

Muslim marriages are void by default), all Muslim marriage and divorce issues in Ghana are currently under the control of the Imams in the Muslim communities. While some Muslims choose to register their marriages under CAP 127 (registering them as customary marriages), those people are then sometimes deemed by the rest of the Muslim community as having rejected their Muslim identity as a result.

The interviewee went on to explain that the Imams in the communities handle marriage and divorce issues amongst Muslims according to Islam’s traditions and precepts. In a Muslim marriage, marital property will only be divided between spouses in special circumstances, such as if the husband is terminally ill or incapacitated. In that case, the man will be entitled to two thirds of the property and the woman would have one third. This is because in Muslim communities the children normally (though not always) remain with the father and a man’s sons are entitled to receive two thirds of a man’s property when he dies. As a general rule, marital property is not divided. Instead, the woman who is leaving the marriage through divorce will be sent off with some money, the amount of which can be negotiated somewhat.

A review of the available case law did not reveal many decisions touching on property issues from a Muslim context. One decision which was reviewed was the 2007 decision in Adamu v. Adams which indicated that at least in the particular Muslim community involved in that dispute there was a clear bias in favour of the man’s interests over the woman’s. The case involved a property dispute between siblings where the group of Muslim elders consulted by the sister found that the brother was the owner of the property in question despite the fact that the sister had documentary evidence of her ownership of the property. Unfortunately, the lower Court was not any better at weighing the evidence and also decided in the brother’s favour. It was not until the sister appealed the decision to the Court of Appeal that it was noted that the trial Court (and also, by implication, the group of Muslim elders) had erroneously accepted the unreliable, contradictory and inconsistent evidence of the brother’s witnesses over the “cogent and unshaken” documentary evidence of the sister:

Adamu v. Adams, June 18 2007, Court of Appeal – Accra, Court File H1/360/05

The Plaintiff was the sister of the Defendant. The Plaintiff, a Muslim woman, contended that she had purchased a house in 1983 and was given a receipt of purchase along with a Statutory Declaration from the owner, who was deceased by the time of trial. The Plaintiff alleged that she then entrusted the house into the care of her brother, the Defendant, including giving him the responsibility of collecting rents from the tenants. She also put two of her sons into the house and then left for Koforidua to join her husband. The Plaintiff had difficulty collecting the rents from the Defendant and brought him before the Rent Office, at which time the Defendant asserted that he owned the house. He alleged that he had purchased the house and had only invited the Plaintiff to witness the purchase.

Unsuccessful at the Rent Office, the Plaintiff took the matter to

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Muslim Elders for settlement but the matter was resolved in favour of the Defendant. She then initiated an action against the Defendant in Court but was again unsuccessful before the High Court. The Court preferred the evidence of the Defendant’s witnesses over the documentary evidence of the Plaintiff and took a negative view of the fact that the Plaintiff produced no witnesses to support her evidence, stating, for instance, that “in Muslim marriage the Husband plays a bigger role in the affairs of his wife. In this case the Plaintiff’s husband was not heard of”. The Court also criticized the Plaintiff for not calling as witness the person who she alleged sold her the house in question – despite the fact that the Plaintiff had advised the Court that said witness was dead. The Plaintiff appealed the decision.

The Court of Appeal held that the High Court’s decision was based on clear errors of fact. It also noted that the trial judge’s comments about the husband of the Plaintiff not being heard from during the trial was “unfortunate and regrettable” since there was no evidence that the husband of the Plaintiff had played any role whatsoever in the sale transaction of the house in dispute. Further, none of the parties pleaded or adduced evidence as to the role of the husband in Muslim marriage. The Court of Appeal then went on to reverse the decision of the trial Court and found that the totality of the evidence favoured the Plaintiff’s position. The Court of Appeal further found that the trial Court had erroneously accepted the unreliable contradictory and inconsistent evidence of the Defendant’s witnesses over the “cogent and unshaken” documentary evidence of the Plaintiff.

The cases and interview responses indicate that the situation in the Muslim community is generally as problematic for women as in other traditional communities under customary law.

“Consensual Unions”/ “Concubinage”

While the Courts seem to have done better than traditional leaders at treating customary and Ordinance marriages as being of equal status, a review of the case law and the anecdotal information available indicates that “consensual unions” (i.e. the consensual relationship of a man and a woman without the couple having undergone any recognized form of marriage rite – sometimes known as a “concubinage”, “common law marriage” or “mpena aware” in the Akan language) are neither legally nor traditionally considered to be worthy of the kinds of protections available to married couples when it comes to property acquired during the union.

Researchers have noted that cohabitation without marriage has become increasingly frequent in African societies.12 And, unfortunately, this trend has a tendency to particularly negatively impact

12 For discussion of these issues and research related to consensual unions, see: 43

women, who generally end up with custody of the children when consensual unions end – possibly without any right to maintenance and almost certainly without a right to a share in the property acquired by the couple during the relationship.

Some decision makers seem to treat consensual unions as a sign of the moral decline in the country, as illustrated by the statement of one woman who recounted that when she brought a case to Court against her partner, the judge ended the case by stating that young women of today do not have the patience to wait to be properly married and rush into relationships, they always end up with problems and then rush to Court and waste the Court’s time to try and solve it.

Research on consensual unions in Ghana indicates that the women who enter into them are often advised by their partners that they will eventually perform or finish performing the marriage rites (either Ordinance or customary marriage) but, since the man is the one required to perform marriage rites for women and since the main benefit of being in a formal marriage is for the woman, many men choose not to go through with the rites after all and there is little the woman can do.

Unfortunately, a large percentage of women in these types of relationships are subject to physical and emotional abuse, but do not leave the relationship for fear of the consequences for them and their children, economically and otherwise. This is precisely the situation that the law is attempting to address on behalf of married women, but not for those whose abusive relationships have not been formalized. Examples of the way in which consensual unions are treated by the Courts as a lower form of relationship can be seen in the case of Sackey v. Boakye-Mensah13 as well as in the intestacy case of Avesi et al. v. Johnson14.

Cynthia Grant Bowman & Akua Kuenyehia, Women and Law in Sub-Saharan Africa 69, 72 and 123 (Sedco Publishing Ltd., 2003), and Elizabeth Ardayfio-Schandorf, It Rains in Everybody’s Household: Engendering Women’s condition in Consensual Unions (Unik Image/WiLDAF, 2006).13 Sackey v. Boakye-Mensah, March 13 2008, Court of Appeal – Accra, Court File HI/218/07, Reportedby the Judicial Training Institute, see summary at page 38. 14 Avesi et al. v. Johnson, February 12 2004, Court of Appeal – Accra, Court File HI/15/2004, Reportedby the Judicial Training Institute, see summary at page 99.

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Recommendations

Overall RecommendationsA review of the parallel trends evolving at the Courts versus at the traditional level as discussed above indicates that, in general, the Courts and the traditional leaders were of the same mind when it came to property sharing amongst spouses as of 1959. As public policies changed according to the political changes in the country, the Supreme Court has had to take into consideration the changing attitudes and arguments based on fundamental justice and, later, the Constitution when it came to the issue of property rights between spouses. Given the hierarchical nature of the Court system in Ghana, the changes in the attitudes at the Supreme Court immediately become binding upon the rest of the country (though clearly not always properly followed by the lower Courts). However, while the Constitution is, theoretically, binding on both the Courts and the traditional leaders, in practice it seems as though both of these decision-making bodies are plagued with inconsistencies, unchecked subjectivity and sometimes outright bias when it comes to deciding cases involving the property rights of spouses.

Given the data accumulated in preparation of this analysis, the best way to address the troubling issues identified would seem to be a combined approach of enacting unambiguous property rights legislation along with a widespread educational campaign to inform judges, lawyers, traditional leaders and, if possible, the public at large about the ways in which Ghanaian society will benefit as a whole if women’s property rights are enhanced and protected. Parliament’s twenty-year long reluctance to enact a law to regulate the property rights of spouses in accordance with Article 22 of the Constitution suggests that there may still exist a general sentiment that legally enhancing the property rights of women in Ghana may threaten the traditional role or status of men, undermine traditional family values, or further westernize Ghanaian society. Without an understanding of how a denial of property rights for women leads inevitably to economic violence against women (which, in turn, leads to increased poverty and crime levels for all of Ghana), Ghana’s decision makers will not see the need to change their attitudes and ineffective approaches to dealing with this critical issue.

Instead of ignoring the voices of those calling for the enactment of the Property Rights of Spouses Bill15, we recommend that the Government dialogue proactively with the stakeholders to make changes to the Bill as needed to best address the concerns of all parties. If there are areas of the proposed legislation that the Government feels uncomfortable with, those areas need to be addressed openly and dealt with16. Ignoring the issue and perpetually putting of enacting legislation on the property rights of spouses seems both unconstitutional and irresponsible.

Once the necessary legislation is finally in place, the individuals and organizations that are attempting to educate and advocate in this area of women’s rights will have the legal framework necessary to add relevancy, legitimacy and, most importantly, potency to their efforts to fight against economic violence against women in this country.

15 See the discussion of the “Property Rights of Spouses Bill, 2013” at page 45 and the full text of the Bill at Appendix A, page 50).16 See the Memorandum which reviews the highlights of the Bill at Appendix A, page 50.

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Property Rights of Spouses Bill, 2013

In October 2009, the Ministry of Justice put forward the "Property Rights of Spouses Bill, 2009" in Parliament. Despite advocacy for the Bill by numerous stakeholders, it was never passed into law and lapsed in December 2012 when the term of that Parliament expired.

The Bill was intended to enact a law to actualize Article 22 of the 1992 Constitution. As discussed above, Article 22(3) of the Constitution requires spouses to have equal access to property jointly acquired during marriage and for matrimonial property to be equitably distributed between the spouses upon termination of the marriage.

The "Property Rights of Spouses Bill, 2013"17 is an updated version of the 2009 Bill and was gazetted on October 4th 2013. Various women's advocacy groups are currently strategizing as to how to ensure that the Bill is passed into law this time around.

The Bill is meant to benefit both men and women, but the longstanding inequitable treatment of women when it comes to properties acquired during a marriage means that women stand to benefit significantly if this Bill is passed into law.

Despite the fact that the Constitution has been in force since January 7th, 1993, Parliament has yet to enact a law to deal with the property rights of spouses. As seen in the cases cited in this analysis, the Courts have noted Parliament’s lapse and, at times, have tried to substitute the Court’s own intervention where Parliament has failed. However, as seen in the case law, the determination of the property rights of spouses by the Courts has not fully reflected the equitable regime guaranteed by Article 22 of the Constitution. Different sets of rules used to determine the property rights of spouses have been inconsistently applied to parties who have brought their property matters before the Courts.

Presumably the framers of the Constitution specifically included Article 22 because they were aware that equality in regards to property rights between spouses is of such national importance that it cannot be left to even the Supreme Court Justices to deal with as they please. The gravity of the matter calls for its enshrinement in Ghana’s “supreme law” and this fact alone should have been enough to prompt Parliament into action several years ago.

Highlights from the Bill

The Bill recognises informal unions such as people living together as husband and wife without having ever undergone formal marriage rites (i.e. concubinage). Under the Bill, people in such arrangements that have lasted for at least two years would be entitled to the same rights as traditional “spouses”.

The Bill allows spouses to make an oral or written "marital agreement" which could be used to regulate their property rights as between each other. The agreement would be subject to several regulations which act to ensure that the agreement entered into is generally conscionable.

17 See Appendix A: Property Rights of Spouses Bill 2013 and Memorandum at page 50. 46

The Bill defines joint and separate property and provides for equal access to and distribution of jointly acquired property between spouses. Significantly, the Bill provides that contribution to the maintenance of the matrimonial home by a member of the immediate family (husband, wife, or children) which facilitates the acquisition of property is to be considered when determining spouses' respective rights in relation to the property. The Bill also provides protection for a spouse who has made a contribution towards the maintenance or improvement of property acquired by the other spouse either before the marriage or during the marriage. Further, any property acquired during the marriage in the name of one spouse is presumed to belong jointly to both spouses unless the contrary is proved. The issue of how to distribute property where there is more than one wife is also dealt with by the Bill.

With regard to maintenance orders, the Courts are given power under this Bill to grant the payment of maintenance and to take into consideration such things as any reduced or lost earning capacity of the spouse seeking maintenance due to that spouse having given up or delayed education, training employment or other opportunities during the marriage.

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ReferencesThe following sources were consulted in the preparation of the respective sections of the foregoing analysis:

Introduction to the Analysis

Olufunmilayo I. Fawole, Economic Violence to Women and Girls: Is It Receiving the Necessary Attention?, (2008) available at: http://tva.sagepub.com/content/9/3/167.abstract

National Coalition Against Domestic Violence, Economic Abuse Fact Sheet, available at: http://www.uncfsp.org/projects/userfiles/File/DCE-STOP_NOW/NCADV_Economic_Abuse_Fact_Sheet.pdf

Legal Framework of Human Rights in Ghana

Jeanette Bak Christensen, The Role of NGOs in the Aid Effectiveness Partnership, (2010) available at: http://projekter.aau.dk/projekter/files/37959416/Speciale%20f%C3%A6rdigt_2.pdf

Human Rights Advocacy Centre, History of Human Rights in Ghana, available at:http://www.hracghana.org/headlines/hr-in-ghana/history-of-human-rights-in-ghana/

Erin Moore, In Their Hands: The Impact of Human Rights Training on Ghanaian Journalists, (2006) available at http://www.jhr.ca/en/aboutjhr/downloads/publications/IN%20THEIR%20HANDS%20-%20The%20Impact%20of%20Human%20Rights%20Training%20on%20Ghanaian%20Journalists.%20Erin%20Moore.%202006.doc

AfriMAP et al, Ghana: Justice Sector and the Rule of Law, (2007) available at: http://www.afrimap.org/english/images/report/AfriMAP_Ghana_Justice.pdf

Victor Essein, Researching Ghanaian Law, (2012) available at:http://www.nyulawglobal.org/globalex/Ghana1.htm

Cynthia Grant Bowman & Akua Kuenyehia, Women and Law in Sub-Saharan Africa 126 (Sedco Publishing Ltd., 2003)

Presentation of Data and Analysis

Daily Graphic, “Woman gets property after 13 years of litigation”, (2013) available at:

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http://edition.myjoyonline.com/pages/news/201308/111960.php

Cynthia Grant Bowman & Akua Kuenyehia, Women and Law in Sub-Saharan Africa 69, 72 and 123 (Sedco Publishing Ltd., 2003)

Elizabeth Ardayfio-Schandorf, It Rains in Everybody’s Household: Engendering Women’s condition in Consensual Unions (Unik Image/WiLDAF, 2006)

Recommendations

AfriMAP et al, Ghana: Justice Sector and the Rule of Law, (2007) available at: http://www.afrimap.org/english/images/report/AfriMAP_Ghana_Justice.pdf

Marietta Brew Appiah-Opong (Attorney General and Minister Responsible for Justice, Ghana), Memorandum to the Property Rights of Spouses Bill, 2013, (2013)

Appendix A: Property Rights of Spouses Bill 2013 and Memorandum

Marietta Brew Appiah-Opong (Attorney General and Minister Responsible for Justice, Ghana), Memorandum to the Property Rights of Spouses Bill, 2013, (2013)

Betty Mould Iddrisu (Attorney General and Minister for Justice, Ghana), Memorandum to the Property Rights of Spouses Bill, (2009)

Appendix B: All Case Summaries

Judicial Training Institute, “Court Judgments”, available at:http://www.jtighana.org/summaryrulings.php?q=&nav=default&mainnav=rulings&type=all

Judicial Service of Ghana, “Judicial Service e-Judgment”, available at:http://www.judicial.gov.gh/ejudgment/summarysearch.php

Council for Law Reporting, Ghana Law Reports, Ghana Law Reports, Council of Law Reporting

Accra High Court Registrar, Decisions of the High Court 2011-2013 Cynthia Grant Bowman & Akua Kuenyehia, Women and Law in Sub-Saharan Africa

69, 72 and 123 (Sedco Publishing Ltd., 2003)

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Appendix A: Property Rights of Spouses Bill 2013 and Memorandum

50

51

52

53

54

55

56

57

58

59

60

61

62

63

64

65

66

67

68

69

70

71

72

73

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Appendix B: All Case Summaries

Landmark Cases on Property Rights of Spouses 1959-2012

Summary

These specific cases show the evolution of Ghanaian law with respect to the economic rights of spouses with regard to “marital property”. Each case cited here is regarded as having had a significant impact on the development of the law from a time when wives and children were deemed to have no inherent rights or interest in property jointly acquired during marriage (see Quartey v. Martey & Anor.), to more recent cases which, among other things, seek to protect the vulnerable in situations of marriage dissolution while also recognising the significant value of the non-monetary contributions that women in particular often make towards the acquisition of family assets (see, for instance, the 2012 decisions of Mensah (G.) v. Mensah (S.) and Quartson v. Quartson). Where practical, the basic principles to be gleaned from each case have been highlighted in bold.

Quartey v. Martey, [1959] GLR 377, High Court Accra

In this decision, the Court held that by customary law, it was the responsibility of a man’s wife and children to assist him in the carrying out of the duties of his station in life (i.e. farming, business, etc.). However, the proceeds of such a 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. Specifically, the Court held that such property is not the joint property of the man and the wife and/or the children.  The right of the wife and the children was specified to be a right to maintenance and support from the husband and father. In the absence of strong evidence to counter the presumption, any property a man acquires with the assistance or joint effort of his wife is the individual property of the husband and not the joint property of the husband and the wife.

Yeboah v. Yeboah (1974), 2 GLR 114, High Court

In this case, 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 was 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

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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 brought an action to eject the wife from the house.

The Court held that there was no positive customary law preventing the creation of a joint interest by persons not related by blood. The Court held that 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 the matrimonial home jointly. Where the matrimonial home was deemed to be held jointly by husband and wife, 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 make what would seem to be a fair agreement for the parties.

Abebrese v. Kaah, [1976] 2 GLR 46, High Court

In this case, the wife contributed substantially to building the parties’ matrimonial home. The husband had provided the purchase money for the land while the wife 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, the wife 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.

Achiampong v. Achiampong, [1982-83] G.L.R. 1017, Court of Appeal – Accra

Specifically with regard to the matrimonial home, the Court in this case held that a spouse by going to live in a matrimonial home, the sole property of the other spouse, did not acquire any interest therein. The spouse only has a right to live in the matrimonial home as long as the marriage subsisted. That right was conferred on the spouse by virtue of that spouse’s status as a spouse and not by virtue of any permission from the other spouse. That right would terminate automatically after divorce. The general right of the spouse to live in the matrimonial home owned by the other spouse is a right “in personam” and not “in rem” attaching to the matrimonial home.

The Court noted, however, that the situation might arise where a spouse’s general personal right to live in the matrimonial home by virtue of being a spouse might be converted into a right to joint ownership of the house and/or its contents. Those were cases where there had been agreement between the spouses in respect of the matrimonial home, giving the spouse who is not named on the title some beneficial interest in the home, notwithstanding that the property was in the sole name of the other spouse as the legal owner. It would also arise where the spouse who is not named on the title directly or indirectly made substantial contribution in money or money’s worth towards the acquisition of the property, e.g. making direct

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financial improvements, renovations or extensions in respect thereof or applying income for the common benefit of both the spouses and the children so as to enable the other spouse financially to acquire the property in dispute.

Anang v. Tagoe, [1989-90] 2 GLR 8, High Court

In this case the Court held 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. It was noted that this 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.

Ribeiro v. Ribeiro (No 2), [1989-90] G.L.R. 130, April 10 1990, Supreme Court – Accra

In this case the Court made clear that there is an important distinction between the settlement of property rights between spouses on the one hand and the provision of decent accommodation/maintenance/financial provision for a spouse on the other. Whereas with the former, the Court must determine the share in the properties which belongs to one or the other parties, in the latter the question of contributions, substantial or otherwise, is irrelevant. In this particular case, the Supreme Court upheld the High Court’s award of a house to the wife and states that the award was not based on a finding that it belonged to the wife, that she was part-owner, or that she had contributed in any way whatsoever to its acquisition. Rather, it was conveyed as part of a package of financial provision which the Court considered the wife to be entitled to. Further, the award of the house was not necessarily for the wife’s accommodation, it is the equivalent of a financial award which the wife is free to expend as she chooses.

Mensah v. Mensah, [1998-99] SCGLR 350, Supreme Court

This case is noted as having laid down the principle of “equitable sharing of joint property”. The Court specifically found that property jointly acquired during marriage becomes joint property of the parties and such property should be shared equally on divorce. Further, the Court stated that the ordinary incidents of commerce have no application in marital relations between husband and wife who jointly acquired property during marriage. This case is credited as having established that “equality is equity” when determining issues of proportionality in the division of joint property.

Boafo v. Boafo, [2005-2006] SCGLR 705, Supreme Court

The Boafo decision modified and clarified the principles laid down in Mensah v. Mensah [1998-99] SCGLR 350.

In this case, the couple had operated their finances jointly during their marriage, but the degree of financial contribution by the wife to the acquisition of the couple’s properties was not clear. Despite this uncertainty, on the issue of distribution of the properties, at trial the Court found that

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the properties in question had been jointly acquired. The Court then went on to make distribution orders which were not on a half and half (equal) basis. The wife appealed to the Court of Appeal alleging, among other things, that the trial judge failed to distribute the property in accordance with Article 22(3) (b) of the Constitution of the Republic of Ghana (1992).

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, [1998-99] SCGLR 350 and further clarified the position of the Court. The principle of the equitable sharing of joint property would ordinarily entail applying the “equality is equity” principle, unless the equities of the case demand otherwise, such as when one spouse can prove separate proprietorship or agreement or a different proportion of ownership. The question of what is “equitable” 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.

In obiter, the Court also noted that Article 22(3)(b) of the Constitution of the Republic of Ghana (1992) was meant to right the imbalance that women have historically suffered in the distribution of assets jointly acquired during marriage. As such, an equal (half and half) division will often, though not invariably, be a solution to this imbalance.

However, 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. 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. The Court will lean towards an equal sharing of the property if an equal division is justifiable in the circumstances.

Mensah (G.) v. Mensah (S.), [2012] 1 SCGLR 391, February 22 2012, Supreme Court – Accra, Court File J4/20/2011

The Court speaking unanimously through Dotse J.S.C. noted that the framers of the Constitution of the Republic of Ghana (1992) envisaged 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. As such, the Court held 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 (such as 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 be reasonably argued that the acquisition of the properties was facilitated by the assistance that the one spouse derived from the other. As such, the Court

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found that it was both inequitable and unconstitutional to apply the “substantial contribution” principle to such cases such that, upon dissolution of the marriage, one spouse would be denied any share in the marital property because he or she did not make any substantial contribution to it. The Court held that the inability to adequately quantify one spouse’s assistance towards the marital property will not, in itself, bar him or her from an equitable sharing of the matrimonial property. The application and effect of this principle to a particular case will continue to depend on the facts of each case, with a view to achieving equality in the sharing of marital property.

Quartson v. Quartson, October 31 2012, Supreme Court – Accra, Court File J4/8/ 2012

In this case, the Supreme Court took note of the fact that because Parliament has not, as of yet, enacted legislation to regulate the distribution of jointly acquired property, as mandated by the Constitution of the Republic of Ghana (1992), the Courts have over the years carved out principles to deal with the division of property upon dissolution of a marriage. The Court also noted that the framers of the Constitution evidently intended that there should be no discrimination in the sharing of joint property, particularly discrimination against women. The Court then stated that it would not be in accordance with common sense for the Court to wait for Parliament to “awaken from its slumber” and pass a law regulating the sharing of joint property.

In times past, the principle was that where a spouse makes a substantial financial contribution to the acquisition of property pursuant to an agreement or inferred intention by the couple that the property acquired should be owned jointly, the Court will hold the property to be jointly owned and it would be shared proportionately. Later cases clarified that the principle known as “equality is equity” was to be preferred when determining the proportions in which joint property would be shared by the spouses, unless the circumstances of the case would demand otherwise.

After reviewing the evolution of these principles from the older cases on the division of marital property, the Court re-affirmed the recent decision of Mensah (G.) v. Mensah (S.), February 22 2012, namely, 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. It can be reasonably argued that the acquisition of the properties were facilitated by the assistance that the one spouse derived from the other. As such, it is both inequitable and unconstitutional to deny one spouse a share in the marital property because he or she did not make any “substantial contribution” to it. The inability to adequately quantify one spouse’s assistance towards the marital property will not, in itself, bar him or her from an equitable sharing of the matrimonial property.

The Court went on to point out, however, that the Mensah (G.) decision was not to be taken as a

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“blanket” ruling granting unwarranted access to property to spouses who clearly should not be so entitled. The Mensah (G.) principle was to be applied on a case by case basis such that the facts of each case would determine the extent to which the judgment would apply. As such, the Court was able to hold that Mrs. Quartson’s contribution, while enough to merit a share in the property, did not call for a half-and-half sharing. The “equality is equity” principle was explicitly waived because it was deemed that the equities of this particular case clearly called for unequal sharing.

Topical Case Summaries of Note

Marriage Ordinance Cases

Hansen v. Hansen, January 26 2009, High Court – Cape Coast, Court File E6/04/08

In this case, the Ghanaian husband petitioned for divorce from his Russian wife and sought payment of maintenance and alimony. The couple had been married under Moscow law in the then Soviet Union. The wife was represented by Women in Law and Development Africa (WiLDAF) in the divorce proceeding.

The husband accused the wife of several instances of unreasonable behaviour which had led to the breakdown of the marriage. The wife contended that the husband had prevented her from seeking employment outside the home during their marriage and had advised her that he intended to move away to another part of the country without taking her with him.

The Court considered sections of the Matrimonial Causes Act, 1971 (Act 367) as well as the decision in Knudsen v. Knudsen (1976) 1 GLR 25 with regard to the question of whether the marriage between the parties had broken down beyond reconciliation and should be dissolved. The Court then noted that the wife, being over the age of 50 and estranged from her native country, had little chance of remarriage and should be granted some amount of money from the husband that would allow her to make a fresh start in life. The Court awarded her a lump sum of GH₵ 20,000 or, alternatively, financial assistance of GH₵ 150.00 per month. The Court also ordered the husband to facilitate the linkage of the wife to her native country, to secure all the necessary travelling documents for the wife, to bear the travelling expenses involved in the arrangement and to provide suitable accommodation to the wife and children that would reflect the standard of accommodation the parties had been used to upon their initial relocation from Moscow to Ghana.

Akoto v. Akoto, [2008-2009] 1 GLR 447, February 13, 2009, Court of Appeal – Accra

The appellant husband and respondent wife were Ghanaians who married in the United Kingdom in 1976 and lived in that country together. Over the course of their marriage they jointly saved the

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sum of 230,000 pounds. The husband, as head of the family, managed the funds and used that money to acquire various properties in the UK as well as East Legon and North Labone in Accra, Ghana.

In 1997 a petition and cross-petition to dissolve the marriage was granted and the High Court found that the wife had contributed substantially to funding the acquisition of the couple’s properties. It also found that the husband had used the Accra properties as security in obtaining loans from the bank for his two companies. He had then defaulted in repaying those loans and the East Legon property was sold as a result. In the circumstances, the Court declared the wife the joint beneficial owner of all of the real estate the parties had acquired in both the UK and Accra. It also awarded her 150,000 pounds as financial provision and ordered the husband to give the wife two vehicles registered in the name of his companies. The husband appealed these awards, alleging that the Ghana High Court lacked jurisdiction to deal with the UK properties and that since the wife was not a director or shareholder in the husband’s companies, the Court had no power to give two of that company’s vehicles to the wife.

The Court of Appeal dismissed the appeal, noting that while in general Courts of a country where immovable property is situated have exclusive competence to adjudicate on issues relating to such property, that principle is subject to exceptions. Where justice demanded it and the parties were under the jurisdiction of the Court, a Court can validly exercise jurisdiction and make orders in respect of immovable property situated abroad . In this case, the fraudulent dealings of the husband as against the wife with respect to the properties justified the Court’s use of the exception to administer justice. The husband stood in a fiduciary relationship with the wife with regard to the jointly owned properties. The husband’s actions in putting up some of these properties as collateral for loans for his business and then defaulting amounted to conversion of the jointly held property for his own exclusive benefit. As such, nothing in law or equity stopped the Court from ordering that the vehicles registered in the name of the companies be given to the wife.

Gyamfi v. Gyamfi, March 2 2009, High Court – Koforidua, Court File E6/2/09

The parties were married under the Marriage Ordinance in 2005. In 2008 the wife petitioned for divorce, seeking custody of the children, maintenance of the children by the husband, a lump-sum payment and a share of the properties acquired during the marriage.

The wife alleged that the husband had made her take up housekeeping so that he could use his money to construct houses, including a guest house and the couple’s matrimonial home. She admitted that during the marriage the husband had provided her with GH₵ 40 per month in addition to supplying food items periodically. She also admitted that she had not made any monetary contributions to the acquisition of the properties in question. The husband, however, asserted that he had not left the responsibility for housekeeping to the wife and that he had, also, assisted her to further her education and paid off some of her debts.

The Court found that the wife’s assertion that she had been made to take up the housekeeping by the husband was false given some admissions the wife made during her testimony. As a result, the

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Court determined that there was no joint ownership since the wife had not made any contribution towards the acquisition of the properties in question. As such, she was not entitled to any share in the property “simply because there had been a divorce”.

With regard to the question of a lump sum award, the Court noted that unless there is evidence that the parties had agreed that one spouse should give us his/her job to maintain the house, the Court will not just order one spouse to pay money to the other unless it is shown that upon the dissolution of the marriage the party seeking payment will suffer a lower standard of living than previously enjoyed. The Court should try, as much as possible, to put the parties in the same position as if the marriage had not broken down.

Verdoes v. Verdoes-Kurnchie, May 11 2009, High Court – Accra, Court File BDMC 11/2008

The husband, a Dutch national married a Ghanaian woman. They were married for 26 years following which the husband petitioned for divorce, seeking several forms of relief including a declaration that the matrimonial home be settled in his favour, and the “Nsuta” house be settled in favour of the wife. The wife cross-petitioned for several forms of relief, including a declaration that she is entitled to the matrimonial home.

Both the husband and the wife asserted that they had been the one to build the two properties in question (the matrimonial home and the Nsuta house) without the aid of the other. The wife had, as evidence, several receipts in her name for the purchase of building materials, but did not tender any evidence as to the source of the money. The husband asserted that all of the things the wife paid for were bought using his money. The Court felt that it was unlikely that either side’s assertion was completely true. The Court held that the matrimonial home and the other properties acquired during the marriage were likely acquired as a joint effort, stating “how could the wife […] build a Matrimonial home, without any contribution from the expatriate husband earning a substantial monthly income of $5000”. As such, the properties in question were deemed to be held jointly and were divided accordingly.

Hood v. Hood, June 26 2009, High Court – Accra, BDMC 81/2009

The parties were married under the Ordinance. The wife sought a divorce and alimony after the husband has quit the marital home and impregnated another woman. The wife had been unable to bear children.

In discussing whether it was appropriate to award alimony to the wife, the Court stated that “in a matrimonial proceeding such as the instant case where one spouse succeeded in the action of dissolution of the marriage on some ground of misconduct committed by the other spouse the successful spouse should be entitled to some cost against the unsuccessful party”. It then went on to find that since the wife had alleged marital misconduct against the husband but the husband had not alleged any against the wife, and since the husband had not maintained the wife since he moved out of the house, an award of GH₵ 2,000 was appropriate. The decision made no reference to precedent.

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Nuque v. Nuque, July 7 2009, High Court – Accra, Court File BDMC 45/2006

The parties were married under Ewe customary law in 1977. The customary marriage was subsequently converted to a marriage under the Ordinance in 1997. The husband petitioned for divorce in 2008. The wife cross-petitioned, seeking a declaration that the matrimonial home was jointly acquired by the parties and, therefore, that she was entitled to a half share in it. She was also seeking payment of a lump sum from the husband upon dissolution of the marriage.

While neither party called any witnesses, the husband established through documentation that the land on which the matrimonial home stands was bought by him and that he then paid to have the house designed and constructed. The wife, however, alleged that she had made payments to the architect, cleared the site for the construction, carted building materials, supervised the workers and connected water to the site from the Ghana Water and Sewage Company. She also alleged that she sold Nigerian goods in Ghana with the help of her husband and that the profit from those sales was invested in building the matrimonial home. The wife further claimed that the husband had demanded that she resign from her job at the Ministry of Health upon her marriage to him.

The Court noted that if the wife’s testimony had been convincing, she would certainly have been entitled to a share in the matrimonial home under the Matrimonial Causes Act. The Court also took note of the wife’s assertion that she had been the one to pay the children’s school fees and provide maintenance for the house. The Court quoted Lord Denning in Watchel v. Watchel 1972 All E.R. 829 CA where it was said that “a wife who looks after the home and family contributes as much to family assets as the wife who goes out and works”. However, the Court went on to find that the wife’s undated and non-detailed diary entries were not sufficient evidence of the allegations she had made to support her claim under Article 22(1) of the 1992 Constitution and section 21 of the Matrimonial Causes Act.

When considering the wife’s claim that her contribution to the matrimonial home was in the form of providing for the upkeep of the house, the Court questioned whether that would amount to a substantial contribution to the home. In that regard the Court considered the decision in Glavee v. Glavee (a decision of the Ho High Court) where it was said “there must be an agreement or assurance by the man that he was building the house for the two of them and in consequence of that understanding the woman sinks her money or resources to help sustain the household while the man uses his money to put up the house”.

The Court acknowledged that a prior agreement to treat property acquired during marriage as joint property need not necessarily be explicit. It could be inferred from the circumstances of the case.

When considering the question of a financial settlement for the wife, the Court noted section 20(1) of the Matrimonial Causes Act as well as the decision of Aikins v. Aikins [1979] GLR 225 where it was held that “in considering the amount payable as lump sum, the Court should […] take into account the standard of living to which the wife was accustomed during the marriage”. As such, the Court determined that it was irrelevant to the question of financial need

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the fact that the wife had been frequenting Europe on business trips in the 13 years since the breakdown of the marriage. Instead, the Court held that what one must look at is the position and need of the spouse at the time of the breaking down of the marriage and other surrounding circumstances. After considering the fact that the wife had been a civil servant with the Ministry of Health up until she had to resign because of her marriage (giving up the possibility of earning some gratuity or pension had she remained until retirement age), the Court awarded a lump sum compensation of GH₵ 3,000.00.

Kwawukume v. Kwawukume, July 30 2009, Court of Appeal – Accra, Court File H1/173/2009

The wife petitioned for a divorce from her husband of 17 years. The husband then cross-petitioned seeking a declaration that he was a joint owner of the matrimonial home.

The wife stated that the home in question was not the matrimonial home but was, instead, a home built on land that the wife purchased herself from her mother. She alleged that while the couple lived in the husband’s house, the wife commenced the building of the house in question by herself. She later left her husband’s house because of harassment by her husband, and went to live in the house she had built. The husband, however, later came to live with her there. The husband also claimed that he had contributed to the acquisition of the house by allegedly paying three quarters of the cost of construction of the building. He was unable, however, to prove this assertion during the trial. The lower Court determined that although the wife had built the disputed house entirely from her own resources, there should be an order for the sharing of the property in proportion of two thirds to the wife and one third to the husband. The wife appealed this decision.

The Court of Appeal agreed that where the husband had failed to establish that he had contributed to the cost of the construction of the house, the trial judge had no business finding that there was contribution. Where the Court came to the conclusion that the husband could not establish the basis for his supposed three-quarters contribution to the cost of construction of the house in dispute, there was nothing left for the Court to do but to dismiss his claim. As such, the decision was set aside and the wife was declared the sole and exclusive owner of the property.

Shardow v. Shardow, July 31 2009, High Court – Accra, Court File BDMC 258/2005

In a petition for divorce, the wife alleged that she had acquired two properties without any contribution from the husband. The husband, however, alleged that he had helped the wife to pay rent on one of the premises before she exercised her option to purchase and that he had paid to erect a fence on the other property. The Court held that the husband’s payment of some of the rent neither made him a tenant nor made him a joint owner of the first property when it was subsequently purchased by the wife. The Court also held that the cost involved in erecting the fence on the second property was insignificant in comparison to the cost of the building, which was paid by the wife. There was no agreement by the parties that the properties would be owned jointly and no evidence that the husband had made any substantial contribution to

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their acquisition. The Court referred to the Constitution as well as the decisions in Achiampong v. Achiampong [1982-83] GLR 1017 in determining that in the circumstances, the husband could not claim any portion of either property.

Amissah v. Applerh, December 18 2009, High Court – Accra, Court File BDMC 192/2009

The parties had been married under the Marriage Ordinance for three years but they had only lived together as man and wife for 9 months in that time.

The wife petitioned for divorce, asserting that the husband had caused her much suffering and had refused to allow her to acquire any skill to work. She also stated that the husband had taken away the car that was in her name and put her out of the matrimonial home (which she says she supervised the construction of early on during the marriage), forcing her to board with a friend together with the infant child of the parties. The husband, conversely, accused the wife of infidelity, disrespect and theft. He also testified that the wife had chosen to leave the matrimonial home on her own, following directions from her own parents which had nothing to do with him.

The Court granted custody of the infant child to the wife and made an order for maintenance in the amount of GH₵ 200 per month plus school fees and health needs. There was also an order for payment by the husband of GH₵ 1,200 “and no more” to the wife to aid the wife in her accommodation.

The Court then expressed reluctance to order any financial settlement given the duration of the marriage and the “awkward circumstances” surrounding its breakdown, but then went on to order a settlement in the amount of GH₵ 1,000 from the husband to the wife because the husband had apparently already offered to pay her that amount. The Court declined to settle the vehicle on the wife. In this judgment no reference whatsoever was made to the applicable case law or any principles which apply to the division of marital property upon divorce.

Williams v. Williams, February 18 2010, Court of Appeal – Accra, Court File HI/20/09, Reported by the Judicial Training Institute

The parties were in a concubinage relationship and “engagement” from 1993 to 1996 when they had their Ordinance marriage. The wife had a business enterprise in 1992 which was registered as a limited liability company in 1994. The couple agreed that the husband should move to Japan using the name of the wife’s company for the VISA. In 1995 the wife invited the husband to return to Ghana to assist with running the company. The company continued to grow but the marriage deteriorated around 2000. The marriage was dissolved, but the wife appealed a decision that settled a valuable house on the husband upon the dissolution of their marriage. Her complaint was that because the husband was neither a shareholder nor director of her company (which company had purchased the house in question), but only an employee who had been paid, there was no justification for the trial Court’s decision with regard to the division of the property.

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The Court of Appeal upheld the trial Court’s decision, noting that despite the documents that had been submitted as evidence of the nature of the wife’s business, the evidence showed that the husband was a substantial contributor in the operations of the wife’s business and it was reasonable to suppose that the husband and wife were, at the time, running the company together in order to acquire properties in common for the end time of their marriage.

The Court of Appeal emphasized that when making decisions concerning the settlement of property upon the dissolution of a marriage, it is the facts of the case considered in their entirety that determines who is entitled to what property settlement. The principle issue is whether in the dealings of the parties during the period of acquisition of the property it can be inferred from their conduct and the surrounding circumstances that the parties intended joint beneficial ownership of properties acquired. Also, whether the claimant was a joint contributor in the acquisition of the properties and therefore entitled to a share in same.

Afriyie v. Abrefi, February 23 2011, Supreme Court of Ghana, Court File J4/24/2010

Two main issues were dealt with by the Supreme Court in this case.

The first issue was how a Court will distribute marital property if the divorcing couple is Ghanaian but some of the property is located in a foreign jurisdiction. The husband argued that the Ghanaian Court did not have jurisdiction to deal with the marital property located in the UK. The Court agreed that in general a Court may have no jurisdiction over foreign property, but in matters of equity, there is an exception to that rule which would allow a Ghanaian Court to assume jurisdiction over foreign property, as happened in this case.

The second issue was whether the lower Court was correct in its decision to lift the “corporate veil” in its award to the wife of property owned by the husband’s company. The Supreme Court noted that the husband had, over the years, dealt falsely with the wife by converting certain properties jointly owned by the couple into money and then put that money into his companies for his exclusive benefit. In the circumstances, the trial Court ordered that certain vehicles registered in the name of the husband’s companies be given to the wife. The Supreme Court reaffirmed that while a corporation will be looked upon as a legal entity as a general rule, when the notion of legal entity is used to defeat public convenience, justify wrong, protect fraud or defend crime, the Court will be justified in lifting the veil of incorporation in order to grant necessary relief.

Owusu v. Owusu, March 17 2011, Court of Appeal – Accra, Court File HI/144/2010

In this case, the Court of Appeal clarified the principle in Anang v. Tagoe, [1989-90] 2 GLR 8. In transactions between a man and his wife, the mere fact that one of them has the document of title on a property in dispute in his or her name does not make that party the sole owner of the property. If there is evidence that the other party has made substantial contributions towards the property the Court of equity will intervene and declare the property as jointly

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owned. The Appellate Court added, however, that in the absence of evidence of contribution by the other party, it is not necessary for the Court to infer contribution or confer a beneficial interest on that party.

Additionally, the Court noted that when attempting to determine claims to ownership of or interests in property, it is not appropriate for the Court to simply weigh the parties’ respective financial resources and conclude that the party of more substantial means likely acquired the property in question. Rather, the question must be whether, from a particular party’s resources, he or she could have made the acquisition or contribution in issue.

Anyaful v. Anyaful, November 17 2011, Court of Appeal – Accra, Court File H1/49/2011

The parties were married in 1991. The husband petitioned for divorce claiming that the parties had not lived together since 1999 and the wife was abusive. The wife claimed that the husband had abandoned her and the two children of the marriage in the UK in 1999 only visited occasionally to quarrel and make threats to divorce.

Despite the fact that both parties submitted that the marriage had broken down beyond reconciliation and requested a divorce be granted (along with competing ancillary reliefs), the trial judge held that there was no evidence to support the assertion that the marriage had broken down beyond reconciliation. The trial judge found that the parties were living apart by mutual convenience and that "quarrels, conflicts, insult and differences between spouses and [...] occasional romantic assaults are normal incidents of married life. Not having had sex for a year without more is no ground for divorce especially when the parties are not living together and there is no complaint of having had any adverse health related consequences. [....] The law requires very strong and weighty reasons to dissolve [a marriage]."

The husband appealed this decision, but it was upheld by the Court of Appeal, which noted that it was the trial judge's duty to give maximum scrutiny to petitions for divorce and be satisfied that the evidence supported the conclusion that the marriage has broken down beyond reconciliation before granting a divorce.

Mensah (E.) v. Mensah (V.), June 11 2012, High Court – Accra, Court File BDMC 195/2011

The parties were married customarily in 1967 and converted the marriage to an Ordinance marriage in 1996. The wife asserted that she was forced to quit the marital home when the husband told her that her rent had expired. The husband, however, stated that the wife abandoned the home when he returned to it after an absence of 11 years.

The wife suffered a stroke during the course of the marriage which left her partially incapacitated by paralysis. Because of her medical condition, the Court ordered that the husband pay her GH₵ 5,000.00 as financial compensation for her services during the subsistence of the marriage.

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With regard to the marital property, the husband asserted that while the land on which the matrimonial house was built was solely acquired by the wife, he had contributed substantially towards the erection of the building itself. However, in his prayer for relief, the husband asked that the wife be “in possession” of the matrimonial home. The Court was not clear as to what the husband meant here, but chose to interpret it as saying that he was foregoing his alleged contributions to the construction of this property and was agreeable to it being settled entirely in favour of the wife.

The husband also owned a three-storey building which he started constructing during the subsistence of the marriage. While the Court did not allude to any particular contribution to this property by the wife (except that she used to accompany the husband to the building site), the Court deemed this property to be joint property and ordered that the wife be given the second floor of the property for her own use, since the parties were already working under this arrangement prior to the trial.

Adjepong v. Adjepong, March 28 2013, High Court – Accra, Court File BDMC 190/2009

The parties were married customarily in 1967. The marriage was converted to an Ordinance marriage in 1996. The husband petitioned for divorce but the wife asserted that the marriage had not broken down beyond reconciliation. There was no property to be settled between the parties, but the wife stated that if the husband insisted on pursuing a divorce, he should pay her a lump sum for alimony in the circumstances.

In considering whether the wife was entitled to a financial award , the Court noted that the breakdown of the marriage could be solely attributed to the fact that when the wife discovered that the husband had taken a second wife, she brought the matter to Court to have the second marriage annulled, which upset her husband enough for him to pursue divorce. The Court also noted that the wife had been in poor health since before the breakup of the marriage. In these circumstances, the Court determined that the wife was entitled to the payment of a lump sum as a financial award. The husband was ordered to pay the wife GH₵ 5,000.00 towards her health care expenses and an additional GH₵ 2,000.00 as a financial settlement.

Dadjawah v. Dadjawah, June 21 2013, High Court – Accra, Court File BDMC 317/2011

The parties were married under the Ordinance in 1985, previous to which they had been married customarily. The wife petitioned for divorce in 2011. The husband had abandoned the home in 2000 and the couple had lived separately since that time. The wife alleged that because the husband had abandoned the house and had not sent any money to the family after that time, she began renting out rooms in the matrimonial home to maintain herself and the children (both of whom were adults by the time of the petition for divorce).

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The wife tendered evidence of her contribution towards the construction of the matrimonial home which indicated that she had only contributed what the Court considered to be a "very insignificant if not negligible" amount.

The Court found that prior to the marriage between the parties, the husband had acquired an undeveloped piece of land that comprised three plots. After the marriage, the husband along with an "insignificant" contribution from the wife, built the matrimonial home on a portion of that land and intended only to use that portion as matrimonial property. As such, the undeveloped portion of the land remained the sole property and self-acquired land belonging to the husband. However, the Court held that the matrimonial home was the joint property of the parties for the sole reason that it was constructed or at least completed while the parties lived together as a married couple. The Court then went on to consider the Supreme Court decision in Mensah (G.) v. Mensah (S.), [2012] 1 SCGLR 391, and noted that it left the discretion with the High Court to make orders for the equitable distribution of marital property acquired during the subsistence of the marriage "in appropriate cases". As such, the Court ordered that the husband was to have, exclusively, the main house on the property, while the wife was to have the self-contained outhouse on the property. The husband was to pay to erect a dividing wall between the two.

In deciding the issue of whether to make a financial award to the wife, the Court stated that the fact that the parties had been separated from each other for the past 13 years would "whittle down" the financial award to be made to the wife. The Court went on to award the wife GH₵ 6,000.00 to enable her to resettle.

Tweneboah v. Tweneboah, June 24 2013, High Court – Accra, Court File BDMC 82/2011

The parties were married under the Marriage Ordinance in 1998. They constructed a two-bedroom boys’ quarters on land acquired by their joint efforts during the course of the marriage.

The wife, who ran a bakery, built a one room structure on the couple’s property to house the girls employed at the bakery. The husband took issue with the fact that this structure was started on the property without his permission and became violent with the wife. The wife’s uncle got the police involved after the incident. The marriage further deteriorated when the wife brought the husband before the Family Tribunal for payment of maintenance despite the fact that they were still living together. The husband, after consulting with other family members, decided to petition for divorce. The Court noted that it was “unfortunate” that at trial, after the Judge provided the parties with several opportunities to settle their differences, the wife continued to refuse to reconcile and restore the marriage despite the remorse expressed by the husband.

The couple had jointly acquired a double-plot of land upon which they had erected the matrimonial home and a garage. The wife had also built the one-room structure for her bakery girls.

The Court considered the decision in Mensah (G.) v. Mensah (S.), [2012] 1 SCGLR 391 and

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noted that it, and the previous cases of Mensah v. Mensah, [1998-99] SCGLR 350, and Boafo v. Boafo, [2005-06] SCGLR 705 mandated equal sharing of joint property in all circumstances. In deciding how to share the property, the Court noted that while it may have been the husband who funded the purchase of the land itself, the parties jointly put up the marital home while the wife single-handedly put up the one room structure. The Court noted that the wife’s bakery business did not provide her with enough to be able to build a new structure, while the husband was in a better financial position to construct his own house on the second plot. Accordingly, the Court ordered that the husband take the second plot with the one-room structure on it and the wife take the first plot with the matrimonial home on it.

When considering the wife’s petition for a financial award to compensate her for services rendered during the marriage, the Court noted that it would be fair and equitable for the husband to pay a lump sum to the wife to allow her a new start in life. As such, he was ordered to pay GH₵ 3,600.00 in that regard.

Customary Marriage Cases

Abubakari v. Abubakari, May 18 2006, Court of Appeal – Accra, Court File H1/152/2005, Reported by the Judicial Training Institute

In a case focussing on the issue of spousal and child support to be paid upon the dissolution of a customary marriage, Justice Dotse for the Court of Appeal stated that “the Law is fairly well settled that it is the responsibility of both parents to cater for their infant children”.

He also reaffirmed the principle that awards for daily maintenance for a spouse and children upon dissolution of a marriage (including a customary marriage) will be calculated based on what makes “sense” and is “sound and in consonance with present day economic realities”. Specifically with respect to child support amounts, Justice Dotse noted that the Court must calculate an amount that ensures that the interests and welfare of the children are adequately catered to because this is the only way effect and meaning can be given to the relevant sections of the Children’s Act, 1998 Act 560.

Owusua v. Akotua, November 3 2006, Court of Appeal, Court File HI/207/2005, Reported by the Judicial Training Institute

The Court of Appeal noted that the law, as it was then, did not allow the Court the liberty of quantifying domestic service (or any other activities performed by a spouse in the acquisition of property) into monetary equivalence outside of legislation. Under the then current state of the law, spousal domestic services however important they may be, could not be held to amount to a “contribution” by one spouse in a property solely funded by the other. Additionally, the Court also summarised the following applicable principles:

1. Where a divorcing spouse seeks the settlement of property rights, the Court must then determine the share in any property which belongs to one or the other spouse and will

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necessarily consider the question of contributions of either party substantial or otherwise towards the acquisition of the property.

2. Where a divorcing spouse seeks financial provision, the Court in making the award could also order the conveyance of a property from one spouse to the other depending on the justice or equities of the case. This can be awarded, in addition to financial provision or in lieu of financial provision. An award under the heading “financial provision” does not depend on contributions of the party whether substantial or otherwise. The only guiding principles are justice and equity.

Quaye v. Quaye, Court of Appeal – Accra, Court File H1/150/2006

The parties married under customary law in 1998. The marriage was recognised in the couple’s Church, but was never converted into an Ordinance marriage. The marriage lasted for 5 years without issue, after which the wife claimed that the husband became cruel, necessitating a divorce. She sought an order from the Court dissolving the marriage, distributing the marital properties, and awarding alimony.

The husband denied the claims, stating among other things that he had acquired the properties in question and started building on them before he was married to the wife. After hearing evidence, the Circuit Court transferred title in a piece of vacant land to the wife, awarded GH₵ 500.00 to the wife for her contribution to the making of a palm plantation owned by husband, and awarded a separate additional payment of GH₵ 300.00 financial provision from the husband to the wife. The husband appealed the decision.

The Court of Appeal reversed the Circuit Court’s decision regarding the GCH 300.00, stating that the wife’s evidence that she and her daughter had contributed to the construction of one of the husband’s buildings by carrying water and breaking stones did not amount to “substantial contribution”.

The Court of Appeal also reversed the Circuit Court’s decision regarding the award of GH₵ 500.00 relating to the palm plantation, stating that while the evidence was that the wife had cooked the husband’s palm nuts and removed the kernels, it was the husband who bought the palm nuts, and nursed the nuts into seedlings for the farm. The wife did not even know the location of the palm farm in question, and, as such, the Court of Appeal held that there was no evidence of contribution by the wife towards the palm farm.

Sackey v. Boakye-Mensah, March 13 2008, Court of Appeal – Accra, Court File HI/218/07, Reported by the Judicial Training Institute

The parties were married under customary law in 1978. The marriage broke down after 7 years.

In this case, the Court of Appeal made several authoritative statements concerning the division of property between spouses.

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Firstly, the Court re-stated 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:

(iv) That there was an agreement between the couple that the property in dispute, belonged to both of them or to them jointly.

(v) That they demonstrated 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.

(vi) That both parties 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 Court went on to note that the mere mention by a party that a spouse did “contribute”, without more, is not enough. He or she must prove the claim of contribution with satisfactory evidence, though not on a mathematical or commercial basis. The evidence must clearly point to joint ownership.

John Sarbah in his text, Fanti Customary Law, once stated that “under customary law whatever a wife helps her husband to acquire is the sole property of the husband” . The Court of Appeal reiterated the decision in Boafo v. Boafo [2005-2006] SCGLR 705 where it was noted that this statement of the law had outlived its purpose. Specifically, it is no longer applicable since the determination of joint ownership of spouses does not depend on the form of marriage entered into by the spouses.

The Court further noted that customary law does not recognize concubinage. A concubine cannot therefore claim for a share in his or her boyfriend or girlfriend’s property just because of services rendered to the boyfriend or girl friend during concubinage. The Court went so far as to say that customary law frowns on and gives no recognition to concubinage. In this particular case, because work the wife did with the husband (in regard to the purchase and export of African fauna to contribute to the construction of the disputed house) took place before she was married to the husband (i.e. during their period of concubinage), this work did not meet the requisite test for joint ownership of marital property.

Amponsah v Nyamaah, February 11 2009, Supreme Court – Accra, Court File J4/10/2008, Reported by the Judicial Training Institute

The parties were married under Akan customary law in 1991. They had four children. In 2003, the

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wife petitioned for a divorce at the High Court in Kumasi. She also sought alimony and a declaration that she was entitled to a portion of the matrimonial home. The husband cross petitioned for an order that he was entitled to one of the two shops being used by the wife.

The High Court held that the house the wife wanted a portion of was not owned by the couple and could not be settled on either of them. However, the High Court went on to make an order related to a totally separate property not named in the petition or cross-petition. The High Court further ordered that the husband was entitled to one of the two shops and the Court made no order as to alimony. Both parties appealed the decision.

The Court of Appeal held that the house the wife originally named in the petition was the marital home and should be partitioned and shared equally amongst the parties. The Court of Appeal also held that the separate property that had not been named in the petition or cross-petition belonged to the wife’s mother and was not the matrimonial home. The Court of Appeal also ordered the equivalent of GH₵ 2,000.00 be paid to the wife by the husband as a lump sum. The husband appealed this decision.

The Supreme Court found that the High Court’s decision to deal with a property not named in the petition or cross-petition was a judicial irregularity and the Court did not have the jurisdiction to make a pronouncement as to the ownership of it. The Supreme Court went on to hold that with respect to the property which was the subject of the original petition, the evidence showed that the parties exercised acts of ownership over the property and, as such, they are presumed to be owners. No evidence was adduced which was sufficient to rebut this presumption. Accordingly, the Court of Appeal was correct in ordering that this property be partitioned and shared equally between the parties.

The husband also sought a declaration that the alimony award was inequitable. However, the Supreme Court also held that the sum of GH₵ 2,000.00 was appropriate send off money to the wife in accordance with the meaning and spirit of section 20(1) of the Matrimonial Causes Act 1971 (Act 367).

Adzenya v. Adzenya, November 25 2010, Court of Appeal – Accra, Court File H1/43/08

In this case the question to be determined by the Court was whether the customary marriage between the husband and wife had been dissolved by customary law.

There was a meeting for the dissolution of the marriage of the parties which was attended by the elders from both sides. There were two meetings which the wife refused to attend even though she had been notified. The meeting went ahead and purported to dissolve the marriage. What was given to the wife as a send-off was unclear (the husband said she was given 500,000 cedis whereas the wife’s father said she was not given anything because she was not present).

Although she did not attend the meeting, the wife, through her lawyer, had written to the husband and the heads of both families indicating that she was prepared not to stand in the way of the

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divorce but that she wanted 250 million cedis financial provision and a two-bedroom house valued at 60 million cedis. It appeared that the family heads may not have received this letter, but the husband admitted having received it. Nevertheless, the letter was not considered at the meeting.

Despite the fact that the meeting purported to dissolve the marriage, at trial, it was determined that the husband and wife were still married. The Court of Appeal agreed with this finding, noting that those present at the meeting had failed to consider the views of the wife which she had attempted to communicate to them. Such a failure to consider these demands of the wife was held as fatal to the purported dissolution the gathering sought to have concluded. As such, the customary marriage was still subsisting between the parties. The implication of this decision was that the husband could not obtain an order ejecting the wife from the marital home due to the fact that the parties were still married and the wife had a right to remain in the marital home.

Dwumah v. Asare, July 19 2013, High Court – Accra, Court File BDMC 198/2012

The parties were married customarily sometime between 1982 and 1984. The wife filed for divorce in 2012. The parties each asserted that he/she alone was entitled to the matrimonial home. The husband claimed that he alone bought the land the house was on and put it in the names of the children. The wife, however, claimed that the she lent the husband GH₵ 570.00 when he was having trouble finding work and that her husband used that plus only GH₵ 30.00 of his own money to purchase, in the name of the children, the land the matrimonial house is located on. She further alleged that while it was the husband who built the two bedroom house on the land, she was the one to expand the porch and build another room on the land which the parties used as a kitchen and store. The wife also asserted that the husband later sold part of the land without her permission.

The Court noted the odd nature of the situation in that the disputed marital property was acquired in the names of the children rather than in the names of either of the parties. An additional oddity was the fact that both the husband and wife still lived in the home at the time of trial.

While the Court did not find the wife’s evidence of substantial contribution to the acquisition of the marital home credible given the evidence before it, it noted that she still had an interest in it given that it was clearly acquired during the subsistence of the marriage. Because the house was in the names of the three children, the Court held that the matrimonial home was being acquired for the beneficial interest of the parties for the duration of their life with a resulting trust for the children. As such, the property could not be settled on either party and it was held that the parties were to continue to occupy the house jointly (each party occupying a separate bedroom, the wife to also occupy the kitchen, the husband to occupy the hall, and both parties to share the toilet and bath facilities). The Court noted that both parties were at liberty to quit the property and find other uses for their respective interest in it if this arrangement was not suitable.

The Court also dealt with the matter of the farm properties in the Western Region. The Court noted that the wife failed to lead evidence as to how this land was acquired and what crops she herself had helped to plant on it. The husband, however, alleged that he had acquired the farm after the

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couple had separated and described the crops he cultivated there. In this case, the Court held that in a customary marriage, separation signals the end of marriage whether or not the parents or family of either party accepted the return of the drinks which the other party brings to dissolve the marriage. As such, the Court held that it was likely that the husband had started his farming business for himself and not for the wife he was separated from. The Court then considered the decision of Mensah v. Mensah [2012] 1 SCGLR 391 and concluded that the qualification that marital property should be shared in equal proportions in appropriate cases indicated that there could be exceptions to this general rule and that this case should fall under such an exception. One of the parties had shown a clear intention of acquiring a personal property during the period of separation in the marriage, an endeavour in which the other party did not participate at all. As such, that property was held to not form part of the marital property. The Court further noted that according to Mensah v. Mensah [2012] 1 SCGLR 391, parties are entitled to equal shares in marital property that was in existence at the time of the divorce and not what was not in existence at the institution of the divorce proceedings. In considering whether the wife was entitled to an award of her claim of GH₵ 10,000 in financial provision, the Court noted that it was "trite" knowledge that the order for the payment of a lump sum as financial provision is alternative to property settlement under section 20(1) of the Matrimonial Causes Act, Act 367. Further, the Court noted that it had already shared the marital property equally between the parties despite the fact that there was "some doubt" surrounding the contribution to it by the wife. The Court then stated that the serious antagonism and hostilities displayed between the parties during the trial made the Court unable to award any lump sum payment to the wife since any such award would have the tendency of heightening the already bitter relationship existing between them. The husband was, however, ordered to pay GH₵ 100.00 monthly and the school fees specifically with regard to the youngest child. The Court also ordered that the child was to respect her father and perform domestic chores for him such as fetching water for him, washing his clothes and cooking utensils in return for his fatherly responsibilities. Finally, the Court "formally" dissolved the customary marriage contracted between the parties.

Muslim Property Rights Cases

Adamu v. Adams, June 18 2007, Court of Appeal – Accra, Court File H1/360/05

The Plaintiff was the sister of the Defendant. The Plaintiff, a Muslim woman, contended that she had purchased a house in 1983 and was given a receipt of purchase along with a Statutory Declaration from the owner, who was deceased by the time of trial. The Plaintiff alleged that she then entrusted the house into the care of her brother, the Defendant, including giving him the responsibility of collecting rents from the tenants. She also put two of her sons into the house and then left for Koforidua to join her husband. The Plaintiff had difficulty collecting the rents from the Defendant and brought him before the Rent Office, at which time the Defendant asserted that he owned the house. He alleged that he had purchased the house and had only invited the Plaintiff to witness the purchase.

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Unsuccessful at the Rent Office, the Plaintiff took the matter to Muslim Elders for settlement but the matter was resolved in favour of the Defendant. She then initiated an action against the Defendant in Court but was again unsuccessful before the High Court. The Court preferred the evidence of the Defendant’s witnesses over the documentary evidence of the Plaintiff and took a negative view of the fact that the Plaintiff produced no witnesses to support her evidence, stating, for instance, that “in Muslim marriage the Husband plays a bigger role in the affairs of his wife. In this case the Plaintiff’s husband was not heard of”. The Court also criticized the Plaintiff for not calling as witness the person who she alleged sold her the house in question – despite the fact that the Plaintiff had advised the Court that said witness was dead. The Plaintiff appealed the decision.

The Court of Appeal held that the High Court’s decision was based on clear errors of fact. It also noted that the trial judge’s comments about the husband of the Plaintiff not being heard from during the trial was “unfortunate and regrettable” since there was no evidence that the husband of the Plaintiff had played any role whatsoever in the sale transaction of the house in dispute. Further, none of the parties pleaded or adduced evidence as to the role of the husband in Muslim marriage. The Court of Appeal then went on to reverse the decision of the trial Court and found that the totality of the evidence favoured the Plaintiff’s position. The Court of Appeal further found that the trial Court had erroneously accepted the unreliable contradictory and inconsistent evidence of the Defendant’s witnesses over the “cogent and unshaken” documentary evidence of the Plaintiff.

Esseku v. Inkoom et al, March 14 2013, Court of Appeal -- Accra, Court File H1/233/2008

The wife was married to the husband for over 30 years. The marriage was originally contracted under Akan customary law but was subsequently blessed at a Mosque. The husband claimed he had divorced the wife in 1995 according to Muslim tradition and custom. This marriage had produced 5 children. The husband had bought a one-bedroom house which the wife upgraded to a three-bedroom house in 1998. The wife occupied the house with the husband and their five children until 2003 when the husband sold the house to a third party. That third party entered the house in 2003 and forcibly evicted the wife and children from the premises. Consequently, the wife initiated an action against the husband and the third party for a declaration of title to the disputed house, an order restraining the husband from disposing of the property, an order setting aside the purported sale of the property and damages for trespass.

At trial the Court found that the marriage between the husband and wife had not been dissolved, that the disputed house was the joint property of the husband and wife and that the purported sale of the house to the third party was a nullity. The husband and third party appealed the decision.

The husband claimed that he had lodged a complaint against the wife before the Ahmadiyya Marriage Committee at Tema. According to him, the Committee investigated the marriage and, finding the complaint to be substantiated, dissolved the marriage in 1995 in a traditional Muslim fashion.

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The wife, conversely, claimed that the marriage was not dissolved and that she had lived together with the husband and children in the disputed house until 2003 when the husband left unceremoniously.

The Court noted that Akan customary marriage is a marriage between the family of the man and the family of the woman. When it is dissolved, both families meet to go into the matter to promote settlement and if settlement fails the marriage is dissolved in accordance with Akan/Fante custom. Both the husband and wife were Fante. Accordingly, the Court of Appeal upheld the trial Court’s decision that the evidence indicated that the customary marriage between the parties had not been dissolved and the parties were still married. Parties who marry under customary law must dissolve it according to the same custom or else the marriage will continue. Conversely, when any form of marriage is contracted under the Marriage Ordinance, the marriage may be dissolved in accordance with the law regulating that particular marriage.

The Court then went on to consider section 27 of the Marriage Act 1884-1985 (part 2) (the section dealing with the marriage of Mohammedans) where it indicates that a Muslim marriage is not valid unless registered in accordance with the Act. Since there was no evidence that the parties had registered their marriage in accordance with section 27 of the Marriage Act, the Muslim marriage celebrated at the Mosque was invalid according to law. As such, the purported Muslim divorce issued by the Ahmadiyya Committee was ineffectual since there was no legal Muslim marriage to dissolve in accordance with Muslim tradition. There was only the customary Akan marriage between the parties, which the parties had not dissolved according to Akan custom. As such, the Court of Appeal upheld the trial Court’s decision that the parties were still married.

With regard to the disputed house, both the husband and the wife asserted that they had been the one, respectively, to pay the purchase price of the house. However, the wife had no evidence to support her assertion and did not cross-examine the husband on the issue. As such, the Court found that the husband had paid the purchase price. This did not, however, change the fact that the wife had an interest in the property, it being their matrimonial home and also having been acquired during the period of the marriage. The Court noted that the wife maintained the husband and children when he had been laid off by his employees, which was substantial contribution on her part, earning her a half-share in the matrimonial home. The wife’s addition of the two bedrooms to a one-bedroom house was also a substantial contribution. The Court took note of the 2012 decision in Mensah v. Mensah, Suit No. J4/20/2011, where it was held that where a spouse has contributed substantially to the acquisition of the matrimonial home, the parties are entitled to equal shares of the property in accordance with the true intent of Article 22(3) of the 1992 Constitution of the Republic of Ghana. Further, having found that the husband and wife had equal shares in the matrimonial home, the Court of Appeal upheld the trial Court’s finding that the husband did not have the unilateral right to sell the matrimonial home. The Court of Appeal also held that the third party’s purchase of the house was not bona fide due to his lack of diligence in failing to ask basic questions about the property before purchasing it.

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Intestacy Cases

Ankomah-Sey v. Embra-Quansah, [1971] 2 GLR 274-280, July 5 1971, Court of Appeal

The Intestate man married a woman under the Marriage Ordinance after the dissolution of two customary marriages. He then remarried under customary law after the dissolution of the Ordinance marriage. There were no children of the Ordinance marriage. The man was survived by children of his customary marriage. Upon the death of the man, a dispute arose as to whether the children of the customary marriages were entitled to a grant in preference to the customary successor. The Court of Appeal affirmed that Cap 127 was clearly inapplicable given the fact that there was no surviving widow or children of the Ordinance marriage. As such, the estate was to be distributed according to customary law and, in that case, the lower Court was correct in holding that the customary successor was alone entitled to the grant of the letters of administration.

Kardo v. Billa, February 12 2004, Court of Appeal – Accra, Court File 25/2003, Reported by the Judicial Training Institute

Bintu Mumuni Kardo died having owned an estate in Takoradi. Her brother, the Plaintiff in this action, claimed ownership of the estate against the Defendant, who claimed that he was married to the late Bintu Mumuni Kardo and that the estate should, rightfully go to him.

The essence of the brother’s case was that because the husband had not complied with all of the customs that formed part of a Malian customary marriage, the Defendant husband and Bintu Mumuni Kardo were never actually married and, as such, the husband’s claim to the estate should fail. Specifically, the brother was able to establish that the husband had failed to bring kola nuts to for the Mallans and chiefs in the community in which the parties lived.

On appeal, the Superior Court found that the requirements of the customary marriage in this particular community required the performance of the customs before the father of the bride and not the Mallans or the chiefs. The evidence was that the father of the bride had, in fact, been presented with the kola nuts and the other requisite items for a customary marriage. Further, the father of the bride referred to the bride by her married name “Bintu Mumuni Kardo” on subsequent legal documents – indicating that he considered his daughter married to the husband.

The Court went on to state that for a marriage to be lawful there must be consent of the man and the woman who are of age to become husband and wife. The Court specifically noted that all other ceremonies and expenses pertaining to the marriage are superfluous. The agreement of the parties to live together as husband and wife and also the consummation of the marriage by cohabitation are the essentials of a valid customary marriage.

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Avesi et al. v. Johnson, February 12 2004, Court of Appeal – Accra, Court File HI/15/2004, Reported by the Judicial Training Institute

Ahortor died intestate. The Plaintiffs, Ahortor’s alleged widow and two children were granted Letters of Administration. Another woman, the Defendant, claimed to also be a widow of the late Ahortor and, as such, the trial Court granted joint Letters of Administration to her along with the others. The Plaintiffs appealed the decision, alleging that the trial Court erred in finding that the Defendant was also a widow of Ahortor. The Defendant, on the other hand, alleged that it was the Plaintiff who had failed to prove that she had been married to Ahortor at the time of his death.

The Plaintiff stated that she had been married to Ahotor for 50 years and had never met the Defendant. When Ahortor died, the Plaintiff provided items for the burial, participated in the funeral and underwent the widowhood rites. The head of the Ahotor’s family confirmed the Plaintiff’s evidence and added that on the one occasion when he had met the Defendant at Ahortor’s house, Ahotor advised him that the Defendant was a girlfriend. The Defendant, however, stated that Ahotor had told her that he was divorced from all his previous wives.

The Court of Appeal quoted with approval the words of Deane C.J. in Quaye v. Kuevi 1934 D. Ct. 69: “although it is highly desirable that a party seeking to establish a marriage should be able to point to the giving to the girl’s parents and acceptance of the rum as evidence of their consent to the marriage, yet the inability to show that such a ceremony has taken place would not in my view of itself be sufficient to invalidate a marriage if the consent of the parties to the marriage were proved by other means and if it were also proved that the parties have lived together in the sight of the world as man and wife”. The Court of Appeal then went on to hold the fact that the evidence of the parties supported the conclusion that the Plaintiff and Ahortor had been married customarily. With regard to the question of whether the Plaintiff had, since, divorced from Ahotor, the Court of Appeal noted that there is a procedure for the dissolution of a customary marriage; the initial step being an attempt at reconciliation by members of both families, when all attempts at reconciliation fail, the marriage is dissolved; drinks are offered and compensation is paid where appropriate. As these elements were not proved, there was no evidence before the Court that the marriage between the Plaintiff and Ahortor had been dissolved prior to his death. Further, the fact that the Ahortor’s family allowed the Plaintiff to perform the widowhood rites was also evidence that she was, in fact, his wife.

The Court then went on to consider whether the Defendant was a wife or a concubine of Ahortor. It noted that the Plaintiff had never been introduced to the Defendant as a rival, that the head of the family had been told by Ahortor that the Defendant was his girlfriend, and that the daughter of Ahortor who lived with Ahortor and the Defendant at the material times referred to the Defendant as Mrs. Nyame. The Court considered the decision in Yaotey v. Quaye 1961 GLR 573 where the essentials of a customary marriage were laid out as follows: “(1) Agreement by the parties to live together as man and wife (2) Consent of the family of the man that he should have the woman to wife, that consent may be indicated by the man’s family acknowledging the woman as wife of the man; (3) Consent of the family of the woman that she should be given in marriage to the man; that consent is indicated by the acceptance of drink from the

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man or his family, or merely by the family of the woman acknowledging the man as the husband of the woman and (4) Consummation of the marriage that is the man and the woman living together in the sight of all the world as man and wife.” The Defendant alleged that a delegation led by one Apotsi now deceased, a relation of Ahotor, met her family members and performed the marriage rites, drinks were presented and they there after lived together as man and wife. The defendant’s evidence that there was a marriage ceremony was corroborated in every material particular by the uncle of the defendant, who testified that he stood in for the parents of the defendant while the late Apotsi stood behind Ahotor. In considering this evidence, the Court of Appeal took note of Fanti Customary Laws where it states “where the parties “reside in such a distant place that it was impossible to obtain such consent a man and woman who voluntarily agree to live as man and wife for life can contract a valid marriage provided such agreement is expressly made in the presence of credible and responsible witnesses or in the presence of the chief or headman of the place followed by the man and woman living as husband and wife”. After noting that there was evidence that the marriage between the Defendant and Ahotor was celebrated in the presence of witnesses and that she had been nominated as a beneficiary of Ahotor’s death benefits, the Court of Appeal upheld the Trial Court’s finding that the Defendant was a wife of Ahotor. The Court took note of the fact that widows have duties and responsibilities such as the requirement under custom that they provide bathing items and pieces of clothing for the burial and undergo widowhood rites. The Defendant failed to do these things but that fact did not detract from the fact that she was a widow given the hostility between the Defendant and the Plaintiff’s family.

Obeng et al v. Omane et al, July 15 2009, High Court Koforidua, Court File E1/47/2007

In this case the children of the late Frank Asare brought an action against the Defendants, the maternal grand-nephews of the same Frank Asare, for, among other things, a declaration of title to a certain house and lands once belonging to the late Frank Asare, an order that the Plaintiff’s as Mr. Asare’s children, have the interest in and right to live in the said house, and an injunction restraining the Defendants from entering the property. Mr. Asare was of the Akan tribe and died intestate leaving a wife and children. The house in dispute was purchased by Mr. Asare who lived in it with his wife and children until his death in 1962. After Mr. Asare’s death, his widow and children continued to live in the house until the widow’s death in 1996, after which the children continued to live in the house until 2007 when the Defendants entered upon the land and began demolition and construction work. Because the Akan people are a matrilineal people, the Defendants argued that upon the death of Mr. Asare, he was customarily succeeded by his maternal relatives, namely, the Defendants. The Defendants also asserted that by custom, the Plaintiffs and their mother were only to be allowed to live in the house as the immediate family of the late Mr. Asare and that right was conditional upon them maintaining good behaviour. As such, the Defendants counterclaimed for a declaration that the Plaintiffs’ life interest in the property was extinguished by virtue of the fact that the Plaintiffs’ challenge of the title to the disputed house violated the condition of being of good behaviour.

The Court affirmed that the parties all belonged to the matrilineal system of inheritance and, as such, customary law dictated that Mr. Asare’s children could not succeed him since they

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were outside of the line of inheritance. Because Mr. Asare had not made any gift of the property to the Plaintiffs during his lifetime and died intestate, the disputed property devolved on his (maternal) family upon his death.

The Court also confirmed that upon the death of a man intestate, his self-acquired property becomes the property of the whole family, the immediate and extended (though the beneficial interest, enjoyment and control is in the immediate or branch family in respect of that particular family property). In a matrilineal system of inheritance the children of the deceased are not a part of his family and, thus, have no say in the succession of their deceased father’s property.

Further, the Court confirmed that a family member who builds on family land or cultivates a farm on such family land only acquires a life interest and such property becomes family property upon his death and cannot be disposed of during his life or by a Will. This includes houses or farms put on the land by the deceased. The children of such an intestate are entitled only to live in the house on such land as long as they are of good behaviour (which right they may forfeit by way of conduct that objectively appears to be misbehaviour – challenging the deceased’s family’s right to the property is an example of such conduct). The successor to the family property of the estate, however, is deemed to stand in the shoes of his predecessor with regard to the duty to maintain and train the children (within the means of the estate).

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