ADDAE VRS. DARLING AND ANOTHER (GJ/0335/2022) [2024] GHAHC 408 (31 October 2024)

IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT OF JUSTICE (GENERAL JURISDICTION DIVISION, COURT 12) ACCRA, HELD ON THE 31ST DAY OF OCTOBER 2024 BEFORE HIS LORDSHIP JUSTICE AYITEY ARMAH- TETTEH SUIT NO: GJ/0335/2022 BRIGHT ADDAE - PLAINTIFF/JUDGMENT CREDITOR/DEFNDANT VRS 1. AKOSUA SAKYI DARLING 2. SAMUEL APPIAH - DEFENDANTS/JUDGMENT/DEBTORS AND JOYCE KONTOR - CLAIMANT ------------------------------------------------------------------------------------------ PARTIES: - ABSENT COUNSEL: - DEMANYA MAWULEAGBE FOR THE PLAINTIFF/ JUDGMENT/ CREDITOR PRESENT Page 1 of 13 EMMANUEL NII ADJEI ANNAN FOR DANIEL KUPUALOR, ESQ., FOR THE CLAIMANT PRESENT ----------------------------------------------------------------------------------------------------------- JUDGMENT ----------------------------------------------------------------------------------------------------------- On 21st December 202I, the Plaintiff/Judgment/Creditor (Plaintiff) sued out a Writ of Summons against the Defendant/Judgment/debtor (Defendants) claiming the following reliefs: 1. An order compelling the Defendants to pay the sum of One Hundred Thousand, (GH¢100,000.00) being the total amount owed the Plaintiff by the Defendants for the failure and misrepresentations made to Plaintiff regarding the property at Amrahia, Kantamanso in the Greater Accra Region. 2. An order compelling the Defendant to pay interest at the prevailing interest rate on the above sum of one hundred thousand Ghana Cedis (Gh¢100,000.00) from 18th June, 2021 till date of final payment. 3. Damages for misrepresentation 4. Cost including legal fees 5. Any other order that the Court may deem fit. 6. Cost, including solicitor’s fees. The Defendants were served with the Writ of Summons and the Statement of Claim. They filed conditional appearance on 10 January 2022 but failed to file their Defence. In the events that followed on 25 March 2022, Plaintiff obtained a final judgment in default of defence in the sum of One Hundred Thousand Cedis (Gh¢100,000.00), interest on the said Page 2 of 13 amount at the prevailing bank rate from 18th June, 2021 to date of final payment, interlocutory judgment on relief (c) and costs of GH¢ 8,000.00. On 13 June 2022, Plaintiff filed an entry of Judgment and had it served on Defendants. Defendants failed to honour the judgment debt and as a consequence, Plaintiff initiated the execution process to recover the judgment debt. Plaintiff filed a writ of fieri facias and attached 2nd Defendant’s property, House Number C018 Pink Road Teshie – Nungua, Accra. Upon the attachment of the property in execution of the judgment obtained by Plaintiff, the Claimant, Joyce Kontor, on 9th February 2023, filed a Notice of Claim, claiming an interest in the property. On 2nd February 2023, Plaintiff disputed the claim by filing a Notice of Dispute to Claim. The Claimant subsequently filed an affidavit of interest detailing her interest in the property. By the depositions in the said affidavit, the Claimant claims as joint owner of the property as a wife of the 2nd Defendant. Plaintiff on 10th May, 2023 filed an affidavit disputing the interest of the Claimant. When the Registrar invited the parties under Order 44 rule 12(4) of C. I. 47, the Court ordered the parties to file their respective Witness Statements for the issue between them be determined by the Court. As the Plaintiff in the interpleader proceedings, the Claimant testified by herself and called one witness a son of the 2nd Defendant begotten to him by the Claimant. The Plaintiff testified and did not call any witness. The issue for determination is whether the property is a joint property of the 2nd Defendant and the Plaintiff and if it is, whether it can be attached in execution of the judgment debt of the 2nd Defendant. Page 3 of 13 The Claimant is the Plaintiff in these proceedings and claims to be a joint owner of the property attached in the execution of the judgment. She bore the burden of proof and the burden of persuasion on the issue. Section 17 of the Evidence Act, NRCD 323 provides as follows: Except as otherwise provided by law (a) The burden of producing evidence on a particular fact is on the party against whom a finding on that fact would be required in the absence of further proof; (b) The burden of producing evidence of a particular fact is initially on the party with the burden of persuasion as to that fact. Section 14 of the Evidence Act, 1975, (NRCD) 323 provides as follows: - Except as otherwise provided by law, unless it is shifted a party has the burden of persuasion as to each fact the existence or non-existence of which is essential to the claim or defence that he is asserting. And Section 10 (1) of the Act explains ‘burden of persuasion” as follows: For the purposes of this Decree, the burden of persuasion means the obligation of a party to establish a requisite degree of belief concerning a fact in the mind of the tribunal of fact or the court. In Wrangler Ghana Ltd v. Spectrum Industries Pvt. Ltd, Lands Commission [2023] DLSC 16164 the Court per Asiedu JSC held as follows: Thus, within the meaning of sections 12,13,14 and 17 of NRCD 323 as quoted above, whenever a party to a civil suit makes a positive averment which is crucial to a claim or defence which he had asserted in his pleading and which had been denied by his opponent and the party wishes to succeed on that claim or defence, Page 4 of 13 then the law enjoins that party to adduce that kind of credible evidence, in relation to the assertion made, within the meaning of section 17 as quoted above, which will establish that degree of belief in the mind of the court, in accordance with the provision contained in section 12 of NRCD 323, that the existence of the fact(s) which he had been asserted ( but which had been denied by his opponent) is more probable than its non-existence. The case of the Claimant is that she is the wife of the 2nd Defendant and the property is not owned entirely by her husband. The Claimant testified that she got married to the 2nd Defendant under customary law in 1987 and had the marriage registered at the Accra Metropolitan Assembly in September 2004. She testified that the customary marriage was converted to ordinance marriage on 26th November 2004. Claimant testified further that the marriage is blessed with five children. Claimant tendered in evidence exhibits A, and A2. Exhibit A is the Accra Metropolitan Assembly Registrar’s Certificate of the customary marriage between the Claimant and 2nd Defendant and it is dated 6th September, 2004 and Exhibit A2 is the certificate for the ordinance marriage. These certificates presume that the Claimant and the 2nd Defendant are married. Section 31(1) of the Evidence Act provides as follows: A marriage which has been celebrated before witnesses is presumed to be valid. This is a rebuttable presumption and it is the one whom the presumption is against that has the burden to rebut. The law is that it is the party against whom the presumption is invoked or against is the one who has the burden of producing evidence and the burden of persuasion to refute the presumption. See Ghana Ports & Habours Authority & Captain Ziem v Nova Complex [2007-2008] 2 SCGLR 806 at 824-825 per Wood CJ. Page 5 of 13 In the present case the Plaintiff did not provide any evidence to rebut the presumption the Claimant and the 2nd Defendant married and that the said marriage is valid. The Claimant called Ernest Appiah one of the children of the marriage between the Claimant and the 2nd Defendant. His testimony is that the Claimant and the 2nd Defendant are his biological parents. He corroborated the testimony of the Claimant that the Claimant is the wife of the 2nd Defendant. According to Erenst Appiah, his parents have been married for about 37 years. He testified further that he lived in the property with her parents since 2021 till he got married and moved out of the house. On the evidence I am satisfied that the Claimant is the wife of the 2nd Defendant and they have been married since 1987. The Claimant testified that the property is not entirely owned by the 2nd Defendant because she as a wife she has a beneficial interest in the property because the property is their spousal property which was acquired during the subsistence of their marriage and she contributed to its construction. According to Claimant the property has been their matrimonial home for the past 22 years. The Claimant testified that in or about 1997-98, she and the 2nd Defendant obtained the piece of land on which the property is situate from one “Ballom Bay “of G. P. R. T. U. Teshie of the Gbughlah family. The Claimant testified that after acquiring the land she and the 2nd Defendant were put in possession of the land and they commenced construction of the property which was completed in the year 2000 and they have since lived in the house. The Claimant further testified that she paid for substantial quantities of cement, sand, stones, and iron rods used in the construction of the property and single handedly supervised the building from start to finish as the nature of her husband’s work was such that he was almost always out of own on duties or on transfer to other regions. Page 6 of 13 The Claimant further testified that the building consists of 1 chamber and hall, 3 single rooms, a common kitchen, bath and toilet, and a store room. That in or about 2016, she constructed a car washing bay in front of the house and an overhead tank and has been operating the washing bay for the about 7 years. She further testified that she has recently constructed a bath and toilet attached to the chamber and hall to convert it to a chamber and hall self-contained. These pieces of evidence of the Claimant were not challenged or cross examined upon by the Plaintiff when he had the opportunity to cross examine the Claimant through his lawyer. The law is that when a party makes an averment and the averment is not cross examined upon by the opponent, the opponent would be deemed to have admitted that averment. See Fori v Ayerebi [1966] GLR 627 where the court held that: “Where a party had given evidence of a material fact and was not cross examined upon, he need not call further evidence of that fact.” Again, in Quagraine v Adams [1980] DLCA 1618 the Court of Appeal held that: Where a party makes an averment and his opponent fails to cross examine on it, the opponent will deem to have acknowledged sub-silentio that averment by failure to cross examine In the present case, the Plaintiff would be deemed to have admitted that the Claimant paid for substantial quantities of cement, sand, stones, and iron rods used in the construction of the property and single handedly supervised the building from start to finish as the nature of her husband’s work was such that he was almost always out of town on duties or on transfer to other regions. He will also be deemed to have admitted that the Claimant has constructed a toilet and bath attached to the chamber and hall to make it self-contained. Page 7 of 13 The Claimant testified that she lived with the husband and the 2nd defendant/Judgment/Debtor and their five children after the completion of the building but some have either married and relocated or travelled abroad. On the evidence, I am satisfied that the property was acquired during the subsistence of the marriage between the Claimant and the 2nd Defendant. The law is that property acquired during the pendency of a marriage is presumed to have been jointly acquired by the parties. The current jurisprudence of the Supreme Court on the law in respect of what constitutes a joint property acquired during marriage and its distribution upon dissolution is captured in the following statement of Appau JSC who delivered the majority decision in the Supreme Court decision in the case of Peter Adjei v Margaret Adjei; [2021] DLSC 10156 as follows: It is trite law that no two cases are alike and that every case is fact-sensitive, for that matter, each case must be determined on its peculiarities. However, this apex Court has, by its decisions, laid down general principles that guide the Courts in their application of the laws to peculiar circumstances. With regard to the distribution of jointly acquired properties during marriage upon divorce, this Court, in a plethora of decisions, has outlined and refined the principles that should guide the courts in their determinations. The decisions of this Court, dating back to the case of MENSAH v MENSAH [1998-1999] SCGLR 350, per Bamford- Addo, JSC, which we shall term the first Mensah case, then to Boafo v Boafo (supra); then the second Mensah v Mensah, (supra) per Dotse, JSC; Quartson v Quartson (supra); Arthur v Arthur (supra) and Fynn v Fynn (supra), have set out the parameters for determining which properties could be termed as ‘jointly- acquired marital properties’ and the criteria for the distribution of such properties. All these decisions were influenced by the provisions of the 1992 Constitution Page 8 of 13 under articles 22(2) & (3) on ‘Property rights of spouses’; 33 (5) on ‘Protection of rights by Courts’ and the provisions of section 20 of the Matrimonial Causes Act, 1971 [Act 367]. Articles 22(2) & (3) and 33(5) of the 1992 Constitution particularly, read: - “22 (2) Parliament shall, as soon as practicable after the coming into force of this Constitution, enact legislation regulating the property rights of spouses. (3) With a view to achieving the full realization of the rights referred to in clause (2) of this article – 10 (a) spouses shall have equal access to property jointly acquired during marriage; (b) assets which are jointly acquired during marriage shall be distributed equitably between the spouses upon dissolution of the marriage.” The combined effect of the decisions referred to supra is that; any property that is acquired during the subsistence of a marriage, be it customary or under the English or Mohammedan Ordinance, is presumed to have been jointly acquired by the couple and upon divorce, should be shared between them on the equality is equity principle. This presumption of joint acquisition is, however, rebuttable upon evidence to the contrary – {See the Arthur case supra, holding (3) at page 546}. What this means, in effect is that, it is not every property acquired single-handedly by any of the spouses during the subsistence of a marriage that can be termed as a ‘jointly-acquired’ property to be distributed at all cost on this equality is equity principle. Rather, it is property that has been shown from the evidence adduced during the trial, to have been jointly acquired, irrespective of whether or not there was direct, pecuniary or Page 9 of 13 substantial contribution from both spouses in the acquisition. The operative term or phrase is; “property jointly acquired during the subsistence of the marriage”. So, where a spouse is able to lead evidence in rebuttal or to the contrary, as was the case in Fynn v Fynn (supra), the presumption theory of joint acquisition collapses. (emphasis mine) I have made a determination that the house was acquired during the pendency of the marriage between the Claimant and the 2nd Defendant and the presumption is that it is jointly acquired property. And as with all rebuttable presumptions it is the persons whose interest the presumption is against that has the burden of rebutting that presumption. In the present case, the presumption of joint ownership is against the Plaintiff who claims the property is the sole property of the 2nd Defendant and he has the burden of proof to rebut the presumption. In Electroland Ghana Ltd v Madam Paulina Adomako & Anor. (J4/47/2023) [2024] GHASC 10 (28 February 2024) Lovelace-Johnson stated as follows: It is to be borne in mind that at all times the standard of proof in a civil matter is one of the balance of probabilities. This burden does not change even where a presumption in law come into play. The failure or success in rebutting a presumption in law is one of the pieces of evidence which a court will use to decide if a party has proved his overall case on the balance of probabilities so as to obtain a favourable judgment. In the present case, Plaintiff failed to led any evidence to rebut the presumption of joint ownership of the property which was acquired during the subsistence of the marriage between the Claimant and 2 Defendant. In addition, on the evidence the Claimant Page 10 of 13 substantially contributed to the acquisition of the house. I find and hold the Claimant is a joint owner of the house and they hold equal shares. The next issue is whether the property can be attached in satisfaction of the judgment of the 2nd Defendant who is a joint owner of the attached property. It is argued on behalf of the Claimant that matrimonial homes or jointly acquired properties cannot be attached in satisfaction of a judgment debt. I have been referred to the cases of Judge Akua Kuenyehia vrs NDK Financial Services Ltd and The Seed Funds Savings and Loans vs Honourable Emmanuel Ashie-Moore by Counsel for Claimant to buttress this argument. I have also been referred to the case of Electroland Ghana Ltd v Madam Paulina Adomako & Anor (supra) where the court held that: There being no evidence or claim by the defendant to an equitable share in the property, it cannot be attached in satisfaction of a debt she has incurred. 8 By this finding we confirm the finding of the court of appeal on ground (c) that the property in question cannot be attached in satisfaction of the defendant’s debt for the reason that no such equitable right has been proved. I think these cases should not be applied to the present suit, as Appau JSC said in Peter Adjei v Margaret Adjei(supra): It is trite law that no two cases are alike and that every case is fact-sensitive, for that matter, each case must be determined on its peculiarities. Page 11 of 13 The facts of the case cited by counsel for the Claimant are different from the facts in the present case. There being no evidence or claim by the Defendant to an equitable share in the property, it cannot be attached in satisfaction of a debt she has incurred. By this finding we confirm the finding of the Court of Appeal on ground (c) that the property in question cannot be attached in satisfaction of the Defendant’s debt for the reason that no such equitable right has been proved. In the case of Adade JSC in Merchant Bank (Ghana) Ltd v Ghana Primewood Product Ltd [1989-90] 2 GLR 551-571 opined as follows: “Precedents are merely to help us think about cases before us, they cannot do the thinking for us. We are in danger of submitting our thinking to be done for us, and this is because the impression is being created that, every case must have a precedent by which it should be decided, so that rather than do some original thinking about the case, we first try to look at the deciding precedent, and then proceed to push our case into the straight jacket of that precedent. “see also statement of Lord Denning in the case of PARKEWR VS PARKER [1954] I ALL E. R 22, cautioning on the reliance on precedent in the adjudication process. It is my view that in Judge Akua Kuenyehia vrs NDK Financial Services Ltd and The Seed Funds Savings and Loans vs Honourable Emmanuel Ashie-Moore cases the property was still considered as the matrimonial home and the court refrained from having it attached and lose its matrimonial character. In the present case, it is my view that the property has lost its matrimonial character and same can be attached in execution of the Judgment debt. The Claimant has established that she is a joint owner of the property and that the property was jointly acquired by her and the 2nd Defendant. The property has ceased to be the matrimonial home of the Page 12 of 13 Claimant and the 2nd Defendant. The Claimant testified that the property was their matrimonial home and that she was living in the said property with the 2nd Defendant and their five children. She further testified that the children have married and left the house and some have relocated and travelled abroad. The 2nd Defendant presently not in the house. Processes are served on him by substituted service. It is my view that the property has lost its matrimonial character and same can be attached for execution of the judgment debt. It will be unjust and unfair for the 2nd Defendant who has taken money from the Plaintiff under the pretext of selling to Plaintiff a land which land he failed to deliver. He has refused to refund the money to the Plaintiff. He cannot hide under the cover of matrimonial property to avoid the satisfaction of the judgment debt. The Claimant can buy off the interest of the 2nd Defendant in the house for the Claimant to be the sole owner of the property and the 50% share of the 2nd Defendant to be used to pay off the judgment debt and the balance if any is given to the 2nd Defendant or paid into court for his benefit. If the Claimant is unable to buy off 2nd Defendant’s interest, the property shall be sold and the 50% out of the proceeds given to the Claimant and the other 50% used in satisfying the judgment debt. (Sgd.) Ayitey Armah-Tetteh J. (Justice of the High Court) Page 13 of 13