Pokua v Kwakye (J4/17/2025) [2025] GHASC 109 (9 July 2025)

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IN THE SUPERIOR COURT OF JUDICATURE IN THE SUPREME COURT ACCRA – AD. 2025

Coram

LOVELACE-JOHNSON (MS) JSC PRESIDING PROF. MENSA-BONSU (MRS) JSC KULENDI JSC ASIEDU JSC GAEWU JSC

Civil Appeal

NO: J4/17/2025

9TH JULY, 2025

MRS. ABENA POKUA …. PETITIONER/RESPONDENT/APPELLANT

VRS

YAW KWAKYE …. RESPONDENT/APPELLANT/RESPONDENT

Judgment

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ASIEDU JSC.

[1.0]. My lords, the Petitioner/Respondent/Appellant, Abena Pokua, (hereafter referred to as the Petitioner), celebrated a customary law marriage with the Respondent/Appellant/Respondent, Yaw Kwakye , (hereafter referred to as the Respondent) in 1998. At the time of the marriage, the Respondent had other wives and children to the knowledge of the Petitioner. The couple had three children. Alleging that the marriage had broken down beyond reconciliatio n, the Petitioner filed the instant petition at the High Court for a dissolution of the marriage. The Petitioner also prayed the High Court for “an order for all matrimonial properties to be shared”. At paragraph 14 of the petition which can be found at page 2 of volume 1 of the record of appeal (ROA), the Petitioner pleaded that:

“14 The parties acquired the following properties in the course of the marriage: a) Self-contained House, Ajara Jn. Kade b) House, near CAC Church, Kade c) Commercial House, Prankese d) Ten (10) acre oil palm plantation, Prankese e) Five (5) acre oil palm plantation Prankese f) Four-acre oil palm Plantation, Prankese g) Two (2) rented market stores, Kade h) One rented shop, Kade i) Birim Court Restaurant (rented) j) Commercial house of two shops at Boadua k) Dabi Asem Hotel, Akrantebesa, Konongo l) Self-contained House, Dr Wood, Ekooso, Konongo m) Ten (10) plots of land at opposite Juaso cemetery Road Page 3 of 46

n) Three (3) excavators o) Two

(2) Landcruiser Prado p) Gold Office, Konongo Odumase q) Storey building, Tipper Jn, Bawjiase Road, Kasoa r) One (1) plot of land Tipper Jn, Bawjiase Road, Kasoa s) Six (6) plots of land, Kweikuma t) Two (20 stores, Kasoa market u) Uncompleted House, Topreman v) Uncompleted House, Akyem Akyease”

In his Answer, the Respondent denied virtually all the averments in paragraph 14 of the petition and prayed, by way of property settlement, at paragraph 42 of the Answer, that “the self-contained house at Ajara, Kade be given to the Petitioner. The marriag e was eventually dissolved by the High Court.

[2.0]. JUDGMENT OF THE HIGH COURT: My lords, after hearing the matter, the trial Judge, found in his judgment, delivered on the 9 th day of May 2022, at page 250 of the record of appeal, that the following properties were acquired during the pendency of the marriage between the parties: Dabi Asem Hotel at Akrantebesa, Konongo; House located at Dr. Wood, Ekooso, Konongo; House situate a t Topreman near Akyem -Kade; Storey building located at Tipper Junction, Bawjiase road, Kasoa; One Excavator machine; Uncompleted House at Akyem-Achiase; Six plots of land Kweikumah, Kasoa and One plot of land at Tipper Junction, Bawjiase road, Kasoa . Consequently, the trial Judge ruled, in respect of the properties that: “The Dabi Asem Hotel situate at Akrantebesa, Konongo is to be divided into two halves with each party having one -half. However, each party is at liberty to buy out the other. The uncompleted house at Akyem Achiase and the Storey building situate at Tipper Junction, Bawjiase road, Kasoa be handed over to the Page 4 of 46

Petitioner together for her to live in with the children of the marriage with a push off sum of GH₵150,000.00.

The Respondent is to be responsible for the education and health needs of the two children of the marriage while the Respondent is to be responsible for the feeding, clothing and accommodation of the children”

[3.0]. JUDGMENT OF THE COURT OF APPEAL: Aggrieved by the judgment of the High Court, the Respondent lodged an appeal with the Court of Appeal, which, on the 25 th July 2024, found that the parties engaged in a polygamous marriage and that they engaged in separate businesses and kept the proceeds from their businesses to themselves. By virtue of these facts, the Court of Appeal reasoned that “there was an implied ag reement that properties acquired by them shall be owned individually as it is their guaranteed right under article 18(1) of the Constitution”. Flowing from the above, the learned Justices of the Court of Appeal held that the presumption that properties acquired during marriage was joint property, was effectively rebutted by the Respondent herein and that, therefore, there was the need for the Court to determine whether or not the Appellant herein made monetary or non-monetary contribution to the acquisition of the properties which the High Court found to have been jointly acquired during the marriage.

[3.1]. In respect of the Dabi Asem Hotel at Konongo, the Court of Appeal found that the Appellant made no contribution to its acquisition. The Court found, with regard to the House at Dr. Wood, Ekooso, Konongo, that the Respondent acquired it for his wife Rukaya Abdil and that the Appellant could not even tell when and how that house was acquired. The Court also questioned the basis of the trial Court’s rejection of the evidence in respect of the House at Topreman, that because a brother of the Respondent gave evidence to corroborate the testimony of the Respondent that the said House was Page 5 of 46

gifted by his deceased father to them, the evidence of the brother could not be relied upon because he stands to gain from the House. The Court of Appeal found that the Topreman House was not jointly acquired by the Petitioner and the Respondent herein. With regards to the Storey building at Tipper Junction, Bawjiase Road, Kasoa, the six plots of land at Kweikuma, Kasoa, and the one plot of land at Tipper Junction, Bawjiase Road, Kasoa, the Court of Appeal found that the evidence adduced by the Respondent successfully rebutted any claim to joint acquisition by the Appellant herein and that the evidence given by the Appellant was a bare assertion without any concrete proof. The Court als o found, with respect to the Excavators, that the Appellant could not prove that these were jointly acquired by the parties herein and that the Respondent was able to produce evidence of receipts to show that two of the Excavators were rented by the Respon dent herein from A. A. Minerals Limited for his gold business. The Court of Appeal found that the Appellant produced no evidence to support her claim of joint acquisition of the Excavators. The Court reasoned that, since the receipts tendered by the Respon dent showed that at least two of the Excavators were rented, the claim of the Appellant that the three Excavators were purchased should have been rejected by the trial Court, especially, when the Petitioner stated that she was present when the Excavators w ere purchased, given that she had the opportunity to invite representatives of the vendors to give corroborative evidence in support of her claim.

[3.2]. The Court of Appeal found the following facts to have been successfully proved: (i) that the Respondent herein renovated the family house of the Petitioner in her hometown in order that the Petitioner will get a place to sleep when she visits her hometown, (ii) that the Respondent gifted the Ajara House with a store therein to the Petitioner, (iii) that the Respondent built a house (uncompleted) at Achiase for the Petitioner, (iv) that the Respondent gave a vehicle to the Petitioner, (v) that the Respondent also gave GH ₵100,000.00 to buy trade in her gold business, (vi) that the Respondent also gave a store at the Kade market together with stock of goods worth Page 6 of 46

GH₵200,000.00 to the Petitioner. The Court of Appeal considered the above as sufficient settlement of property on the Petitioner. Consequently, the Court of Appeal reduced the financial settlement of GH₵150,000.00 made in favour of the Petitioner by the High Court to GH ₵100,000.00. The Court of Appeal also affirmed the decision of the trial High Court that the Respondent be responsible for the educational and health expenses of the children of the marriage whilst the Petitioner takes care of the feeding, clothing and acco mmodation of the children. The Court of Appeal, therefore, substantially, set aside the judgment of the High Court.

[4.0]. APPEAL BEFORE THE SUPREME COURT: The Petitioner, through her counsel, filed the instant appeal on the 6 th August 2024, before this Court for an order to set aside the judgment of the Court of Appeal and a further order restoring the judgment of the High Court.

[4.1]. GROUNDS OF APPEAL: Before this Court, the Petitioner/Appellant has urged the following grounds of appeal: a. The Judgment is against the weight of evidence.

b. The Court of Appeal erred in law when they allowed ground (c) of the Respondent/Appellant/Respondent’s Ground of Appeal, when he had abandoned the said ground in his Written Submissions.

Particulars of Error of Law

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i. The Respondent/Appellant/Respondent stating ground (c) as one of the grounds or basis upon which he is challenging the judgment of the learned Trial Judge.

ii. The said ground (c) of the Grounds of Appeal bothering on the hotel at Konongo, Ashanti Region and residential house at Kasoa.

iii. The Respondent/Appellant/Respondent however woefully failing to argue the said ground (c) of his ground of Appeal (in his written Submissions).

iv. The said ground (c) of the Respondent/Appellant/Respondent therefore deemed to have been effectively abandoned.

v. The Court of Appeal as such not entitled to vacate the order made by the learned trial Judge in respect of the properties listed in the said ground (c) of the Grounds of Appeal.

vi. The Court of Appeal however under the guise of the omnibus Ground of Appeal (that judgment is against the weight of evidence), allowing the said ground (c) of the Grounds of Appeal.

c. The Court of Appeal erred in their review of the award of GH ₵150,000.00 as financial settlement by the learned trial Judge to GH₵100,000.00.

d. The Court of Appeal erred in law when they failed to determine the Appeal filed by the Respondent/Appellant/Respondent on the basis of his Grounds of Appeal and this has occasioned substantial miscarriage of justice to the Petitioner/Respondent/Appellant. Page 8 of 46

Particulars of the Error of Law

i. Rule 8 of C.I. 19 requiring the Respondent/Appellant/Respondent to file and specify specific Grounds on which his appeal was based and to be determined.

ii. The Respondent/Appellant/Respondent having filed his said Grounds of Appeal which formed the basis of the challenge of the judgment of the learned trial Judge.

iii. The Respondent/Appellant/Respondent having duly filed his Written Submissions based on his said Grounds of Appeal.

iv. The Court of Appeal therefore obliged to examine the appeal based on the Grounds of appeal and the Written Submissions in support of the Grounds of Appeal.

v. The Court of Appeal however in this case not basing its judgment on the Grounds of Appeal but on the basis of issues which it had suo motu raised outside of the Grounds of Appeal.

vi. The Court of Appeal thus delivering a judgment as if they were the trial Court thereby ignoring the submissions of the parties and their Counsel.

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vii. The said decision by [the] Court of Appeal thereby occasioning very grave and substantial miscarriage of justice to the Petitioner/Respondent/Appellant.

e. The Court of Appeal erred when it failed to rule on the objection raised against ground ‘B’ of the Grounds of Appeal filed by the Respondent/Appellant/Respondent and this has also occasioned substantial miscarriage of justice to the Petitioner/Respondent/Appellant.

f. The conclusion by the Court of Appeal that during the pendency of the marriage the parties intended to run their respective businesses and independently acquire their respective properties from each other is not borne out by the record.

g. Additional Grounds of Appeal would be filed upon the receipt of the Record of Appeal.

[4.2]. THE LAW ON DISTRIBUTION OF PROPERTIES AFTER DIVORCE: Before we discuss the merits or otherwise of the grounds of appeal, it is necessary for this Court to discuss and put into perspective the recent developments on the law governing the distribution of properties after divorce. My lords, on the 22 nd December 1986, the High Court, in Mensah vs. Mensah, declared the respondent wife the sole owner of house number M9 South Effiakuma Estate, Takoradi . Dissatisfied with that judgment, the petitioner husband appealed to the Court of Appeal. After the hearing, the Court of Appeal held that “Since on the evidence, there was a clear intention on the part of the parties to purchase the house jointly for themselves and their children, that intention, coupled with the contributions the petitioner had made towards the acquisition of the house, made the parties joint owners of the property. And since it Page 10 of 46

was very difficult to determine how much each of them had contributed, they would be held to have contributed equally because equality is equity”. In coming to this conclusion, the Court of Appeal found from the evidence on record that the main house was acquired with contributions from the couple, but that the extension to the house was solely funded by the wife. So, the Court of Appeal declared that the main house was jointly owned by the couple whiles the extension belong to the wife alone. See Mensah vs. Mensah [1993-94] 1 GLR 111, for the decision of the Court of Appeal. The husband petitioner, still not satisfied with the judgment of the Court of Appeal, lodged a further appeal with the Supreme Court. After hearing the appeal, the Supreme Court held, as reported in Mensah vs. Mensah [1997-1998] 2 GLR 193 that:

“It was clearly established from the evidence on record not only that H contributed towards the cost of the extension works but also the parties acquired the extensions for their joint use. Hence, in the absence of any evidence of a prior agreement between H and W that the extensions to the house were to belong solely to one party, the principle that property jointly acquired during marriage became joint property applied; and such property was to be shared equally on divorce as the ordinary incidents of com merce had no application in marital relations between husband and wife who jointly acquire property during marriage. This principle of equitable sharing of joint property on divorce had been given statutory expression in the provision of section 20 (1) of the Matrimonial Causes Act, 1971 (Act 367) which empowered the court in a divorce case to settle proprietary rights of the parties on “joint and equitable basis;” and was also given constitutional effect and force in article 22 (3) (b) of the Constitution, 1992 which provided, inter alia, that assets which were jointly acquired during marriage should be distributed equitably between the spouses upon the dissolution of the marriage. Accordingly, the principle of equitable sharing of joint property which was applied by the Court of Appeal to the main Page 11 of 46

house in the instant case was to be applied also to the extension works and the parties were consequently entitled to equal share of the whole house on the dissolution of the marriage”.

It is very clear from the holding of the Court that the Court found as a fact that both husband and wife contributed to the acquisition of the house together with the extension made to the house and that this was done during the period that they were married. From the evidence before the Court, it was established that the contribution by the parties was pecuniary and that the intention behind the acquisition of the house was to benefit the husband and the wife together. From the above, the Court recognised pecuniary contribution as a basis for a share, after divorce, in property acquired during marriage. To the extent that none of the parties could state with specificity the extent of his or her contribution, the Court decreed equal sharing of the property j ointly acquired, after divorce.

[4.3]. My lords, the case of Boafo vs. Boafo [2005-2006] SCGLR 705, was decided by this Court on the 9th March 2005. It is a case involving a couple married under the Marriage Ordinance who sought dissolution of the marriage and the distribution of property after the marriage had broken down beyond reconciliation. The Court held, with respect to the principles regulating the distribution of property after the dissolution of the marriage, that:

“The principle of equitable sharing of property jointly acquired by a married couple would ordinarily entail the equality principle, unless one spouse could prove separate proprietorship or agreement or a different proportion of ownership” “The provision in article 22(3)(b) of the 1992 Constitution and section 20(1) of the Matrimonial Causes Act, 1971 Act 367, only made provision for the equitable distribution of property jointly acquired without laying down the proportions in which Page 12 of 46