ELECTROLAND GHANA LTD VRS ADOMAKO & ANOTHER (H1/41/20) [2021] GHACA 40 (20 May 2021)

IN THE SUPERIOR COURT OF JUDICATURE IN THE COURT OF APPEAL ACCRA CORAM: - SENYO DZAMEFE, JA (PRESIDING) N. C. A. AGBEVOR, JA JENIFFER DOODO (MRS), JA Civil Appeal Suit No: H1/41/20 20th May, 2021 ELECTROLAND GHANA LTD - PLAINTIFF/APPELLANT VRS. MADAM PAULINA ADOMAKO KINGSLEY ADOMAKO - DEFENDANT/RESPONDENT - CLAIMANT/ RESPONDENT JUDGMENT DZAMEFE, JA The plaintiff/appellant issued this writ of summons against the defendant/respondent for the following claims; - a. An order for the payment of the amount of Gh¢1,004,747.70 being the debt owed by the defendant to the plaintiff for the supply of products to the defendant by the plaintiff. b. An order for the payment of interest on the said amount at the Commercial Bank lending rate from the 1st of January, 2014 until date of final payment. Page | 1 c. Cost In his statement of claim, the plaintiff averred that they are a limited liability company registered under the laws of the Republic Ghana and authorized to engage in wholesale and retail of electrical appliances, telephones and accessories. The defendant is the proprietress of Bigma Enterprise and at all material times dealt with the plaintiff company for the sale and purchase of electrical appliances on credit. The plaintiff’s case is that the defendant, on demand, was supplied electrical appliances on credit terms from which she was to pay within three (3) months from the date of supply. As at 31st December 2013, the plaintiff has supplied products worth Gh¢1,004,747.70 to the defendant. The plaintiff states that despite several attempts to get the defendant to pay she failed or refused to do so. By a letter dated 28th March 2017, the defendant admitted her indebtedness to the plaintiff to the tune of Gh¢1,004,747.70. The defendant in that same letter offered to pay the debt on instalments of Gh¢20,000 per month commencing from May 2017. Defendant has however refused to redeem her promise of paying back the debt and not responded to letters sent to her by their solicitors. Defendants conduct is affecting the plaintiff’s operations and capital hence this suit for the courts to compel her to pay. The defendant in her defence admitted that though the plaintiff’s had supplied goods to her on credit, the figure quoted by plaintiff as her debt is not wholly correct and that they have to go into accounts to confirm same. She said though it is true she promised to pay the debt on installments of G¢20,000 per month she could not do so because of some unforeseen circumstances that obstructed the promise. She said the plaintiff is aware that her main customer, the National Service Secretariat, had some crises that culminated in the withdrawal of funds to it and they could not pay their creditors including her. That Page | 2 adversely affected the operations of the defendant and the plaintiff is aware of that and so the non-fulfilment of the payment was not deliberate. That she is also not well of late and whenever she recovered will fulfil her obligations. The plaintiff/appellant applied for summary judgment which was granted by the trial High court. The court delivered itself thus; - “BY COURT: Having read the application for summary judgment, and its attachments as well as the pleadings in this matter it has always been the law that summary judgment is granted by the court where there are no triable issues in contention. See Ballat Nedam vrs Horion Marine Construction Ltd [2010] SCGLR, NIB vrs Mustapha, Sam Jonah vrs Kumi Dodoo, etc. Reading through the statement of defence of the defendant, I do not find any triable issue that the defendant has raised”. I will accordingly grant the application for summary judgment and further grant leave for the plaintiff to recover the Gh¢1,004,747.70 together with interest at the commercial bank rate from 1st January, 2014 till date of final payment. I award costs assessed at 7% of the amount granted under relief (a)”. Entry of judgment was filed by the plaintiff on 24th January 2018 and a writ of fi-fa directed at the Registrar dated 6th February 2018. On 17th May, 2018, one Kingsley Adomako (Claimant Respondent) filed a notice of claim that the immovable property seized in execution by the Deputy Sheriff of the High Court, Accra under a warrant of Execution issued in the action was his. The property was described as building on parcel No.1492, Block 14 Section 072 situate at Ashaley Botwe, Accra, also known as H/No.04800375, 10 NNK 04, Jemorky opposite Zion Prayer Centre Little Rose Down, numbered 04800736-11 NNK 04, Jemorky. The claimant attached the indenture in his name. The plaintiff/appellant also filed a notice of dispute on the 13th of June 2018 with intention to dispute the claim of the claimant to the ownership of the house in issue which was Page | 3 attached in execution on the 6th of February 2018 in respect of the judgment of the court dated the 20th day of December 2017. In the claimant affidavit in support of his claim he averred that the defendant/judgment debtor is his wife doing business under the business name and style Bigma Enterprise. That on the 10th of May, 2018 it came to his notice that his house commonly known as called H/No.04800736-10 NNK Jemokey-Ashalley Botwe has been seized in execution under a writ of fi-fa dated the 6th day of February 2018 to be sold by Public Auction. He said the property seized in execution in his self-acquired property in respect of which he holds a Land Certificate. That the said property was acquired solely by him in 2000, long before the wife registered her business on 22nd July 2009 under the business name Bigma Enterprise. It is his case that he is not part of the wife’s business and was not party to the suit which resulted in the judgment debt. He said further that the wife has no interest whatsoever in the said property seized in execution of the judgment. The seizure was therefore wrongful. The claimant said the house is his sole property and it is his bona fide property. He said he has five (5) children, three with the defendant and two with another woman. JUDGMENT The trial High Court judge in arriving at his decision posed two questions; - (i) Whether or not the judgment debtor has any interest in the property attached as a wife of the husband (ii)_ whether or not the interest of a spouse in a matrimonial property, if any, can be attached in satisfaction of a judgment debt incurred by that spouse alone. Page | 4 The trial judge held that the right of a spouse to hold property either alone or jointly has clearly been entrenched under Article 18 of the 1992 Constitution of Ghana which states as follows; - “Every person has the right to own property either alone or in association with others”. He said there is no evidence before him that the judgment debtor contributed to the acquisition of the attached property and the only basis for the property having been attached is that judgment debtor is the wife of the claimant plaintiff. The trial judge held that the principle of equal access to property acquired during the subsistence of the marriage must be viewed against the background of distribution of the matrimonial properties upon divorce but not to take away the right of a spouse to hold a property alone and in his or her sole name. The trial court held further that the presumption of equality in the sharing of the marital properties acquired during the subsistence of the marriage is relevant only during divorce or dissolution of the marriage. The court also held that the property of a husband cannot be liable for any attachment for the debt of a wife since there is no evidence before the court that the judgment debtor had any interest in the attached property. NOTICE OF APPEAL The plaintiff/judgment/creditor/appellant dissatisfied with this judgment launched this instant appeal on the following grounds; - 1. That the learned High Court Judge erred when he held that the interest of a spouse in a matrimonial property accrues only upon divorce or the death of the other spouse. Page | 5 2. That the learned High Court Judge erred when he held that the judgment creditor cannot attach a matrimonial property in satisfaction of a judgment debt owed by one of the spouses. 3. That the learned High Court Judge erred when he released the property executed in satisfaction of a judgment debt from attachment. The reliefs sought is to set aside the judgment of the High Court dated the 19th of November 2008 and for a declaration that a matrimonial property can be attached in execution of a judgment debt incurred by only one spouse. SUBMISSIONS GROUND 1 Counsel for the appellant submits that the properties acquired during the subsistence of a marriage are jointly owned by the spouses. The words of Article 22(3) of the 1992 Constitution are clear and unambiguous to the extent that, with the view to achieving the full realization of property rights of spouses, spouses shall have equal access to property jointly acquired during the marriage. The effect therefore is that, once the property is acquired during marriage it presupposes that they have equal use of the property. It is his contention that the learned trial High Court judge erred in establishing that properties acquired during marriage could not be jointly owned. Counsel for the respondent in response submitted the trial High Court judge was right in his judgment by upholding and following the law as determined by the Supreme Court which were in any case binding on the lower courts. What do our laws say about property rights in Ghana? Article 18 of the 1992 Constitution states; - Page | 6 Protection of privacy of home and other property 1. Every person has the right to own property either alone or in association with others. Article 22 – Property right of spouses 1. A spouse shall not be deprived of a reasonable provision out of a spouse whether or not the spouse died having made a will. 2. Parliament shall, as soon as practicable after coming into effect of the constitution, enact legislation regulating the property rights of spouses. With a view to achieving the full realization of the rights referred to in clause (2) of this article- a. spouses shall have equal access to property jointly acquired during marriage b. assets which are jointly acquired during marriage shall be distributed equitably between the spouses upon dissolution of the marriage. The question on the mind of this court is whether the learned trial High Court Judge was right in law when he held that “the presumption of property acquired during the subsistence of the marriage being joint property as established in the cases like Mensah vrs Mensah, Quartson vrs Quartson & Arthur vrs Arthur operates during divorce or dissolution of the marriage”. Before we delve into the issue, we want to state that even though the 1992 Constitution states that Parliament shall as soon as practicable enact legislation regulating the property rights of spouses, parliament has just enacted the legislation. The Land Act, 2020 (Act Page | 7 1036). The courts therefore rely on case law when it comes to property rights of spouses. Secondly this case came to court when the new law had not come into force, so the court relied on the old law. The Supreme Court speaking on the issue held, “We do not think this court’s thinking on the status of property acquired during the existence of any marriage is shrouded in confusion…. during the existence of the marriage union it is most desirable that the couple pool their resources together to jointly acquire property for the full enjoyment of all the members of the nuclear family in particular. But the decided cases envision on situations where within the union, parties may still acquire property in their individual capacities as indeed it is their guaranteed fundamental right as clearly enshrined under Article 18 of the 1992 Constitution. In which case they will also have the legal capacity to validly dispose if individually acquired property by way of sale … no court will in such clear cases invalidate a sale transaction on the sole legal ground that the consent and concurrence of the other spouse has not been obtained”. Fynn vrs Fynn [2013/14] 1 SC GLR 727. The decision in Mensah vrs Mensah [2012] 1 SC GLR 91 which in the mantra now is based on sharing of matrimonial properties upon divorce. Even then, the principle is applied on case to case basis. Mensah vrs Mensah (supra) per Jones Dotse JSC on the face of it suggested that a property acquired during marriage shall be construed as a joint property. Quartson vrs Quartson [2012] 2 SC GLR 1077 seemingly departing from the above case also decided that it is not every property acquired during marriage which shall become a joint property unless there is evidence to prove that the other party contributed either in cash or in kind. Fynn vrs Fynn (supra) stated the provision in Article 22(3) of the 1992 Constitution which provides that spouses shall have equal access to property jointly acquired during marriage and furthermore, proprieties jointly acquired during marriage shall be Page | 8 distributed equitably when the marriage is dissolved (emphasis mine). The Supreme Court said the property jointly acquired during a marriage shall be distributed equitably when the marriage is dissolved but not equally. There is the wrong perception that the apex court said equally. In the instant appeal, the facts say the defendant in the case is the wife of the claimant. There is no evidence before us that they are divorced or the marriage is to be dissolved. There is therefore no issue of spousal rights in their matrimonial property. The evidence before us which was not controverted in any way is that the claimant acquired this property by himself and the indenture is in his name. There is also no evidence before us that the defendant (wife) contributed either in cash or in kind towards the acquisition nor any evidence that the property in issue has been settled on her. We think the trial High Court judge was right in his decision that principle of equal access to property acquired during the subsistence of marriage comes into play during the distribution of the matrimonial properties upon divorce or dissolution of the marriage but not to take away the right of a spouse to hold property alone in his or her name. The wife had no interest in the property to be attached in execution of the judgment obtained. We affirm the decision of the trial High Court and dismiss that ground of appeal GROUND 2 Can the interest of a spouse in a matrimonial property be attached in satisfaction of a judgment debt? The trial High Court on this issue held that the property in issue belongs solely to the claimant/plaintiff with the incidents of ownership attached to it which means the claimant /plaintiff can alienate the property, sell it or do whatsoever he wants with the property and if the judgment debtor (wife) has any interest whatsoever it does not arise until there is divorce or dissolution of the marriage and so it follows that the property of the husband cannot be liable for any attachment for the debt of a wife. The Page | 9 trial High Court said with no interest of the judgment debtor in the attached property shown to the court, the court ordered the attached property to be released from attachment. – [page 74 ROA] Counsel for the appellant in his submissions stated that the trial judge erred in holding that the property could not be jointly owned and same cannot be attached in execution of the judgment debt. On the contrary, having established that the defendant/judgement/debtor has a joint interest in the property, it is their contention that her interest in the property can be attached in satisfaction of the judgment debt. Counsel referred this court to two foreign cases which seem to suggest that where the couple had a joint beneficial interest in the property, the effect of the attachment is to severe the joint beneficial interest so that the property is now held by the parties as tenants in common. Counsel for the respondents in his response submits the facts in the foreign cases cited by the appellant are not the same as in the instant case. Counsel submits that in Ghana as in many other countries the matrimonial home is considered a very important asset to the family and the courts have asserted a special protection for it against judgment creditors. Counsel referred this court to the case of Akua Kuenyehia vrs N. D. K. Financial Services Ltd delivered on 18th February 2014 (unreported) where Justice Novisi Aryene J (as she then was) held that “since the marriage was still subsisting each spouse is deemed to hold his share in the matrimonial home in trust for the other party’s enjoyment and benefit” and this is the position of the law in Ghana. The High Court in that case cited Jones vrs Challenger [1961] 1 QB 176. Page | 10 The court in the Jones case (supra) held among others that since the parties had divorced, the purpose of the trust regarding the matrimonial property no longer existed and with the extinction of the trust’s purpose there was a presumption that a sale could be ordered as per a trust for sale. Had the couple still been married, the husband’s beneficial interest in the property would have been considered differently as the trust’s purpose would be on going. So clearly the trust to provide a matrimonial home extinguishes only upon divorce. In the instant appeal the evidence before the High Court was that the property solely belongs to the Claimant/plaintiff and not to both as jointly acquired property and consequently there is no resulting trust. Secondly they are not divorced. We cannot but accept the submissions made by counsel for the respondent that the property was rightly adjudged by the trial High Court as belonging solely to the Claimant plaintiff and not a joint property. Secondly they are not divorced for the wife to claim for any equitable right if any in the property. The Supreme Court of Ghana has asserted that distribution of assets acquired during marriage must be done equitably upon the dissolution of the marriage. We do not think that equitable right the judgment/debtor has in the Claimant/plaintiff’s property is enough to warrant the property being attached for her judgment debt. The decision of the trial high court judge is hereby affirmed and that ground is dismissed as well This appeal lacks merit and same is dismissed in its entirety. SGD SENYO DZAMEFE (JUSTICE OF APPEAL) Page | 11 SGD N. C. A. AGBEVOR (JUSTICE OF APPEAL) SGD JENNIFER A. DODOO (JUSTICE OF APPEAL) I AGREE I ALSO AGREE COUNSEL John A. Larkai for the Claimant/Respondent Frimpong Mensah for the Plaintiff/Appellant Page | 12