MENSAH vs. MENSAH [1997-1998] 2 GLR 193

CASES REFERRED TO

(1) Rimmer v Rimmer [1953] 1 QB 63; [1952] 2 All ER 863, 96 SJ 801, CA.

(2) Fribance v Fribance (No 2) [1957] 1 WLR 385; [1957] 1 All ER 357; 101 SJ 501, CA.

(3) Achiampong v Achiampong [1982-83] GLR 1017, CA.

APPEAL by the husband-appellant from the judgment of the Court of Appeal, inter alia, setting aside part of the decision of the High Court in favour of his wife-respondent and declaring her sole

[p.195] of [1997-1998] 2 GLR 193 owner of extensions to the main house jointly acquired by the parties for their joint use during the subsistence of their marriage.

Carson for the appellant.

No representation for the respondent.

Bamford-Addo JSC. This is an appeal from the judgment of the Court of Appeal dated 25 March 1993 in respect of a divorce petition which was filed by the husband for the dissolution of his marriage to the wife, custody of the children of the marriage and for a declaration that he is the owner of house No M9, South Effiakuma Estate, Takoradi. The wife cross-petitioned for dissolution of the marriage, custody of the children and a declaration that she is the owner of house No M9 South Effikuma Estate, Takoradi among other reliefs.

On 22 December 1986, Amuah J (as he then was) who heard the case, found that the marriage had broken down beyond repair; he consequently dissolved the marriage and adjourned the case for hearing of the ancillary reliefs. Essilfie-Bonzie J (as he then was) tried the ancillary relief issues and after hearing evidence gave judgment on 18 June 1990 for the wife, holding that she was the sole owner of house No M9 South Effiakuma Estate, Takoradi and declared: “I therefore make a declaration of ownership of the said house in her favour. The petitioner’s claim is dismissed and judgment is given in favour of the respondent on her counterclaim in the cross-petition.”

Dissatisfied with this decision, the husband appealed to the Court of Appeal, which court heard the appeal and gave judgment on 25 March 1993, allowing the appeal in part and setting aside part of the judgment of the court below. The Court of Appeal, having found that “this house belonged jointly to the petitioner and the respondent,” went on to decide how the house was to be shared and held that the extension was funded solely by the respondent and declared her the sole owner of the extensions.

The husband appealed against this particular decision of the Court of Appeal on the following grounds, namely:

“(1) The Court of Appeal, having rightly held that the ‘intention to own the house jointly, coupled with whatever contributions the petitioner had made towards the acquisition of the house made the parties joint owners of the property,’ erred when it held that the extensions are separable and identifiable from the main house.

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(2) That the Court of Appeal similarly erred when it held that ‘it would in the circumstances be inequitable to vest these extensions jointly in the petitioner and respondent’ because:

(a) there was evidence admitted by both parties that the extensions were not completed at the time of the hearing of the case;

(b) there was evidence that the petitioner had also expended large sums of money on building materials for the completion of the extensions but these were ignored by both the trial High Court and the Court of Appeal;

(c) since the Court of Appeal did not evaluate the contributions made by each party in relation to the total value of the entire property, it erred in separating and vesting the extensions in the respondent.

(d) equity is equality.

One of the reliefs sought by the husband in his petition was a declaration that he was the owner of house No M9 South Effiakuma Estate, Takoradi. The wife in her cross-petition also claimed as a relief that she be declared owner of the House No M9 South Effiakuma Estate, Takoradi. That was the issue to be decided. The Court of Appeal had rightly earlier made a finding that: “I am of the view therefore that even though the couple had acquired this house with the interest of their children in view, this house belonged jointly only to the petitioner and the respondent.” The court however went on to say: “In what manner should this house be shared? The evidence shows that all expenses on the extensions were borne by the wife-respondent. These extensions are separate and identifiable from the main house. It should in the circumstance be inequitable to rest these extensions jointly in the petitioner and the respondent. I would accordingly declare the respondent as the sole owner of the extensions and declare the house No M9 South Effiakuma Estate, Takoradi to be jointly owned by the petitioner and respondent.”

(The emphasis is mine.) The emphasised part of the above passage is what the husband is complaining about as per his grounds of appeal.

[p.197] of [1997-1998] 2 GLR 193

In the first place, the dispute is about the ownership of one house, ie house No M9 Effiakuma Estate, Takoradi comprising the main house plus the attached extensions, which together made up the said house, not a separable part thereof. This is the same house which both the petitioner and respondent in their petition and cross-petition respectively asked the court to declare as their individual property. For this reason, I find no basis for the finding by the Court of Appeal that “these extensions are separate and identifiable from the main house”, especially so when, as I. said, this is not the relief being sought by the parties themselves.

The evidence is that the house was acquired in 1973 and the extension works started in 1978 to 1979, when the parties were still married and cohabiting together, and also that up till the time of giving evidence in court, ie between 1989 and 1990 the extension works had not been completed. There is also evidence that it is the husband who applied to the State Housing Corporation for permission to build the extensions to the estate house, and that it was the husband who also procured someone to make the drawings of the proposed extension. These pieces of evidence in my view support the husband’s claim that he contributed to the extension works, while the parties were still married and living in the house together. The evidence further shows that the husband provided a room divider in 1983 and paid for the ceiling paneling; and that during the period of the construction of the extension works he was contributing as well to the household expenses, e.g. ¢10,000 of his money was taken away from his brief case by the wife and children to pay for the children’s fees and feeding costs, etc. Whatever that money was used for, it should be counted as contribution he made towards the family expenses in the house, including expenses towards the purchase of building materials for the extension. Such evidence can be found on the record, and if the Court of Appeal had properly considered them it would not have come to the conclusion it did, namely that the wife alone bore the cost of the extensions. Consequently, the finding of the Court of Appeal on the extension work was clearly erroneous as not supported by the evidence on record. However, the other finding that there was evidence of clear intention on the part of the parties to purchase the main house jointly for their use is a correct, and is supported by the evidence on record.

There was no evidence that the intention of the parties in acquiring the main house was any different from that in respect of the

[p.198] of [1997-1998] 2 GLR 193 extension to the house, nor was there any evidence of a prior agreement between the parties that the extension was to belong solely to one party alone. In such circumstances, the principle that property jointly acquired during marriage becomes joint property of the parties applies and such property should be shared equally on divorce, as the ordinary incidents of commerce have no application in marital relations between husband and wife who jointly acquire property during marriage. Furthermore, the holding that the extension was the sole effort of the wife was not only contrary to the evidence, but also contrary to the intention of the parties themselves, namely to provide more space in the house for the joint benefit of the parties and their children, which intention was no different from that for which the main house was acquired On the facts and the law, both parties become joint and equal beneficial owners of the main house and extensions.

In the case of Rimmer v Rimmer [1953] 1 QB 63 at 73, Denning LJ (as he then was) in considering the sharing of property jointly acquired by husband and wife during marriage, explained the rationale for the principle of equitable sharing of such property as follows:

“In cases when it is clear that the beneficial interest in the matrimonial home, or in the furniture, belongs to one or other absolutely, or it is clear that they intended to hold it in definite shares, the court will give effect to their intention . . . but when it is not clear to whom the beneficial interest belongs, or in what proportions, then, in this matter, as in others, equality is equity. In Newgrosh v Newgrosh (unreported) some furniture was bought by the husband’s father with his own money for the use of the couple, but the receipt was taken in the wife’s name. Willmer J held that the furniture belonged to them jointly and his decision was affirmed by this court. In Jones v Maynard ([1951] Ch 572), a banking account was in the husband’s name but was fed by the moneys of both and treated as a joint account. Vaisey J held that, although the husband’s contributions were much larger than the wife’s, it belonged to both of them jointly.”

Lord Denning then proceeded to examine the evidence in the case before him and continued at 73-74 thus:

“In this case, I look on the money which was paid by the wife to the building society as money saved by their joint

[p.199] of [1997-1998] 2 GLR 193 efforts and applied for their common benefit. I do not regard the sum of £280 as wholly the wife’s money. She, no doubt, regarded it as her money because it came out of her own earnings, but it must be remembered that she was keeping herself all the time on her husband’s money. The wife here, like many wives, managed the family income. She in fact used the husband’s money to pay the housekeeping expenses and saved her own money. But she might equally well, and with some justice, have paid some of the housekeeping expenses out of her own money and saved a corresponding amount of the husband’s money. If she had done that, some of the husband’s money would presumably have gone to make up the £280 to repay the building society. The important thing was to pay off the mortgage and it did not matter out of whose money it was paid. When they separate, years afterwards, the husband must be given some credit for the £280, seeing that it was only by using his money for housekeeping that she was enabled to save so much of her own. It was really saved by their joint efforts, and not by hers alone; and it was applied for their common benefit. The proceeds of it should therefore belong to them jointly.”

It was held in that case that the house belonged jointly to the parties and the beneficial interest should be divided equally between them.

In Fribance v Fribance (No 2) [1957] 1 WLR 384 the Court of Appeal, applying Rimmer v Rimmer (supra), also held that:

“the conduct of the parties over the years indicated that the spendings or savings were regarded as having been made for the common benefit, so that the wife was entitled to a half interest in the house.”

Denning LJ also noted at 387 that:

“In the present case it so happened that the wife went out to work and used her earnings to help run the household and buy the children’s clothes, whilst the husband saved. It might very well have been the other way round. The husband might have allotted to the wife enough money to cover all the housekeeping and the children’s clothes, and the wife might have saved her earnings. The title to the family assets does not depend on the mere chance of which way round it was. It does

[p.200] of [1997-1998] 2 GLR 193 not depend on how they happened to allocate their earnings and their expenditure. The whole of their resources were expended for their joint benefit—either in food or clothes and living expenses for which there was nothing to see or in the house and furniture which are family assets—and the product should belong to them jointly. It belongs to them in equal shares.”

This is the principle of the equitable sharing of joint property on divorce which was applied by the Court of Appeal in the case of Achiampong v Achiampong [1982-83] GLR 1017, CA where the court in deciding the ownership of the matrimonial home on divorce held, as stated in the headnote, holding (4) that:

“(4) Even if there were no agreement, the circumstances surrounding the acquisition of those properties and the conduct of both parties, were such that equity and good conscience would not have permitted either of them to claim exclusive beneficial interest in the properties and leave the other destitute. If the absence of agreement were allowed to be used by H as a weapon to defeat W’s claim, it would mean that H had been able to persuade W to act to her detriment and cleverly got away with it. Quite apart from the agreement, where during the marriage, one spouse had induced the other to apply his or her income or resources for the joint benefit of both of them and where the said earnings or resources in question could be regarded as substantial contribution and were so expended in the reasonable belief that he or she was acquiring a beneficial interest in properties purchased by the other spouse, as in the instant case, the court must on equi-table principles hold that the spouse who bought the property held the beneficial interest therein as a trustee for himself or herself and the other spouse.

Consequently, whichever way one might view the fact and the circumstances of the instant case, W was entitled in law and in equity, to some beneficial interest in all the properties in dispute, absence of agreement notwithstanding. Having regard to the extent of W’s contribution, that beneficial interest should be nothing less than a half-share as rightly held by the trial judge. Dicta of Lord Diplock in Gissing v Gissing [1971] AC 886 at pp. 904-905, HL and of Denning M R. In Falconer v Falconer [1970] 1 WLR 1333 at p.1336 HL applied.”

[p.201] of [1997-1998] 2 GLR 193

Further, the court held, as stated in the headnote, holding (6):

“(6) Although Act 367, s 20 (1) was procedural, it at the same time gave a discretion to the court to alter the proprietary rights of the spouses if in doing so it would be ‘just and equitable.’ The section did not lay down any principles as guidelines along which the discretion was to be exercised It left that to the good sense and judgment of the court However, in exercising that discretion, the court would have to be guided by law; the discretion meant sound discretion guided by law, not vague, arbitrary or fanciful. Consequently, where the rights of the spouses in respect of any property were established or agreed, as in the instant case, the court should uphold those rights. Again in exercising the discretion under the section, the court in the absence of agreement, had to take into consideration the financial contribution which the applicant made towards the acquisition of the property or properties in question. The contribution might be direct or indirect; and once it was regarded as substantial, it could not be ignored.”

Our Matrimonial Causes Act, 1971 (Act 367), s 20 empowers a court in a divorce case to settle proprietary rights of the parties on “just and equitable basis.” It provides:

“20. (1) The court may order either party to the marriage to pay to the other party such sum of money or convey to the other party such movable or immovable property as settlement of property rights or in lieu thereof or as part of financial provision as the court thinks just and equitable.”

Constitutional effect and force has been given to the principle of equitable sharing of joint property on divorce in article 22 (3) (b) of the Constitution, 1992 which provides thus:

“(3) With a view to achieving the full realisation of the rights referred to in clause (2) of this article —

(a) spouses shall have equal access to property jointly acquired during marriage;

(c) assets which are jointly acquired during marriage shall be distributed equitably between the spouses upon dissolution of the marriage.”

[p.202] of [1997-1998] 2 GLR 193 Having regard to the law and the evidence, the Court of Appeal correctly held that: “The intention to own the house jointly coupled with whatever contributions the petitioner had made towards the acquisition of the house made the parties joint owners of the property.” But it erred when it later made a contradictory findings regarding the extension to the same house thus:

“The evidence shows that all expenses on the extensions were borne by the respondent. These extensions are separable and identifiable from the main house. It should in the circum stances be inequitable to vest these extensions jointly in the petitioner and the respondent.”

The principle of equitable sharing of joint property which was applied by the Court of Appeal in this case to the main part of the house is applicable also to the extension works and therefore the parties are entitled to equal share of the whole house on the dissolution of the marriage.

In the result, the appeal by the husband succeeds and is allowed. House No M9 Effiakuma Estate, Takoradi comprising the main house and extension is declared the joint property of the husband and the wife to be shared equally. In place of the order of the Court of Appeal that the house should be valued for the wife to buy out the husband, it is ordered that the house be valued and sold and the proceeds shared equally between the husband and wide. However the respondent is to be given the first option to purchase the property.

Charles Hayfron-Benjamin JSC. I agree.

Acquah JSC. I agree.

Atuguba JSC. I agree.

Akuffo JSC. I also agree.

Appeal allowed.

SA