WOLANYO VRS. KORMEGBE AND OTHERS (E12/AHC/36/21) [2025] GHAHC 33 (30 January 2025)

IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT OF JUSTICE AMASAMAN, ACCRA, HELD ON FRIDAY THE 30TH DAY OF JANUARY, 2025 BEFORE HER LADYSHIP JUSTICE PRISCILLA DAPAAH MIREKU (MRS.) SUIT NO. E12/AHC/36/21 FELICIA WOLANYO … PLAINTIFF VRS 1. ERIC K. KORMEGBE 2. DINNAH QUAYSON 3. SAMUEL THOMPSON … DEFENDANTS JUDGMENT The summary of the case before this Honourable Court is that the Plaintiff the wife of the 1st Defendant alleges that, her husband, the 1st Defendant has sold their matrimonial property to the 2nd and 3rd Defendants without her knowledge and consent. Suit No. E12/AHC/36/21: Felicia Wolanyo vs Eric K. Kormegbe & Ors Page 1 of 14 The Plaintiff alleges that they jointly acquired the subject matter in dispute in the year 2000 at a consideration of Nine Hundred Ghana Cedis (GH¢900.00) in which the Plaintiff paid Three Hundred Ghana Cedis (GH¢300.00) and the 1st Defendant paid Six Hundred Ghana Cedis (GH¢600.00). The subject matter is a school by name Great Assurance Academy School. That the 1st Defendant after selling the said property has solely pocketed the money from the sale of the school. The 2nd Defendant denies the subject matter being a matrimonial property but rather an educational facility and alleges that the purchase of the subject matter is proper. The 1st Defendant also alleges that the subject matter is his sole business and has never been matrimonial home. That the Plaintiff has always been in the known of the sale of the subject matter and assisted in the sale of same. That when the school was sold and initial payment made, he gave the Plaintiff Three Thousand, Six Hundred Ghana Cedis (GH¢3,600.00) for accommodation. That the Plaintiff’s tenancy had elapsed, and the landlord threatened to throw her out of the house. That he also gave Two Thousand, Five Hundred Ghana Cedis (GH¢2,500.00) to one of their children by name Blessed. That he also paid SSNIT arrears of Fifteen Thousand Ghana Cedis (GH¢15,000.00). That the Plaintiff is not entitled to her reliefs and same should be dismissed. The Writ of Summons and Statement of Claim was filed by the Plaintiff on the 22nd day of June, 2021 and endorsed on same are the following reliefs; 1) Declaration that the 1st Defendant’s purported sale of matrimonial property Great Assurance Academy School, Omajor is wrongful in law. Suit No. E12/AHC/36/21: Felicia Wolanyo vs Eric K. Kormegbe & Ors Page 2 of 14 2) An Order setting aside the sale of matrimonial property Great Assurance Academy School, Omajor, Accra. 3) Perpetual injunction against the Defendants, privies, assigns, heirs, workmen from or anyone claiming through from alienating, selling occupying or dealing in any way with the property. 4) General damages. 5) Cost including legal cost. Even though the 2nd Defendant also filed a Defence and Counterclaim, she failed to file her witness statement or participate in the hearing of the suit even though she had notice of same. The 3rd Defendant also did not file any process. The issues set down for trial are as follows; i. Whether Great Assurance Academy is a matrimonial home for the Plaintiff and 1st Defendant? ii. Whether or not the Great Assurance Academy is a joint property of the Plaintiff and 1st Defendant? iii. Whether or not 1st Defendant was unemployed at the time of the construction of the Great Assurance Academy? iv. Whether or not Plaintiff solely financed the construction of Great Assurance Academy? v. Whether or not the 1st Defendant sold the Great Assurance Academy without the consent of the Plaintiff? Suit No. E12/AHC/36/21: Felicia Wolanyo vs Eric K. Kormegbe & Ors Page 3 of 14 vi. Whether or not the proceeds of the sale of Great Assurance Academy were enjoyed by the 1st Defendant alone? vii. Whether or not the 1st Defendant sold a 3-bedroom house and did not give anything to the Plaintiff? viii. Whether or not the Plaintiff is entitled to her claim? ix. Any other issue(s) arising out of the pleadings. This Honourable Court is of the view that the first issue for consideration should be whether Great Assurance Academy is a joint property of the Plaintiff and 1st Defendant. Both the Plaintiff and the 1st Defendant admit that they are husband and wife and their marriage is yet to be dissolved. They both did not inform the Court as to when they celebrated their marriage but there is no issue as to whether the subject matter was acquired before the celebration of their marriage or during their marriage. The evidence on record is that the subject matter was acquired during the subsistence of their marriage even though the marriage is still subsisting. However, the Plaintiff alleges they jointly acquired the subject matter while the 1st Defendant alleges that he solely acquired the subject matter. In the case of Kofi Amofa Kusi v. Afia Amankwa Adarkwa (Civil Appeal No. H1/34/2021), the Court was of the view that property acquired by a spouse during the marriage is presumed to be matrimonial property. The presumption is that any property acquired during marriage is matrimonial property unless proven otherwise. Suit No. E12/AHC/36/21: Felicia Wolanyo vs Eric K. Kormegbe & Ors Page 4 of 14 Counsel for the 1st Defendant in his address to the Court depose that, the talk of joint property and others are a feature of petition for divorce and this present action is none of that. That the property, Great Assurance Academy was acquired by only the 1st Defendant. This action indeed is not a matrimonial cause or action. However, I disagree with Counsel for the 1st Defendant that, the issue of joint property can only be discussed under divorce. If that is the case, then what Counsel is submitting is that no spouse can bring an action to protect their interest in properties jointly owned by them even when the marriage is still subsisting. The onus is heavily on the Plaintiff to prove that the subject matter was jointly acquired by the Parties as the 1st Defendant has denied same and claim sole ownership of the subject matter. In the case of Fynn v. Fynn [2013-2014] 1 SCGLR 727, the Supreme Court distinguished the right of an individual to acquire a property from its earlier decisions rendered in Mensah v. Mensah [2012] 1 SCGLR 391 and Quartson v. Quartson [2012] 2 SCGLR 1077. The Supreme Court held that there are situations where, within the union, Parties may acquire property in their individual capacities and that position is envisaged by Article 18 of the 1992 Constitution of Ghana. In making a determination whether the subject matter in dispute is a joint property, the Court will take a look at the evidence of the Parties. The Plaintiff testifies that they bought the subject matter at a consideration of Nine Hundred Ghana Cedis (GH¢900.00). That the 1st Defendant paid Six Hundred Ghana Cedis (GH¢600.00) to their grantor and later she paid the outstanding Three Hundred Ghana Cedis (GH¢300.00) since her husband was not in any gainful employment but she was working with Mega Vest Clinic at North Kaneshie. The Plaintiff did not tender any receipt as proof of her payment of the Three Hundred Ghana Cedis (GH¢300.00) as she claims she paid the Three Hundred Ghana Cedis (GH¢300.00) through her husband. She further led evidence that she brought medicines from her place of Suit No. E12/AHC/36/21: Felicia Wolanyo vs Eric K. Kormegbe & Ors Page 5 of 14 work for her husband to sell same to peddlers and proceeds used to construct the school on the subject matter in dispute. She called their son Blessed Quarcoo (PW1) to come and testified on her behalf. PW1 testified that he was the one that used to carry the medicines from the hospital to the house as a boy. The 1st Defendant also testified that he bought the land in dispute at a consideration of Nine Hundred and Thirty-Four Ghana Cedis (GH¢934.00) and not Nine Hundred Ghana Cedis (GH¢900.00). That he initially paid Eight Hundred Ghana Cedis (GH¢800.00) and later paid the balance and tendered Exhibit ‘2’ as proof of same. Exhibit ‘2’ is a receipt of Eight Hundred Ghana Cedis (GH¢800.00) of the alleged payment for the subject matter. That an indenture was issued in his name and he solely constructed the school without any assistance of the Plaintiff and registered same. The 1st Defendant testified that at the time he paid Eight Hundred Ghana Cedis (GH¢800.00) for the land, the Plaintiff was out of the jurisdiction and has travelled to Togo to see her mother. The Plaintiff is the one who is alleging she contributed to the acquisition of the land and the construction of the school Great Assurance Academy and same has been denied by the 1st Defendant. Thus, the onus was on the Plaintiff to prove her claim by the preponderance of probability. Section 12 of the Evidence Act 1975 (NRCD 323) provides that, “(1) Except as otherwise provided by law, the burden of persuasion requires proof by a preponderance of the probabilities. (2) “Preponderance of the probabilities” means that degree of certainty of belief in the mind of the tribunal of fact or the Court by which it is convinced that the existence of a fact is more probable than its non-existence.” Suit No. E12/AHC/36/21: Felicia Wolanyo vs Eric K. Kormegbe & Ors Page 6 of 14 Section 10(1) of the Evidence Act 1975 (NRCD 323) provides that, “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.” According to Section 11(4) of the Evidence Act 1975, (NRCD 323), “… the burden of producing evidence requires a Party to produce sufficient evidence so that on all the evidence a reasonable mind could conclude that the existence of the fact was more probable than its non-existence”. As stated in the case of Kofi Amofa Kusi v. Afia Amankwa Adarkwa (Supra), properties acquired by a spouse are presumed to be matrimonial property. The contribution of a wife towards acquisition of a property during marriage can be in various forms and not just financial. The indenture the 1st Defendant alleged was issued to him after the acquisition of the land in 2004 indicates that the indenture was executed in the year 2000, four (4) years prior to the acquisition of the subject matter. The Plaintiff did not tender any receipt to prove her alleged payment of the Three Hundred Ghana Cedis (GH¢300.00) payment made by her and Exhibit ‘2’ suggests that the financial contribution of Three Hundred Ghana Cedis (GH¢300.00) is not probable as the money outstanding to be paid after the initial payment was One Hundred and Thirty-Four Ghana Cedis (GH¢3134.00) and not Three Hundred Ghana Cedis (GH¢300.00). Even though the Plaintiff failed to prove the financial contribution she made in the acquisition of the land, as aforementioned, contribution by spouses in a marriage is not only financial. The Plaintiff testified how she used to bring medicine from her place of work and Suit No. E12/AHC/36/21: Felicia Wolanyo vs Eric K. Kormegbe & Ors Page 7 of 14 gave same to her husband, the 1st Defendant to sell to use same to construct the school on the land. The Plaintiff and PW1’s claim of taking the medicine from her workplace and the PW1 carrying it to the father is a claim the Court believe same to be true as that. As rightly stated by the Plaintiff Counsel in his address to the Court, “the ordinary incidents of commerce had no application in the ordinary relations between husband and wife” and where a wife makes contribution towards the acquisition 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 materialize (see the cases of Abebrese v. Kaah [1976] 2 GLR 46 and Gladys Mensah v. Stephen Mensah [2012] SCGLR 391). In dissolution of a marriage, the Court takes the presumption of all properties acquired during the marriage as jointly owned unless rebutted seriously. In taking consideration of all the evidence before the Court, this Court is of the view that, the Parties jointly acquired the subject matter that is why the 1st Defendant testified that they made the decision to sell the subject matter and the Plaintiff participated in the sale and even went to look for buyers when the evidence shows that the 1st Defendant and the Plaintiff are no more cohabiting as husband and wife in the same place of abode. The next issue for determination is whether or not the subject matter is a matrimonial home for the Plaintiff and 1st Defendant. The Plaintiff alleges that the school also serves as their matrimonial home. The 1st Defendant, however, denies same. The Plaintiff tendered pictures to show that they were occupying some of the classrooms of the said school and that indeed that is their place of abode. Aside the 1st Defendant denying that the said school was their matrimonial home, he did not lead any contrary evidence. A perusal of Exhibit ‘C’ series indeed convinced this Court that indeed, the subject matter served as their matrimonial home until the 1st Defendant Suit No. E12/AHC/36/21: Felicia Wolanyo vs Eric K. Kormegbe & Ors Page 8 of 14 moved out. Thus, the evidence shows that, the Plaintiff’s claim that the subject matter is their matrimonial home is more probable than the 1st Defendant’s claim as under cross- examination, it also came out that, the Plaintiff is still in occupation of the subject matter. Issues (c) and (d) have already been discussed when Issue (b) was being discussed so the Court will move to Issue (e) which is whether or not the 1st Defendant sold the Great Assurance Academy without the consent of the Plaintiff. The Plaintiff alleges that the 1st Defendant sold the school without her knowledge and her consent while the 1st Defendant denies same and alleges that he did so with the full knowledge of the Plaintiff and even gave her Three Thousand, Six Hundred Ghana Cedis (GH¢3,600.00) for accommodation as her landlord was ejecting her. According to the 1st Defendant, the Plaintiff even participated in the sale and went out to look for buyers when the decision was taken to sell the school. This statement by the 1st Defendant even confirms this Court’s finding that the subject matter was a joint property. If it was duly acquired and own by the 1st Defendant, he would have not needed the consent of the Plaintiff to sell same. The Plaintiff claims when her son, PW1 informed her that the 1st Defendant was selling the subject matter and has gone ahead to take a commitment fee of Twenty Thousand Ghana Cedis (GH¢20,000.00), she sent to her son to inform him that the property belongs to both of them so he cannot sell same without her consent. That after that, she went to Legal Aid for advice and further took an action at the Adjabeng District Court for divorce and equitable distribution of the property. The Plaintiff tendered a notice to set matter for trial as Exhibit ‘A’ which same indicated that the notice was filed on 12th March, 2021. This buttresses the Plaintiff’s claim and this Court Suit No. E12/AHC/36/21: Felicia Wolanyo vs Eric K. Kormegbe & Ors Page 9 of 14 finds that, indeed the 1st Defendant sold the subject matter without the consent of the Plaintiff. The next issue for determination is whether or not the proceeds of the sale of Great Assurance Academy were enjoyed by the 1st Defendant alone. The Plaintiff alleges that the 1st Defendant after selling their joint property pocketed the money without giving her anything. The 1st Defendant alleges that, he gave her Three Thousand, Six Hundred Ghana Cedis (GH¢3,600.00) for her to pay rent. That he also gave Two Thousand, Five Hundred Ghana Cedis (GH¢2,500.00) to one of their children by name Blessed. That he also paid SSNIT arrears of Fifteen Thousand Ghana Cedis (GH¢15,000.00) and also paid loans as the school was in great debt that is why same was sold. The Defendant tendered Exhibit ‘10’ series as proof of documents of loans contracted. Exhibit ‘10’ series are receipts of loan payments and Exhibits ‘11’ to ‘20’ which are alleged loan documents dates are all prior to 2020 when the school was allegedly sold to the 2nd and 3rd Defendants. If indeed some of the proceeds of the sale was used to pay for the loans, there would have been receipts dated after the date of purchase for payment of the loans. Also, there is no evidence that Fifteen Thousand Ghana Cedis (GH¢15,000.00) was used to pay SSNIT arrears for the school. Thus, this Honourable Court finds that, the 1st Defendant did not give the Plaintiff any of the proceeds of the sale of the subject matter but rather kept all to himself excluding what he gave to their son (PW1). The Court is of the view that, Issue (g) which was also adopted by the Court is not relevant as the 3-bedroom mentioned is not a subject matter of dispute in this Court and whether or not the 1st Defendant sold a 3-bedroom house and did not give anything to the Plaintiff has no relevance to the issue before the Court for determination. Suit No. E12/AHC/36/21: Felicia Wolanyo vs Eric K. Kormegbe & Ors Page 10 of 14 The last issue for determination is whether or not the Plaintiff is entitled to her claim. The claim of the Plaintiff are: 1) Declaration that the 1st Defendant’s purported sale of matrimonial property Great Assurance Academy School, Omajor is wrongful in law. 2) An Order setting aside the sale of matrimonial property Great Assurance Academy School, Omajor, Accra. 3) Perpetual injunction against the Defendants, privies, assigns, heirs, workmen from or anyone claiming through from alienating, selling occupying or dealing in any way with the property. 4) General damages. 5) Cost including legal cost. The 1st Defendant has not denied selling the subject matter to the other Defendants. The Court has made findings that the subject matter in dispute is a joint property of both Parties as same was acquired by the Parties during the subsistence of their marriage and the 1st Defendant has failed to rebut the presumption that it is a joint matrimonial property. Thus, another issue for discussion is whether or not the 1st Defendant can sell same without the consent of the Plaintiff as this Court has made findings that he sold same without the consent of the Plaintiff. Section 47 of the Lands Act 2020 (Act 1036) states, Except as provided in subsections (3) and (4) of section 38, in the absence of a written agreement to the contrary by the spouses in a marriage, a spouse shall not, in respect of land, right or interest in land acquired for valuable consideration during marriage, Suit No. E12/AHC/36/21: Felicia Wolanyo vs Eric K. Kormegbe & Ors Page 11 of 14 (a) sell, exchange, transfer, mortgage or lease the land, right or interest in the land, (b) enter into a contract for the sale, exchange, transfer, mortgage or lease of the land, right or interest in the land, (c) give away the land, right or interest in the land inter vivos, or (d) enter into any other transaction in relation to the land, right or interest in the land without the written consent of the other spouse, which consent shall not be unreasonably withheld. Also, in the case of Joseph Kwasi Agyapong v. Rita Achiaa Agyapong (CIVIL APPEAL NO. HI/58/21) C. A. re-emphasis section 47 of Act 1036. Thus, without the written consent of the Plaintiff, the 1st Defendant could not have sold the jointly owned property acquired during their marriage. The Court therefore makes a declaration that the 1st Defendant’s purported sale of matrimonial property Great Assurance Academy School, Omajor is wrongful in law as same was done without the consent of the Plaintiff. The 1st Defendant alleges that he sold the school for One Hundred and Eighty Thousand Ghana Cedis (GH¢180,000.00) but the evidence suggests that only Twenty Thousand Ghana Cedis (GH¢20,000.00) has been paid to the 1st Defendant as the Plaintiff took legal action immediately she had notice of the payment of the Twenty Thousand Ghana Cedis (GH¢20,000.00) to the 1st Defendant. Thus, this Honourable Court set aside the sale of the subject matter to the 2nd and 3rd Defendants and states that the 1st Defendant cannot sell the matrimonial property without the written consent of the Plaintiff. Judgment is therefore entered for the Plaintiff against the Defendants. Suit No. E12/AHC/36/21: Felicia Wolanyo vs Eric K. Kormegbe & Ors Page 12 of 14 The Plaintiff is claiming general damages and in consideration of the fact that Parties are still married even though they have divorce proceedings pending at the District Court and also the fact that they have three (3) issues from their marriage and the Court does not want to further strained the already strained relationship of the Parties Court awards general damages of Five Thousand Ghana Cedis (GH¢5,000.00) and costs of Five Thousand Ghana Cedis (GH¢5,000.00) to the Plaintiff. (SGD) PRISCILLA DAPAAH MIREKU J. (MRS.) JUSTICE OF THE HIGH COURT PARTIES Plaintiff - Present 1st Defendant - Present 2nd and 3rd Defendants - Absent COUNSEL 1. SELORM AGBOTSE FOR THE PLAINTIFF - ABSENT 2. OFORI ADUSEI FOR 1ST DEFENDANT - PRESENT Suit No. E12/AHC/36/21: Felicia Wolanyo vs Eric K. Kormegbe & Ors Page 13 of 14 CASE REFERRED TO: 1. Kofi Amofa Kusi v. Afia Amankwa Adarkwa (Civil Appeal No. H1/34/2021) 2. Fynn v. Fynn [2013-2014] 1 SCGLR 727 3. Mensah v. Mensah [2012] 1 SCGLR 391 4. Quartson v. Quartson [2012] 2 SCGLR 1077 5. Abebrese v. Kaah [1976] 2 GLR 46 6. Gladys Mensah v. Stephen Mensah [2012] SCGLR 391) 7. Joseph Kwasi Agyapong v. Rita Achiaa Agyapong (CIVIL APPEAL NO. HI/58/21) C.A. ACTS 1. Section 12 of the Evidence Act 1975 (NRCD 323) 2. Section 10(1) of the Evidence Act 1975 (NRCD 323) 3. Section 11(4) of the Evidence Act 1975, (NRCD 323) 4. Section 47 of the Lands Act 2020 (Act 1036) Suit No. E12/AHC/36/21: Felicia Wolanyo vs Eric K. Kormegbe & Ors Page 14 of 14