NANA YAA KONADU vs. ALHAJI ABDUL RASHEED [2020]DLSC9912

Date	2020-11-18
Suit No.	CIVIL APPEAL NO. J4/06/2017
Citation No.	[2020]DLSC9912

DOTSE JSC (PRESIDING)

APPAU JSC

PWAMANG JSC

DORDZIE (MRS.) JSC

PROF. KOTEY JSC

O. K. OSAFU-BUABENG FOR THE PETITIONER/RESPONDENT/APPELLANT

EDWARD ANOKYE FOR THE RESPONDENT/APPPELLANT/RESPONDENT

[2020]DLSC9912
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													<main id="main" class="content" style="min-height: 60rem" ><a name="_Hlk35510717">NANA YAA KONADU&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <o:p></o:p></a>(PETITIONER/RESPONDENT/APPELLANT)<o:p></o:p>vs.<o:p></o:p>ALHAJI
ABDUL RASHEED&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <o:p></o:p>(RESPONDENT/APPELLANT/RESPONDENT)<o:p></o:p><o:p>&nbsp;</o:p>[SUPREME COURT, ACCRA]<o:p></o:p><div style="border-top: none; border-right: none; border-left: none; border-image: initial; border-bottom-width: 1.5pt; border-bottom-color: windowtext; padding: 0in 0in 1pt;">

CIVIL APPEAL NO. J4/06/2017&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;DATE: 18TH NOVEMBER, 2020<o:p></o:p>

</div>COUNSEL:<o:p></o:p>O. K. OSAFU-BUABENG FOR THE
PETITIONER/RESPONDENT/APPELLANT.<o:p></o:p><div style="border-top: none; border-right: none; border-left: none; border-image: initial; border-bottom-width: 1.5pt; border-bottom-color: windowtext; padding: 0in 0in 1pt;">

EDWARD ANOKYE FOR THE
RESPONDENT/APPPELLANT/RESPONDENT.<o:p></o:p>

</div>CORAM:&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <o:p></o:p>DOTSE, JSC (PRESIDING), APPAU, JSC,
PWAMANG, JSC, DORDZIE (MRS.), JSC, PROF. KOTEY, JSC<o:p></o:p><div style="border-top-width: 1.5pt; border-top-color: windowtext; border-left: none; border-bottom-width: 1.5pt; border-bottom-color: windowtext; border-right: none; padding: 1pt 0in;">

<p class="MsoNormalCxSpFirst" align="center" style="text-align:center;line-height:
150%;tab-stops:147.0pt;border:none;mso-border-top-alt:solid windowtext 1.5pt;
mso-border-bottom-alt:solid windowtext 1.5pt;padding:0in;mso-padding-alt:1.0pt 0in 1.0pt 0in">JUDGMENT<o:p></o:p>

</div>APPAU, JSC:-<o:p></o:p>My Lords, the appeal before us is the culmination
of what, prima facie, appeared to be a simple matrimonial cause ignited by the
woman in the marriage (as petitioner) against her husband (the respondent), for
the dissolution of their ordinance marriage. The second and last relief the
petitioner asked for, apart from the dissolution, was an order for the custody
or maintenance (as she put it), of the two issues in the marriage. This second
or last relief of the petitioner, which respondent also prayed for in respect
of the younger child in his cross-petition, became redundant in the course of
the trial, when all the two issues in the marriage attained adulthood. Petitioner
did not seek any relief on property settlement, as her case was that she never
acquired any property jointly with the respondent during the subsistence of the
marriage, which needed to be shared. The only thing she said she had in common
with respondent was a limited liability company called NAYAK COMPANY LTD which,
according to her, the two of them established as the only shareholders and
directors with fifty percent (50%) shares each. <o:p></o:p>However, as things turned out to be, the petition
assumed a complex form resulting in its long journey to this apex Court, as a
result of the respondent’s answer or reaction to it. In this answer, the
respondent did not challenge the petitioner’s call for the dissolution of the
marriage aside of the reasons behind the call. He however, denied petitioner’s
assertion that they never jointly acquired any properties during the
subsistence of the marriage. He contended that apart from NAYAK CO. LTD and
another company called RASHIDA LTD, which the two of them formed, they jointly
acquired several other properties; some in his name, some in petitioner’s name
and others in their joint names. He mentioned fourteen (14) different
properties, which he claimed the two acquired jointly in the course of their
thirty-two (32) years of marriage, mainly through the operations of their two
companies. He accordingly cross-petitioned for the dissolution of the marriage,
an order for custody of their younger child who was then sixteen (16) years old
and then, an order for the distribution of all the properties jointly acquired
by them as itemized under paragraph (3) of his answer to the petition. It was
this answer and cross-petition by the respondent that jolted the petitioner to
admit for the first time that she indeed acquired properties jointly with the
respondent. She then went ahead to explain that some of the properties they
acquired jointly, which the respondent had included in his list, were ceded to
her by the respondent upon an agreement between them some years back so those
properties belonged to her exclusively and could not be shared. The remaining
properties belonged to their jointly-owned company NAYAK COMPANY LTD in which
they held 50% shares each. This was what petitioner said under paragraphs 3 and
4 of her Reply to respondent’s answer: -<o:p></o:p>“3. In
further answer hereto, the petitioner says the properties specifically
designated at paragraph 3 (a), (b), (c), (d), (h) &amp; (j) and the titles
vested therein are exclusively vested in the petitioner and this was even
confirmed by the respondent in a document prepared and signed by the
respondent.<o:p></o:p>4. The
petitioner says that properties designated at paragraphs 3 (e), (g), (i), (k),
(l), (m) &amp; (n) all belong to NAYAK COMPANY LTD wherein company both the
petitioner and respondent have 50% equal shares.”<o:p></o:p>In our view, no issue concerning the distribution
of properties owned by NAYAK COMPANY LTD or any other company belonging to the
parties, did arise from the parties’ pleadings. The petitioner never prayed for
that neither did the respondent. In fact, the petitioner did not pray for the
distribution of any property at all between her and the respondent. It was the
respondent who prayed for the distribution of the properties he listed under
paragraph 3 of his answer and in her reply, petitioner claimed exclusive
ownership to some of those properties. It is this claim of exclusive ownership of
some of the properties by the petitioner, but not the sharing of their
jointly-owned properties, which has been the bone of contention between the
parties from the trial stage to this final stage of appeal. These properties
were described as: “No. 233 Airport West, Accra; another building at Airport West (i.e.
H/No. 21 Aviation Rd, Accra); one three-storey building at Adabraka
Official Town (i.e. 29 Official Rd, Adabraka); the building in Kumasi (i.e.
H/No. OTB 108 &amp; 109 Adum, Kumasi); the buildings in Sekondi; all the
lands at Elmina and New Ashongman in Accra.” {Emphasis ours}<o:p></o:p>From the totality of the evidence on record, the petitioner
did not deny the fact that the properties she claimed belonged to her
exclusively, as scantly described above, were acquired by both of them; i.e.
(petitioner and respondent) jointly during the subsistence of their marriage.
Her case was that the said properties were ceded to her as exclusive owner by
the respondent per a document she tendered in evidence as Exhibit “E”. This means she became owner of what hitherto belonged
to the two of them jointly, by virtue of Exhibit
“E”. <o:p></o:p>