3

To win both the battle

and the war
Judicial determination of property

rights of spouses in Ghana

Maame Yaa Mensa-Bonsu and Maame A.S.

Mensa-Bonsu

Introduction
Customary law has long been problematic for wives seeking access to marital
property in Ghana. In both matrilineal and patrilineal family systems, marriage
does not entail the self-acquired estates of the spouses (Mensa-Bonsu, 2012).
The self-acquired property, therefore, became family property on the intestate
death of the owner, leaving the surviving spouse without an interest in the prop­
erty which they should rightfully own. The cultural bias in favor of males in
succession and other customary laws have served to widen the economic chasm
between males and females, with the latter often unable to enjoy the products of
their labor. From pre-independence times until the 1992 constitution, Ghanaian
courts determined disputes involving marital property largely under custom­
ary law, which, as noted, is often disadvantageous to wives. What progress was
made toward parity resulted from judges’ reliance on their own culturally shaped
notions of fairness, and standards of progressive thinking. The 1992 Constitution
of Ghana has provided Ghana’s legal order with a new and apparently more just
standard for the distribution of marital property. This chapter evaluates semi­
nal cases from before and since 1992 to establish the practical impact of Article
22 of the 1992 constitution on the financial fortunes of ex-wives (i.e., widowed
or divorced). We seek to answer the following questions:

1. Have judicial outcomes improved for women since the 1992 constitution
took over the regulation of spousal property rights?
2. Has the rhetoric of judicial law-making in fact evolved along the lines of the
1992 constitution?

The chapter is divided into three sections. The first briefly examines the state
of Ghana’s law prior to the coming into force of the 1992 constitution. It out­
lines the customary law position and the judicial efforts at progressing beyond
this position through the substantial contribution doctrine, statute law, and the
application of equitable principles. The second provides an extensive review of
the trends in the outcomes and rhetoric since 1993, when the constitution came

DOI: 10.4324/9780429327865-3
 To win both the battle and the war 41
into force. Of particular interest is the import of Article 22 on the judicial deter­
mination of spousal rights to marital property. Finally, we consider the challenges
posed by judicial interpretation of the relevant provisions and caveats applied
by subsequent courts. We provide a critical analysis of the potential tensions
between Article 22 and other constitutional provisions. While not proposing
specific reforms, the insights this chapter will achieve are critical for accurately
assessing the progress we have made toward creating a just and equitable society
and how much remains to be done. We advance these arguments with the goal
that they will contribute to the evolution of Ghana into a consciously shaped,
rather than reactionary, society, with the full intent to advance the rights of
women.

Property rights of wives: Before 1992

This section provides an overview of the state of the law up until the
1992 constitution entered into force by looking first at the outcomes and then
at the rhetoric under which the said outcomes were achieved. The goal is to
contextualize any changes that the 1992 constitution has achieved in respect of
both the guiding principles for the distribution of property between spouses upon
the dissolution or determination of marriage, and the portions of the estate that
have typically fallen to the female spouse. We do this by examining the landmark
cases from Ghana’s independence in 1957 until December 1992, when the last
dictatorship ended.

Judicial rhetoric
The rhetoric of the pre-1992 regime on spousal rights was centered on three
things: customary law, equity, and statute law. In that era, both the rhetoric and
consequent outcomes were based exclusively on customary law. The experience
of ex-wives and widows was especially dire under these laws, leading to court-led
initiatives to soften the impact of customary law on them. But as the court would
not depart too far from the customary law rule, the improvement was not over­
whelming. The statutory interventions, though helpful, did not apply to every
ex-wife/widow in every circumstance (Watnizek, 1991). Equity was also some­
times invoked to provide relief in particularly unjust situations. However, cus­
tomary and statute law could not be entirely sidestepped. Equity could, therefore,
not serve as a wholesale rectifier of the harsh impact of customary law and statute
law. Thus, the situation until the 1992 constitution entered into force was one
of inconsistencies and inequality for wives. We now examine briefly how women
fared in terms of outcomes under each of these three sources of judicial rhetoric.

Customary law
The decision in Quartey v. Martey (1959) set out the judicial understanding
of customary law in respect of the property rights of widows. In that case, the
42 Yaa Mensa-Bonsu and A.S. Mensa-Bonsu
plaintiff, who had been married to the intestate under customary law for over
25 years, sued her deceased husband’s family for expenses incurred in the course
of the funeral and for a one-third share in his estate. She argued that as she had
assisted her late husband both in his work and financially, and as he had by such
assistance acquired the properties, she was entitled to a share thereof.
Ollennu J held that by customary law, it was the duty of a man’s wife and chil­
dren to assist him in carrying out the duties of his station in life. The proceeds of
that joint effort, and any property acquired with such proceeds, were by custom­
ary law the property of the man and not the joint property of the spouses.1 The
only right of a widow, the court further held, was to maintenance and support
from the family of her deceased husband. Unsupported by evidence (Daniels,
1972), Quartey v Martey nevertheless became firmly entrenched in the jurispru­
dence and was followed in a long line of cases, including Yaotey v. Quaye (1961),
Adom v Kwarley (1962), Manu v. Kuma (1963), and Jonas v. Ofori (1988). Ayer v.
Kumordzie (1964) held that even the chattels a husband provided to his wife for
her personal use were limited to the duration of the marriage and save for those
expressly declared to be gifts, fell to be returned upon its dissolution.
The case of Quaico v. Fosu (1965) ameliorated the condition of widows.
There, the court found, for the first time, that under Akan customary law, a
widow, while she remained unmarried, had a proprietary interest equivalent to a
determinable life tenancy in her deceased husband’s property. Further, and per­
haps more importantly, she did not have to live in the property; she could rent
it out and enjoy the rental income therefrom. While the family acquired title to
the late husband’s estate, it was subject to the life interest of his children and the
occupational rights of the widow. Quaico v. Fosu not only gave widows, at last, a
proprietary right, albeit only a non-heritable, inalienable, potentially temporary
one; it also provided a potential source of income for the widow. As for ex-wives,
they remained firmly under the Quartey v. Martey regime until the doctrine of
substantial contribution was adopted by the courts.

Substantial contribution doctrine

In the 1970s, the courts introduced the doctrine of substantial contribution,
which deemed a wife to have acquired a proprietary interest in property if she had
contributed to its acquisition (financially or in-kind) to a degree exceeding the
duty of wifely assistance contemplated by customary law. The scope of this inter­
est, however, was to be determined by the court on a case-by-case basis. In Yeboah
v. Yeboah (1974), where the doctrine was first espoused, the wife had, at her own
expense, flown repeatedly to Ghana from their London residence to supervise the
construction of the property in dispute and paid the costs of structural changes
thereto. The court held that the wife was a joint owner of the house and further,
that the conduct of the parties prior to, during, and subsequent to the acquisition
of the property displayed an intention to own the matrimonial home jointly.
What the principle of substantial contribution entailed was elucidated by
Abebreseh v. Kaah (1976), Clerk v. Clerk (1981), and Achiampong v. Achiampong
 To win both the battle and the war 43
(1983). In Abebreseh, the court found that part payment for the land and sole
support of the family during the construction period amounted to a “substantial
contribution.” In Clerk, the court stated that it would, or at least could, hold
the overwhelming role in family life played by a stay-at-home wife and mother
as a substantial contribution; but only if the wife, having had the option of a
career, had forfeited it to take care of the home needs of the family. Achiampong
added the rule that the substantial contribution could be established by proving
either an agreement between the couple giving the wife some beneficial interest
in the matrimonial home, or the wife’s direct financial improvements, renova­
tion, or extensions to the property, or that she had applied her income for the
family upkeep, thereby financially enabling the husband to acquire the property
in dispute.
Substantial contribution continued as the guiding principle of a wife’s rights
in marital property acquired until 1993, when the Fourth Republic began. But it
had unclear thresholds, and each judge relied on their own estimation of what
acts exceeded the Quartey v. Martey standard. In some cases, contributions that
were held not to be insubstantial were nonetheless not held to be enough to
convey an interest in the property to the wife; for example, paying in part for
and personally supervising the construction of the property (Abobor v. Abobor,
1987) and paying all household bills and the children’s school fees to enable the
husband to devote his earnings to the property (Otoo v Otoo, 1984, Odoteye v.
Odoteye, 1984–86). In others, contributions of the same kind and in some cases
to an even lesser extent were held to suffice (Anang v. Tagoe, 1989–90, Domfe v.
Adu, 1986). The case law was thus very inconsistent.

Statute law
The three pieces of legislation that had the greatest impact on the fortunes of
wives prior to the birth of the 1992 constitution are §48 of the Marriages Act
1884-1985,2 (Cap 127), the Matrimonial Causes Act, 1971 (Act 367), and the
Intestate Succession Act, 1985 (PNDCL 111). All three created rather complex
legal regimes, an exhaustive overview of which is beyond the scope of the pre­
sent chapter. It is important to note, however, that Cap 127 created monoga­
mous unions, and, by its §48, gave the widow acknowledged under it a third
of the husband’s estate. By creating the possibility of a man supporting his ex-
wife financially, Act 367 seemingly reversed the customary law rule in Ayer v.
Kumordzi. But it did not apply automatically to all forms of marriage in Ghana.3
Even among those to which it applied, it operated to reverse the rule only in
“deserving” cases. This subjective standard led to more inconsistency. In Beckley
v Beckley (1974), the court made an order of maintenance in favor of the wife. By
contrast, in Happee v Happee (1974), the wife was awarded a lump-sum payment
but, being held to have been a poor example of a wife, was not granted mainte­
nance. Nevertheless, the impact of Act 367 must not be under-appreciated. For,
although it did not have much of an impact on women’s property rights, it did,
practically speaking, improve their daily economic circumstances by making it
44 Yaa Mensa-Bonsu and A.S. Mensa-Bonsu
possible for them to receive lump-sum settlements4 or periodic financial support
for themselves and/or their children.5 PNDCL 111 gave widows a tangible propri­
etary interest in their husband’s estate. But the impractical mandatory apportion­
ment made sale of the property inevitable, and being insubstantial, particularly
in polygamous unions,6 the widow’s portion was hardly ever sufficient (Mensa-
Bonsu, 1994).

Equity and/or the judge’s own conscience

Writing in 1972, Daniels, noted that bill-paying wives had become so common
that the courts had shaken off the constraints imposed on them by the strict
doctrine of customary law (Daniels, 1972). But, absent clear legislative guidance,
these equity-based decisions only compounded the deep inconsistency in the
case law. In Deborah Takyiwa v. Kweku Adu (1971), a customary law wife was
awarded half the farm she had jointly cultivated with her husband on her own
land. Would she have been awarded half the farm if it had been jointly cultivated
on his land? It is doubtful. Indeed, in Owusu v. Nyarko (1980), decided nine years
later, the Quartey v. Martey position was reiterated.
In Bulley-Neequaye v. Acolatse (1969), and also in Reindorf alias Sacker v.
Reindorf (1974), property bought by a wife in her husband’s name was found by
the court to be held in trust for her. In Domfe v. Adu (1986), the court found
that the respondent having contributed the initial working capital, and having
worked jointly to establish the business, the husband, in whose sole name the
business was registered, held it and the profits in trust for himself and his wife. A
trend clearly emerges from these cases. Only where the wife had purchased the
property or had held the financial power that culminated in the property acquisi­
tion were the pre-1992 courts unhesitating in granting a proprietary interest to
the wife. Wives who could not prove financially quantifiable contributions did
not find the courts so protective.
In sum, prior to the 1992 constitution, Ghana’s legal regime on property dis­
tribution upon the dissolution or termination of marriage was not exceptionally
kind to wives. Though the initial starkness of their position under customary
law had been somewhat ameliorated under the substantial contribution doctrine,
statutory interventions, and equity, the situation was still far from ideal.

Property rights of wives after the 1992 constitution

Since January 1993, the 1992 constitution has been the fundamental law in
Ghana and has amended all legal regimes to remove any inconsistency with itself.
For clarity, we reproduce Article 22, the relevant provision for our purposes.

Article 22
1) A spouse shall not be deprived of a reasonable provision out of the estate of
a spouse whether or not the spouse died having made a will
 To win both the battle and the war 45
2) Parliament shall, as soon as practicable after the coming into force of this

constitution, enact legislation regulating the property rights of spouses

3) 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

While the language of the provision is gender neutral, its genesis is not. Article
22 originally appeared under the section titled “women’s rights” in the proposals
upon which the Constitution was drafted (Government of Ghana, 1991). The
section’s preamble acknowledges the “great sorrow and distress” that the then
state of the law caused widows and recommended that it be changed permanently
through constitutional entrenchment (Government of Ghana, 1991).
In this section, we study a number of important decisions to answer the
research questions. We ascertain whether judicial outcomes have truly improved
for women since the 1992 Constitution took over the regulation of spousal prop­
erty rights. We also evaluate whether the rhetoric of judicial lawmaking in fact
aligns with the 1992 Constitution. This is not an exhaustive review of every case
that has been decided under the Constitution. Rather, it is an evaluation based
on a group of cases, which together demonstrate the potential viewpoints from
which Article 22 could be interpreted.

Substantive judicial outcomes

Judicial outcomes have generally been better for wives since the coming into
force of the 1992 constitution. In a number of important cases, the court has
held that the wife was entitled to a share of the matrimonial estate. The interest
awarded her has ranged from one-third to half of the matrimonial estate. It is
worth noting that in all those cases, the wife was held to have made a substantial
and pecuniary contribution to its acquisition. Still, this is quite an improvement
on the Quartey v. Martey regime, under which her contribution, regardless of its
magnitude or proof, entitled her to nothing.
In another line of cases, the court has, while pronouncing a significant set­
tlement figure, refused to treat the relevant properties as jointly owned at all. In
all those cases, too, that decision turned on the wife not having made a substan­
tial financial contribution to their acquisition. This second line of cases shows
that the court does not, or has not yet begun to, fully match its rhetoric to its
decisions. For though it has said more than once that it is willing to consider
non-quantifiable contributions to the family life as a contribution to the family
asset portfolio, when this has been all that the applicant relied on, the court has
not yet found that a non-pecuniary contribution created a proprietary interest.
Nevertheless, it is a credit to the courts that post 1992, they have been more
open to viewing such actions as potentially entitling wives to some interest in
marital property. And it must not be understated how much better wives in such
46 Yaa Mensa-Bonsu and A.S. Mensa-Bonsu
a position have fared post 1993 than their counterparts under the Quartey v.
Martey regime did.
The circumstances of the cases and the profiles of the women who bring these
cases have not changed much. In the post-1992 cases, the partner claiming is
still more frequently the one with significantly less earning power. In Quartson
(2012), the claimant was a housewife, while her husband was a sailor. In Katey
(2016), she was a beautician; he was a geodetic engineer. In Arthur (2013), the
wife was a housewife; the husband was an international footballer. The applicant
in In Re George Ntim (2012) was primarily a subsistence farmer. In these cases,
the contribution proved by the wives was largely of domestic services rendered by
them. The cases align with the findings of sociological studies: economic inequal­
ity of spouses continues to be a feature of Ghanaian marriages, and women are
more frequently the vulnerable partner (Deere et al., 2013). One new develop­
ment is the phenomenon of the man as a plaintiff/petitioner seeking an interest
in the property, as in the case of Mensah (1993). But this remains rare. Again,
this confirms the data that women are still largely lower than men on the employ­
ment/economic hierarchy. That, in turn, implies that female spouses are more
dependent than male spouses on judicial largesse in determining their entitle­
ment to the property.
Like the pre-1992 wives, these post-1992 wives did not act to ensure that their
joint ownership was reflected in the title documents, though they were usually
aware of the disputed properties at the time of their acquisition. Admittedly, in
a good number of cases, the wife was so unevenly matched with her husband
economically that it was not necessarily an option for her to get her name onto
the paperwork. This was the case in Arthur, Katey, and In Re George Ntim. But
this is not the scenario in other cases. Gladys Mensah was an equal partner and
manager of the business they established jointly. She collected monies and kept
the accounts. Yet, she let her husband put 4 houses totaling 16 bedrooms, several
plots of vacant land, a 20-foot container, and several cars in his name only. In
Quartson, the sailor-husband was away for long stretches of time; several years in
one instance. The wife, with the money he remitted to her, purchased materials
and supervised the construction of the matrimonial home to its completion. She
also claimed to have acted as a director in a jointly run company, yet her name
was conspicuously missing from the title documents, and the court found from
the evidence a discernible intention in the absent partner to hold the house as
sole owner. The wife in Tabury (2013) was just as industrious and as involved in
the business that made them rich as Gladys Mensah. Yet, she too let her husband
vest all properties acquired with the proceeds from their joint enterprise in his
name. It cannot be said, therefore, that the vulnerability of wives in respect of
the matrimonial property is entirely a function of economic inequality. There are
clearly social and cultural factors at play that are beyond the reach of the law that
must be addressed in the larger society. In particular, the cultural narratives on
women, personal responsibility, and property must be rethought.
Where the husband is the petitioner in respect of the settlement of matrimo­
nial property, two outcome trends are visible. In one line of cases, the husband
 To win both the battle and the war 47
is petitioning to be named sole owner of the property to which he held the
title and which he also built or helped to build (Verdose v Verdose-Kuranchie,
2009 and Esseku v. Inkoom, 2013). The wives, inevitably, failed in a similar coun­
terclaim. However, where the wife was the owner of the land and constructed
the house either solely or with minimal participation of the husband (as occurred
in Kwawukume, 2009, Owusu, 2011, and Nanor, 2018), the wives succeeded in
holding on to their property as sole owners. These cases are far away from the
injustice that Quartey v. Martey spawned. But they remain a small minority.
The final observation we make about the outcomes for wives in the Fourth
Republic is this: while more wives have got higher percentages of the matrimo­
nial property, the situation is not as heartening as it may appear at first glance.
This is because now, as then, such wives often face a great challenge of providing
proof of contribution, especially in respect of property other than the matrimo­
nial home. Thus, the court might award 50% of the matrimonial property to
her. But more than 50% of the assets under contention may remain completely
outside the definition of matrimonial property. Given the similarity between fact
trends of pre- and post-1992 cases, a wife’s chance of profiting from the asset
portfolio of the couple beyond just the matrimonial home is still minimal. On
the outcomes front, therefore, it is fair to say that we are almost as far away from
the constitutional ideal as we are from the Quartey v Martey days. That means the
journey is far from over.

Rhetoric
The 1992 constitution is barely mentioned in the earliest cases of the Fourth
Republic. Rather, equity and the substantial contribution doctrine are the princi­
pal points around which the decisions are made. The rhetoric changed noticeably
in Mensah v. Mensah (1993), where the 1992 constitution made its first, albeit
peripheral, appearance as a guiding principle in a matter of property distribu­
tion between spouses. The court held that in the absence of clear equities in
matrimonial property, the court would treat equality as equity. But even with
marginal mention, the role the constitutional terminology played in pulling out
the entrenched roots of customary law and replacing it with constitutional com­
pliance should not be overlooked. In Boafo v Boafo (2005), the court held that
the Mensah rule of “equality is equity” is not what it called “a blanket” rule apply­
ing blindly and in all cases. Instead, the equities of each case were to be consid­
ered. The court then reintroduced the language of the substantial contribution
doctrine but collocated it under Article 22 and the “equality is equity” rubric
(Barnes, forthcoming, 2020)7; a development discussed more fully later on in this
chapter.
The constitutional rhetoric finally comes into its own in Gladys Mensah v.
Stephen Mensah (2012), where the Supreme Court not only dwelt extensively
on Articles 22 and 358 but expressly pronounced the substantial doctrine rule
unconstitutional. Quartson v. Quartson is alone in this line of cases. Although,
again, the outcome is not undesirable, the language is puzzling and disappointing,
48 Yaa Mensa-Bonsu and A.S. Mensa-Bonsu
because the Supreme Court oddly ascribed the birth of the substantial contri­
bution rule to Parliament’s inaction in respect of its Article 22 obligation to
regulate the distribution of marital property upon dissolution or determination
of marriage. It is important to note that the court expressly spoke of substan­
tial financial contribution. It then, confusingly, held that the Court of Appeal
was wrong to hold that the wife had no interest in the matrimonial home and
yet refused to give her a share therein. Fortunately, Arthur v. Arthur (2013) set
things right again. In that case, the court found the wife’s performance of her
housekeeping duties and as the personal driver (to her husband) sufficient to
amount to such substantial contribution as to grant the wife an interest in the
matrimonial home. This position has been followed in a number of cases, includ­
ing Kofi Tabury. Arthur further established the assumption, albeit rebuttable, that
property acquired during the subsistence of the marriage is marital property and
therefore should be shared between the parties. The court found that to hold
otherwise, as the Court of Appeal had in the same case, would be inconsistent
with the Constitution. However, this is not to be taken as inconsistent with the
constitutional right to own property alone. The Supreme Court indicated that
some categories of properties could be excluded from this presumption, as deter­
mined on a case-by-case basis.
In the second line of cases discussed in the preceding section, the court once
again relied heavily on the constitution to reach its decision. Although the
women in these cases did not succeed in their requests, the language of the judi­
cial decision-making is consistent with that of the first line of cases, in which
the women succeeded at least in part. In Fynn, for example, the meaning of the
relevant constitutional provisions was discussed quite extensively and was central
to the decision. Additionally, the court discussed Article 18 and concluded that
the property in question was not jointly owned. Electroland v Adomako (2019)
saw an interpleader by a husband succeed on the ground that the property sought
to be attached was his personal property, not jointly owned property, and as such
could not be used in satisfaction of his wife’s business debts.
It is interesting to note that in both lines of cases, the courts continue to search
for proof of contribution or the intention of the parties at the time of acquisi­
tion as discernible from the couple’s conduct at the time. In Gladys Mensah, the
court makes a radical move away from the substantial contribution doctrine and
reframes the principles within the language of the constitution, thereby extend­
ing and strengthening the equality principle. To go contrary to this new exposi­
tion of the law was no longer merely a departure from equitable principles. It
was, per Arthur, in contravention of the constitution. In the decade since Gladys
Mensah, the court has reiterated its position that a substantial, and specifically a
financial, contribution is not required to create a proprietary interest in matrimo­
nial property. Yet, there remains a marked insistence on the contribution (the
desirability of which we discuss in subsequent paragraphs) that belies Dotse JSC’s
conviction that the post-1992 precedents had “sounded the death knell of the
substantial contribution doctrine” (Gladys Mensah v. Stephen Mensah, 2012). The
early post-1992 decisions give no real explanation of why the court could not
 To win both the battle and the war 49
seem to get beyond proof of contribution even as it waxed eloquent about equal­
ity and equity. In the later cases, however, the courts have attempted to explain
both why they accept housekeeping as contribution and why they still require
proof of contribution. In these discussions, the Constitution and its dictates have
dominated the dialogue and the decision.
The foregoing discussion has reviewed and reflected on the case law on
the property rights of wives. It has examined the trends in outcomes to know
whether wives are faring better in the Fourth Republic and if so, how much.
The discussion has also assessed the rhetoric of judicial reasoning to determine
its commensurability with the outcomes. Our discussion leads us to answer both
the research questions posed earlier in the affirmative. Yes, the likelihood that a
widow or ex-wife will be sent away empty-handed has reduced considerably. Yes,
the rhetoric on judicial equity for spousal rights has become increasingly cen­
tered on the Constitution. In spite of some lingering challenges, there has been
a marked movement in the rhetoric toward recognizing the rights of wives to
marital property irrespective of financial contribution, or indeed, any contribu­
tion. But the outcomes have not always been as consistent as one would expect,
nor have they always matched the rhetoric. Nevertheless, from the preceding
discussion, it is beyond debate that the 1992 constitution has had a palpable
and positive impact on the fortunes of wives when a marital property falls to be
distributed.

Outcomes versus rhetoric: Where are we now?

We have seen that the outcomes for women have improved in actions for the
distribution of matrimonial property. We have also noted how the rhetoric has
evolved from the harsh rule of Quartey v. Martey through the substantial contri­
bution doctrine to the present position, touted as the “Jurisprudence of Equality,”
which, according to the courts, aligns with the purposes of the 1992 constitution.
This section evaluates the truth of that assertion. We examine Nanor v. Nanor
and Electroland v. Adomako (supra) to assess the validity of the courts’ parameters
when called to determine whether the matrimonial property is jointly owned.
While conceding their necessity, we draw attention to the problematic nature of
these parameters.
The relevant facts of Nanor are as follows: the husband sought, upon divorce,
the matrimonial home, another of his wife’s three houses, and a plot of her land.
He did not deny that all the property was acquired by his wife with her own funds
alone. But he argued that because he had run some of the purchasing errands and
had done some amount of the construction supervision, he had contributed to
the completion of the matrimonial home and should be granted a half share. In
respect of the other properties, his argument was that he had married her under
the Marriage Ordinance (Cap 127) and that it was he who introduced his wife
to the person who helped her acquire goods on credit to begin her textile busi­
ness. For those reasons, he invited the court to hold him the owner of half of her
wealth. The High Court rightly rejected his arguments.
50 Yaa Mensa-Bonsu and A.S. Mensa-Bonsu
Article 22 concerns
Of interest to this chapter is the court’s reasoning for refusing to hold that the
matrimonial home was joint property. The court held that being married ipso
facto could not create a proprietary interest in each other’s assets. The husband’s
involvement in the construction of the matrimonial home had been no more
than what his duty to care for his partner entailed. Therefore, it did not create
title in him. This decision, on the facts presently given, is not very different from
Clerk, where the court ruled that the acts of the wife, which were pleaded as giv­
ing rise to entitlement in the marital property, were merely what was expected of
a “good wife,” or indeed Ribeiro,9 where the minority argued that the bare domes­
tic services rendered by the wife did not give her rights to her husband’s property.
Yet, it is hard to say it was untenable. If it is not, then in principle, neither were
the two earlier cases. In that case, Mensah and Arthur are by implication wrong.
But there are additional facts to Nanor that help shape the discussion. The
husband had essentially been supported by his wife for almost the entirety of their
marriage. She had borne all the bills of their joint life and family. The husband
even admitted that all sums he had expended personally on the matrimonial
home had been reimbursed to him by his wife at his instance. Nor did he claim to
have borne the larger share of the domestic or child-raising duties. His wife’s suc­
cess was in spite of, rather than because of, him. It is clear, then, that the husband
of the marriage had not conducted himself in such a way that it was reasonable
to hold him co-owner of his wife’s property. The point is this: the requirement
of contribution to the acquisition of the property is not unreasonable even in
a constitutional era that promotes spousal rights to the property. By necessary
implication, then, it is possible, even if not easy, to determine the facts of each
case: whether the conduct of a spouse exceeds what is a reasonable minimum and
attains a level that gives the other spouse an advantage or opportunity to acquire
assets.
Even so, there are two opposite but equally grave concerns with the substan­
tial non-pecuniary contribution requirement. On the one hand, given Ghana’s
history of cultural and customary law bias against wives’ property interests, there
is a high risk of retrogression to the old forms if the terminology of the new era
resembles or even echoes the terminology of the old days. It makes it easier for
the old rules to creep into the workings of the new ones, thereby eroding all the
benefits of the 1992 constitutional regime. For example, in a significant number
of the cases discussed, the court sought or somehow managed to quantify the non­
pecuniary contributions proved by a party. The judges’ discussions and assess­
ments of the wife’s claim of financial contribution would not, in some instances,
sit awkwardly in Abebereseh or Yeboah.
But on the other hand, without further clarification on where parenting
and home management, as a duty of the couple, end, and where title-creat­
ing housekeeping and parenting begin, the court appears to be saying that no
duties of parenting or cohabiting exist in the absence of property. We illus­
trate with Quartson, where the wife pleaded her housekeeping and childrearing
 To win both the battle and the war 51
as contribution sufficient to create a title in her. The court found that Mrs.
Quartson’s assumption of her husband’s parental duties in addition to her own
amounted to a contribution to its acquisition. For the purposes of this chapter,
and, without endorsing the traditional view of gender roles, we shall assume,
as the case law does, that in a Ghanaian marriage, the woman’s role is to keep
the house and raise the children, while the man’s is to pay the bills. On that
premise, it is tempting to think that Mrs. Quartson succeeded because she was
playing the other parent’s role in addition to her own. But as we demonstrate,
deeper engagement with the facts will show this reasoning to be only superfi­
cially attractive.
First, if there had been no matrimonial home, would Mrs. Quartson not have
cared for the children when her husband failed in doing his part? If she would
have, then the court ought to have been clearer as to what extent her care of
her children differed from what she would have given them if there had been no
property. This distinction must be discernible, it is argued, for the line between
parenting/partnering simpliciter, and parenting/partnering as the root of title, not
to be arbitrary. Mrs. Quartson rose to the occasion when she was made a single
parent. The paradox here is that it does not mean necessarily that she contrib­
uted to his assets. But it also does not necessarily mean that she did not. The
court should have engaged more fully with the facts to explain how they met the
threshold of contribution. For example, what if a housewife pays school fees for a
long period of financial difficulty and then is reimbursed by the husband and after
that reimbursement, he acquires properties? Do the school fees years count as her
contribution to those houses or not?
The effort required for a housewife to step into her husband’s shoes is sig­
nificantly greater than what would be required for the managing director of a
transnational bank to do the same. It seems unfair to undervalue the housewife’s
effort simply because it was reimbursed. It also seems unfair to say the wife, who
is the managing director, had no interest in her matrimonial home because step­
ping into her errant husband’s shoes had been easier for her. Moreover, the court
should not appear to be relieving parents whose union has acquired no property
from the ordinary obligations of parenthood. It is concerning that Mensah and,
especially, Arthur do not draw the line clearly between partner/ parent duties
simpliciter and partner/parent acts creating title in the matrimonial property.
We do not by this analysis either endorse or reject the rightness of the view
that marriage should ipso facto render all assets of both parties jointly held. That
rule exists in several countries on other continents, and as with all things, has its
merits and demerits. However, an evaluation of these is, for want of space, beyond
the scope of this chapter. What we seek to do by this analysis is to assess whether
what the court has been saying and doing is indeed what the 1992 constitution
of Ghana requires it to do. Our answer is that the court must, with the greatest
respect, reflect on and clarify where the ceiling of wifely/husbandly duty ends and
where the floor of property-creating duty begins. Otherwise, improved outcomes
notwithstanding, it cannot claim to have aligned the legal order with the consti­
tutional purposes for which Article 22 was enacted.
52 Yaa Mensa-Bonsu and A.S. Mensa-Bonsu
Article 18 concerns
In Fynn, the Supreme Court first grappled with the effect of their broad interpre­
tation of Article 22 on Article 18. In that case, a husband sold a store, and his
wife sought to have the sale overturned on the grounds that the store was jointly
owned property and the sale was without her knowledge and consent. The court
held that parties within a union retained their Article 18 right to own property
alone. As such, the property of one spouse did not automatically become the
property of the couple, and the spouse retained the power to dispose of such prop­
erty unilaterally. The court refused, therefore, to overturn the sale.
Fynn was applied in Electroland v Adomako (supra). The facts of that case and
the court’s reasoning are helpful aids to understanding the import of the Mensah
rule as it would have operated had the caveats not tempered it. In Electroland,
where the husband successfully resisted the attachment of his house in the sat­
isfaction of a judgment debt against his wife, the court discussed extensively the
practical implications of Mensah for Article 22 and concluded that the right to
equitable distribution of marital property did not arise while the marriage sub­
sisted. The court held further that absent proof of contribution to its acquisition,
property did not become jointly held only because of the continued subsistence
of the marriage. To hold otherwise would have amounted to removing the right
of a married person to hold property alone under Article 18, and that would, of
course, be unconstitutional.
Again, premised on the model of the Ghanaian marriage as described earlier,
it is immediately evident that there is tension between Articles 18 and 22. As
noted earlier, to hold, as the court did in Mensah and Arthur, that housekeeping
and childrearing duties suffice as contribution to property acquisition is to hold
that all property acquired during marriage is marital property unless one spouse is
a bad partner. Indeed, the court held it to be a rebuttable presumption in Arthur.
This, in turn, means that no party in a union may dispose of their property
alone. While it could be argued that it is ideal for a married couple to make
decisions about their individual property jointly, it can hardly be argued that the
law should compel them to. Such a legal state of affairs would, in addition to dis­
couraging citizens from legally combining their estates, have the most deleterious
effect on commerce. In the Fynn case, the third party had diligently conducted
her enquiries into the ownership of the store before proceeding with the sale.
To reverse it because of an undiscoverable third-party interest would have been
inequitable and would have set a poor precedent for the sanctity of commercial
transactions.
Be that as it may, the question of what the Constitution requires the courts
to do is easily answered in respect of Article 18. It requires the courts to uphold
and protect the sole ownership of self-acquired property. To do this, the courts
have had to introduce some limits on their own jurisprudence under Article 22 in
order to prevent a headlong collision of the two constitutional provisions. Seen
in that light, the limitations on the Mensah and Arthur principle are not unrea­
sonable, even if, as discussed, they may be problematic.
 To win both the battle and the war 53
Conclusion
This chapter has been driven by three critical inquiries. First, we juxtaposed the
landmark cases decided before the 1992 constitution entered into force with
those decided thereafter to determine whether outcomes have truly improved
for women since the 1992 constitution took over the regulation of spousal prop­
erty rights in Ghana. We then examined the rhetoric of the post-1992 jurispru­
dence to ascertain whether the dictates of the 1992 Constitution have attained
a centripetal role in judicial reasoning and decision-making in this sphere of the
law. Finally, we tested the constitutional compliance of the judicial reasoning in
the jurisprudence by examining its implicit and explicit ramifications. We found
that the language of judicial reasoning was undoubtedly in consonance with the
Constitution. The answer to the question on outcomes was more complicated,
being at once yes and no. While fewer women are walking away empty-handed
from the fruits of their efforts, they are not necessarily getting the full value of
their labor. We conclude that the court needs to further illuminate both its rules
under Article 22 and the limitations it has put on its interpretation. We note that
the profiles of the wives indicate clearly that there are problems of socialization
that need to be tackled if Article 22 is to be fully realized; there is only so much
the law can do. Parliament’s deplorable failure to enact the legislation envisioned
in Article 22 has ensured that the court’s journey toward constitutional imple­
mentation will be a muddled, stumbling journey. But even so, it is on its way.
And, in spite of the rough terrain, it is a worthy path the court is charting.

Notes
1 Ollennu based his decision on Okwabi v. Adonu (2 W.A.L.R 268), which decided that
a child did not become co-owner of property acquired from the joint industry of the
child and the father. The case had nothing to do with marriage, yet the learned judge
found that the principle could apply to property acquired by the husband from the
proceeds of joint efforts of himself and his wife.
2 Formerly known as the Marriage Ordinance.
3 Act 367 applies to marriages other than monogamous ones only on application by a
party to the marriage. See Section 41.
4 e.g., Clerk v Clerk (n 13), Ribeiro v. Ribeiro (n 14), Gyang v. Gyang (Accra H.C., Jan.
30, 1987), Okang v. Okang, (Accra H.C., Sept. 3, 1985).
5 e.g., Abobor v. Abobor (n 12), Ahmed v. Ahmed (Accra H.C., Oct. 4, 1988), Addai v.
Addai (Accra H.C., Sept. 16, 1983).
6 Further, HJAN Mensa-Bonsu has argued that the conflation of the widows’ and chil­
dren’s interests in a polygamous society has eroded the benefits of the Act when (as is
commonly the case) there are multiple spouses or children of multiple mothers. See
Henrietta Mensa-Bonsu, “The Intestate Succession Law of Ghana: Practical Problems
in Application” (1994) 8 Yearbook of African Law, 105.
7 Some writers have criticized the judgment as reintroducing the language of substantial
contribution—and by extension, its challenges—into the post-1992 era. See M.Y.A
Barnes, “Equality is Equity...or is it? A critical Examination of the Equality Principle
in Distribution of Marital Property.” In C. Dowuona-Hammond et al, Ghana@60:
Mobilising the Law for Ghana’s Future (Wildy, Simmonds and Hill, forthcoming, 2020).
54 Yaa Mensa-Bonsu and A.S. Mensa-Bonsu
8 Which allows the court to enforce any other internationally recognized human rights
not expressly provided for in the Constitution.
9 This was an application for financial provision under the Matrimonial Causes Act.
However, the court discussed the point and intimated that it would have been willing
to grant her a proprietary interest had she applied for one.

Constitutions and legislation

Ghana Constitution, 1992
Intestate Succession Act, 1985 (PNDCL 111)
Marriage Ordinance (Cap 127)
Matrimonial Causes Act, 1971 (Act 367)
Property Rights of Spouses Bill
Intestate Succession Bill
Lands Bill

Other
Government of Ghana, Accra Report of the Committee of Experts on draft Proposals for
the Constitution, 1991, Assembly Press.

Case law
Abebreseh v. Kaah [1976] 2 GLR 46-42
Abobor v. Abobor (Accra H.C., Feb. 16, 1987)
Achiampong v. Achiampong [1982-83] GLR 1017-1039
Adom v. Kwarley [1962] 1 GLR 112
Amissah-Abadoo v. Abadoo [1974] GLR 110
Anang v. Tagoe [1989–90] 2 GLR 8
Arthur v. Arthur [2013–2014] SCGLR 543
Ayer v. Kumordzie [1964] GLR 622
Beckley v. Beckley [1974] 1 GLR 393
Boafo v. Boafo [2005–2006] 705
Bulley-Neequaye v. Acolatse (1969) C.C. 51
Clerk v. Clerk [1981] GLR 583
Deborah Takyiwa v Kweku Adu, Unreported judgment of the High Court (Sunvani Suit
No. L.C. 7/66) May 18,1971
Domfe v. Adu [1986] 1 GLR 653
Happee v. Happee [1974] 2 GLR 186
Electroland v. Adomako Unreported, decided April 22, 2009 HC
Fynn v. Fynn [2013–2014] 1 SCGLR 727
Gyang v. Gyang (Accra H.C., Jan. 30, 1987)
In re George Ntim: Marfoa v. Agyeiwaa, unreported suit no J2/42/2012 SC
In re Kofi Antubam (decd); Quaico v. Fosu [1965] GLR 138
Kofi Tabury v. Adwoa Yeboaba unreported, decided January 24,2013 CA
Kwawukume v. Kwawukume unreported, July 30, 2009 (CA)
Jonas v. Ofori (Accra H.C., Jan II 1988)