A: Introduction

On the 8^th of March – just two weeks ago – the whole world marked another bout of International Women’s Day. Once again, there were the fanciful artworks, outworn exaltations for inclusivity and promotion of women’s rights, need to stop violence again women, and so on. More rhetoric. As the annual women’s funfair has died its natural death, awaiting an imminent resurrection next year with the usual buzz and fuss, women’s rights have reset (to use the terminology in vogue these days) to their original mode of slipping down the slope.

There are laws that regulate the giving of gifts, whether under customary law or common law. The general position of the law is that a valid gift once given and accepted cannot be revoked. But in recent times, there has been a situation where the High Court has held a “girlfriend gift” to have offended the rules on morality, and thus, taken the gift away from the lady. In this article, we explore the phenomenon where some married men (whether in customary, Islamic or Ordinance marriages) give gifts of various kinds to women and girls they take on as paramours or girlfriends, and then later take steps to take back the gift when the love loses its shine.

 

B: Is protection of women’s rights the job for women only?

There is a common saying - the source of origin of which is not easily ascertainable – that ‘women are their own enemies.’ This is an empty epithet fashioned to white-wash and justify female suppression, violence against women and set women against women. Let us take a typical example. Recently, the whole nation was informed that the Property Rights of Spouses Bill that was placed before Parliament in the 5^th & 6^th (and 8^th) terms did not pass because twenty (20) female MPs opposed it![1]

This is what the Attorney-General reportedly said:

“The women’s caucus in Parliament at the time strongly opposed that provision [on cohabitation], and their opposition was louder than all the men combined. There were only 20 women, yet during consultations, when I even suggested removing the cohabitation clause which provided that if a man and a woman, regardless of marital status, lived together for five years and presented themselves as husband and wife, they would be entitled to inherit shared property; the women still shut it down.”

Contrary to the Attorney-General’s assertion, the most current discussion on the passage of the Property Rights of Spouses Bill that took place in Parliament in December, 2023 rather indicated that its passage was supported by female MPs and representatives of Ghana Queen-mothers Association. But it was rather vehemently opposed by a male MP.[2] Indeed, available evidence shows further that it is rather the female MPs who have taken it upon themselves to see to the passage of the Bill. For instance, it has been reported that as recently as March, 2024, female MPs led the charge to advocate for Parliament to pass the Bill. According to gbcghanaonline.com,

“Some female Members of Parliament held stakeholders’ engagement on the Property Rights of Spouse Bill, 2024 and the need to pass the Bill into an act to give proper meaning to Article 22 of the 1992 Constitution of the Republic.

The Bill that is seeking to regulate the property rights of spouses in accordance with article 22 of the Constitution and for related matters co-sponsored by MP for Techiman North in the Bono East Region, Elizabeth Ofosu-Adjare and Member of Parliament for Asokwa in the Ashanti Region in the person Patricia Appiagyei with support from MP for Ketu South in the Volta Region, Abla Dzifa Gomashie to take input from stakeholders from the Ghana Bar Association and from some selected groupings interested in the Bill and see its passage.”[3]

How could such a great effort by the female MPs (from both sides of the political divide) to get the Bill passed in the last Parliament be missed? And the so-called twenty female MPs’ alleged opposition to the Bill could be remembered and set up as a legitimate excuse not to pass it? Needless to say, the Property Rights of Spouses Bill has been stillborn for 32 years… and counting. 

 

C: Have the courts rescued the perishing?

Now that Parliament appears to have shifted the issue of women’s rights to the perennially minuscule women’s caucus in the House, perhaps, it is the Executive arm of Government that bears the task of salvaging women’s rights. But one cannot be so sure. Apparently, the Rt. Hon. Speaker of Parliament has already reportedly called out the President for the low women’s representation in his Cabinet - in a men/women ratio of 17:2.[4]

With Parliament and the Executive (collectively, the politicians) doing their own thing regarding women’s rights, naturally, the law courts must be the last ray of hope. Admittedly, the courts started off on a great note in the 4^th Republic on issues of women’s rights, including spousal property rights. Cases such as Mensah v Mensah[5]  brought a new and positive thinking towards promoting women’s property rights. It marked a watershed moment in women’s rights jurisprudence in Ghana. However, once those batch of judges exited the Bench, the legal thinking swung back to the old days of pre-1999.

Now, we have the decision of Adjei v Adjei[6] and its review Bench decision of the same name that is yet to be made public. That majority decision in the Adjei case literally wiped out the gains that had been made through the previous forward-looking decisions of the Supreme Court such as Mensah v Mensah.[7] A brief summary of the facts in Adjei v Adjei[8] will be sufficient here. Peter Adjei filed for divorce against his wife, Margaret Adjei, at the High Court. The High Court granted the divorce and gave Margaret the matrimonial home (which the High Court described as jointly-acquired) and GH¢500,000.00 as lump sum payment, among others.

Peter was not happy with the High Court’s decision so he appealed to the Court of Appeal. The Court of Appeal held that the matrimonial home could not be said to be joint property; it was for Peter only. The reason was that Peter had not fully repaid the bank loan which he alleged he took to build the house. Also, the property stood the risk of being lost if Peter failed to repay the loan in full. The Court of Appeal, therefore, gave the house to Peter and gave Margaret only GH¢500,000.00.

Both Peter and Margaret appealed against different parts of the Court of Appeal’s decision to the Supreme Court. The Supreme Court agreed with the decision of the Court of Appeal and held that, the matrimonial home could only be termed “joint property” if the loan was fully paid during the subsistence of the marriage. The decision in the case is problematic as the wife was denied a share in the property for the simple reason that there was a subsisting loan on the property. Margaret’s application for a review of the Supreme Court decision was dismissed by an unanimous 7-member panel, including the two dissenters who had earlier held in her favour on the ordinary bench. It is for fear of atrocious decisions such as Adjei v Adjei that it is important for a Property Rights of Spouses law to be passed.

Apart from married women being given the short end of the stick in recent cases such as Adjei v Adjei,[9] women whose marriages are nullified because the ‘husbands’ conceal their existing monogamous marriages are also left to go empty-handed.[10] Yet again, women who cohabit with single men, invest their resources into joint assets in anticipation of impending marriage, are rebuffed as being “concubines” without any property rights when the marriage does not materialize.[11]

 

D: The girlfriend and married boyfriend case discussed

Seeing how women’s right to property have been handled by the courts over the course of time, it is necessary to direct attention to the disturbing precedent that has recently been set by the High Court regarding a gift made by a man to his girlfriend. According to reports,[12] the plaintiff sued the defendant, whom she referred to as her "sugar daddy" for failing to hold his side of several promises he made to her.

According to the plaintiff, the defendant agreed to buy her a car, pay for her accommodation for three years, provide a monthly stipend of GH¢3,000, marry her after divorcing his wife, and offer a lump sum to start a business. The plaintiff claimed that although the car was initially registered in the defendant’s name, he later took it back, depriving her of its use after just a year. She also sought an order for the defendant to pay her medical expenses as a result of a “side effect of a family planning treatment” the defendant told her to do in order not to get pregnant.

Before the substantive suit was heard, the High Court (differently constituted) made an order that the plaintiff should hand over the car to the Registrar of the Court “for preservation until the final determination of the case.”[13] At the end of the proceedings, the High Court dismissed the plaintiff’s case. It was reportedly held that the relationship between the plaintiff and defendant was immoral and was not in conformity to acceptable standards of society. The High Court is reported to have said that the foundation of the relationship was one that the Court should not be invited to give judicial stamp to, adding:  “You cannot recover the price of something you have committed into an immoral act.” Thus, there was no reasonable cause of action arising from the plaintiff’s writ, according to the Court.[14] The plaintiff was further slapped with costs of GH₵10,000.

Now, looking at the reliefs the plaintiff sought from the court, most were promises made by the defendant and had, in fact, been partly performed. For instance, the defendant had paid part of the 3-year rent and provided the monthly stipend. Could it be said that the plaintiff had no reasonable cause of action to seek orders to enforce the performance of those promises? For our present purposes, though, the most crucial question to ask is whether the plaintiff had a cause of action to seek an order to prevent the defendant from revoking the gift of car he had made and given physical possession of the same to her. 

From the facts as reported, even though the defendant kept the car documents in his name, he had handed physical possession and use of it to the plaintiff for the best part of about one year. It is for this reason that one is at loss to appreciate how the High Court succeeded in getting the gift taken from the donee (recipient) under the pretext of enforcing an order of preservation. If there was anyone better placed to ‘preserve’ the car during the pendency of the suit, it was the plaintiff (donee) herself. Considering the eventual outcome of the case, it leaves no one in doubt that the order of preservation was a ruse to get the plaintiff (donee) to give away possession of the car for its eventual return to the defendant (donor).

The question that we seek to answer ultimately is this: Was the High Court right in revoking the gift of car made by the defendant to the plaintiff? Before delving into a discussion of the High Court’s decision, let us have a brief discussion of gifts, the essential elements of a gift and whether a gift can be revoked or taken back after it has been duly given and accepted.

 

E: Essentials of a valid gift: Does she lose the gift when the love is lost?

i)     What is a gift?

Sarbah describes a gift as consisting in the relinquishment of one's own right and the creation of the right of another, in lands, goods, or chattels, which creation is only completed by the acceptance of the offer of the gift by that other person.^[15] Ollennu, JSC also describes a valid gift made under customary law as “an unequivocal transfer of ownership by the donor to the donee, made with the widest publicity which the circumstances of the case may permit.”^[16] A gift can be made under customary law (where there is no need for a written document/deed of gift) or the common law (where the gift will be evidenced by a deed of gift). Since there is no evidence that the gift of car made by the defendant to the plaintiff in the case under discussion was covered by a deed, it is presumed that it was a customary law gift.

 

ii)    What are the essential elements of a valid customary law gift?

According to Sarbah,

“To constitute a valid gift, an intention of giving or passing the property in the thing given to the donee by the donor, who has power so to do, is necessary . . .The giving and acceptance must be proved and evidenced by such delivery or conveyance as the nature of the gift admits of.”^[17]

Since the gift of the car by the defendant to the plaintiff was a movable property or chattel, the stringent requirements such as publicity, acceptance by presentation of drinks (“aseda”) and performance of customary ceremonies such as “tramma” and “guaha” were not necessary.[18] As a gift of a movable property, all the plaintiff needed to do to perfect the gift was to accept it by taking possession of it, which she did. In the circumstances, could the defendant get the gift back? More so on the grounds of morality and illegality as the High Court did?

 

iii)   Is a valid customary law gift revocable?

The answer to the question - is a valid customary law gift revocable? – is simply, no. The learned legal writers are of one mind that a gift is irrevocable. According to Sarbah, every completed gift is irrevocable. The only exception is gifts made between a parent and a child. He notes that such gifts could be recalled or exchanged at any time by the parent in his or her lifetime, or by his will or dying declaration.^[19] Danquah holds a similar view and says that to revoke a gift is always a matter of controversy: “It can hardly be done, but if a father grants his son or daughter a piece of cocoa farm in anticipation of filial services and the child deliberately fails to do any service for the father, the gift may be taken back.”^[20] Kludze also states that as a general rule, once a gift is effectively accepted, whether formally or informally, it becomes irrevocable.^[21]

 

Now, there are a plethora of decided cases that have also reached the same conclusion that a gift that has been effectively made cannot be revoked, except parent-child gifts. Thus, the principle discernible from the cases is that, every gift when completed is irrevocable, except in gifts between parent and child, which can be recalled or exchanged at any time by the parent in his or her lifetime, or by his will or dying declarations.[22] The gift of car made by the defendant to the plaintiff was not a parent-child gift. Therefore, it was wrong for the High Court to take the validly gifted car from the plaintiff and restore it to the defendant. Morality and illegality had no part to play in the determination of the issues presented before the court for determination.

 

iv)   Is a gift by a married man to his girlfriend revocable?

The essential elements for making a valid gift (as set out above) do not include the nature of the sexual relationship between a donor and a donee. Therefore, a boyfriend can make a gift to a girlfriend and vice versa. The fact that one of the parties may be married to someone else has no bearing on the enforcement of the gift. Once all the essential elements are satisfied, the alleged philandering party cannot set up his marriage as a subterfuge to take back what has been validly given away as a gift. The High Court Judge, with all due respect, allowed his unfavourable assessment of the plaintiff to blot out all evidence of a gift, and gave no consideration to the matters urged in proof of a gift.

It is interesting to note that married men being obsessed with their girlfriends is not a new phenomenon. The fact that when the love wanes, they make every effort to take back gifts they shower on them is also not new. What is new and perplexing is that these days, the courts appear to lend their assistance to such vexed men to bastardize otherwise validly made gifts, much to the detriment of the women involved.

In years gone by, the courts were alert to such instances where men wanted to take their gifts back from their paramours when the love turned sour. The courts gave such men the judgments they rightly deserved by turning them away empty-handed. An example is what happened in the 1965 case of Mamavi v West Africa Building Ltd.^[23] The plaintiff promised to buy his mistress, the third party in the case, a house. Consequently, he asked her to look around for a suitable one. The lady found one at Tesano, owned by the defendants, the West African Building Ltd. The plaintiff and the third party went to the offices of the defendant where the plaintiff wrote a cheque for the full purchase price of the house. On the plaintiff's instructions, the receipt for the purchase price was issued in the name of the third party. Another receipt to cover legal expenses in connection with the purchase and ground rent paid by the plaintiff was also issued in the third party's name on the plaintiff's instructions. The plaintiff further instructed that the assignment of the house should be made in the third party's name.

On the day the defendant handed over the keys of the house to the plaintiff, he in turn handed them over to the third party. The third party occupied the house for a few weeks and later on rented it to a tenant who paid rent to her. The defendant did not complete the assignment deed after several months. In the meantime, some differences arose between the plaintiff and the third party. Consequently, the plaintiff countermanded his instructions to the defendant concerning the house and demanded that the assignment deed must be prepared in his name rather than that of the third party.

The defendant refused to carry out these new instructions without the third party's knowledge and consent. The plaintiff then sued the defendants claiming a return of his purchase price, on the ground that the defendants, by refusing to assign the property to him, the purchaser, had repudiated the contract of sale.  The defendants joined the third party to have the issue settled as to who was the proper assignee as between her and the plaintiff, among other things.

It was held that the defendant put the plaintiff in possession of the house when the company handed the keys of the house to him.  At that time the beneficial interest in the house was transferred to him. Secondly, by the conduct of the plaintiff, the defendant had reason to think that the plaintiff in his turn transferred the beneficial interest he himself acquired to the third party or was going to do so. Therefore, if as the company may well have thought, the beneficial interest in the house became vested in the third party, it would be an act of folly on their part to proceed to carry out the plaintiff's altered instructions without ensuring that they had the approval of the third party.

Further, the company and its solicitors were partly at fault in delaying the preparation of the legal assignment but the plaintiff was not entitled on that score alone to treat the contract at an end or to recover the purchase price of a house whose possession and enjoyment he had had. As the Court found, she and the plaintiff some time spent week-ends in the house in dispute. At other times, they went there to eat, drink and relax.  The third party was an attractive young woman and the plaintiff was enamoured of her. She was his paramour. That seemed to be the raison d’etre for the promise to buy a house which he made to her.  It was in fulfilment of that promise that the house in dispute was purchased.

The Court found on the facts and evidence that the plaintiff intended to make a gift of the house to the third party. There was no question about the nature of the relationship between the plaintiff and the third party. This is how the plaintiff had professed his love for the third party:

“Please darling, I can assure you that not all the legions of hell grouped together can separate us or swerve my attention one jot from you;”

“May I here reiterate my previous promise that neither hell nor Lucifer can separate us;”

“I admit our love for each other is so fierce as to be tyrannical;” and

“To conclude, no sacrifice will be too high a price to pay for your love.” 

All this may be sentimental nonsense - as Apaloo, JSC (as he then was) rightly observed - but it did go to support the third party that she and the plaintiff were united in love and the plaintiff intended to make a gift of the house to her.^[24] 

Also, between the plaintiff and the third party, the plaintiff had done all there was to divest himself of the beneficial interest in the property. What remained, that is, the preparation of the legal assignment, had nothing to do with the plaintiff.  In those circumstances, the plaintiff must be deemed to have completed the intended gift, and the maxim “equity will not perfect an imperfect gift” did not apply.^[25] Since the gift was not in any way incomplete, it follows that the gift was irrevocable^[26] and the plaintiff could not countermand his instructions to the company to effect indirectly the same purpose.

It is interesting to observe that in the car gift case under discussion, which clothes itself with a semblance to the facts of the Mamavi case, the High Court, in dealing with a broken promise made by a married man to his girlfriend, took the view that “the foundation of the relationship was one that the Court should not be invited to give judicial stamp to and, therefore, dismissed the plaintiff’s (girlfriend’s) action. By choosing to focus his attention on the nature of the relationship between the parties instead of the crucial legal issue of whether the defendant had made a valid gift of the car and other items to the plaintiff, the High Court judge missed the opportunity to do justice to the plaintiff.

The issue before the High Court was whether the plaintiff (girlfriend) was entitled to keep the gift of car she had received from the boyfriend (defendant). The issue was not whether the gift was vitiated by the fact that the boyfriend was a married man. At any rate, if the boyfriend was married and he chose to excite himself outside his holy matrimony, will equity, fairness and justice allow him to set his marriage up as a ground to revoke a valid gift – albeit an improvident one - he had made to his girlfriend? And at the same time keep the benefit of all that he enjoyed from and of the young lady, the plaintiff? Would that not amount to unjust enrichment?

It is submitted that the defendant in the case was in the same position as the plaintiff in the Mamavi case whose attempt at retrieving a gift he had made to his girlfriend in good times was rightly rebuffed by Apaloo, JSC (as he then was) (sitting as an additional High Court judge) who opined that “the evidence satisfied me that the plaintiff intended to make a gift, albeit an improvident one, of the house to the third party [the girlfriend].”

 

F: Conclusion

In 1965, the High Court saw through the injustice of a married man boyfriend trying to short-change a young woman and stopped him in his diabolical tracks. It is unfortunate that almost 60 years later, faced with similar circumstances, the young woman’s rights under a valid gift had to be sacrificed on the altar of a so-called ‘moral’ code. Sadly, the ‘morality’ rod was not used to whip the one who had vowed to be moral. It was used as his shield. It was the other party who had to fall on the ‘moral’ sword that was thrust through her heart.

Truly, justice is sweet when it wears no moral blinkers.

---

[1] See: “Fear of 'Side Chicks': AG details why 20 female MPs shot down 'spouses' property rights' bill”

 Source: https://www.ghanaweb.com/GhanaHomePage/NewsArchive/Fear-of-Side-Chicks-AG-details-why-20-female-MPs-shot-down-spouses-property-rights-bill-1969877 (accessed on 14th March, 2025)

 

[2] See: “Majority Leader urges Parliament to pass Property Rights of Spouses Bill;” Source: https://www.myjoyonline.com/majority-leader-urges-parliament-to-pass-property-rights-of-spouses-bill/

(accessed on 14^th March, 2025) and “Pass proposed Property Rights of Spouses Bill to ensure equity - Kyei-Mensah-Bonsu urges Parliament” Source: https://www.graphic.com.gh/news/general-news/ghana-news-pass-proposed-property-rights-of-spouses-bill-to-ensure-equity-kyei-mensah-bonsu-urges-parliament.html (accessed on 14^th March, 2025)

 

 

[3] See: “Parliament holds stakeholders’ engagement on Property Rights of Spouse Bill.” Source:

https://www.gbcghanaonline.com/news/parliament-holds/2024/ (accessed on 14^th March, 2025)

[4] See: “Low female representation in Mahama’s cabinet unacceptable – Bagbin.” Source: https://citinewsroom.com/2025/03/low-female-representation-in-mahamas-cabinet-unacceptable-bagbin/ (accessed on 14^th March, 2025)

[5] [1998-99] SCGLR 350. See also: Arthur (No. 1) v Arthur (No. 1)  [2013-2014] 1 SCGLR 543; Mensah v Mensah [2012] 1 SCGLR 391; Quartson v Quartson [2012] 2 SCGLR 1077 and Boafo v Boafo [2005-2006] SCGLR 705

[6] Civil Appeal No. J4/06/2021; judgment dated 21st April, 2021, SC (Coram: Appau, Pwamang, Amadu, JJ.SC (concurring) and Agnes Dordzie and Avril Lovelace- Johnson, JJ.SC (dissenting))

[7] See note 5 above

[8] Civil Appeal No. J4/06/2021; judgment dated 21st April, 2021, SC

[9] Above

[10] See, for example, Owuo v Owuo Civil Appeal No J4/20/2017 dated 6^th December, 2017, SC and Frimpong v Addo Civil Appeal No. H1/73/2020 dated 18^th June, 2020, CA. For a detailed discussion of these cases, see: Francisca Serwaa Boateng, PERSPECTIVES (Vol. 1) (2022) “From whence cometh our help? The dilemma women face after their marriages are nullified” p. 233

[11] Mintah v Ampenyin Civil Appeal No. J4/18/2013 judgment dated 25th March, 2015, SC

[12] Source: https://www.graphic.com.gh/news/general-news/side-chick-case-court-throws-out-case-against-sugar-daddy-awards-gh10k-cost.html (accessed on 14th Match, 2025)

[13] Source: https://www.graphic.com.gh/news/general-news/court-orders-side-chick-to-handover-vehicle-to-sugar-daddy.html (accessed on 14th Match, 2025)

[14] Source: https://www.graphic.com.gh/news/general-news/side-chick-case-court-throws-out-case-against-sugar-daddy-awards-gh10k-cost.html (accessed on 14th Match, 2025)

                                                                                                                                                                                                                                                     

[15] J. M. Sarbah, FANTI CUSTOMARY LAWS (2^nd Ed.) William Clowes & Sons Limited (1904) p. 80

[16] By Ollennu, JSC in Yoguo & Another v Agyekum & Others [1966] GLR 482, SC

[17] J. M. Sarbah, FANTI CUSTOMARY LAWS (2^nd Ed.) William Clowes & Sons Limited (1904) p. 80-81. According to Kludze, “to make a gift effective there should be publicity and, in addition, a formal acceptance of the gift by the done:” see: A.K.P. Kludze, “The Family, Property And Succession Among The Northern Ewe-Speaking People Of Ghana,” a thesis presented for the Internal Degree of Doctor of Philosophy in the Faculty of Laws, University of London, (1969) p. 527

[18] These are requirements for making a valid customary law gift of immovable property such as land, farm or house

[19] See: J. M. Sarbah, FANTI CUSTOMARY LAWS (2^nd Ed.) William Clowes & Sons Limited (1904) p. 81

[20] J. B. Danquah, AKAN LAWS AND CUSTOMS (1928) p. 219

[21] A. K. P. Kludze, “The Family, Property And Succession Among The Northern Ewe-Speaking People Of Ghana,” a thesis presented for the Internal Degree of Doctor of Philosophy in the Faculty of Laws, University of London, (1969) p. 544

[22] See: Boakye v Broni & Another [1958] 3 WALR 475; Awisi v Nyarko [1966] GLR 3; Abenyewa v Marfo [1972] 2 GLR 153

[23] [1965] GLR 216 (Coram: Apaloo, JSC, sitting as an additional judge of the High Court). This is one of the cases that, to me, mark Apaloo, CJ as one of the most endearing judges Ghana has ever produced. The more one reads his judgments, the more one falls in love with his intellect, wisdom, practicality, forthrightness and admirable use of language

[24] See also: Standing v Bowring [1884] 27 Ch. D 341

[25] Re Rose (Deceased); Rose v Inland Revenue Commissioners [1952] 1 All ER 1217, CA; Re Anstis; Chetwynd v Morgan [1886] 31 Ch. D 596, CA and Re Plumptre's Marriage Settlement; Underhill v Plumptre [1910] 1 Ch. 609

[26] See: Boakye v Broni & Domfe [1958] 3 WALR 475