MRS. THERESA TENKORANG VS MR. FRED OBENG

JUDGMENT

INTRODUCTION

[1]. The Plaintiff by an Amended Writ of Summons filed on 23/11/18 commenced this action against the Defendant who was served out of the jurisdiction. The Plaintiff claimed the following reliefs:

1. Perpetual injunction against the sale of the house numbered 14/30 Baatsona, Accra until the final determination of the case

2. A declaration that house numbered 14/30 Baatsona, Accra is a joint property.

3. An order for valuation and equal sharing of the valued house

4. Cost for prosecuting the case

5. Any other reliefs that the court may deem fit.

[2]. The Defendant, on the other hand, counterclaimed for:

i.   A declaration that the Plaintiff has no interest in the Baatsona house again as it was settled in the sole name of the Defendant and the

defendant also cannot make any further claim to the Kumasi property as it was mutually settled in the name of the Plaintiff.

ii.  An order directed at the Plaintiff to release immediately to the Defendant the indenture and other land documents on the Baatsona property.

 

 

BACKGROUND FACTS - PLAINTIFF’S STORY THROUGH PLEADINGS

[3]. The Plaintiff in her Amended Statement of Claim averred that in 1998 she got married customarily in Ghana before they went to France and had an Ordinance marriage with the Defendant. The marriage was later dissolved and Plaintiff tendered evidence of the dissolution Exhibit 2 (judgment of the Tribunal de Grande Instance de Paris). The translation of the judgment into English was tendered as Exhibit 3. The Plaintiff pleaded further that during the pendency of the marriage the parties put up a house at Baatsona, Accra and after the dissolution of the marriage in France, it has become necessary for the property acquired jointly to be sold. The Plaintiff also stated that they bought a plot of land at Kumasi which was sold by the parties before the petition was filed in France.

[4]. The Plaintiff averred that during the pendency of the marriage they acquired some properties in Ghana; that they pooled resources to build a house at Baatsona i.e. House no. 14/30 Baatsona Tema. She alleged that it has come to her notice that the Defendant has taken initiative to sell the house acquired by both.

 

 

BACKGROUND FACTS - DEFENDANT’S STORY THROUGH PLEADINGS

[5]. The Defendant admitted he got married customarily to the Plaintiff whiles both parties were still in France and later married under the French law in 1998 but the marriage was dissolved. The Defendant denied Plaintiff’s story of “pooling of resources”. He stated that the Plaintiff was not working at the time since she was not having working permits.

[6]. He further averred that he solely financed the building of the Baatsona House from a loan of Twenty-One Thousand, Five Hundred Euros (€21,500) he collected from Société Generale (See Exhibit B). He initially sent to one Mr. Gyasi, One Thousand, Five Hundred Euros (€1,500) to purchase the land and start the construction of the house. The Defendant also paid to Mr. Gyasi in 2008 when he came for the mother’s funeral an amount of Twenty-Five Thousand Ghana Cedis (¢25,000.00). He later made other remittances in the sum of Four Thousand Euros (€4,000) to Mr. Gyasi through a friend called Boateng for the purchase of building materials. He tendered some receipts to that effect.

[7]. The Plaintiff did not contribute any money whatsoever to the Baatsona property. Despite this the Defendant agrees that the Baatsona property is jointly owned. The Defendant further averred that he deposited some Four Thousand Euros (€4,000) with the Plaintiff. This money was used by the Plaintiff without his permission to purchase a land in Kumasi in 2013 when the Plaintiff visited Ghana and started the construction of a house. He later endorsed the transaction and caused the indenture which was prepared in Plaintiff’s sole name to be changed into their joint names. The Defendant also directed one Naa Mokor to pay Five Thousand Ghana Cedis (GH¢5,000) to Obaa Yaa to be given to Nana Akwesi for the construction of the house. The Defendant exhibited pictures of the house as the time of the case as Exhibit C & C1.

[8]. The Defendant averred that his marriage to the Plaintiff was dissolved by French High Court in 2017. The Plaintiff says during the proceedings the court ordered pende lite that the parties claim should include proposal for settling their pecuniary and proprietary interest hence the plaintiff came to see defendant in 2017 and acknowledged that she has not made any financial contribution towards Baatsona property; she therefore proposed to him and he mutually agreed with her to yield up his interest in the Kumasi property and for it to be settled in Plaintiff’s sole name and Baatsona one also be settled in Defendant’s sole name so that he could enjoy same with his children.

[9]. The Defendant further contends that since he had already mutually agreed with the Plaintiff that the Kumasi house be settled in her favour, the Plaintiff cannot make any claim to the Baatsona property again. The Defendant counterclaimed for an order directed at the Plaintiff to release the indenture and other land documents on the Baatsona property.

 

 

ISSUES SET DOWN FOR TRIAL

[10]. After the close of pleadings and at the direction stage some of the issues set down for trial include the following to guide the trial:

1. Whether the disputed house was acquired during the pendency of the marriage between the parties.

2. Whether the parties jointly built the property in dispute.

3. Whether the Plaintiff is entitled to her reliefs.

 

4. Whether the Defendant is entitled to his counter claim.

5. Any other issues that may out of the pleadings.

 

 

STANDARD OF PROOF, BURDEN OF PROOF AND PERSUASION PLAINTIFF’S CASE

[11]. The burden of proof refers to the responsibility of a party in a civil case to establish the facts and elements of their claim or defense. In all forms of civil litigation; the standard of proof is one of the preponderance of probabilities. The proof prescribed in civil trials is provided under sections 10, 11 and 12 of the Evidence Act, 1975, NRCD 323. These sections on the burden of proof, burden of persuasion and burden of producing evidence provide thus:

“Section 10 (1) For the purpose of this Act, 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.

(2) The burden of persuasion may require a party (a) To raise a reasonable doubt concerning the existence or non- existence of a fact, or (b) To establish the existence or non- existence of a fact by a preponderance of probabilities or by proof beyond reasonable doubt.

Section 11 (1) For the purpose of this Act, the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling on the issue against that party…

Section 12(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.”

[12]. Similarly in ACKAH V PERGAH TRANSPORT LTD [2010] SCGLR 728 at page 736

Adinyira, JSC stated that:

“It is a basic principle of the law of evidence that a party who bears the burden of proof is to produce the required evidence of the facts in issue that has the quality of credibility short of which his claim may fail…”

See also the case of Aryee v Shell Ghana Ltd & Fraga Oil Ltd [2017-2020] SCGLR 721 At 733

 

 

[13]. It is trite learning that the Plaintiff bear the evidential burden to adduce sufficient evidence if he is to secure a ruling on the existence or non-existence of a fact crucial to the reliefs he seeks. The learned jurist S.A Brobbey, in his book, ESSENTIALS OF GHANA LAW OF EVIDENCE at page 28 posits as follows:

“In the normal run of affairs, since the plaintiff is the one asking for something from the defendant, he should be the one who will start the proceedings by giving his testimony. That testimony will show what he wants from the defendant and why he wants the court to order the defendant to give it to him. If he drags the defendant to the court but he fails to lead evidence to establish his claim and the basis of the claim, he cannot have the assistance of the court to get what he wants. In life, one gets nothing from nothing. So it is in law. If the party does not lead evidence to establish the claim or its basis, the court will have no grounds or reason or basis for making any order in his favour. If he leads no evidence…”.

[14] The learned jurist, Brobbey JA (as he then was) had the opportunity restated his illumination on the evidential burden imposed by the Evidence Act in the case of DUAH v YORKWA [1993-94]1 GLR 217 wherein he remarked that:

“Part II of NRCD 323 which deals with the burden of proof covers on the one hand, the burden of persuasion under sections 10, 14 and 15 of NRCD 323 and on the other hand, the burden of producing evidence under sections 11, 12 and 13 of NRCD 323. Considering the wording of section 10 (1) of NRCD 323 in the light of the Commentary on the Evidence Decree at pp 14-16, I am of the view that the expression “burden of persuasion” should be interpreted to mean the quantity, quantum, amount, degree or extent of evidence which a litigant is obligated to adduce in order to satisfy the requirement of proving a situation or a fact. The burden of persuasion differs from the burden of producing evidence. Under sections 11, 12 and 13, particularly section 11 (1) of NRCD 323 the burden of producing evidence “means the duty or obligation lying on a litigant to lead evidence.” In other words, these latter actions cover which of the litigating parties should be the first to lead evidence before the other’s evidence is led.

See also the case of Sarkodie v. FKA Co Ltd (2009) SCGLR Page 65

[15] In all civil suits, the court is enjoined by section 12 of the Evidence Act 1975 (NRCD 323) to evaluate and weigh the evidence adduced by the parties on preponderance of probabilities. This requires a careful analysis of the entire evidence as held by Ansah JSC in the case of TAKORADI FLOUR MILLS v SAMIR FARIS (2005-2006) SCGLR 882 at 884 holding 5 as follows:

“it is sufficient to state that this being a civil suit, the rules of evidence require that the Plaintiff produces sufficient evidence to make out his claim on a preponderance of probabilities, as defined in section 12(2) of the Evidence Act, 1975 (NRCD 323). In assessing the balance of probabilities, all the evidence, be it that of the plaintiff or the defendant must be considered and the party in whose favour the balance tilts is the person whose case is the more probable of the rival versions and is deserving of a favourable verdict”.

[16]. It follows that if the evidence adduced is such that the scales are evenly balanced, the burden of proof on the plaintiff would not have been satisfied. In that event, the case of the plaintiff should fail. See S. A. Brobbey, Essentials of the Ghana Law of Evidence (2014) page 42.

 

 

EVALUATION OF EVIDENCE AND RESOLUTION OF ISSUES

 

[17] Before we embark upon evaluation of the evidence and resolve pertinent issues needed to determine fate of the claim and counterclaim, it is imperative to outline relevant factual context that are not in dispute. First, the parties married under customary law in 1998 in Ghana and also had civil marriage (or ordinance marriage) in France in September 1998. Second, the marriage contracted has been dissolved before Judge Florent Carpenter, Family Court (High Court) Paris, France on 21st March 2019 but the effects of the divorce as regards properties date back to 18th September, 2017. (see Exhibit 2)

[18]. What the parties have not agreed upon necessitating adjudication are: whether the Baatsona-Tema Property and the supposed Kumasi Property are jointly acquired matrimonial property ; and whether the parties have actually entered into post dissolution property settlement agreement in respect of these two properties.

Baatsona-Tema Property

[19]. The Plaintiff pleaded that the parties acquired Baatsona-Tema Property during pendency of the marriage and same was vehemently denied by Defendant. Consistent with the evidential maxim Ei Incumbit Probatio, Qui Dicit, Non Qui Negat (i.e. The burden of proof lies upon the person who affirms but not who denies.), Plaintiff had burden to adduce sufficient evidence on preponderance of probability with respect to timing and mode of acquisition of this property. Testifying on behalf of the Plaintiff, her Lawful Attorney, Yaw Owusu Victor, per his Witness Statement (admitted as his evidence- in-chief) stated inter alia as follows:

“ 9. The Plaintiff will like to state that during the pendency of the marriage it became necessary to acquire a plot of land at Baatsona, Tema.

10. The Plaintiff will further state that the Plaintiff and Defendant decided to pull their resources together to put up a house as the matrimonial home.

11. The house is at Baatsona, Tema with the house number 14/30 Baatsona, Tema.

18. I will state all monies given out to Mr. Gyasi to build the house for parties were jointly sent money.”

[19]. The above evidence of Plaintiff’s Lawful Attorney (PW1) in so far as the joint acquisition of the Baatsona-Tema property was concerned, was not challenged or contradicted during cross examination by Counsel for Defendant. Counsel for Defendant subjected PW1 to extensive and rigorous cross examination over two sittings of the court. On 14/5/2021 during cross examination by Counsel for Defendant this is what transpired:

“Q: You tendered a Judgment of the Court that is Exhibit 2 which you can find at page 8 of the paginated bundle and this Judgment amongst other things state that the parties shall resort to amicable settlement or and sharing of their matrimonial interest. What do you say to that?

A: That is not so.

Q: I am putting it to you that the parties indeed resorted to amicable settlement of their matrimonial interest after the Judgment of the Court. I am putting it to you.

A: If it was so we would not have brought the case to Court.

Q: Have the parties attempted any amicable settlement of the properties?

A: No, they have not attempted settlement on the properties.

Q:  Would I be correct to say by your own evidence that there is still some dispute in respect of the matrimonial properties?

A: Yes, my Lady.”

Q: I am putting it to you that the matrimonial properties has been shared after the Judgment.

A: If the parties have shared the properties we would not have been in Court.

Q: How many landed properties were the parties having in Ghana before the dissolution of the marriage?

A:  I know of one house built in Tema. House No. 14/30 at Baatsona.

Q: Is that all the houses you know they acquired in the matrimony?

A: That is the only house I know.”

[20]. It is absolutely clear from the content of questions posed by Counsel for the Defendant that the Defendant admits that the parties have matrimonial properties in Ghana. The answers provided by PW1 reinforces his earlier testimony in his evidence in chief that the parties jointly acquired House at Baatsona-Tema. PW2 and PW3 also provided corroboration to the testimony of PW1 that the parties jointly acquired Baatsona Property during subsistence of the marriage. PWI in his evidence in chief on 11/7/2023 had testified that although the construction of the Baatsona Property was supervised by Mr. Gyasi on behalf of the parties, Plaintiff also directly purchased some of the building materials. When PW2 was cross examined by Counsel for Defendant this what happened:

Q:  When you stated that the Plaintiff comes to buy building materials, you cannot tell whether the monies she used in buying the materials came from the husband, Fred Obeng.

A:  My Lord what I know is 5 days after the Defendant had laid the concrete, he told me he wanted to travel outside. He called me in two days’ time and told me that his wife had sent him money to change the roofing in the house.

Q:  I am putting it to you that even if the wife had sent any money, you cannot tell whether it was from her own resources or that of Mr. Obeng you cannot tell.

A: That is so I cannot tell.

Q: And I am further putting it to you that it is not true that Mr. Obeng called you and said the wife was going to send him money.

A: My Lord it is true.

Q:  Where is this house situated?

A:  It is situated at Community 18.

 

 

[20]. The fact that Plaintiff had contributed directly towards construction of the Baatsona-Tema Property was further corroborated by PW2 in paragraph 6 of her Evidence in Chief (Witness Statement) that “I will say that on numerous occasions I have witnessed the Plaintiff giving monies to people working on the disputed house when it was under construction”. During cross examination of PW2 by learned Counsel for Defendant despite unmitigated confrontation and rigorous probing PW2 was very calm in her demeanour and provided pertinent corroboration to the story of the Plaintiff that she directly and indirectly contributed towards the acquisition of the Baatsona Property. This is what transpired on 11/7/2023 during cross examination:

“Q:  The house was roofed before you came in.

A:  No, my Lord when I moved into house, the house was not roofed by then. When I was fetching water, the building was not roofed.

Q: So, you only moved to the house after it was roofed is that not so?

A: Yes, my Lord. When the construction was done, I told the contractor, Mr. Gyasi that I had no place to sleep. So, Mr. Gyasi the contractor told me that since I did not charge him for fetching water, I could move in that house and that the house belongs to a man and a woman.

Q: When did you first meet the woman who Mr. Gyasi told you about?

A: Two months’ time after Mr. Gyasi has given me the key, the said woman came there.

Q: So, the house was roofed and you were given a place to stay there before you met the Plaintiff, Theresa Obeng, is that not so?

A: That is so. It was roofed and gated before Plaintiff came there.

Q: By that time, it was also plastered?

A:  No, my Lord. It was not plastered they rather did terrazzo.

Q: Where did the contractor do the terrazzo, was it on the wall or on the floor?

A: The terrazzo was not done on the wall or the floor. It was done around the entire building. After the terrazzo had been done, the Defendant came and said that he wanted to change the terrazzo and paint it.

Q: I am putting it to you that the place was plastered before you entered the rooms.

A: No, my Lord it was not plastered as at the time I entered the place.

Q: Is your husband a mason?

A:  No, my Lord.

Q:  I am putting it to you that he did not work on the building as a mason.

A: On occasions that he did not go to work, he joined the workers when they were doing mortar works.

Q: He joined to work as labourer and not a mason is that not so?

A: That is so. He gathers the mortar mixture and he gives it to the masons.

Q: Have you ever met the Defendant that is Fred Obeng?

A: Yes, my Lord. The time that I met the Defendant was when he came to the house. By then we had lived there for 7 years.

Q: When was the first time you met Fred Obeng?

A: My Lord I lived in the house 7 years before I met the Defendant.

Q: At the time you first met him, the contractor has roofed the house, plastered the wall, and painted is that not so?

A: No, my Lord. When I met the Defendant, by then the contractor had done terrazzo. The contractor did not plaster. So, after roofing he told me that the building was completed and that he would hand it over to the owner. So, Mr. Gyasi asked me to take the key and that the owner of the house will come.

Q: So, you were in the house before plastering was done is that not so?

A: Yes, my Lord.

Q: And this was done by Mr. Gyasi the contractor?

A: So as at the time I moved in, it had not been plastered. Later, he plastered it and informed me that the owner of the building will come.

Q: So you were in the house when it was plastered?

A: That is so. The plastering was done in the inside and terrazzo was done on the outside of the building.

Q: So who did the plastering after Mr. Gyasi has given you the key and said he had finished?

A: The Defendant came and said he did not like the terrazzo so the workers should break it up, plaster it so that he will paint.

Q: Have you ever met the two together in the house?

A: My Lord I never met Plaintiff and Defendant together. Plaintiff came and left on a few occasion. It was on the last occasion that I met the Defendant.

Q: At the time when the building was going on up to the roofing, you had not met the Plaintiff before?

A: That is so my Lord.

Q: Since you had not met her before you could not tell who was financing the building at that stage?

A: Mr. Gyasi told me that the house belongs to a man and the wife. The woman visited frequently but the husband was not coming frequently.

Q: How many times have you met the husband, Mr. Obeng in the house when he was on visit?

A: 4 days’ time after he had removed the terrazzo and plastered, the Defendant said he was leaving and that he would come back. Two weeks’ time the Defendant came and said that the wife had sent money to be used in the house by then the roof was leaking. So the Defendant brought a roofing company to come and re-roof.

Q: So you met Mr. Obeng only twice is that so?

A: That is so my Lord.

Q: You cannot tell whether the money which he said was sent from the wife was from the wife’s own resources or Mr. Obeng’s resources.

A: Yes I cannot tell but this information came from the Defendant’s own mouth.

Q:  When you said you saw the Plaintiff giving monies to people working on the disputed house it is not true.

A:  My Lord it is true. When the Plaintiff comes around, I sit with her and we chat. So when the workers close and they come around, she gives them money.

Q:  I am putting it to you that the money you alleged was given the workers was a tip and it was Mr. Gyasi the contractor pays for their labour.

A: That is so. I do not know what transpires between Mr. Gyasi and the Plaintiff but when they come out it is Mr. Gyasi who pays the workers for their labour.

Q:  You will agree with me that it was the Defendant who engaged Mr. Gyasi?

A: I do not agree. Mr. Gyasi told me that the building was been constructed by a man and the wife.”

[21] PW3 was not only calm and sincerely reflective in demeanour during cross examination which was exceptionally robust but she gave responses which are honest and will be given significant weight by this court.

[22] Apart from the unremitting confrontation of Plaintiff and her witnesses by Counsel for Defendant during cross examination, it is apposite to analyze the testimony of Defendant in relation to the acquisition and ownership of Baatsona-Tema property. This will create a broader context for finding of relevant facts critical for resolution of issue (1).

[23] Defendant pleaded at paragraph 9 of his statement of defence to the effect that he paid for a piece of land at Baatsona and the indenture was to be in his sole name but Mr. Gyasi convinced him again to have the indenture in the joint names of himself and the Plaintiff. This averment was literally repeated by the Defendant in his Evidence in Chief as per his Witness Statement. At paragraph 5, Defendant stated: “I initially had the indenture of the Baatsonaa house in my sole name because I knew I was going to commit money to the building of the house alone but I later changed the indenture into our joint names after the father of the plaintiff's friend Mr. Gyasi who was going to build the house convinced me to prepare the indenture in our joint names since we were husband and wife.”

[24] Although the indenture alluded to by the Defendant in his pleadings and testimony is not before this court as exhibit for its content to examined and necessary inferences drawn, there is no contrary evidence for the court to disbelieve the narrative by Defendant that he eventually included the name of the Plaintiff in the indenture as they were still married. The explanation for the absence of the indenture is provided by paragraph 19 of the Statement of Defence which inter alia states that when he was ordered to leave the matrimonial home in France following the divorce Plaintiff allegedly took away all the land documents on the Baatsona property. Defendant confirmed the taking away of the documents covering the Baatsona property by the wife. Thus on 12/7/2023 under cross examination by counsel for Plaintiff this is what transpired:

Q: With respect to paragraphs 24 and 25 of your Witness Statement do you have any documentary evidence to prove that your wife has relinquished her interest in the Baatsona property?

A: No my Lord. When I became visually impaired my wife moved me from my bedroom to the hall and she took possession of my documents which were in an ecolac in the bedroom.

[25]. When the entire evidence is considered and particularly portions alluded to in this delivery it is manifestly clear that Defendant and Plaintiff accept that their names are stated in the indenture covering the Baatsona property. I also find as a fact duly established that Plaintiff made financial and other forms of contribution towards the construction of the Baatsona property. With respect to the financial contribution the quantum was not proven but the fact of Plaintiff having spent money on the property acquisition and development cannot be ignored in the light of evidence on record. The other forms of contribution by the Plaintiff include regular visits to the project site by Plaintiff during various phases of construction of the Baatsona property.

[26]. At page 4 of transcript of trial proceedings for 12/7/2023 in the course of being cross examined Defendant stated inter alia “So when we came to Ghana I personally gave the money to Mr. Gyasi. We actually slept in Mr. Gyasi’s house for a month. Mr. Gyasi began putting up the building for us and every morning he takes us to the site. By then I had married my wife but she had no papers in France to work so she was not working. “This evidence suggests that right from the moment of acquiring the land and initial phase of construction Plaintiff was contributing towards the project. Defendant openly stated that “Mr. Gyasi began putting up the building for us and every morning he takes us to the site”. Plaintiff and Defendant definitely constitute the “us” alluded to by Defendant so how can Defendant make a U turn when divorce has regrettably occurred that Baatsona property was acquired by him single-handedly. Plaintiff did not only spend time and energy in visiting the construction project but also used her social network such as Mr. Gyasi to supervise the project. On 12/7/2023 during cross examination of Defendant he confirmed that the Baatsona project benefitted from social and family network of Plaintiff. This is what transpired:

Q: This so called Mr. Gyasi is the friend of your wife’s father I want to put that to you.

A: That is true my Lord. My wife is a friend to Thomas Boateng’s wife who is by name Mary. It was Mary and her husband who convinced me to give the money to their father, Mr. Gyasi to put up the building for me.

Q:  I want to put it to you that it is your wife who engaged Mr. Gyasi, who is a friend to

your wife’s father to put up that house in dispute.

A: My Lord that is not so. My Lord I have stated earlier that my wife is a friend to Thomas Boateng’s wife, Mary and Mary’s father is Mr. Gyasi. So it was not my wife who engaged Mr. Gyasi to put up the building.

Q:  Counsel reads paragraph 5 of Defendant’s Witness Statement. Per your paragraph 5 it was your wife’s father’s friend who put up the house.

A: My Lord that is not so. I stated earlier that my wife is a friend to Mary and Mary’s father is Mr. Gyasi. When I got the indenture I was advised to include the name of my wife since we were couple and we will raise a family together.

[27] At this juncture it is imperative that Defendant did not always appeared to be straightforward if not dishonest. Defendant’s response in the portion of his cross examination quoted above suffers from credibility deficit when juxtaposed against his own evidence in chief. At paragraph 5 of the witness statement of Fred Obeng (the Defendant), he stated: "5- I initially had the indenture of the Baatsona house in my sole name because I knew I was going to commit money to the building of the house alone but l later changed the indenture into our joint names after the father of the Plaintiff's Friend Mr. Gyasi who was going to build the house convinced me to prepare the indenture in our joint names since we were husband and wife" (emphasis added)

 

In the light of foregoing I find as a duly established fact that Plaintiff contributed reasonably towards acquisition of Baatsona property. I am fortified in this finding by dictum of the Pwamang JSC in GILBERT ANYETEI v. SUSSUANA ANYETEI (2023) JELR 110978

(SC).that

“The evidence led in this case is stated above and our opinion of the totality of the evidence is that the wife did contribute to the acquisition of the properties. The law no longer requires a spouse to prove direct pecuniary contribution in the form of paying part of the purchase price of the property from her own money or buying part of the building materials in the case of a house…… Emotional support and satisfactory matrimonial services by a spouse are also elements of contribution to the acquisition of assets during a marriage. In this case, the documents filed on the properties by the husband show that he involved the wife to sign some of the documents and some of the properties were actually acquired in the joint names of husband and wife. This, for us, can only mean a recognition by the husband of the assistance, in whatever form, he got from the wife in the acquisition of the houses”

 

[28]. In the light of the superior wisdom and impeccable articulation of current statement of the law by His Lordship Pwamang JSC (supra) I have no equivocation in rejecting the erroneous submission made by learned Counsel for Defendant in his Written Address at page 4 that” no evidence has been adduced by the Plaintiff to show any contribution towards the property. She barely alleged that she has contributed more than the defendant. In deed if the Plaintiff had made any contribution it would be negligible or very minimal and this will not guarantee an equal ownership or sharing.”

With respect to Defendant’s contribution towards acquisition of this property it has not been contested by Plaintiff. However, it is the Defendant who is asserting that he exclusively acquired the Baatsona property. The court will accordingly evaluate the basis of his sole acquisition theory. Essentially, Defendant relied on a loan he supposedly took from a Bank in France as well as receipts and invoices supposedly relating to purchase of building materials for the project.

[29]. The Defendant tendered Exhibit A which is loan offer made to him by Bank in France in 2006. There is no evidence of its acceptance. Neither is there any evidence that the said loan was transmitted or sent to Ghana to Mr. Gyasi for purposes of the Baatsona project. This court does not find Exhibit A as meriting significant probative weight as far as the question of exclusive acquisition or funding of the Baatsona property by Defendant is concerned and will not be considered as bolstering Defendant’s claim of sole acquisition or even substantial contribution relative to contribution of Plaintiff.

[30]. Apart from the virtually zero weighted Exhibit A aforesaid, Defendant tendered Exhibit B series which are supposed to be receipts and invoices of building materials. Some of them bear the name Fred, Mr Fred Obeng; Mr Obeng, Yaw Owusu and others too do not bear any name. What is striking is whether Yaw Owusu mentioned on one of the receipts is the same Yaw Owusu who is Plaintiff’s Lawful Attorney. If that is the same person then that will further corroborate the overwhelming evidence of contribution made by Plaintiff towards acquisition of Baatsona property. When the amount of money on the receipts that bear name of the Defendant are aggregated it does not convey realistic impression to even average mathematical mind that Defendant alone contributed all the money or substantial part thereof used for developing the Baatsona property. Accordingly, this court makes a finding that the Defendant did not single handedly finance acquisition of the Baatsona property. There is also no cogent evidence before the court to mathematically compute respective contribution by the parties in financial terms. In the circumstances the question of substantial contribution and exclusive contribution variously canvassed by Plaintiff and Defendant respectively is answered by this court in the negative. The concomitant effect of these findings and analyses is that I hold with respect to issue (1) that the disputed house was acquired during the pendency of the marriage between the parties and issue (2) that the parties jointly built the Baatsona property?

 

The Kumasi Property

[31] Plaintiff did not plead any Kumasi property in her plaint until Defendant in his statement of Defence averred that in 2013 Plaintiff came to Ghana and unilaterally used 4000 Euros which he deposited with her to buy land in Kumasi. Plaintiff in her reply pleaded that the parties used to have property in Kumasi but same has been sold by their mutual agreement before their divorce case went to French court. What is really important regarding the supposed Kumasi property and its ownership status is Paragraph 12 of Statement of Defence: “The Defendant avers that when Plaintiff informed him that indenture was in her sole name he protested and insisted that his name be added to the indenture. He then told Nana Kofi who obliged him and got the indenture prepared in their joint names.”

[32] Since the Plaintiff at all times deny continuing existence of Kumasi property but Defendant maintained that there had been no disposition of it up to date, the burden of proof and persuasion with respect to this assertion is certainly upon the Defendant.

[33]. Defendant merely repeated his averment in the statement of defence when he testified during the trial and did not provide any other corroborating evidence to meet the evidential threshold that would have shifted the burden back to Plaintiff. (See Defendant’s Witness Statement and transcript of his cross examination by counsel for Plaintiff on 12/7/2023.) Also, when Defendant’s lawyer cross examined PW1 in July 2022 regarding the Kumasi property this is what happened in part:

"Q:   I am putting it to you that if indeed the land was sold it was done without the knowledge of the Defendant

A:   My Lady the Defendant is aware of this

Q: When was the land sold?

A: In the year 2005

Q: If it was sold at all, it will be after the divorce in France and the parties had agreed to settle their properties, the Baatsona property and the Kumasi property. I am putting it to you.

A: The Plaintiff and the Defendant divorced in the year 2019. The said land was sold in year 2005"

[34] Quite apart from the few lines extracted from Defendant’s lawyer cross examination of PW1, there are plethora of instances dotted in the record of proceedings showing that Plaintiff consistently maintained that as at the time that Defendant filed divorce suit against her in France the Kumasi property had long been sold to Defendant’s knowledge. The year 2005 featured many times in the evidence by PWI as the date for the sale of the Kumasi property due to the fact that it was in a perennially waterlogged area. The impenetrable testimony of PW1 regarding the sale of the Kumasi property long before the divorce necessarily implied that a positive finding of continued existence of Kumasi property up to date could not be made in favour of the Defendant without a more cogent evidence being adduced by Defendant. Defendant could have conducted search at Lands Commission or appropriate records office in Kumasi to ascertain ownership records held in any such registry.

[35] If there are no records in the Lands Commission regarding the Kumasi property the appropriate stool or family from which the land was acquired from could have been contacted for assistance. What is even more worrying is the fact that this suit has been pending for quite some time and Kumasi is easily accessible but no effort or application was made to invite the court to appoint an expert pursuant to Order 26 of C.I. 47 to physically examine situation of the supposed Kumasi property and report to the court. The failure of Defendant to avail himself of all these opportunities to obtain cogent evidence regarding the true status of the Kumasi property necessarily compels this court as tribunal of fact and law to make a finding that as of the start of this litigation the parties no longer had Kumasi property as part of their properties.

[36]. The Defendant as counter-claimant has pleaded inter alia and also testified that he eventually succeeded in getting his named included in the indenture relating to Kumasi property. The pertinent logical as well as legal inference is that if Defendant is co-owner by reason of his name on the indenture then it cannot be sold without his consent and concurrence as preparation of conveyance for effectuating the transfer will necessary involve him. A sequel to this observation is that Defendant qua co-owner of Kumasi property can take necessary legal steps to set aside any sale or transfer without his consent. In the current scheme of monumental evidential failure by Defendant regarding Kumasi property he can have his remedy elsewhere by suing whoever is in possession of it if such Kumasi property still exists.

[37] It is worth recalling that our civil justice is one of adversarial character. Adversarial adjudication is rooted in the idea that each party in a legal dispute should have the opportunity to present its case and evidence independently, without intervention or assistance from the court. In an adversarial system, the role of the court is to act as a neutral and impartial arbiter. The court listens to the arguments and evidence presented by both sides and then makes a decision based on this information. This system is based on the belief that truth and justice are best served when opposing parties have the incentive to vigorously present and defend their positions, while the court ensures fairness and legal propriety in the proceedings. In the light of the foregoing analysis of evidence I hold that as at the time the parties mounted this suit they had no property in their pool of properties situate and lying in Kumasi or Ashanti region. For avoidance of doubt it is also stressed that this court makes no finding that the so called Kumasi property had been given to only Plaintiff by virtue of any so-called post-divorce mutual agreement.

[38] An important part of Defendant’s theory of case was that the parties reached mutual agreement regarding sharing of their joint matrimonial properties after the dissolution of their marriage by the court in France. The substance of the supposed mutual agreement according to Defendant was what was reflected in relief (i) in his Counter-claim that the Plaintiff has no interest in the Baatsona house again as it was settled in sole name of the defendant and the defendant also cannot make any further claim to Kumasi property as it was mutually settled in the name of the Plaintiff. Considering the fact, that this court has made a finding that the parties did not have any Kumasi property as at the time that they mounted the instant suit I deem it expedient not deploy scare judicial resources in discussing the alleged mutual agreement. The only observation I make on the so-called mutual agreement for sharing of the properties is that why did Defendant not call any witness to corroborate his bare oral testimony which was vigorously denied by Plaintiff. No document was also tendered by Defendant in support of this supposed post-marriage dissolution agreement on settlement of properties

Defendant’s Argument on Referring Property Sharing to Family Court in 39. Learned Counsel for Defendant in his address submitted that if the parties are having dispute regarding sharing of their matrimonial property, they should go back the Family Court in France as was alluded to in the divorce judgment from France. What Counsel has done is tantamount to approbating and reprobating particularly so when Defendant also made counter-claim which by procedural law is a distinct cause of action within a cause of action by the Plaintiff. This court finds no merit in the belated invitation by Counsel for Defendant that this court lacks jurisdiction over the instant suit. The disputed properties are situated and lying in Ghana so this Court appropriately assumed jurisdiction. See Section 54 (1) rule 2 of Courts Act 1993 (Act 459) and Order 3 r 1(1) of High Court (Civil Procedure) Rules 2004

(C.1. 47).

 

 

THE DECSION OF THE COURT

40. Having carefully considered the evidence and submission by Counsel, the court is satisfied that on preponderance of probabilities the Plaintiff has successfully proved her case in part but failed to adduced cogent evidence regarding relief (1) and same is declined but the court grants relief (2) that is a declaration that house number 14/30 Baatsona, Accra (which I have been referring to as Baatsona-Tema property) is joint property of Plaintiff and Defendant and relief (3) by making order for the valuation and equal sharing of house number 14/30 Baatsona Accra. The Lands Commission is appointed to assist the parties with valuation and sharing of the property equally (50-50). With respect to the Defendant’s counter-claim I dismiss same as he failed to prove it on preponderance of probabilities.

Having regard to peculiar circumstances of this case I make no order as to cost. Each party should bear his or her own cost.

EPILOGUE

This case has brought me into the real encounter of the real force of my judicial oath to do justice without fear or favour, ill will or affection and the popular maxim that justice is blind. The phrase "Justice is blind" represents the ideal that justice should be impartial and objective, without favor or discrimination. It's a fundamental principle in many legal systems. This concept suggests that everyone, regardless of status or wealth, should be treated equally under the law. It's crucial to focus on the facts and the law, ensuring that decisions are made fairly and without bias, regardless of attempts to sway the outcome through emotional appeals. Indeed, throughout his pleadings and testimony Defendant many times kept alluding to his recently acquired visual impairment. The court is not a court of mercy or emotions but justice according to law and evidence. Justice should be blind to race, color, religion, or economic status. This reinforces the idea that justice should be impartial and focused on equity, not personal characteristics, or situations.

As a matter of confession having regard to how Defendant became blind and subsequent break down of the marriage although it is Defendant who filed for divorce, my sympathies would have been with him yet justice is brutally blind.

H/L. JUSTICE DR. ERNEST OWUSU-DAPAA

(JUSTICE OF THE COURT OF APPEAL)