Ophelia Vrs Aboagye [2023] GHADC 157 (31 January 2023)

SITTING IN THE DISTRICT COURT AT WENCHI IN THE BONO REGION ON TUESDAY THE 31ST DAY OF JANUARY, 2023, BEFORE HIS WORSHIP ISSAH ABDUL-WAHAB (DISTRICT MAGISTRATE) BETWEEN ASUAMAH OPHELIA OF KOASE - - PLAINTIFF SUIT NO. A6/02/22 VRS: KWAME ABOAGYE OF AKROBI - - DEFENDANT J U D G E M E NT The plaintiff herein filed this instant suit seeking from the court and against the defendant the following reliefs; (1) Compensation of GH₵9,000.00 from the defendant herein for breach of eight (8) years of promise of marriage. (2) The plaintiff’s share of four (4) bedroom house, a hall, kitchen, toilet and bath the parties built together and a vacant plot in front of the house on Plot Number 46, Block E, Akrobi South in Wenchi. (3) Any further order (s) the Honorable Court may deem fit to make. The defendant pleaded not liable to the claims of plaintiff after same were read and explained to the defendant in twi. After a careful examination of the plaintiff’s statement of claim the following issues were set down for trial; (1) Whether or not the defendant herein promised to marry the plaintiff herein. (2) Whether or not the defendant herein broke the said promise after eight (8) years. (3) Whether or not plaintiff and the defendant built the said rooms mentioned by plaintiff, together. (4) Whether or not the plaintiff is entitle to the GH₵9,000.00 compensation for the breach of promise of marry. (5) Whether or not the plaintiff is entitle to a share of the rooms she mentioned in her (plaintiff) particulars of claim. In her evidence in-chief, the plaintiff told the court she is Asuamah Ophelia and that she lives at Koase and she is a seamstress. That she knows the defendant herein. Plaintiff said she lived with the defendant like husband and wife with a promise that he, (defendant) will marry her (plaintiff). Plaintiff said she farmed with the defendant and the defendant used the proceeds from the maize they cultivated and travelled to Libya. That whiles in Libya, defendant said he wanted to build and asked plaintiff to assist him. Plaintiff said before the defendant travelled she (plaintiff) was not pregnant and she did not have a child to plaintiff said whiles in Libya defendant sent money and they put up the house. Plaintiff said she went and inspected the plot and supervised the work. Plaintiff said she also spent her little money she had in the project. That they built the house to roofing level. Plaintiff said the defendant then sent money and they roofed the house. That the defendant later came back from Libya four (4) years ago. She then asked defendant to go and see her (plaintiff) family and perform the marriage rites. She (plaintiff) said the defendant went to her (plaintiff) mother and father as well as her (plaintiff) pastor and they told defendant what to do. Plaintiff said the defendant later refused to marry her (plaintiff) and when she asked why defendant said she (plaintiff) has not been able to give him (defendant) a child as she (plaintiff) can’t get pregnant. And that if he (defendant) marries her (plaintiff0 she will never give birth. Plaintiff said she told defendant she is still young and so they should have faith but the defendant did not listen and started giving her (plaintiff) problems. Plaintiff said she went and saw doctor who requested that she (plaintiff) comes with the defendant but the defendant refused to go. That defendant refused to go and said he has a child with another woman and that she (plaintiff) is the one who has not delivered. Plaintiff said the defendant later brought the woman he said he had a child with to live with him (defendant). Plaintiff said the day the defendant brought the said woman later into the house he (defendant) did not allow her (plaintiff) to sleep in the house. Plaintiff said when her mother went to the defendant, defendant said he does not want her (plaintiff) again. That the defendant later made her plaintiff) remove her (plaintiff) things form his room with the help of officers from CHRAJ. That they then told defendant to give her (plaintiff) two (2) rooms but the defendant refused. That the defendant also refused to compensate her (plaintiff). She (plaintiff) then decided to come to court. When asked if he (defendant) left her or she (plaintiff) left, plaintiff said defendant left her (plaintiff). The sole witness of the plaintiff was one Ama Bonsi who told the court she lives in Wenchi and that she works with the Zoomlion Company. P. W.1 said she knows the parties. That the plaintiff is her (P. W.1) daughter who has been married to the defendant. that for some years now the defendant travelled outside the country. That whiles away, defendant called plaintiff to get a plot of land for him (defendant) for a building. That defendant later sent some money and plaintiff who is a seamstress also added a little and went for the plot. That plaintiff started and they put up a building at Akrobi in Wenchi. That after that the defendant came back home. The witness said after defendant came he later said he will not marry plaintiff again. P. W.1 said the defendant came to her (P. W.1) house and told her that P. W.1 said he later went to defendant’s house and met another woman, living there. The witness said the plaintiff later took the matter to CHRAJ and there defendant stated he had divorce the plaintiff. That they then made plaintiff to pack her things out of defendant’s room. After that, they waited for about a year to see if defendant will say anything but he never did. So plaintiff decided to come to court. When defendant asked P. W.1 if she (P. W.1) he (defendant) was with her daughter (plaintiff). P. W.1 said she knew because defendant came to greet her. When asked if she knows it was Aboma who supervised the building of the house, P. W.1 said, no, and that defendant sent the money to plaintiff and she (plaintiff) did the project. When asked who did the site plan of the building P. W.1 said she does not know the one who did it. In his evidence in-chief, the defendant told the court he is Kwame Aboagye and that he lives at Akrobi in Wenchi, and he is a mason. That he knows the plaintiff. That he got married to the plaintiff at a time when he was cultivating maize. That he (Defendant) harvested the maize and got GH₵1,500.00 from the proceeds and with which he travelled to Libya. Defendant said whiles in Libya he worked and sent money for a building plot to be bought for him (defendant). Defendant said at that time he lived with the plaintiff at Droboso he (defendant) then told plaintiff about his (defendant) friend called Aboma. He told plaintiff to go and see the said Aboma to help him (defendant) get the plot to buy. Defendant said he sent the money for the plot to the said Aboma. Defendant said he bought the plot for GH₵2,000.00. And the money was sent to Aboma. Defendant said even though the plaintiff is a seamstress, he (defendant) still sent her (plaintiff) GH₵300.00 every 3weeks for her (plaintiff) upkeep. Defendant said he sent Aboma money and he deposited sand on the plot. Then when he (defendant) was ready to start the building he (defendant) asked plaintiff to move from Droboso to Wenchi to live at his (defendant) mother’s place. Defendant said plaintiff later said she had issues with his (defendant) mother and so could not live with her again. Defendant said he told his friend Aboma and he gave plaintiff a room in his house. Defendant said he put up the house and roofed it leaving the plastering. Aboma then told him (Defendant) an amount of GH₵8,000.00 could complete the rest of the work. Defendant said he sent the GH₵8,000.00 to plaintiff to give to Aboma and therefore informed Aboma. Defendant said whiles there plaintiff sold his motor bike and used the money. And that plaintiff again told him (defendant) that the money he sent to her (plaintiff) to give to Aboma for the completion of the house was stolen to. Defendant said when he asked Aboma he also told him that he had sent the money to plaintiff, each time he (Aboma) calls plaintiff, plaintiff gives excuses and never gave the money to him. Defendant said because of that he told the plaintiff then the money he brought to perform her (plaintiff) marriage rites, he (defendant) will use it to complete the building. He said there plaintiff pleaded that she has already told her (plaintiff) family that he will perform the rites. Defendant said he had GH₵3,000.00. Defendant said he told plaintiff he will use GH₵2,000.00 to buy a motor bike for his (defendant) brother to do the “Okada” business to sustain him (defendant). Defendant said he later took the motor bike back as his (defendant) brother was not bringing him money. He then sold the motor bike for GH₵1,500.00 and gave to plaintiff to buy some of the items for their marriage rites. That plaintiff bought only 2 items and said the GH₵1,500.00 has finished. Defendant said because of that he did not get money for them to perform the marriage. Defendant said from then, the plaintiff said she will not cook if he does not give her (plaintiff) money. Then plaintiff again said he (defendant) had low sperm count and that is why he (defendant) cannot make her (plaintiff) pregnant. Defendant said he reported plaintiff to their elders and when they called them plaintiff repeated the statement there. After that meeting plaintiff then travelled to Kumasi for 2 weeks without telling him (defendant) anything. Defendant said he called plaintiff’s phone and it was off. That their issues later went to the CHRAJ where they said he should share his said house with the plaintiff but he (defendant) did not understand. Defendant said the plaintiff then got pregnant for another man. When cross-examined plaintiff told the defendant when he was building the house at Akrobi he sent the money through her (plaintiff), defendant said he sent the money to Aboma and only sent seeding money to her. The defendant also denied that plaintiff is his wife. The first witness for the defendant (D. W.1) was one Yaw Agyarko who said he lives in Wenchi, and that he knows the parties. D. W.1 said he knows the issues between the parties. That the defendant travelled out and whiles there he (defendant) sent him (D. W.1) money and he bought a plot for him (defendant). The witness said the plot is at Akrobi in Wenchi. D. W.1 said after defendant bought the plot he (defendant) sent money and he (D. W.1) started putting up the house for him (defendant). D. W.1 said plaintiff always sent the money to plaintiff and she (plaintiff) will bring to him (D. W.1). D. W.1 said he built the house to a point and it was left with plastering. Then defendant sent the money for the plastering to plaintiff to be given to him but plaintiff did not give to him (D. W.1). D. W.1 said from that point when defendant sent money the plaintiff does not tell him. When asked who told him (D. W.1) defendant travelled and gave defendant’s phone number to him (D. W.1) the witness said the defendant’s brother told him when asked by plaintiff again how he (D. W.1) saw her (plaintiff) and she came to live in his house, D. W.1 said it was defendant who called him (D. W.1) and talked to him (D. W.1) . The second and final witness for the defendant (D. W.2) was Prince Oduro a carpenter who said he lives at Akrobi in Wenchi. That he knows the parties herein. D. W.2 said the defendant is his brother. That the defendant told him plaintiff said she will not marry him (defendant) again. They as family then called plaintiff and at the meeting plaintiff stated that she will not marry defendant and that the defendant has low sperm count. D. W.2 said when they asked defendant, he stated he still loves plaintiff. The witness said the plaintiff later took the mater to CHRAJ and there the defendant maintained that he still loves plaintiff but plaintiff said she will not marry defendant. That the plaintiff said they should share the property of the defendant but defendant said he did not leave the plaintiff. That the plaintiff’s family also said if plaintiff says she will not marry defendant, they cannot force her (plaintiff). The CHRAJ then went with plaintiff to pack her things form the room of the defendant. D. W.2 said not long they saw the plaintiff became pregnant for another man. When defendant told him (D. W.2) he told the defendant he is no more with the plaintiff. Then later plaintiff brought defendant the court summons when plaintiff asked the witness (D. W.2) what they did as a family after they told her (plaintiff) she said the defendant has a low sperm count, D. W.2 said he called the two of them (plaintiff and defendant) and talked to them. When asked if he came to CHRAJ, when she (plaintiff) took the matter there, D. W.2 said he was there. When asked why they did not resolved the issue and it went to CHRAJ, D. W.2 said they talked but plaintiff did not understand. It is important to observe, after a careful evaluation of the evidence that the parties herein (plaintiff and defendant) were in a relationship, which was not a marital one, but they had the intention of getting married in the future. This was the testimony of the plaintiff and which was corroborated by her (plaintiff0 sole witness (P. W.1) who said she is the mother of the plaintiff. The said testimony of the plaintiff was also confirmed by the defendant himself who never denied knowledge of the plaintiff and the fact that he was indeed in a love relation with the plaintiff with an intention of both of them getting married someday. Let it also be observed that, inspite of some inconsistences in the testimony of plaintiff’s sole witness (P. W.1) relative to the status of the parties said relationship, the fact still remained from the evidence that the plaintiff were not married. This said inconsistent statement of P. W.1 stemmed from when she said the defendant married the plaintiff when plaintiff herself stated that she was not married to the defendant but that defendant promised to marry her. Again, it must be stated that inspite of the claim by P. W.1 (plaintiff’s mother) that the parties were married she never led any evidence to show when and how the parties married. And even when cross- examined by defendant and was asked if she (P. W.1) knew he (defendant) was in any relationship with her (P. W.1) daughter (plaintiff), P. W.1 said she knew because defendant once came and greeted her (P. W.1). Here P. W.1 could not say if defendant performed any rites of marriage on the plaintiff to her (P. W.1) as the mother of the plaintiff or to any other person in their family. This obviously showed that there was indeed no marriage or marital relationship between the parties and that what the two engaged in was an amorous relationship or in concubinage. It must also be stated that the plaintiff has not told the court how long she has been in the said relationship with the defendant herein before the alleged breach of the promise to marry, her (plaintiff). And the sole witness of the plaintiff who is the mother of the plaintiff also did not tell the court how long the parties were in the said relationship. On the claim by the plaintiff that the defendant breached his promised to marry her (plaintiff), the evidence before this court has established that the parties herein even were in the said amorous relationship for years they later had some issues which they both failed to resolved and that led to their separation. Whereas the plaintiff stated that the defendant said he will not marry her and therefore sent her out of his room or house, the defendant on his part told the court, it was the plaintiff who accused him (defendant) of not being able to make her pregnant because he has a low sperm count and that it was not going to be possible to give birth if she (plaintiff) stayed with the defendant. And so plaintiff left. And that even whiles they were together the plaintiff went out without periodically without informing him (defendant). He contended that whiles they were even trying to resolve the issues the plaintiff herein got pregnant for another man and is currently carrying that man’s child. These facts stated by the defendant were not traversed in any way by the plaintiff herein inspite of her (plaintiff) saying the defendant left her. That is the plaintiff has not been able to dislodge the ascertion by the defendant that she (plaintiff) got pregnant for another even as he (defendant) was still hopeful of a resolution of their differences. This court therefore finds these facts very instructive in the light of the claim by the plaintiff herein that the defendant broke his promise to marry her. And if the plaintiff told the court that defendant informed her he had a child with another woman and for which reasons she claimed defendant brought the said woman into his (defendant0 room or house that obviously cannot be a justification for the plaintiff’s pregnancy for another man when he (plaintiff) issues with the defendant were still been resolved. Or was that the said action by the plaintiff herein, an act of equalization? That obviously could not be the case. It is my view that the plaintiff would have had a stronger case in this court on her claim of breach of promise to marry against the defendant if she did not go out of her way to have a child for another man when she was still expecting defendant to solve, his problems with her. This as noted already would have made a case clearer and stronger. After all when defendant informed her (plaintiff) that he had a child with another woman, plaintiff did not leave and still was in the relationship. So it will be difficult to comprehend the claim by the plaintiff that the defendant broke his promise when it was rather the plaintiff who got pregnant for another in the midst of her issues with the defendant. Indeed, if the plaintiff had come to this court without having a child for another man and claimed defendant breach his (defendant) promise to marry, that obviously would have been a valid claim to make given the fact that she would still have been available for the said union with the defendant herein. However the plaintiff having gone her way to get pregnant and gave birth with another man clearly makes her argument that the defendant deserted her quiet untenable. On the claim by the plaintiff for a share of the house built by the defendant herein, this court found the instructive to ask some very critical questions. These are whether the parties herein were or are married couples? The answer to this question is No. The two were just in an amorous relationship with a promise to each other for marriage in the future. The second question is whether the said house or rooms was acquired or built during the pendency of nay marriage and which for that matter makes the house or rooms a matrimonial property? Here again, the answer was is No. The defendant as a young man in Libya at the time only sent money to his friend through the plaintiff herein who was a girlfriend at the time and living with the defendant, for the house to be built. This clearly makes the house the self-acquired property of the defendant and not a joint one. It must note here that plaintiff sought also to suggest that she put in her money from her sewing as a seamstress. This means the plaintiff tried to suggest that she made some financial contribution to the construction of the house. She (plaintiff) however failed to lead any evidence to prove that she spent money in the building. And merely getting P. W.1 (who is her mother) to state that plaintiff also used her small money from her sewing without any documentary proof ( by way of receipts) or witnesses from who she brought materials, to support her (plaintiff) claim, makes it difficult for this court to agree with the said claim. This more so when the plaintiff herself attested to the fact that defendant send money whiles in Libya for the plaintiff to be bought and for the construction subsequently. And if plaintiff claims by just merely taking the money from defendant and sending to the defendant’s friend Aboma, entitles’ her to a share of the house, that I find to be outrageous was the plaintiff a wife or has she ever been the wife of the defendant, (properly so-called) and the answer is No. And it must be borne in mind that even on the occasion when defendant sent the whopping GH₵8,000.00 through plaintiff to be given to the friend (Aboma) for the completion of the house. Plaintiff failed to give the money our and stated it had been stolen from her. This the defendant allowed to pass. This was at a time the defendant was still in Libya and still desirous of having a place to lay his head when he returned to Ghana. I therefore do, not see the parties herein as married couples and also do not see the disputed house as a matrimonial property for which the plaintiff is here in claiming a share of. And as a matter of fact D. W.1, (Yaw Agyarko) who supervised all the work told the court the plaintiff never contributed any money of the building when the court sought to find out from the witness. The following specific question was asked; Q. Did plaintiff contribute in any way to the building of the house? A. No. The defendant always informed me before he sent money to the plaintiff to be given to me. So, the even has been very over whelming in establishing the fact that the defendant built his house without any financial contributing form the plaintiff. And the plaintiff could not impugn any other form of contribution because she was not and has never been the wife of the defendant herein. D. W.1, Yaw Agyarko was the man at the center of the construction and infact was the one who at a point accommodated the plaintiff in his house as the girlfriend of the defendant and upon a request made by the defendant to the witness (D. W.1). This is the same person ( D. W.1) the plaintiff herself stated she always received the money form the defendant and give for the defendant’s building project. Finally it is important to state that the defendant’s second witness (D. W.2) Prince Oduro said the defendant is his brother and that when the issue between plaintiff and the defendant came to their attention they as a family tried to resolved to understand and insisted that she will not marry the defendant. That the plaintiff also started the defendant has low sperm count. The issue according to D. W.2 was taken to CHRAJ by the plaintiff and when they went the plaintiff insisted she will not marry and even got the CHRAJ officers to go with her to pack her belongings from the room of the defendant. This was part of the evidence of the defendant and which the plaintiff did not traverse or dislodged with any contrary evidence. It is therefore intriguing that the plaintiff will refused any form of settlement of her disagreement with the defendant and will rather come to this court claiming that the defendant breached his promise to marry her (plaintiff). In fact the second witness for the defendant (D. W.2) Prince Oduro stated that not long after the plaintiff took the matter to CHRAJ, they saw that the plaintiff was pregnant for another man. And that the defendant upon seeing the plaintiff with the pregnancy still complained to him (D. W.2) but he told defendant that the plaintiff had severed her relationship with him (defendant) and so he (defendant) should allow. Plaintiff to go. This is the evidence before this court and as adduced by the parties herein. From the evidence therefore I found the following as facts; (1) That the parties herein were in a love relationship with the hope of getting married; (2) That the defendant at a point travelled to Libya and whiles there decided to buy a plot and build a house. (3) That the defendant whiles in Libya sent money to his friend (D. W.1) through the plaintiff who was his girlfriend to pay for the building plot that D. W.1 got for defendant. (4) That the defendant subsequently send various sums of money to D. W.1 through plaintiff and D. W.1 built roofed same. (5) That the house is still uncompleted but the defendant came back from Libya. (6) That the defendant upon his return had some problems with the plaintiff as a result of which plaintiff ended her relationship with defendant. (7) That whiles the defendant still hoped that the issues with plaintiff could be resolved plaintiff became pregnant for another man. (8) That there is no evidence of the plaintiff contributing any money to the building of the defendant. As a civil suit, the party herein who in her writ or pleadings raised the issues that are essential to the success of her case, assumes the onus of proof: See Farbi Vs State Hotels Corp. {1968} GLR, 176. This is the law as provided for in section 11 (4) of the Evidence Act, 1975 (NRCD 323). The section 11 (4) states; “ In other circumstances the burden of producing evidence requires a party to produce sufficient evidence so that on all the evidence a reasonable mind could conclude that the existence of the fact was more probable than its non-existence”. It must be noted that the law as stated above requires the party carrying the burden to produce sufficient evidence to make out a claim on a preponderance of probabilities as defined in section 11 (4) above and section 12 (1) of Act 323. Section 12 (1) states; “ Except as otherwise provided by law the burden of persuasion requires proof by the preponderance of the probabilities”. In assessing the balance of probabilities therefore, as per the evidence adduced all the evidence must be considered and the party in whose favour the balance tilts is the person whose case ought to be adjudged as more probable and deserving of a favourable verdict”. Then section 12 (2) of Act 323, defines the persuasive burden to mean “the degree of certainty of belief in the mind of the court by which the court’s convinced that the existence of the fact was more probable than its non-existence “. It must therefore be stated that the standard of proof is on the preponderance of probabilities. That is to say, a party has to win on the merits or strength of their case. In this instant case, it must be stated that the parties herein are not married couple and as a matter of fact were not married (properly so-called). Having said that, therefore it must be noted that the general principles of law even in marriage is that the fact that a wife has served her husband faithfully during marriage does not by itself entitle her to a share in the property acquired by the husband. And conversely, the fact that a husband has performed satisfactorily the duties of husband does not entitle win to a share in the property acquired by the wife during the marriage. This said principle appears to be the same, respective of whether the marriage is under customary law or the marriage Ordinance (Cap 127). The contributions made by each party in the acquisition of the property of the couple must be proved and established with evidence. The parties herein not being married under any law were only engaged in an amorous relationship and during which the defendant herein worked and acquired his property. And if the plaintiff who is a girl friend is asking for a share of the said property does that means the defendant herein must also take a share of whatever she also has as a boy friend? The answer is certainty not. On property acquired jointly by concubines or persons in a concubinage the Supreme Court has held in the case of Gregory Vs Tandoh IV & Hanson (2010) SC GLR, 971, that documentary proof of contribution is essential. The plaintiff herein has not provided any particulars of the nature of her contribution in monetary terms to the acquisition of the building a part from only receiving the money and sending same to D. W.1 who supervised the entire project for the defendant. Not being a wife and for that matter was not in a matrimonial relationship, do not think that alone entitle the plaintiff herein to a share of the said property. And on her relationship with the defendant to it, is obvious from the evidence before this court that the plaintiff herein contrary to her (plaintiff) claim was rather the one who walk out of the relationship with the defendant. From the evidence and the law therefore it is my considered conclusion that the plaintiff herein has failed to prove her claims against the defendant and same failed. The reasons for the above conclusion include; (1) That the parties were in an amorous relationship and during which the defendant travelled to Libya. (2) That whiles in Libya the defendant sent money and D. W.1 built the rooms for him. (3) That the defendant sometimes sent the money to D. W.1 through the plaintiff who was the girl friend at the time. (4) That I do not taken the view that just receiving the money and giving same to D. W.1 to plaintiff to a share of the house. (5) That the plaintiff’s claim that she contributed financially has not been supported with any evidence. (6) That the plaintiff was the one who left the defendant as she got pregnant for another man. (7) That the defendant died not breach any promise to marry, the plaintiff as the evidence before this court does not support that claim. (8) That the plaintiff failed to prove her claims on the preponderance of the probabilities and as required by law. The claims of the plaintiff are accordingly dismissed entirely. Cost of GH₵1,000.00 for defendant and against the plaintiff. …………………………………. ISSAH ABDUL-WAHAB (MAGISTRATE) 17