ARHIN VRS. BOTCHWAY (A11/15/2024) [2024] GHADC 562 (3 September 2024)

IN THE DISTRICT COURT, PRESTEA, HELD ON TUESDAY THE 3RD DAY OF SEPTEMBER, 2024 BEFORE HIS WORSHIP IDDI ADAMA, ESQ. SITTING AS THE DISTRICT MAGISTRATE BETWEEN: EMELIA ARHIN OF BONDAYE - PLAINTIFF SUIT NO. A11/15/2024 AND KWAME BOTCHWAY OF BONDAYE - DEFENDANT JUDGEMENT This matter was commenced on the 5/3/2024 by the Plaintiff against the Defendant for the following reliefs. 1. An equal share of the following properties which parties herein acquired during the substance of their customary marriage which breakdown is as follows: i. Two separate cocoa farm situate at a place commonly known and called Mempeasem near Bondaye. ii. Mud house containing ten (10) bedrooms kitchen, toilet and bath located Bondaye. Page | 1 iii. Three (3) Corn mill machines. 2. For any other relief(s) or order (s) that the Court may deem appropriate including cost. The facts as presented by the Plaintiff is that they (Plaintiff and Defendant) are all farmers and reside at Bondaye. Plaintiff states that they have been married for the past 31 years under customary marriage and are blessed with seven (7) children. That per their tradition and practices the marriage has been dissolved customarily by both family members in 2023 at Gomoa Daho in the Central Region. Plaintiff indicates that during the subsistence of their marriage they jointly acquired properties as contained in the reliefs indicated supra. The present action according to the Plaintiff was commenced due to the fact that the Defendant has deliberately refused to give Plaintiff her fair share of the property jointly acquired. According to the Plaintiff they started farming in Enchi and acquired four acres of cocoa on Abunu terms of which two acres was given them by the owner. That proceeds from the sale of their cocoa was used to acquire plot of land at Bondaye which share boundaries with Yaw Abompi, Agbe, Efo and Ekua Essoun’s lands. When they moved to Bondaye Prestea they both acquired five acres land on Abunu terms with Papa Archer and cultivated cocoa. They were subsequently given 2½ acres after the cocoa was harvested. The said cocoa farm shares boundaries with Papa Archer, Essoun, Opana and Adu’s farm. Plaintiff further stated that proceeds from the cocoa farm was used to build ten bedroom mud house on the land they bought when they relocated from Enchi. According to the Plaintiff when the cocoa farm in Enchi was sold and upon her advice Defendant bought a corn mill machine and with savings from the operation of the Machine they acquired two more. They additionally acquired a 1½ acre of land from one Papa Yiwo at Bondaye and cultivated cocoa which earlier they farmed cassava. According to the Plaintiff due to the promiscuity and the withholding of housekeeping money by the Defendant she joined a Page | 2 cooperative group at Bogoso and was able to raise some funds and built a one store room on their plot at Bondaye. Plaintiff states that, she joined a second cooperative group in Takoradi and was able to raise some funds to stock the store. Plaintiff further states that she moved out of the matrimonial home due to the Defendant unreasonable behaviour as the marriage was subsequently dissolved customary and the Defendant has refused to give her, her share of the properties they jointly acquired. Defendant on the other had also claimed that before he married the Plaintiff his uncle Kwabena Sekyi led him to Enchi to cultivate eight acres of cocoa on Abunu basis. That he was given four acres when the cocoa matured. Defendant further states that he cultivated the said cocoa farm for five years before marrying the Plaintiff at Gomoa Dahome in the Central Region. That subsequent to the marriage he brought the Plaintiff to Enchi to assist in the cultivation of the cocoa. Defendant states that two years ago Plaintiff insisted he build a house for her on Plaintiff’s mother’s land in her hometown which he did. It is the case of the Defendant that in 2006 he acquired a farm land in Bondaye to cultivate cocoa on Abunu basis. Defendant states that when they moved to Bondaye they sold Banku and stew and in 2012 used the savings to purchase a piece of land at Bondaye to construct a store. They (Plaintiff and Defendant) according to the Defendant agreed and sold the cocoa farm in Enchi for GH₵3,000.00 and used the proceeds to acquire an electric corn mill machine and the proceeds from its operation was used to acquire two (2) additional machines. That proceeds from the operation from the corn mill machines was used to construct the matrimonial home. Defendant indicated in his witness statement filed on the 25/4/2024 that Plaintiff four years ago asked to be given her share of the cocoa farm Page | 3 at Mempeasem which he did. That when small scale miners encroached on portions of the land he gave Plaintiff an amount of GH₵5,500.00 out of GH₵10,000.00 paid by the galamseyers as compensation. Defendant indicates that he is currently cultivating cocoa on three acres of land he acquired on Abunu terms. That they are currently divorced and Defendant indicates to the court that he has build a one bedroom house for the Plaintiff in her hometown, given her the cocoa farm at Mempeasem, two rooms wooden kiosk and a single room block store that he helped the Plaintiff build at where their matrimonial home is located. PW1, Adu Sampson who filed his witness statement on the 17/4/2024 describes himself as a sister to the Plaintiff and brother in - law of the Defendant though bears no family relationship with the parties. According to PW1 he had known the parties to this present suit for over thirty years. That the parties settled and farmed in Enchi before relocating to Bondaye to start a new farm. That Defendant sold the cocoa farm they acquired in Enchi and use the proceeds to acquire a corn mill machine of which they now have three. According to PW1 the parties now have two separate cocoa farms and that the parties currently have 2½ acres of cocoa farm as theirs and the second farm acquired though on Abunu terms is not yet matured and thus not reached the stage of sharing between them and the landowner. PW1 in his witness statement states that the parties have ten bedrooms mud house in Bondaye. It is the case of the PW1 that the parties are currently divorced after some misunderstanding two years ago. That though the Defendant gave Plaintiff some portion of the cocoa farm they cultivated together he took back the cocoa farm after the dissolution of the marriage and that Defendant insist he will not give the Plaintiff any share of the properties they acquire during the subsistence of the marriage. DW1 Felicia Botwe, a Hairdresser, who surprisingly is a daughter of the parties in this present action deposed to the fact that, the parties have two separate cocoa farms at Page | 4 Mempeasem and Bondaye respectively. Witnessing for the Defendant, DW1 states that four years ago, Plaintiff requested and was given a share of the cocoa farm at Mempeasem including that of her sibling. That when her mother, the Plaintiff in this action harvest the cocoa, she give her and her siblings some of the proceeds from the sale. That her parents (Plaintiff and Defendant) have a nine bedroom mud house as their matrimonial home. According to DW1 Plaintiff has additionally built a one – store room block house on the land that contains their matrimonial home. DW1 further states that though Plaintiff and Defendant acquired three corn mill machines they are all spoilt and sold to scrap dealers. According to DW1 Plaintiff took money from small scale miners when they encroached on the cocoa farm but never gave them the siblings their share. That Plaintiff has left the cocoa farm that is left and they intend have given the remaining cocoa farm to a Caretaker. That the two wooden kiosk put up by the parties are currently in possession of the Plaintiff who deals in food stuffs in one and agro chemicals in the other. That the second cocoa farm in Bondaye is being cultivated on Abunu terms and that the cocoa is not yet matured to be shared between Defendant and the land owner. During cross examination Plaintiff denied the fact that Defendant has build a house for her in Plaintiff’s hometown nor provided any materials toward the construction of the said house. When quizzed by the Defendant about giving Plaintiff her share of the cocoa farm, Plaintiff stated that though the Defendant had given her a portion, he had taken it back from her. Page 3 of record of proceeding depose to that “Q. Have I not given you and your children your share of the cocoa farm at Bondaye. A. You have given us our share of the cocoa farm but you have stopped me and the children form going to the cocoa farm you have given to us.” Page | 5 This position was corroborated by PW1 Adu Sampson at page 11 of the records of proceedings during cross examination by Defendant and I quote. “Q. Are you aware that I have given the Plaintiff the share of the cocoa farm as jointly cultivated? A. I am aware that you gave the Plaintiff her share but you have taken it from her. When quizzed further by Defendant as to how he got to know, this was what transpired. “Q. How will you verify whether what the Plaintiff told you is true? A. The came to me crying that you said you have taken the cocoa farm you gave to her from her.” When Defendant was cross examined by Plaintiff he admitted that they (Plaintiff and Defendant) cultivated the cocoa in Enchi together at page 13 of records of proceeding. It is further the fact that what the parties acquired was jointly acquired property. DW1 on the other hand corroborate the statement by the Defendant to the effect that Plaintiff had already been given her share of the cocoa farm but when Plaintiff suggested to DW1 she will bring one Adu to court to testify contrary to that on page 22 of records of proceedings during cross examined DW1 did not agree and I quote. “Q. Will you agree when I bring Adu to come and testify to the effect that Defendant has given the cocoa farm to him. A. No. I will not agree to that this is because when the Defendant share the cocoa farm he added the children’s portion of the farm to yours and you told Defendant that you will never step into the farm again because the Defendant Page | 6 uprooted some cassava from the farm to one woman without your consent. So we the children gave permission for the Defendant to give it to one Adu as a tenant farmer but the said Adu told the Defendant that he cannot take care of the farm and because we cannot leave the cocoa to rot the Defendant decided to manage the farm himself now has been giving us proceeds from any cocoa bean he harvested.” The issue for determination is: Whether or not the properties are jointly acquired and the manner such properties are to be distributed. For distribution of spousal property upon the dissolution of marriage, there are a plethora of cases which has set out principles that has been refund over time guide the Courts in the determination as to how the distribution of properties acquired during the subsistence of marriage. Some authorities such as Mensah v Mensah 1st Mansah (1998 – 1999) SCGLR 350, Boafo v Boafo (2005/2006) SCGLR 705 Fyn v Fyn (2013/2014/) SCGLR 727, Arthur v Arthur (2013/2014) SCGLR 543 and Mansah v Mensah (2012) SCGLR 391, Quartson v Quartson (2012) 2 SCGLR 1017. The principles as laid are inferred by Article 22(2) and 3(a) and (b) of the 1992 Constitution states as follows: Property Rights of Spouses: “(2) Parliament shall as soon as practicable after the coming into force of this constitution enacts legislation regulating the property right of spouses. (3) With the view to achieving the full realisation of the rights referred to in clause (2) of this article. Page | 7 (a) Spouse shall have equal access to property jointly acquired during marriage. (b) Assets which are jointly acquired during marriage shall be distributed equitable between the spouses upon dissolution of the marriage.” The 1992 constitutional provision quoted supra and decisions as outlined in the Supreme Court cases stated above is to the effect that property acquired during subsistence of a marriage is presumed to have been jointly acquired by the Couple and subsequent to divorce be shared on the basis of equality is equity principle. However the principle of equality is equity is premised on jointly acquired property during the subsistence of marriage. It is to be noted that the determination of jointly acquired property is evidential as it is a presumption that is rebuttable as brilliantly stated in the case of Peter Adjei v Margaret Adjei (2021) DLSC 10156, per Pwamang JSC in of support of the majority opinion state: “It is imperative to understand that the commendable and progressive presumption that property acquired is not stated by the Constitution provision in Article 22 which is abundantly clear.” In the Adjei case cited supra His Lordship went further to clarify that; “Article 22(3) (b) is the provision that governs cases of property distribution on divorce and does not say “assets which are acquired during a marriage shall be distributed equitably between the spouses upon dissolution of the marriage.” it is explicit in referring to property JOINTLY acquired so the impression should never be created that it is the 1992 Constitution that says that property acquired during a marriage is joint property. If the framers of the Constitution had wanted to cover all property acquired in the course of a marriage they would have said so expressly. It is a judicially created presumption and as such it is a rule of evidence only and does not confer substantive rights as the trial judge sought to imply. Being an evidential presumption, it is Page | 8 rebuttable by the spouse whose ostensible property is in question or any person challenging the presumption by adducing evidence to prove that the other spouse contributed nothing in the acquisition of the property. Though not controverted by any of the parties, there are enough evidence on records as admitted by both parties that the property acquired are joint property. In accessing the equality equity principle in the distribution of jointly acquired property, it must be in such a manner that its distribution must not negatively affect a spouse or put her in a worse position than before the divorce, the case of Gladys Mensah v Stephen Mensah (JA/20/2011) unreported Civil Appeal which was delivered on the 22/2/2012, Dotse, JSC @ 27 comes to bear: “The Petitioner should be treated as equal partner even after divorce in the distribution of properties. The petitioner must not be bruised by the conduct of the respondent and made to be in a worse situation than she would have been had the divorce not been granted.” Unless the equity of a particular case will render the equality is equity principle unfair, it should be applied in the distribution of jointly acquired property. In Mensah v Mensah (Supra) the SC in delivering its judgement stated that: “The principle of equality is equity is preferred principle to be applied in the sharing of jointly acquired property unless in the circumstances of a particular case the equity of the case would demand otherwise.” As such fairness must be cardinal to be applied in instances of the distribution of property jointly acquired upon the dissolution of the marriage. Page | 9 It is to this end to be noted that Section 20 of Matrimonial Causes Act, Act 367 has conferred on the Court the power to order either party to a marriage to pay to the other party such sum of money or convey to the other party movable or immovable property as settlement of property rights or in lieu thereof or part of financial provision that the Court thinks just and equitable. This can either be in gross or installment. Section 20 - Property Settlement; “(1) The Court may order either party to the marriage to pay to the other party such sum of money or convey to the other party such movable or immovable property as settlement of property rights or in lieu thereof or part of financial provision as the Court thinks just and equitable. (2) Payment and conveyances under this section may be ordered to be made in gross or by installment” From analysis of the facts and evidence adduced, it is incontrovertible as corroborated by the parties that the properties of the parties were jointly acquired during the subsistence of the marriage which was further corroborated by PW1 and DW1. It is also in my view that, the Plaintiff would not have instituted this action if the claim of the Defendant were true that he had given the cocoa farm to the Plaintiff. It is also my view that the Defendant has been meddling with the cocoa farm which according to Defendant has been the share he purportedly gave to the Plaintiff. It is my understanding that the entire property owner by the parties including two separate cocoa farms situate at Mempeasem near Bondaye, mud house containing ten (10) bedrooms kitchen, toilet and bath located at Bondaye. The parties also have three (3) corn mill machines. Page | 10 These properties from the facts of the case were jointly acquired during the subsistence of the marriage pursuant to Article 22 of the 1992 Constitution and case law depicted supra. None of the parties did not controvert or offer evidence to the contrary. I am therefore of the view from the abundance of evidence to indicate substantial contribution of the Plaintiff towards the acquisition of the properties. I grant the entire reliefs sought for by the Plaintiff. Section 20 of Act 367 confers on the Court the power to order either party to the marriage to pay to the other party such sum of money or convey to the other party movable or immovable property as settlement of property rights or in lieu thereof or as part of financial provision that the Court thinks just and equitable. Being fortified as such I make the following orders. That the cocoa farm at Mempeasem measuring 2½ acres and located as being bounded by Papa Archer, Essoun, Opana and Adu’s farm be vested in the Plaintiff. I further direct that five (5) of the ten (10) bedrooms housing including the kitchen, toilet and bath be vested in the Plaintiff. I further order that one (1) of three (3) corn mill machines, preferably, an electric one be given to the Plaintiff. This is in addition to the two wooden kiosks and the one storeroom block building in possession of the Plaintiff in which she sells foodstuff and agro chemicals. The Defendant shall pay to the Plaintiff an amount of GH₵5,000.00 as financial provision to the Plaintiff by 31/12/2024. It is my order and order is hereby issued to restrain the Defendant by himself, privies, assigns, agents or anyone under his instructions for and from them from harassing or interfering with the quite enjoyment of the five (5) bedrooms, kitchen, toilet and bath as well as the cocoa farm at Mempeasem as stated supra and the electric corn mill vested in the Plaintiff. No further orders as to cost. Page | 11 (DISTRICT MAGISTRATE) (SGD) H/W. IDDI ADAMA ESQ. Page | 12