Annan & Anor V Oforiwaa (A1/06/2024) [2024] GHADC 522 (24 October 2024)

IN THE DISTRICT COURT HELD AT ADANSI ASOKWA ON THURSDAY THE 24TH DAY OF OCTOBER 2024 BEFORE HER WORSHIP MRS. LINDA FREMAH BOAMAH-OKYERE, ESQ. SUIT NO. A1/06/2024 1. DANIEL KWASI ANNAN PER HIS LAWFUL ATTORNEY JOSEPHINE ANNAN 2. KWAKU MINTAH V AFUA OFORIWAA JUDGMENT BACKGROUND: 1. The Plaintiffs filed the instant Writ of Summons on the 24th day of January, 2024 and claimed the following reliefs: Page 1 of 42 “a. A declaration of title, ownership and recovery of possession of all that entire land, with a building thereon situate at Adansi-Asokwa and bounded by the properties of Maame Kesewaa, a multi TV store, Obuasi-Asokwa lorry road and a gutter b. An order for perpetual injunction to restrain the Defendant, his agents, assigns, workmen, etc. from constructing any structure, edifice or obstruction whatsoever which interfere with 1st Plaintiff’s quiet enjoyment of the building c. General damages d. Cost including solicitor’s fees” 2. Defendant denied liability of the claims and orders were made for written statements and subsequently witness statements to be filed which said orders were complied with. Defendant filed a counterclaim wherein she claimed for “a declaration that the purported outright sale of the disputed property by the 2nd Plaintiff to the 1st Plaintiff be declared null and void as same was done fraudulently”. Page 2 of 42 3. Plaintiffs were represented by Counsel therefore after close of trial, he was given opportunity to file a written address on behalf of the Plaintiffs; which Counsel did and same was filed on 19/09/2024. The address has been duly considered in the writing of this judgment. Defendant was unrepresented throughout the trial. THE RESPECTIVE CASES OF THE PARTIES: 4. The 1st Plaintiff gave evidence through his lawful attorney who had been empowered by Power of Attorney dated 4th October, 2023 and which had been duly stamped in accordance with the Stamp Duty Act, 2005 (Act 689). According to the 1st Plaintiff, the 2nd Plaintiff approached him and his wife sometime in 2017 for financial assistance of GHC. 10,000.00. In return, they agreed with the 2nd Plaintiff to operate his family’s building for a number of years. Subsequently, in 2020, the 1st Plaintiff says that the 2nd Plaintiff again approached him and his wife and intimated to them that he had been authorized by his family to Page 3 of 42 dispose of the disputed property. 1st Plaintiff says that they did their due diligence and came to the realization that the disputed property indeed belonged to the 2nd Plaintiff’s family. This, the 1st Plaintiff states, was confirmed by the stool under which the property is located. They then went ahead and advanced an amount of Thirty-Five Thousand Ghana Cedis (GHC.35,000.00) in two tranches for the purchase of the property. 1st Plaintiff tendered into evidence a payment receipt and same was admitted and marked as Exhibit D. After the payment, 1st Plaintiff states that they caused a site plan to be prepared in his name and same was tendered into evidence, admitted and marked Exhibit E. 5. 2nd Plaintiff says that he is the one who sold the disputed property to 1st Plaintiff on behalf of his family. His case is that in and around 1988, his family, represented by one Kofi Akowuah purchased an unnumbered plot of land measuring about 18.00 square meters which is the disputed property from the Adansi Asokwa Stool. After purchasing the land, 2nd Plaintiff says that Page 4 of 42 the family started developing the disputed land. Sometime in 2017, 2nd Plaintiff asserts that the Adansi Asokwa Stool invited all plot owners to present their land documents to a representative of the stool land committee for regularization of their title. According to the 2nd Plaintiff, Kofi Akowuah submitted a site plan to the stool representative and he was issued with a new receipt which said receipt was tendered into evidence, admitted and marked as Exhibit A. 2nd Plaintiff also tendered the said site plan into evidence and same was admitted and marked as Exhibit B. 6. 2nd Plaintiff claims that sometime in 2017, his family tasked him to seek financial assistance from 1st Plaintiff to support the construction of the building. He says that the family subsequently decided to sell the disputed property outrightly to the 1st Plaintiff and his wife. According to 2nd Plaintiff, Kofi Akowuah had travelled and he (2nd Plaintiff) was asked to represent the family in the sale transaction. He tendered into evidence a transfer document dated 2nd April, 2019 and same Page 5 of 42 was admitted and marked Exhibit C. 2nd Plaintiff states that he was married to the Defendant from 1995 to 2019 and she knew that the property was not his personal one but same belonged to his family. 2nd Plaintiff states also that the disputed property was not jointly acquired during the subsistence of the marriage between himself and the Defendant. 7. It is the Plaintiffs’ case that the Defendant is not entitled to her counterclaim since she has no interest in the disputed property. Plaintiffs called one witness to corroborate their claim. 8. The Defendant’s case is that she has been married to the 2nd Plaintiff for about thirty (30) years now. She said that she and the 2nd Plaintiff used proceeds from the cocoa farm they had cultivated on her father’s land which was gifted to her at the time she was getting married to the Plaintiff, to purchase the disputed property. According to the Defendant, they erected a temporary wooden structure on the land where 2nd Plaintiff started his radio repairs work. She, on the other hand, was hawking by then. Defendant says that 2nd Plaintiff pleaded with Page 6 of 42 her to allow him use all the proceeds from the cocoa farm to develop the land so that they could do their work there and the Defendant would be relieved of the stress of the hawking business. She says that she agreed to the suggestion and the building project commenced. At some point, the Defendant says that she had to secure a loan and pay an amount of GHC.1,500.00 to the Adansi Asokwa Stool before the construction could continue. 9. The Defendant avers that she later got hint that the 2nd Plaintiff was attempting to sell the property to 1st Plaintiff’s attorney. She said that she tried to call her husband to confirm the truth or otherwise of the news but she tried to no avail because he had changed his mobile number. The following day, Defendant says that she went in the company of a friend to 1st Plaintiff attorney’s house to confirm the truth or otherwise of the intended sale transaction between her and her husband. According to the Defendant, 1st Plaintiff attorney neither admitted nor denied the information. Defendant says that she Page 7 of 42 advised 1st Plaintiff’s attorney not to indulge in any transaction concerning the disputed property with her husband because the property is their jointly acquired one and she was opposed to the intended sale. 10. The Defendant avers that attempts at amicable settlement have been made but they have all proven futile. Defendant states also that sometime in 2023, she decided to complete one of the stores for her business and in the cause of the work, she was served with the instant Writ. Defendant called three (3) witnesses in her defence and in proof of her counterclaim. ISSUES FOR DETERMINATION: 1. Whether or not the subject property belonged to the 2nd Plaintiff’s family before the sale of same to the 1st Plaintiff 2. Whether or not the marriage between 2nd Plaintiff and Defendant had been dissolved at the time of the sale of the disputed property to the 1st Plaintiff Page 8 of 42 3. Whether or not the sale of the disputed property by the 2nd Plaintiff to the 1st Plaintiff is valid BURDEN OF PROOF: 4. In civil cases, the general rule is that the party who in his pleadings or his writ raises issues essential to the success of his case assumes the onus of proof on the balance of probabilities. See the cases of Faibi v State Hotels Corporation [1968] GLR 471 and In re Ashalley Botwe Lands; Adjetey Agbosu & Others. [2003-2004] SCGLR 420. This is codified in sections 11 (4) and 12(1)(2) of the Evidence Act, 1975 (Act 323). The Plaintiff is required by law to prove his case on the balance or preponderance of probabilities however, Section 14 of the Act 323 provides that a party has the burden of persuasion as to each fact the existence or non-existence of which is essential to the claim or defence that party is asserting. This burden may shift Page 9 of 42 from the Plaintiff to the Defendant and vice versa depending on which party is making the allegations of facts 5. In land cases specifically, the Plaintiff must succeed on the strength of his own case and not on the weakness of the defendant’s case. The onus lies with the Plaintiff to prove his case before he can rely on any weaknesses in the Defendant’s case. See the case of Dokutso Tei Kwabla v Lands Commission and Another [2017-2018] 1 SCGLR 497 at 509. The Supreme Court has held in the case of George Kwadwo Asante & Another v Madam Abena Amponsah & Another (Civil Appeal No. J4/64/2021) dated 20th January, 2022, that if the plaintiff failed to discharge the onus on him and also failed to make a case for the reliefs sought, then he could not rely on the weakness of the defendant’s case to ask for relief. However, if the plaintiff made a case which would entitle him to relief if the defendant offered no evidence, then if the case offered by the defendant disclosed any weakness which supported the plaintiff’s claim, then the plaintiff was Page 10 of 42 entitled to rely on the weakness of the defendant’s case to strengthen his case. This position of the law is amply supported by sections 11 and 12 of the Evidence Act, 1975 (Act 323). See also Odametey v Clouch [1989-90] 1 GLR 14, SC. Also, in the case of Okudzeto Ablakwa (No.2) v Attorney General & Obetsebi-Lamptey (No.2) [2012] 2 SCGLR 845 at 867, the court held that, ‘…what this rule literally means is that if a person goes to court to make an allegation, the onus is on him to lead evidence to prove that allegation, unless the allegation is admitted. If he fails to do that, the ruling on that allegation will go against him. Stated more explicitly, a party cannot win a case in court if the case is based on allegation which he fails to prove or establish.’ 6. It is trite learning that a defendant who counter-claims assumes the same burden as the plaintiff in respect of his/her counterclaim. See the cases of Gregory v Tandoh IV & Hanson [2010] SCGLR 971 and Nortey (No.2) v African Institute of Journalism and Communication & Others Page 11 of 42 (No.2) [2013-2014]1 SCGLR 703. The Plaintiffs therefore have the duty to prove their title to the property whilst the Defendant carries the burden of proving her joint title with the 2nd Plaintiff. 7. In this judgment the Plaintiff’s evidence will first be analysed independent of the Defendant’s defence to determine whether the Plaintiffs have successfully proved the allegation they make. If Plaintiffs prove their allegations, then any weaknesses in the case of the Defendant, if any is found, will inure to the benefit of the Plaintiffs. Same applies to the Defendant’s counterclaim. ANALYSIS/EVALUATION OF EVIDENCE & THE LAW: ISSUE 1- WHETHER OR NOT THE SUBJECT LAND BELONGED TO THE 2ND PLAINTIFF’S FAMILY BEFORE THE SALE OF SAME TO THE 1ST PLAINTIFF 8. The 1st Plaintiff asserts through his lawful attorney that he bought the property after satisfying himself that the Page 12 of 42 property belongs to the family of the 2nd Defendant. His lawful attorney states in paragraph 7 of her witness statement that ‘after careful due diligence we realised that the disputed property is indeed a family property’. The evidence she led showed that the extent of her due diligence was that she went to the stool on whose land the disputed property is located, and the stool confirmed that the property was the bonafide property of the 2nd Plaintiff’s family. It is my humble opinion that it would have served the interest of justice for the 1st Plaintiff to have called a representative of the stool to corroborate this piece of evidence especially since he did not present any form of documentary evidence as to what he saw or was presented to him by the stool that caused him to believe that the property belonged to the 2nd Plaintiff’s family. 9. It is a trite principle of law that a party does not satisfy the burden of producing evidence by merely repeating on oath the allegations contained in his pleadings. In the case of Page 13 of 42 Klah v Phoenix Insurance Co. Ltd. [2012] 2 SCGLR 1139, the court averred that “where a party makes an averment capable of proof in some positive way e.g. by producing documents, description of things, reference to other facts, instances and his averment is denied, he does not prove it by merely going into the witness box and repeating that averment on oath or having it repeated on oath by his witness. He proves it by producing other evidence of facts and circumstances from which the court can be satisfied that what he avers is true”. 10. The 1st Plaintiff did not lead any such evidence either through the tendering of documents or the calling of witnesses to corroborate his assertion. Assuming that 1st Plaintiff indeed found that the land was a family property, due diligence would have required him to approach the said family to confirm whether the seller has the authorization of the family to dispose of same, but the 1st Plaintiff did not lead any evidence to cause the court to believe that, any such step was taken. Page 14 of 42 11. 1st Plaintiff tendered into evidence Exhibit D which is a receipt showing that he had advanced an amount of Thirty- Five Thousand Ghana Cedis to the 2nd Plaintiff in respect of the sale of the disputed property to him by the 2nd Plaintiff. The contents of Exhibit D read as follows: “THIS IS TO CERTIFY that I the undersigned/Marked KWAKU MINTAH of Adansi Brofoyedru in the Ashanti Region of Ghana on the 3rd day of August, 2020 out-rightly sold my storey building store being and situate at Adansi Asokwa to DANIEL KWESI ANNAN of H/No. A2-0342-5334 with an agreed price of Thirty Five Thousand Ghana Cedis (GHC.35,000.00) of which full payment has been made. CONFIRMATION This is to confirm that the said STORE being and situate at Adansi Asokwa in the Ashanti Region of Ghana is my Bona fide property therefore free from all encumbrances”. 12. 1st and 2nd Plaintiffs have signed the above Exhibit D whereon they describe themselves as buyer and seller respectively, as well as two witnesses for each party. It is my Page 15 of 42 view that the oral evidence led by 1st Plaintiff is inconsistent with the documentary evidence he presented to the court. His oral evidence is that the disputed property belongs to the 2nd Plaintiff’s family whereas the documentary evidence he presented shows that it belongs to the 2nd Plaintiff; 2nd Plaintiff having stated therein that the property is his bonafide property. 13. In the case of Aboa v Keelson; Yima v Doku; Suit No.20/92, 16th March, 2011 the court referring to the decision in Fosua & Adu Poku v Dufie (Deceased) & Adu-Poku Mensah [2009] SCGLR 310 held that “it was settled law that documentary evidence should prevail over oral evidence. Thus, where documents supported one party’s case as against the other the court should consider whether the latter party was truthful but with faulty collection.” In the Fosua & Adu Poku case (supra), the court stated that whenever there was in existence a written agreement and conflicting oral evidence over a transaction, the practice in the Court was to lean Page 16 of 42 favourably towards the documentary evidence, especially if it was authentic and the oral evidence conflicting. 14. The 1st and 2nd Plaintiffs own up to the fact that Exhibit D is their deed and I hold the view therefore that they should be bound by same in accordance with section 25(1) of the Evidence Act, 1975 (Act 323) which states that “except as otherwise provided by law including a rule of equity, the facts recited in a written document are conclusively presumed to be true as between the parties to the instrument, or their successors in interest” (emphasis mine). See also the case of Kwantreng II and Others v Klu [1991] 2 GLR 93. Having admitted per his conduct i.e., the execution of Exhibit D, 1st Plaintiff is estopped from asserting that he purchased the property from 2nd Plaintiff with the knowledge that same belonged to his family and that he intended to deal with him on that understanding. 15. On the part of the 2nd Plaintiff, he asserts per paragraph 5 of his witness statement that the disputed property belongs to Page 17 of 42 his family on the basis that same was purchased by his family in 1988 for the construction of a house. The family then bought the disputed property from the Adansi Asokwa Stool through his brother Kofi Akowuah. 2nd Plaintiff did not tender into evidence any document corroborating this assertion neither did he call the stool or a representative thereof to corroborate this assertion. He rather tendered into evidence Exhibit A which is a receipt emanating from the Adansi Asokwa Stool Lands Committee. 2nd Plaintiff averred that they got Exhibit A from the stool after Kofi Akowuah heeded to the call by the stool for landowners to submit their documents to the stool for the regularization of their titles. According to 2nd Plaintiff, Kofi Akowuah submitted the site plan which bore his name to the stool and he was issued with the receipt, Exhibit A. My view on Exhibits A and B is that they do not assist the court in any way to come to a determination that the land was originally purchased in 1988 by the family of the 2nd Plaintiff. No proof, neither oral nor Page 18 of 42 documentary, of the family’s authorization to the said Kofi Akowuah to purchase the land in his name was presented to the court save the bare allegation that Akowuah had such authorization from the family. Perhaps, had Kofi Akowuah been called as a witness to corroborate this assertion, it would have lent some credibility to the case of the 2nd Plaintiff- Kofi Akowuah was not called, no family member was also called to corroborate this assertion. 16. In addition to this, Plaintiff’s Counsel during his cross examination of Defendant suggested that the property was the self - acquired property of Kofi Akowuah which said statement is entirely different from the claim Plaintiffs have put up in their evidence-in-chief, specifically paragraph 5 of the 2nd Plaintiff’s witness statement. This is what ensued in cross examination; Q. I am suggesting it to you that the disputed property is the self- acquired property of Kofi Akowuah A. It is not true Page 19 of 42 17. The inconsistencies in 2nd Plaintiff’s case that in one breadth the disputed property belongs to his family, in another breadth, it is the self-acquired property of Kofi Akowuah and in another breadth this same property is his bonafide property cannot be overlooked. Based on the oral evidence led by the Plaintiffs and especially the documentary evidence placed before the court by Plaintiffs themselves, I find that the 1st Plaintiff at all material times dealt with the 2nd Plaintiff personally and not as a representative of his family. 18. Having found that 2nd Plaintiff was on the frolic of his own when he sold the subject property to the 1st Plaintiff, it would be unjust to make a pronouncement of ownership for or against an entity which was not before the court and has therefore not been heard. It appears to me that the averment made by 2nd Plaintiff that the property belongs to his family, is only a self-help tactic which was framed to justify the propriety of the sale of the property to the 1st Plaintiff. Page 20 of 42 ISSUE 2 – WHETHER OR NOT THE MARRIAGE BETWEEN 2ND PLAINTIFF AND DEFENDANT HAD BEEN DISSOLVED AT THE TIME OF THE SALE OF THE DISPUTED PROPERTY TO THE 1ST PLAINTIFF 19. It is the Plaintiffs’ case that the disputed property was sold in 2020 whilst the marriage between the 2nd Plaintiff and Defendant was dissolved in 2019. The Defendant denies this averment and insists that the marriage was never dissolved. During cross examination of 2nd Plaintiff by Defendant, this is what ensued: Q. Did you inform me of your intention to sell the building A. You had left the marriage at that time so there was no need for me to inform you Q. I am putting it to you that I had not left the marriage. We are still married A. It is not true. The marriage was dissolved in 2019 and we sold the building in 2020 Page 21 of 42 20. The 2nd Plaintiff per paragraph 17 of his witness statement suggested that there had been a formal dissolution of the marriage sometime in 2019. He however did not lead evidence as to what went into the said formal dissolution. In the face of the Defendant’s insistence that the marriage was still subsisting, Plaintiff ought to have led sufficient evidence to show that the marriage had indeed been properly dissolved. The Defendant does not carry any burden in respect of this issue for he who makes a negative averment need not prove that averment. 21. According to PW1 who is the mother of the 2nd Plaintiff, per paragraphs 5, 6, 7 and 8 of her witness statement, she claimed that sometime in 2019, the Defendant visited her at her residence and exclaimed an end to the marriage with the 2nd Plaintiff. She stated that the Defendant brought out the customary drink and asked her to return same to her son. PW1 states that due to her old age and ailing health, she quickly called her son, and he together with other family Page 22 of 42 members went to Defendant’s family for a formal dissolution of the marriage. This means that PW1was absent from this ‘formal ceremony’ therefore she was not in the position to give details about what transpired there. Nonetheless, some of the family members who were allegedly present at the ceremony could have been called to corroborate the assertion that the formal dissolution of the marriage had taken place. 22. It is for good reason that the Akan custom to which the parties, or at least the Defendant (as borne out by the evidence of DW2) belong, insists on this formal dissolution. The formal ceremony is the avenue for both parties to come into agreement or make concessions as to distribution of properties, repayment of any indebtedness, payment of compensation and many more. Had this been done, the issue of the ownership of the disputed property would have been dealt with at the ceremony, in which case the 2nd Plaintiff would have called witnesses to that ceremony to testify as to Page 23 of 42 the status of the marriage and the disputed property. Defendant having denied that the marriage was dissolved, it was important for the 2nd Plaintiff to have led sufficient evidence to prove same but he failed to do so. 23. In the case of Mavis Osei Owusu v Robert Osei Owusu [2019] DLHC11512, when the court was faced with having to determine whether the customary marriage between the parties had been dissolved, it made reference to William E. Offei’s book, Family Law in Ghana, Fourth Edition, page 172 writing under the topic, ‘Dissolution of Customary Marriages’, which states as follows; “The relatives of the two (2) parties meet and when all efforts at reconciliation fail, those assembled known as baguafo ask the parties which of them has lent anything to the other party. Any borrowed item must be returned to the partner who lent it, except that the man may say that even though he lent a particular item or items to his wife, he does not intend to claim it or them back. The wife may do likewise. The only item that must be returned to the husband is the Ti Nsa or head Page 24 of 42 money which he paid, at the time of the marriage, to the wife’s family. If the dissolution of the marriage was due to the man’s fault, he will be requested by the baguafo to ‘send off’ (i.e., compensate) the wife. If on the other hand, the wife’s default e.g., prostitution or adultery occasioned the dissolution, she will be required to ‘send off’ the husband. The dissolution is sealed by the ceremony called hyiregwu or powdering. A member of the baguafo takes white powder in his hand and puts it on the shoulder of the wife. He says to her:’Nne yeama wo hyirew. Yenni wo nni asem biara bio’. This may be translated thus “today we have powdered you. We have no matter with you again”. The speaker then hands over the woman to her family and that ends the ceremony. It must be noted that the speaker does not spread the powder over the whole body of the woman.” 24. The court also referred to the case of Atta v Annan (1975) 1GLR 366 in which the court held as follows: “…the marriage could be terminated only after an arbitration (to which must be invited members of the family of each spouse and neutral persons) had been conducted to find out whether any of the Page 25 of 42 spouses had committed any marital offence. If an offence was proved, it was the duty of the arbitrators to try their utmost to effect a reconciliation between the spouses in a genuine attempt to salvage the marriage especially where there were issues of the marriage. After the arbitrators had ruled that the situation called for divorce, the spouses must then be given an opportunity to show whether any of them owed any amount or had any property belonging to the other. After settling all legitimate accounts between the spouses, the final act of divorce was then performed by the husband releasing her from conjugal obligation, either by chalking her or saying so in the presence of the gathering. In his book Akan Laws and Customs, the author J. B. Danquah stated as follows: “Lodging a complaint by the aggrieved spouse to the family of the other spouse; An opportunity is given for the formal hearing of the complaint and or the ground in support of the dispute; Page 26 of 42 The hearing of adjudication of the dispute is conducted in accordance with the rules of natural justice whereby either party is given the opportunity of stating his or her case and answer any counter-charges that may be levelled against him or her; After that a serious attempt is made to reconcile the parties; If both parties or either party to the marriage insists on terminating the marriage, then the next step will be; The pronouncement or declaration that the marriage is dissolved”. 25. It is clear from the authorities above that the formal dissolution is essential. The procedure may vary but the constant elements are that at the formal ceremony there is an attempt at reconciling the parties and when same fails, the marriage is dissolved after all outstanding issues regarding money and property are resolved. 26. The lack of evidence on the alleged formal dissolution evinces the fact that it did not happen and I find therefore that the customary marriage between the 2nd Plaintiff and Page 27 of 42 Defendant had not been dissolved as at the time of the sale of the disputed property to 1st Plaintiff. 27. In his written address, Counsel for the Plaintiffs raised the issue of ‘whether or not the disputed property is a joint property’. I am of the view that this is not really an issue for determination in this case. The reason is that, whether or not a particular property is a spousal property arises only where there is the need to distribute properties in the event of the dissolution of the said marriage. Article 22 of the Constitution of the Republic of Ghana, 1992 states as follows: “22. Property Rights of Spouses 22(1) A spouse shall not be deprived of a reasonable provision out of the estate of a spouse whether or not the spouse died having made a will (2) Parliament shall, as soon as practicable after the coming into force of this Constitution, enact legislation regulating the property rights of spouses Page 28 of 42 (3) With a view to achieving the full realization of the rights referred to in clause (2) of this article- (a) spouses shall have equal access to property jointly acquired during marriage; (b) assets which are jointly acquired during marriage shall be distributed equitably between the spouses upon dissolution of the marriage.” 28. The Supreme Court has interpreted Article 22(3) of the Constitution,1992 in the case of Tony Lithur v Nana Oye Lithur [2021] DLSC10157, where the court stated as follows: ‘This Court should be deemed as having interpreted marital property in Article 22(3) in Arthur v Arthur [2012-2014] 1SCGLR 543 as follows:, “marital property is thus to be understood as property acquired by the spouses during the marriage, irrespective of whether the other spouse has made a contribution to its acquisition…. What this means in substance is that, the Article 22(3) provisions of the Constitution only become Page 29 of 42 effective upon dissolution of the marriage when the distribution of properties are considered.”’ 29. This case is not one of dissolution of marriage and therefore I shall equally refrain from making a pronouncement on whether or not the subject matter of this suit is a jointly acquired property. Suffice it to say at this point that at the time of the sale, the 2nd Plaintiff and the Defendant were still married. ISSUE 3 - WHETHER OR NOT THE SALE OF THE DISPUTED PROPERTY BY THE 2ND PLAINTIFF TO THE 1ST PLAINTIFF IS VALID 30. The Lands Act, 2020 (Act 1036), Section 47 provides as follows: “Section 47 – Restrictions on transfer of land by spouse Except as provided in subsections (3) and (4) of section 38, in the absence of a written agreement to the contrary by the spouses in a Page 30 of 42 marriage, a spouse shall not, in respect of land, right or interest in land acquired for valuable consideration during marriage, (a) Sell, exchange, transfer, mortgage or lease the land, right or interest in the land, (b) Enter into a contract for the sale, exchange, transfer, mortgage or lease of the land, right or interest in the land, (c) Give away the land, right or interest in the land inter vivos, or (d) Enter into any other transaction in relation to the land, right or interest in the land without the written consent of the other spouse, which consent shall not be unreasonably withheld”. 31. The provision above is to the effect that once the property in question was acquired whilst the parties were married, then it is imperative that the party who purports to dispose of the property must seek the written consent of the other spouse. 32. The Defendant denied the Plaintiffs’ claim that the disputed property belongs to the 2nd Plaintiff’s family. In her defence, she insists that the property was purchased by her and her husband in the course of their marriage using proceeds from Page 31 of 42 their cocoa farm. She did not give the exact date or year but she did state that this happened some thirty (30) years ago after they got married. The Defendant was unable to produce any documentary proof in support of her assertion that she acquired the disputed property with the 2nd Plaintiff. However, during cross examination by Counsel for Plaintiff, she was given an opportunity by Counsel to explain the absence of such document. This was what ensued during cross examination; Q. You will agree with me that there is no document attached to your witness statement indicating that the disputed property is jointly acquired A. I did not attach any document. We had a receipt but same is with 2nd Plaintiff Q. I am putting it to you that your claim that you jointly acquired the disputed property is an after thought A. That is not the case. I am speaking the truth Page 32 of 42 Q. I am putting it to you that if the disputed property is jointly acquired by the two of you, you would have attached a receipt to confirm same A. The receipts are with my husband, 2nd Plaintiff 33. On two occasions, the Defendant alleged that the receipts they got from the purchase of the land are with the 2nd Plaintiff but he did not deny any of those allegations which amounts to a tacit admission of the allegation that the said receipts are in the custody of the 2nd Plaintiff. Furthermore, it appears that the Defendant’s version of the story is corroborated by the conduct of the 2nd Plaintiff. I say so because, the 2nd Plaintiff states in paragraph 5 of his witness statement that his family purchased the disputed property for residential purpose. He further states in paragraph 7 of his witness statement that the family started developing the disputed land. He does not let the court in on what was being developed on the land. One would think that from the statement made in paragraph 5, they would have been Page 33 of 42 constructing a house/residence on the land. However, we subsequently come to know from Exhibit A that the disputed property was allegedly purchased for commercial purpose i.e., stores and which said stores have been sold to the 1st Plaintiff. No explanation is offered as to what caused the change in the usage of the land. The Defendant, on the other hand, asserts from the beginning to the end of her evidence that they had purchased the land for the construction of stores which they begun by erecting a temporary wooden structure which was occupied by 2nd Plaintiff for his radio repairs work. 34. The 2nd Plaintiff’s evidence suggests that the property was uncompleted and unoccupied at the time of the sale to the 1st Plaintiff, yet, he did not deny Defendant’s assertion in paragraph 12 of her witness statement that there was a wooden structure which he occupied and worked in before the sale of same to 1st Plaintiff. Page 34 of 42 35. It appears to me that the reason for the absence of any document emanating from the time of the original purchase of the land is probably because same may support the Defendant’s allegation of joint ownership. This is a civil case; the evidence is weighed on probabilities and I am convinced to make a preference of the evidence of the Defendant over that of the Plaintiffs. 36. The rule in civil proceedings is that where the evidence of the parties boils down to the oaths of one party and his witnesses against the oaths of the other party and his witnesses, the decision of the court may safely be based on the trial court’s impression of the credibility of the parties. See the case of Praka v Ketewa [1964] GLR 423, SC. My impression of the evidence is that the Plaintiffs’ case especially that of the 2nd Plaintiff smacks of dishonesty considering the inconsistencies and the unanswered questions in his evidence, specifically, the absence of documents emanating from the original sale and the lack of Page 35 of 42 explanation to justify the absence of those documents. 2nd Plaintiff rather tendered into evidence a site plan which was no form of evidence for purposes of proving the date of the purchase of the said land. The site plan was neither dated, nor was any oral evidence led to indicate when it was prepared to enable the court to as much as infer that there is a possibility that the land was purchased prior to the 2nd Plaintiff’s marriage to the Defendant. 37. This, coupled with the fact that the 2nd Plaintiff did not deny having the documents in his possession, causes me to conclude that the Defendant was unable to provide documentary proof to support her claim of joint ownership because she was incapacitated by the Plaintiff’s conduct of withholding the documents from the court. 38. In any case, the issue of whether or not the disputed property is a jointly acquired property has been found not to be crucial in the determination of the validity of the sale of the disputed property considering section 47 of Act 1036, Page 36 of 42 therefore, the Defendant’s inability to prove that allegation is not detrimental to her defence. 39. From the above analysis, I make a finding that the disputed property was purchased in the course of the marriage of the 2nd Plaintiff and the Defendant. 40. In this case, it is not in dispute that the Defendant’s consent was not sought before the disputed property was sold to the 1st Plaintiff. 2nd Plaintiff’s excuse for the consent not being sought was that the marriage had been dissolved. This shows that 2nd Plaintiff is even aware that whilst the marriage subsisted, he required the consent of his wife before dealing with the property in any way as to dispose it off. It appears to me that the 2nd Plaintiff created the façade of the dissolution of their marriage, to enable him escape the consequences of his failure to obtain his wife’s consent in accordance with Act 1036. 41. The need to obtain the written consent of the other spouse in such transactions as this one is a statutory command and Page 37 of 42 same cannot be waived therefore the inevitable consequence on the sale transaction of the disputed land that happened between the Plaintiffs is that same is null, void and of no effect. THE DEFENDANT’S COUNTERCLAIM 42. The Defendant counterclaims for a declaration that the purported sale of the disputed property by the 2nd Plaintiff to the 1st Plaintiff is null and void as same was fraudulently done. She failed to provide particulars of the fraud which she alleges, however, the court stated in the case Glorylord International Limited v Ghana Water Company Limited [2024] DLHC17536 that the law is settled, that if there is any legal point which is evident from the proceedings, and it involves substantial point of law which can dispose of the matter in one way or the other, then it should be decided. It can even be determined in some cases where it was not specifically pleaded, but is evident from the record as in cases like fraud (emphasis mine). Page 38 of 42 See also the cases of Kwaku v Serwah & Others [1993-1994] 1 GLR 429, SC, Kwantrang v Amassah & Others [1962] 1 GLR 241, SC, Attorney General v Faroe Atlantic Co. Ltd [2005-2006] SCGLR 271 and Kowus Motors v Check Point Ghana Ltd [2009] SCGLR 230. 43. In the instant case, even though the Defendant pleaded fraud and failed to particularise same, if it is found from the evidence before me that there is indeed fraud and same has been proven to the satisfaction of the high burden of proof beyond reasonable doubt, the court will not close its eyes to it. See the case of Benjamin Danquah v Agnes Ahadzi and Pioneer Malls Limited [2023] DLSC 16084. 44. The Defendant’s evidence did not disclose fraud on the part of the Plaintiffs save the lack of consent which 2nd Plaintiff ought to have obtained from her before disposing of the property to the 1st Plaintiff. This has already been amply dealt with above. Page 39 of 42 45. The Plaintiffs by their written address filed on their behalf by Counsel reiterated that the Defendant failed to produce cogent evidence/documents to establish her claim of joint acquisition of the disputed property and relied on this failure as one of the reasons why Plaintiffs should be entitled to their claim. As earlier established, the issue of joint ownership is not necessary for the proper determination of this matter and therefore this perceived weakness in the Defendant’s case (even if real) will not entitle the Plaintiffs to judgment in their favour because they failed to make a case for themselves and they are therefore not in the position to rely on any weaknesses in the case of the Defendant.1st Plaintiff’s case fails and he is not entitled to the reliefs sought. 46. On the part of the 2nd Plaintiff, he is not entitled to judgment in his favour because he did not have capacity to sue as a co- plaintiff in the first place, having asserted that his family had relinquished their interest in the land to the 1st Plaintiff. According to him, neither he nor his family had any right Page 40 of 42 over the disputed property, having sold same to the 1st Plaintiff. He is not entitled to a declaration of title, ownership and recovery of possession as well as any of the other reliefs which he claimed alongside the 1st Plaintiff. In my humble opinion, he ought rather to have been a co- defendant or better still, a plaintiff witness. 47. Defendant is entitled to her counterclaim to the extent that the purported sale of the disputed land to the 1st Plaintiff is null and void by reason of the 2nd Plaintiff’s failure to obtain her written consent before embarking on the sale. 48. Plaintiffs’ claim fails and judgment is entered in favour of the Defendant in respect of her counterclaim as follows: a. A declaration that the sale of the disputed property being a parcel of land with a one storey store building situate thereon and bounded by the properties of Maame Kesewaa, a multi-TV store, Obuasi-Asokwa lorry road and a gutter by the 2nd Plaintiff to the 1st Plaintiff is null Page 41 of 42 and void and same is accordingly set aside on ground of illegality. b. Costs of GHC.3,000.00 against the Plaintiffs. ALL PARTIES PRESENT EKOW ARHIN SAGOE, ESQ. FOR PLAINTIFFS PRESENT MRS. LINDA FREMAH BOAMAH-OKYERE SGD MAGISTRATE 24/10/2024 Page 42 of 42