Banipo Vrs James [2023] GHADC 125 (25 April 2023)

1 IN THE DISTRICT COURT, HELD AT GOASO ON 25TH APRIL, 2023 BEFORE HER WORSHIP MAGDALENE THOMPSON DISTRICT MAGISTRATE FLORENCE BANIPO PLAINTIFF SUIT No. A11/3/20 VRS KWAME JAMES _________________________________________________________ DEFENDANTS PLAINTIFF PRESENT DEFENDANT PRESENT PARTIES UNREPRESENTED __________________________________________________________ JUDGMENT Plaintiff claim s against the Defendant as followings: (a) Proportion share of all that cocoa farm situate at Maampehia (b) GHc20,000.00 as General Damages for breach of promise of marriage (c) Recovery of GHc2,400.00 as maintenance for the past 8 months (d) Costs Defendant file a defence and pleaded not liable to the Plaintiff’s claims. This case was commenced by my predecessor who could not finish and I adopted it. THE CASE OF THE PLAINTIFF This is a civil case filed by the Plaintiff on 13th August, 2019 against the Defendant. According to the Plaintiff she and the Defendant had been together as man and wife for eleven (11) years in the eyes of the public and had four (4) children in the concubinage relation. She further stated that when her family both in Ahafo and Northern region invited the Defendant to perform the Customary rites he kept deaf ears and rather rain insult on the Plaintiff’s family. She contended that she then summoned the Defendant at Grumahene’s palace with his family for the customary marriage rites but over there the Defendant exhibited rudeness towards the Grumahene and his elders in Goaso and they advised the Plaintiff to seek redress at the Human Rights and Administrative Justice (CHRAJ) and at the CHRAJ he told the panel that he has married the Plaintiff already and cannot marry her again and if the Plaintiff is still persisting for the performance of the customary rites of the Northern custom then he is not ready so the Plaintiff can go her way as he is not going to marry her in that traditional way. Plaintiff maintained that the Defendant used to assault her every now and then and she reported the matter to the police and the Defendant was arrested at Nkesiam police station and the Defendant was cautioned and discharged and was asked to defray from assaulting the Plaintiff but this never puts fear into the Defendant and he continued beating and assaulted Plaintiff. The Plaintiff contention is that she and the Defendant’s acquired a farm land and she assisted the Defendant in cultivating cocoa farm on abunu basis and other food crops and half of the cocoa farm is now matured for harvesting. She stated that the landowner of the said abunu farm is for Opanyin Kwame Acquah at Maapehia and he is now deceased and was succeeded by Osman Alhassan who is a nephew. According to the Plaintiff the witnesses were Yaw, the Defendant’s brother, the customary successor, the Defendant and the Plaintiff herself during the abunu agreement. She is here pleading with the court to share the Defendant’s share of the cocoa farm into two equal parts which is on the Mehame stool land. She is also demanding a push package for the eleven (11) years of concubinage relation with four children and GHc2,400.00 as a maintenance arrears of eight months that the Defendant’s refused to maintain her and the children. She contended that the court should give her custody of the four children and order the Defendant to provide maintenance and necessaries such as education, shelter, health and other needed items for the four children. PW1 corroborated the Plaintiff assertions and added that the Defendant accompanied the Plaintiff to North and abandoned her and came to Maapehia without the Plaintiff’s and the family notice. Thereafter the Plaintiff closed her case and called one witness. DEFENDANT CASE It is Defendant case that he performed knocking with drinks before cohabiting with the Plaintiff and had four children with her. He corroborated the Plaintiff’s assertion that he was invited before Grumahene and CHRAJ and that they contracted a cocoa farm on abunu bases and the Plaintiff assisted him in the farming activities and also making dow for local soap called amonkye. According to the Defendant getting materials during the dry season to produce the dow was difficult so he told the Plaintiff to stop that trade and the Plaintiff became furious and this brought about the misunderstanding ever since. He stated that the plaintiff denied him sex and this resulted into quarreling and the Plaintiff reported him at the Nkesiam police station and they were advice to stop and live together as husband and wife. He reiterated that the Plaintiff became furious and deserted the home living the four children behind and he took care of the children and he went in for another woman but the Plaintiff sacked her. The Plaintiff failed to come back to the matrimonial home and the father reported the matter to the Police that his daughter Plaintiff was missing and the Defendant was arrested by Nkesiam police and the Plaintiff’s father caution statement then revealed that he knows where his daughter was and that she was staying at the Grumahene’s house at Goaso. According to the Defendant the Plaintiff later returned home and he too married another woman and brought her to the house and the Plaintiff got furious and left the house again leaving the four children at the cottage. DW1 the Chief Inspector of Police corroborated the couple assertions that they had some confrontation and the matter was reported at the police station and they were advice to settle the issue amicably and ensure to promote peace in the house. The Defendant then closed his case with one witness. The legal issues that emerged for determination are: (1) Whether or not a relationship between a man and a woman living together as concubinage constitute as a valid customary marriage? (2) Whether or not the Defendant sending a drink to the Plaintiff’s family as traditional demands marriage? (3) Whether or not the Plaintiff assisted the Defendant on the cocoa farm they contracted on abunu bases? (4) Whether or not the Plaintiff is entitle to GHc20,000.00 compensation breach? (5) Whether or not the Plaintiff is entitle to have custody of the four children? (6) Whether or not the Plaintiff is entitled to her reliefs sought? In a civil case, any party who makes a positive assertion has evidential burden to produce admissible evidence to prove his claim and assertions on the preponderance of the probabilities per Section 12(1) & (2) of the Evidence Act 1975 (NRCD 323). “……except as otherwise provided by law, the burden of persuasion requires proof by a preponderance of probabilities.” Section 12(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.” The statutory requirement which should be satisfied before the relief will avail a party were stated in the case of ZABRAMA VRS. SEGBEDZI (1991)2GLR 221 at 246 as follows: “A person who makes averment or assertion, which is denied by his opponent, has a burden to establish that his averment or assertion is true. And if he does not discharge this burden unless he leads admissible and credible evidence from which the fact or facts he asserts can properly and safely be inferred. The nature of each averment or assertion determines the degree and nature of the burden”. During cross examination of the Defendant by the Plaintiff the following ensued : Q. Why did you not perform the marriage rites? A. I need to get money so I was looking for money. Plaintiff bye the Defendant the following ensuded Q. I don’t understand why you are demanding a share of the property? A. I helped you to acquire same so if you have divorced me I have to get my share Q. Do you know my father invited you on this issue of marriage rites? A. That is not so. From the cross examination above the Defendant was looking for money to perform the customary marriage rites but failed to do so. Again was confirm in the cross examination that the Plaintiff helped the Defendant on the cocoa farm they contracted during the pendency of the marriage. Defendant corroborated Plaintiff assertion that he did not perform the marriage rites but rather sent a customary drink to the family to indicate that he is cohabiting with the Plaintiff. PW1 also corroborated Plaintiff assertions that the Defendant failed to perform the customary marriage and was invited by the Plaintiff’s family at the North to perform same but abandoned the Plaintiff at the north and never perform the marriage rites. In YAOTEY V QUAYE (1961) 1 GLR 573-584 it was stated that: “the question whether the relationship between a man and a woman is one of marriage or of concubinage is a question of law to be determined from the facts and circumstances of the relationship;” The essentials of a valid customary marriage are: (a) Agreement by the parties to live together as man and wife; (b) Consent of the families of the man and the woman to the marriage. Such consent may be implied from the conduct, e.g. acknowledging the parties as man and wife, or accepting drink from the man or his family; (c) Consummation of the marriage, i.e. the parties living together openly as man and wife. Also in ESSILFE V QUARCOO [1992] 2 GLR 180 by Lutterodt J (as she then was) it was held: Under our customary law there are two forms of valid marriages: Firstly the ordinary case when a man sought the hand of a woman from the family and with their consent performed customary ceremonies of payment of drinks, customary fees and dowry and Secondly, where although the customary marital rites had not been performed, the parties had consented to live in the eyes of the world as man and wife and their families had consented that they should do so and the parties actually lived as man and wife in the eye of the world as man and wife”. I find as a fact that the Defendant and the Plaintiff both gave their consent and decided to cohabite as man and wife for eleven (11) years with four issues. According to the Plaintiff she and the family always demanded from the Defendant to perform the customary marriage rites at the North but has refused to oblige to it. In the instant case the Defendant adduced that when the Plaintiff deserted the matrimonial home he has gone in for another woman and gotten married to. Plaintiff told the court that Defendant is just interested in having children with her and because of that she also deserted the matrimonial home due to continuous assault and beatings. She said that she has realized that it is never in the Defendant’s picture to perform the marriage rites after so many years and upon several invitation from her family and that of Grumahene palace and CHRAJ but only interest of their cohabitation. Plaintiff told the court that she does not understand why Defendant has failed to perform the rites after long years of staying together as man and wife of which both families are aware of their being together with four children. She adduced that the court grant her the custody of the children. The law as enunciated in the case of AFRIFA V CLASS-PETER [1975] 1GLR 366-369 in that holding at p.357 of the report the Court of Appeal stated thus”…… a necessary inference of marriage would arise: "Where a man has obtained the consent of a girl's family, and has completed the marriage by making the token gift” ….. In ASUMAH V. KHAIR (1959) G. L. R. 353, C. A.; and RE SACKITEY'S CAVEAT (1962) 1 G. L. R. 180 it was held thus “where a man desires to marry, he applies to the woman’s family for consent, taking to them certain customary gifts which vary according to his means. If the family gives their consent by accepting the gifts that concludes a marriage valid in customary law”. The Plaintiff and Defendant evidence adduced during trial proved that both families were aware of the two living together as a man and wife and both consented to live as marriage couple. I therefore entered judgement in favour of the Plaintiff and make the following orders: a) That Defendant shall pay a compensation of GHc20,000.00 to the Plaintiff. b) That custody of the four (4) children is granted to the Plaintiff and access is given to the Defendant when the children are on vacation and he should return them to the Plaintiff a week to the reopen of the school. c) The Defendant is to provide necessaries such as education i.e. paying of school fees, shelter, and health d) That the Defendant should maintain the four (4) children at GHc1,000.00 per month starting from April 2023 e) That the Defendant to pay maintenance arrears of GHc2,400.00 for the past eight (8) months he failed to maintain the children. f) That 1/3 share of the abunu cocoa farm the Plaintiff assisted the Defendant to cultivate situate at Mahame stool land be given to the plaintiff A costs of GHc800.00 awarded against the Defendant. …………………………………….. HW MAGDALENE THOMPSON DISTRICT MAGISTRATE 9