Tandoh Vrs Koomson [2023] GHADC 380 (5 April 2023)

EMELIA ERICA AMA TANDOH …… PETITIONER VRS: PHILIP KOJO KOOMSON………. RESPONDENT JUDGEMENT DELIVERED BY: HIS WORSHIP LAWRENCE BUENOR BUER DISTRICT COURT ENCHI 5TH APRIL, 2023 IN THE DISTRICT COURT HELD AT ENCHI ON THURSDAY THE 5TH DAY OF APRIL, 2023 BEFORE HIS WORSHIP LAWRENCE BUENOR BUER - MAGISTRATE CASE NO. WR/DC/EN/A11/25/22 1. EMELIA ERICA AMA TANDOH …… PETITIONER 1. VRS: 2. PHILIP KOJO KOOMSON…. .…RESPONDENT JUDGEMENT NO REPRESENTATION FOR THE PETITIONER NO REPRESENTATION FOR THE RESPONDENT Per her Writ of summons filed at the registry of this Honorable court on the 1st day of July 2022 the Petitioner in this case, Madam Emelia Ama Tandoh seek for the following reliefs against the Respondent herein: i. An order directed at the Respondent /Defendant to release to Petitioner/Plaintiff documents covering the 4 bedroom house the Petitioner is currently occupying as promised during the customary Divorce ceremony. ii. An Order directed at the Respondent/Defendant to complete payment of the gifted Honda city saloon car to Petitioner as promised during the Divorce ceremony. iii. An Order to compel the Respondent to pay in the same denomination an amount of £750 and $500 respectively to Petitioner being financial assistance Petitioner rendered the Respondent during the pendency of their marriage. iv. An order for Respondent to pay alimony of GH¢10,000.00 to the Petitioner. v. Costs against the Respondent. The Respondent pleaded not liable to the aforementioned claim of the Petitioner and in the circumstances counter-claimed as follows: (a) A declaration that the Honder City Salon car with registration Number GN5845-13 IS jointly owned by the Ministry of Health and the Defendant /Respondent. (b) An Order directed at the Petitioner to immediately release the car in issue with the two (2) ignition keys in good condition to the Defendant/Respondent. An order directed at the Plaintiff/Petitioner to pay back to Defendant/Respondent the following sums of money: i. GH¢4,600.00 being financial assistances Respondent gave to the Petitioner to boost her rice business. ii. GH¢2,160.00 being store rent Respondent paid on Petitioner’s behalf for 3 years to run her rice business. iii. GH¢200.00 being money in Respondents GCB Bank Account, Enchi Branch No. 4071180000319 the Petitioner is using. iv. Part of the proceeds from the rice business and any further other orders as this court may seem just. Petitioner, in an equal measure, also denied every averment made by the Respondent both in his defense as well as in his counter claim. The Petitioner, in the instant case particularized the gravamen of her claims against the Respondent as follows: That the Petitioner is a teacher who lives and works at Enchi and was once married to the Respondent customary, a union which was celebrated on the 22nd day of December 2007 at Kramokrom near Enchi out of which they had one issue by name Angelo Kwaku Bernieh Koomson, aged 7 years. That due to some differences that characterized their marriage for the 14 years that it existed, the marriage broke down irretrievably and has since been dissolved at a joint ceremony attended by representatives of both families. That during the dissolution of the marriage, the respondent promised to perform the following for the Petitioner: I. To make a gift and made that gift of the 4 bedroom house which Petitioner was at that time occupying and still occupying including its documents permanently. II. To gift and made a gift to the Petitioner of one Honda City Saloon car which was by then already and still in the possession of the Petitioner. III. To gift an uncompleted single room self-contained apartment upon completion each to their son Angelo Kwaku Bernieh Koomson and another one to their “adopted” child Grace Otoo Koomson. IV. To pay alimony of GH¢10,000.00 to the Petitioner. V. To pay to the Petitioner in the same denomination an amount of £750 and $500 respectively being financial assistance Respondent took from Petitioner in the course of their marriage. VI. To continue to maintain the child between them. That Petitioners family members accepted all the aforementioned promises made by the Respondent despite the fact that for the alimony, the family was of the view that GH¢40,000 should be the appropriate figure but eventually accepted to be content with Respondents proposal of GH¢10,000.00 after a lengthy negotiation over it. That Respondent, since the dissolution of their marriage, has reneged on his own promises and is not willing to perform them to the letter, hence the instant action against the Respondent. Apart from admitting that they got married for 14 years and within that period they had a son by name Angelo Kwaku Bernieh Koomson aged 7 years, the Respondent denied the other Major averments of the Petitioner and in the process stated as follows: That at the ceremony that dissolved their marriage on 27/2/22 it was apparent that the Honda City Saloon Car with Registration Number, GR 5845-13 was not being jointly owned by the parties and that car has been and still is the property of the Ministry of Heath his employers. That when Respondent had roofed the work on some 2 apartments they were putting up in the course of their marriage, Petitioner hereby gave Respondent some moneys in foreign currency which were E750 and $500 as her contribution to enable the Respondent complete the project in good time for same to be used to accommodate Petitioner’s elder brother Mr. Richard Appiah Dankwa, his wife and family during Petitioner’s late father’s funeral at Kramokrom in November 2017. That around that same time that Petitioner gave these foreign currencies to the Respondent. Respondent also contracted a personal loan of GH¢30,000.00 from Amenfiman Rural Bank to augment whatever Petitioner also brought so as to complete the project in good time ahead of the funeral. That upon completion of the project and after the said funeral, Respondent on his own gave one of the 2 apartments to Petitioner to rent out for her personal gain owing to her earlier financial contribution made on to project, and pursuant to that Petitioner rented the facility out to some 2 Immigration officers at different times and in the process she had a whopping cash amount of GH¢4,800.00 from that rental business. That Respondent is therefore shocked to the marrow to realize that Petitioner is now “approbating and reprobating”, asserting, that he neither made a promise and or offer with Petitioner during the dissolution of the marriage saying “on offer or promise so rejected no longer exists” to be reneged on. That in conduction, Respondent herein counter- claims against the Petitioner as earlier on stated. After their respective pieces of evidence, the parties herein called in 2 witnesses each in support of their claims. Whereas the Petitioner produced Daniel Annor, a civil Engineer at GPHA Takoradi who is her brother as PW1: and Opanin Yaw Mensah a mason at Sefwi Humjibre at the same time the head of her family as PW2. The Respondent, on the other hand fetched Joseph Effuen Brentu, a craftsman of Enchi Begyeahaso and brother to the Respondent as DW1, as well as Solomon Armah a.k.a uncle Solo farmer of Sewum near Enchi and an uncle to Respondent as DW2. The combined effect of the testimonies of PW1 and PW2 was to the effect that the 2 of them corroborated the averments made by the Petitioner that during the dissolution of the marriage, Respondent was who made a promise to the Petitioner that he would give her the items the Petitioner has stated in her Writ of Summons. The 2 witnesses for the Respondent, said in unism that even though Petitioner’s family members present during the dissolution of the marriage were in support of Petitioner’s demand for the aforementioned items, Respondent rejected that offer and so the ceremony ended inconclusively without the parties agreeing on any specific package that Respondent should give to the Petitioner as a form of compensation for her toils and sacrifices in the 14 years old marriage. I must emphasize that the Respondent put in a number of exhibits during the case management conference and key among them are as follows: Exhibit one (1) Letter form the Respondent’s employers, Ministry of Health signed by its chief Director Mr. Kwabena Boadu Oku Afari dated 5 -9- 22 entitled “ Recovery of Debt” being outstanding amount of GH¢40,760.09 on the Honder City Saloon car issue as at September 2022. Exhibit Two (2) An Agreement from MOH with the Respondent informing him on the likely Tax element on the Honder City Saloon car if Parliament should one day decide not to waive it at all. Exhibited three (3) Respondents personal Statement of Account showing, among other things, the miscellaneous deduction that are made on his salary in issue in respect of the car which was given to him on hire purchase. Exhibit H and the rest were a litany of miscellaneous building materials that Respondent bought in the course of the marriage presumably for the building projects that he undertook. The petitioner on the other hand even though did not object to any of these exhibits except Exhibit “1” which she described as a self-induced document from the Respondent thereby making it as fake, Applicant could not produce any other counter exhibit to prove her assertion on this particulars issue. Petitioner’s failure to challenge the other pices of exhibits Respondent tendered in appears to be the admission of those exhibits as expounded in the case of Fori v Ayirebi (1966) GLR 627 SC, and Billa v Salifu (1971) 2 GLR 87. In Ababio v Akwasi III (1994-95) 2 GB R 774-778, the Supreme Court stated: “The general principle of law is that it is the duty of a Plaintiff to prove his case i.e., he must prove what he alleges. In other words, it is the party who raises in his pleadings an issue essential to the success of his case who assumes the burden of proving it. The burden only shifts to the defence to lead sufficient evidence to tip the scales in his favor when on a particulars issue the Plaintiff leads some evidence to prove his claim. If the Defendant succeeds in doing this, he wins, if not he loses on that particulars issue. See Bank of West Africa LTD v. ACKUM (1963) 1 GLR 176.” In Sarkodie v. F. K. A Company Ltd (2009) SCGLR 65, the Supreme Court held. The burden of producing evidence requires a party to produce sufficient evidence which on the totality of the evidence, Leads a reasonable mind to conclude that the existence of the fact was more probable than its non-existence.” In respect of the rules of evidence therefore, it is trite that the standard of proof of allegations or claims in any civil case is by preponderance of probabilities and the petitioner herein bears the burden of proof to provide sufficient evidence in proof of her claims in accordance with section 11(4) and 12 of the Evidence Act, 1975(NRCD 323). Thus, the burden of proving any particular averment is on the person who made the averment and it is when the claimant has established an assertion on the preponderance of probabilities that the burden shifts onto the other party to explain the matter, failing which an unfavorable ruling would be made against him. It is also significant to note that in the instant matter, the court is dealing, not only with the claims of the Petitioner but also the counter-claim of the Respondent as well and per the rules of evidence, the Respondent’s counter-claim is a separate and independent action and Respondent bears the burden of persuasion and of producing evidence in respect of those counter-claims. In Nii Odoi Asumang v William Charway (2014) 75 GMJ 108 @ 135, the Court of Appeal held: “It is trite law that a party who counter-claims becomes Plaintiff as far as that Counter-claim is concerned. The burden of persuasion shifts onto the defendant to establish that claim as if he was the Plaintiff.” See also: Nortey v African Institute of Journalism and Communication (2003-2014) 1 SCCLR 703, and Gregory v Tandoh Hanson (2010) SCGLR 971. The main issue raised in this Petition, given the evidence on record are as follows: (a) Whether or not the Petitioner is entitled to her claims as promised by the Respondent on the day of the dissolution of their marriage. (b) Whether or not Respondent is entitled to his counter- claim as endorsed in his statement of defense. In finding a closure to the first issue as to whether or not the Petitioner is entitled to her claims, we find that her claims are hinged on her fair and equitable share of the property acquired in the marriage by the parties. Article 22(3) of the Constitution 1992 interprets marital property thus “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 clause 3 of Article 22(c) of the Constitution seeks to imply is that in Ghana, parties in marriage should have joint access to property acquired during the marriage which is presumed to be the self-acquired property of the couple and on other mandate the equitable sharing of the property between the parties upon the dissolution of the marriage. In Mensah v. Mensah (1989-90) SCGLR 350, it was held that upon dissolution of marriage, the parties become joint owners of the matrimonial property and the ordinary rules of contract have no place in the context of marriage. Upon the strength of Article 22(3) supra, the marital property in issue here are, the 4 bedroom apartment situate at Enchi in addition to one (1) Honda City Saloon car with Registration Number GN 5845-13 as described and agreed upon by the parties herein being the promise the Respondent made to gift to the Petitioner at the dissolution of their marriage. We find that when the 14 years old marriage between the parties got dissolved on 27/2/22, it was agreed upon that the Respondent should give an equitable share of the property acquired in the marriage to the Petitioner and Pursuant to that the Respondent made an offer of the 4 bedroom apartment in issue as well as the car as described in this matter both of which were already in the custody of the Petitioner at that time. We find further that at that same dissolution ceremony, the Respondent made further offers that he would pay an alimony of GH¢10,000.00 to the Petitioner instead of the GH¢40,000.00 being demanded by the Petitioner and her family and also offered to refund in the same denomination an amount of £750; and $500.00 respectively being debt in terms of financial assistance Petitioner claimed Respondent owed her in addition to another promise of handing over their uncompleted single room apartment upon its completion to their son Angelo Kwaku Bernieh Koomson and another one to their adopted child by name Trace Otoo Koomson and finally promised also to continue to maintain the only child between them. We find that even though Respondent appeared to have the above averments, Respondent’s position is that once those offers were rejected in part by the Petitioner and her family the court should not hold him responsible for those promises he made. In Hyde v Wrench (1840)3 Beav 334 it was held thus: “Generally, an offer may be terminated by a rejection or counter-offer which has been communicated to the offeror, the communication to that offeror of an outright rejection or counter- offer terminates the power of acceptance and the offeree cannot therefore accept the offer” Chitty on Contracts 28th Ed. (1999) vol.1 para 2-007 at p. 93 states that: “A communication by which a party is invited to make an offer is commonly called an invitation to treat. It is distinguishable from an offer primarily on the ground that it is not made with the intention that it is to become binding as soon as the person to whom it is addressed simply communicate his assent to its terms. In NTHC Ltd v Antwi (2009) SCGLR 117 at 125, it was held per Date- Bah JSC that: Basically, an offer is an indication in words or by conduct by an offeror that he or she is prepared to be bound by a contract in the terms expressed in the offer, if the offered communicates to the offeror his or her acceptance of those terms. According, the offer has to be definite and final and must leave significant terms open for further negotiation. By the words “significant terms,” we here mean terms that are essential to the bargain contemplated. It is important to emphasize the proposition that the mere acceptance of an offer is sufficient to turn the offer into a contract, if there is consideration for it, together with an intention to create legal relations”. Hyde v: Wrench (supra) NTHC LTD v. Antwi (Supra) it appear to be necessary in this case as spelt out in the case of Merit v Merit (1970) 1WLR 1211: (1970) 2 All ER 760 were it was held: “The relationship of a husband and wife does not automatically preclude the formation of a binding contract between them. In some cases the context in which the agreement is made may indicate a clear intention to create legal relations. Thus the presumption that legal relations are not intended between spouses does not apply where the spouses are not living together in amity, i.e where they are divorced, separated or about to be separated, This is so especially if the agreement was designed to deal with marriage break-ups.” Thus upon the authority of Merrit v. Merrit (supra), Respondent cannot hide under any presumption to say once his offers made to Petitioner which were rejected in a large measure, same should not be held as promises he made and for which he should be held responsible. Having said this it is important to single out the car in issue for a discussion. The evidence shows that at the time of the dissolution of the marriage the car numbered GN. 5845-13 was not the entire property of the Respondent but rather a jointly acquired entity between the Respondent and his employers, the Ministry of Health, we find that Respondent had this car on a hire purchase scheme from his employers at a consideration of GH¢47,771.64 in December 2012 and Exhibit one (1) tendered in by the Respondent shows that as of the time of the dissolution of the marriage, Respondent was still Servicing the loan and even during the pendency of this matter as of September 2022 he was still in debited to the Ministry of Health in the sum of GH¢40,760.09 having paid only a sum of GH¢7,011.55 to the Ministry. The law is that a person cannot alienate an interest in property which he has not gotten any absolute interest in or title to it is therefore a nullity when one purports to grant an interest in a property he has no absolute title to. What this therefore means when applied to this car issue is that Respondent was incompetent to have made that offer of a gift to the Petitioner at the time he did. The often quoted principle “NEMO DAT QUAD NON HABET” (ie no one can give what he has not) comes into focus here. On the second issue as weather or not the Respondent is entitled to this counter-claim, we find that his counter-claim specified and particularized at claim “C” concerning a claim for a refund of cost GH¢4,600” cost GH¢2,160.00” cost GH¢200.00 and an unspecified amount from a joint rice business all amount to an ordinary incidents of marriage where there is a give and take from each of the parties without any intention to create any legal contract between them, In arriving at this, I take inspiration from the case of Balfour v Balfour (1919) 2K. B 571, when the eminent jurist, Lord Atkin J delivered as follows: “The common law does not regulate the form of agreements between spouses. Their promises are not sealed with seals and sealing wax. The consideration that really obtains for them is that natural love and affection which counts for so little in these old counts”. Granted without admitting that Respondent indeed spent all these moneys on the Petitioner in the course of their marriage, it appears to me that those acts of the Respondent flow out from the heart of a good and lovely husband which cannot be brought under any contract situation and for which Petitioner should be asked to refund same to the Respondent. In conclusion, we hold that on the totality of the evidence on record and on the strength of the principles enunciated in the legal authorities referred to in this judgment and on the preponderance of probabilities, reference section 12(1) of the Evidence Act, 1975 (NRCD 523), the Petitioners case, in a large measure, is more credible than that of the Respondent’s and so we hereby enter judgment in favour of the Petitioner for all the 7 reliefs she has stated in her Writ with the exception of the second one as follows: (1) That Respondent should, with immediate effect release to the Petitioner all the documents pertaining to the 4 bedroom house in issue which the Petitioner is currently occupying and which the Respondent gave to the Petitioner during the course of the dissolution of their marriage. (2) That Respondent is refund to the Petitioner in the same currency two tranches of money namely £750 and $500 being financial assistance the respondent collected from the Petitioner and for which the Respondent is said to have collected during the pendency of their marriage but failed to return same to the Petitioner. (3) That Respondent pays to the Petitioner an agreed alimony of GH¢10,000.00 which was agreed upon during the dissolution of the marriage. (4) That shall be a modest cost of GH¢1,000.00 against the Respondent for the Petitioner. (5) It is my judgment further that whilst we dismiss the counter claim of the Respondent in a large measure, we hereby order that the Honda City Saloon car with Registration Number CM 5845-13 which turned out to be a hire purchased by Respondent from his employers under a strive purchase scheme and currently in the joint name of the Respondent and his employers the Ministry of Health and for which Respondent has some debt on it to be paid to his employers be returned to the Respondent since he was incompetent to have made that car as a gift to the Petitioner knowing very well that he lacked the capacity in doing that at the time of the dissolution of the marriage. (6) We finally order that by this judgment the Respondent should hand over all the documents on the 4 bedroom house; the E750, the $ 500.00, the alimony of GH¢10,000.00 and the cost element of GH¢1,000.00 to the Registrar of this court for the Respondent to collect it and immediately after that the Petitioner should also return the car in issue together with its 2 ignition keys to the Respondent through the same Registrar of this court. PS: The parties herein after hearing the judgment have agreed that they should be given up to some 6 months to comply with the orders of the court. To 11 -10 - 23 ………... SIGNED……... HIS WORSHIP, LAWRENCE BUENOR BUER DISTRICT MAGISTRATE 5/04/2023 …………SIGNED………… NANA AGYEMANG EMMANUEL (PANNEL MEMBER)