Maamele Vrs Akoto [2023] GHADC 232 (19 June 2023)

IN THE DISTRICT COURT HELD AT SEFWI JUABOSO ON MONDAY THE 19TH DAY OF JUNE, 2023 BEFORE HIS WORSHIP SAMUEL ENTEE JNR. SUIT NO. A8/25/23 COMFORT MAAMELE VRS. BEN AKOTO Plaintiff Present: Defendant Present: JUDGMENT: The Plaintiff claims against the Defendant for an adequate and reasonable share of properties acquired during cohabitation as follows: a. 3-bedroom house situate at New Somanya. b. Abunu cocoa farm at Pinto. c. Abunu oil palm farm at New Somanya. d. Self-acquired cocoa farm at Kwasi Addokrom. The Plaintiff’s case is that the Defendant did the knocking for her hand in marriage but did not pay the dowry, and they cohabited for 9years and had one son who is 7years. According to Plaintiff they initially stayed in her late brother’s house till they acquired a plot of land and built their house and moved into it. However, just one month and two weeks after moving in, the Defendant packed her belongings out of the house that he had not performed the necessary customary rites for the marriage so she should go and live with her family till he performed the marriage rites. She therefore left the house. But she wanted her share of the house since she contributed to the acquisition of the house. 1 | P a g e The Plaintiff again said she and the Defendant were granted a land by one Kwabena at Apinto to cultivate cocoa on Abunu terms, and she helped in cultivating the cocoa so the court should order the Defendant to give her share to her. The Plaintiff further said the other cocoa farm they acquired was purchased from one Teacher Solomon at GH₵7000 According to her, she and Defendant worked to obtain GH₵3,500 which they initially paid to Teacher Solomon, and she later paid GH₵1,400 which was her personal money when Teacher Solomon needed money. So the court should share the cocoa farm they purchased and give her share to her. The Plaintiff additionally said one Nana J. J granted she and Defendant land to cultivate oil palm on Abunu terms after they paid GH₵400. The Plaintiff said her mother paid GH₵100 and she also paid GH₵100 and Defendant paid GH₵200 making the GH₵400 they paid to Nana J. J. That they subsequently cultivated the oil palm but after the Defendant sacked her from their house, he warned her not to enter the oil palm farm again, so she wanted the court to order for her share of the oil palm farm. The evidence of Plaintiff that she contributed substantially to the acquisition of the 4 properties was not denied by the Plaintiff. John Dodobi (Pw1) a government appointee of the Juaboso District Assembly, said he was of one of those who sat on a case involving sharing of property between the parties when the Plaintiff summoned the Defendant before the Yaw Gyimkrom palace, but they could not resolve the matter. The evidence of Pw1 showed that the parties attempted to share the properties they jointly acquired during the period of their relationship but it was not successful. In his defence the Defendant (Ben Akoto Anane) said he met the Plaintiff in 2014 and entered into a concubinage relationship with her and they had one child, King Sogloh. 2 | P a g e He said that he later acquired land from Nana J. J and cultivated oil palm on Abunu terms and also acquired land at Pinto to cultivate cocoa on Abunu terms from Opanin Pinto who the village was named after. That he later purchased a cocoa farm from Opanin Adjei and his son at GH₵7,100 and made initial down payment of GH₵3,850 and topped it up later with GH₵1,400. The Defendant admitted in cross-examination that, Plaintiff contributed the GH₵1,400. But he was waiting for Opanin Adjei to prepare the sale and purchase agreement from the court before he would pay the outstanding balance of GH₵1,850 as agreed between them. The Defendant again said he built the size of about 2 rooms on the compound of the Plaintiff’s family house and later acquired land and built a 3bedroom house on it. But he had shared the oil palm with Nana J. J and had sold his portion at GH₵8,000 which he had shared with the Plaintiff equally after deducting GH₵1,000 for the cost of the oil palm seedlings. So the Plaintiff got GH₵3,500 and he also got GH₵3,500. The Defendant added that he had not shared the cocoa he cultivated on Abunu terms with Opanin Pinto yet, but after sharing it with the landlord, he would give the Defendant’s share to her. The Defendant also said the cocoa farm he purchased from Opanin Adjei, he was waiting for Opanin Adjei to prepare the agreement after which he would pay the outstanding balance of GH₵1,850 and then give the Plaintiff’s share of the cocoa farm to her. Concerning the houses, the Defendant said he had built 2 rooms on Plaintiff’s land and built 3 rooms on land he acquired so the court should decide what to do with the houses. On the facts before the court, the parties had already shared the proceeds from the sale of their share of the oil palm farm. The plaintiff however, insisted that there was a balance of unknown amount to be paid in respect of the oil palm. Although the Defendant denied that there was any such balance he however agreed that if there was such a balance as the Plaintiff insisted, then when the balance is paid to him, he would share it with the 3 | P a g e Plaintiff. The Defendant also agreed to share their portion of the cocoa farm at Pinto with the Plaintiff after sharing the cocoa farm with the landlord, Opanin Pinto. The Defendant further agreed to give Plaintiff her share of the cocoa farm they purchased from Opanin Adjei after Opanin Adjei had prepared the sale and purchased agreement at the court and the balance of GH₵1,850 had been paid to Opanin Adjei. So the issues for determination are: 1. Whether or not the Plaintiff is entitled to a share of the 3bedroom house. 2. Whether or not the Plaintiff is entitled to her claim. On the first issue during the cross-examination of the Plaintiff by the Defendant, the following ensued: Question: I put it to you that I built the one room on your land or family land before I built the 3 rooms. Answer: It is not true, you requested for a space at the frontage of my family house to build a room to operate a drinking bar and when I consulted my brother, he said I should let you build the room and you built it. Question: So do you want us to share the 3 rooms and also share the one room which I said you should take and therefore I would not give you a share of the 3 rooms. Answer: Yes, we should share both. Question: I agree we should share both buildings because the one I built on your family land is about 3 rooms. Answer: Yes, I agree. From the cross-examination above, it is clear to the court that the parties wanted each building to be shared between them. But how should property acquired jointly by the parties during the subsistence of the concubinage be shared as the evidence clearly indicated to the court. 4 | P a g e In the case of Owusu V. Nyarko [1980] 1 GLR 428 the court held that “where the parties lived in concubinage the woman on separation was entitled to one-third share of farms she cultivated with the man.” According to the Defendant, the one room he built on Plaintiff’s family land was the size of about 2 rooms or even 3 rooms because there was a large veranda attached to the one room, but the Plaintiff said it was one room and a small veranda as they wanted to use it as a drinking spot. So the parties agreed that the building on Plaintiff’s family land comprises a room and a veranda. In addition to the 3 rooms the parties built on another location, the total number of rooms would be 4 rooms and a veranda. Applying the one-third principle in the Owusu v. Nyarko case cited above to the instant case, one-third of 4 and half rooms (for the purposes of this case the court presumes the veranda is equivalent to one half of a standard one room) will be one and half rooms. Accordingly, the Plaintiff is entitled to one half room which is equivalent to the one room and veranda the Defendant built on Plaintiff’s family house. Therefore, the Plaintiff is entitled to the building the Defendant built on her family house and the Defendant is entitled to the 3-room house. Accordingly, I find that the Plaintiff is not entitled to a share of the 3-bedroom house. On the second issue, the Defendant had agreed that if there was a balance and the balance was paid, in respect of the oil palm which the parties had sold and already shared the proceeds, he would give Plaintiff’s share in the balance to her. The court is however of the view that the GH₵3,500 the Plaintiff had already received in respect of the GH₵8,000 proceeds from the sale of their share of the oil palm was on the higher side. According to Defendant, he deducted GH₵1,000 to pay for the oil palm seedlings and shared the GH₵7,000 equally with the Plaintiff, but one-third of GH₵7,000 is GH₵2,333 so the Plaintiff should have received GH₵2,333 and not GH₵3,500. Therefore, if there is any balance paid by the buyer of the oil palm trees, 5 | P a g e it is the view of the court that the Plaintiff has no share in that balance. Again, after the parties share the cocoa farm with Opanin Pinto, the Plaintiff would be entitled to one-third portion of the share the parties would receive. Furthermore, the Defendant tendered a document in evidence as Exhibit 1. It is a handwritten document indicating that Henry Adjei (Land owner) had sold the land to Akoto Anane (Buyer). The land owner acknowledged receiving GH₵3,850 as part payment from the buyer being part of the purchase price of GH₵7,100. Madam Maamele, that is, the Plaintiff was present during the transaction which was executed on 19th January,2019. It was stated in exhibit 1 that Akoto had promised to pay the balance on 19th January, 2020 without fail. We are now in 2023 and today is 4th June, 2023. There is no statement anywhere in Exhibit 1 that the land owner would prepare another document in any court and present it to the Defendant before the Defendant would pay the balance. The evidence before the court showed that the parties had paid GH₵1,400 to the landlord apart from the GH₵3,850 captured in exhibit 1. So the outstanding balance is now GH₵ 1,850. During the cross-examination of the Defendant by the Plaintiff, the following transpired: Question: I suggest to you that we should pay off the debt and share the cocoa farm we purchased. Answer: If the land owner or landlord gives me the court document the balance would be stated and I would inform you so that we pay the balance and share the cocoa farm. Question: The GH₵1,400 you paid to the landlord, Opanin Adjei belongs to who. Answer: You provided or contributed that amount. 6 | P a g e Question: Are you saying if for about 20years the court document is not provided, you would not give my share of that cocoa farm to me whiles you are the only one harvesting and enjoying the proceeds. Answer: Due to this litigation, I have to make sure that everything is done properly. From the cross-examination above, it means that if for a long time the court document is not ready, the Defendant would be enjoying the proceeds from the cocoa farm. Meanwhile as earlier stated, there is nothing in exhibit 1 which suggested that the buyer should wait till the landowner presented him with a court agreement before he would pay the balance. The payment of the balance is even overdue as the agreement was that the Defendant should pay the balance by 19th January, 2020, One year after the execution of the sale and purchase agreement Exhibit 1 on 19th January, 2019. The cocoa farm is already in possession of the Defendant so he should not wait for the land owner to prepare the agreement. The Defendant himself could initiate the preparation of the agreement at the court registry if that is what the parties to the sale of the cocoa farm want. The court therefore agrees with the Plaintiff that each party should pay part of the outstanding balance of GH₵1,850 to the land owner, Opanin Adjei and then share the cocoa farm between them. Accordingly, based on the one-third principle in sharing property acquired during concubinage, the Plaintiff should pay GH₵600 out of the GH₵1,850 and the Defendant should pay GH₵1,250. Flowing from this therefore, the Plaintiff is entitled to one-third share of the cocoa farm the parties purchased from Opanin Adjei. On all the evidence before the court therefore, I find that the Plaintiff is entitled to her claim in part. Accordingly, judgement is hereby entered for the Plaintiff against the Defendant in part. Consequently, it is hereby ordered that the Plaintiff is entitled to one-third of the parties share of the cocoa farm they cultivated at Pinto or Abunu terms with Opanin Pinto. The 7 | P a g e Defendant is ordered to give Plaintiff’s share to her immediately after sharing the cocoa with Opanin Pinto. It is hereby further ordered that the Plaintiff is entitled to one-third of the cocoa farm the parties purchased at Kwasi Addokrom from Opanin Adjei. The Defendant is ordered to give the Plaintiff’s share to her forthwith, after the Plaintiff pays the GH₵600 to the Defendant. The Plaintiff’s claim for a share of the 3-room house is dismissed. However, the Plaintiff is entitled to the one room and the veranda on her family land. The Plaintiff’s claim for a share of the oil palm is dismissed as the parties had already sold the palm trees and shared the proceeds. The Plaintiff’s demand for a further share of the balance of money, if any to be paid by the buyer of the oil palm tree is also dismissed as she had already got more than her fair share of proceeds from the palm trees the parties sold. Due to the nature and circumstances of the case, there is no order as to costs. SGD: SAMUEL ENTEE JNR ESQ THE MAGISTRATE 8 | P a g e