Appiah Vrs Owusu [2023] GHADC 247 (6 July 2023)

IN THE DISTRICT COURT HELD AT SEFWI JUABOSO ON THURSDAY, THE 6th DAY OF JULY, 2023 BEFORE HIS WORSHIP SAMUEL ENTEE JNR ESQ. THE MAGISTRATE SUIT. NO.:A11/40/23 Plaintiff Present Defendant Present JANET APPIAH VS KWASI OWUSU JUDGEMENT The plaintiff is claiming against the defendant for a half share of 2 separate cocoa farms at Mameya near Kwawkrom, a half share of 2 motorcycles and half share of 4 rooms and a chamber and hall house at Sefwi Boinzan. The plaintiff is further claiming against the defendant for a refund of GH₵1,800.00 being a loan defendant asked her to obtain to send their daughter to school and an order for maintenance of their 3 children. The plaintiff’s case is that she and the defendant were divorced but they jointly acquired property during the subsistence of the marriage and she wanted a half share of the properties together with other reliefs. The plaintiff said they acquired 2 cocoa farms at Mameya and one cocoa farm at Boinzan. She also said they built a two room house and later sold one of their cocoa farms at Mameya to galamsey operators and used part of the purchase money to build a chamber and hall and 2 single rooms. So the house consisted of a chamber and hall and four single rooms. The plaintiff further said they bought a motorcycle for their first child Foster Owusu Amoako to use for commercial purpose to save money to further his education after he completed S. H. S, but the defendant rather used the motorcycle to go to farm. That 1 | P a g e later there was an outstanding balance of GH₵6000.00 which the galamsey operators paid and they used part of the money and bought another motorcycle for Foster for commercial purpose, but after using it for some time the defendant again took the motorcycle from him. The plaintiff again said their 2 other children got admission to senior high school but she and the defendant had no money and defendant asked her to secure a loan to enable them take their 2 children to school and she secured GH₵1,800.00 which they used for the admission of their daughter Sabina Owusu at Juaboso S. H. S, but the loan was not substantial so their son Samuel Owusu, could not go to the SHS at Bibiani where he got admission. However, the defendant had failed to refund the GH₵1,800.00 to her and was not taking care of their 3 children 2 of whom, that is, Foster and Samuel, were idling at home so she was claiming as per her writ of summons. In his defence the defendant said at the time he married the plaintiff he had already cultivated one cocoa farm at Gyamfiano near KwawKrom, but they cultivated the farm at Mameya. He again said to the court that it was his cocoa farm at Gyamfiano which galamseyers entered and mined the land and paid compensation of GH₵ 25,000 to him. That they already had 2 rooms and used part of the money to build additional two rooms and chamber and a hall as well as a kitchen. The defendant said further that it was left with GH₵8,000.00 and he used it to buy one motorcycle which he gave to their son, Foster Owusu, to use for commercial purposes but refused to make sales to him so he took back the motorcycle. According to the defendant he had an accident with the Motorcycle when he was taking it to the farm and so he parked it. But their last child Kwaku (Samuel Owusu) removed parts from the motorcycle so he gave it to his eldest child, Yaw Fosu, who is not a child of the plaintiff, to repair it for him, but he had not bought 2 motorcycles. The defendant again said concerning the second cocoa farm when they dissolved the marriage, he gave a portion of the farm to the plaintiff but he rejected it. So he wanted the court to order for the sharing of the cocoa farm. The defendant said he asked the 2 | P a g e plaintiff to secure the loan to cater for the items Sabina would need at school, and expected to use proceeds from harvesting of cocoa to pay off the loan. But anytime he harvested the cocoa and extracted the beans his 2 sons with plaintiff, Foster and Samuel would take away the cocoa beans sold them and pocketed the proceeds that was why he had not paid off the loan. He again said Foster was 24 years old, Sabina was 22 years old and Samuel was 20 years old, but apart from Sabina who was in school, he did not known where his 2 sons with plaintiff were. And that he was not taking care of his 2 sons because they were not on talking terms with him. The issues for determination are: 1. Whether or not the plaintiff and defendant jointly cultivated 3 cocoa farms 2. Whether or not the plaintiff contributed to the acquisition of the additional 2 single rooms and the chamber and hall 3. Whether or not the plaintiff and defendant jointly acquired 2 motorcycles 4. Whether or not the defendant is liable to refund the GH₵ 1,800 loan he asked plaintiff to contract to cater for their daughter’s school admission to the plaintiff 5. Whether or not the defendant is liable to pay maintenance for the upkeep of his 3 children with the plaintiff. 6. Whether or not the plaintiff is entitled to her claim ISSUE 1: whether or not the plaintiff and defendant jointly cultivated 3 cocoa farms On this issue the plaintiff said she and defendant cultivated 2 cocoa farms at Mameya and one cocoa farm at Boinzan when they married. The plaintiff said the defendant gave her a portion of one of the cocoa farms to manage and sold the other cocoa farm at Mameya to galamsey operators. So it was left with one cocoa farm at Mameya and 3 | P a g e one cocoa farm at Boinzan. The following transpired during cross examination of plaintiff by defendant: Question: We you the one who cultivated the cocoa farm you claimed we sold Answer: I cultivated it with you Question: What is the size or acres of the cocoa farm you said we sold? Answer: It is not up to one rope but it was near a stream that was why the galamsey operators bought it. Question: Have you seen the other 2 cocoa farms Answer: Yes, I cultivated the cocoa farms with you. Question: At the time I married you I had already cultivated the cocoa farm I sold to the galamsey operators, I put it to you. Answer: I cultivated all the 3 cocoa farms with you. At the time we married you had no cocoa farm. Question: The cocoa farm I gave a portion to you was the only cocoa farm that I made with you, I put it to you. Answer: It is not true. From the cross-examination above, although the defendant said he made the cocoa farm he sold before he married the plaintiff, when the plaintiff maintained and insisted that she made it with him, as at the time they married, the defendant had no cocoa farm, the onus of proof shifted to the defendant to call a witness or two to corroborate his version of the two narratives. Because if defendant had already cultivated the cocoa farm before he married the plaintiff what prevented him from calling those he shared boundaries with to testify to his version when the plaintiff disputed it. But he failed to do so and therefore failed to call available evidence to support his assertion. I therefore find that the plaintiff made the cocoa farm he sold with the defendant. 4 | P a g e The defendant himself also admitted that he made the cocoa farm he gave a portion to plaintiff with the plaintiff, so it is left with the cocoa farm at Boinzan, that is, the third cocoa farm. The defendant did not say in his evidence that he had a cocoa farm in Boinzan. What he said was that he had already cultivated one cocoa farm at Gyamfiano near Kwawkrom before he married plaintiff and that the other cocoa farm was at Mameya which he cultivated with plaintiff. But during cross-examination of plaintiff, apart from the cocoa farm they sold, the defendant asked her whether she had been to the other 2 cocoa farms before, and plaintiff responded in the affirmative, and added that she cultivated the cocoa farms with him. When defendant put it to her that at the time he married her he had already cultivated the cocoa farm he sold to the galamsey operators, the plaintiff responded that she made all the 3 cocoa farms with him because when they married the defendant had no cocoa farm. The court is therefore at a loss as to why the defendant did not tell the court whether he had three cocoa farms or not, and whether the third cocoa farm was at Boinzan or not, when the plaintiff made it clear to the court that they cultivated 3 cocoa farms one of which had been sold so it was left with 2 cocoa farms one at Mameya and the other at Boinzan. Since the defendant failed to dispute that their third cocoa farm was at Boinzan the court presumes that the parties cultivated 3 cocoa farms one of which was located at Boinzan. Because failure to dispute or deny a material fact in evidence by a party amounts to admission of that fact, and there is no need for the party to call further evidence to support it. (FORI V. AYIREBI (1966) GLR 627, SC) cited. Accordingly, I find that the parties cultivated 3 cocoa farms. ISSUE 2: Whether or not the plaintiff contributed to the acquisition of the additional 2 rooms and the chamber and hall in the house. According to plaintiff they sold one of their cocoa farms and used the money to build the additional 2 rooms and the chamber and hall to their original 2 room house. But 5 | P a g e the defendant said he cultivated the said cocoa farm before he married the plaintiff and he sold the cocoa farm and used the money to build the additional two rooms and the chamber and hall so the plaintiff did not contribute to it. But when the plaintiff put it to the defendant that apart from the 2 rooms they initially built, they built the additional 2 rooms to lintel level before the galamsey operators paid for the cocoa farm they bought, the defendant responded that they did not reach lentil level at that time. This response by the defendant showed that they started building the two additional rooms whether to lintel level or below lintel level before they got the money from the sale of their cocoa farm and completed the 2 additional rooms and built the chamber and hall too. Again the defendant could not prove that he cultivated the cocoa farm before he married the plaintiff as the court had found that the parties cultivated the said cocoa in addition to the other 2 cocoa farms. Accordingly, since the parties jointly cultivated the cocoa farm and later sold it and used the money realised from the sale to complete the extension they had earlier started to make to their original 2 room house, I find that the plaintiff contributed to the acquisition of the additional 2 rooms and the chamber and hall in the house. ISSUE 3: Whether or not the plaintiff and defendant jointly acquired 3 motorcycle On this issue the plaintiff said she and the defendant initially bought a motorcycle for their son, Foster, but the defendant used it personally to go to farm so they later bought another motorcycle for Foster for commercial purpose but defendant later took it away from foster. The defendant did not ask any question about the motorcycles during the cross examination of the plaintiff. But in his evidence-in-chief the defendant said he bought only one motorcycle which was even on repairs. However, when the plaintiff put it to him that the motorcycles were two and not one, the defendant replied in the affirmative and explained that one got spoiled and he gave it to his son, Kojo Gyeni, and the other one he gave it to his son Yaw Fosu, to repair it. 6 | P a g e From the defendant’s response above it is clear to the court that the parties acquired the two motorcycles. So the defendant’s evidence that he bought only one motorcycle could not be correct. According to the plaintiff after they bought the first motorcycle they later bought the second one with part of the money they obtained from the sale of their cocoa farm. This evidence of the plaintiff was not disputed by the defendant and he even confirmed it in his evidence-in-chief. On the evidence, I find that the parties jointly acquired 2 motorcycles. ISSUE 4: Whether or not the defendant is liable to refund the GH₵ 1,800 loan he asked plaintiff to contract to cater for their daughter’s school admission to the plaintiff. On this issue the plaintiff said defendant asked her to look for a loan to enable them to send their daughter Sabina Owusu, to school. So she secured the loan and used it for that purpose, but the defendant had refused to pay back the loan for the past 3 years. The defendant acknowledged that he asked plaintiff to seek for the loan but his failure to pay back was not deliberate and it was not up to 3 years. According to the defendant he wanted to pay off the loan with proceeds from their cocoa farm but the plaintiff and their 2 sons, Foster and Samuel had been selling the cocoa beans and pocketing the proceeds. The plaintiff denied this and explained that she sold the cocoa beans and used the money to pay for Sabina’s other school expenses. In other to prove that it had not been 3 years since he failed to pay the loan back, the defendant tendered a document from the Department of Social Welfare in evidence as Exhibit 1. The document was an agreement dated 15th March, 2021 and executed between the parties herein before the District Director of Social Welfare. It was stated in Exhibit 1 that Mr Akwasi Owusu promised to pay back the loan of GH₵1,000.00 that his wife (Janet Appiah) borrowed to pay for their child’s admission at Juaboso Senior High School. 7 | P a g e The marriage between the parties had not been dissolved as at the date of 15th March, 2021. So if the defendant herein signed on 15th March, 2021 at the Department of Social Welfare that he would pay the loan his wife took for their child’s school admission then it is the view of the court that it would be unfair and unjust for him to give excuses to resile from the agreement. Although the loan amount was GH₵1,000.00 as stated in Exhibit 1, the court is of the view that interest has accumulated on it to make it GH₵1,800.00 and the defendant himself did not dispute the figure of GH₵1,800.00 when it was clearly stated in the Writ of Summons and in the evidence of the plaintiff. So it is true that as the defendant said it was not up to 3 years since he failed to pay the loan because from 15th March, 2021 when he signed the agreement up to today is not yet 3 years, but the court is of the view that he cannot run from the agreement, Exhibit 1 that he executed. On the evidence therefore, I find that the defendant is liable to refund or pay back the GH₵ 1,800.00 to the plaintiff. ISSUE 5: Whether or not the defendant is liable to pay maintenance for the upkeep of his 3 children with the plaintiff. The plaintiff said he had three children with the defendant but the defendant has not been taking care of the children so the court should order defendant to cater for them especially their daughter who was in SHS form 3. According to the defendant his 2 sons with the plaintiff were not on talking terms with him that was why he had not been taking care of them. Moreover, they were of age as Foster was 24 years old, Sabina was 22 years old and Samuel was 20 years old and apart from Sabina who was in school he did not know where Foster and Samuel were. 8 | P a g e Section 47 of the children’s Act, 1998 (Act 560) provides that “A parent or any other person who is legally liable to maintain a child or contribute towards the maintenance of the child is under a duty to supply the necessaries of health, life, education and reasonable shelter for the child.” So parents are legally liable to take care of their children and therefore under a duty to provide them with necessaries of life, health, shelter and education. But section 1 of Act 560 defines a child as a person who is below the age of 18 years. Accordingly, section 53(1) of Act 560 provides that “A maintenance order issued by a family tribunal should expire when the child attains the age of 18 years.” In this case therefore since Foster Owusu and Samuel Owusu are all above the age of 18 years the court has no jurisdiction to make a maintenance order against the defendant for the upkeep of his 2 sons. However, the case of Sabina Owusu is different because section 54 (1) of Act 560 provides that “Despite of section 53, a family tribunal may continue a maintenance order after a child has attained eighteen (18) years if the child is engaged in a course of continuing education or training after age”. Therefore, despite the fact that Sabina Owusu is 22 years old, since she is still in school the defendant is legally liable to maintain her. But the defendant is not legally liable to maintain his 2 sons, Foster Owusu, 24 years old and Samuel Owusu, 20 years old, since they are neither in school continuing their education nor are they undergoing any training learning a trade as apprentices. On the evidence therefore, I find that the defendant is liable to pay maintenance to plaintiff for the upkeep of only his daughter, Sabina Owusu. ISSUE 6: Whether or not the plaintiff is entitled to her claim 9 | P a g e The court has found that the parties jointly acquired the house, motorcycles, and cocoa farms during the subsistence of their marriage. The court has also found that the defendant is also liable to pay the loan amount of GH₵ 1,800.00. But concerning the maintenance the court has found that the defendant is liable to maintain only Sabina Owusu out of his 3 children with the plaintiff. The plaintiff further asked the court for a share of a spraying machine. Which was not part of her reliefs, and she did not give any evidence about how they acquired the spraying machine. The defendant did not also ask her any question about the spraying machine. But in his evidence-in-chief the defendant said they had a spraying machine which got spoilt and the plaintiff repaired it; however, when he later asked the plaintiff to let him use it to spray the cocoa farm the plaintiff refused. The evidence of the defendant implied that the spraying machine was with the plaintiff. So if the plaintiff wanted the spraying machine to be shared the court is of the view that it will be fair and just to let the parties share it. The District Court Rules, 2009 (C. I 59) provides that “The plaintiff may obtain any equitable relief which the fact stated and proved in the suit entitles that plaintiff even if that relief has not been specifically asked for”. On all the evidence before the court therefore, and on the preponderance of probabilities, I find that the plaintiff is entitle to her claim in part. Accordingly, judgement is hereby entered for the plaintiff on her claim in part. Consequently, it is hereby ordered that: The plaintiff is entitled to 2 single rooms leaving one single room and the chamber and hall for the plaintiff It is hereby further ordered that the plaintiff is entitled to half of each of the 2 cocoa farms, one at Mameya and one at Boinzan which are left, as the parties had already sold one of the cocoa farms. In the alternative each party is entitled to one cocoa farm. It is hereby further ordered that the plaintiff is entitled to one of the 2 motorcycles. 10 | P a g e It is hereby further ordered that the plaintiff is entitled to half of the spraying machine. Since they cannot physically share it, they should ascertain the market value and one party should pay half of the value to the other, that is, buy out the other party and retain the spraying machine. The defendant is hereby ordered to pay GH₵ 1,800 being the loan amount as at now to the plaintiff. The defendant is hereby ordered to GH₵450 monthly to the plaintiff as maintenance for the upkeep of Sabina Owusu with effect from 1st February, 2023. When the writ of summons was issued. The defendant is further ordered to pay the educational expenses of Sabina Owusu as well as her medical expenses. The plaintiff’s claim for an order to defendant to pay the maintenance of their other 2 children, Foster Owusu and Samuel Owusu is however dismissed. Costs of GH₵ 2, 000.00 is hereby awarded against the defendant in favour of the plaintiff. SGD::: SAMUEL ENTEE JNR ESQ THE DISTRCT MAGISTRATE 11 | P a g e