OBUOBI VRS SARKODEE (G/WJ/DG/A11/15/2021) [2023] GHADC 1033 (11 October 2023)

IN THE DISTRICT COURT HELD AT WEIJA, ACCRA ON WEDNESDAY THE 11TH DAY OF OCTOBER, 2023 BEFORE HER WORSHIP RUBY NTIRI OPOKU (MRS), DISTRICT MAGISTRATE FLORENCE OBUOBI PLAINTIFF SUIT NO. G/WJ/DG/A11/15/2021 VRS YAW SARKODEE DEFENDANT PLAINTIFF IS PRESENT AND REPRESENTED BY DODZI DZIDULAH ESQ. DEFENDANT IS PRESENT AND REPRESENTED BY ABIGAIL ABENA OCKLING HOLDING KWAKU OSEI ASARE ESQ’S BRIEF. JUDGMENT The plaintiff filed a writ of summons in the registry of this court on 12th August 2021 for the following reliefs; 1. A declaration that as a joint owner of the house lying and situate at Anyaa, the plaintiff is entitled to use any vacant space in the compound as a kitchen, toilet and bath 2. An order permitting the plaintiff to construct a structure for the purpose of using same as kitchen, toilet and bath on the vacant space in the house lying and situate at Anyaa. 3. An order of perpetual injunction to restrain the defendant, his agents, servants, workmen, assigns and anyone claiming through him from interfering in anyway with the construction of the said kitchen, toilet and bath and the plaintiff’s use of the same. The defendant filed notice of entry of appearance on 25th August 2021 and followed it up with a statement of defence on 28th August 2021 wherein he counterclaimed as follows; a. Valuation of plaintiff’s interests in the disputed house b. Order of the court for a buy out of the plaintiff’s interests in favour of the defendant. The plaintiff filed a reply and defence to defendant’s counterclaim on 24th November 2021 and joined issues with the defendant. On 3rd November 2021, the Court referred parties to the Court Connected Alternative Dispute Resolution for an amicable settlement of this dispute however the feedback from the mediator indicated that parties were unable to reach settlement. The Court accordingly set down the action for trial. THE CASE OF THE PLAINTIFF The case of the plaintiff is that in the year 2002, her marriage to Daniel Amponsah was dissolved by the District Court, Osu in its judgment dated 25th February 2002. It is her further case that the honourable court declared a 7 bedroom house at Anyaa as the joint property of the plaintiff and the said Daniel Amponsah (the respondent therein and settled two bedrooms and a shop in the said house for her occupation. Daniel Amponsah subsequently transferred all his interests in the said house to the defendant who took possession of same and lived there. The plaintiff pleaded that she has rented out her two rooms to tenants and as a result of the fact that defendant and his family have taken over the only kitchen in the house, the subject matter of this dispute, her tenants have resorted to cooking in their rooms or in front of their rooms. She added that there is only one bathroom and toilet on her side of the property and as a result the occupant of the room without toilet and bath has had to share the toilet and bath with the other tenant or resort to the use of a public toilet and bathroom which creates a lot of inconvenience. The plaintiff further pleaded that although there is vacant space within the compound of the house, and in spite of her joint ownership of the said house, defendant has refused to allow her to construct a structure for use as a kitchen, toilet and bath. She prayed the court to grant her reliefs as endorsed on her writ of summons. In support of her claims, plaintiff tendered a copy of the judgment of His Worship Mr. G. N. A Donkor sitting at Osu District Court dated 25th February 2002 and photographs showing available space at the back of the house. Same were admitted without any objection and marked as Exhibits A and B series respectively. Plaintiff did not call any witness. THE DEFENDANT’S CASE IN ANSWER The defendant denied the averments of the plaintiff in his statement of defence and counterclaim and pleaded that he was not aware of any judgment that dissolved the marriage between the plaintiff and her late husband because plaintiff’s late husband, Daniel Kwadwo Amponsah Gyimah did not say anything about being married to the plaintiff at the time he transferred his interest in the house the subject matter of this dispute by a deed of conveyance dated 5th February 2001 to his late father Paul Akwasi Nimoh. He pleaded further that since the said acquisition he has been in possession of the said property as a beneficiary of his father’s estate. According to him, sometime in 2017, plaintiff came to the house with policemen and stated that she was lawfully entitled to two bedrooms and a shop on the compound and upon consultation with his lawyers, the interests of the plaintiff was acknowledged even though he was never served with the said judgment and did not know the exact orders made therein to date. Defendant pleaded that his family occupies four bedrooms, a living room, kitchen, toilet and bath and that plaintiff is not living in the house but only comes to take care of her shop during the day. He added that plaintiff has rented out her rooms, one of which has a toilet and bath and her tenants have not been denied access to the use of any place in the house. Defendant further pleaded that the house in dispute is dilapidated and needs renovation and so in the circumstances, it is best for the house to be valued for plaintiff’s interest to be purchased by the defendant since plaintiff has no use of her interest in the property other than renting it out even though plaintiff insists in her reply that she intends to move back into the house once the sanitary conditions is resolved. She claimed that she has no interest in disposing off her interests in the property. In support of his claims, defendant tendered in evidence an indenture, land certificate, conveyance of property and photographs of the property all filed on 23rd March 2022 and same were admitted without objection and marked as exhibits 1, 2, 3 and 4 respectively. Defendant did not call any witness. ISSUES FOR DETERMINATION The court set down the following issues for determination; 1. Whether or not the plaintiff is entitled to construct a structure on any vacant space in the compound of the house for her use as a kitchen, toilet and bath. 2. Whether or not the plaintiff can be compelled to dispose of her interests in the property the subject matter of this dispute. BURDEN OF PROOF The general principle is that in a civil case, the plaintiff has a burden to prove his case on a preponderance of probabilities as he must prove what he alleges. Pursuant to section 11(4) of NRCD 323, the burden of providing evidence requires a party to produce evidence that will lead a reasonable mind to conclude that the existence of a fact is more probable than its non-existence. It is however not enough to supply evidence in support of ones claims; a party has the burden to establish a requisite degree of belief in the mind of the Court as provided for by section 10 of NRCD 323. In Takoradi Flour Mills v Samir Faris [2005-2006] SCGLR 882 at 898, Ansah JSC held as follows; “In law, all issues of fact in dispute are proved by evidence. It is a fundamental principle in the law of evidence that he who asserts or claims an entitlement has the onus of proving that claim. According to the oft-cited case of Majolagbe v Larbi [1959] GLR 190, a party on whom the burden of proof lies proves an averment in his pleadings capable of proof in a positive way not by merely mounting the witness box and repeating it on oath but by producing corroborative evidence that must necessarily exist if his averment were to be true.” EVALUATION OF THE EVIDENCE The plaintiff has the burden to prove her claim to the required standard for judgment to be entered in her favour. Counsel for the plaintiff in his written address submits that as the joint owner of the house the subject matter of this dispute, plaintiff is entitled to construct a structure for use as a kitchen, toilet and bath on a vacant part of the property. Counsel submits further that the basis of plaintiff’s claim of joint ownership is Exhibit A. He referred the court to the relevant portion of Exhibit A as follows; “The defendant respondent and his lawyer on many occasion has absented themselves from court. By Court: The evidence of the plaintiff is overwhelming. Therefore in accordance with order 35 rule 3 of cap 4 schedule II, we enter judgment for plaintiff and order the house lying and situate at Anyaa and being referred to in the Applicant’s petition is the joint property of Florence Obuobi and Daniel Amponsah. On the basis of Article 23(3) of the 1992 constitution, we hereby make and order granting 2 bedroom and shop out of the said house to the applicant/petitioner madam Florence Obuobi.” (Emphasis is mine) According to learned Counsel for the plaintiff, from the above extract, the honourable court first declared the said property as joint property of the plaintiff herein and Daniel Amponsah and thereafter the honourable court granted possession of 2 rooms and a shop to the plaintiff. Counsel submits that the possession of the plaintiff of two rooms and one shop does not in any way derogate from her joint ownership of the said property. He argued forcefully that plaintiff’s interest in the said property is not limited to the said two rooms and one shop but also extends to cover the property around the house. Counsel submits further that the grant of possession of two rooms and one shop to the plaintiff herein by the honourable court in Exhibit A was for practical purposes to share the rooms and the shops in the said property between the plaintiff herein and the said Daniel Amponsah and it does not in any way limit plaintiff’s interests in the said property to only two rooms and one shop, the honourable court would have stated so clearly in Exhibit A. He concluded that plaintiff has equal interests with the defendant in the compound around the said property. EVALUATION OF THE EVIDENCE In my considered view, the questions that beg to be answered is what is the effect of a declaration by a court that property is jointly acquired by parties during the subsistence of a marriage? And is such a declaration an indication that parties have equal interests in the said property in all cases? In Dr. Gilbert Anyetei v Mrs. Sussana Anyetei, Civil Appeal No. J4/67/2021 dated 2 March 2023, the Supreme Court speaking through Pwamang JSC explained that the notion of automatic 50% entitlement of the wife in all cases needs to be dispelled. He proceeded to explain Article 22(3) of the 1992 Constitution as follows; “Under clause 3 of article 22 reproduced above, the framers of the Constitution chose to use the word “equal” in relation to access to property jointly acquired during the marriage but they used the word “equitably” in respect of distribution of property jointly acquired upon dissolution of the marriage. Where the text of the Constitution is plain and unambiguous like clause 3 of article 22 is, the principles of constitutional interpretation do not permit a judge to replace the language with her opinion of what she would have said if she was the one making the Constitution…So, simply put, what the Court said above in Mensah v Mensah (No.2) is that, in some circumstances, equitable distribution may end up resulting in 50-50 proportion but, in other circumstances, it would end up like 60-40 or some other proportion. Stated the other way round, 50-50 distribution in some circumstances may be equitable but in other circumstances, it may be inequitable. A distribution of property upon dissolution of marriage that is inequitable would violate the clear provisions of clause 3(b) of article 22. Therefore, the proportions of distribution shall be on a case by case basis. This plain provision of the article 22 of the Constitution which was clarified by the statement quoted from Mensah v Mensah (No.2)(supra) has nevertheless been subjected to unending litigation, largely because lawyers of some litigants (so far, mostly those for women) usually submit and urge our Courts to replace the word “equitably” used by the framers of the Constitution in clause 3(b) of article 22 with the word “equally”, which is not used by the text of the Constitution.” From the law cited supra, the fact that a property is declared as joint property of the parties does not automatically mean that parties have equal interests in the said property as submitted by learned counsel for the plaintiff. From Exhibit A, it is evident that the trial magistrate having considered the facts of the case therein and the evidence, held that the property the subject matter of the dispute was jointly acquired by the parties. This declaration so made, enabled the court to specifically share the property equitably between the parties therein in accordance with Article 22(3) of the 1992 Constitution even though Article 23(3) of the 1992 Constitution I believe was inadvertently cited on the face of Exhibit A. At paragraph 2 of plaintiff’s statement of claim filed on 12th August 2021, she averred that the honourable court declared that a seven-bedroom house located at Anyaa was the joint property of the plaintiff and the said Daniel Amponsah. From the face of Exhibit A, the learned trial magistrate stated plainly and unambiguously as follows; “…we hereby make and order granting 2 bedroom and the shop out of the said house to the Applicant / Petitioner, madam Florence Obuobi. (Emphasis is mine) I find from the evidence that “the said house” referred to by the trial magistrate is the seven bedroom house. Under cross examination, the plaintiff admitted that her interests in the property were indeed 2 bedrooms and a shop and she admitted further that defendant has not denied her the use and enjoyment of her interests. This information was obtained from the following exchanges; Q: Per your Exhibit A, do you agree that it is clearly stated that what you are entitled to is 2 bedroom and a shop? A: That is so Q: Since 2017, the defendants have not denied you the use and enjoyment in the said house A: That is so. Q: You claim that your interest in the said house is just two rooms and a shop is that not the case? A: That is correct Q: And at the entrance of the house is the shop A: That is so I find from the evidence that out of the seven-bedroom house, the trial magistrate settled two bedrooms and a shop on the plaintiff herein. Clearly, the intendment of the learned trial magistrate in Exhibit A was to share the property equitably between the parties and that necessarily was not to share the property equally or on a 50-50 proportion between the parties as plaintiff and her counsel wants this court to believe. To my mind, if the plaintiff herein was dissatisfied with Exhibit A regarding the sharing of the property the subject matter of this dispute by the trial magistrate entered as far back as 25th February 2002, her remedy laid in an appeal to the High Court. Instead what did she do? She went to sleep and executed her judgment in 2017, 15 long years after the said judgment was entered. She promptly went back to sleep only to wake up from her slumber somewhat belatedly in August 2021, 19 long years after the entry of the said judgment only to run to this court ostensibly in the words of the defendant “…to get this court to extend her interests beyond what was granted in the judgment as far back as 25th February 2002.” I do not think that the plaintiff has discharged the burden of proving her case on the balance of probabilities and her claim undoubtedly fails and same is dismissed. I now turn my attention to the counterclaim of the defendant. In Adjetey Agbosu & 5 Ors v Ebenezer Nikoi Kotey & 2 Ors Civil Appeal No. 24/2002 dated 2004-05-05, Brobbey JSC as he then was held as follows; “A litigant who is a defendant in a civil case does not need to prove anything; the plaintiff who took the defendant to court has to prove what he claims he is entitled to from the defendant. At the same time, if the court has to make a determination of a fact or of an issue, and that determination depends on evaluation of facts and evidence, the defendant must realize that the determination cannot be made on nothing. If the defendant desires the determination to be made in his favour, then he has the duty to help his own cause or case by adducing before the court such facts or evidence that will induce the determination to be made in his favour. The logical sequel to this is that if he leads no such facts or evidence, the court will be left with no choice but to evaluate the entire case on the basis of the evidence before the court, which may turn out to be only the evidence of the plaintiff. If the court chooses to believe the only evidence on the record, the plaintiff may win and the defendant may lose. Such loss may be brought about by default on the part of the defendant.” Counsel for the Defendant argues that defendants’ father, the late Paul Akwasi Nimoh was an innocent purchaser for value without notice of any divorce action between the plaintiff herein and her husband Daniel Amponsah during his life time. He relied on the case of Kusi & Kusi v Bonsu [2010} SCGLR 60 and submitted that subsequent to Exhibit A, the said Daniel Amponsah had transferred all his interests in the house the subject matter of this dispute to defendant’s father in 2001 as evidenced by Exhibits 1,2, 3 and 4 and in effect defendant lived in the said house as a beneficiary of his deceased father’s estate. Counsel submitted forcefully that at the time the District Magistrate made the orders contained in Exhibit A, the house had already been conveyed to defendant’s father and could not have been distributed by the said court upon dissolution of marriage. According to counsel, that notwithstanding, the defendant’s family peacefully acknowledged plaintiff’s interest when she showed up at the property in 2017 for execution of her judgment in respect of two rooms and a shop. Counsel adds that since plaintiff claimed to be entitled to two bedrooms and a shop, she cannot be permitted to erect new structures on other parts of the land. Counsel concludes that it is in the best interest of defendant that the house in dispute be valued for defendant’s purchase of plaintiff’s interest if any. From the evidence, it is undisputed that the plaintiff has been in possession of her two bedrooms and shop since 2017 and defendant has never challenged her interests but instead acknowledged her interests as stated in paragraph 6 of defendant’s witness statement. (Emphasis mine) I find that it will lie ill in the mouth of the defendant to deny the interests of the plaintiff in the said property having acknowledged her interests even in his counterclaim which is reproduced as follows; “An order of the court for a buyout of plaintiff’s interests in favour of the defendant.” (Emphasis mine) On the issue of whether or not the plaintiff can be compelled to dispose of her interests, Article 18 of the 1992 Constitution aptly answers the question as follows; 18(1) Every person has the right to own property either alone or in association with others 18(2) No person shall be subjected to interference with the privacy of his home, property, correspondence or communication except in accordance with law and as may be necessary in a free and democratic society for public safety or the economic well-being of the country, for the protection of health and morals, for the prevention of disorder or crime or for the protection of the rights and freedoms of others. (Emphasis mine) Having regard to Article 18 cited supra, I agree with Counsel for the plaintiff that the plaintiff cannot be compelled to dispose of her property as such compulsion will constitute a clear violation of her rights under the constitution except the defendant is able to lead evidence to prove the exceptions stated in the said Article 18 to warrant an interference with plaintiff’s interests in the property the subject matter of this dispute. This the defendant has failed to do. Accordingly, the counterclaim of the defendant fails and same is dismissed. Consequentially, plaintiff is entitled to 2 rooms and a shop out of the property the subject matter of this dispute as clearly and unambiguously stated in Exhibit A and until she decides to dispose of same voluntarily, she shall not be compelled to do so. DECISION 1. Plaintiff is not entitled to construct a structure on any vacant space in the compound of the house for her use as a kitchen, toilet and bath as she is entitled to two bedrooms and a shop only in the property the subject matter of this dispute as contained in Exhibit A. 2. Plaintiff shall not be compelled to dispose of her interests in the property the subject matter of this dispute 3. I make no order as to costs. ………………(SGD)……………………. H/W RUBY NTIRI OPOKU (MRS) DISTRICT MAGISTRATE 13