Amponsah Vrs Justice [2023] GHADC 95 (21 July 2023)

IN THE DISRICT COURT HELD AT KENYASI ON MONDAY THE 21ST JULY, 2023 BEFORE HIS WORSHIP CLEMENT KWASI ASOMAH AS MAGISTRATE SUIT NO: BR/KS/A1/11/2023 MAAME AKUA AMPONSAH FOR HER DAUGHTER AUGUSTINE AFRIYIE (A MMOR) VRS OP. OPOKU JUSTICE JUDGMENT Plaintiff on 03/05/23 was issued out of the Registry of this court a writ of civil summons claiming the following reliefs; a. A fair share of a cocoa farm situate at sinianim on Kenyasi No. 2 stool land. b. Recovery of GH¢400.00 c. An order for accounts of the proceeds from the cocoa farm in 2022/23 Cocoa season. To these reliefs the Defendant denied liability so in the interest of Justice, the parties was given a hearing. THE PLAINTIFF’S CASE Besides herself, the plaintiff called no witness. According to the plaintiff she was married to the Defendant’s brother Akwasi Afriyie for Ten (10) years and had one issue. JUDICIAL SERVICE OF GHANA JUDICIAL SERVICE OF GHANA JUDICIAL SERVICE OF GHANA JUDICIAL SERVICE OF GHANA JUDICIAL SERVICE OF GHANA The plaintiff testified that when her said late husband fell sick the Defendant and his family abandoned him and upon his demise the Defendant and his siblings have shared the cocoa farm which their father gifted to them but they failed to give her late husband’s share to his daughter Augustine Afriyie, through the defendant agreed to give her a share before the Director of CHRAJ Kenyasi. Plaintiff concluded that at the instance of the Defendant she secured a loan of GH¢500.00 to support her husband when he was sick but after paying GH¢100.00 the GH¢400.00 is outstanding. She claims per her writ of summons. Plaintiff admitted under cross examination that her husband died about 8 years ago. She closed her case after her evidence. THE DEFENDANT’S CASE Besides himself the Defendant called one witness. The evidence of the Defendant was that the land which their father gifted to them has been sold to defray the debt incurred when their brother other died at a shrine and his final funeral rites. Defendant said the cocoa farm in dispute is their family property and they are still using the proceeds to settle the outstanding debt of GH¢10,000.00 so the plaintiff is not entitled to a share of their family property. Dw1 Rockson Owusu Bempah’s evidence corroborated the evidence of the Defendant. According to Dw1 the farm in dispute belongs to their family ie the family of Adowa Yeboaa and that the self-acquired property of their late brother were given to the plaintiff upon the demise of their brother. The Defendant closed his case after the evidence of DW1. JUDICIAL SERVICE OF GHANA JUDICIAL SERVICE OF GHANA JUDICIAL SERVICE OF GHANA JUDICIAL SERVICE OF GHANA JUDICIAL SERVICE OF GHANA ISSUES The following issues arose for determination by this court. 1. Whether or not the plaintiff’s daughter is entitled to a share of the cocoa farm in dispute. 2. Whether or not the Defendant owes the plaintiff GH¢400.00 3. Whether or not the plaintiff is entitled to account s of the cocoa farm in dispute. 4. Whether or not the plaintiff is entitled to her claim. NOW THE ISSUES Issue one – Whether or not the plaintiff’s daughter is entitled to a share of the cocoa farm in dispute. It was the case of the plaintiff that, the cocoa farm particularly described in her writ of summons was a gift from the father of her late husband and his siblings so her daughter is entitled to a share of her father. The defendants vehemently denied this assertion by the plaintiff and contended that the cocoa farm in dispute is a family property and that same cannot be shared. The question is whose story would be believed? Now the law is that he who alleges assumes the onus of proof see the case of FAIBI VRS STATE HOTELS (1968) GLR 471 Section 14 of the Evidence Decree NRLD 323 1975 enacts; “Except as otherwise provided by law, unless and until it is shifted a party has the burden of persuasion as to each fact the existence or non-existence of which is essential to the claim or defense he is asserting. In the instant case since it was the plaintiff who asserted that the cocoa farm belongs to her late husband and his siblings, assumed the onus of proof and that she had the burden of persuasion on the issue she raised. JUDICIAL SERVICE OF GHANA JUDICIAL SERVICE OF GHANA JUDICIAL SERVICE OF GHANA JUDICIAL SERVICE OF GHANA JUDICIAL SERVICE OF GHANA The question is has the plaintiff been able to discharge the legal burden on her? It is pertinent to note that throughout the proceedings the plaintiff did not call any witness though he mentioned some people as boundary owners she called none of them through there was no evidence on record to show that they were not available to be called as witness, plaintiff in her evidence in chief said the defendant admitted before the Director of CHRAJ that her daughter has a share of the cocoa farm and yet she did not call him as a witness. It is important to note that one cannot mount a witness box and repeat the averment he/she has made in his/her pleading and say that he has proved his claim. I therefore find as a fact that the cocoa farm in dispute was not a gift for plaintiff’s husband and his siblings. Issue one is accordingly resolved in favour of the Defendant. Issue Two – whether or not the Defendant owes plaintiff an amount of GH¢400.00. It was the claim of the plaintiff that at the instance of the Defendant the secured financial assistance of GH¢500.00 out of which the Defendant has refunded GH¢100.00. This piece of evidence was denied by the Defendant. As I have indicated in this judgment the onus is always on the one who avers. The plaintiff besides her evidence did not call any witness to offer any proof that indeed the Defendant authorized her to secure a loan and that he owes her GH¢400.00. I am therefore of the view that the defendant did not authorize the plaintiff in that regard. Issue two is accordingly resoled in favour of the Defendant. JUDICIAL SERVICE OF GHANA JUDICIAL SERVICE OF GHANA JUDICIAL SERVICE OF GHANA JUDICIAL SERVICE OF GHANA JUDICIAL SERVICE OF GHANA Issue three – whether or not the plaintiff is entitled to accounts. It was the case of the plaintiff that the Defendant should account for the proceeds of the cocoa farm in relief. ‘A’ Now having found as a fact that the said cocoa is a family property, there will be no basis for the Defendant to render accounts to the plaintiff. Issue three is accordingly resolved in Defendant’s favour. Issue four – whether or not the plaintiff is entitled to her claim. I am satisfied on the preponderance of probabilities that the plaintiff has failed to establish failed to establish her claim. I therefore have no option but to dismiss her claim. Plaintiff’s claim is accordingly dismissed. Considering the relationship between the parties I have decided not to award any cost. There is therefore no order as to cost. SGD. H/W C. KWASI ASOMAH JUDICIAL SERVICE OF GHANA JUDICIAL SERVICE OF GHANA JUDICIAL SERVICE OF GHANA JUDICIAL SERVICE OF GHANA JUDICIAL SERVICE OF GHANA