Asafo-Adjei Vrs Asafo-Adjei (A11/253/19) [2023] GHACC 940 (13 January 2023)

IN THE CIRCUIT COURT HELD IN KUMASI ON FRIDAY THE 13TH DAY OF JANUARY, 2023 BEFORE HER HONOUR PRISCILLA DAPAAH MIREKU (MRS.), CIRCUIT COURT JUDGE. MONICA ASAFO-ADJEI VRS: SUIT NO. A11/253/19 AGYENIM BOATENG ASAFO ADJEI ---------------------------------------------------------------------------------------------------- JUDGMENT ---------------------------------------------------------------------------------------------------- The Plaintiff instituted this action against the defendant on the 16th day of April, 2019. The plaintiff prays for the following reliefs; 1. An order that the Plaintiff is a joint owner and entitled to fifty percent (50%) of the properties listed hereunder: a. House situated on Plot No. 6 Ahenema Kokoben New Site, Kumasi. b. KIA saloon vehicle with registration number AW 612-10 2. An Order that the Plaintiff is a joint owner and entitled to an equitable share of the house situated on Plot 26, Twumasen Quarters, Offinso. 3. A declaration that the dining furniture and the household electrical and electronic appliances mentioned in paragraphs 23 & 25 supra are hers and further order directed against the Defendant to deliver up same to the Plaintiff or pay to the Plaintiff the open market value of same. 1 The defendant did not counter claim for any relief. The summary of the plaintiff’s case is that, she ordinarily resides in Finland but frequently visits Ghana. According to Plaintiff sometime in the year 2002 she was lawfully married to the Defendant in accordance with Akan custom and celebrated a monogamous marriage under the laws of Finland on 7th March, 2003. The plaintiff avers that prior to the celebration of the said marriage; she had acquired a plot of land at Afise near Nsawam whilst the Defendant had also acquired Plot No. 6, Ahenema Kokoben New Site - Kumasi. That the Defendant also had a uncompleted house in his home town, Offinso which is situate on Plot 26, Twumasen Quarters, Offinso. According to the Plaintiff, the Defendant convinced her to assist him develop his land situated at Ahenema Kokoben which she did same and as a result of her abandoning her plot same was resold to a church. That the house on Plot No. 6 Ahenema Kokoben was built with their salaries as well as with loans secured from the bank by both parties and after the completion of same, they continued with the construction of the uncompleted house situate at Offinso which the defendant had at the time of their marriage. The Plaintiff further avers that they acquired a KIA saloon car with registration number AW 612-10 before the dissolution of their marriage and also acquired a set of dining furniture and fridge with her personal resources and shipped same to Ghana with the assistance of the Defendant. The plaintiff claims sometime in 2010 whilst the family was planning to come to Ghana, she purchased a freezer, an electric cooker, a TV set, a microwave and a washing machine and had same shipped to Ghana together with the assistance of the Defendant. The Plaintiff alleges the defendant has demonstrated by his actions that he wants to deprive her of her ownership of the two houses, the vehicle, the dining furniture as well as the household electrical and electronic appliances she acquired with her personal resources. The plaintiff avers that 2 the houses having been constructed with their joint resources, she is entitled to an equitable share of same. The summary of the defendant’s case is that it was after their marriage celebration in Finland that the parties did another celebration in Ghana on 20th December, 2003 at Assin Wurakase. According to the Defendant, he broached the idea of joint account with the Plaintiff in order to have a joint matrimonial properties and responsibilities but the plaintiff after few transactions opted out. That the plaintiff opted out with a firm suggestion that each party should acquire property in his or her own personal name. The defendant further avers he acquired the properties and completed same before he even met the Plaintiff. the Defendant avers that he acquired the property at Offinso on 16th November, 1998 and completed same in 2000 prior to their marriage and gifted the said property to his mother Felicia Adwoa Adutwumwaa by way of deed of gift executed on 10th January, 2000. The Defendant further avers that he acquired the property at Ahenema Kokoben on 25th January, 2000 and constructed same from the proceeds of his internship whilst in Ghana and other income. The Defendant avers the aforementioned property was completed less furnishing prior to the Defendant meeting the Plaintiff herein. The defendant claims that he service EUR3000 of the loan of EUR10,000.00 and defaulted but the Plaintiff did not pay a dime of same. The Defendant further alleges that the financial institution engaged the service of a debt collector and the remuneration of the said debt collector brought the outstanding debt from EUR7,000.00 to EUR8,000.00 which further EUR3,000.00 was deducted as part of his payment of service the loan and the Plaintiff paid the remaining amount. That he paid 60% of the said loan. The Defendant claims he personally acquired the KIA Sorrento and from his own resources and registered same in his name with the knowledge of the plaintiff without any protest or whatsoever from her. That the said vehicle was later disposed of by him. The Defendant avers that the Plaintiff took the 3 entire house chattel in Finland in the absence of the Defendant as part of her share of the matrimonial properties as a result; she is not entitled to any house chattel if any. That the Plaintiff is not entitled to any of her claims. This case involves two individuals you were once husband and wife and have currently divorced in Finland. The plaintiff is claiming for equal distribution of properties allegedly acquired during the subsistence of the marriage and return of certain immovable properties allegedly acquired solely by her during the subsistence of their marriage. The issues that were adopted and set down for trial are follows; i. Whether or not the parties operated a joint account in Finland from which proceeds were used to acquire H/No. Plot 6, Ahenema Kokoben Newsite, Kumasi and KIA saloon vehicle with registration number AW 612 – 10. ii. Whether or not the Plaintiff is a joint owner of the properties aforemtntioned in paragraph (i) supra. iii. Whether or not the Plaintiff is entitled to an equitable share of H/No. Plot 26, Twumasen Quarters, Offinso. iv. Whether or not the Defendant acquired H/No. Plot 26,Twumasen Quarters, Offinso prior to his marriage to the Plaintiff. v. Whether or not the Defendant has gifted H/No. Plot 26, Twumasen Quarters, Offinso to his mother Felicia Adwoa Adutumwaa. He who asserts has the burden of proof especially if the said assertion is denied by the opponent. In civil cases, the burden of proof is by the preponderance of probabilities according to section 12(1) of the Evidence Act, 1975 (NRCD 323) which provides that, “Except as provided by law, the burden of persuasion requires proof by a preponderance of probabilities.” 4 Section 12 (2) of NRCD 323 also provides that, “preponderance of probabilities means that degree of certainty of belief in the mind of the tribunal of fact or the Court by which it is convinced that the existence of a fact is more probable than its non-existence.” This Honourable Court is of the view that issues ought to have been raised in respect of the movable properties the Plaintiff is claiming for as same has been opposed by the Plaintiff claiming that she solely acquired same for her personal use. Also it will be necessary or prudent for the Court to first discuss whether or not the two immovable properties the plaintiff is claiming for were acquired prior to the marriage celebration of the marriage before discussing whether or not the Plaintiff is a joint owner of both properties with the Defendant and is entitled to equitable distribution of same. In civil matters the onus of proof has been established to be proof by the preponderance of probabilities. In the case of Aryee v. Shell Ghana Ltd & Fraga Oil Ltd [2017-2020] 1 SCGLR 721 @ 724 the Supreme Court at Holding 4 stated In every civil trial the proof required was by preponderance of probabilities in accordance with Section 12 of NRCD 323 and the amount of evidence required to sustain that standard of proof was dependent on the nature of the issue to be resolved. Accordingly the court could rely on the evidence of a single witness in proof of the point in issue provided the witness was credible and had knowledge of the subject matter. Therefore, even the failure by a party himself to give evidence could not be used against him by the court in assessing his case. Section 12 of the Evidence Act, 1975 (NRCD 323) provides that, “Except as otherwise provided by law, the burden of persuasion requires proof by a preponderance of probabilities” 5 and Section 11 of NRCD 323 states, “For the purposes of this Decree, the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling against him on the issue.” Also in the case of Zabrama v. Segbedzi [1991] 2 GLR 221 @ 246, it was held that, “A person who makes an averment or assertion, which denied by his opponent has a burden to establish that his averment is true. And he does not discharge this burden unless he leads admissible and credible evidence from which the fact or facts he asserts can properly and safely be inferred.” The evidential burden is first on the Plaintiff to prove her case by the preponderance of probabilities and after which same will be moved to the Defendant if the need be. The first issue this honourable court will discuss as aforementioned is whether or not Plot No. 6, Ahenema Kokoben New Site, Kumasi and Plot No. 26, Twumasen Quarters, Offinso were acquired during the subsistence of the marriage between the parties. It is quite interesting to note that in this case two of the siblings of the defendant testified for the Plaintiff against their brother the defendant. The Plaintiff per her pleadings and witness statement avers to the fact that, both parcels of land were acquired by the defendant prior to their marriage and that they opened a joint account at Finland which proceed of same were used to erect a building on Plot No. 6 and same proceeds from the joint account were used to complete the structure on Plot No. 26 as at the time of their marriage there was no structure on Plot No. 6 and the structure on Plot No. 26 was uncompleted. It seems that, the Plaintiff through her evidence in chief and cross examination defines the land differently from the structures on same. The Land Act, 2020 (Act 1036) defines land as “land includes the solid surface of the earth, trees, plant, crops and other vegetation, a 6 part of the earth surface covered by water, any house, building or structure whatsoever, and any interest or right in, to or over immovable property.” Thus the properties in question are the landed properties and the land is not different from structures on same. It is presumed that, a legal owner of a land is the owner of anything there on unless the contrary is proven. The plaintiff admitting that both Plots were acquired prior to her marriage to the Defendant will raise the presumption that the properties are not matrimonial properties since they were not acquired to during the subsistence of the marriage. However this presumption can be rebutted if the Plaintiff can prove that after they celebrated their marriage, there was an intent to convert these properties into matrimonial properties through actions and deeds. Counsel for the Plaintiff cites the case of MISSAH V. MISSAH [2022] DLHC 11639 where His Lordship Justice Dr. Richmond Osei-Hwere opined as follows; In the case of SCMITZ v.SCHMITZ 88 P.3d decided by the Supreme Court of Alaska in 2004, the Court explains that spouse’s pre-marital property can become marital property through transmutation. Transmutation occurs where a married couple demonstrates an intent, by virtue of their words and actions during marriage to treat one spouse’s separate property as marital property. Thus if the Plaintiff can prove that she made contributions in the erecting of the structure on Plot 6 and the completion of the structure on Plot 26, then she has an equitable interest in the said properties as they have been converted into matrimonial properties. In the case of GREGORY v. TANDOH [2010] 1 SCGLR 971, the Supreme Court by unanimous decision upheld the claim of joint acquisition as there was ample evidence 7 of financial contribution to the building of the houses and in the concluding judgment. Gbadegbe JSC said as follows: Although the appellant is not a spouse of the 1st respondent, I am of the opinion that it is permissible for us to grant her a beneficial interest that is proportionate to her contribution. I think that the effect of her contribution to the acquisition of the distributed property is creating a resulting trust innher favour to the extent of her contribution. In the case of Cooke v. Head [1972] 2 ALL RE 38, the Court of Appeal applied the doctrine of resulting trust imposed by the courts on a legal owner in the case of husband and wife who by their joint efforts acquire property to be used for their joint benefit to the case of a mistress and a man who by their joint cumulative efforts acquired a property for the purpose of setting up a home together. If the Courts will recognize the contribution of a mistress or a concubine, how much more a legal married woman who makes substantial contribution in developing the land priory acquired by the husband. The Plaintiff in proving her claim testified on her own behalf and called two witnesses who I have mentioned to be siblings of the Defendant to testify on her behalf. The two witnesses were Isaac Ntim (hereinafter referred to as PW1) and Nana Akua Afriyie (hereinafter referred to as PW2). The Plaintiff testified that after the celebration of their monogamous marriage in Finland, they operated a joint account but she had to opt out after some time because the Defendant was misapplying the money in account. The Defendant admits that the Plaintiff opted out of their joint account based on selfish reasons and also claims that he acquired and put the structures on both properties before the celebration of their marriage. That the plaintiff was never interested in acquiring joint properties and said each party should acquire their own property during the subsistence of their marriage. 8 The Plaintiff must not just prove that the parties had a joint account but must prove that proceeds from that joint account and their incomes were used to for the developments of the properties aforementioned. The Plaintiff claims the property Plot No. 6 was built from their incomes as well as with secured loans and tendered copies of letters and copies of her pay slips and bank statement as evidence of income. The letters are marked as Exhibit ‘C’ series and the pay slips as Exhibit “D” series. The Plaintiff claims the loan was used for the construction of the alleged joint properties while the Defendant claims they took a loan of EUR10,000.00 Euro which both parties distributed equally between them but he paid about 60% of the loan while the Plaintiff claims she paid majority of the loan. In fact the Plaintiff claims that sometime in 2003 they first jointly acquired a loan of EUR5,000.00 from Danske Bank, Finland but she single handedly repaid the said loan. That at that time, the Defendant was a student and had travelled to Ghana for a school project and also used the said loan to work on the house situate on Plot 6, Ahenema Kokoben. That by the time the Defendant came back to Finland she had finished payment of the said loan. The Plaintiff further alleges that they took another loan of EUR10,000.00 which both parties claims they paid the largest sum. Exhibit “C” prove the payments were made by the Plaintiff for a loan the parties jointly took in 2009 and she made a total payment of EUR 6074.10. PW1 testified that he knows that the properties in question are jointly owned by his brother and his wife who are the parties in this suit. PW1 testified that sometime in 2003/2004, the Defendant asked him to supervise the construction of their house at Ahenema Kokoben and at the time he took over the construction the building was at lintel level and tendered pictures to prove same which were marked Exhibit “A” Series. Two of the pictures Exhibits A1 and A2 show the building at lintel level and Exhibit A shows when the building was roofed. According to PW1 he supervised the completion of Plot N0. 6 house sometime in 2010 and after completion, he sought permission of the 9 defendant to build a single room on top of the room designated for the security person which he started same but the Plaintiff called to stop him since she claimed as a joint owner, the Defendant did not seek her consent. PW1 alleges he called the defendant who confirmed same and later both parties called him from Finland and gave him the green light to continue with his construction aforementioned and that if he vacated same in future, the will cause the structure to be valued and pay him accordingly. PW1 further claims he supervise the completion of the building in Offinso and it is not true that the defendant gifted the plot no. 26 at Offinso to their mother and also not correct that the Plaintiff completed the house at Offinso prior to their marriage. PW1 also testified that the defendant and the plaintiff jointly owns to KIA Sorento and that sometime in 2010 he accompanied the Plaintiff’s uncle and the defendant to the Driver and Licensing Authority’s Office (DVLA) in Kumasi to register the said vehicle in the defendant’s name and that same was registered in the defendant’s name because at the time of registration, the plaintiff was in Finland. PW2 the sister of the Defendant also claims that the two landed properties are jointly owned by the parties together with the KIA Sorento with registration number AW 612 – 10. Counsel for the Defendant during cross examination of the Plaintiff’s witnesses PW1 and PW2 put it to them that they had a problem with the Defendant that is why they were testifying against the Defendant and same were denied by them. The defendant called two witnesses to testify on his behalf and they were Emmanuel Kwesi Annor the Defendant’s Attorney (referred to as DW1) and one Samuel Donkor (referred to as DW2) all his siblings. DW1 evidence is practically a repeat of the defendant’s pleading. DW2 testified that Plot 26 at Offinso was acquired by the Defendant one woman called Joyce Boatemaa 10 who was his wife and one Opanin Akwesi Addae and Boatemaa supervised the construction of the house at Kokoben as well as Offinso. That there was a care taker at the house at Kokoben called Kwesi Kuasi until his demise somewhere in 2011. That the defendant gifted the house at Offinso to his mother but on her refusal to relocate to the said house he was given mandate by the defendant to rent the house. That the defendant also made him to supervise the construction on works that will be done in his absence. That PW1 went into the occupation of the house without the consent of the Defendant but they pleaded on his half to be allowed to occupy same until he builds his own. According to DW2, sometime back the Defendant came to Ghana and called a family meeting and made a complaint against PW1 which made him very bitter and called the Plaintiff that he can be her witness. That there is an agreement that PW1 will leave the Defendant’s property at Kokoben in 2019 but PW1 rather sort for injunction against te Defendant through the Plaintiff. That the instant action is in bad faith and the Plaintiff is not entitled to her claim. The Defendant tendered documents through his witnesses to prove that the Defendant acquired the property at Offinso before the celebration of the marriage between the parties and that the said property was gifted to the Defendant’s mother by a deed of gift. DW1 also tendered the bank statements of the defendant which shows him paying the loan he took with the plaintiff at Finland. He also tendered the vehicle documents of the KIA Sorento to show that the vehicle was registered in his name and transferred to one Janet Abena and the stamp on it is dated 25th April 2019. DW2 claims the property at Offinso was acquired by the Defendant and one Joyce Boatemaa but the Defendant solely gifted the property to his mother and he wants the court to believe same. 11 Per the evidence before the Court and as discussed above, this court is of the view that the Plot No.6 Ahenema Kokoben New Site, Kumasi and Plot No. 26 Twumasen Quarters, Offinso were acquired prior to the marriage of the parties. However, sufficient evidence have been led by the Plaintiff to prove that the parties acquired a joint loan in Finland and from the evidence of both parties, the parties both service the loan and paid thereof. I find it more probable that the said loan and incomes of both parties were used to construct the structure on Plot 6 aforementioned and the Plaintiff has beneficial interest in the said property. This Court is of the view that it will be just to equally divide the said property between the parties and makes a declaration that, both parties are joint owners of the said property, Plot No. 6 Ahenema Kokoben New Site Kumasi. With regards to the property at Offinso, the plaintiff admits there was an uncompleted structure on same at the time of her marriage to the Defendant but her evidence does not provide at what stage the building was as at the time of their marriage, the state the building is at the moment. There is no concrete evidence that connects the said house to the loan the parties took as the Defendant claims he completed erecting the said structure before the commencement of their marriage and she did not lead any evidence to prove otherwise. Even though the defendant claims that he has gifted the property to his mother the evidence on record does not support his claim since the deed of gift tendered which has not been registered is not enough proof. The Defendant did not file for any counterclaim so he really does not have a burden to prove his claim unless the evidential burden shifts to him. The plaintiff however had the onus to prove that indeed these loans were used for the completion of the Offinso house to enable this court to determine so. In the case of ACKAH v. PERGAH TRANSPORT LTD. and OTHERS [2010] SCGLR 728 at 736, it was held that, “It is a basic principle of the law on evidence that a party who 12 bears the burden of proof is to produce the required evidence of the facts in issue that has the quality of credibility short of which his claim may fail.” This honourable court finds that, the Plaintiff does not have any interest in Plot No. 26 at Offinso since same is not a property acquired during the subsistence of their marriage and there is no proof that the Plaintiff contributed to same. With the issue of the ownership of the KIA Sorento, the evidence before the Court clearly shows that same was acquired during the subsistence of the marriage and at the time this action was instituted against the defendant, same had not be disposed of by him. The suit was instituted on 16th April, 2019 and the defendant disposed of same per Exhibit “10” on 25th April, 2019. It has been held that, properties acquired during the subsistence of a marriage is presumed to be jointly acquired by the parties but that presumption is a rebuttable presumption ( see the case of Mensah v. Mensah [1998-1999] SCGLR 350, Peter Adjei v. Margaret Adjei (Civil Appeal N0. J4/06/2021) 21st April 2021 (unreported) etc.). In the case of Fynn v. Fynn [2013-2014] 1 SCGLR 727, the Supreme Court held that “there are situations where, within the union, parties may acquire property in their individual capacities and that position is envisaged by article 18 of the 1992 Constitution of Ghana.” With the KIA Sorento, even though the property was registered in the name of the Defendant, this Court finds that it was joint property of the parties and the defendant had no right to dispose of same when this case was already pending and it was in issue. The plaintiff claims the defendant has not dispose of same as he claims and tendered a search result from DVLA dated 3rd June, 2019 which indicates that the vehicle is still in the name of the Defendant. 13 This honourable Court finds that the Plaintiff is entitled to fifty percent (50%) of the value of the said vehicle. The Plaintiff alleges that she acquired a dining furniture set, electrical appliances and household electrical personally and pray for the delivery of same to him or the Defendant pays the values of same to her. The Defendant claims if there are any such things, they are chattels of the household and the Plaintiff is not entitled to them since she took the entire household chattel in Finland upon the dissolution of their marriage. With the issues involving the dining furniture, household electrical and electronic appliances, the Plaintiff did not lead any evidence to prove the existence of these items but this court finds that if indeed they are such things, then they are household chattels which both parties have equal interest in same as they were acquired during the subsistence of their marriage and same ought to be distributed equally between the parties or same valued for one party to buy the other’s share. Judgment is therefore entered for the Plaintiff in part as this court finds that she is a joint owner and entitle to fifty percent of Plot No. 6, Ahenema Kokoben New Site, Kumasi and KIA salon vehicle with registration number AW 612-10. Judgment was also entered for the plaintiff partly for 50% share of the household chattel. Since the Plaintiff partly succeeded in her claim, cost of GH₵8,000.00 is awarded in her favour against the defendant. SGD. H/H PRISCILLA DAPAAH MIREKU (MRS.) CIRCUIT COURT 2, ADUM – KUMASI 14 13TH JANUARY, 2023 15