ANONGTIBSUM VRS AZUMAH (UE/BG/DC/A11/12/2024) [2025] GHACA 5 (18 March 2025)

*HWMNJ@DC/BLG-18/03/2025* CORAM: HIS WORSHIP MAWUKOENYA NUTEKPOR (DISTRICT MAGISTRATE), SITTING AT THE DISTRICT COURT, BOLGATANGA IN THE UPPER EAST REGION OF GHANA, ON TUESDAY, THE 18TH DAY OF MARCH, 2025. SUIT NO. UE/BG/DC/A11/12/2024 STEPHANIE ANONGTIBSUM PLAINTIFF OF AKALANDER'S HOUSE, YARIGABIISI, BOLGATANAGA VRS. RAZAK AZUMAH DEFENDANT OF AKUDOO’S HOUSE, YARIGABIISI BOLGATANGA TIME: 09:00AM PARTIES PRESENT RICHARD ADAZABRA, ESQ. FOR THE PLAINTIFF VICTOR AYAMGA, ESQ. FOR THE DEFENDANT JUDGMENT Introduction 1. The Plaintiff commenced this action on 25th July, 2024. By her amended writ of summons filed on 25th October, 2024, she claims against the Defendant as follows: - a. A declaration of ownership of the Container-shop used as a hairdressing salon. b. An order for the return of her NASCO double door standing fridge Defendant illegally seized from her. *JUDGMENT-STEPHANIE ANONGTIBSUM VRS. RAZAK AZUMAH (SUIT NO. A11/12/2024) * Page 1 of 14 *HWMNJ@DC/BLG-18/03/2025* c. An order of reasonable compensation for loss of use for Plaintiff due to Defendant having illegally locked up the container for two years. d. An order for perpetual injunction restraining Defendant from disturbing Plaintiff’s peaceful possession of the container-shop. e. Cost. 2. Also, the defendant filed his response/defence on 16th August, 2024 and counterclaimed against the plaintiff as follows: a. An order compelling the plaintiff to pack her things out of the container. b. Costs including legal fees. c. Any orders deemed fit by this Honourable Court. 3. On 28th October, 2024, this court in consideration of the nature of the case, the fact that plaintiff and defendant are husband and wife, and the willingness of the parties to attempt settlement of the matter out of court, referred the matter to the Court Connected Alternative Dispute Resolution pursuant to section 72 of the Courts Act, 1993 (Act 459) as amended. The said section provides as follows: Section 72—Courts to Promote Reconciliation in Civil Cases *JUDGMENT-STEPHANIE ANONGTIBSUM VRS. RAZAK AZUMAH (SUIT NO. A11/12/2024) * Page 2 of 14 *HWMNJ@DC/BLG-18/03/2025* (1) Any court with civil jurisdiction and its officers shall promote reconciliation, encourage and facilitate the settlement of disputes in an amicable manner between and among persons over whom the court has jurisdiction. (2) When a civil suit or proceeding is pending, any court with jurisdiction in that suit may promote reconciliation among the parties, and encourage and facilitate the amicable settlement of the suit or proceeding. See also Order 25 Rule 1 sub rules (3) to (8) of the District Court Rules, 2009 (C. I 59) as amended by C. I. 134. However, the parties could not resolve the matter out of court; hence the court proceeded to determine the matter on its merit. Plaintiff’s Case 4. The Plaintiff avers that she and the Defendant got married in 2014 and are blessed with two children. Plaintiff says she got into hairdressing first as an apprentice and later passed out in 2021 as a hairdresser or beautician at Daporetindongo. Plaintiff says that at her Passing Out ceremony, she was able to make an amount of GH¢6000.00 (six thousand Ghana cedis) being gifts from friends, well-wishers and family members, which amount she saved intending to procure a container-shop to open her salon. Plaintiff asserts that Defendant however borrowed this money (GH¢6,000.00) from her to complete his four- room building since she was still hunting around for a site to set up her shop, *JUDGMENT-STEPHANIE ANONGTIBSUM VRS. RAZAK AZUMAH (SUIT NO. A11/12/2024) * Page 3 of 14 *HWMNJ@DC/BLG-18/03/2025* with the promise that he would pay back the money to Plaintiff upon her getting the site to situate the container, which the Plaintiff agreed. Plaintiff says that sometime later, she got the present site for her Container-shop, then Defendant got a welder to make the Container-shop promised to her, which said Container cost three thousand Ghana cedis (GH¢3,000.00) to make, which container she fixed at her present site, and this left Defendant’s indebtedness to Plaintiff at the remaining balance of GH¢3,000.00. Plaintiff says she thereafter began business as a beautician from the container-shop, which enabled her to maintain herself and her two (2) children she has with the Defendant. Plaintiff says that even while learning hairdressing, she already had acquired a NASCO double-door standing fridge for GH¢1,100.00 (one thousand one hundred Ghana cedis) from a shop called VIIKANDI in Bolgatanga) which she used in selling “zoom-koom,” “pure” water etc. to help maintain herself, and now brought this fridge to their home to continue to supplement her hairdressing business. 5. Plaintiff says that due to their unresolved matrimonial differences, she packed out of the matrimonial home. Plaintiff says that a week after she packed out with her children and rented a another place to stay, Defendant reported her to DOVVSU Police Station under false claims, and as a result the police took her NASCO fridge referred to supra from her and gave it to the Defendant with other items of hers she got from the Passing Out. 6. It is the Plaintiff’s case that, subsequently, the Defendant locked up her Container-shop two (2) times, and each time she re-opened the shop with the help of the Police so that she continues business to feed her children whom Defendant had now stopped maintaining. Plaintiff says Defendant locked up her *JUDGMENT-STEPHANIE ANONGTIBSUM VRS. RAZAK AZUMAH (SUIT NO. A11/12/2024) * Page 4 of 14 *HWMNJ@DC/BLG-18/03/2025* Container-shop a third time, this time claiming falsely that he had given Plaintiff some three thousand Ghana cedis (GH¢3,000.00) to organize her Passing Out ceremony, and since she gained GH¢6,000.00 from the ceremony, he would give her back the GH¢3,000.00 and own the container-shop she had spent GH¢3,000.00 to construct for her business, which proposition Plaintiff refused. Plaintiff says that she categorically told Defendant at the Police Station that the GH¢3,000.00 he was giving her was now the complete refund of the remainder of the GH¢6,000.00 he had failed to pay her back after using only half of her GH¢6,000.00 to make her container-shop, so she did not owe Defendant any money, and could therefore not give her container-shop to Defendant upon receiving her GH¢3,000.00 given to her at the Police Station. It is Plaintiff’s case that she equally made it clear at the Police Station that Defendant never gave her any GH¢3,000.00 to do her passing out ceremony. Wherefore, plaintiff prays for the above-stated reliefs. Defendant’s Case 7. Defendant vehemently denies plaintiff’s claims and says that the plaintiff is not entitled to any of the reliefs endorsed on the writ of summons. Defendant avers that the said metallic container is his bonafide property made with his own resources. Defendant states that the plaintiff indeed was given the container with all the equipment in it by the plaintiff. Defendant says that the plaintiff deserted the defendant and opted out of the marriage and several attempts by the families, police and opinion leaders to talk to the plaintiff not to leave the marriage fell on deaf ears. Defendant states that the issue regarding the container was reported to the Zuarungu Police Station where the plaintiff reported that she spent GH¢3,000.00 to build the container and it was refunded to her in the *JUDGMENT-STEPHANIE ANONGTIBSUM VRS. RAZAK AZUMAH (SUIT NO. A11/12/2024) * Page 5 of 14 *HWMNJ@DC/BLG-18/03/2025* presence of the police. Defendant further says that plaintiff’s auntie claimed she spent GH¢300 to put up floor tiles in the said container and demanded a refund and this was paid to her. Defendant states that after plaintiff was paid the GH¢3000 in the presence of the Zuarungu police, she was informed by the police to immediately pack her belonging out of the container but she refused to do so since 2023. Defendant avers that the plaintiff blatantly refused to comply with the directives of the police and all attempts for her to pack her items out of the container have proved futile. He therefore counterclaimed for the above- mentioned reliefs. Issues for Determination 8. The issues for determination in this case are as follows: a. Whether or not plaintiff realized GHC6000 from her passing out ceremony, borrowed same to the defendant and out of which defendant used GHC3,000 to make the container in dispute for her. b. Whether or not the defendant is entitled to his counterclaim. Burden of Proof 9. The obligations or duties of parties to lead evidence; and to persuade the court, as to the credibility of their allegations are covered both by statute and plethora of authorities. The law is that he who alleges must prove. Under sections 10, 11, 12 and 14 of the Evidence Act 1975 (NRCD 323) the burden of who has the responsibility to lead evidence is clearly set out. These are burdens of leading evidence and the burden of persuading a tribunal by leading credible evidence. *JUDGMENT-STEPHANIE ANONGTIBSUM VRS. RAZAK AZUMAH (SUIT NO. A11/12/2024) * Page 6 of 14 *HWMNJ@DC/BLG-18/03/2025* Sections 11(1)(4) and 14 of the Evidence Act 1975 (NRCD 323) provides as follows: 11(1) For 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. (4) In other circumstances the burden of producing evidence requires a party to produce sufficient evidence so that on all the evidence a reasonable mind could conclude that the existence of the fact was more probable than its non-existence. 14 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 defence he is asserting.” 10. There are two parts to the duty to discharge the burden of proof. Thus, the twin burdens of proof and standard of proof contained in the provisions are: (a) There is the burden of leading evidence to back an assertion; and (b) the burden of persuasion i.e. leading evidence of sufficient standard to persuade a tribunal to rule in one’s favour. See the case of Isaac Alormenu vs. Ghana Cocoa Board, Civil Appeal No. J4/86/2022, delivered on 8th February 2023. 11. In the case of In re Ashalley Botwe Lands; Adjetey Agbosu & Ors v Kotey & Ors [2003-2004] SCGLR 420, at pp. 464-465, Brobbey JSC explained the law on burden of proof thus: “The effect of sections 11(1) and 14 and similar sections in the Evidence Decree, 1975 may be described as follows: A litigant who is a defendant in a civil case *JUDGMENT-STEPHANIE ANONGTIBSUM VRS. RAZAK AZUMAH (SUIT NO. A11/12/2024) * Page 7 of 14 *HWMNJ@DC/BLG-18/03/2025* 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 evidence before the court, which may turn out to be only the evidence of the plaintiff.” 12. In Ackah v Pergah Transport Ltd., 2010] SCGLR 728, Sophia Adinyira JSC stated on the burden of proof at p.736 as follows: “It is a basic principle of law on evidence that a party who 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. The method of producing evidence is varied and it includes the testimonies of the party and material witness, admissible hearsay, documentary and things (often described as real evidence), without which the party might not succeed to establish the requisite degree of credibility concerning a fact in the minds the court or tribunal of fact such as a jury. It is trite law that matters that are capable of proof must be proved by producing sufficient evidence so that on all the evidence a reasonable mind could conclude that the existence of the fact is more reasonable that its non-existence. This is a requirement of the law on evidence under Section 10(1) and (2) and 11(1) and (4) of the Evidence Act, 1975 (NRCD 323)”. *JUDGMENT-STEPHANIE ANONGTIBSUM VRS. RAZAK AZUMAH (SUIT NO. A11/12/2024) * Page 8 of 14 *HWMNJ@DC/BLG-18/03/2025* 13. Also, it is a settled principle of law that a bare assertion or merely repeating a party’s pleadings in the witness box without more does not constitute proof. In Klah V. Phoenix Insurance Co. Ltd [2012] 2 SCGLR 1139, this principle was reiterated: “Where a party makes an averment capable of proof in some positive way e.g. by producing documents, description of things, reference to other facts, instances and his averment is denied, he does not prove it by merely going into the Witness box and repeating that averment on oath or having it repeated on oath by his witness. He proves it by producing other evidence of facts and circumstances from which the Court can be satisfied that what he avers is true.” See also the following cases on the burden of proof: Air Namibia (Pty) Ltd. V. Micon Travel & Tour & 2 Ors, [2015] 91 G. M. J, page 177, Majolagbe v Larbi & others (1959) GLR 190-195 and Klutse v. Nelson [1965] GLR 537. Evaluation of Evidence, Discussion of Issues and Legal Analysis 14. The first issue for determination is whether or not plaintiff realized GHC6000 from her passing out ceremony, borrowed same to the defendant and out of which defendant used GHC3,000 to make the container in dispute for her. Plaintiff testified herself and called one witness. Defendant did not testify but called two witnesses. From the evidence, the plaintiff admitted that she got married to the defendant before she was trained as a hairdresser. She also admitted that it was the defendant who enrolled her to be trained as a hairdresser. She admitted further that the defendant supported her during her passing out as a hairdresser. The plaintiff claims GHC6,000.00 was realised from *JUDGMENT-STEPHANIE ANONGTIBSUM VRS. RAZAK AZUMAH (SUIT NO. A11/12/2024) * Page 9 of 14 *HWMNJ@DC/BLG-18/03/2025* the passing out ceremony, part of which was used to make the container for her. It is her case that GHC3,000.00 was used for the container and the remaining GHC3,000.00 was the one refunded to her at the Zuarungu police station; hence the container in dispute belongs to her. The Plaintiff however failed to produce sufficient evidence in support of the fact that GHC6,000.00 was realised from the passing out ceremony so that a reasonable mind could conclude that the facts she alleges existed. 15. Even though Plaintiff could not prove that GHC 6,000.00 was raised during the passing out ceremony, Defendant admitted that the GHC3,000.00 given to Plaintiff was the money raised during the passing out ceremony which was used to make the container. It is also on record that Plaintiff’s untie collected GHC600 from defendant instead of the GHC300 she gave for the container to be fixed by buying cement and tiles. Indeed, Defendant’s witness, Detective Inspector David Delali Osae testified as follows: “The plaintiff claimed that she was given GH¢300 by her auntie to buy cement to properly position the said container. That the said auntie was present and indeed confirmed that assertion by the Plaintiff. The said auntie demanded an interest on the GH¢300 arguing that because the money was given a long time ago, interest had to be paid and she was given GH¢600 in the presence of witnesses. A week later, the Defendant brought an amount of GH¢3000 to the Zuarungu Police Station which was raised during the passing out ceremony of the Plaintiff and it was handed over to her in the presence of witnesses. That the plaintiff promised to pack her stuff out of the container but she refused to do so and never come back after *JUDGMENT-STEPHANIE ANONGTIBSUM VRS. RAZAK AZUMAH (SUIT NO. A11/12/2024) * Page 10 of 14 *HWMNJ@DC/BLG-18/03/2025* receiving the GH¢3000…. That the Plaintiff left the Police Station and never came back till she brought the matter to Court.” 16. This court therefore found as a fact from the evidence that the container was made during the marriage between the parties and not before they got married as defendant wants this court to believe. The court also found that it was the Defendant who engaged a welder to make the container. Ordinarily, this container could have been regarded as matrimonial property but the defendant by refunding the GHC3,000.00 to the Plaintiff shows that it was the plaintiff who gave him the money for the container. If the container was for the defendant before they got married, he would not have refunded the money to the plaintiff. The cost of container in 2021 or 2022 cannot be the same as the cost of the container in 2023. The container should have been valued in 2023 before plaintiff money is given to her. Having failed to value the container, justice demands that defendant pay interest on the GHC3,000 from 2021 to 2023 at the prevailing commercial bank rate. This is because if the plaintiff had invested the GHC3,000.00 she would have gained some interest or profit. Since the parties failed to assist the court with the specific months in 2021 or 2022 and 2023 when the money was given to the defendant for the container and when the GHC3,000.00 was refunded respectively, defendant is hereby ordered to pay a fixed or lump sum of GHC2,000.00 to the Plaintiff as interest or profit on the GHC3,000.00. Other reliefs claimed by Plaintiff are however dismissed for lack of sufficient evidence. 17. The next issue to consider is whether or not the defendant is entitled to his counterclaim. It is a well-established principle of law that a defendant who files a counterclaim has the same burden of proof as a plaintiff. In the case of Nortey *JUDGMENT-STEPHANIE ANONGTIBSUM VRS. RAZAK AZUMAH (SUIT NO. A11/12/2024) * Page 11 of 14 *HWMNJ@DC/BLG-18/03/2025* (No.2) V. African Institute of Journalism and Communication & Others (No.2) [2013-2014] 1 SCGLR 703, the principle was stated as follows: “Without any doubt, a defendant who files a counterclaim assumes the same burden as a plaintiff in the substantive action if he/she has to succeed. This is because a counterclaim is a distinct and separate action on its own which must also be proved according to the same standard of proof prescribed by sections 11 and 14 of NRCD 323, the Evidence Act (1975)”. 18. Also, the law is that a party can only succeed in his or her counterclaim on the strength of his or her evidence. The standard of proof required that for a party to succeed on his or her counterclaim, he or she must lead satisfactory evidence, either by himself or otherwise which, on the balance of the probabilities, makes his or her case more probable than not. See the cases of 2000 Ltd Vrs Otoo [2018] GHASC 68 (17 October 2018) and Osei v Korang [2013] 58 GMJ 1. In the instant case, the Defendant counterclaimed against the Plaintiffs. He therefore has a burden of proof to discharge. The defendant’ counterclaim cannot automatically succeed because plaintiff’s action failed. 19. Having held that the Defendant should pay interest on the GHC3,000.00 given to Plaintiff, the container will be deemed to be defendant’s property after payment of the interest. Therefore, defendant’s counterclaim succeeds in part, in that Plaintiff is ordered to pack her things from the container within seven (7) days after receiving GHC2,000.00 or interest on the GHC3,000.00 from 2021 or 2022 to 2023. Conclusion *JUDGMENT-STEPHANIE ANONGTIBSUM VRS. RAZAK AZUMAH (SUIT NO. A11/12/2024) * Page 12 of 14 *HWMNJ@DC/BLG-18/03/2025* 20. Having examined the whole evidence adduced by the plaintiff and the defendant on record in accordance with the foregoing authorities as well as the analysis, the court holds as follows that: a. Plaintiff’s fails to convince this court that she gave GHC6,000.00 to the Defendant out of which defendant used GHC3,000.00 to purchase metallic container for her. However, the Defendant admitted that the GHC3,000.00 he refunded to the Plaintiff is the money realized from the passing out ceremony, and this court holds that the said money was used to make the container. Accordingly, Plaintiff’s action succeeds in part, in that the defendant is liable to pay interest on the GHC3,000.00 or the actual cost of the container in 2023; and since the parties failed to assist the court with the specific months in 2021 or 2022 and 2023 when the money was given to the defendant for the container and when the GHC3,000 was refunded respectively, defendant is hereby ordered to pay a fixed or lump sum of GHC2,000.00 to the Plaintiff as interest or profit on the GHC3,000. Other reliefs claimed by Plaintiff are however dismissed for lack of sufficient evidence. b. The defendant’s counterclaim is granted in part, in that the Plaintiff is hereby ordered to pack her things out of the container within seven (7) days from the day of receiving the interest or GHC2,000.00 from the Defendant as stated above. c. There will be no order as to costs since the parties are husband and wife with two children even though they are currently separated. The parties are to bear their respective cost incurred in pursuing this matter. *JUDGMENT-STEPHANIE ANONGTIBSUM VRS. RAZAK AZUMAH (SUIT NO. A11/12/2024) * Page 13 of 14 *HWMNJ@DC/BLG-18/03/2025* (SGD.) H/W MAWUKOENYA NUTEKPOR (DISTRICT MAGISTRATE) *JUDGMENT-STEPHANIE ANONGTIBSUM VRS. RAZAK AZUMAH (SUIT NO. A11/12/2024) * Page 14 of 14