Opoku Vrs Acheaw [2022] GHADC 94 (16 November 2022)

SITTING IN THE DISTRICT COURT AT WENCHI IN THE BONO REGION ON WEDNESDAY THE 16TH DAY OF NOVEMBER,2022,BEFORE HIS WORSHIP MR. ISSAH ABDUL-WAHAB ( MAGISTRATE) SUIT NO. A6/05/22 BETWEEN ASUAA GRACE OPOKU OF YOYOANO PLAINTIFF VRS: OWUSU ACHEAW OF YOYOANO DEFENDANT J U D G E M E NT The plaintiff herein following the dissolution of her customary marriage with the defendant fled this writ seeking the following reliefs; (a) Her fair share of both cashew farms the parties jointly acquired for the past twenty seven (27) years of marriage at “Mpampa” and “Dante” respectively; (b) Fair share of house with Digital Number BW-0311-8483 and Un-numbered plot at Yoyoanoa. (c) Fair share of orange and Mango farm at “Mpampani” and Dante” or their equivalent monetary value which are two (2) acres respectivel y. (d) An order for the maintenance of the children. (e) Any further order (s) the court may deem fit to make. The defendant, after the claims were read and explained to him (defendant) pleaded not liable to same. The issues then set down for trial by the court were; (1) Whether or not the parties has any cashew farms at “Mpampa” and “Dante” respectively. (2) Whether or not the said cashew farms were jointly cultivated by the parties. (3) Whether or not the parties have any house at Yoyoano with Digital address BW-0311-8483 and plot un-numbered. (4) Whether they acquired the said house together. (5) Whether or not there is any orange and mango arms at “Mpampa and “Dante” which the parties acquired together. (6) Whether or not the plaintiff herein is entitle to a share of the farms and said un- numbered house. (7) Whether or not any order will lie for the maintenance of the children of the parties. The plaintiff in her evidence in-chief told the court she is Opoku Asuaa Grace and that she lives at Yoyoano and is a farmer. That she (plaintiff) married the defendant when he was a farmer. That they made a yam planted cashew on it. That she worked with the defendant. Then later they had issues and she (plaintiff) opted of the marriage. She then told the defendant to give her (plaintiff) her share of the properties they acquired and that is why she has come to court. That they will both take care of the children. That they built a house and have a plot of land to. She prayed the court to give her (plaintiff) her share. When asked by the defendant, why she (plaintiff) left the marriage, plaintiff said defendant took her (plaintiff) to the traditional council that she (plaintiff) stole his (defendant) cashew and that the family tried to settle the matter but defendant refused and that defendant beat her (plaintiff) in the room. When asked by defendant why she (plaintiff) never informed him (defendant) and always went to harvest the cashew, plaintiff said defendant always harvested the cashew and when the children went money defendant will not give them. The sole witness of the plaintiff (P. W.1) told the court he is Emmanuel Besea and that he is a farmer. That he knows the parties. That he farmed with the parties in the area and they share a common boundary. That he saw plaintiff and the defendant always on their farm. When defendant told the witness (P. W.1) that he does not share boundary with him (P. W.1) but he rather shares boundary with his (P. W.1) mother, P. W.1 said that is true, and that his (P. W.1) mother shares boundary with defendant. When told by the defendant that the land is family land and so he (defendant) cannot give a portion to the plaintiff, P. W.1 said defendant can give the plaintiff with the consent of his (defendant) family. The defendant in his evidence in chief told the court he is Owusu Acheaw Stephen and he lives Yoyoano and that he is a farmer. Defendant said he knows the plaintiff that the properties the plaintiff mentioned are true. That the land used for the farm is his (defendant) family land. That the plaintiff know this and because of that the plaintiff told him (defendant) to also do something for her (plaintiff) on her (plaintiff) family land. Defendant said he agreed and did same for the plaintiff. Defendant said he made similar farms for the plaintiff on her (plaintiff) family land. That at the time he cultivated the mango and orange he had not married the plaintiff. Defendant said for 12 years the plaintiff even harvested the mango and oranges and kept all the proceeds to herself. That when he (defendant) requested that plaintiff renders account plaintiff said she used the proceeds to build a self-contained house at Sabon Zongo in Techiman. Defendant told the court when he started the cashew farm, plaintiff said she will not work with him (defendant) and that she was also doing her own business (trading). Defendant said what he (defendant) has done for the plaintiff is more than what the plaintiff says he (defendant) has. That his (defendant) Sanya motor bike with registration number M-13-2126 he does not know where it is even though the papers of the bike are with the plaintiff. That the plaintiff cooks for men he (defendant) does not know plaintiff leaves home and comes at I am without telling him (defendant) where she goes. Defendant said in all of these he gave plaintiff capital to sell fish (fish monging) plaintiff said the house the plaintiff talked about is for their children. Defendant said the store plaintiff also talked about is uncompleted and that he (defendant) was preparing it for their daughter who learnt sewing and needs a place to work. That the two rooms they built the plaintiff and her family have caused damage to the said two (2) rooms. When plaintiff told defendant if the farm is on family land. That the family knows they did it together, defendant answered that his family has not said he should give her (plaintiff) part of the land. When told defendant’s brother Asuma and mother Ama Manu are aware, defendant said the family has not said so. Defendant did not call any witness. The court however called one Maame Ama Asuamah, @ Ama Manu, who was mentioned by both parties and who is also a member of the defendant’s family. She testified as a court witness. She told the court she is Maame Ama Asuamah and also known as Ama Manu. That she is a farmer and lives at Nkonsia. That she know the parties. That the defendant is her son. Her elder sister’s son is the defendant. That plaintiff is the wife of the defendant. That the defendant cultivated or farmed on their mother’s land and which is a family land. That the parties recently had some issues and the plaintiff demanded that the defendant gives her a share of the farm land. The witness said the land is a family land. When asked by the plaintiff if their mother and her (CW) elder sister were alive when she (plaintiff) and defendant started work on the land, the witness said they were alive. When told their mother said this the women should also farm on the land so one day they will not say it is family land, the witness said that is not true. Having carefully evaluated the evidence, it is important to observe that the parties got married customarily for about twenty seven years (27years) and which said marriage produced four (4) children aged 25years, 20years, 12years and 6years respectively. This marriage was subsequently dissolved due to some unresolved problems of the parties. The plaintiff stated that she opted out of the marriage and this was corroborated by the defendant who also told the court he never divorced the plaintiff and that the plaintiff said she can’t marry him (defendant) again and therefore caused the marriage to be dissolved. Again, it must be noted that the plaintiff stated that during the pendency of the said marriage, she helped the defendant cultivate his (defendant) farm which is a cashew farm and then mango and orange at “Mpampa” and Dante” and prayed the court to give her (plaintiff) a share of the said farm. The defendant told the court the said farm is on his (defendant) family land and the plaintiff knows that from the begging. The defendant contended that because he (defendant) farms on his family land and which the plaintiff knows, he (defendant) also assisted the plaintiff to cultivate her (plaintiff) farm also on her (plaintiff) family land. Defendant stated that he did this for the plaintiff because he knows he (defendant) cannot give his family land to the plaintiff without the consent of his (Defendant) family. Here it must be noted that the plaintiff herself never disputed the fact as stated by the defendant that the farm is on his (Defendant) family land and that he (Defendant) farms on same even though the land belongs to the family, and that plaintiff knew this fact right from the time he married the plaintiff. Here again, the question to ask is whether or not the plaintiff can give a portion of his (defendant) family land to the plaintiff without the consent of his (defendant) family? To answer this question, it must be stated that even though plaintiff said the defendants’ brother, and his mother Ama Manu are aware and that they said defendant should give her (plaintiff) a portion but defendant refused, the defendant disputed the claim and contended that because the land is family land that was why he (defendant) also assisted plaintiff to cultivate her (plaintiff) own farm on her (plaintiff) family land to. It is important to observe also that plaintiff never called the said brother and mother or any family member of the defendant to support and confirm her claim that they (the family) told defendant to give her a portion of their family land. The court however called the said mother, Ama Manu as a court witness (CW) and she (CM) stated very emphatically before, the court that the defendant farms on their family land and that the family has not said anywhere that any portion of their farmland should be given to the plaintiff herein. In fact the court witness (CW) Ama Manu told the court the defendant is her (CW) late sister’s son and that defendant farms on their family land. The witness stated that when the parties had their issues, plaintiff demanded that defendant gives her a share of the farmland but they said the land is their family land and so defendant cannot give it out. Again, it must be observed that even when plaintiff told the witness (CW) that their mother when she was alive told they the ladies (CW and sister) to also farm on the land so that one day they do not tell defendant that the land is family land, the witness (CW) said that is not true. This question by the plaintiff then established two important facts relative to the said farmland she prayed this court to share. These facts are, firstly that the farmland she was a share of, is indeed in property of the defendants’ family and therefore not the property of the defendant or the parties herein. The second fact that has been established by the plaintiff’s own question is also that the farmland has not been shared for which the plaintiff can even claim the portion that the defendant is on is for the defendant. This is why the court witness (CW) Ama Manu rejected the plaintiff’s suggestion, during cross-examination that their mother before she died asked they the ladies, (that is, the witness Ama Manu and the defendants mother) to also go and farm on the land so they will not say one day that the land is family land. In the considered view of this court, the land was not shared and in fact has not been shared for which the defendant can claim any portion as his property. This the defendant forcefully told the court the plaintiff has always been aware of and that was why he (defendant) helped the plaintiff to also make a farm on her (plaintiff) family land to. Also it must be observed that the plaintiff asked for a share of a house with digital address BW-0311-8483 and a un-numbered plot at Yoyoano. The plaintiff though did not give proper particulars of the said house in both his particulars of claim and in his evidence in-chief, at least this court gleaned from the summary of the plaintiff’s complaint attached to her writ that the house has 3 rooms including tow (2) stores. The defendant stated that the house is a two (2) bedrooms and the store is un-completed. Defendant stated that he intended preparing the said store room for their daughter who learnt sewing. Defendant said this is where he lives and that the plaintiff after divorcing him packed to her (plaintiff) father’s house where she (plaintiff) lives now. It is therefore clear form the evidence that the said two (2) rooms including the store were built during the pendency of the marriage of the couple herein. The defendant though claimed the plaintiff also build a house from the proceeds of his (Defendant) cashew farm the defendant did not provide any evidence to support the said claim. Defendant also stated that the plaintiff harvested the cashew for almost 12years and kept all the proceeds/money to herself (defendant) and when he (defendant) demanded that the plaintiff renders accounts that was when plaintiff said she used the money to build a house at Techiman-Sabon –Zongo. That notwithstanding this court still took the view that the defendant did not provide any evidence of the said house he said plaintiff told him she (plaintiff) built in Techiman. And once the defendant is the one who made the said claim in court, the onus obviously was on him to prove same but defendant did not do that. Finally, it must be observed that on the issue of the farms, cultivated on the defendant’s family land, it is clear from the evidence before this court that the parties contemplated the issue of the land being the defendant’s family land and the problems that will arise on the issue of sharing, and that was why they also decided to cultivate another farm for the plaintiff on her (plaintiff) family land. This obviously was a decision by the parties to make provisions for each other regarding the future. So it will be unfair for the plaintiff to still asked to be given a share of what was done for the defendant whiles she (plaintiff) keeps her farm the two of them also cultivated on the plaintiff’s family land. From the evidence therefore, I found the following as facts; (1) That the parties married customarily for about 27years with four (4) issues/children of the said marriage. (2) That during the pendency of the marriage the plaintiff joined the defendant on his farm which he (defendant0 cultivated on his family land. (3) That the court also found that the fact that the land is the defendant’s family land was known to the plaintiff and so the defendant assisted plaintiff to also cultivate same on her (plaintiff) family land for herself. (4) That the parties also put up the 2 rooms including the uncompleted store and which 2 room house the defendant currently lives in alone as the plaintiff moved out after she opted out of the marriage. In a civil trial the party who in his/her pleadings or writ of summons raise issues that are essential to the success of their claim assumes the onus of proof. This position of the law is founded on the legal principle that says, “that he who avers must prove”. See Faibi Vs State Hotels Corp. { 1968} GLR, 176. In setting the standard burden of proof on the party making the averment, the Evidence Act of 1975 (NRCD 323) has imposed the “persuasive burden” on the party making the averment when it stated in section 11 (4) that the persuasive burden, “relates to each fact the existence or non- existence of which is essential to the claim or defence he is asserting”. The Act 323 provides further that the burden of persuasion requires a prove by the preponderance of the probabilities which is also defined in section 12 (2) as “ the degree of certainty of belief in the mind of the court, by which the court is convinced that the existence of the fact is more probable than its non-existence”. The parties herein were married under the customary law (Akan Custom) and so their marriage relationship was governed by the rules of the custom applicable to the area they hail from customary law has been defined under article 11 (3) of the 1992 constitution of Ghana to mean “the rules of law by custom which are applicable to particular communities in Ghana “. These include the rules of customary law that have been determined by the Superior Court of Judicature. It has been held that, by customary law, it is the domestic responsibility of a man’s wife and children to assist him in the carrying out of the duties of his station in life, eg farming or business. The proceeds of this joint effort of a man and his wife and/or children and any property which the man acquired with such proceeds, are by customary law the individual property of the man. This general rule of customary was stated in the case of Quartey Vs Martey & Another {1959} GLR, 377 and that it is not the joint property of the man and the wife and/or children. That the right of the wife and the children is a right to maintenance and support from the husband and father”. However this rule as exposed above in Quartey Vs Martey & Another (Supra) with not apply where there is evidence before the court that both parties (man and wife) both contributed financially and materials to the acquisition and or construction of the house as was held in the case of Abebrese Vs Kaah & Others {1976} 2GLR, 46. that “ taking the evidence as a whole ----- I am of the view that the plaintiff in the construction of the house number JA-182, --- was more than mere assistance given by a wife married under customary law to her husband. She in her own right actively participated and contributed in no small way towards the completion of the house”. And that “my humble view is that the rule in Quartey Vs Martey does not apply to this case”. Therefore where it can be shown that each party made visible and quantifiable monetary and material contribution to the acquisition then the property is a joint property. In this instant case, the plaintiff herein even though stated they jointly acquired the farm and the rooms, after she married the defendant, in respect of the house, the plaintiff did not provide any evidence as to the nature of the contribution to the acquisition of the two (2) rooms. It has however been inferred that the contribution made by the plaintiff related to the assistance she gave to the defendant as a wife during the marriage on his (defendant) farm and from which the 2 room were built using the proceeds. This clearly on the principle as stated in Quartey Vs Martey (Supra) was the plaintiff’s domestic responsibility she performed as a wife which also earned her (plaintiff) the commensurate right of maintenance by the defendant. Having regard to the evidence before me and the law as stated above therefore, it is my considered conclusion that the plaintiff has failed to prove her case on the 1st and 3rd claims which are the farm and same is dismissed. However on the 2nd claim the court finds for the plaintiff and judgment is entered for her. The reasons for the above conclusion include; (1) That the parties married customarily and lived together for 27 years with four (4) children. (2) That during the marriage plaintiff helped defendant when was the husband to work on his farm defendant made on his family land. (3) That because the parties knew the defendant was on his family land, they defendant also helped plaintiff to cultivate another farm for herself on her (plaintiff) family land to. (4) That both parties worked on their respective farms even before the issues that led to the dissolution came up. (5) That if after the dissolution the plaintiff is asking for a share of the defendant’s farm whiles she keeps her farm which was also jointly cultivated than that is unfair. (6) That the 2 rooms where the parties lived even though were built with the proceeds with the proceeds from defendant’s farm the plaintiff helped in that regard as a wife but did not contribute directly in monetary terms. (7) That the plaintiff failed to prove her claims on the first (1st) and third (3rd) reliefs but proved the second (2nd ) relief on the preponderance of probabilities and as required by lane. The following orders are accordingly made; (1) The plaintiff 1st and 3rd claims are dismissed. (2) The defendant herein is ordered to pay cash the sum of GH₵4,000.00 to the plaintiff as compensation for the contribution towards the acquisition of the 2 rooms. (3) Cost of GH₵1,000.00 for the plaintiff and against the defendant. ……………………………. ISSAH ABDUL-WAHAB (MAGISTRATE) 12