Addai Vrs Adoma And 4 Others (LC/132/98) [2022] GHACC 319 (26 October 2022)

IN THE CIRCUIT COURT HELD IN KUMASI ON MONDAY THE 26TH DAY OF OCTOBER, 2022 BEFORE HER HONOUR PRISCILLA DAPAAH MIREKU (MRS.), CIRCUIT COURT JUDGE. SUIT NO. LC/132/98 FAUSTINA ADDAI VRS: 1. AMA ADOMA 2. AKUA BRAYIE 3. ATAA 4. MR. ADOMAKO (DECEASED) 5. LETICIA BERKO ---------------------------------------------------------------------------------------------------- JUDGMENT ---------------------------------------------------------------------------------------------------- This is instant suit was instituted on 20th day of August, 1998 against the first to fourth defendants and the Plaintiff prays for the following reliefs; a. A declaration that H/No. KPS Plot 3 Buakrom Kumasi and the plot on which it is sited is the property of Charles Oppong Mensah (Deceased). b. A declaration that the plaintiff is entitled to a portion of the said house and the plot of the deceased, Charles Oppong Mensah in accordance with PNDCL 111. c. An Order of perpetual injunction restraining the defendants, their agents, assigns, servants, successors-in-title and all other person(s) claiming through or under them from in anyway interfering with Plaintiff’s quiet and peaceful enjoyment of her interest in the said house and or dealing with the said property in a manner inconsistent with her interest in the said property. d. And or such further order(s) as can be made under Order 63r. 6 of LN 140A, the High Court Civil Procedure Rules. e. The 1st and 4th defendants for a reasonable and or lawful share of the compensation they received in respect of the accident claim they made as a result of the death of Charles Oppong Mensah. The 5th defendant was subsequently joined to the suit. The 1st, 2nd, 3rd and 4th defendants did not pray for a counterclaim but the 5th defendant counterclaim for the following; 1. A declaration that she is the lawful widow of Charles Kwaku Oppong Mensah (Deceased) and is consequently entitled to enjoy the portion of the widow of the deceased upon his death intestate. 2. A declaration that the Plaintiff was never married by the deceased and is consequently not entitled to any portion of the deceased estate. The issues adopted for trial were as follows; i. Whether or not the plaintiff is a wife and consequently, a widow of the deceased Charles Oppong Mensah. ii. Whether or not the defendants and their family recognized the plaintiff as a wife and therefore widow of the deceased. iii. Whether or not the plaintiff is entitled to the reliefs she is claiming. iv. Any other issue(s) raised in the pleadings. THE PLAINTIFF’S CASE; It is the case of the plaintiff that she is the widow of the late Charles Oppong Mensah who died through a motor accident on the 1st day of January, 1998. That upon the death of the said Charles Opong Mensah, she to the knowledge of the 1st to 4th defendants performed the widowhood rites. The plaintiff further avers that the said Charles Oppong Mensah (deceased) in his life time acquired KPS Plot 3 Buokrom from one Mr. Nsenkyire the Agonahene and put up a house consisting of three flats, a semidetached two flats and a detached flat on the said plot of land. At the death of Charles Oppong Mensah, the plaintiff claims she was in occupation of one of the semi-detached flats with her husband and the 1st defendant lived with them. The plaintiff further avers that the 1st, 2nd and 3rd Defendants have been disturbing her peaceful enjoyment of her interest in the said house and they are doing all they can to get her out of the house contrary to law. the plaintiff claims she has an interest in the deceased estate and is entitled to live in the house aforementioned. Furthermore, the plaintiff claims the 1st and 4th defendants collected compensation for and on behalf of the dependants of the deceased but they failed and or refused to give her the portion due her and have shared same among themselves. Wherefore she prays for the reliefs endorsed on the writ of summons. THE DEFENDANTS’ CASE The 1st, 2nd and 3rd Defendants defence is that, the plaintiff was never married to the deceased Charles Oppong Mensah and that she was only his fiancée. The 5th defendant applied to this honourable Court to be joined as party to the suit and same was granted. The 5thdefendant claims to be the only lawful widow of the deceased Charles Oppong Mensah and that Plaintiff has no child with the deceased. According to the 5th defendant, she sorjouned in Germany with the deceased as a married couple from 1981 to 1986 and they begat one issue and later had five others. That whiles domicile in Germany, they jointly acquired a Mercedes Benz Cargo truck 1113 in the name of 5th defendant. That the 4th defendant operated the said vehicle commercially until it broke down and was grounded. Upon their return to Ghana, they brought another vehicle this time shipped in the name of the deceased. The 2nd vehicle was sold and proceeds used to repair the grounded truck. The 5th defendant further claims that out of the proceeds of both trucks they acquired Plot No. KPS 3, Bukrom from Mr. Nsenkyire in the name of the deceased. The 5th defendant avers that, it was out of the proceeds that they started constructing the house in question. The 5th defendant alleges that the plaintiff was only a mistress of her late husband. That her marriage to the defendant was registered at the Kumasi City Council in which the 4th defendant is one of the witnesses. That the date of her marriage to the defendant was stated as 11th June, 1981 for the sake of convenience to enable her procure her visa to Germany. Thus the plaintiff has never been the wife of the deceased and is not entitled to the reliefs endorsed on her writ of summons. The 5th defendant however counterclaims for the aforementioned reliefs above. EVALUATION OF LAW AND EVIDENCE; Even though at the time the plaintiff instituted this action, the High Court civil Procedure Rules. C. I. 47 was not in existence, the burden of proof per the evidence decree was same as now. Section 12 of the Evidence Act 1975 (NRCD 323) provides that, (1)Except as otherwise provided by law, the burden of persuasion requires proof by a preponderance of the probabilities. (2)"Preponderance of the 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. In the case of Zambrama v. Segbezi [1991] 2 GLR 221 @ 246 it was held that, A person who makes an denied by his opponent, has a burden to establish that his averment or assertion is true. And he does not averment or assertion, which is averment or assertion determines the degree discharge this burden from which the fact or facts he asserted can properly and safely be inferred. The nature of each and nature of the burden. In a recent case of Equity Assurance v. Palmers Green Int’l Ltd [2019] 134 GMJ 57, proof in civil trials were stated as follows; Section 11(4) and 12 of the Evidence Act, 1975 (NRCD 323) require a plaintiff in a civil matter to prove his case on a balance of probabilities. Based on section11(4) and 12 of Evidence Act (NRCD 323), the Supreme Court in the case of Awubeng v. Domfeh [1996-97] SCGLR 660 held that standard of proof in all civil action was proof by the preponderance of probabilities and there is no exception to this rule. Thus, the burden is on the plaintiff to prove her claims of being the wife of the late Charles Oppong Mensah who dies in January 1998 as same has been denied by the preponderance of probabilities. The plaintiff in proving her case called one Nana Kwakye Sarpong (PW1) to testify on her behalf. The said witness testified that he was the head of family of the late Oppong Mensah and also related to the 1st to 4th defendants. PW1 testified that at the death of Charles Oppong Mensah, he was married to the plaintiff and that as the head of family he led the family who conducted the customary marriage of the Plaintiff and the deceased Charles Oppong Mensah. PW1 tendered cards prepared during the funeral rites of the deceased and same was mark as Exhibit ‘A’. Per Exhibit ‘A’, the plaintiff was named as the widow of the deceased. PW1 further testified that the Plaintiff was the one who performed the widowhood rite and not the 5th Defendant as the 5th Defendant had long divorce the deceased before his death. That while Charles Oppong Mensah was alive he was residing with his wife the Plaintiff in his house and that the 5th Defendant has never lay claim to the said house or part of it when the late Charles Oppong Mensah was alive. During trial, this honourable declared that, the 1st, 2nd and 3rd defendants were incompetent to testify as the 4th defendant filed a defence on their behalf and upon his demise they filed to file their defence when the court prompted them severally. Thus the 5th defendant was called to testify. The 5th defendant testified on her own behalf and testified that the deceased C. K. married her in 1973 customarily and they were blessed with six children. That, they had their first issue before they became husband and wife. The 5th defendant tendered a document to show that she was married to the deceased Charles Oppong Mensah alias C. K. and same was marked as Exhibits ‘1’ and ‘1A’. According to the 5th Defendant, they registered their marriage and Exhibit ‘1’ is proof of same. The 5th further testified that because her husband was overseas, the KMA officials dre the date of marriage forward to facilitate in a acquisition of travel documents to join him the difference between the actual date of marriage and that on the certificate. The 5th defendant also claims that she joined her husband in Germany in 1982 and it was out of their joint effort that they constructed the subject matter. The 5th defendant tendered a receipt marked as Exhibit ‘2’ to proof that she jointly acquired a vehicle with the late C. K. and proceeds from the said vehicle was used in the construction of the subject matter. Exhibits ‘3’, ‘3A’ and ‘4’ were all tendered by the 5th defendant to show proof of her claim of acquiring vehicles from Germany with her alleged late husband which same was run by the said husband and proceeds use to acquire the subject matter. The 5th defendant testified that the late C. K also borrowed three thousand (3000) blocks from her mother for the construction of the house with a promise to replace same which he never did. That the late C. K. took for himself a girlfriend from Techiman which is the Plaintiff. That he sent the girlfriend to live in the house they were building were as they were staying together in her mother’s house. According to the 5th defendant, she never divorced her husband and the husband never married the plaintiff. That she is the only widow for the late C. K. The first issue for consideration is whether or not the plaintiff is a wife and consequently, a widow of the deceased Charles Oppong Mensah. The plaintiff claims to be the widow of Charles Oppong Mensah (C. K.) deceased and same has been denied by the defendants. The plaintiff called upon PW1 to testify on her behalf. PW1 alleged that he was the head of their Aduana clan and same was not denied by the defendants. According to PW1, he and some members of the family did the customary rites for the marriage of the plaintiff to the deceased. Per the evidence before this honourable court, this court is of the firm believe that the deceased C. K. married the plaintiff customarily and it for that reason that she was acknowledge as a wife by the family when they made the funeral invitation card naming her as such. That the defendants started calling her a concubine when she demanded for part of benefit the family received as a result of the deceased accident. The second issue for consideration is whether or not the defendants and their family recognized the plaintiff as a wife and therefore widow of the deceased. As stated above, the family considered the plaintiff as a wife until it came to the benefit of the deceased estate as she did not have children for the deceased. This honourable court is of the view that there is the issue of whether or not the plaintiff was the only wife of the late Charles Oppong Mensah. PW1 testified that the 5th Defendant was once married to the deceased but she said she will not marry the deceased again so she divorced him. The plaintiff also alleges that the 5th defendant and deceased were divorce at the time of his death thus she the plaintiff is the only widow of Charles Oppong Mensah. The 5th defendant in proving that she was married to the deceased C. K. tendered a picture and a certificate of marriage to show that she was married to the late Charles Oppong Mensah. I do not think that there is any doubt to the fact that the 5th defendant and the late C. K. were customarily married and had six children together. The disagreement is in respect of whether the said marriage was dissolved. it is the plaintiff who is alleging the marriage between Charles Oppong Mensah and the 5th defendant had been dissolved thus the onus was on her to prove same. It is trite that our customary marriages are polygamous in nature. Indeed from the evidence led before this court, the 5th defendant and the late C. K. were husband and wife and not a single evidence has been led to show that the marriage was dissolved customarily before the death of C. K. the alleged registration of the marriage did not make the marriage an ordinance marriage as customary marriage can also be registered in accordance to law. The plaintiff under cross examination admitted that, the 5th defendant came with her people to do the widowhood rite but was allegedly stopped by other defendants. This clearly shows that’s the 5th defendant still considered herself as a wife of the deceased. Verbal communication of not interested in a marriage does not constitute a divorce. Even customary there are ways of dissolving a marriage. This court finds that at the death of Charles Oppong Mensah, he was married to both the plaintiff and the 5th defendant. Thus the 5th Defendant was the first wife and the plaintiff the second wife. The last issue for consideration is whether or not the plaintiff and the 5th defendant are entitled to the reliefs they are claiming. As aforementioned, the 5th defendant also counterclaim for the reliefs aforementioned and in the case of Aryee And Akakpo v. Ayaa Idrissu [2010] SCGLR 891 @ 901, it was held that, “A party who counterclaims bears the burden of proving his counterclaim on the preponderance of the probabilities and would not win on that issue only because the original claim has failed. The party wins in the counterclaim on the strength of his own case and not on the weakness of his opponent’s case.” Thus the onus on her was same as that on the plaintiff to prove her case. Counsel for the plaintiff submit in his address that the 5th defendant mounting the box to repeat her pleadings was not enough and that she did not lead credible evidence to prove her claim. This I beg to differ. The 5th defendant adequately prove that she was married to the late C. K. and went further to tender evidence to prove that she did contributed in the acquiring of the subject matter. Even though the 5th defendant did not call any witness to corroborate her evidence, the plaintiff had admitted the late Charles Oppong Mensah was using the truck aforementioned to run commercially and out of the proceeds he acquired the subject matter. In any case, the 5th defendant being married to the late Charles Oppong Mensah is not in issue. As this honourable court has found that both the plaintiff and the 5th defendant were the wives of Charles Oppong Mensah, they are both entitle to their share of the estate of the late Charles Oppong Mensah in accordance to law. The evidence shows that the late C. K. was also survived by eight children and his mother at the time of his death. These children are also entitle to a share of their father’s estate. This honourable court hereby appoints the Registrar of this court to ensure that the estate of the late Charles Oppong Mensah is distributed in accordance to PNDCL 111. The plaintiff is also praying for a share of the compensation paid to the 1st and 4th defendants. The evidence on record shows that, it was the 4th defendant who received the said compensation and shared same among his siblings but the 4th defendant has long expired and the court cannot order the dead to pay money to the living. CONCLUSION; Charles Oppong Mensah died on 1st January, 1998 and his family has been in court for the past 24 years because he did not put his house in order before his demise. It is important that one ensures that all is in order as no one can determine when death will knock on one’s door. The plaintiff succeeds in all her claim as endorsed on her writ of summons and judgment is entered for her per the said reliefs. The 5th defendant also succeed on her first counterclaim and the court dismisses her second counterclaim as the court finds that there were both customarily married to the late Charles Oppong Mensah at the time of his death. There will be no order as to cost. Parties are to bear their own cost. SGD. H/H PRISCILLA DAPAAH MIREKU (MRS.) CIRCUIT COURT 2, ADUM – KUMASI 26TH OCTOBER, 2022 10