Darkwa v Adoma and Another (A1/4/2020) [2025] GHACC 49 (17 April 2025)

IN THE CIRCUIT COURT HELD AT ANYINAM ON FRIDAY 17TH APRIL 2025, BEFORE HISHONOUR FRANKLINTITUS-GLOVERESQ(JUDGE) SUIT No. A1/4/2020 VERONICA DARKWA PLAINTIFF VRS SHIRLEY ADOMA &ANOTHER DEFENDANTS --- JUDGMENT The plaintiff sought the following reliefs per herwrit ofsummons 1. Declaration of title and recovery of possession to all the seven (7) bedroom house (unnumbered) consisting of three (3) Chamber and Hall Self-Contained rooms and four (4) Single bedroom Self-Contained rooms situate at Osino, same being joint propertyofplaintiff and her latehusband Mr. Daniel Darkwa. 2. Perpetual injunction restricting the defendants, their agents, servants, workmen and any other persons claiming through them from having any dealing with the said house. 3. Punitive cost including legalfees oftheplaintiff. The defendants did notfile acounterclaim. The plaintiff’s amended statement of claim says that sometime in 2014, her now deceased husband, Mr. Daniel Darkwa informed her that the 1st defendant herein, Shirley Adoma, had expressed her interest in renting one of their unnumbered houses, consequent to which she and Mr.Darkwa rented the said room to the 1st defendant. One year later, the 1st defendant moved to occupy another of the couples’ uncompleted 1 houses. When the plaintiff queried her husband about the move, he explained that the 1st defendant was occupying same to complete her 2-year previous rental. She stated further however, that when the said rental period elapsed, the 1st defendant failed or refused toquit the house, neitherdid she renewthe renttransaction. It was the plaintiff’s further testimony that as a result, she personally went to ask the 1st defendant to vacate the house because her rent had expired. That was when the 1st defendant told her that she had purchased the house from Mr. Darkwa. The plaintiff vehemently informed 1st defendant that since the property belonged to the plaintiff and Mr. Darkwa jointly, she cannot purport to purchase same from him without the plaintiff’s consent. Consequently, the 1st defendant told the plaintiff to refund the GhC40,000.00 she spent in purchasing the property from Mr. Darkwa if she wanted the house returned. The plaintiff says when she gathered and sent the said amount to the 1st Defendant, she said she was no longer interested in taking the money, and would neither vacate the house. Plaintiff expresses surprise that the 1st defendant subsequently claims that it is the 2nd defendant herein, Anthony Twumasi, who purchased the house fromher latehusband. Concluding her testimony per her witness statement, the plaintiff reiterated that the disputed house was at all material times a matrimonial home jointly acquired by herself and her late husband, and consequently asserted that the 2nd defendant cannot purport to buy same from Mr. Darkwa without her consent. She said all efforts to retrieve the disputed joint property from the defendants have proved futile, expressing the belief that they will not release the house to her nor stop their unlawful and irritating acts of holding ontosame, without the intervention ofthecourt. The plaintiff did notcall anywitness. 2 Under cross-examination, she insisted that the disputed property was jointly built by herself and Mr. Darkwa who she married customarily in 1994, before the marriage was subsequently converted into ordinance. She explained that though the properties were jointly acquired by both herself and Mr. Darkwa, the documentations were made in her husband’s name only, because “there was not much civilization as there is today”. She tendered in evidence Exhibit 2, a Change of Ownership Certificate to show the example that Mr.Darkwa gifted her the Remnant Mission Schoolwhen he was alive eventhough same initially belonged to them both, for which she gave aseda. She said they bought the land and built the schooltogether. Rejecting defendants’ counsel’s suggestion that her acquisition of a loan was personal, which was merely guaranteed by her husband Mr. Darkwa, and therefore same could not prove that the said loan was for purchase or construction of a joint property or project, the plaintiff explained that though it was personal, she took same to support the construction of the instantly disputed house. (ct takes notice that if the individuals owned the account, i.e. if the account is not a joint account, the couple cannot take a joint loan together) She said she always accompanied her husband when they purchased a property. Consequently, in respect of the disputed property, she accompanied Mr. Darkwa, as wife, to purchase the land from the Chief of Osino, Barimah Osampanin III, (debunking the suggestion that he bought the said land before marrying the plaintiff) and in fact insisted that she was the one who did the due diligence enquiries for this purchase as she always did when they were buying land, though as she had previously indicated, the documentation was done in the name of Mr. Darkwa only. In support of that evidence, she submitted an official receipt dated 29th May 2019 in respect of a sale of a piece of land in Accra to a certain Vera Akoto, which document, apart from the heading indicating both their names, also has in the body 3 among other content, that the said receipt of the money was made in the presence of the plaintiff. On the question of her capacity to initiate the instant suit, the plaintiff insisted she is properly placed to sue because her money was involved in the joint project. She further said when the family and children went to court in respect of Letters of Administration since Mr. Darkwa died intestate, there was a consensus that since the deceased had gifted the bulk of his properties to family members, with the exception of a house in Accra, and two othersin the possessionofhis girlfriend and his sister respectively, there was no need for the process. She however tasked Mr. Darkwa’s children to search for other possible properties he may not have disclosed in respect of which Letters of Administration may be pursued. The 1st defendant filed a witness statement on behalf of herself and the 2nd defendant. The said statement dwelt quite extensively on matters of the capacity of the plaintiff to prosecute the matter in the first place, the fact of the disputed property being part of property owned by the demised Mr. Darkwa from the Chief of Osino, providing an exhibit of the said transaction between Mr. Darkwa and the chief. She further said, sometime in 2016,Mr.Darkwa assigned his interest in that property tothe 2nd defendant for valuable consideration, attaching two copies of respective receipts of GhC20,000.00 and GhC10,000.00 allegedly issued by Mr. Darkwa to the 2nd defendant for the said purchase, as well as a deed of assignment. She purports that the 2nd defendant could not tracethe receipt ofthe finalpayment he made inrespect ofthe disputed property. Finally, the statement said the late Mr. Darkwa was, during his lifetime, in the business of buying and selling immovable property. There was attached a list of names of persons to whom such purchases had allegedly been made by Mr. Darkwa. 4 Consequently, the defendants prayed the court to set aside the plaintiff’s writ of summonsas well astheaccompanying statement ofclaimforwant ofcapacity tosue. When the 1st defendant was cross-examined, she told the court that she did not buy the property personally so she could not tell the cost. Considering that she was giving evidence on behalf of the 2nd defendant also, she could easily have elicited such relevant information from the 2nd defendant. She said she did not ask, neither did the 2nd defendant tell her. He simply told her he had purchased a house from Mr. Darkwa. She also said Mr. Darkwa himself told her that he had gifted the Remnant Mission School to the plaintiff. She however did not admit that same had been a joint property for the couple all through their marriage. She could not tell why the receipts purportedly evidencing the purchase of the disputed property bore the name of Remnant Mission School. Asked to explain why the narratives on the two receipts respectively describe a house and aland, though bothpurportto be issued in respect of the disputed house, the 1st defendant merely maintained, without any explanation, that both were in respect of the disputed house. Finally, when 1st defendant’s own Exhibit 3, same being a list of persons to whom Mr. Darkwa had purportedly either sold or leased properties was shown to have her name as being first on the list, she still denied having personally bought the instantly disputed property, but explained she probably had her name on the list because she is the oneoccupying same. The defendants called a common witness, Kwabena Appiah Kubi who described himself as a former tenant of Mr. Darkwa sometime in 2015. In the period of his said tenancy, he was co-tenants with the defendants herein. About two months into his tenancy, Mr. Darkwa told him, the 1st defendant herein and a certain Atta Sammy that he intended to sell two of his flats in order to pay off loans he owed the Adonteng Community Bank. He said both properties were consequently purchased respectively by the 2nd defendant and Atta Sammy, but the latter pulled out due to agitations by 5 occupants of the flat who were not willing to vacate the house after he bought same, mainly because their respective original tenancy agreements with Mr.Darkwa were still running. The common witness’s subsequent evidence narrated further sales and leases by Mr. Darkwa. He said the 2nd defendant made improvements on the disputed property without the plaintiff’s protest. He said Mr.Darkwa dealt with the tenant alone, i.e., asthe sole owner oftheproperty. The rest of his evidence purports matters personally known to him: among others, he says he knows the 2nd defendant bought the disputed house but which the 1st defendant occupies for GhC40,000.00; he knows that Mr. Darkwa, being an estate developer had previously sold two blocks of houses on the land to Atta Sammy currently occupied by staff of Kibi Goldfields, as well as three houses to a certain Kwame Ayim; he knows that Mr. Darkwa also granted leases to persons known personally to the witness herein for whose transactions he personally signed as witness. He capped that evidence with the statement “Iknowthe late DanielDarkwa owned exclusively allthe houses in the estateand sold orrented themalone asasole owner ofthose properties” Contrary to the impression that the evidence he had given in support of the defendants were matters personally known to the witness, DW1 in cross-examination virtually admitted to those matters only told him either by Mr. Darkwa, the defendants or some otherperson. Consequently, the court considers the bulk of the said evidence as hearsay evidence not being among the exceptions stipulated in the Evidence Decree, NRCD 323, and consequently treatsame withless weight. Theissue to resolve iswhether or notthe plaintiff is clothed to sue andrecover the disputed house. 6 It is trite law that, for a stool, family or individual to succeed in an action for a declaration of title, it must prove its method of acquisition CONCLUSIVELY (Caps mine), either by traditional evidence, or by overt acts of ownership exercised in respect of the subject matter of dispute. See ODOI VRS. HAMMOND [1971] 2 GLR 375 and FOSUA ADUPOKU VRS. DUFIE (DECEASED) & ADU POKU MENSAH [2009] SC GLR310. It is all the better if the party proves its method documentarily. However, the court finds different descriptions of the disputed property on the respective faces of the two receipts, one describing a house while the other described a land transaction. The said receipts were in themselves, without more, incapable of proving that Mr. Darkwa was the sole owner of theproperty indispute. To stretchthe argument further, the fact that a third receipt could not be traced defeats the intention to use them to prove, first of all, the amount at which the 2nd defendant claims he bought the disputed property, and subsequently, whether they adequately and specifically describe the disputed property. In fact, the descriptions on the faces of the said respective receipts, quite apart from describing different properties, also fall short of specifying that the payments were in respect ofthe instantlydisputed house. They simply readas followsrespectively: “…RECEIVED FROM Anthony T. Dwamena THE SUM OF Twenty Thousand Ghana Cedis BEINGPartpayment ofaplotofland at Osino…”and “RECEIVED fromMr.Anthony TwumasiGyamera THE SUMOFTen Thousand Ghana Cedis BEINGPart paymentofforsale ofBuilding at Osino…”. Though these two receipts (out of three, one of which is purportedly missing), are submitted as evidence of payment for the disputed house, the court finds that the said descriptions could well pass for any other transaction between Mr. Darkwa and the 2nd defendant herein other than the instantly disputed house. This fear of the court is 7 further heightened by the defendants’ Exhibit 2B, namely the Deed of Assignment between Mr.Darkwa and the 2nd defendant herein, which is clearly and entirely a strict land transaction having nothing to do with the instant house. Consequently, the court finds that the said receipts do not meet the standard of a CONCLUSIVE proof of purchase of the disputed house (and therefore not a conclusive proof of ownership) expected by law, assuming indeed that they were issued by Mr. Darkwa. The said Mr. Twumasi may have had other transactions with Mr. Darkwa, which transaction receipts have been deliberatelysubmitted hereto create the impression they bear evidence ofthe purchase of the instantly disputed property. The court finds it difficult to believe that the defendants could not identify the different descriptions on the faces of the receipts, in the first place, and secondly, that they did not specify the instantly disputed property, but could well have documented any other transaction between the parties in any alleged transaction. It is interesting that the receipts purporting to be issued by Mr. Darkwa’s sole business have the caption REMNANT MISSION SCHOOL when the defendants toute a Real Estate company exclusively owned by Mr. Darkwa, and particularly, in the 1st defendant’s acknowledgement that the said school is currently the sole property of the plaintiff. The court further finds, that upon the assumption that the plaintiff could not submit any proof of her alleged status of joint owner of the disputed property with her husband, (assuming indeed that any onus rested on her to provide such proof) the defendants on their own have neither shown anything concrete, apart from the terse verbal assertion, that Mr. Darkwa exclusively owned the disputed house prior to his alleged sale ofsame tothe2nd defendant. 8 On the other hand, the court perceives the plaintiff’s submission of her marriage certificate as an invitation to the court to assume that as a wife, she was either necessarily or automatically a joint owner of the property in dispute. To the extent that the courts deem matrimonial property as joint until the contrary is proved by a legitimate interested party, this court will adhere to that assumption. A trace of the development of the law on spousal property rights will show a trajectory where property acquired with the assistance of a wife was regarded as the sole property of the husband. The customary law position was that the wife and children had a domestic responsibility of assisting the husband/father with his business and as such a wife could not claim any interest in any property she assisted her husband to acquire. Consequently, in QUARTEY V. MARTEY [1959] GLR 377, Ollenu J. (as he then was) held at 380 that, “The proceeds of this joint effort of a man and his wife and/or children, and any property the man acquires with such proceeds, are by customary law the individual property of the man. It is not the joint property of the man and his wife and/or children. The right of the wife and the children is the right to maintenance and support fromthe husband and father.” The position above has changed with obvious change in traditional roles of men and womenas wellas withgreatereconomicempowerment ofwomen. In YEBOAH V. YEBOAH [1974] 2GLR 114 H.C., Hayfron Benjamin J. (as he then was) held that there was no positive customary law preventing the creation of joint interest by persons not related by blood. The current position of the law regarding joint property is that substantial contribution by a spouse to the acquisition of property during the subsistence of the marriage would entitle the spouse to an interest in the property. 9 In MENSAH V. MENSAH [1998-99] SCGLR 350, the court applied the equality is equity principle to determine which proportions the couples’ joint property would be shared. Bamford-Addo JSC held at 355 as follows:” …the principle that a property jointly acquired during marriage becomes joint property of the parties applies and such property should be shared equally on divorce, because the ordinary incidents of commerce have no application in marital relations between husband and wife who jointly acquired propertyduring marriage.” It would appear from the MENSAH V. MENSAH supra that the court favoured equal sharing of joint property in all circumstances. That position was further modified and clarified substantially in BOAFOV. BOAFO[2005-2006] SCGLR 705… Elsewhere in the said judgment, the court held thus:” We are therefore of the considered view that the time has come for this court to institutionalize this principle of equality in the sharing of marital property by spouses, after divorce, of all property acquired during the subsistence of the marriage in appropriate cases. This is based on the constitutional provisions in Article 22(3) and 33(5) of the Constitution 1992, the Jurisprudence of Equality, and the need to follow, apply and improve our previous decisions in MENSAH V. MENSAH and BOAFO V. BOAFO supra. The petitioner should be treated as an equal partner even after divorce in the devolution of the properties. SeeMENSAHV. MENSAH[2012] 1SCGLR391 In ARTHUR(No.2) V. ARTHUR(No.2) [2013-2014] SCGLR 569, the court made the following pronouncement; “What should be noted is that, the courts in Ghana have for some time now started whittling down the over reliance on the contributions or substantial contribution principle as a basis for sharing of properties acquired during marriage upon dissolution ofthe marriage. Cases like CLERK V. CLERK [1981] GLR 583 and BOAFO V. BOAFO [2005-2006] SCGLR 705, and MENSAH V. MENSAH [2012] 1 SCGLR 391 show the gradual shift in the decisions of this court which culminated in the 10 ordinary bench decision in ARTHUR (No. 1) V. ARTHUR (No. 2) …By these decisions, it is clear that the Supreme Court has now endorsed the “Jurisprudence of Equality” principle in the sharing ofmatrimonial propertyupon divorce.” Subsequent to the above, further developments have been expressed in more recent cases to the extent that spouses are capable of acquiring property exclusively but same must be expressly declared. This court however recognizes that per the time of the instant case, the said express declaration of exclusively acquired property is not applicable. From all the above, the courts generally deem spouses to jointly own properties acquired during the subsistence of their union, unless proven contrary circumstances prevail. Therefore, in the instant case, the court applies the same principle to determine that the properties acquired during the subsistence of the union between the plaintiff and the late Mr. Darkwa are jointly owned in the absence of any contrary evidence from the defendants. If the plaintiff is a joint owner of their properties, any sale or transaction cannot be purported to be done without her consent. She therefore has capacity to litigate any matter relating to the said properties, including the disputed property, in which she has joint ownership with her late husband. Even if the late husband intended to dispose of his portion only of the property, he was still obliged to do so with the knowledge and orconsent ofthe plaintiff forobvious reasons. The plaintiff further submitted documents meant to show that she secured a loan facility of GhC50,000.00 from Kwahu Praso Rural Bank, which was guaranteed for by her late husband, Mr. Darkwa. By the said exhibit, the plaintiff said she assessed that loan to assist in building the disputed house. The relevant question posed by the then counsel for defendants queried the proof that it was not a personal loan which Mr. Darkwa merely endorsed as a guarantor. The court takes notice of the fact that if an 11 individual’s bank account is exclusively owned by them, only the said individual can access a loan therefrom. On the other hand, a couple can apply for a loan jointly if they run a joint account. In the instant example, the court finds that the said account at Kwahu Praso Rural Bank was the plaintiff’s personal account, so she could only have accessed a personal loan there. Mr. Darkwa guaranteeing same was his commitment to the bank that in the event the plaintiff failed to make good the repayment of the facility accessed, he would bear the entire cost. Assuming a hypothetical situation that the plaintiff failed to repay the loan when same was due, would he as husband and guarantor of the said loan, not be sued on the plaintiff’s behalf for the said failure? On the other hand, if someone tampered with the property in respect of which the loan was secured, especially in the absence of the plaintiff, was the guarantor prevented from suing on her behalf? This court thinks that by virtue of the special relationship of being her guarantor for the loan, he will qualify to prosecute a lawsuit on plaintiff’s behalf, with or without proof of joint ownership. The fact of being a married couple enhances his chance toso represent her. The court therefore thinks that the reverse is what plays out in the instant case, and the court finds same acceptable. The affidavit Mr. Darkwa filed before the then Anyinam District Court (Exhibit 3 series) in December 2012 declaring that he had granted full ownership of the Remnant Mission School to the plaintiff herein alone, together with the fact that documentation of transactions by Mr. Darkwa bear the address of the Remnant Mission School, with quite anumber either witnessed by orinthe presence ofthe plaintiff, appearsto thecourt that she is a very active participant in her husband’s business transactions, rather than the impression the defendants want the court to have of him being an exclusive businessman. For example, the official receipt of 29th May 2019 evidencing a client’s payment for cement was received by Mr. Darkwa in the presence of the plaintiff herein 12 who also signed the receipt in her capacity as a witness for her husband. The court thinks the combined effect of all the plaintiff’s documents stand her in a better stead to proving a reason the court should favour her as a more probable joint owner of the disputed property….and consequently, same enables her to prosecute any matter in respect of the properties regarding her late husband. She need not necessarily succeed, but she cannot merely be prevented from doing so on a terse and unproved assertion that herhusband exclusively owned his businesses. Beyond the question of the parties’ mix of documentary submissions, the court also acknowledges that overt acts of ownership exercised in respect of the subject matter of dispute can be used to determine a party’s ownership and or possession of a disputed property as the case may be. In the instant case, the surprisingly unchallenged evidence of the plaintiff that she confronted the 1st defendant and sought to eject her from the facility, to which the latter suggested a refund of the alleged purchase price because she has bought the house, but only reneged when the plaintiff provided the requested money, is, in the mind of the court, an act of ownership or assertion of authority over the disputed property displayed by the plaintiff. As already indicated, the virtual silence by the defendants over that piece of evidence is overwhelming. The court thinks that, at least, assuming same occurred, (i.e., the plaintiff actually confronted the 1st defendant and sought to eject her from the house) the defendants would have informed Mr. Darkwa that his wife was interfering in their quiet enjoyment of the property he exclusively sold to them. That would have presented an opportunity to clarify the place of the plaintiff in the matter. On the other hand, if nothing of the sort occurred, the defendants would vehemently have challenged the evidence in court. If same did not occur, but the defendants kept quiet, they simply slept on their right, and they bear the consequences of failing to assert their right. From the failure to respond to the assertion, 13 the court can only determine the plaintiff’s action as exercising legitimate authority over the property in dispute. See ADJEIV.ACQUAH[1991]1 GLR13. As the plaintiff counsel reminded the 1st defendant during cross-examination, Mr. Darkwa himself was originally a defendant in the instant suit with the 1st defendant. Subsequently, the instant 2nd defendant applied to be joined in the suit. Unfortunately, Mr. Darkwa demised before the matter could travel its full course. The essence of the reminder is that the plaintiff sued Mr. Darkwa for selling the property to the 1st defendant without her knowledge and consent, considering her joint ownership claim, per herpleading. Beyond the silence, the court also finds the defendants’ evidence extremely limited in prosecuting the assertions made by the plaintiff. The summary of the defence was that the plaintiff had no capacity to sue, that the property was sold to the defendants, and the terse statement without any proof that the plaintiff did not have any interest in the propertyindispute andclosed same with aprayertothe court todismissthe matter. It appeared the defendants’ common witness had more to tell than the defendants themselves. Unfortunately, as has been said already, the bulk of his evidence was hearsay evidence without proof. A number of cases have firmly established the danger posed by accepting evidence given by witnesses involving deceased persons without scrutiny. For example, MONDIAL VENEER (GH) LTD V. AMUAH GYEBU IV [2011] 1 SCGLR 466 cautions the courts to weigh such claims carefully based on plain good sense. This court’s understanding is that a terse submission of facts or information without proofis notto be givenmuch weight. Intheinstant case, the court finds thatthe said information by the defendants’ common witness referred to supra were not proved. Also, in MOSES AND OTHERS V. ANANE [1989-90] 2GLR 694 (C.A) it was held that a claim against a deceased’s estate must be scrutinized with the utmost suspicion. Proof 14 must be strict and utterly convincing as one of the protagonists was dead and could not assert his claim. The court therefore finds that the mere submission of the information, without more, does not meet the standard of the strict proof envisaged and advocated by the cases supra. Consequently, in the instant case, the court does not accept the witness’s information about what he purportsMr.Darkwatoldhimsince same cannot be verified. The question of capacity of the plaintiff to sue came up earlier in the case when defendants counsel raised the subject. After he filed an application for a motion on notice for the court to determine her said status, a ruling called for a preliminary hearing on same. However, at the adjourned date, respective counsel for the parties agreed to have the substantive matter heard together with the preliminary one, and same wasadopted by the court. The court has made intimations to the effect that it finds the plaintiff capable of prosecuting this case via her determined position as joint owner of the property in dispute, as well as her perceived active participation in Mr. Darkwa’s transactions, if her evidence before the court is anything to go by. So far, the court finds no reason to rule otherwise, as alreadyindicated above. The court having determined that the defendants have failed to show on their own that the plaintiff is not a joint owner of the disputed property, particularly since that was their defence to the writ, and the court having determined that the plaintiff has shown that she has capacity to sue the defendants herein, and indeed anyone else in respect of her latehusband’sproperties, thecourt finds forthe plaintiff asfollows: 1. Declaration of title and recovery of possession to all the seven (7) bedroom house (unnumbered) consisting of three (3) Chamber and Hall Self-Contained rooms 15 and four (4) Single bedroom Self-Contained rooms situate at Osino, same being joint propertyofplaintiff and her latehusband Mr. Daniel Darkwa. 2. The defendants, their agents, servants, workmen and any other persons claiming through them are perpetually injuncted and restricted from having any dealing withthe said house. 3. Cost ofGhC8,000.00 isawarded against each defendant for theplaintiff. The court also makesthe following consequential order: A) The length of time the 1st defendant has lived in the disputed house is to be calculated and the rent due the plaintiff paid according to the existing rent rates and any subsequent periodic raises from the time of the alleged purchase by 2nd defendant. In the absence of proof of defendants’ claim that they paid GhC40,000.00 forthe allegedpurchase, no orderis made as torefund ofsame. I so order. (SGD) H/HFRANKLIN TITUS-GLOVER 16