BONSU VRS. BONSU (GR/KB/CCT/A8/01/2023) [2024] GHACC 368 (12 June 2024)

IN THE CIRCUIT COURT HELD AT KWABENYA ON WEDNESDAY THE 12TH DAY OF JUNE, 2024 BEFORE HER HONOUR MAWUSI BEDJRAH, CIRCUIT JUDGE CASE NO. GR/KB/CCT/A8/01/2023 CHRISTINA KOREWA OSEI BONSU PLAINTIFF VRS BISMARK OSEI BONSU DEFENDANT PLAINTIFF ABSENT DEFENDANT ABSENT MARIAN DARLINGTON FOR PLAINTIFF PRESENT JUDGMENT Plaintiff, per an amended writ of summons and statement of claim filed on 30th January, 2024, claims against defendant the following reliefs: i. A declaration that the Property located at ST1 Kwabenya Regimanuel Estate, Blue Gate, Kwabenya is a joint property ii. A declaration that the Property located at P36 Block “O” Fiapre Sunyani is a joint property iii. That Property located at ST1 Kwabenya Regimanuel Estate, Blue Gate, Kwabenya be settled on the Plaintiff iv. That Property located at P36 Block “O” Fiapre Sunyani be settled on the Defendant v. Any order the court deems fit Plaintiff is a citizen of Ghana who is resident in Switzerland. Defendant is a citizen of Ghana who also resides in Switzerland. The parties were previously married under the laws of Ghana and are currently divorced. The parties got married on 31st May 2007 in Accra and got divorced on 22nd October, 2020. According to Plaintiff, they had one child together, who is currently fourteen (14) years old and that she had three other children before the marriage, as did the Defendant. 1 Plaintiff says the parties came to an agreement for the terms of their dissolution and filed terms of settlement, which was adopted by the court in Switzerland. By this agreement, the parties agreed that properties bearing their respective names will be maintained. Plaintiff also says that during the course of marriage, the parties acquired immovable properties in Ghana and within the jurisdiction of this Honourable Court. Plaintiff avers that one of the said properties located at ST1 Kwabenya, Regimanuel Estate, Balloon Gate, Kwabenya and within the jurisdiction of this Court, currently bears her name. Another property located at P36 Block “O” Fiapre, Sunyani is currently not registered in the name of any of the parties as same is still in the name of the previous owner. Plaintiff further says that she has always been in possession of the property at Kwabenya and that is where her three other children currently live. According to Plaintiff, she stays in the Kwabenya residence whenever she is in Ghana and that both parties are currently in possession of the Sunyani property, which has a three-bedroom apartment and two store facility on the premises. Plaintiff says that Defendant has rented out the apartment on the Sunyani property and she has rented out the store on the same property. Plaintiff adds that the parties are unable to agree on the distribution of these two properties. It is worthy to note that Plaintiff sought leave to issue the writ and serve notice of same on Defendant outside the jurisdiction, per Defendant’s address in Switzerland. Subsequent processes were also served on Defendant through the same process but he did not take any step(s) in the matter. BURDEN OF PROOF The general position of the law is that the party who asserts must prove. Sections 11, 12 and 14 of the Evidence Act, 1975 (NRCD 323) are clear on the respective burdens assumed by the parties in a civil suit. In this regard, the Supreme Court in ACKAH V PERGAH TRANSPORT LIMITED [2010] SCGLR 729 stated the law as follows; “It is a basic principle of the 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 witnesses as well as documentary evidence”. 2 This burden remains the same, irrespective of the fact that Defendant failed to be part of the trial process. In this regard, plaintiff has a burden to discharge as he has to adduce sufficient evidence to avoid a ruling against her. The standard of the burden is one of preponderance of probabilities. (ADWUBENG V DOMFEH [1996-97] SCGLR 660). ASSESSMENT OF THE EVIDENCE AND THE LAW Plaintiff testified per her witness statement filed on 24th May, 2023. Plaintiff’s evidence was an elaboration of her claim and she tendered the following documents; i. A copy of the marriage certificate of the parties marked as Exhibit ‘A’ ii. A copy of the terms of settlement for the dissolution of the marriage in Switzerland as Exhibit ‘B’ iii. Some of the receipts from expenses made by Plaintiff in respect of the property at Fiapre as ‘Exhibit C series’ iv. A copy of a tenancy agreement between the parties and an old tenant as Exhibit ‘D’ v. Receipts of purchase for the Kwabenya property as Exhibit ‘E’ series vi. Copies of receipts of purchases Plaintiff made for the construction of the Kwabenya property as Exhibit ‘F’ series vii. Pictures of the Kwabenya property showing its state when it was purchased and its current state as Exhibit G series Exhibit ‘C’ series refers to expenses made to Ghana Water Company Limited as regards water bills, “New Service Connection Estimate” and Statement of Account by the company in respect of the Fiapre property. Although these documents are in the name of J.K. Buachie, a letter for change of name, from the name of the previous owner, J.K. Buachie to that of the parties, Mr/Mrs Osei Bonsu is attached. Further, Exhibit ‘D’, which is a copy of tenancy agreement dated 1st January, 2014, describes the parties as landlord and landlady. Exhibit ‘E’ series on the other hand relates to the Kwabenya property. This is an acknowledgment of receipt for payment for the property by Mr. Bismark Osei Bonsu and Mrs. Christiana Osei Bonsu. Exhibit ‘F’ series, being copies of receipts of purchases, are mostly in the name of Christina Osei Bonsu. 3 Plaintiff’s case is that subsequent to the dissolution of the marriage, she has had an oral agreement with Defendant that he takes the Sunyani house and she takes the Kwabenya property. “The law is quite well settled that where a party makes an averment and that averment is not denied, no issue is joined and no evidence need be led on that averment. Similarly when a party has given evidence of a material fact and is not cross-examined upon it, he needs not call further evidence of that fact.” (HAMMOND v AMUAH [1991] 1 GLR 89). DECISION Plaintiff has been able to adduce sufficient evidence to substantiate her claim, which evidence has not been challenged in any way whatsoever. Thus, the Court grants the following reliefs to Plaintiff as prayed; i. A declaration is made that the Property located at ST1 Kwabenya Regimanuel Estate, Blue Gate, Kwabenya is a joint property ii. A declaration is also made that the Property located at P36 Block “O” Fiapre Sunyani is a joint property. iii. Property located at ST1 Kwabenya Regimanuel Estate, Blue Gate, Kwabenya is hereby settled on the Plaintiff iv. Property located at P36 Block “O” Fiapre Sunyani is settled on the Defendant. I make no order as to costs. Her Honour Mawusi Bedjrah Circuit Judge 4