MENSAH VRS DARKO (A9/100/18) [2024] GHACC 29 (12 February 2024)

IN THE TDC DISTRICT COURT HELD AT TEMA ON MONDAY THE 12TH DAY OF FEBRUARY 2024 BEFORE HER HONOUR AKOSUA ANOKYEWAA ADJEPONG (MRS.), CIRCUIT COURT JUDGE, SITTING AS AN ADDITIONAL MAGISTRATE SUIT NO. A9/100/18 ISAAC ASUA MENSAH --------------- PLAINTIFF HOUSE NO, AR 51, GOLF CITY VRS VIDA DARKO --------------- DEFENDANT HOUSE NO, AR 51, GOLF CITY PARTIES: PLAINTIFF PRESENT DEFENDANT ABSENT COUNSEL: CHARLENE AFUA TONUGBLE FOR SOLOMON ADDO HOLDING THE BRIEF OF SAM KYERE, ESQ. FOR PLAINTIFF PRESENT MRS EDITH AWUKU ASABRE FOR DEFENDANT PRESENT JUDGMENT On the 5th day of June 2018, the Plaintiff herein caused a Writ of Summons to be issued in this Court claiming against the Defendant the following reliefs: 1. Declaration that House Number AR 51, situated at Golf City is the sole property of the Plaintiff. 2. An order directed at Defendant to accept and confine herself to the chamber and hall the Plaintiff will allocate to her at the end of this matter at House Number AR 51, Golf City for her lifetime. Isaac Asua Mensah v. Vida Darko Page 1 of 23 3. An order directed at Defendant to refund to Plaintiff an amount of GH¢1,000.00 being the cost of one trip of sand and burglar proof Plaintiff prepared for the house which Defendant sold out. 4. An order for Defendant to render account on the rooms she has rented out for the past four years in the Plaintiff’s house. 5. An order restraining the Defendant from further harassing, threatening and assaulting the Plaintiff. 6. Costs. The Defendant filed Statement of Defence on 20th June 2018 and denied liability of the claims of the Plaintiff. The Defendant counterclaimed as follows: (a) A declaration that the land with the two chambers and halls and two single rooms is jointly acquired property of the parties. (b) A declaration that the Defendant is entitled to equal share of the said property when the marriage was dissolved by the families in accordance with Akan custom. (c) An order confirming the distribution of the property by the families among the parties OR in the alternative an order of equitable distribution of the said property among the parties herein. (d) An order directed at the Plaintiff to give her an amount of GH¢20,000.00 as financial provision for the almost 30 years of marriage and for all her contribution towards the sustenance and wellbeing of the Plaintiff. (e) An order of perpetual injunction restraining the Plaintiff, his agents, workmen, assigns, tenants from creating nuisance and causing harassment, anxiety and shame to her and from disturbing her quiet enjoyment of her home. (f) Cost Isaac Asua Mensah v. Vida Darko Page 2 of 23 (g) Further orders as this Honourable Court deems fit and just. The Plaintiff subsequently on 25th March 2019 filed a Reply and Statement of Defence to the Defendant’s Statement of Defence and Counterclaim. THE CASE OF THE PLAINTIFF The Plaintiff in his Statement of Claim averred that he is the owner of House No. AR51, Golf City and Defendant is his former wife. That he got married to the Defendant in 1993 and they settled at Community 8 in a rented house. That sometime in 1995, the Defendant informed him of a half plot being at Golf City at a cost of GH¢500.00; that the plot was inspected by both parties, and he paid the cost of the land to the vendor one Mohammed in installments. He continued that the vendor after payment issued a receipt and site plan in the name of Mr. & Mrs. Asem Mensah. That he later found out that the land belonged to TDC for which he applied for regularization and paid a fee of GH¢1,000.00 and TDC effected change of ownership which was done in his name. According to the Plaintiff, he put up 2 chamber and hall, one single room and one store to house his welding materials and in 2014, both parties settled in the house by occupying a chamber and hall and rented out the other chamber and hall and the single room. The Plaintiff further states that he also bought a plot of land at Oda in the Eastern Region and placed on the land 10 trips of sand, 5 trips of stones and 2000 blocks. That during the subsistence of the marriage, the Defendant refused to work even though she is a seamstress by profession. According to the Plaintiff, the Defendant’s character changed, and she sacked all his relations who came to live with the parties including his biological Isaac Asua Mensah v. Vida Darko Page 3 of 23 daughter. That due to the problems in the house, he engaged another woman with whom he had two children. The Plaintiff continued that in March 2008, he went to the land to commence development only to be told by the wife of the vendor that the Defendant had sold the land; that the sand and blocks had been removed from the land leaving the stones. According to the Plaintiff he once had a call from TDC that someone was claiming his plot and wanted to effect a change of ownership, that he eventually got to realize that it was the Defendant who was about to effect the change of name on the document. That due to the Defendants’ bad behavior, both families sat and dissolved the marriage on 4th October 2018, and the Defendant was not compensated due to her actions, and she was asked to vacate the house. That the Defendant pleaded through his church elders to be given a place to live in his house where she was given a chamber and hall to live in. That there were tenants living in the room so he moved out of the room they were occupying until such time that the rent of the tenants will expire. That the Defendant continues to rent out the room and occupy one chamber and hall and anytime he goes to his house he is attacked with verbal assaults and threats. THE CASE OF THE DEFENDANT In her Statement of Defence and Counterclaim, the Defendant denied the claims of the Plaintiff; and stated that she was married under customary law to the Plaintiff in 1991 when he had nothing and it was through her toil and hard work that the parties acquired a piece of land at Golf City and put up two chamber and hall and two single rooms of which one of the single rooms is being used as a store. She stated that when the parties purchased the land sometime in the year 2000, the receipt that was issued was in their Isaac Asua Mensah v. Vida Darko Page 4 of 23 joint names indicating clearly that the land was jointly acquired. That it was based on her initiative that the parties worked hard to put up two chamber and hall rooms and two single rooms on the land. That the parties also acquired another parcel of land at Oda and she bought 12 bags of cement and asked a block molder to mold blocks unto the land and they had over 1000 pieces of blocks on the land. That sometime in 2008, Plaintiffs’ elder brother by the name Attah informed her that the Plaintiff had gone to have a child with another woman, and he wanted to apologize to her and to compensate her for the wrongdoing. That the Plaintiff apologized to her and compensated her with the land at Oda and she accepted the apology and compensation. That she later on sold the Oda land which was given to her as compensation with the knowledge of the Plaintiff, and used the proceeds for a surgery at the Catholic Hospital in Battor. That it was the Plaintiff’s act of fraudulently going to regularize their joint interest in the land in his name that provoked her to investigate and know exactly what happened since the original site plan and receipt the vendor gave them was in their joint names. She also says that it was when she got the regularization office of the TDC that she was told that the land was in the Plaintiff’s name and that her name was not part of it, and she started confronting the Plaintiff about the mischief and the bad faith. That both families met to dissolve the marriage in accordance with custom because the Plaintiff had moved away from the matrimonial home to be with the woman who had children for him even though he knows that she had miscarried on several occasions. According to the Defendant, the land was jointly acquired during the subsistence of the marriage between the parties and the two chambers and halls as well as the two single rooms were all built during the subsistence of the marriage with her substantial contribution in looking for the land, helping with the payment and getting people to mold the blocks on the land and supervising the building. That she therefore cannot be denied her equitable share of the property she toiled with the Plaintiff to acquire. She says that Isaac Asua Mensah v. Vida Darko Page 5 of 23 it was in view of the above that at the meeting to dissolve the marriage, the families shared the two chambers and halls and the two single rooms among the parties such that the Plaintiff got one chamber and hall and a single room. She says the Plaintiff is acting in bad faith and extreme mischief because after several years of marriage with her, he did not give her any financial provisions, but she only got the chamber and hall with one single room, which the Plaintiff is now seeking to take from her. At the end of the hearing, counsel for the Plaintiff on 28th September 2023, filed his written addresses on behalf of the Plaintiff; and the Court has duly taken notice of same. As at the time of reading this judgment, the Defendant’s lawyer had not filed any address. LEGAL ISSUES Based on the pleadings and the evidence led, the Court set down the following issues for determination. 1. Whether or not there was a distribution of the property described as house no. AR 51, situate at Golf City among the parties by the families. 2. Whether or not the plot of land at Oda was given to the Defendant as compensation. 3. Whether or not the plot of land at Oda was given to the Defendant as her property settlement upon the dissolution of the marriage. 4. Whether or not the property described as house no. AR 51, situate at Golf City is the sole property of the Plaintiff. Isaac Asua Mensah v. Vida Darko Page 6 of 23 5. Whether or not the Defendant is entitled to an equal share of the said property after the dissolution of the marriage of the parties. 6. Whether or not the Plaintiff is entitled to an order directed at the Defendant to accept and confine herself to the chamber and hall the Plaintiff will allocate to her in house no. AR 51, Golf City. 7. Whether or not the Plaintiff is entitled to an order for Defendant to render account on the rooms she has rented out for the past four years in the Plaintiff’s house. 8. Whether or not the Plaintiff is entitled to an order directed at the Defendant to refund an amount of GH¢1,000.00 to him, being the cost of one trip of sand and burglar proof. 9. Whether or not the Defendant is entitled to an amount of GH¢20,000.00 as financial provision. BURDEN AND STANDARD OF PROOF The general rule in every civil case is that the burden of proof rests upon the party, whether Plaintiff or Defendant, who substantially asserts the affirmative of his or her case. Section 12(1) of the Evidence Act, 1975 (NRCD 323), provides that: “except as otherwise provided by law, the burden of persuasion requires proof by a preponderance of probabilities.” Thus, in the case of Serwah v. Kesse [1960] GLR 227, Van Lare JSC stated: “The law as I understand it is that in all civil cases the preponderance of probability in favour of a party may constitute sufficient ground for a judgment in favour of that party. The general rule, of course, is that the onus probandi lies on the party who substantially asserts the affirmative of the issue”. Isaac Asua Mensah v. Vida Darko Page 7 of 23 Section 11(4) of the Evidence Act explains the burden of proof in civil cases as follows: “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”. Ackah-Yensu J.A. in the discussion of the burden of proof on a party in the case of Deliman Oil Company Ltd. v. HFC Bank Ghana Ltd. [2016] 92 G.M.J. 1 reproduced Lord Hoffman’s mathematical analogy in Re B [2008] UKHL 3 as follows: “If a legal rule required a fact to be proved (a ‘fact in issue’), a judge or jury must decide whether or not it happened. There is no room for a finding that it might have happened. The law operates a binary system in which the only values are 0 and 1. The fact either happened or it did not. If the tribunal is left in doubt, the doubt is resolved by a rule that one party or the other carries the burden of proof. If the party who bears the burden of proof fails to discharge it, a value of 0 is returned and the act is treated as not having happened. If he does discharge it, a value of 1 is returned and the fact is treated as having happened”. A counterclaim is a separate and independent action with the burden of proof no different from the Plaintiff’s legal burden. In the case of Op. Kwasi Asamoah v. Kwadwo Appea (2003-04) SCGLR 226 at 246, it was held that: "The position with regards to proof of the Defendant's case was that since they made a Counterclaim, they assumed the same onus of proof as lay on the Plaintiff." See also: Nii Odoi Kwao Asumang & 2 Ors v. William Sowah Charwey & 14 Ors (2014) 75 GMJ 108 at 135. Isaac Asua Mensah v. Vida Darko Page 8 of 23 ANALYSIS I shall now analyse and evaluate the evidence adduced by the parties in support of their respective cases within the context of their corresponding burdens and the prescribed standard of proof as provided under the Evidence Act, 1975 (NRCD 323) to resolve the above issues. 1. Whether or not there was a distribution of the property described as house no. AR 51, situate at Golf City among the parties by the families. The Defendant in her defence stated that when the marriage was dissolved, the families distributed the two chambers and halls among the parties without any objections from the Plaintiff. That at the meeting to dissolve the marriage, the families shared the two chambers and halls and the two single rooms among the parties such that the Plaintiff got one chamber and hall and a single room. The Plaintiff in his Reply denied the said assertion by the Defendant and further stated that at the meeting to dissolve the marriage on 4th October 2018, he informed the gathering that the Defendant had rented out all the rooms and should take all the proceeds of the rent as compensation. He also stated in his Reply that it was agreed at the family meeting that the Defendant can have a chamber and hall with one kitchen whilst he takes the other hall and single room with the remaining single room rented out for him to cater for rates and taxes on the house. He further stated that when the property was shared, the Defendant got a chamber and hall with a kitchen constituting the larger Isaac Asua Mensah v. Vida Darko Page 9 of 23 space as he took into consideration the fact that there previously existed a marital relationship. Even though the Plaintiff denied the assertion by the Defendant that the said property was shared among the parties at the meeting that dissolved their marriage, the further statements by the Plaintiff in his Reply on the above issues are admissions that indeed there was a distribution of the property upon the dissolution of the marriage. In her evidence on the above issue, the Defendant testified that during the dissolution of the marriage, the Golf City house was distributed, and each party was given a chamber and a hall and a single room. That she is in occupation of the hall and chamber given to her, but the Plaintiff comes there occasionally to threaten her to leave and would make his bed in her hall. She tendered a picture of the Plaintiff’s bed in the hall as exhibit ‘4’. Under cross examination the Defendant testified that there was no distribution at the dissolution of the marriage, the family said they should come to Court for Court to share for them. In another breath under cross examination, the Defendant testified that the elders of church of Pentecost came to do the sharing of the house, and that it is the Plaintiff that called them to come and share it. She further testified that at the dissolution of the marriage they did not say anything about the said house being the Golf City house. The Plaintiff under cross examination testified that nobody has shared any property between them. From the pleadings and evidence of the parties, both of them were inconsistent on whether or not the property at Golf City was shared between the parties. Whilst the Plaintiff denied the said assertion by the Defendant, he gave an explanation which was rather an admission that indeed there was a distribution of the said property. Likewise the Defendant also contradicted herself after she had asserted that the property was Isaac Asua Mensah v. Vida Darko Page 10 of 23 distributed and further testified that nothing was said about the said Golf City house, at the dissolution of the marriage. From the inconsistencies of the parties and the entire evidence on record, I find that the property was shared between the parties but they have not agreed to same and have therefore not put same into effect as they want the Court to assist them put a finality to the said issue. I shall next address issues 2 and 3 together. Issue 2 is “whether or not the plot of land at Oda was given to the Defendant as compensation” and Issue 3 is “whether or not the plot of land at Oda was given to the Defendant as her property settlement upon the dissolution of the marriage.” Plaintiff stated in his Statement of Claim that in March 2008 he went to the land at Oda to commence development only to be told by the wife of the vendor that the Defendant had sold the land and the sand and blocks had been removed from the land leaving the stones. Defendant in her Statement of Defence averred that the Plaintiff gave the land at Oda to her as compensation after he had a child with another woman. In his Reply to the Statement of Defence the Plaintiff denied ever giving the land at Oda to the Defendant as compensation. The Defendant therefore had a legal burden to prove her averment that the said land was given to her as compensation by the Plaintiff for having a child with another woman. Isaac Asua Mensah v. Vida Darko Page 11 of 23 In her evidence the Defendant told the Court that relatives of both parties attended the family meeting and the Plaintiff apologized to her and compensated her with the plot of land in Oda, their hometown. Under cross examination the Defendant testified that the Plaintiff handed over documents covering the land at Oda to her mother in the presence of the other people at the meeting, after the land was given to her as compensation by the Plaintiff during the meeting. The Defendant contradicted herself that when the brother of the Defendant called her he did not talk about compensation with the Oda land and that it was at the meeting that it came up. Nonetheless, the Plaintiff under cross examination confirmed that he gave documents of the land at Oda to the Defendant’s mother to be given to the Defendant and that he did not give the land to her as compensation. The question any reasonable person will ask is, why would the Plaintiff give documents on the land to the Defendant’s mother to be given to the Defendant, during the meeting that discussed his infidelity to the Defendant? It was for what purpose? The Plaintiff did not actually give any sufficient evidence that answers this question however a reasonable inference from the entire evidence before this Court is that the Plaintiff decided that the Defendant can have the land at Oda when they met to discuss his infidelity towards the Defendant. It is also not specific from the evidence on record that the said land at Oda was given to the Defendant to compensate her. The Defendant had the burden to prove that assertion she made after the Plaintiff denied same. She called DW1 who corroborated her evidence that indeed the Plaintiff gave the land at Oda to the Defendant as compensation for having a child outside their marriage. This goes to support Defendant’s claim that documents of the land were given to her mother to be given to her when the Plaintiff gave the said land to her as compensation. The Plaintiff also claims that since the Defendant sold the said land at Oda, that is her share of property settlement upon the dissolution of their marriage. However from the Isaac Asua Mensah v. Vida Darko Page 12 of 23 evidence on record and the preceding analysis on the first issue, the Plaintiff admits that the Defendant has a share in the property at Golf City so his claim under the third issue becomes moot. From the entire facts and evidence before this Court I find that the Plaintiff did not give the land at Oda to the Defendant as property settlement upon the dissolution of their marriage because at the time he gave the documents of the land to the Defendant through her mother, the discussion was about his infidelity and not dissolution of the marriage. In view of the above and from the evidence on record, I hereby find that the Plaintiff willingly gave the land at Oda to the Defendant after he gave its documents to the Defendant through the Defendant’s mother during the discussion of the Plaintiff’s infidelity towards the Defendant, and the Defendant sold same and used the proceeds for her medical bills. In relation to the said land being the Defendant’s share of property settlement after the dissolution of their marriage; that cannot be accepted by the Court having considered the entire evidence on record. I therefore answer the third issue in the negative. I shall next consider issues 4, 5 and 6 together. Issue 4 is “whether or not the property described as house no. AR 51, situate at Golf City is the sole property of the Plaintiff”, Issue 5 is “whether or not the Defendant is entitled to an equal share of the said property after the dissolution of the marriage of the parties” and Issue 6 is “whether or not the Plaintiff is entitled to an order directed at the Defendant to accept and confine herself to the chamber and hall the Plaintiff will allocate to her in house no. AR 51, Golf City”. Article 22 (3) (b) of the 1992 Constitution provides that: Isaac Asua Mensah v. Vida Darko Page 13 of 23 "Assets which are jointly acquired during marriage shall be distributed equitably between the spouses upon dissolution of marriage". In the case of Quartson v. Quartson [2012] 2 SCGLR 1077 it was held that: “The Supreme Court’s previous decision in Mensah v. Mensah [2012] 1 SCGLR 391 is not to be taken as a blanket ruling that affords spouses unwarranted access to property when it is clear on the evidence that they are not so entitled. Its application and effect will continue to be shaped and defined to cater for the specifics of each case. ” Also, in the case of Arthur (No 1) v. Arthur (No.1) [2013-2014] 1 SCGLR 543 it was held in as follows; “…Property acquired by the spouses during the marriage was presumed to be marital property. Thus, marital property was to be understood as property acquired by the spouses during the marriage, irrespective of whether the other spouse had made a contribution to its acquisition.” Additionally, the Supreme Court in the case of Peter Adjei v. Margaret Adjei (unreported) [Suit No. J4 06/ 2021] delivered on 21st day of April, 2021, the Court per Appau, JSC reiterated the position of the law on the presumption of joint ownership when His Lordship stated at page 10 as follows: “…any property that is acquired during the subsistence of the marriage, be it customary or under English or Mohammedan Ordinance, is presumed to have been jointly acquired by the couple and upon divorce, should be shared between them on equality is equity principle. This presumption of joint ownership is, however, rebuttable upon evidence to the contrary… What this means in effect is that, it is not every property acquired single- Isaac Asua Mensah v. Vida Darko Page 14 of 23 handedly by any of the spouses during the subsistence of a marriage that can be termed as a “jointly-acquired” property to be distributed at all cost on this equality is equity principle. Rather, it is property that has been shown from the evidence adduced during the trial to have been jointly acquired, irrespective of whether there was direct, pecuniary or substantial contribution from both spouses in the acquisition... so where a spouse is able to lead evidence in rebuttal or to the contrary ... the presumption theory of joint acquisition collapses.” Flowing from the above authorities, in a marital relationship, the parties reserve their constitutional right to acquire properties individually and marriage per se does not give spouses unwarranted access and share in properties acquired by the other spouse through their individual sweat and efforts. In the instant case the Plaintiff claims that the property at Golf City was solely acquired by him whilst the Defendant contends that it was jointly acquired during the subsistence of their marriage. In the case of Memuna Amoudi v. Kofi Antwi [2006] MLRG, 183 the Supreme Court per Wood, JSC (as she then was) stated as follows: “A cardinal principle of law on proof … is that a person who makes an averment or assertion … has the burden to establish that his averment or assertion is true. He does not discharge his burden unless he leads admissible and credible evidence from which the fact or facts he asserts can be properly and safely inferred.” The Plaintiff avers in his pleadings that having purchased their plot at Golf City, the vendor issued a receipt in the joint names of Mr and Mrs. Asem Mensah. This was corroborated by the Defendant in her pleading and evidence. It is therefore not in Isaac Asua Mensah v. Vida Darko Page 15 of 23 contention that the parties jointly acquired the land on which the property at Golf City is situated during the subsistence of the marriage. The Plaintiff under cross examination testified that the Defendant came to meet one of the properties which he had started before he completed it but the other one, both of them built it. The Plaintiff under cross examination also testified that he told her he will give her one of the chamber and hall but she did not move from where he wanted. That he asked her to move to the one she rented out but she did not move. That all his personal belongings are in the chamber and hall she is occupying, and she has rented the second one so he does not have a place to stay. From the evidence on record, apart from the land that the Defendant looked for the Plaintiff to purchase which receipt was issued in the joint names of the parties, the Defendant has not been able to establish with cogent evidence that she made substantial contribution to the construction of the property at Golf City. The Defendant did not lead sufficient evidence that the said property was jointly acquired. However from the entire evidence before the Court, the said property was acquired during the subsistence of the marriage, the Defendant having taken an active part with her time (as she could not prove any financial contribution) in the acquisition of the land, I hereby find that the Defendant has an interest in the said property albeit not an equal interest like the Plaintiff who substantially constructed the building on the said land the parties jointly acquired. From the entire evidence it can be gathered that the Plaintiff has no issue with the sharing of the property with the Defendant. His only issue is that he wants to occupy the chamber and hall both parties occupied during the subsistence of their marriage which the Defendant is currently occupying. The Supreme Court has held that the principle of equitable sharing of property jointly acquired by a married couple will ordinarily entail the equality principle, unless one Isaac Asua Mensah v. Vida Darko Page 16 of 23 spouse could prove separate proprietorship or agreement or a different proportion of ownership. That equal sharing should amount to a just and equitable sharing and that is what ‘equitable in essence, is what is just, reasonable and accords with common sense and fair play. It is question of fact, dependent purely on the particular circumstances of each case. The proportion are therefore fixed in accordance with the equities of each particular case. Relying on the above principles and authorities; and having carefully considered the entire evidence on record where the Plaintiff gave the documents of the land at Oda to the Defendant’s mother to be given to the Defendant indicating that he intended the Defendant to have the said property, and further considering the fact that the Defendant has disposed of the said property at Oda and used the proceeds for her own benefit; and the fact that the Plaintiff is willing to give the other rented chamber and hall to the Defendant, I hereby order that the Defendant shall have the chamber and hall other than what she currently occupies. Thus the Defendant shall vacate the chamber and hall she currently occupies within 30 days from today. Consequently the Defendant shall confine herself to the chamber and hall the Plaintiff will allocate to her in house no. AR 51, Golf City. Both parties, their agents, workmen, assigns, tenants are hereby ordered to desist from creating nuisance, causing harassment, threatening and assaulting each other, causing anxiety and shame to each other, and from disturbing each other's quiet enjoyment of their respective places in the said property. 7. Whether or not the Plaintiff is entitled to an order for Defendant to render account on the rooms she has rented out for the past four years in the Plaintiff’s house. Isaac Asua Mensah v. Vida Darko Page 17 of 23 The Plaintiff on 5th June 2018 caused the instant Writ of Summons to be issued. Among his reliefs endorsed on the Writ is an order directed at the Defendant to render account on the rooms she has rented out for the past four years in his house. The Defendant generally denied the Plaintiff’s assertions in his Statement of Claim. According to the Plaintiff in his Reply filed on 25th March 2019, at the meeting to dissolve the marriage on 4th October 2018, he informed the gathering that the Defendant had rented out all the rooms and should take all the proceeds of the rent as compensation. The Plaintiff called PW2 who testified to the effect that the Defendant rented out a chamber and hall with a separate kitchen to him in 2013 for two years and he further renewed for a another two years till 2017. However the Plaintiff having asserted in his pleadings that he informed the people at the meeting during the dissolution of their marriage that the Defendant had rented out all the rooms and should take all the proceeds of the rent as compensation, is deemed to have abandoned his claim of account of rent by the Defendant. In view of that the Court is unable to grant the Plaintiff’s relief on the above issue; and same is hereby dismissed. 8. Whether or not the Plaintiff is entitled to an order directed at the Defendant to refund an amount of GH¢1,000.00 to him, being the cost of one trip of sand and burglar proof. The Plaintiff claimed that he placed on the land 10 trips of sand, 5 trips of stones and 2000 blocks. The Defendant vehemently denied this allegation. Therefore there was a burden on the Plaintiff to prove his assertion. The Plaintiff in his evidence told the Court that after the acquisition of the land, he organized to have about 2000 blocks deposited on the land, that he deposited 10 trips of Isaac Asua Mensah v. Vida Darko Page 18 of 23 sand and 5 trips of gravel. That he had burglar proof leftover from the construction and some timber members at the house valued at GH¢1,000.00. That sometime in 2015, he came to the house and realized that the above were no longer where he had left them. The Plaintiff only repeated his assertions when he gave evidence. There is no cogent evidence on record in support of the Plaintiff’s claim of GH¢1,000.00 being the cost of one trip of sand and burglar proof. In Klah v. Phoenix Insurance Company Ltd [2012] 2 SCGLR 1139, it was held thus: “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”. The Plaintiff ought to have adduced satisfactory evidence to establish the said claim particularly when same was vehemently denied by the Defendant. However, the Plaintiff could not adequately discharge the burden of proof on him on the above. Accordingly the said relief is hereby dismissed for want of sufficient evidence to establish same. 9. Whether or not the Defendant is entitled to an amount of GH¢20,000.00 as financial provision. Section 20(1) of the Matrimonial Causes Act 1971 (Act 367) states that: Isaac Asua Mensah v. Vida Darko Page 19 of 23 " The Court may order either party to the marriage to pay to the other party a sum of money or convey to the other party movable or immovable property as settlement of property rights or in lieu thereof or as part of financial provision that the Court thinks just and equitable.” In the case of Aikins v. Aikins (1979) GLR 233, Sarkodee J (as he then was) held in that: “In considering the amount payable as lump sum, the Court should not take into account the conduct of either the husband or the wife but it must look at the realities and take into account the standard of living to which the wife was accustomed during the marriage…” Also, in the case of Barake v. Barake [1993-1994] I GLR 635, Brobbey J (as he then was) stated that: “On such an application, the Court examines the needs of the parties and makes reasonable provision for their satisfaction out of the money, goods or immovable property of his or her spouse.” [Emphasis supplied] The essence of financial provision is not to enrich one spouse at the expense of the other but to cater for a genuine financial need of a spouse upon dissolution of the marriage. Thus, in the case of Gamble v. Gamble [1963] 1GLR 416 the Court held that: “the Court will not look with sympathy upon a wife who makes no effort to secure employment but is content to subsist on an award of alimony.” The factors a Court considers in determining what is “just” and “equitable” under section 20 of Act 367, are stated in the case of Obeng v. Obeng [2013] 63 GMJ 158, where the Court of Appeal held that: “what is “just and equitable” may be determined by considering the following factors: the income, earning capacity, property, and other financial resources which each of the parties Isaac Asua Mensah v. Vida Darko Page 20 of 23 has or is likely to have in the foreseeable future, the standard of living enjoyed by the parties before the breakdown of the marriage; the age of each party to the marriage and the duration of the marriage.” The Defendant prays the Court to award her an amount of GH¢20,000.00 as financial provision against the Plaintiff. The Plaintiff denied this claim. The Plaintiff also stated in his Reply that he informed the gathering that the Defendant had rented out all the rooms and should take all the proceeds of the rent as her compensation. The preceding analysis on issue 7 and the findings of the Court per the evidence on record indicates that the Defendant rented part of the property at Golf City to PW2 from 2013 to 2017 where he paid rent to the Defendant. The Defendant did not lead contrary evidence to rebut the said evidence on record indicating that she indeed took the proceeds of renting the said chamber and hall to PW2 for about four years. It is also in evidence that the Plaintiff gave the documents of the land at Oda to the Defendant’s mother to be given to the Defendant where she disposed of same. The evidence on record also suggests that the Plaintiff always set the Defendant up in business even though the businesses were not successful. The Plaintiff has described himself as a welder by profession and the Defendant described herself as a petty trader. The Defendant should be financially independent with prudent management of the petty trading she is doing. On the evidence, the parties were living in the property at Golf City and upon the dissolution of their marriage, the Defendant is the only one living in the said property with the Plaintiff living in another place. The Defendant has been given a share of the said property and she earlier rented part of the property out. Consequently, based on the circumstances of the instant case and the circumstances of the parties, I do not consider it just and equitable to order the Plaintiff to pay a financial provision of GH¢20,000.00 to the Defendant. I accordingly dismiss the claim for a financial provision. Isaac Asua Mensah v. Vida Darko Page 21 of 23 CONCLUSION On the basis of the entire evidence before this Court and the findings above, I hereby find on the preponderance of probabilities that both parties were not able to fully discharge the burden placed on them to substantiate their respective cases considering the inconsistencies from both parties. They however attempted to partly discharge their respective burdens to establish their cases. In the circumstances, I hereby enter judgment as follows: 1. I hereby order the Defendant to vacate from the chamber and hall she currently occupies and give possession of same to the Plaintiff within 30 days from today, 12th February 2024, thus the Defendant shall confine herself to the chamber and hall the Plaintiff will allocate to her in house no. AR 51, Golf City. 2. Both parties, their agents, workmen, assigns, tenants are hereby ordered to desist from creating nuisance, causing harassment, threatening and assaulting each other, causing anxiety and shame to each other, and from disturbing each other's quiet enjoyment of their respective places in the said property. 3. The remaining reliefs of both parties as endorsed on the Plaintiff’s Writ of Summons and the Defendant’s Counterclaim are hereby dismissed. 4. Considering the circumstances of the instant case, I believe it will be prudent for the parties to bear their own costs and so I will make no order as to costs. [SGD.] H/H AKOSUA A. ADJEPONG (MRS) Isaac Asua Mensah v. Vida Darko Page 22 of 23 (CIRCUIT COURT JUDGE) Isaac Asua Mensah v. Vida Darko Page 23 of 23