Kreische v Adjaho (A9/24/22) [2025] GHADC 212 (20 March 2025)

CORAM: HER WORSHIP BIANCA GYAMERA-BEEKO MAGISTRATE SITTING AT THE DISTRICTCOURTMAMPONG-AKWAPIM ON20TH DAY OF MARCH,2025. ------------------------------------------------------------------------------------------------------ SUITNO.:A9/24/22 HELGE WALTER KREISCHE ……………. PLAINTIFF VRS. CELESTINE ADJAHO …………… DEFENDANT Plaintiff present Defendant absent George Addo Yobboforthe Plaintiff JUDGMENT. By awrit filed onthe27thofNovember,2018,the Plaintiff in this matterseekstwo reliefs: 1. Anorderofthis courttoevict the defendant’sassigns fromaland withunnumbered storey building toenable the Plaintiff have hisprivacy. 2. Perpetualinjunctionrestraining the defendant, her assigns and workmen,etcfrom entering and having anything todo withPlaintiff’sbuilding. The lengthoftime this matterhas managed topend undetermined in this court is nothing short ofamarvel. Fromtherecord ofproceedings, hearing should have commenced on 19thMarch 2019but it did notuntil 2nd June 2020.On16thJuly, 2020,the Plaintiff closed his case and the matterwas adjourned to 6thAugust 2020fortheDefendant toopenher defence. This neverhappened. On16thJanuary, 2023,consequent uponan applicationby Counsel forthe Plaintiff thatthe matterproceedas the defendant hadfailed toavail herself, the court ruled thatthe defendant was deemed tohave no defence tothe suit and decided toproceedwithout her. The court thenorderedbothparties tofile addresses for judgment tobe delivered. Counsel forthe Plaintiff filed his addresson20thJanuary, 2025, two yearsand four daysafterthe orderwas made. Counselfor the Defendant who pleaded withthe courtforanopportunity toalso file anaddresshas todatenot doneso. Considering thelengthoftime this matterhas beenpending, I find it expedient toadopt the proceedings in the interestofjustice. The proceedings are thereforeherebyadopted. I shall nowproceed todetermine the matteronthe basis ofthe proceedingsaspassed down to me. The plaintiff’s case The plaintiff’s case is thathe was previously married tothedefendant but theywere divorced on31st march 2016byaGerman court.He averredthat he acquired apiece of land beforehe married the defendant under ordinance on15thFebruary, 2007.He complained thatthe defendant had brought certain personstothe propertywho were interfering with his privacy hence the action toevict themand perpetually restrainthem fromentering orhaving anything todo withthe property. The defendant’scase The defendant contended thatthe propertywas thejoint propertyofbothpartiesacquired during the pendency ofthe marriage. Sheexplained that thepeople the plaintiff was complaining ofwereher family memberswho were protecting herinterest in theproperty. She contended thatshe hadthe same rights asthe plaintiff asregarding the propertyand accordingly hadthe capacity topermit herfamily memberstoprotect her interestinthe property. Issue 1. Whetherthe propertyismatrimonial propertyornot. Evidentiary burden. Section 14oftheEvidence Act, 1975(Act 323)provides that except asotherwise providedby law, unlessand untilit is shifted apartyhasthe burden ofpersuasionasto each fact theexistence ornon-existence ofwhich is essential totheclaim or defence heisasserting. Inthe case ofSerwah vKesse (1960)GLR 227,the SupremeCourtstated that“the general rule, ofcourse, is thatthattheonusprobandi lies onthepartywhosubstantially asserts theaffirmative oftheissue”.They laid downthe following testsforwho bears this burden: “Thebest tests for ascertaining onwhomthe burthen ofprooflies are, toconsider first which partywouldsucceed ifno evidencewere given oneither side; and,secondly, what would betheeffect ofstriking outof therecord theallegation tobeproved. Theonus lies onwhichever partywouldfail, if either ofthesesteps were pursuedSee Taylor on Evidence, s.365 quoted in Stroud,JudicialDictionary(3rd. ed.)p. 1996.” The Plaintiffs therefore bearstheburden ofproof in this matter. Section 11(1)ofAct 323 explains the burdenofpersuasionas theobligationofa partytointroduce sufficient evidence to avoida rulingagainst himon anissue.This being acivilmatter, the Plaintiff is required toprove his case uponapreponderance ofprobabilities in accordance with section 12ofthe Evidence Act 1975(NRCD323). Whether the propertyis matrimonial property ornot. Article 22(3)(a) oftheConstitution ofGhana, 1992is clear thatspouses shall haveequal access topropertyjointlyacquired during marriage. The principle that propertyjointly acquired during marriage becomes joint propertyofthe parties istrite; see the case of ND Gladys Mensahv StephenMensahCIVIL APPEAL NO. J4/20/2011 delivered on22 FEBRUARY, 2012.Inthe case ofFynnvFynnCIVILAPPEAL NO. J4/28/2014,delivered on TH 12 FEBUARY, 2014,theSupreme Courtclarified that married people couldstillacquire propertywhile married intheir individualcapacities. Property cantherefore be deemed to be the personalpropertyofamarried personunder two conditions; 1. Whenit is acquired by the partyprior tothe marriage, or 2. Whenit is acquired by onespouse during the marriage but without anycontribution fromtheotherspouse. Fromhis writ, thePlaintiff’s case is thatthe propertyis his self-acquired propertyrather thanmatrimonial propertybecause he acquired it before he married the defendant. The Plaintiff testified throughhis lawful attorney, Martin Ahwireng Obeng.He testified that the plaintiffand defendant hadgottenmarried on15thFebruary,2007under the ordinance. He tenderedacopy ofthe marriage certificate and same was admitted into evidence and marked Exhibit B. He testified also that thePlaintiff had acquired land at Ampomaa near Aburiandconstructed abuilding onit priorto themarriage. He tendered acopy ofthe instrument evidencing the acquisitionofthe land and same was admitted into evidence and markedExhibit C. Heemphasised thatthe landand the building onit was the self-acquired propertyoftheplaintiff. He also said that thedefendant had made no contribution tothe property and was thereforenotentitled toashare ofthe property. A lookat thedocumentary evidence adduced bythe plaintiff throughhis attorney confirms thatthe parties were married on15thFebruary, 2007under the ordinance per Exhibit B. Exhibit C howevershows that the indenturewas made on5thJune 2015by whichtime the parties werealready married. Undercross-examination, when confronted withthe fact thatthe indenture tendered asExhibit C was executedeight yearsafter the marriage, the attorneyexplained thatthe plaintiff boughtthe land beforemarrying the defendant but he had issues registering the land because the people he relied onduped him, and he was also notpermanently residing in Ghana. Inaratherinteresting twist, the attorneyin answer toaquestionput tohim that thepropertyhad attained the statusof marital property, answered that thepropertyis maritalproperty. The plaintiff alsocalled onone witness, ProsperAhiagah, totestify in supportofhis case. His testimony was thathe was afarmerwho was introduced tothe plaintiff byone Morganin 2002when thePlaintiff acquired the land. The plaintiff put him inpossessionof the land and he weeded andfarmed onthe land. At thetime, the plaintiff was notmarried to thedefendant, and the plaintiffhad built tolintellevel. He testified thatthe house was built by theplaintiff before themarriage. Under cross-examination, PW1 answered thathe met the Plaintiff in2002,building beganin 2005,and he sawthe parties togetherin2008. He admitted that once in awhile theplaintiff asked the defendant tosupervise the construction. He also agreed that defendant contributed tothebuilding as the plaintiff’s wife. Onthe totality ofthe evidence adduced bythe Plaintiff’s attorneyand his witness, it is clear tome thatplaintiff’s assertion thatthe propertyis his self-acquired propertywhich he acquired prior tothemarriage cannot be supported.The indenture whichthe plaintiff himself offered asevidence ofhis acquisition oftheland shows thatit was acquired during the pendency ofthe marriage. Inthecase ofOfeiVrs Darkoand Others [2018] GHASC 6(31January 2018),the SupremeCourtaffirmed the principle inDuah v Yarkwa (1993-94) GLR 217that wheneverthereis existence bothawrittendocument and conflicting oralevidence inrespect ofatransaction, thecourt is toleanfavourably towards the documentaryevidence especially if it isauthentic. I ambound by this decisionbut evenifI was notso bound, tomymind the attorney’sexplanation thatindenture was made in 2015because the plaintiff was duped whenhe tried toregisterthe land is unconvincing. This is because theexecution ofanindenture and registrationofland are two completelydifferent eventsin the land acquisition process. Furthermore,the attorneyadmits underoaththatthe propertyis marital propertyand PW1admits that thedefendant contributed tothe acquisition oftheproperty. The Supreme CourtdecisionofRe Asere Stool; NikoiOlai Amontia iv (substituted by Tafo Amon iiv.Akotia Oworsika 111substituted by Laryea Ayiku iii (2005-2006) SCGLR637 affirms that wherean adversarymakesan admission, there isno need for apartyto adduce any evidence toestablish same. The apex courtstated asfollows; “Where an adversary has admitted afactadvantageous to the causeof a party, the party does notneedany better evidence to establish that factthan by relyingon such admission, which is an exampleof estoppel byconduct”. The admissions by the plaintiff’sattorney and his witness consequently arethe figurative nails inthe plaintiff’scoffin putting toeternalresthis case against the defendant. Counsel forthe Plaintiff inhis writtenaddress urgesthis courttogive the defendant 5% of the value ofthe building because the entire propertycannot be described as spousalor matrimonial property. I must respectfully decline this invitation. First ofall, the plaintiff is notbefore this court fordistributionofmatrimonial property. The reliefs heseeks arean eviction orderand anorderfor perpetualinjunctionretraining the assigns ofthe defendant. Secondly, and moreimportantly, the evidence beforethis courtis thatthe propertywas acquired during the subsistence ofthemarriage and that the defendant contributed tothe acquisition ofthe property. I consequently hold thatthe propertysituate at Ampomaa is propertyjointly acquired by the partiesduring the marriage asenvisaged by article 22(3)(a) ofthe ConstitutionofGhana, 1992.The plaintiff’scase thereforefails and his prayersfor thereliefs as endorsed onhis writ arerefused. The defendant hasbeen inoccupationofthis propertyall this while, andhas contributed in nosmall way tothe unduly protractedlitigationofthis dispute. Itherefore make no orderasto costs. SGD. H/W BIANCA GYAMERA-BEEKO