Adjei v Akwaley (A11/15/23) [2024] GHADC 708 (7 November 2024)

IN THE DISTRICT COURT AT LA HELD ON THURSDAY THE 7TH DAY OF NOVEMBER, 2024. BEFORE HER WORSHIP ADWOA BENASO ASUMADU- SAKYI, SITTING AS MAGISTRATE SUIT NO: A11/15/23 EMMANUEL ADJEI OF LA ACCRA >>> PLAINTIFF VRS. AKWALEY CUDJO OF H/NO.LA-ACCRA >>> DEFENDANT _______________________________________________________________ PARTIES: Plaintiff present Defendant present _______________________________________________________________ JUDGMENT _______________________________________________________________ INTRODUCTION By a writ of summons the Plaintiff filed this instant suit on 11th August, 2023 against the Defendant and prayed for the following reliefs; 1. An order for the immediate ejectment of defendant from the room she occupies in Plaintiff’s house situate lying and being at “TEBIBIANO-TESHIE” and leave same vacant for Plaintiff’s use. 2. An order for recovery of possession to Plaintiff’s room being occupied by Defendant. The parties were ordered to file their written statements pursuant to order 18 of C.I 59 and the Plaintiff filed his statement of claim on the 16th of November, 2023 and the Defendant filed her statement of Defence and Counterclaim on the 21st of December, 2023 and prayed for the following reliefs: i. An order directed at the Plaintiff to pay an amount of Seven Hundred and Ten Ghana Cedis (GH¢ 710.00) he took from her wardrobe without her consent. ii. An order directed at the Plaintiff to pay for cooking utensils he took from the Defendant for his mother. iii. An order directed at the Plaintiff to return materials for roofing he borrowed. iv. An order directed at the Plaintiff to return money the Defendant deposited at the Bank. v. An order directed at the Plaintiff to pay an amount of Five Thousand, Five Hundred Ghana Cedis (GH¢ 5,500.00) in damages for items he destroyed from her petty trading business. vi. Any other reliefs the Honourable Court deems fit. After pleadings closed the Court ordered the parties to file their respective witness statements and the Plaintiff complied with the orders of the court and filed his witness statement on the 19th of March, 2024 while the Defendant filed her witness statement on the 30th of April, 2024. Hearing commenced on the 11th of June and was completed on the 9th of September, 2024. PLAINTIFFS CASE The Plaintiff’s case is that in the year 1984 he married the Defendant and in the course of their marriage they were blessed with four children, two of which have passed on. He goes on to state that after their marriage they co-habited at Teshie in a rented apartment but the Defendant always quarrelled with everyone including their landlord and also went as far as disrespecting him. He went on to state that as a result of the Defendant’s attitude, a family meeting was held where it was agreed that she would move into her family house at Agblogblorshie. Despite this measure the Defendant did not change her behaviour and as a result their marriage was dissolved on the 20th of February, 2005 in the presence of both their families. The Plaintiff states that he was asked to compensate the Defendant with an amount of ¢ 2.5 million old cedis which he paid. The Defendant was not content with the money he paid and she instituted an action in this Court differently constituted and the Plaintiff was ordered to pay an amount of Seven Hundred Ghana Cedis (GH¢ 700.00) which he also paid. The Defendant moved back into the Plaintiff’s house under the false pretext of taking care of their child whose hand was broken and since then has refused to leave his house and has continued with her behaviour and that all efforts for her to vacate has proved futile. DEFENDANT’S CASE The Defendant states that she and the Plaintiff were in an amorous relationship and after having children the Plaintiff sacked her from their house at Teshie-Agboma and returned her belongings to her mother’s house at Agblogbloshie. She states that the Plaintiff engaged in several amorous relationships with other women who included their landlord in an apartment they rented and this caused her mental anguish and that as a result she was placed in a mental institution. The Defendant states that the Plaintiff was invited to her family house so he could explain why he moved her things into her family house and for him to perform the appropriate rights to end their relationship according to the Ga Tradition but he failed to show up. The Defendant states that upon being released from the mental hospital she moved into her mother’s house. She states that she moved back into the Plaintiff’s house after the Plaintiff asked for her forgiveness and requested for her to move back into their matrimonial home to take care of their child who had a broken arm. She states that she instituted an earlier action against the Plaintiff and prayed for an order of the Court directing the Plaintiff to pay for her items he destroyed. She further states that the Court ordered the Plaintiff to pay Five Thousand Five Hundred Ghana Cedis (GH¢ 5,500.00) but he paid only Seven Hundred Ghana Cedis (GH¢ 700.00). She also states that the Plaintiff caused Advans Bank to withhold her money and that he refused to refund the cost of her 100 roofing sheets he used to repair his father’s house. She finally states that the Plaintiff has requested she vacates from the home they share and as a result she sleeps in the kitchen. DISCUSSION OF THE LAW The law is trite that a party who asserts a fact assumes the responsibility of proving same and thus the burden of producing evidence as well as the burden of persuasion is therefore cast on that party and the standard required is provided for by the virtue of sections 10,11 and 12 of the Evidence Act, 1975 (NRCD 323). The above stated provisions have received judicial blessings by the Supreme Court who has pronounced on them in the past to be the nature and standard of proof in civil cases. This position of the law has been reiterated in the case of Ackah v. Pegrah Transport Ltd and Others [2020] SCGLR 728 where in unanimously dismissing an appeal, the Supreme Court held 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 carried and it includes the testimonies of the party and material witnesses, admissible hearsay, documentary and things (often described as real evidence), without which the party might not succeed to establish the requisite degree of credibility concerning a fact in the mind of the court or tribunal of fact such as a jury. It is trite law that matters that are capable of proof must be proved by producing evidence so that on all the evidence a reasonable mind could conclude that the existence of the fact is more probable than its non-existence. This is a requirement of the law on evidence under sections 10(1) and (2) and 11(1) and (4) of the Evidence Act, 1975 (NRCD 323),” See the case of Ababio v. Akwasi IV [1994-1995] GBR 774. Therefore, for both the Plaintiff and Defendant, the burden of persuasion they each bear, is discharged by each leading sufficient evidence to prove the existence or non- existence of each fact asserted, which is essential to their claim or defence, where applicable. I have set down the following issues down as the issues for determination; 1. Whether or not the Defendant should be ordered to vacate from the Plaintiff’s premises. 2. Whether or not the Defendant is entitled to her reliefs THE EVIDENCE PRESENTED BY THE PLAINTIFF The Plaintiff mounted the witness box and relied on his witness statement which was a repetition of his pleadings as found in his statement of claim. He also tendered into Exhibit A which he alleges was a document detailing what happened at the meeting held between the Defendant’s family and his family when his marriage to the Defendant was customarily dissolved. He also tendered into evidence Exhibit B which is are copies of the writ of summons and statement of claim in Suit No: A11/12/07, Exhibit C which is the record of proceedings in Suit No: A11/12/07 and Exhibits D and E which are receipts of the payment the Plaintiff made to the Defendant. Although this case is not a divorce petition, there is an issue of whether or not the marriage between the parties has been dissolved and the answer to this question will determine the first issue of whether or not the Defendant should vacate the Plaintiff’s property. The Plaintiff attached Exhibit A which he purports to be a document proving that their marriage has customarily dissolved. I will reproduce the relevant portions of Exhibit A; Upon the request of Mr. E. Okoe Adjei, seeking a divorce of Madam Akweley Kudjoe, his wife on the grounds of Akweley Kudjoe’s bad character, which does not constitute true marriage, the wife’ paternal arbitration on the matter on the 20th day of February, 2005 whereupon, a definite divorce settle was made. Consequently, the husband, Mr. E. Okoe Adjei, by name, paid on the wife’s demand, an amount of 2.5 million cedis to Madam Akwaley Kudjoe, his wife, through the mother-Akweley Pardie, as amount due to divorcing her. This document on its own does not satisfy the burden on the Plaintiff in proving that their marriage has been dissolved. Exhibit A is a self-serving document which was not signed by any of the principal members of both families and this call into question the authenticity of the document. Fortunately, the Plaintiff attached Exhibit C which is the record of proceedings in the civil suit the Defendant instituted against the Plaintiff and dated the 6th of February, 2007. I will go ahead and reproduce same; Parties … Present Note; The mediators Mr. Benjamin Martey, Mr. John Padi and Doris Tetteh told the court that when the marriage was dissolved the applicant was paid. 2.5 Million as compensation. It is clear that Exhibit C corroborates the story of the Plaintiff which is to the effect that their marriage had been dissolved customarily and he had compensated the Defendant with ¢ 2.5 million (old Cedis) which is now Two Hundred and Fifty Ghana Cedis (GH¢ 250.00). The Plaintiff also stated that he paid an extra amount of Seven Thousand Cedis ¢ 7,000,000 (old Cedis) which is now Seven Ghana Cedis (GH¢ 7.00) on the orders of the court since the Defendant was unsatisfied with the amount he paid as compensation upon the dissolution of their marriage. The Defendant denied this assertion and cross examined the Plaintiff but the Defendant failed to discredit the Plaintiff’s evidence. This is what ensued on the 1st of July, 2024 and this is what ensued; Q. Why did you bring me to Court? A. We were married and our marriage ended and I was asked to compensate you which I did. You then decided not to leave my house even though our marriage has ended. Q. In the Prampram custom when you want to divorce your wife you have to go and see her family and perform some customary rites and you have not performed these customs. A. I have performed that custom and I have attached a document to that effect stating that your family sat on the matter and we are now divorced. On the 9th of September, 2024 cross examination of the Plaintiff continued and this is what happened; Q. All you are saying is a lie, you have not divorced me customarily A. I have performed all the rites to divorce you and I have attached evidence of what I did in the presence of the family and the money I was asked to pay by the District Court La. Exhibit C which was tendered into evidence by the Plaintiff also clearly states that the District Court La, differently constituted ordered the Plaintiff to pay the Defendant an extra amount of ¢ 7,000,000 (old cedis) on the 17th of April, 2007 and the said amount was paid on the that very day as stated in Exhibit D. It is clear from the above that the Plaintiff has compensated the Defendant with a total amount of ¢ 9.5 million (old cedis) which is now Nine Hundred and Fifty Ghana Cedis (GH¢ 950.00) after their marriage has been dissolved customarily. The Defendant counterclaimed and prayed for an order of the court awarding her equal share of the property located at Teshie Tebibiano and Prampram. Unfortunately, this instant case is not a divorce petition and this court cannot therefore make a determination as to whether these properties are spousal properties and accordingly, I will not make any orders in respect of Relief (i). The Defendant also counterclaimed for an order for the Plaintiff to pay an amount of Four Thousand and Eight Hundred Ghana Cedis (GH¢ 4,800.00) being cost of damaged goods, refund of 100 roofing sheets she gave to the Plaintiff, cost of aluminium cooking pots sizes (60) and (15) and an amount of Seven Thousand One Hundred Ghana Cedis (GH¢ 7,100). She testified that she instituted the action at the district court La in the year 2007 to seek for the Defendant to be ordered to pay for the destruction he caused to her items. I will reproduce excerpts of Exhibit B which is the Statement of Claim in the case with Suit No: A11/12/07 and filed on the 21st of August, 2006 as follows; 6. The plaintiff is at the moment not well and could not do any work, The Defendant says the Plaintiff should leave his house and go to her family. 7. The family also is not ready to accept she is not well. 8. The Plaintiff therefore plead with this Honourable Court to compel the Defendant to accept the Plaintiff as she is and care for her. It is clear from the above that the Defendant’s story as to the purpose of instituting the earlier cause of action in the year 2007 was for the Plaintiff to be ordered to pay for her damaged items is false and this Court will not accept the Defendant’s testimony. The Plaintiff cross examined the Defendant on the 9th of September, 2024 on this fact and this is what happened; Q. I sent you to La because 0f my items you destroyed and you paid half of the money you were ordered to pay and that the reason my things are still in the house. A. That is not true. You sent me to court because you said the amount I paid as compensation was not enough so I was asked to pay more and I did. I have the receipt to prove it and I have attached it. Unfortunately, the Defendant failed to lead evidence on this fact and just repeated her assertions when she mounted the witness box and thus, she failed to meet the standard in the case of Majolagbe v. Larbi (supra). Accordingly, the Defendant failed in proving her case and I hereby conclude that she is not entitled to her reliefs. She is clearly trying to get more money from the Plaintiff and when she has already been compensated twice by the Plaintiff. This court will not be used as a pawn by the Defendant to extract more money from the Plaintiff and she thus fails on her counterclaim. The Defendant can institute an action for a declaration as to whether the subject matter in dispute is a spousal property and thus is entitled to a share of same. CONCLUSION Having carefully considered the evidence adduced by both parties I hereby conclude that the Plaintiff has been able to prove his case on a preponderance of probabilities and accordingly I hereby order the Defendant to move out of the Plaintiff’s apartment within three weeks from the date of this judgment. I also grant the Plaintiff possession of the said room the Defendant occupies. Due to the relationship between the parties, I will not make any orders as to cost. SGD H/W ADWOA BENSAO ASUMADU-SAKYI MAGISTRATE