Bosomah v Febiri (A11/32/2022) [2024] GHADC 780 (15 October 2024)

INTHEDISTRICT COURT HELDAT BEREKUMON WEDNESDAYTHE 15TH DAY OF OCTOBER, 2024. BEFORE HISWORSHIP AUGUSTINE AKUSA-AM THE DISTRICT MAGISTRATE. SUITNO. A11/32/2022 BOSOMAHFRANCISCA == PLAINTIFF VRS KWASIEBENEZER FEBIRI ==DEFENDANT JUDGMENT The plaintiff initiated theinstant actionseeking the following reliefs: (a) An order of this court to compel the defendant to give her a fair share of all that Cocoa and cashew farm situate at a place commonly known and called ‘Kwaemu’ on Biadan Stool Land which shares boundary with the farmlands of one Aboagye of Biadan. (b) An order of the court to compel the defendant to give her a fair share of the two roomswhichshe assisted thedefendant toconstruct. (c) An order to compel the defendant to provide her with financial provision for divorcing her. 1 The defendant repudiated liability and insisted that the plaintiff does not deserve any of thereliefs she seeks. PLAINTIFF’S CASE The case of the plaintiff is that she started a romantic relationship with the defendant in 2008and by 2019,the latterperformed the necessarymarriage customary rites. During the marriage they had one issue by name Mary Febiri. According to the plaintiff she assisted the defendant to cultivate Cocoa and Cashew farm at ‘Kwaemu’ near Biadan. She also assistedthe defendant toconstruct tworooms atSenase. Somewhere in 2016, the plaintiff averred that she had a divine calling to evangelize. She therefore went into evangelical work by preaching in public places. The defendant was nothoweverpleased withherevangelical activities and tried unsuccessfully tostopher. Following her insistence to do the work of God, the defendant thereby denied her access totheir matrimonial home and ratherbroughtinanother woman. The plaintiff averred that she had returned the customary drinks to the plaintiff signifying the dissolution of their marriage. She is therefore praying the court to award her an amount of GH¢30,000.00 as push-off and a fair share of the ‘Kwaemu’ farm and the two roomstheyconstructed at Senase. THE DEFENDANT’SCASE 2 The defendant’s case is that he had been operating his drinking bar over twenty five years ago and through which he married his first wife whom he divorced in 2013. That, he commenced courtship with the plaintiff in the year 2014 and subsequently formalized their relationship by marrying her in 2019. He said the plaintiff had a child in her first marriage before they got married. Their marriage was however blessed with a daughter by name MaryFebiri. According to the defendant, the plaintiff was jobless at the time of courtship so he provided capitaland made hertotradein Sandalsbut she could notsustain the business. Following the collapse of her sandals business, he again provided capital to the plaintiff to selleggsbut again that businessdid notsee the lightofday. The defendant explained that unlike his ex-wife, the plaintiff had never shown interest in farming activities so she never joined him to the farm which is the primary source of his livelihood. The defendant disclosed that after the plaintiff had failed to sustain her business activities, she stayed at home and began traveling to places without his knowledge and consent. That some of these trips took weeks and on one such trips, the plaintiff paid a visit to her former husband and blocked his number so he could not have access to her until she returned and apologized. 3 The defendant revealed that notwithstanding the collapse of her businesses, not helping him on the farm and grossly disrespecting his family members, the plaintiff one day confided in him that she has been “touched by divine hands” to do God’s work. The plaintiff also cautioned him to stop his drinking bar business because it was a Sin and that the HolySpirit had also cautioned her todesist fromhaving any sexualcontact with aman who drinks alcohol. The defendant explained that he could not stop his income earning drinking bar business so the plaintiff denied him sex for over five years and later returned the customary drinks signifying the end oftheir marriage. The defendant averred that the plaintiff never contributed a diem towards the construction of his building at Senase because he had acquired same and cultivating his farmbefore meeting her. The defendant tendered the plot allocation receipt dated 20/08/2006 in evidence. His site planwas also tendered. Philip Kwaku Manu who testified for the defendant told the court that he had known the defendant since childhood and stated that the defendant commenced his drinking bar business atayouthful agebeforemarrying his first wife whom he divorced in 2013. Witness averred that he had always mediated in the marital issues involving the parties. He revealed that the parties have had several disagreements but one that caused the 4 plaintiff to return the customary drinks was the refusal of the defendant to stop operating his drinking bar business. Before I deal with the issue for determination, I shall briefly touch on the burden of proof as required by law. The party who in his writ, pleadings or evidence raises issues essential tothesuccess ofhis case assumesthe onus ofproof. See ACKAH V. PERGAH TRANSPORT LTD AND OTHERS [2010] SCGLR 728 @ 736 and Sections10,11and 12of the Evidence ACT, 1975(NRCD 323. Atthe end ofthe trial, onlythree issues come up fordetermination; (1) Whether or not the plaintiff contributed significantly towards the building at Senase. (2) Whether or not the plaintiff contributed significantly towards the cultivation of theCocoaandCashewfarmat Kwaemu near Biadan. (3) Whetheror nottheplaintiffis entitled to pushoff. In her testimony in court the plaintiff claimed that she got married to the defendant in 2008. The defendant however denied this and said he divorced his first wife in the year 2013 and married the plaintiff in 2016. Their only daughter, Mary Febiri was 7 years as of 03/04/2023. This wasrevealed during crossexamination on03/04/2023. The plaintiff has alleged that she contributed towards the construction of the building at Senase andthe cultivationofthe cocoaand cashew at Kwaemu. 5 When she was however put to strict proof during cross examination, her responses left much tobe desired. Belowareexcerptsduring cross examinationofthe plaintiff. Q. Iput upmy building beforemarrying you A. WhenI married you, thebuilding was at thefoundationstage. Q. Whatis the natureofthe building. A. It is an uncompleted story building. The down floor is completed and that is where Ilive. Q. Howmany storey buildingdid Iintend to put up. A. I don’t know. Youasked me tosupport youwithprayers. Ido not knowhowmany storey’syouintended toput up. Iam notamason. Q. What contribution have you provided towards the construction of my Senase building. A. I did not fetch water. I cooked for the workers. I also prayed for you to get money forthe construction. Q. Whoprovided money for thecooking. A. You. Q. Howold is the building. A. Icannot telleventhoughit’sold. Q. Since when did youbecome anevangelist. 6 A. Five yearsago. Q. I married you eight years ago and for the past five years if you have become an evangelist thenhowhave youhelped me in acquiring my estate. A. Iwash yourthings. Icook foryou, I prayfor you. Q. I put it to you that since you started preaching about five years ago, you have even denied me sex. A. Iwash for you.I goto farmwith you. Q. Since youbecame apublic preacher,have youbeen tothefarmbefore. A. Youdon’t allowme togothere. Q. Youhave not beentothe farmabout fiveyearsnowso howdo youexpect tofeed. A. God alwaysprovides. From the foregoing, the plaintiff could not establish her actual or financial contributions towards the construction of the Senase building or the cultivation of the Cocoa and Cashew farm at Kwaemu. Prayers without more do not put food on the table. I am yet to see howprayersper se can putup abuilding. The plaintiff was not able to establish the precise extent of her contributions in terms of cash or materials. The evidence on record shows that the defendant acquired his land in 2006 and commenced building thereon by selling local gin known as “Akpeteshie”. The allocation paper and site plan tendered by the defendant were dated 2006. This means he acquired his properties yearsbeforemarrying the plaintiff in 2016. 7 The evidence shows that the plaintiff after having had “divine touch” persuaded the defendant to stop his drinking bar business or else she would walk out of the marriage. After failing to convince the defendant to terminate his source of livelihood (that is closing the drinking bar) the plaintiff carried her threat through by returning the marriage customary drinks and thereby divorcing the defendant. If the defendant were to close the drinking bar business, how was he going to finance his building project and farming activitiesfor the plaintiff tonowlayclaim to same? The evidence shows that the plaintiff could not sustain any of the businesses the defendant set up for her. She collapsed her sandals and eggs business and thus became jobless who solely lived on the benevolence of her marriage to the defendant. The Good Bookstatesthatthe hand doesnot workdoes notfeed. A critical examination of the evidence led in the course of the trial shows that the defendant commenced the construction of the building with his former wife and could not even continue same after marrying the plaintiff herein. The project got stuck due to the anti-drinking bar attitude put up by the plaintiff. A court of equity and conscience would not permit a wife who refuses to support her husband in the course of his business and also fails to contribute financially or logistically towards the development of any project to benefit therefrom. 8 Plaintiff was a wife who after having encountered the ‘Holy Spirit decided not to have anything to do with the “akpeteshie drinking” bar which has been the source of income for the defendant herein. Why is she now interested in any investments that have accrued from the “Satanic” business as she wants the court to believe? It is said of old that “if you don’t want monkeys tail to touch you then you don’t attend monkeys dance”. I am convinced on the evidence adduced that the defendant commenced his uncompleted building and cultivated the cocoa and cashew farm before getting married to the plaintiff. When quizzed about the names of the masons or any of the artisans who worked on the building, the plaintiff was found wanting. If the building had been put up during their marriage, she would have easily mentioned the name of just one mason. Furthermore, when asked who the boundary owners of the cashew/cocoa farm cultivated by the defendant were, the plaintiff again failed to mention any known name. These clearly showthe dishonesty ofthe plaintiff. Broadly speaking, a wife by going to live in a matrimonial home, the sole property of her husband, did not acquire any interest therein. The law does not recognize any such interest. She only had the right to live in the matrimonial home so long as the marriage subsisted. That right was conferred on her by virtue of her status as a wife and not by virtue of any other consideration. So long as her status as a wife remained, so long did that right survive. But that would terminate automatically after divorce. The plaintiff’s general right to live in the defendant’s house was a right in personam and not a right in 9 rem attaching to the matrimonial home. See ACHIAMPONG VRS ACHIAMPONG (1982-83) GLR1017-1039CA In all her averments the plaintiff merely stated that she assisted the defendant in acquiring the Senase building and the cashew/cocoa farm at Kwaemu. She could not however specifically state herpersonalcontributions towardstheacquisition ofthese properties. In her sworn testimony, the plaintiff simply told the court that she is a preacher (evangelist). She could not state if she is an income-earning preacher. That being so, I wonder in what form she assisted the defendant in putting up his house. For, however credible the plaintiff may be, her bare affirmation on oath or the repetition of her avermentsinthe witness box cannot constitute proof. This is trite law: SeeMAJOLAGBE V LARBI (1959)GLR190especially at page192. Having averred that she assisted the defendant in acquiring his properties, the court expected the plaintiff to have provided corroborative evidence in support of her averments. But she could notdo so. In all departments of this case, the plaintiff has failed to discharge the burden of proof to be entitled torelief. I therefore dismiss her suit for want of merit. In considering the fact that the plaintiff is notinany gainful employment, Ishall notorderany costsagainst her. 10 SGD H/W AUGUSTINEAKUSA-AM MAGISTRATE 11