MR. FRANCIS AYEH - (Plaintff)
MARY AGYEMANG - (Defendant)
DATE: 30TH MARCH, 2016
SUIT NO: E1/98/2014
JUDGES: ALEXANDER OSEI TUTU J. SITTING AS JUSTICE OF THE HIGH COURT
MRS. GRACE ADDAI FOR YAW ASARE DARKO FOR THE PLAINTIFF
JAMES ENU FOR THE DEFENDANT
The plaintiff’s action began in this court on the 28th day of March, 2014 against the defendant. The reliefs he sought were:
a) An order for recovery of possession of plaintiff’’s property to wit; H/No. 36 Addo Avenue , Zenu Tema.
b) An order to evict the defendant forthwith from the said premises.
c) General damages for trespass and/or for mense profit.
d) An order of perpetual injunction to restrain the defendant, by herself, agents, servants, privies, assigns or otherwise howsoever from disposing of, using, altering, modifying or in any manner interfering with the construction of the plaintiff’s ownership of the property in dispute.
e) Such other equitable or other reliefs as this honourable court may deem fit and just.
When the defendant was served by substitution, she caused her lawyer, James Enu to enter an appearance on her behalf on 15th May, 2014 and a statement of defence containing a counterclaim was filed on 13th June, 2014.
The counterclaim sought from the court against the plaintiff were:
a. A declaration that the defendant is a wife of the plaintiff.
b. A declaration that the defendant contributed in cash and in kind for the acquisition and development of the property.
c. An order declaring the defendant and plaintiff as joint owners of H/No. 36 Addo Avenue, Zenu, Tema
d. An order restraining the plaintiff, his agents, assigns, or whomsoever from interfering with the defendant’s occupation of the property and dealing with it as a joint owner.
e. Any further orders that this honourable court may deem fit.
On 26th January, 2015 the court set down the issues raised by both counsel for trial. The issues raised by the plaintiff are:
i. Whether or not the plaintiff is the beneficial owner and entitled to possession of the premises described as H/No. 36, Addo Avenue, Zenu, Tema.
ii. Whether or not the defendant had any hand in the acquisition of the plot of land on which the disputed building has been erected.
iii. Whether or not the defendant made any financial contribution towards the construction of the disputed building.
iv. Whether or not plaintiff ever contracted any marriage with the defendant at the time.
v. Whether or not the defendant had at any material time prior to this action been unemployed depending solely on the plaintiff for her livelihood and maintenance.
vi. Whether or not at the family meeting, the plaintiff refunded an amount of GH 8,720.00 being rent advanced defendant collected from tenants she had let into the⊄disputed premises without plaintiff’s permission.
vii. Whether or not defendant had submitted to plaintiff a statement of account of her alleged expenditure totaling an amount of GH⊄6,684.00.
viii. Whether or not the defendant conceded that she had collected the said rent advance of ⊄8,720.00 in order to defray her alleged expenditures of GH⊄6,684.00.
ix. Whether or not the plaintiff has fully reimbursed the defendant with an alleged expenditure purportedly incurred towards the construction and/or improvement of the disputed building.
x. Whether or not the defendant is estopped by conduct from making any adverse claims of ownership in respect of the disputed building.
xi. Whether or not the plaintiff is entitled to the reliefs prayed for.
xii. Whether or not the defendant is entitled to her counter-claim.
xiii. Any other issue raised by the pleadings.
The defendant’s additional issues were:
1. Whether or not the plaintiff held the defendant out as the wife in the eyes of the families of both parties and the general public.
2. Whether or not at any point in time the plaintiff shirked his responsibilities towards his children and defendant had to rent out parts of the house to cater for the children.
After directions, the court on 14th July, 2016 directed both parties to file their respective witnesses’ statements in order that the trial could proceed. Both parties filed their witnesses’ statements, but not within the time frame given by the court. The default thus pushed further the date fixed for the Case Management Conference (CMC). After the directions, the counsel for the defendant ceased coming to court for the CMC to be conducted, notwithstanding the fact that the suit has since been called on not less than thirteen (13) times. It was only on one occasion that defendant counsel sent one Kwabena Asante to represent him but he appeared unprepared and only sought for a date, because the he had not been instructed to go on. On the 2nd day of November, 2015 for instance, counsel for the defendant could not attend court and wrote asking for a date on the 16th of November, 2016. The records indicate that his suggested date was accepted by the court for the suit to be adjourned to that date, but regrettably counsel for the defendant, as usual, still failed to attend court without even having the courtesy to let the court know the reason for his inability to attend court on the very day he himself had suggested and which the court had obliged him.
In Ex parte State Housing Co Ltd. (No. 2) (2009) SCGLR 185, the Supreme Court held at page 190 that a party who disables himself from being heard cannot later turn around and accuse the adjudicator of breaching the rules of natural justice. This course is not limited to only the courts in this country. Rita Nosakhare Pemu JCA in the Nigeria case of Abana v. Obi 2005 6 NWLR pt. 920 page 183 held: “A litigant who had the opportunity to present his case before the court but fails to do so cannot be heard when he turns around to complain of the breach of his right to fair hearing.”
It has further been held by the Supreme Court in the unreported case of Republic v. Court of Appeal, Accra; Ex parte East Dadekotopon Development Trust, Civil Motion No. J5/39/2015, dated 30th July, 2015 that: ”There could not be a breach of the rules of the audi alteram partem rule, when it is clear from the facts that sufficient opportunity was given to a party and was abused by him. . . we think the conduct of the applicant is such that our discretion should not be exercised in his favour.”
The Case of the Plaintiff’
Plaintiff is a civil servant who acquired H/No. 36, Addo Avenue, Zenu, Tema which hitherto was a bare land, from one Prince Emmanuel Tetteh somewhere in September 2006. The house is a two storey. It is his case that the defendant never made any contribution towards its acquisition. The building plan was drawn up by Ellis Dovlo, while Kwame Dartey laid the Blocks and did the plastering. Plaintiff further mentioned other persons who were engaged to work on the construction of the building. He produced various receipts evidencing items that were purchased as exhibit 2 and the workmanship as exhibit 3.
According to plaintiff, he had been in a conjugal relationship with the defendant, which resulted in the birth of two issues. Since the defendant was unemployed, plaintiff took care of all her needs. He therefore denied contributions made by the defendant towards the acquisition of the land and the construction of the house. Earlier attempts made to put the defendant into business resulted in a failure. The latter apparently dissipated the capital. When the plaintiff began the construction of the building, he asked her to supervise the project for a periodic remittance. While the project was ongoing, the plaintiff traveled to the north for an official assignment only to return to find that the defendant had moved into the building with the excuse that her previous residence was prone to flooding. She further let some of the rooms to tenants and kept the money for her personal use.
Upon discovery of these facts, the plaintiff reported the defendant’s acts to some family members and acquaintances who summoned a meeting and the defendant was condemned in no uncertain terms. It was then agreed that the defendant evict the tenants and refund their rent back to them. Since she claimed to have expended the amount on the building construction, plaintiff intervened and refunded their rent to them totaling GH⊄8,720.00. Each tenant signed an acknowledgment to that effect and same was tendered in evidence as exhibit 4. This was in contrast with GH ⊄6,684.00 of the rent sum defendant alleged to have injected into the building, thus leaving a difference of GH ⊄2,036.00 unaccounted for.
Having thus made that account, it is the case of the plaintiff that the defendant is now estopped from making any further claim of her alleged interest in the building. Plaintiff denies the defendant’s assertion that he ever intended to advance the building to her and her children. It is his case further that despite terminating the conjugal relationship with the defendant long ago owing to series of irreconcilable differences, she has still refused to vacate the premises. He thus describes the defendant as a trespasser, liable to immediate eviction from the property.
Plaintiff denied any marriage relationship ever contracted with the defendant, whether Customary or Ordinance. He further denied ever holding the defendant out as his wife and it is his case that defendant is never known to his family as a wife. He tendered in evidence the Obituary Notice of his deceased mother, which only had the name of his lawful wife, Evelyn Ayeh.
Plaintiff called four witnesses. Two of them, (Rtd) Chief Inspector Joshua Ayeh and Elder S.A. Vondee partook in the meeting involving the parties for which the defendant was made to account and evict the tenants of the house. Whereas, the former claims to be a brother of the plaintiff, the latter was a member of the Committee set up to meet the tenants. The other two witnesses for the plaintiff, Robert Kportufe and Azumah Bawah were workers on the building.
The Case of Defendant
Though the defendant and her witnesses did not appear in court to tender their witnesses’ statement which they had filed on 30th November, 2015, I will nonetheless consider briefly her processes filed, particularly the statement of defence and counterclaim and upon which issues were joined with the plaintiff. The purpose for considering her pleadings is to enable this court remind itself of the burden required of the plaintiff in proving his case, once issues are joined. It is not for the plaintiff to be entitled to automatic grant of his claims just because the defendant did not attend court, especially when some of the plaintiff’s reliefs are declaratory. I strongly know plaintiff’s counsel is very much aware of that, and that may explain why he still laboured to call four witnesses with the view to proving the plaintiff’s case.
The defendant in her defence and counterclaim denied her relationship with plaintiff was one of concubinage. She describes herself as the wife of the plaintiff, the latter having presented drinks to her parents to do the knocking in the 1990’s. It was her case that, she lived under the same roof with the plaintiff and when she was being transferred to Accra from Ada in 2001. That was the period she took seed and eventually had their first issue. The relationship has since produced three children, one of whom has joined the silent majority. She averred her active role and contribution in the acquisition of the land and the eventual construction of the building in dispute. She further contends that the plaintiff was not living up to his responsibility as a husband and father and had to be reported to DOVSU.
With this background, I will now venture to tackle the main issues arising from the pleadings.
Is the defendant a wife or a concubine?
It is trite that there are three types of marriages in Ghana; Ordinance marriage, Mohammedans Marriage and Customary Marriage. The present one may be considered in the light of the last. Judicial minds do not speak with one voice when it comes to what amounts to customary marriage. Ollenu J. (as he then was) in Yaotey v. Quaye  GLR (Part II), 573 at 574 laid down the ingredients of a valid customary marriage as follows:
i. Agreement between the parties to live together as man and wife.
ii. Consent of the families of the man and the woman to the marriage. Such consent may be implied from the conduct, e.g. acknowledging the parties as man and wife, or accepting drink from the man or his family;
iii. Consummation of the marriage, i.e. the parties living together openly as man and wife.
Following this ratio of Ollenu J., Osei Hwere J. (as he then was) in the case of Badu v.
Boakye  1 GLR 283 at page 290 set the stage for the controversy when he held:
“The presence of these essentials must be real and not notional. So that where a man lives with a woman not as a real wife but only as a concubine with the consent of the woman’s parents that association cannot be translated into a valid customary marriage between the man and the woman are reputed to live as man and his wife. Even though the defendant freely described the plaintiff as his wife and he also described their association as ‘marriage’ this was no more than another euphemism for ‘concubine and ‘concubinage’ respectively.
The above position has been followed variously by our courts when the opportunity presented itself. See the recent decision of the Supreme Court in the unreported case of
Marian Obeng Mintah v. Francis Ampenyin, Civil Appeal No. J4/18/2013, dated 25th March, 2015.
In 1992, Lutterodt J. (as she then was) now Georgina Wood C.J. mustered the courage to depart from Ollenu J’s proposition of the elements of a valid customary marriage in the famous case of Essilfie v. Quarcoo  2 GLR 180. She re-examined the essentials as follows:
“On the authorities, there are two forms of valid marriage known to the customary law; first the ordinary case when a man sought the hand of a woman from the family and with their consent performed customary ceremonies of payment of drinks, customary fees and dowry and secondly where although the customary marital rites had not been performed, the parties had consented to live in the eyes of the world as man and wife and their families had consented that they should do so and the parties actually lived as man and wife.”
The learned Judge’s departure from her ‘forebearers’ has since emboldened more judges to reason with her, making the point that customary marriage can still be contracted without the performance of any formal ceremony or the payment of a bride price, provided the parties agree to live together as husband and wife in the eyes of the whole world. Appau JA (as he then was) in the recent case of Irene Gorleku v. Justice Pobee & Anor.  42 G.M.J. 53 carefully considered the real meaning of customary marriage. The learned judge critically and extensively looked at other judicial decisions and thinkings vis a vis Yaotey v. Quaye  GLR 573 sided with Lutterodt J. (as she then was) by re-echoing the principle that customary marriage does not always have to be evidenced by the presentation and acceptance of drinks and other presents as is ordinarily done, but it suffices if the consent of the families is implied by their conduct.
He held at page 76 thus:
“It is instructive to note that non-interference by family members in the long co-habitation of any of their members with another person of the opposite sex as man and wife in the eye of the public constitutes implied consent. In my view therefore, the agreement of the man and wife and the fact that they lived as such is more paramount than the consent of their families; either express or implied when it comes to the determination as to whether or not they were legally married in a situation like the one before us . . . and particularly where the issues involved property sharing. In fact, it is the deciding factor.”
Apau JA’s reasoning seems to be in accord with modern realities and social change. It is a known fact to every follower of the Anglo-Saxon Legal tradition that the common law has always paid much reverence to form and procedure at the expense of substance. For this reason, it never recognized any marriage not contracted in accordance with the requisite procedure and formality, otherwise known as ‘sui juris’ marriage. But if with all its pride, glamour and rigidity the common law has now backtracked and swallowed a humble pie by recognizing such informal marriages, (See Irene Gorleku v. Justice Pobee Anor ), I do not see why we as followers of the legal tradition should struggle to conform. I say so bearing in mind that our laws, specifically, the 1992 Constitution under article 11 (2) defines the common law of Ghana to include our customary laws. For the avoidance of doubt, i reproduce the text as follows
“(2) The common law of Ghana shall comprise the rules generally known as the common law, the rules generally known as the doctrine of equity and the rules of customary law including those determined by the Superior Court of Judicature.”
When Deane CJ in the early 1930’s had the opportunity to rule on what customary marriage entails, he decided in the case of Quaye v. Kuevi  D.Ct. 1931 69 at page 74 that the inability to show that the ceremony of the presentation and acceptance of drinks took place to signify family consent of an alleged marriage was not sufficient to invalidate a marriage if the consent of the parties to the marriage could be proved by other means and if it were also proved that the parties had lived together in the sight of the world as man and wife. He held as follows:
“. . . although it is highly desirable that a party seeking to establish a marriage should be able to point to the giving of the girl’s parents and acceptance by them a rum as evidence of their consent to the marriage, yet the inability to show that such ceremony has taken place would not in my view of itself be sufficient to invalidate a marriage if the consent of the parties to the marriage were also proved that the parties had lived together in the sight of the world as man and wife.”
Chief Justice Osborne in the Nigerian case of In Re Sapara  REN 605 at 607-608 referred to by Dr. Kofi Oti Adinkra in his article in the 1980 edition of the Review of Ghana Law Volume 12 had earlier set the precedent for his brother Deane CJ to later follow when he boldly stated: “I am unable to accept the proposition . . . that the consent of a man’s family is a legal essential to the marriage.”
Carefully considered, one can confidently argue that Ollenu J. s proposition for the necessity of the requirement of ‘family consent’ in customary marriages in Yaotey’s case cited supra in all humility was not an accurate restatement of the essentials of customary marriage. Various text writers have expressed doubt on his requirement for the family consent. The first proud son of our land of Gold to adorn the enviable gown, robe and wig, John Mensah Sarbah as far back 1868 wrote of customary marriage in his pace setter book; Fanti Customary Laws as follows:
“Where there has been a marriage in fact, the validity thereof is presumed, and where caprice, avarice, or ambition of a parent has been excited to force on a marriage, it will be found by careful study of the people and examination of the local marriage institution, that marriage entirely rests on the voluntary consent of a man and woman to live together as man and wife, which intention, desire, consent or agreement is, further evidenced by their living together as man and wife.”
The illustrious Sarbah further explained that the payment of drinks to the bride’s family was not a legal necessity in bringing customary marriage into effect. And that, where drinks were paid, it was done according to the means of the prospective groom and that among the ‘poorer classes’ none was given and yet their unions were perfectly legal.
Rattray also in his research on Ashanti Customs identified six types of marriages by the Ashantis, one of which was “Mpena Aware” which he literally translated as mating of lovers. He wrote:
“We however observed that this seems to be the most prevalent and common form of marriage today as people more and more assert their own will effectively in their choice of marriage partners.”
It is admitted that writers like Danquah in his Akan Law and Customs (1928) had insisted on the requirement of drinks presentation and family consent. He wrote:
“A customary marriage is void if not supported by the payment or express waiver by the bride’s family, of a bride-price.”
For such writers like Danquah who insisted on strict compliance of the requirements,
Woodman sarcastically wrote:
“Writers on the law of marriage . . . have sometimes filled their pages with socially interesting, but legally irrelevant details.”
The former lecturer of the Ghana Law School, Dr. Oti Adinkra in his article supra sought to portray that even Ollenu J. who fanned the controversy of formal requirements of customary marriage did believe that customary marriage was not in one form only, as he had stated in his book, Law of Testate and Intestate Succession in Ghana (1966) at page
The learned Family Law Lecturer tended to mock him as having contradicted himself when he quoted him as follows:
“… Ollenu maintains, for instance, that among the Gas there are at least two types of marriage: (i) the six-cloth marriage and (ii) the ordinary marriage, whatever the latter means”
Presumption of a marriage is thus presumed where a man and woman live together for some time and have children, maintain them and conduct themselves as married couple in the eyes of the general public. See page 7 of the 3rd edition of Family Law in Ghana by William E. Offei. The learned Akamba JA as he then was, in the case of Buckman v. Akomayi  47 GMJ 132 at 170-171 held: “Under customary law when a man and a woman live together for a considerable length of time, have children and maintain them and hold themselves out to the world as a married couple, there is a presumption that they are married. . . I dare say that on the authorities there are two forms of valid marriages known to our customary law as correctly stated by Lutterodt J. (as she then was) in the case of Essilfie and Another v. Quarcoo (1992) 2 GLR 180 and which statement of the customary law I adopt.”
Having extensively considered the law on the subject, I now focus on the present case. It was agreed by the parties on their pleadings that they were in a relationship, which has produced two issues. In fact, they were three and one died. The plaintiff however describes the relationship as a conjugal one devoid of any marriage connotation. The defendant disagrees, insisting that it was a marriage. She thus threw the challenge to plaintiff. According to defendant, the plaintiff came for her from her father after paying the knocking fees in 1996. She has since been with the plaintiff until recently when the plaintiff started avoiding her. Although she was working at a Medical Facility at Ada she had to stop the work and move to Accra with plaintiff when her husband the plaintiff was transferred. It is her case that the two have since lived in the sight of the world as husband and wife, including being recognized by the husband’s family when he lost his mother and attending several funerals with plaintiff. The obituary notice prepared by the family, she asserted, attested to that fact.
Plaintiff denies that defendant’s name ever appeared on his mother’s obituary notice and said it was her own invention. On that point, he had his alleged brother, (Rtd.) Chief Inspector Joshua Aryeh to corroborate his evidence to show that their family had never recognized defendant as his brother’s wife. The burden thus fell on the plaintiff to prove that the relationship with defendant was no more than a mere conjugal relations. I am afraid the plaintiff succeeded in disappointing me. The evidence led showed that he was staying with the defendant under the same roof. He was the breadwinner for the defendant and her children. He invested heavily in putting her into business. The defendant was more than a surpervisor/managress. Above all, the two had lived together in the eyes of the public as man and wife. If that were not so, when a problem ensued between them, the family would not have been brought in to assist in settling and even a church elder in the person of Elder Vongee. The applicable conditions enunciated in the above-cited authorities appear to have been met here.
It is undeniable from the evidence adduced that the two parties have lived together as a man and wife for a considerable length of time. Clearly, the workers and whoever visited the project site and knew that the defendant was living with plaintiff and had children with him, would no doubt, conclude that she was a wife. Let me dare ask the plaintiff: Is it his case that their relationship was just a conjugal one and so he would not have been bothered had any of his workers or even a different man proposed and entered into a similar conjugal relationship with the defendant, notwithstanding the fact that he lived with her, has children with her, maintained them and put her in various trade and businesses? I wish the plaintiff could answer in all sincerity. Truth, as is said, has no clutches, if it limps, it becomes a lie.
Although plaintiff and his alleged brother created the impression that the defendant was not recognized by their family, the court finds it very hard to accept . In respect of (Rtd) Chief Inspector Joshua Ayeh, the defendant had indicated in her statement of defence and counterclaim that he had been assisting the plaintiff to harass her in the house. The witness appears more like a partisan witness. I concede that nothing stands the way of a family relation in giving evidence. The court is to rely on the evidence if credible.
In Agyemang v. Bonsu [2010-2012] 1 GLR 538, it was held at holding 2 of the headnotes as follows:
“Under section 80 of the Evidence Act, 1975, NRCD 323, the existence or non-existence of bias, interest or other motives were some of the factors that needed to be considered when assessing the credibility of witnesses before a court. In the instant case, the trial judge found that the defendant’s witnesses were either acquaintances or relatives who stood to benefit from the success of the defendant’s case and therefore those were sufficient reasons for discrediting their evidence. However, merely being a relation or an acquaintance did not necessarily discredit a witness’s evidence. What was important was that the witness at the end of the trial was truthful.”
See also the cases of Osei substituted by Gillard v. Korang [2013-2014] 1 SCGLR 221 at holding 2, Nkaeguo v. Konadu  2 GLR 150 and Basare v. Sakyi [1987-1988] 1 GLR 313 CA. However, in Tanko v. Karami [1989-90] 2 GLR 189, the Court of Appeal held that where a witness gave evidence with a motive to help his friend, the court was entitled to place no weight on that evidence. The position of the Retired Chief Inspector in the family of plaintiff is unknown and his true identity is thus shrouded in doubt. Despite alleging in his witness statement as an elder brother of the plaintiff, his name seemed to be absent on the Obituary Notice. The names of the two elder siblings of the plaintiff on the Obituary notice are Eld. Anthony Ayeh Tafo and Mrs. Gladys Osei Bonsu Accra.
Significantly, once the plaintiff in his evidence could not refute the defendant’s assertion that he took drinks in the form of knocking to plead for the hand of the defendant by way of knocking, it will be a herculean task for me to reason with him. The number of years they have cohabited cannot be overlooked. These are but the few reasons that I find the parties to be married and not concubines. If the plaintiff had been able to establish a prima facie case, the onus then would have fallen on the defendant and her non-appearance in court would have come with serious repercussions. But as it stands, the plaintiff being unable to satisfactorily prove that their relationship was one of concubinage, he no doubt loses on this issue
Was the plaintiff solely responsible for the acquisition of the land and the construction of the building?
Plaintiff insists being the sole owner of the house. He tendered in court documents varying from his purchase agreement, receipt among others. He denies any interest of the defendant in the property. Defendant on the contrary challenges him. That, right from the beginning she partook and committed herself to the construction, both financially and physically. Plaintiff proudly tells the court that he has a wife with whom he had at all material time been staying with. If the defendant was a mere concubine and so had no business doing with the property in dispute, why would he have allowed her to sign as a witness and not his adorable wife? Why would the plaintiff have been made the supervisor of the whole project if she was not diligent and hardworking as he tried to portray her? Why would the plaintiff again bypass his ‘legitimate wife’, Evelyn Ayeh and make the defendant rather the supervisor? It is common knowledge that construction of a house requires much wisdom, time and diligence.
Though plaintiff tendered receipts of items purchased in his name, these receipts appear to be quite recent. He could not tell where the money for the construction of the building came from and neither could he tell which items were bought around the period at the early stages of the construction. The irresistible inference is that the receipts tendered are not the total amount spent on the building or better still, one may say, the tendered receipts are served serving. The two workers called by the plaintiff did not also help in unraveling the truth. It could clearly be deduced from their evidence that they had come to the court for a purpose, either they did not truly work on the building or they were careful to suppress the truth. The plaintiff himself had stated in his statement of claim and witness statement that the defendant supervised the project. The two witnesses never made any mention of her pertaining to her supervisory role, apart from one (Kportufe), who said the defendant engaged her to work on the electricals of the building but she never paid and he went to the plaintiff to collect the money. As for Kwame Darteh, he was careful not to mention the defendant’s name at all and it was as if it was a crime to do that. I wish he could answer for the court the person who supervised him!
Again, plaintiff claims he paid the defendant for her supervision of the building. Defendant denies and claimed in her defence that the only amount given her by plaintiff was for her and the children’s maintenance. Once she had denied, the plaintiff should have told the court how much she paid for the defendant over the period she supervised the building, or at least the periodic remuneration he paid to the defendant. Granted the defendant did not inject any money at all into the construction of the project, the property having been purchased with plaintiff and spending her precious time to diligently supervise the storey building till its completion for no proven remuneration, it would be surprising for a court of equity to send the defendant packing with empty hands. Dotse JSC in Lady Mensah v. Stephen Mensah  46 GMJ 48 SC, holding 3 did not drag his feet in holding that a wife’s contribution does not always have to be in cash, but also services rendered by her.
In view of the fact that the plaintiff could not state how much he paid as remuneration to the defendant for her supervision of the project and his further failure to refute the defendant’s assertion that the money sent was for her and the children’s maintenance by supplying evidence of separate remittances to defendant, I can only conclude and hold that the defendant has an interest by way of her contribution in the building.
What is the effect of the meeting, refund of monies and the defendant’s failure to vacate the house?
Plaintiff contends that a meeting was held by the family, where it was decided that the defendant renders an account, and was eventually asked to vacate the house. I am afraid the said meeting cannot be a basis for any valid claim. It was not an arbitration. At best, it can be considered as a negotiated settlement, which is not binding. See Regional Maritime Academy v. Amaning & Ors. [2005-2006] SCGLR 717 at 722; Aduasia v. Addae v. [1982-1983] GLRD 25 and Bakuma v. Ekor  1 GLR 133. The meeting itself appears suspicious as it was not fairly represented. At paragraph 18 of the plaintiff’s witness statement, he mentions the members present as including S.A. Vondee, (Rtd) Chief Inspector Joshua Ayeh and Sarah Ayeh.
Retired Inspector Ayeh claims to be a brother of the plaintiff and I can deduce from the Obituary Notice that Sarah Ayeh is also the plaintiff’s sister. Mr. S.A. Vondee has also appeared in this court as a witness for the plaintiff. All three persons allegedly present at the meeting seem to be persons related directly or indirectly to the plaintiff. There appears to be nobody from the side of the defendant and for which reason, the decision of the meeting should not be surprising at all. Let me say at this juncture that I am not impressed with the witnesses’ statements of the plaintiff’s witnesses. It is well calculated. For instance, Elder S.A. Vondee and (Rtd) Chief Inspector Joshua Ayeh gave virtually the same evidence. Apart from paragraph 2 relating to the names of the witnesses and paragraph 7 of Chief Inspector Joshua Ayeh’s witness statement, the first eleven paragraphs of the two witnesses are the same, word for word, punctuations by punctuations etc. They are both not illiterates for somebody to have prepared in his own style and expression. I am alarmed with their witnesses’ statements because when there is even an incident or a crime, there is no way the witnesses present at the scene would be able to express themselves exactly in the same language.
Quaye JA in the case of Quacoo v. Welbeck [2008-2009] 2 GLR 498 held at page 517 as follows:
“It is not unusual for witnesses who were present at the commission of a crime to give evidence which is not free from discrepancies. This is only natural because the ability to observe, describe or memorize an event may differ from person to person.”
As courts, we are warned to be cautious when the same evidences are given by witnesses in situations where their statements were made outside the court. The Nigerian Supreme Court in the case of Owie v. Ighiwi  5 NWLR Pt. 917 p. 184 (NSC) at page 218 held:
“There could be little differences when witnesses give evidence on the same subject matter. This is because human beings not being machines do not act with the automation of machines. If witnesses give evidence on the same subject matter or event to the exact minute detail, a trial court should seriously suspect such evidence because of possibility of tutoring or rehearsal, developing into a recitation before the date of giving evidence. Thus, where there are immaterial differences in evidence of witnesses here and there that in itself shows their truthful testimonies.”
I am tempted to believe that the purported evidences of the witnesses are not their handiworks. I suspect they were prepared by the plaintiff’s counsel himself and they were only made to sign. Perhaps, I should call it, ‘additional pleadings’. Let me point out that witness statements as we have now adopted are intended to serve as the evidence in chief of witnesses and for which reason, they should, as much as possible be independent, with no reconstruction, recast or modifications by lawyers. That underscores the reason why witnesses are required to verify their statements and not just sign.
On the difference of GH⊄ 2,036 which the defendant could not allegedly account for and for which the plaintiff says she is estopped from demanding any interest in the property, the court finds it unreasonable. The defendant had denied and asserted that the plaintiff reneged on his maintenance responsibility for her and particularly her children, so she had to fall on the amount. Plaintiff led no satisfactory evidence to show that he truly maintained them, especially the children.
Is the plaintiff entitled to his claim?
It is trite that a plaintiff is to adduce evidence to prove his case. He can only rely on the weaknesses in the defendant’s case after he has first discharged the onus on him. See the cases of Efisah v. Ansah [2005-2006] SCGLR 943; Agyepong v. Fordjour  19 MLRG 48 and Adwubeng v. Domfeh [1996-1997] SCGLR 660 at 669-670.
Counsel for the plaintiff submitted in his address that once the defendant did not appear to cross-examine the plaintiff and his witnesses, the law is that she has conceded.
Indeed the principle had been stated in a plethora of judicial authorities. See Kwanko v. Lebanon Society  70 GMJ 118, at 141-142, per Dzamefe JA; Aryeetey v. Brown  5 MLRG 160 at 164, CA; Amoah VI v. Okine & 4 Ors.  77 G.M.J. 124 at 142, S.C; and GPHA v. Nova Complex Ltd. [2007-2008] SCGLR 806 at holding 3.
It must be pointed out that the principle that an unchallenged evidence amounts to an admission is not without exceptions. To start with, the Supreme Court held in Dzaisu v. Ghana Breweries Ltd [2007-2008] SCGLR 539 that: “The principle that when a party fails to cross examine on an issue, that issue would be ruled against him is not an inflexible rule.”
Also in the case of In Re Johnson (Decd); Donkor v. Prempeh  2 GLR 182, the Court of Appeal held:
“It is not always the law that the failure to cross examine on material issues amount to complete acceptance of the evidence offered by the adversary. Where the evidence is incredible or romancing in character, a court of law is not bound to accept same on the ground that it was acknowledged sub-solevitio by the adversary against whom it was offered.
For more of the exemptions to the rule see Ayiwa v. Badu  1 GLR 86 at page 95, Banahene v. Botwe [1989-1990] SCGLR 478, SC and Fynn v. Fynn & Osei [2013-2014] 1 SCGLR 727 at holding 2. There were various lapses in the evidences of the plaintiff and his witnesses that naturally compelled the court to consider them in the light of the exemptions to the rule. On the totality of the evidence adduced, it is regrettable that I am unequal to the task for which the plaintiff has come to me to discharge for him. In short, his claims cannot be granted.
Is the defendant entitled to her counterclaim?
It is trite that a counterclaim is a separate and independent action that has to be proved just like the plaintiff’s claim. See J.K.Kpogo v. F.K. Fiadzorgbe; Civil Appeal No. J4/9/2012, dated 6th May 2015 (Unreported); Nortey v. African Institute of Journalism & Communication  77 G.M.J. 1 at p.40 and Nii Odai Kwao Asumang & 2 Ors. v. William Sowa Charway & 14 Ors.  75 G.M.J. 108 at 135.
Defendant and her witnesses, though filed witness statements, they did not appear in court to tender them to b e able to become evidence. This would have enabled them to be cross-examined on them. Generally speaking, evidence not tested by cross-examination cannot be relied on and where a court relies on it, it lends itself to be set aside on appeal. See Quacoo v. Welbeck supra and Mansa v. Nimo  GLR 511.
In Aryetey v. Ayele  1 GLR 225, it was held at holding 1 that the mere assertion on oath by a party to a suit that he relies on a statement he had previously filed does not make that statement evidence in the proceedings.
Further, in Godka Group of Companies v. PS International Ltd. [2001-2002] SCGLR 918 at 929, it was held that judicial evidence must be given by witnesses who before testifying, must take oath and affirmation that they would speak the truth. The overall effect of the authorities is that a document not tendered in evidence cannot constitute evidence.
However, where there is an admission, the adversary needs not give evidence on the issue. In Republic v. Agboka VI, Ex parte Deh III (1984-1986) 1 GLR 581, the Court of Appeal held at holding 1 of the head notes:
“Where an adversary has admitted a fact advantageous to the cause of a party, the party does not need to establish that fact than relying on such admission.”
Also in the case of In Re Asare Stool; Nikoi Olai Amontia IV v. Akortia Oworsika [2005-2006] SCGLR 637, it was again held at holding 2 thus:
“Where an adversary has admitted a fact advantageous to the cause of a party, the party does not need to establish that fact than by relying on such admission.” See also Dufie v. Fosua  4 MLRG 143 at 147, CA.
The import of these authorities is that once the plaintiff had admitted by inference from his pleadings and witness statements that she met the defendant several years back; he was responsible for her upkeep; he put her in various trades and businesses, he settled their issues with the involvement of their family and ultimately, the defendant supervised his project, this court found that there was a valid customary marriage between the parties and the defendant then need no further evidence to prove the issue. I hold the defendant to be a customary wife not because of the fact that I am unaware of the recent Supreme Court’s case of Marian Obeng Mintah v. Francis Ampenin, supra. In that case, a relationship between the parties was held to be concubinage, contrary to the woman’s insistence that it was a marriage. I venture to draw a distinction between that case and this one. In that case, the relationship lasted for only two years, unlike this one which has traveled beyond a decade, the parties have issues and the man has been wholly responsible for the upkeep of the woman, their families assist in resolving their differences, among others. The period of cohabiting is very vital and it is not surprising that our law makers are currently considering the Property (Rights of Spousal) Act, which converts the status of a woman in a concubine relationship of five years to a spouse.
In respect of whether the defendant has any interest in the property, I have already explained that once the plaintiff’s evidence suggest that the defendant was the one who supervised the project and the evidence could not disclose the specific remuneration given to her, then on the authority of Mensah v. Mensah  1 SCGLR 391 and Patience Arthur v. Moses Arthur; Civil Appeal No. J4/19/2013, dated 26th July, 2013, S.C (Unreported), defendant’s contribution in the property would be presumed. Once presumed, the equality principle will apply.
By the equality principle, the court is required to make a determination of the percentage. I can see a lot of receipts attached to defendant’s witness statement purporting to be items she purchased, but since she did not appear in court to be cross-examined on them, I will disregard them and fix the percentage of the plaintiff’s interest at 65% as against 35% for the defendant.
Granted that a marriage relationship cannot be established, it was still possible for the defendant as a concubine, who had acted under an erroneous impression that she was in a marriage relationship, to be entitled to portions of the property she had contributed by way of supervision and it did not matter whether the contribution was directly towards the acquisition of the property or not. In Gregory v. Tandoh W & Hanson  SCGLR 971, the Supreme Court unanimously held at holding 4:
“ . . . Even on the assumption that the first defendant had used his own money for the construction of the house, the plaintiff would not be left helpless without any remedy in the house built by the first defendant at a time the plaintiff honestly believed she was married to the first defendant and took up the upkeep of the house. Under the circumstance, the plaintiff’s contribution in equity would be deemed as contributions towards the house. The Supreme Court would therefore call in aid equitable principles to give meaning to the quest of the court to do justice in all cases and to all manner of persons.”
Therefore, I decree and declare as follows:
a) That the defendant is the customary wife of the plaintiff
b) That the defendant contributed to the construction of the property in dispute being H/No. 36, Addo Avenue, Denu Tema by way of her supervision
c) That the parties are joint owners of the said house.
d) That the defendant has 35% interest in the property.
e) That the plaintiff, his agents, assigns, workmen and all persons claiming through him are restrained from interfering with the defendant’s interest in the property.
There shall be no order as to cost.