JUDGMENT

In 1994, the Defendant informed the Plaintiff that the latter’s sister whose house the two were both staying at Community 2, Tema had asked her to vacate. When Plaintiff called the said sister, he pleaded with her to be given six months while he organized himself to find an alternate accommodation for his wife.

Somewhere in 1995, Plaintiff sent some substantial amount of money to the defendant to purchase the land on which the disputed house is standing from the late S.K. Oppong of the Osofo Dadzie’s fame. Plaintiff directed the defendant to use his name for the preparation of the title deeds, which the Defendant agreed. Unbeknown to him, the defendant had used the name of their daughter, Perpetual Amissah who was then about four (4) years to prepare the title documents. In the view of the Plaintiff, this constitutes forgery. The Plaintiff referred to various monies he remitted the defendant for the purpose of constructing the building. These monies, he claimed, were exclusive the monies he sent for the defendant and their child’s maintenance. Among the monies sent for the development of the building were; a $6,000 he sent through a Roman Catholic nun and a family friend by name Louisa when she was visiting Ghana (Defendant later called to acknowledge receipt), remittances of not less than $3000.00 on two occasions through Madam Josephine Aikens. Others were sent through Parker Joseph and Paa Kow and Western Union Money Transfers. He also mentioned as different, an amount he expended in an attempt to enable the Defendant procure a visa to join him in the US.

Apparently, plaintiff expressed his shock that the Defendant surreptitiously registered the property in the name of their daughter. Despite directing the defendant to change the property from her daughter’s name into his name, the defendant failed. When he returned to Ghana in 1998, he organized the other tenants to meet the vendor, S. K. Oppong with a view to regularizing the land documents, but it could not be done until the vendor died. He denied that it was the defendant who acquired the property in dispute. He further insisted that the defendant did not have the substantial financial capacity to be able to put up the property in issue. To prove his point, plaintiff posited that the defendant was initially a bookbinder at the Ghana Publishing Press, but she resigned later and has since not been re-engaged.

It is the case of the Plaintiff that during the pendency of this suit, the Defendant has collected some substantial amounts from tenants and rented out some of the rooms in the building without accounting to him being the true owner of the property. Plaintiff is now retired and has returned to Ghana, but he has no place on his own to lay his head He is occupying a one-room apartment in his family house at Agona Swedru and only depends on remittances from siblings and other family members domiciled in US for his sustenance and medical expenses.

Plaintiff’s only witness, Isaac Mensah, testified that he is a cousin to the Plaintiff. Mr. Mensah once lived together with the parties at Community 2, Tema. He was called by the Plaintiff as a witness primarily to testify that it was the Plaintiff who sent monies from US for the building project, aside other monies sent for the maintenance of the Defendant and their only daughter. He claimed the Defendant used to inform him that the Plaintiff was sending her money for the project and even after the completion of the building. Defendant harbored some fears that the Plaintiff would take away the building from her when he returns to Ghana. PW1 emphatically stated at paragraph 14 of his witness statement that the building belongs to the Plaintiff because the Defendant herself informed him that the building project, which was supervised by the Defendant was financed by the Plaintiff.

THE CASE OF THE DEFENDANT

Defendant’s case was that, in 1990 when the Plaintiff was travelling to America, they were not married, despite carrying his seed. It was after the Plaintiff had returned to Ghana in 1998 that they got married. I observed that the Defendant interchanged her position with the Plaintiff in her processes and at times, when she wanted to refer to the Plaintiff she mistakenly mentioned Defendant (See for example, paragraphs 3 & 5 of her Witness Statement filed on 9^th November, 2015). Defendant contended that she acquired the plot in issue from the late S.K. Oppong and built it through her own personal savings and resources. She did all the documentations in the name of her daughter. She acknowledged that there were some issues with the registration in her daughter’s name, but she denies it was fraudulent. She attributed the anomaly to her illiteracy. She also conceded that she once lived with the Plaintiff’s sister at Community 2, Tema, but was thrown out because she was then not married to the plaintiff. She had no option to move into her house now in dispute after her eviction. The monies she received from the Plaintiff, according to her, were partly to facilitate her travel abroad. The rest of the remittance was for her personal maintenance and finding an alternate accommodation when Plaintiff’s sister was evicting her. She emphatically denied that Plaintiff sent any money for the purpose of buying a plot or developing it.

According to Defendant, Plaintiff had no idea that she had purchased a land, until she informed him. Plaintiff ceased taking care of their only daughter when she completed Junior High School and she had personally been responsible for her upkeep and education. Defendant denied ever being directed by the Plaintiff to change the title documents into his name. She also denied receiving any $ 6,000.00 from the Plaintiff and the building project taking only a year to complete. She claims the project took four years. It was again her case that while the plaintiff was in America, she used to send some gowns and jewelries to him to sell and the proceeds were what were sent to her through money transfer after the Plaintiff had taken his share. Defendant justified her refusal to leave the house in controversy after their divorce, because the house does not belong to the Plaintiff. Plaintiff does not live there and only visits there to rain insults on her. According to the Defendant, their marriage hit the rocks in 2005 and the Plaintiff has since failed to maintain their child. It is an undeniable fact that the consequence of divorce may not always be desirable. I believe the parties may have come to agree with the words of Confucius when he said: “It is only when a mosquito lands on your testicles that you realize there is always a way to solve problems without violence.” Perhaps the pain and the agony in the hearts of the parties could have been avoided if they had not part ways. Finally, the Defendant pleaded limitation.

THE AGREEABLE FACTS

1. That the plaintiff travelled to US in 1990 and never returned till in 1998.

2. That at the time the Plaintiff was travelling, the Defendant was pregnant for him.

3. That the disputed plot was acquired from the late S.K. Oppong around 1994-95 when the Plaintiff was away in US.

4. That the parties were once married but they are no longer married.

5. That the Plaintiff paid an alimony of GH¢1,500.00 to the Defendant.

6. That the property in dispute was registered in the name of the parties’ only daughter.

WHEN DID THE PARTIES MARRY?

This issue was not set down, but it has become necessary for me to deal with it. During the trial the Plaintiff made the point at paragraph 5 of his witness statement that he married the Defendant before he travelled to US in December, 1990. Defendant at paragraph 6 of her witness statement expressly denied the assertion. She contended that although they were in a relationship, it was when the Plaintiff returned to Ghana in 1998 before he went to perform her marriage rites. The court can only agree with the Defendant on this point. Plaintiff’s own pleadings betrayed him. At paragraph 15 of the statement of claim, he averred that the formal customary marriage he contracted with the Defendant was done in 1999. The said paragraph 15 of the Statement of Claim, to the effect that the marriage was contracted in 1999, was admitted by the Defendant at paragraph 20 of her Statement of Defence.

The law does not allow issues to be joined on admitted facts. In Hammond v. Amuah (1991) 1 GLR 89, Brobbey J. (as he then was) held “The law is quite settled that when a party makes an averment and that averment is not denied, no issue is joined and no evidence need be led on that averment.” The Court of Appeal also in Church of Pentecost v. Essuman [2016] 99 G.M.J. 141, C.A. @ 159 held through Appiah J.A. as follows: “It is trite that where a party in his pleadings makes unequivocal admission no evidence need be led at the trial. It will be a clear waste of time to do so.” See also Kwame Bonsu & Others v. Kwame Kusi & Gifty Kusi Ampofowaa (2010) 26 GMJ 20, SC and Asamoah v. Fritz [2013] 53 GMJ 158 @ 177-178. The parties having agreed on the pleadings that the marriage was contracted in 1999, no issue is joined on the marriage commencement and it is unfortunate that the Plaintiff turned around during the hearing to forcefully contend that he married Defendant before he travelled to US in 1990. Can Plaintiff be allowed to depart from his own express pleadings at that stage? I wish I could answer the question in the affirmative, but the law as I know does not permit me to answer so.

Edward Wiredu JSC (as he then was) in Ogbarmey Tetteh v Ogbarmey Tetteh [1993-94] 1 GLR 353 @ 395 expressed himself thus: “The law as I understand it is that a party is bound by his pleadings and the acceptance in favour of a party of a case which is inconsistent with what he has put in and by his evidence is wrong and unjustified in law …” Appau JA (as he then was) in Doris Nartey v. Christian Kumi [2012] 42 G.M.J. 182 @ 191 in supporting the decision of the former Chief Justice had this to say: “A party cannot, in the course of hearing, put up a case contrary to or inconsistent with that which he himself had put forward in his pleadings.” See also Samanhyia v. Bih (2006) 5 MLRG 1 @ holding 2 and JNJ Mining Services Ltd. v. Tom Mcdonagh [2016] 95 G.M.J. 17 @ 30-31

Once the plaintiff pleaded that the marriage was contracted in 1999 and the Defendant admitted, the Plaintiff’s later assertion that the marriage was contracted before he travelled to the US in 1990 can best be an afterthought. I hold therefore that the marriage was contracted in or around 1999 after the Plaintiff had returned from US and that at the time he was leaving for the US, the relationship between the parties was one of concubinage and not marriage.

I believe what remained unclear from the evidence adduced at the trial and the pleadings was the date the marriage was dissolved between the parties and not when it was contracted. Plaintiff filed his action in this court on October 18, 2011. By that time, he indicated at paragraph 15 of his statement of claim that the marriage had been dissolved nine years back. Subtracting nine years from 2011 gives us 2002. This will mean the marriage contracted in 1999 lasted for only three (3) year. During the evidence however, the Plaintiff stated that the marriage was dissolved around 2004. He filed his witness statement in October 2015 and still stated that the marriage had been dissolved eleven years back. (See paragraph 25). At page 44 of the Proceedings, Plaintiff’s counsel suggested that the marriage was dissolved in 2006. She asked Defendant as follows:

‘QUESTION: I am putting it to you that the Plaintiff divorced you in year 2006?

ANSWER: I do not remember the year.”

Plaintiff, unlike the Defendant is more enlightened, educated and diligent (See page 9 of the proceedings), but it is surprising why a date for such a crucial occurrence in his life could escape him. If Plaintiff is somebody who is not keen in recording dates, then that might explain why he was not certain and consistent with the year he married the Defendant.

In the absence of specific agreement that the land and the building were purchased and developed in the Plaintiff’s name, the law still sides with the Defendant if the Plaintiff financed the project in the name of the Defendant or his daughter. Generally, where property is purchased in the name of another person, there is a resulting trust in favour of the one who paid the purchase price, unless it was a gift, a loan or an advancement. See Osmond v. Hughes [1967] GLR 405, C.A; In Re Sasu (Deceased); Sasu v. Twum [1976] 1 GLR 23 (3) and Dyer v. Dyer [1788]. The presumption of advancement applies to all cases in which the person providing the purchase money has an equitable obligation to support or make provision for the person to whom the property is conveyed. More often than not, this occurs as between a husband and wife, a father and child or a person to whom the purchaser stands in loco parentis. BJ da Rocha & CHK Lodoh at page 113 & 114 of their book, Ghana Land Law and Conveyancing (2^nd edn.), explains that where the property is purchased in the name of a wife, but the husband pays for the purchase price, there is a presumption of advancement. The land law experts referred to the English case of Thornley v. Thornley [1893] 2 Ch. 229 and noted that such a presumption is not destroyed by a subsequent dissolution of the marriage, such as in this case.

But a similar purchase by a wife in the name of the husband did not raise the presumption. See Oppong v. Oppong [1992] 1 GLR 83, C.A. and Reindorf alias Sacker v. Reindorf [1974] 2 GLR 38. The presumption was developed at a time when wives were considered as part of the properties of their husbands. It is important to point out here that the presumption of advancement applies when the parties are legitimately married and not in the case of a man and his paramour. See Ussher v. Darko [1977] 1 GLR 476 & Calvery v. Green [1984]). Whichever presumption we may apply; whether advancement or a resulting trust, the Plaintiff’s case is not made any better. If we give the Plaintiff the benefit of doubt that in 1994 when the land was bought, he was then married to the Defendant, the presumption of advancement may wreck his case.

On the other hand, if we venture to go the way of a resulting trust, the Plaintiff’s action will again fail for want of proof. In the case of In Re Koranteng (Dec’d); Addo v. Koranteng [2005-2006] SCGLR 1039, Date Bah JSC at page 1055 held: “Thus, for a resulting trust to be established, there has to be proof that the purchase money of the property was advanced by the beneficiary of the resulting trust.” It is my view that the Plaintiff could prove not that he paid for the plot to have implied a resulting trust and the resolution of the issues below would justify my point.

WHETHER OR NOT THE PLAINTIFF PAID FOR THE LAND?

It is the case of the plaintiff that he asked the Defendant to search for a plot of land for the purpose of buying it, which he subsequently sent money down to the plaintiff to purchase the land. The defendant denied the assertion. The burden of establishing the assertion fell on the Plaintiff. In Amalgamated Bank v. Fraga Oil & 5 Ors. [2012] 48 G.M.J. 149, C.A. @ 156, Duose J.A. decided: “Our law is based on the adversarial system in which he who alleges must prove what he alleges. This is reduced into legislative terms by section 11 (1) & (4) of the Evidence Act 175, NRCD 323. The duty or the burden on a proponent of an assertion in a trial are the following: Section 11 (1) for the purpose of this Decree, the burden of producing evidence means the obligation on a party to introduce sufficient evidence to avoid a ruling against him on the issue.’ Section 11 (4) of the same legislation also provide thus: ‘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.” See Ishack v. Praba (2007) 12 MLRG 172 at 181, CA.

I have carefully considered the Plaintiff’s evidence and I am unable to agree with him. His evidence lacked certainty. He could not tell how much the plot was purchased for, which is material in this case. All that the plaintiff could say about the purchase of the land was the vague statement at paragraphs 8 & 9 of his witness statement.

“8. I then called the Defendant to search for a plot of land for us to buy and build instead of renting a place. So I later sent the Defendant some money quite enough to acquire a piece of land, for the purchase of the land and also instructed her to use my name as the lessee which she agreed to.

9. The Defendant later called to inform me that she has bought a land at Community 13, Sakumono Estate near Jubail Hospital as shown on site plan No. TPD/T/321 covering 100” x 80” from Mr. S.K. Oppong of blessed memory, a resident of Dansoman Estate for a total amount of ¢3,000,000.00.”

One can easily deduce from the above statement of Plaintiff that he was unable to tell how much he sent to the Defendant. It also appears that the phrase ‘some money quite enough to acquire a piece of land’ was allegedly sent when Plaintiff did not know the price of the plot of land and before the Plaintiff went to buy it. If the Plaintiff wanted the Defendant to purchase the land for him, would he not have given her a Power of Attorney to sign on his behalf? How was the Plaintiff to sign the lease on his behalf, if Plaintiff was really serious?

Plaintiff claimed when Defendant sent the receipt of the land to him and saw that it was in the name of their daughter, he asked her to change it into his name. The said receipt bearing the payment of the plot issued by the vendor and which was in the name of their daughter, Perpetual Amissah, Plaintiff could not tender. I do not even know whether it is the lease titled ‘legal receipt’ that the plaintiff is referring to. Though the document was titled ‘Legal Receipt’, it looked more like an agreement, a lease or an indenture. It is not in Plaintiff’s name and I am unable to appreciate how it advances his case. What beats my imagination is that the Plaintiff came to Ghana in 1998; why could he not contact the vendor to effect the change? What steps did he take to have the document prepared in his name? Nothing!

In Emmanuel Osei Amoako v. Standford Edward Osei (substituted by Bridget Osei Lartey); Civil App. No. J4/3/2016, dated 1^st June 2016 (Unreported), the Supreme Court decided: “It is trite learning that a bare assertion by a party of his pleadings in the witness box without more is no proof. Proof in law has been authoritatively defined as the establishment of facts by proper legal means.” Appau JSC speaking for the apex court referred to the case of Majolagbe v Larbi & Anor [1959] GLR 190 at 192; which held: “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 or circumstances 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 …” See also Erasmus Marlai Commodore & Anor. v. Esmeralda Ayelekuntin-Nuamah [2016] 95 G.M.J. 196 @ 223, C.A, per Dordzie J.A.; Clipper Leasing Corporation v. Attorney General & Anor; Civil

Appeal No. J4/40/2015, dated 9^th March, 2016, SC (Unreported) and Danso-Dapaah v.

Falcon Crest Investment Ltd. & 4 Ors. [2015] 89 GMJ 148 @ 172, per Dzamefe JA.

Plaintiff claimed he met the vendor with the tenants of the house in the house of a neighbor by name, Mr. Joe Attafah. If it were true, he could have proved it by at least inviting the said Mr. Joe Attafah or any of the tenants to attest to it. It does not help the Plaintiff’s case to just make a bare allegation and leave it without proving it.

Further, Mr. S.K. Oppong was alive in 1998 when Plaintiff came to Ghana. In year 2000, the vendor wrote to Tema Development Corporation (T.D.C.) to effect the changes of ownership in the name of others including Perpetual Ama Amissah. Why would Mr. Oppong have gone ahead to maintain Perpetual Ama Amissah if the Plaintiff was found to be the purchaser? What prevented the Plaintiff from writing to TDC to register his protests?

PW1 also said under cross-examination that he is very close to the Plaintiff. If what the Plaintiff said that he asked the Defendant to change the name of the property into his name ‘without delay’; and she failed was true; why would he not have instructed his cousin, PW1 to contact the vendor or his personal representatives or even T.D.C. to effect the changes on his behalf? If it was in 1995 that he asked the Defendant to change the property into his name ‘without delay’ why did he have to wait over 16 years before taking steps to impugn her conduct? I find that the Plaintiff had no idea about the purchase of the plot, until he was informed by the Defendant.

I also take judicial notice of the fact that the Plaintiff did not even know the plot number at the time he filed his writ in 2011. He described it as an unnumbered house. Meanwhile, exhibit SKA ‘1’, which he tendered, being the lease document covering the land between Mr. S.K. Oppong and Perpetual Nana Ama Amissah executed in 1995 has the land well described as Plot No. 13/MKT/A/1, Community 13, Sakumono. Granted Plaintiff forgot the number, would it not have been appropriate for him to have amended the writ when he later found it? It pays to be diligent in filing pleadings or preparing one’s case when he comes to court because what is taken for granted can bounce back to embarrass the person. It is for that reason that I find the counsel of President Mugabe of Zimbabwe thought provoking when he said: “Treat every part of your towel nicely, because the part that wipes your ass today will wipe your face tomorrow.”

WHETHER OR NOT THE PLAINTIFF GAVE MONEY TO THE DEFENDANT TO BE USED TO DEVELOP THE BUILDING

In establishing this issue, the Plaintiff tendered some receipts in respect of the monies he sent to the Defendant. He also called his cousin, PW1 to tell the court that the Defendant personally used to tell him that Plaintiff had sent money for the construction of the building. Defendant denied that it was the plaintiff who sent her money to put up the building. She claimed that the Plaintiff took along the receipts to US without her consent when he came to Ghana. Plaintiff returned the receipts to her after she had questioned him. She posited that the Plaintiff made photocopies of the receipts before returning them to her. Plaintiff on his part indicated that it was the Defendant who forwarded the receipts to him in US.

I studied the receipts and realized that most of them were not legible. That might have arisen as a result of the photocopies he made, as the defendant alleged. Moreover, the few ones that could be deciphered are dated in 2007 and 2008. See for instance exhibits ‘B Series’.

It is clear from the evidence that the land had long been acquired and the house constructed when the plaintiff returned to Ghana in 1998. It could be inferred that the receipts issued in 2007 and 2008 tendered by plaintiff did not essentially relate to the subject matter. It is the law that exhibits tendered at trials must directly relate to the issue in contention. See the case of Mariam Obeng Mintah v. Francis Ampeyin [2016] 95 GMJ 1 @ 15, S.C., per Akamba JSC

The claim by PW1 that the defendant used to tell him that the plaintiff had sent money to her for the building could not be substantiated. The defendant even denied it. At best, it remains hearsay and does not fall within any of the exceptions to the hearsay rule. In Sagah Agbodzavu v. The Republic [2016] 96 GMJ 46 @ 70, the Court of Appeal, per Adjei J.A. held: “The general position of the law is that hearsay statement is inadmissible … ” See also International Rom Ltd. v. Vodafone Ltd. & Fidelity Bank Ltd. [2016] 93 G.M.J. 56, per Kusi-Appiah J.A. Although the defendant did not object to that piece of evidence, nothing stops the court from attacking little weight to them. See Juxon Smith v. KLM (2005-06) SC GLR 438 and Oppong v. Anarfi [2010-2012] 1 GLR 159, SC at holding 1.

I also find the Plaintiff’s story funny. If indeed the land was purchased in the name of their daughter and it was a mistake on Defendant’s part, why did he continue to send money for the construction when he was skeptical about the Defendant’s attitude? Why did he not request photographs of the project to be taken for him to know about its development? Could he not have spoken to the contractor of the building once, or at least, any of the artisans who worked on the project? If he could not call any of them at all as a witness in court, supposing they are all unavailable, would he not have known the name of at least one of them? As the Plaintiff claims he expended over $60,000 on the project and he completed it within one year, I infer that such a person would pay due attention to the project and consistently be in touch with the contractors and artisans to ensure that his hard earned money gets the best and qualitative delivery. Would he not have suggested the plan of the building he wanted to put up? Or he left the plaintiff to decide the plan? I am persuaded to judge the Plaintiff in the light of his own words at page 14 of the proceedings that he is a very meticulous person.

The plaintiff has nothing more to sustain his claim than the bare assertion that the land was purchased for him and the building constructed in his name. Defendant did not counterclaim, but the court does not equally find her claim of raising the monies for the land and building convincing. The salary she was receiving at the Ghana Publishing Corporation and all the entitlements she benefitted were found to be inadequate and incapable of putting up a building. I believe she personally was conscious of that fact, hence she found other supplementary sources and indicated that she used to send gowns and jewelries to Plaintiff in US to sell and her share of the proceeds were the money transfers made by the Plaintiff. Her receipts tendered too appeared self-serving and she did not actually explain what they were meant for. Some of the receipts tendered were in connection with the purchases of a Deep Freezer, five sets of Russian pots, Frying Pans etc. How relevant are these items to the construction of the building? When quizzed under cross-examination by counsel for the Plaintiff, she undoubtedly was found wanting and appeared jittery like a drowning person anxious of clinging to anything she could find on sight. She was under pressure to explain that the said receipts related to the wares she was selling, including ice water. These were vital facts bordering on how she raised the money to develop the building and ought to have pleaded or led evidence on them, but were not. Such assertions only introduced in a case during cross-examination does not per se constitute proof. Pwamang JSC in Mrs. Vivian Aku-Brown Danquah v. Samuel Lanquaye Odartey, Civil App. No. J4/4/2016 dated 29^th June, 2016, S.C. (Unreported) held: “… it must be pointed out that suggestions put to a witness by counsel in cross examination which are denied by the witness do not constitute evidence of proof of the matters suggested by the cross examiner.” These are material facts which I believe she would have pleaded if they were so. Defendant denied that she went for the refund of the money from Best Way Travel and Tours. There is nothing to show that an authority note was given to her to be able to collect the money.

I find both parties evidences quite incredible and romancing. In circumstances like that, it is the Plaintiff who is at a disadvantaged. In Abakama Efiana Family v. Mbabibo Effiana Family (1959) GLR 362 @ 364, it was decided thus: "If the whole evidence in a case is conflicting and somewhat confused and there is little to choose between rival traditional stories, the plaintiff fails in the decree he seeks and judgment must be entered for the defendant." See Duagborv. Akyea Djamson (1984-86) 1 GLR 697 @ 709.

Having found that the Plaintiff could not satisfactorily prove that he was the one who provided the funds for the purpose of constructing the building, I am tempted to believe that the land was acquired and developed by the Defendant herself. I form the opinion that the land in issue and the building thereon was the Defendant’s own initiative, but she played a smart one on the Plaintiff by redirecting the monies remitted her by the Plaintiff into the acquisition of the plot and the development of the building without informing the Plaintiff. I find the evidence by PW1 that the Defendant harbored some fears that her husband would takeaway the property from her if he returns to Ghana very useful in coming to my conclusion. Michael Jordan once said about money transfers in marriage: “There is a way of transferring funds that is even faster than electronic banking. It is called marriage.” The absence of full disclosure on the part of the Defendant does not however make the Plaintiff the owner of the property when he did not instruct the Defendant to use the moneys he sent to build the house. Sad though it may be for the Plaintiff, but as the Bulgarian Film Director and author, Angel Wagenstein once said: “The fruit of empty hopes is more bitter than the saddest truth.”

WHETHER OR NOT THE RECEIPTS ON THE LAND WERE FRAUDULENTLY SIGNED BY THE DEFENDANT?

Plaintiff finds the lease executed and signed in the name of Perpetual Ama Amissah who was four years old fraudulent. Defendant explained that she being illiterate, she thought she could sign on her behalf. Plaintiff in her pleadings describes that as forgery. I do not think it is forgery as such. Right from day one, the Defendant purchased the land in the name of her daughter. It is evident from the entire evidence that she signed for her daughter out of ignorance. She received no legal advice before signing. If we were to consider the case of the Plaintiff that he asked the Defendant to purchase the land in his name when he had not given any Power of Attorney to Defendant was due to ignorance, then the Defendant should not be equally blamed for her acting in ignorance. Perhaps, if the document was in the name of the Plaintiff and Defendant tampered with it, the allegation of forgery would have become tenable. Counsel for the Defendant did not get it wrong when she submitted in her written address that where a crime such as forgery is alleged in a civil case, it has to be proved beyond reasonable doubt. The Court of Appeal expressing itself through Torkonoo J.A. in Janet Tagoe v. Alfred Nii Tetteh [2016] 98 G.M.J. 125 @ 147-148 held: ‘It is trite learning that with allegations of forgery and fraud, the burden of proof required is proof beyond reasonable doubt, even when the allegation is made in a civil matter …” See Fenuku v. John Teye [2001-2002] SCGLR 985 and John Tagoe v. Accra Brewery Ltd. [2016] 93 G.M.J. 103, per Benin JSC.

Similarly, fraud, whenever it is alleged, must be clearly pleaded and proved and the standard is also one of a proof beyond reasonable doubt. Pwamang JSC in John Kwadwo Bobie v. 21^st Century Construction & Ors; Civil Appeal No. J4/5/2014, dated 9^th March, 2016, SC (Unreported) at p. 10-11 put it thus: “The well known rule of evidence is that when fraud is alleged, even in civil proceedings, it must be proved beyond reasonable doubt s. 13 (1) of the Evidence Act, 1975 (NRCD 323). The position of the law is that for a judgment or an order to be impeached on grounds of fraud, it must be shown that the alleged fraud related to the central issue for determination before the court and it was the main ground for the judgment. Put in another way, the party impugning a judgment on ground of fraud must first prove the alleged fraud and further demonstrate that if the fraud is taken out, the judgment cannot stand.” See International Bible Students Association v. Divine Healers Church [2012] 42 G.M.J. 1 @ 16, C.A., per Mariama Owusu J.A. and Djaba & 2 Others v. Aggudey & 2 Others [2015] 84 G.M.J. 185 197, CA, per Acquaye JA. I must admit that I find the forgery or fraud not having been proven beyond reasonable doubt and so I proceed to dismiss the complaint of fraud and forgery.

WHETHER THE PLAINTIFF IS ENTITLED TO THE RELIEFS HE IS SEEKING FROM THE COURT?

From the evidence, I keep asking myself whether it was worthwhile for the Plaintiff to commence this action at all, especially when it was a matter involving married couples. Sometimes, not everything or argument made in the closet are meant for public consumption. In the course of writing this judgment, my attention was drawn to a statement recently made by a Nigerian Minister for Education as follows: “Sex education may be a good idea in all schools, but the students MUST NOT be given home work.” I will at this stage deal with the various reliefs Plaintiff is seeking.

a. A Declaration of title of the unnumbered house, 1^st on the Ontario Lane adjacent to the Ontario Guest House and close to the Jubail Specialist Hospital, Sakumono Estate Tema.

The Plaintiff has been unable to prove that he owns the property in dispute. It is easier filing a writ, but the big challenge is usually the proof. A Yiddish Proverb says: “Life is a big headache on a noisy street.”

b. An Order against the Defendant to account for rents collected from the property since.

Once the plaintiff has been held not to be the owner of the building, he cannot call on the Defendant to account for rents or any benefit the latter may have derived from the property.

c. An Order for interim injunction restraining the Defendant from renewing the rent or in the alternative an Order for the rents to be paid into Court pending the determination of the suit.

Interim injunction is usually granted during the pendency of a case. Once judgment is delivered, it does not come in at all. If the Plaintiff had made a good case for the declaration of title, the appropriate injunction he could have obtained would be perpetual injunction.

d. Recovery of Possession.

Just like the injunction, Plaintiff could have recovered possession if he had succeeded in his declaratory relief for title or if he had proved long undisturbed possession or trespass.

e. Cost.

Cost follows the suit. Though it was the Plaintiff who sought for it and he has lost, the Defendant should rather be deserving of cost. But looking at the fact that the parties were once married and also the fact that they have an issue between them, I will exercise my discretion not to award any cost in this case. Consequently, the claim of the Plaintif