DORIS AFRIYIE BONSU vs. KWAKU PRA AND OTHER [2014]DLHC8479

Date	2014-10-14
Suit No.	SUIT NO. CI/151/07
Citation No.	[2014]DLHC8479

HIS LORDSHIP JUSTICE JACOB B. BOON

NANA ADWOA KOOMSON FOR THE PLAINTIFFS

OSEI KOFI FOR THE DEFENDANTS

[2014]DLHC8479
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													<main id="main" class="content" style="min-height: 60rem" >DORIS AFRIYIE
BONSU<o:p></o:p>vs.<o:p></o:p>KWAKU PRA AND OTHER<o:p></o:p>[HIGH COURT, KUMASI]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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SUIT
NO. CI/151/07&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;DATE: 14TH OCTOBER, 2014<o:p></o:p>

</div>COUNSEL:<o:p></o:p>NANA
ADWOA KOOMSON FOR THE PLAINTIFFS<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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OSEI
KOFI FOR THE DEFENDANTS <o:p></o:p>

</div>CORAM:<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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HIS LORDSHIP JUSTICE JACOB B. BOON<o:p></o:p>

</div>The plaintiff herein is the former wife of the co-defendant. On 22nd
February, 2007, she issued a writ from the Registry of this court claiming
against the defendant, one Kwaku Prah, alias W’agya Prah (a) an order of
accounts to be taken between her and the defendant, (b) damages for trespass
and, (c) an order of injunction to restrain the defendant from interfering with
her ownership of a house built on Plot No. 4A Block 6, Nwomase New Site near
Kumasi. In her supporting statement of claim, the plaintiff claimed ownership
of the said property described as a dwelling house. According to her pleadings,
she is ordinarily resident in Italy but on a visit to Ghana, she realized the
defendant, who is a neighbour, had taken over the property, letting rooms to
tenants and pocketing the rents without her knowledge and consent. She averred that
she confronted the defendant who said he is a caretaker of the property on
behalf of the co-defendant that is plaintiff’s former husband. Later, on 12th
May, 2010, the court granted an application filed by the co-defendant, joining him
to the action as the other defendant asserted he is merely a caretaker of the
disputed premises on behalf of plaintiff’s former husband.<o:p></o:p><o:p>&nbsp;</o:p>Upon joining the suit, the co-defendnat averred in a statement of
defence that he owns the property, having solely acquired it without any
contribution from the plaintiff. According to his assertion, he gave money to
the plaintiff to purchase the land for the building and all the relevant
documents covering the property were prepared in his name. It is also his case
that in his capacity as owner of the property, he let out rooms in it to
tenants, and left it in the care of the defendant in his absence from Ghana. He
therefore counterclaimed for declaration of title to, and recovery of
possession, damages for trespass and an order of perpetual injunction to
restrain the plaintiff, her agents, servants and any person claiming title
through her from interfering with his possession of the disputed property.<o:p></o:p><o:p>&nbsp;</o:p>In answer to the counterclaim, the plaintiff asserted that the house was
put up as a joint property in the course of their marriage, she and
co-defendant having made financial contributions towards its acquisition, the construction
of which she claimed was entrusted to her mother and co-defendant’s uncle, one
Wofa Kwabia. In effect the case of the plaintiff is that the house was acquired
through the subsistence of their marriage through their joint efforts and that
explains why its construction was entrusted to a relative from each side,
plaintiff represented by her mother who later became her lawful attorney at the
hearing of the suit, and co-defendant by her uncle already referred to. To
further emphasize the joint ownership of the property, plaintiff asserted that
on completion of the house, her twin sister called Mrs. Dorothy Odei lived in
the house with her permission until she was compelled to vacate it after
emissaries of co-defendant issued death threats on her.<o:p></o:p><o:p>&nbsp;</o:p>From the pleadings therefore, a core issue that emerges is whether or
not the plaintiff and co-defendant jointly acquired the property; and whether
or not plaintiff is entitled to her relief for an order of accounts in respect
of rent accruing from the property.<o:p></o:p><o:p>&nbsp;</o:p>The plaintiff and co-defendant have filed a claim and counterclaim
respectively. The law applicable in such a situation is that each side must
lead credible evidence to prove their respective claims, and the defendant will
not win the case merely because the plaintiff’s case has failed. The same
standard of proof that will be used to measure the case of the plaintiff will
be applied to the defendant as if he is a plaintiff: see Jass Co Ltd &amp;
Another v Appau &amp; Another (2009) SCGLR 265; Ayeh &amp; Akapko v Ayaa
Iddrisu (2010) SCGLR 891.<o:p></o:p><o:p>&nbsp;</o:p>In their written addresses, both lawyers for the plaintiff and the
defendants cited the case of Mensah v Mensah (2012) SCGLR 391 which held that
the 1992 Constitution of Ghana has espoused the principle of having equal
access to property jointly acquired during marriage and such property should be
equitably distributed upon divorce. Relying on the princi</main>