DARKO VRS ASARE (BR/DR/DC/A4/11/2022) [2024] GHADC 234 (18 July 2024)

IN THE DISTRICT COURT, DROBO - BONO REGION IN THE MATTER OF AN APPLICATION FOR DISSOLUTION OF MARRIAGE BY: SUIT NO. BR/DR/DC/A4/11/2022

REBECCA ADOBEA DARKO PETITIONER OF H/NO. H15, KRUPIASE. DROBO

VRS

ASARE ADANE ISAAC RESPONDENT H/NO. H15, KRUPIASE, DROBO

JUDGMENT DELIVERED BY H/W LINDA E. NYAHE ESQ. (MAGISTRATE) DATED: 18/07/2024 0 IN THE DISTRICT COURT HELD AT DROBO ON THURSDAY, THE 18TH DAY OF JULY, 2024. BEFORE HER WORSHIP LINDA E. NYAHE (ESQ) (MAGISTRATE) SUIT NO. BR/DR/DC/A4/11/2022 IN THE MATTER OF AN APPLICATION FOR DISSOLUTION OF MARRIAGE BY:

REBECCA ADOBEA DARKO PETITIONER OF H/NO. H15, KRUPIASE. DROBO

VRS

ASARE ADANE ISAAC RESPONDENT H/NO. H15, KRUPIASE, DROBO ======================================================== PARTIES- PRESENT GLYNN NANA AGYEI FOR JOSEPH ADDAE AKWABOAH ESQ. FOR PETITIONER

PRESENT

JUDGMENT The parties who are both Ghanaians got married customarily in April, 2005 and later converted their marriage into Ordinance marriage on the 5th day of June, 2005 at the church of Pentecost, Krupiase Assembly, Drobo. The Petitioner is a trader and resides at Drobo whereas the Respondent is a teacher at Faaman but also lives at Drobo. 1 There are five (5) issues of the marriage namely; Afram Asare Kumesh aged 15 years, Ampem Darko Asare-13 years, Asare Tabiri Ransford aged10 years, Joycelyn Kuruwaa Asare aged 8 years and Addo Asare Nhyiraba aged 5 years. Petitioner filed for dissolution of the marriage celebrated between her and the Respondent on grounds that the marriage has broken down beyond reconciliation. The Petitioner’s reasons for the divorce are that the Respondent’s behavior is so unreasonable that the she can no longer be expected to live with him. Instances of his unreasonable behavior are that, during the pendency of the marriage, the Respondent abandoned the financial obligations of taking care of the home solely on Petitioner. Petitioner stated that throughout the marriage, she was the bread winner of the home because she used her money to take care of the home and the children without the support of the Respondent. Petitioner averred that there were instances where she was cash-strapped and will ask Respondent for money but he will deliberately refuse to

give the money even though he had it. Petitioner averred that for the past 2 to 3 years the Respondent has stopped performing his duties as a responsible father to the children in the sense that he does not pay their school fees, buy books or give them money for food. Petitioner stated that the Respondent disrespects her and insults her even in public. That Respondent equally abuses and hurls insults at Petitioner’s mother in public. Further, the Petitioner averred the Respondent is unfaithful and not trustworthy and therefore she cannot marry the Respondent. That at a point in time, she caught the Respondent and another woman in bed in their matrimonial home at Suma Ahenkro which resulted in a fight between her and that other woman. She continued that on numerous occasions she (Petitioner) confronted the Respondent of his amorous associations with other women but Respondent could not give any tangible reasons for his actions. That Respondent’s behavior including his adulterous behavior is unreasonable and that it has caused her untold anxiety, stress as well as psychological and emotional trauma as a result, she finds it intolerable to live with the Respondent as a husband. 2 Petitioner contended that when they got married, she had already put up her first house which was almost at completion and that the only thing Petitioner gave money to the Respondent to do was to build a

fence wall, two bedrooms within the fence wall, and also roof the main house. Petitioner further averred that during the marriage, they acquired the following properties; four (4) bedrooms, hall, toilet and bath, self-contain house situated on the Petitioner’s mother’s plot. Petitioner added that during the marriage the Respondent personally bought a Nissan Primera with Registration No. AS 8373-15 for himself and due to that she (Petitioner) also bought Toyota Highlander vehicle (unregistered) for herself. Per a petition filed on 16/08/2021, Petitioner claimed against the Respondent as follows? a. An order for the dissolution of the marriage between the parties. b. Custody of the children to the Petitioner whiles Respondent be granted with reasonable Access. c. An order for the Respondent to maintain the five (5) children, pay their school fees and medical bills. d. A declaration that the house constructed by the Petitioner before getting married to the Respondent remains the Petitioner’s personal property. e. An order that the four (4) bedrooms, hall, toilet and bath Self-contained house situated at Suma-Ahenkro. Respondent’s hometown be settled onto the Respondent and his children. f. An order that the three (3) bedrooms, Hall and two (2) storerooms constructed on the Petitioner’s mother’s plot at Drobo be settled on the Petitioner and her children. g. An order granting a

Toyota Highlander Vehicle (unregistered) bought by the Petitioner to her, whiles the Respondent also takes the Nissan Primera with registration No: AS 8373-15 bought by him. h. Any further order or orders the Honourable Court deems fit. 3 The Respondent on the other hand denied the averments of the Petitioner and filed an Answer and Cross-Petition. The Respondent averred that at the time they got married, the Petitioner had only constructed the said house to the footing level and same had been abandoned for some time. That prior to their marriage the Petitioner was a hawker. After they got married, they set up joint businesses and the proceeds from the businesses were used to complete the said house. The Respondent averred that the roofing, plastering, fittings, tiling and fencing were all done from the profit realized from their joint businesses and he (Respondent) supervised the construction work. Respondent stated that sometime in the year 2005 he met a businessman called Big Joe who expressed his desire to rent out his shop at Drobo. It is Respondent’s case that he expressed interest and later they rented the shop at five Hundred and fifty Ghana Cedis (GHC550.00). That having acquired the shop the said Big Joe supplied goods to the tune of GHC10,000.00 on credit to be paid on weekly installments. Respondent averred that whiles operating the aforesaid shop they were able to

open other shops namely; a. Two electronic shops at Drobo Main Station b. One electronic shop at Drobo near Medcourt Pharmacy c. One Electronic shop at Sefwi Eleokrom, Western Region d. One footwear wholesale shop at Drobo main station all under the name and style Megyefo Tease enterprise. Further, Respondent stated that in the course of operating the aforementioned shops he also introduced susu business under the name and style Megyefo Tease enterprise and monies realized from the susu business were used to support their joint businesses. That he (Respondent) entrusted the management of the shops to Petitioner and joins Petitioner after he closes from school. 4 Respondent contended that during the subsistence of their marriage, they jointly acquired the following properties from the proceeds realized from their shops which Petitioner deliberately refused to state in the instant petition and they are; A. Uncompleted storey building at Bakoniaba, Sunyani B. Uncompleted house behind Tyco City Hotel Sunyani (which house is in dispute) C. A plot of land situate between Drobo and Kofiko Nkwanta Respondent stated that all the documents covering the properties supra are in possession of the Petitioner. Further, when they started construction of the storey building at Bakoniaba the Petitioner requested that they use the name of Petitioner’s child born outside of their marriage on the

document covering the property. When he (Respondent) refused then the attitude of the Petitioner towards him changed. That Petitioner insults him at the least provocation hence leading to the instant action. The Respondent in turn said it was the Petitioner who doesn’t respect him. Respondent denied that the house situate at Drobo is on the Petitioner’s mother’s plot. Concerning the Toyota Highlander and Nissan Primera, the Respondent maintained that they acquired both vehicles during the subsistence of the marriage and that both vehicles were purchased from the proceeds of their joint businesses. Respondent admitted that attempts by pastors and family elders to resolve their differences have proven futile since the Petitioner will not co-operate. The Respondent asserted that he is entitled to equal share of the properties acquired during the pendency of the marriage. The Respondent cross-petitioned as follows; I. That the ordinance marriage celebrated between the Petitioner and the Respondent in the year 2005 be dissolved. II. A declaration by the Honourable Court that the Respondent is entitled to half share of all the properties acquired during the subsistence of their marriage. 5 III. Custody of the children be granted to the Respondent for the Petitioner to have reasonable access to them.

LEGAL ISSUES From the evidence, the issues identified by the Court for determination are as follows; a. Whether or not the marriage between the parties has broken down beyond reconciliation b. Whether or not the property allegedly acquired by the Petitioner before getting married to Respondent remains the Petitioner’s personal property c. Whether or not the parties acquired the properties in dispute jointly namely; self- contained house situate at Drobo, self-contained house situate at Suma Ahenkro, uncompleted storey building situate at Bakoniaba, uncompleted building behind Tyco City Hotel, a plot of land situate in between Drobo and Kofiko Nkwanta, Toyota Highlander (unregistered) and Nissan Primera with registration No: AS 8373-15 d. Whether or not the Respondent has neglected to maintain the five (5) children of the marriage and ought to be made to maintain them. e. Whether or not custody of the children be granted to the Petitioner or the Respondent i.e which of the parties is better suited to have custody of the children? f. Whether or not Petitioner is entitled to her claims. g. Whether or not the Respondent is entitled to his cross-petition? 6

BURDEN OF PROOF This being a civil suit, sections 11(1) & (4), and 12 of the Evidence Act 1975 (N.R.C.D 323) has well settled the evidential and the persuasive burden that the law casts on parties in a civil matter. The standard of proof required of a party who makes assertions which are denied, is one on a balance of probabilities. This therefore requires a party making assertions to adduce such evidence in proof of the assertions, such that the court is convinced, that the existence of the facts he asserts are more probable than their non-existence. Sections 11(1) & (4) of the Evidence Act, 1975 (N.R.C.D 323) provides that: Section 11—Burden of Producing Evidence Defined. (1) For the purposes of this Decree, the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling against him on the issue. (4) 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. Section 12 of the Evidence Act, 1975 (N.R.C.D 323) provides that: Proof by a preponderance of probabilities 12(1) except as otherwise provided by law, the burden of persuasion requires proof by a preponderance of probabilities. (2) “Preponderance of probabilities” means that degree of certainty

of belief in the mind of the tribunal of facts or the court by which it is convinced that the existence of a fact is more probable than its non-existence”. In explaining the principles relating to the duty to produce evidence, S.A Brobbey JSC. states at page 31 of his book Essentials of the Ghana Law of Evidence thus; 7 “This literally means the proof lies upon him who affirms, not on him who denies, since by the nature of things, he who denies a fact cannot produce proof. Where Plaintiff makes a positive assertion at the start of the trial, he bears the legal burden. At the same time, he bears the evidential burden to adduce evidence at the start of the trial.” In the case of Majolagbe V Larbi and Others [1959] GLR 190 at page 192 per Ollennu J. (as he then was) stated as follows: “Proof in law is the establishment of facts by proper legal means. 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, circumstances, and its averment is denied, he does not prove it by merely going into the witness box and repeating the averment on oath, or having it repeated on oath by its 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.” As expounded above, generally, the Plaintiff bears the burden

to prove her claims before the Court. It is trite learning that whenever the Defendant also files a counter- claim, then the same standard or burden of proof would be used in evaluating and assessing the case of the Defendant just as was used to evaluate and assess the case of the Plaintiff in respect of his counter-claim. It is worth noting that Petitioner was represented by counsel but Respondent was not. Counsel for Petitioner filed written address on 05-07-2024 for and on behalf of the Petitioner which has duly been considered.

EVALUATION OF EVIDENCE AND LEGAL ANALYSIS At the trial, Petitioner testified by herself and did not call any witness. She relied on her witness statement filed on 12-10-23 which was by large a repetition of the averments contained in the Petition which has elaborately been captured at the beginning of this judgement. 8 The Respondent failed to file witness statement although he was given several opportunities and told of the legal implications since he was unrepresented. He told the Court that he would not contest the matter. However, in the course of the trial, he participated in the cross-examination of the Petitioner. Essentially, Respondent had no evidence before the Court but only his defence. That notwithstanding, the Petitioner still bore the burden to prove her claims she sought from the Court. I now turn to resolve the issues raised above in no particular order. Whether or not the marriage has broken down beyond reconciliation. Section 1 of the Matrimonial Causes Act, 1971 (Act 367) states that: “the sole ground for granting a petition for divorce shall be that the marriage has broken down beyond reconciliation. Section 2 of the Matrimonial Causes Act, 1971 (Act 367) outlines the grounds to be satisfied in order for this Court to be persuaded that a marriage has indeed broken down beyond reconciliation: ;2. Proof of breakdown of marriage (1). For the purpose of showing

that the marriage has broken down beyond reconciliation the petitioner shall satisfy the Court of one or more of the following facts: (a). That the respondent has committed adultery and that by reason of the adultery the petitioner finds it intolerable to live with the respondent; (b). That the respondent has behaved in a way that the petitioner cannot reasonably be expected to live with the respondent; (c). That the respondent has deserted the petitioner for a continuous period of at least two years immediately preceding the presentation of the petition; (d). That the parties to the marriage have not lived as husband and wife for a continuous period of at least two years immediately preceding the presentation of the petition and the 9 respondent consents to the grant of a decree of divorce, provided that the consent shall not be unreasonably withheld, and where the Court is satisfied that it has been so withheld, the Court may grant a petition for divorce under this paragraph despite the refusal; (e). That the parties to the marriage have not lived as husband and wife for a continuous period of at least five years immediately preceding the presentation of the petition; or (f). That the parties to the marriage have, after diligent effort, been unable to reconcile their differences The parties got married under the ordinance on 5th June, 2005 at the Church of Pentecost, Drobo.

Petitioner attached a copy of the Marriage Certificate and same was tendered and admitted into evidence and marked Exhibit A. Both parties are praying for dissolution of the marriage celebrated between them. The Petitioner’s grounds for divorce are unreasonable behavior and adultery. It became incumbent on her to establish same. Since the Respondent also cross-petitioned for a dissolution of the marriage he likewise bore the burden to satisfy the Court that the Petitioner has also acted unreasonably towards him. What constitutes adultery has been stated in section 43 of the Matrimonial Causes Act, 1971 (Act 367) as the “voluntary sexual intercourse of a married person with one of the opposite sex other than his or her spouse”. Generally, a party who averred adultery against another is required to prove the averments. Unreasonable behavior is also one of the grounds both parties cited as a ground for dissolution of the marriage. The conducts complained of must be severe and higher than the ordinary wear and tear of marriage. SEE the case of Knusdsen v Knudsen [1976] 1GLR 204-216. During the trial, the Respondent failed to cross-examine the Petitioner on her allegations of adultery and unreasonable behaviour levelled against him (Respondent). 10 It is trite that, where evidence led by a party is not challenged by his opponent or the opponent failed to tender any evidence to the

contrary, the facts deposed to in the evidence are deemed to have been admitted by the opponent and must be accepted by the trial Court. On the part of the Respondent, he failed to establish that the Petitioner acted unreasonably towards him as he hadn’t presented any evidence to the Court prove his claims. Further, there have been tacit admissions by both parties that, there have been several attempts at reconciliation by families and religious leaders of the parties but same failed, which failure has led to the parties living separately for a while. The Court is also aware that parties attempted severally to reconcile their differences when the matter was before it through the assistance of an intervener but it was not successful. On that basis, I hold the view that the parties have satisfied the Court in respect of the first issue. I therefore find on the totality of the evidence that differences exist in the parties’ marriage and after diligent efforts they have been unable to settle. I conclude that the marriage celebrated between the parties has broken down beyond reconciliation. Accordingly, I decree the marriage celebrated between the parties under Part Three of the Marriages Act on 5th June, 2005 at the church of Pentecost, Krupiase- Drobo with certificate number 03/2005 per license number SJ1/BA/DC/M/225, dissolved. The said marriage certificate of which a copy was

attached as Exhibit A is hereby cancelled. I now turn to the next issue of property settlement. Thus, whether or not the parties acquired the properties in dispute jointly? It is pertinent to state that Article 22(3) of the 1991 constitution of Ghana provides as follows; (3) With a view to achieving the full realization of the rights referred to in 11 clause (2) of this article - (a) spouses shall have equal access to property jointly acquired during marriage; (b) assets which are jointly acquired during marriage shall be distributed equitably between the spouses upon dissolution of the marriage. A number of cases have been decided based on the constitutional provision supra. The decided cases have also thrown more light on the above provision. In the case of Ernestina Boateng V. Phylis Serwah Boampong Nyamekye and Mark Adu Mark Adu Prempeh Jnr 2021 [2021] DLSC 10165 at page 7 the Court held as follows; “…any property that is acquired during the subsistence of a marriage, be it customary or under the English or Mohammedan Ordinance is presumed to have been jointly acquired by the couple and upon divorce should be shared between them on the equality is equity principle. This presumption of joint acquisition is however, rebuttable upon evidence to the contrary…” In the case of Peter Adjei V. Margaret Adjei [2021] DLSC 10158 at page 12 per Apau JSC; “Article 22 (2) (b) of the

Constitution 1992 is the provision that governs cases on property distribution on divorce and does not say “assets which are acquired during a marriage shall be distributed equitably between the spouses upon dissolution of the marriage”. It is explicit in referring to properties JOINTLY acquired so the impression should never be created that it is the 1992 constitution that says that property acquired during a marriage is joint property, if the framers of the constitution had wanted to cover all property acquired in the course of the marriage, they would have said so expressly. It is a judicially created presumption and as such it is a rule of evidence only and does not confer substantive judge sought to imply. Being an evidential presumption, it is rebuttable by the spouse whose ostensible property is in question or any person challenging the presumption by adducing evidence to prove that the other spouse contributed nothing in the acquisition of the property.” 12 This means that married couples can still acquire properties in their personal capacities during the pendency of the marriage provided they can prove that the property was not intended to be owned jointly. SEE ALSO; Mensah V. Mensah [2012] 1 SCGLR 391 Fyn vrs Fyn &Osei [2013-2014] 1 SCGLR 727 1. Self -contained houses at Drobo and Suma Ahenkro In respect of the self-contained house built at Drobo and also a

self-contained house built at Suma Ahenkro, Petitioner testified that they jointly acquired both properties during the pendency of the marriage and that the house built on her mother’s land at Drobo be settled on her whiles the house built at Suma Ahenkro be settled on the Respondent. The Respondent did not dispute that the said properties are jointly acquired except that he denied the said property was built on Petitioner’s mother’s land. On the evidence, there is no proof that the property was built on Petitioner’s mother’s land as Petitioner alleges. There being no controversy about the properties being jointly owned, I hold that the two properties thus self-contained houses situate at Drobo and Suma Ahenkro respectively are jointly owned. The self-contained house situate at Drobo is settled on Petitioner whiles the self -contained house at Suma Ahenkro is settled on Respondent as Petitioner has prayed for which Respondent does not challenge.

2. Property at Bakoniaba & plot of land between Drobo and Kofiko Nkwanta The Respondent contended that the property at Bakoniaba is the joint property of the parties but the Petitioner failed to include it in her reliefs and therefore cross-petitioned for a share. The Petitioner denied same and testified that it is for his son born outside of their marriage to another man and that his son had earlier sent money for the property to be purchased for him. The Petitioner attached a deed of transfer executed between 13 one Ferka Mensah (Transferor) and Felix Agyemang Yeboah (Transferee) and same tendered into evidence and marked Exhibit C. Since, it is the Respondent who is alleging that the property in issue is a matrimonial property the burden was on him to prove same but he failed to live up to the task. It is a settled principle of law that documentary evidence should prevail over oral evidence, especially if the document is proved to be authentic. The authenticity of Exhibit C was never challenged. SEE Fosua & Adu Poku V. Adu Poku Mensah [2009] SCGLR 310. I therefore find that the property at Bakoniaba is not a matrimonial property rather the personal property of Petitioner’s son. The Respondent also stated in his Answer, that they (parties) jointly acquired a plot of land between Drobo and Kofiko Nkwanta hence cross-petitioned for a fair share. This claim was denied by the Petitioner. Unfortunately, the same infirmity (lack of evidence) as seen with Respondent’s case to prove that the parties jointly acquired a plot of land between Drobo and Kofiko Nkwanta during the pendency of the marriage inflicted this issue at hand as well. There is no proof that any such property even exists. In effect, Respondent’s claim for a share of these properties fails.

3. Toyota Highlander (unregistered) and Nissan Primera with registration No: AS 8373-15 Whereas the Respondent is claiming that both vehicles were acquired from the proceeds from their jointly acquired businesses the Petitioner denied and said she bought the Toyota Highlander for herself and by herself. Likewise, the Respondent also bought the Nissan car for himself and by himself. The uncontroverted evidence on record is that the two cars in dispute thus; Toyota Highlander vehicle (unregistered) and Nissan Primera were acquired during the marriage which makes it presumably joint properties. The burden was on Petitioner to rebut same however she could not adduce 14 any evidence to substantiate her claim Accordingly, I hold that the two vehicles are jointly owned. I settle the Toyota Highlander on the Petitioner herein due to the fact that the five (5) children are in her custody and she will need the bigger car that can accommodate and convey the entire family around. I settle the Nissan Primera on the Respondent.

4. Uncompleted house behind Tyco City Hotel in Sunyani. The Respondent prayed for a fair share of an uncompleted building behind Tyco City in Sunyani which the Petitioner failed to disclose in her Petition as property that was jointly acquired. At the trial, this claim did not give rise to any controversy. The following ensued during the cross-examination of Petitioner by Respondent regarding the Uncompleted house behind Tyco City Hotel in Sunyani. Q. I am putting it to you that the land at Tyco City was developed by both of us during the pendency of the marriage? A. Yes On the face of this admission, I hold that the Uncompleted house behind Tyco City Hotel Sunyani is the joint property of the parties and per the equality is equity principle, the parties shall have equal share in same.

5. House acquired by Petitioner before marriage. Petitioner testified that she was engaged in business before she got married to the Defendant. That she used the proceeds from the business to build the house in dispute which was almost at completion. Petitioner attached a passbook between the years 2000-2003 which showed various inflows of money at the time and same was tendered into evidence and marked Exhibit B series. Petitioner added that she gave money to Respondent to supervise the construction of a fence wall and two bedrooms within the fence wall as well as roofing of the main house. In his defense, Respondent averred that 15 the house was not at the level Petitioner put it and that it was at footing level when he met the Petitioner. Now, it is not in contention that the property had been acquired and developed to an extent prior to the marriage. Clearly, the presumption of the property being joint will not hold here since there was no intention at the time of its acquisition to own it jointly with the Respondent. There is no doubt Respondent supervised the construction. In my humble view, if for nothing at all Respondent will only be entitled to an equitable remuneration of his time used in supervising the rest of the construction. Moreover, Respondent could not prove to the contrary that he contributed financially to the house for him to have interest in it. To this

end, I hold the view that the Respondent has no interest in the house and it remains the personal property of the Petitioner. Whether or not custody of the children be granted to the Petitioner or the Respondent i.e. which of the parties is better suited to have custody of the children. Section 2 of the Children’s Act, 1998 (Act 560) provides that: Welfare Principle (1) The best interest of the child shall be paramount in a matter concerning a child. (2) The best interest of the child shall be the primary consideration by any court, person, institution or other body in any matter concerned with a child. None of the parties advanced any reasons they sought custody of the children although both parties claim custody. In the case of Braun V Mallet [1975] 1 GLR 81 the court per Azu-Crabbe CJ. In holding 2 stated that: “in questions of custody it was well established that the welfare and happiness of the infant was the paramount consideration. In considering matters affecting the welfare of the infant, the court must look at the facts from every angle and give due weight to every relevant material.” 16 In addition to these considerations, Section 45(2) (a) (c) (d) (e) of the Children’s Act, 1998 (Act 560) requires the court to consider among others; the age of the child, that it is desirable to keep siblings together, the need for continuity of care and control of the child. Also,

importantly the views of the child if the views have been independently given. Both parties are claiming full custody of the five (5) issues in the marriage; thus; Afram Asare Kumesh aged 15 years, Ampem Darko Asare-13 years, Asare Tabiri Ransford 10 years, Joycelyn Kuruwaa Asare 8 years and Addo Asare Nhyiraba aged 5 years. The children under consideration are all enrolled in school and currently in the care of their mother whom they have remained with since the parties started living separately when their marital issues started. The familiar environment of the children is the matrimonial home where they have lived with the parties and continue to stay. This convinces the court that the children will be in a better sheltered environment and doesn’t have to worry about where the Respondent is going to accommodate them should it decide otherwise. Further, on record, the Respondent told the Court that he is a businessman, a teacher, and at the same time a student and is currently reading law. This reasonably shows that, the Respondent has little or no time to cater for the children who need a lot of care and attention given their tender ages with the youngest being 5 years. There is no good reason for disturbing the children’s education, upbringing and natural environment or habitat. The Court is convinced that Petitioner is a responsible and forceful mother and moreover

financially capable to take good care of all these children. In that regard, it is the court’s view that it is in the best interest of the children that full custody is granted to Petitioner herein with reasonable access to the Respondent. 17 Whether or not the Respondent has neglected to maintain the five (5) children of the marriage and ought to be made to maintain them. Section 47 of the Children’s Act, 1998 (Act 560) stipulates; “A parent or any other person who is legally liable to maintain a child or contribute towards the maintenance of the child is under a duty to supply the necessaries of health, life, education and reasonable shelter for the child.” The Petitioner per her petition is seeking an order directed at the Respondent to maintain the five (5) children of their marriage namely; Afram Asare Kumesh aged 15 years, Ampem Darko Asare-13 years, Asare Tabiri Ransford 10 years, Joycelyn Kuruwaa Asare 8 years and Addo Asare Nhyiraba aged 5 years in respect of clothing, health, education, shelter etc. till they reach the age of majority. As a matter of fact, the Petitioner did not adduce sufficient evidence to ground her claim. Given the paucity of evidence adduced by the Petitioner, this Court is of the view that her claim that the Respondent has neglected to maintain the children for the last 2-3 years has not been proven to the satisfaction of the Court considering

the fact that same has been denied by the Respondent. It is to be stated that in a claim of this nature, one would have expected the Petitioner to have stated the amount of money she requires to maintain the 5 children in her custody but she failed to do so. Be that as it may, given the fact that she has custody of the 5 children, it is only fair that she receives remittances from the Respondent so as to maintain them. The Court, in its discretion hereby orders the Respondent to maintain each child at GHC400.00 per month, which amounts to GHC2,000.00 per month for all five (5) children whereas the Petitioner takes care of other miscellaneous. Further, both Petitioner and Respondent shall bear the cost of school fees proportionately and shall also provide other educational materials. Respondent shall cater for the medical expenses of the children as and when they arise. 18 Whether or not the Respondent is entitled to his cross-petition? It is trite learning that whenever the Defendant also files a counter-claim, then the same standard or burden of proof would be used in evaluating and assessing the case of the Defendant just as was used to evaluate and assess the case of the Plaintiff against the Defendant. In the instant case, the Respondent cross-petitioned and that meant that he assumed the position of the Petitioner in respect of his counterclaim. See the cases of Osei V

Korang [2013] 58 GMJ 1 at 22-23 &32. Sasu Bamfo V Sintim (2012) 1SCGLR 136 AT 157. The Respondent cross-petitioned as follows: A. That the ordinance marriage celebrated between the Petitioner and the Respondent in the year 2005 be dissolved. B. A declaration by the Honourable Court that the Respondent is entitled to half share of all the properties acquired during the subsistence of their marriage. C. Custody of the children be granted to the Respondent for the Petitioner to have reasonable access to them. The Respondent did not have any evidence before the Court as he did not file and tender his witness statement. As a result, it could be re- called that he couldn’t prove that the storey building at Bakoniaba, Sunyani and a plot of land situate between Drobo and Kofiko Nkwanta were marital properties for them to be presumed to be jointly acquired especially when Petitioner has denied same in her reply and defence to the cross-petition as well as in her evidence. As such, his cross-petition in respect of those properties failed. However, in respect of the uncompleted house behind Tyco City Hotel, the Petitioner did not dispute that same was a jointly property. In fact, she admitted under cross- examination that same was jointly owned. In this instance, proof is not required since the averment is not being denied. See the case of Fori V Ayirebi [1966] GLR 627, SC and Kwame Bonsu

V. Gifty Kusi (2010) SCGLR. 19 The dissolution of the marriage which Respondent sought has already been granted as prayed at the beginning of the judgement. The Respondent’s prayer for custody of the children also failed. In all the cross-petition succeeds in part. In conclusion, I hold that the Petitioner is entitled to all her claims. Judgement is hereby entered in favour of the Petitioner as follows; a. The marriage celebrated between the parties is hereby dissolved. b. Custody of the five (5) children is hereby granted to the Petitioner with reasonable access to the Respondent. c. Respondent shall pay maintenance fees of GH₵2000.00 monthly to the Petitioner towards the upkeep of the children whiles the Petitioner takes care of other miscellaneous. Both Petitioner and Respondent shall bear the cost of school fees proportionately and shall also provide other educational materials. d. The Respondent shall pay the medical bills of the children as and when they arise e. The House which was constructed by the Petitioner before getting married to the Respondent remains the Petitioners’ personal property. f. The three (3) bedrooms, Hall and two (2) store rooms situate at Drobo acquired during the pendency of the marriage is settled on the Petitioner whereas the four (4) bedrooms self-contained house at Suma-Ahenkro, (Respondent’s hometown) is settled on the Respondent herein. g.

The Uncompleted house behind Tyco City Hotel Sunyani is the joint property of the parties and as such both shall have equal share in same. h. Both vehicles are joint properties. Toyota Highlander vehicle (unregistered) is settled on the Petitioner whereas the Nissan Primera with Registration No. AS 8373-15 is settled on the Respondent. i. Both parties shall ensure the general wellbeing of the children. 20 There will be no order as to cost. Parties shall bear their own cost. .................SGD...........………… H/W LINDA E. NYAHE ESQ.

MAGISTRATE 21