AMOAKO VRS. OTU (A11/02/2024) [2024] GHADC 565 (22 October 2024)

IN THE DISTRICT COURT, PRESTEA, HELD ON THE 22ND DAY OF OCTOBER, 2024 BEFORE HIS WORSHIP IDDI ADAMA ESQ SITTING AS THE DISTRICT MAGISTRATE SUIT NO. A11/02/2024 BETWEEN AGNES AMOAKO OF CEMETERY ROAD, BONDAYE **** PLAINTIFF AND JOHN OTU @ PAPA ADU OF CEMETERY ROAD, BONDAYE **** DEFENDANT JUDGEMENT This is instant suit was commenced by the Plaintiff on the 8/9/2023 who filed a writ for the following reliefs: 1. An order of the Honourable Court compelling Defendant to pay an Alimony or financial settlement of GH₵50,000.00 to the Plaintiff. 2. Punitive cost. A brief fact of the case is that the Plaintiff states she is a Hawker and the Defendant, a farmer and both reside at Bondaye-Cemetery Road. The parties entered into concubinage some eight (8) years ago and customarily got married some four years ago. Issues got to a head when there was the accusation of missing money and the Plaintiff decided to curse whoever stole the money. Defendant got offended and the matter was reported to the Chiefs at Bondaye by the Defendant which ultimately led the divorce. [1] During the subsistence of the marriage, the parties jointly acquired two-bedroom mud house at Cemetery Road, Bondaye. Plaintiff asserts that Defendant gifted her one (1) pole of bare farmland of which she personally cultivated cocoa but the Defendant has taken it back as the farm is due for harvesting. That Defendant has further harvested maize from a maize farm they cultivated together and has failed to give Plaintiff some of the proceeds from the sales. That a caesarean session was performed on her and was advised by the doctors not to engage in any strenuous activity. To this Plaintiff demand Plaintiff demand GH₵50,000.00 as Alimony in exchange of her share of the property jointly acquired. From her witness statement filed on the 17/1/2024, Plaintiff states that prior to their marriage in 2020, she assisted Defendant to put up one bedroom in addition to the already built room. That Plaintiff assisted Defendant in cultivating his cocoa at its early stage. According to Plaintiff, they jointly cultivated a new cocoa farm measuring about one (1) acre which was subsequently gifted her by the Defendant after the marriage. In the course of the marriage, Plaintiff avers that Defendant gave her GH₵1,500.00 to start a business. Plaintiff states that whenever she brings home the proceeds from the business for safekeeping, there happens to be shortfalls. In her bid to scare the perpetrator of the theft, she threats to curse the culprit which invariably led the Defendant to report her to the Chief of Bondaye about her action after confessing to taking some of the money. Further misunderstanding between the parties led to the dissolution of the customary marriage of which Plaintiff demands a compensation of GH₵50,000.00 but according to the Plaintiff, Defendant offered GH₵1,000.00. During cross examination of Plaintiff by Defendant, Plaintiff insisted that she assisted the Defendant to cultivate the cocoa maize and also plantain farm when [2] suggested otherwise by the Defendant. This is captured on page 4 and 5 of the Record of Proceedings. PW1, Charles Turkson, from his witness statement filed on 17/1/2024 deposed that the parties to the suit got married customarily in 2020 and that Plaintiff assisted the Defendant to complete a one-bedroom house in addition to a one-bedroom house the Defendant had already built. PW1 further stated that, Plaintiff assisted Defendant in cultivating cocoa farm. PW1 corroborated the story of Plaintiff that Defendant gave Plaintiff capital to do business and anytime Plaintiff brings the proceeds home, someone pilfers the money leading to shortfall. This, the Plaintiff proceeded one day to curse the perpetrator to scare that person. PW1 indicates that when it was reported to him, Defendant confessed to taking some money, Defendant said he took GH₵150.00. The matter was reported to the Chief at Bondaye for the curse to be reserved but things took a turn and the marriage was subsequently dissolved. Defendant family then offered GH₵1,000.00 as compensation but Plaintiff rejected same. When cross examined by Defendant, PW1 stated he was not present when the matter came before the Chiefs at Bondaye in respect of the curse but was present when the matter first came before the Chief’s linguist. PW1 insisted that Defendant gifted one (1) acre cocoa farm to Plaintiff and further rejected the suggestion by the Defendant that he already built the two (2) bedrooms before getting married to Plaintiff. Defendant on the other hand claimed per his witness statement filed on the 18/12/2024 that he assisted the Plaintiff with some funds to start a business and to support him in times of need. It is the case of the Defendant that anytime he harvested and got some proceeds from the sale of his cocoa, he gives some of the funds to the Plaintiff to expand her business. It is the case of the Defendant that the Plaintiff has of late rained insults on him at the least provocation including a child he had out of wedlock. The attitude of the [3] Plaintiff was reported to elders of their church but things got worse. This was to the extent that Plaintiff threatened to poison him. The deviant act of the Plaintiff once made her hit him with a piece of wood resulting in a scar at the back of Defendant’s head. Defendant further states that Plaintiff has been flirting with other men late in the night of which it was reported to the uncle of the Plaintiff. Aside all these according to Defendant somewhere in August 2023, he took an amount of GH₵600.00 from Plaintiff’s money due to some hardship he was experiencing with the intention of refunding same, the Plaintiff got wind of it and cursed him with egg at a stream behind their house. When it was reported to the Chief, Plaintiff refused to reverse the curse which prompted Defendant’s and his family to dissolve the customary marriage due to the unreasonable behaviour of the Plaintiff. An amount of GH₵1,000.00 was offered Plaintiff as compensation but she insisted on being paid a compensation of GH₵50,000.00. During cross examination of Defendant by Plaintiff, Defendant insisted that he built his two (2) bedroom house before getting married to Plaintiff. When it was suggested to Defendant as to the reason why he was sleeping at Plaintiff’s uncle’s house and a kiosk some time past, he insisted that the roof of his house was ripped off as the reason. Defendant insisted that he never gifted any cocoa farm to the Plaintiff. More so, Defendant responded that it was the kitchen that Plaintiff assisted in construction and not the bedroom as suggested by Plaintiff. DW1, one Stephen Otoo, who claim to be a brother of Defendant, indicated that the Defendant always informs him of happenings in the matrimonial home. That the theft of Plaintiff’s money and the curse alleged by Defendant was made known to him and he intend reported the matter to the Kyeameh of Bondaye. The matter was subsequently reported to the Chief of Bondaye where the Plaintiff was found liable and was asked to apologise to Defendant and family but Plaintiff refused hence the divorce. Subsequently, the Plaintiff demanded GH₵50,000.00 but [4] Defendant offered to pay GH₵2,000.00 which was rejected by the Plaintiff, hence the present action. When crossed examined, DW1 indicate he is aware of the marriage between the parties to this suit and that he has seen the marriage registration document. Further to this, DW1 indicated that Defendant had cultivated the cocoa farm up to maturity stage before he got married to Plaintiff. According to DW1 it was a quarter plot which Plaintiff assisted Defendant to cultivate. DW1 denied that, that quarter plot was gifted to Plaintiff when Plaintiff suggested same. DW1 further stated that due to the unreasonable behaviour of the Plaintiff of cursing the Defendant was the reason for the divorce and that the GH₵1,000.00 proposed was agreed upon by Defendant’s family as compensation. It was however admitted that Plaintiff assisted in the construction of the kitchen. DW2 filed his witness statement on the 22/12/2023. DW2 was however disqualified by the Court as a witness. This was as a result of the fact that, he was present in Court when the cross examination was going on. The effect is that since he was not cross examined per his witness statement his witness statement is not competent to be admitted in evidence. The issues for determination is whether the Court has jurisdiction to determine the issue of alimony and if so, whether the Plaintiff is entitled to same. Jurisdiction by its very nature is always conferred by either a constitutional provision or by statute. The constitution provides the basic framework of jurisdiction and statutory provisions and other subsidiary legislation including Constitutional and Legislative Instruments amplify it by providing the general guidelines, scope and remit of each jurisdictional stipulation. See Nana Agyare Bofour IV v Joseph Adade Mensah & 3 Ors. [2020] unreported SC Chieftaincy Appeal No. J2/01/2020 delivered on the 11/11/20 Dotse JSC. In resolving the issue of jurisdiction in Alimony [5] and following from above, Order 32 Rule 1 of District Court Rules, 2009 (C. I. 59) stipulates that; “The Court in the exercise of its matrimonial jurisdiction under Section 47(1) of the Courts Act 1993 (Act 459) as amended may deal with a. b. c. Divorce Paternity Custody of Children and d. Other Matrimonial Causes Though not specifically indicated that the District Court has jurisdiction in matters of Alimony, the inclusion of other matrimonial causes” with regards to matrimonial jurisdiction under order 32 would be construed ejusdem generis (of the same class) to give effect to the purpose of the law. This is to the effect that the District Court has jurisdiction in issue of alimony. Black’s Law Dictionary defines alimony as a term that applied to the Court granted allowance to a Spouse who is legally divorced or separated. There is all indications pursuant to the evidence adduced and corroborate by the parties though uncontroverted that the parties got married in the year 2020 and due to the unreasonable behaviour of the Plaintiff the Defendant with the family dissolved the customary marriage. It is evidential that during the subsistence of the marriage for three (3) years, though a brief period, the Plaintiff assisted the Defendant in the cultivation of his cocoa farm. It is through such activities that the Defendant was able to raise the GH₵1,500.00 for the Plaintiff to start a trade so as to supplement the Defendant during difficult times. The Defendant further indicated that when there is harvest he cedes some of the proceeds to assist the Plaintiff in her business and managing the home and also in the acquisition of the property. It is evidential that the Plaintiff [6] assisted in the construction of the matrimonial home including the kitchen which according to them was converted into a room for rent. It is further a fact that the Plaintiff cleans and cook for the Defendant to enable the Defendant have free hand to cultivate his farm. The law is that, it is no longer essential for a spouse to prove a direct pecuniary or substantial contribution in any form to the acquisition of marital property to qualify for a share. It was sufficient if the property was acquired during the subsistence of the marriage. However, where such evidence exist, it is necessary that a spouse alleging such a contribution must render or offer it to qualify her for a share or portion in the property so acquired. This position is to the effect that the duties performed by the wife in the home like cooking, cleaning etc. which go a long way to create an enabling environment for the husband to work in peace towards the acquisition of the properties concerned, was enough contribution that should merit the wife a share in the said property. See Adjei v Adjei (JA/06/21) Unreported SC (21/4/21) Appau JSC. From the facts of the case, the marriage subsisted for a period of three (3) years which is definitely a short period. It is a fact that the Plaintiff provided meals and played the traditional role as a wife in the home. It is also on record that the Plaintiff assisted with some funds for the construction of the kitchen and its conversion into a room. The Plaintiff however waives her right to her share of the property but claims alimony or financial settlement. It is the law that financial settlement is paid based on a legally binding agreement that records how a couple’s assets are divided after a divorce, separation or dissolution of a marriage but this is absent in this case as the parties have not put in evidence any such agreement to that effect. [7] In the same vain, alimony is allowance made to a wife out of her husband’s estate for her support either during a matrimonial cause or at its termination when she proves herself entitled to a separate maintenance and the fact of the marriage is established. Alimony is an allowance out of the husband’s estate made for the support of the wife when living separate from him. It is permanent or temporal. Alimony also known as maintenance cannot be treated as income for an unemployed Spouse. This is determined according to the income of the husband from which he can maintain himself and his wife taking into account other statutory commitment of the husband. The Court will not work with sympathy upon a wife who makes no effort to secure employment but is content to subsist on an award of alimony. See Gauble v Gauble [1963] 1 GLR 416 (High Court). I am mindful that a Court of law is not entitled to raise an issue ex proprio motu (of his own motion) outside the confines of the pleadings which is inconsistent with and contrary to what the parties themselves had put forward. In this regard since the Plaintiff per her summary of claim indicates to the Court that she is not demanding any of the properties jointly acquired, the Court is inclined to obey same in delivering its judgment based on alimony or financial settlement as pleaded. I am further guided by the law that judgment must be confined to what the party claims as can be ascertained from the claim endorsed on the writ and what is enumerated in the pleadings. See Oloto v Williams (1944) 10 WACA 23. It is my view that the Plaintiff has not proved by way of evidence any conjugal agreement to entitle her to financial settlement. Further to this, the claim of GH₵50,000.00 as Alimony or financial settlement cannot be uphold by the Court as there is no evidence on record to determine the monthly income of the Defendant. In this regard the claim by the Plaintiff fails in its entirety and being guided by the principle as contained in the case of Oloto v Williams (supra) the Court cannot extend its tentacles to grant judgement in claims not pleaded. [8] However, pursuant to Section 20 of the Matrimonial Causes Act, 1971 (Act 367) the Court may order either party to the marriage to pay to the other party sum of money or convey to the other party such movable or immovable property as settlement of property rights or in lieu thereof or as part of financial provision as the Court think just and equitable of which such payment or conveyance may be ordered to be paid in gross or by instalments. This is to the effect that the Court confronted with the issue of property settlement has the discretion to grant to the other party such sum of money or convey to the other party movable or immovable property as settlement of property rights. In this regard since the Plaintiff has waived her rights with regards to the immovable property settlement of the properties jointly acquired during the subsistence of the marriage and the Court fortified per its discretion pursuant to Section 20 of Act 367, the Court makes the following orders. The Defendant is to pay to the Plaintiff an amount of GH₵10,000.00 as financial provision so as not to put the Plaintiff in a worse situation than she would have been had the marriage not been dissolved. This amount shall be paid in instalment over a period of six (6) months. No order as to cost. (SGD) H/W. IDDI ADAMA ESQ. (DISTRICT MAGISTRATE) [9]