EMMANUEL ACHEAMPONG AGYEMANG VRS ANGELA TSIYA (C5/399/2021) [2023] GHACC 557 (23 March 2023)

IN THE CIRCUIT COURT OF GHANA HELD IN ACCRA ON THURSDAY THE 23RD DAY OF MARCH, 2023 BEFORE HER LADYSHIP ROSEMARY BAAH TOSU (MRS) – JUSTICE OF THE HIGH COURT SITTING AS AN ADDITIONAL HIGH COURT JUDGE SUIT NUMBER: C5/399/2021 EMMANUEL ACHEAMPONG AGYEMANG == PETITIONER ARMY RECRUITS TRAINING SCHOOL ACCRA VS ANGELA TSIYA == RESPONDENT PLOT 19 SPINTEX BROADWAY ACCRA ===================================================== ==================================================== JUDGMENT The evidence before this Honourable Court is that the parties, who are an Army Officer and Immigration Officer respectively, were married on the 8th September, 2014, under the Marriage Ordinance, Cap 127 at the Principal Registrar of Marriages Office in Accra. Due to the nature of their professions and other considerations the parties barely lived together, with Petitioner stationed in Tamale, whilst Respondent was also stationed in Bawku, all in the Northern Region of the Republic of Ghana. The evidence also shows that in the course of the marriage, Respondent was transferred to Accra, whilst Petitioner had stints in places like South Sudan on peace keeping duties. The parties have a seven year old daughter, Jacqueline Nhyira Agyeman. Petitioner says that Respondent’s disrespectful and insulting attitude towards him has caused him so much worry, anxiety and such embarrassment that he cannot reasonably be expected to live with Respondent. In summary, Petitioner’s grounds for unreasonable behaviour are as follows:  Soon after the marriage ceremony and consistently, Respondent has informed Petitioner of her disinterest in the marriage.  In 2018, Respondent asked for a transfer from her station in Bawku to Accra and refused to co-habit with Petitioner, who was then stationed in Tamale.  Even though Petitioner had rented out a property for Respondent, whilst Petitioner was away on peacekeeping duties, Respondent under the guise that she could not get along with the landlord, moved out and rented a new place, which he had to pay for on his return.  Upon his return, Respondent threw out his belongings after a misunderstanding.  Respondent is very disrespectful and at the least instance provokes him to divorce her.  Respondent often exhibits different men on her Whats app status with suggestive captions, whilst she also dresses provocatively and also is in positions which is not right for a married woman. Respondent when questioned says that the men are her relatives, but her mother has denied these assertions.  Petitioner purchased a vehicle in the year 2020 which he left in Respondent’s care, upon his return, he noticed that Respondent had registered it in her name without his consent. Petitioner pleads that several attempts by family members to reconcile the parties have proved futile. In his view the marriage is broken down beyond reconciliation. He prays for the following reliefs a. That the marriage between the parties be dissolved b. That the parties have joint custody of their daughter c. An order directed at the Respondent to return Petitioner’s car which Respondent has registered in her name d. Any other reliefs the Court may grant the Petitioner. Respondent has also cross petitioned for dissolution of the parties’ marriage. She denies that she is insulting and abusive towards the Petitioner and denies all his averments on unreasonable behaviour. Respondent denies that she intentionally requested for a transfer to Accra, she says it was an official administrative decision which Petitioner was in full support of. In response to Petitioner’s allegation that she took money from a man to rent a new place, she says that she paid the rent with the help of a family friend and informed Petitioner of the need to repay this amount, however, he only gave her a lesser sum. Respondent admits that she moved Petitioner’s belongings from their bedroom into the living room and ordered him to leave, which he did as a result of a misunderstanding during which Respondent physically assaulted her and strangled her neck. Respondent denies that she took the Toyota Corolla without Petitioner’s consent since it was a gift to her after his peace keeping duty tours. Respondent admits that both parties have made several attempts to resolve their differences, however these differences rather deepened and have rendered the parties irreconcilable. Respondent says further that Petitioner has caused her a lot of emotional and physical distress since the inception of the marriage. Respondent’s ground for the dissolution of the marriage is the unreasonable behaviour of Petitioner which consists of his constant physical abuse whenever the parties have a misunderstanding. She prays as follows. 1. That the marriage celebrated between the parties be dissolved 2. That full custody of the child is given to Respondent with visitation rights to the Petitioner. 3. Declaration that the 2015 Toyota Corolla given to Respondent by the Petitioner is a gift. 4. An order for the Petitioner to maintain the child, pay the school fees and medical bills of the child. 5. That the Petitioner is ordered to pay the Respondent a sum of GHS100,000 as alimony 6. Costs incidental to this suit 7. Any further order(s) as this Honourable court may deem fit. Parties filed their witness statements and led evidence accordingly and were cross- examined extensively. They didn’t call any witnesses. Petitioner tendered in evidence exhibit A series, which are the documents concerning the registration of the vehicle by Respondent. Exhibit B, is the official receipt of the vendor. Petitioner attempted to tender in evidence, excerpts of Whats app conversations between one Hector, who Petitioner says is Respondent’s ex-boyfriend, however, counsel for Respondent objected. He relied on the cases of Rapheal Cubagee vs Micheal Yeboah Asare & 2 Ors 1 GLR 243, Abena Poku Ackah vs ADB and Edem Adinyira vs Scancom (Civil Appeal No. H1/100/2017). In response, counsel for Petitioner submitted that all the cases Counsel for Petitioner relied on had an element of surprise. However, Respondent was not surprised by these exhibits because she had already discussed these issues with Petitioner. On this score, I agree with Counsel for the Respondent, it was held in the Cubagee case that the secret recording of a party to a suit violated his right to privacy which was guaranteed by Article 18(2) of the 1992 Constitution. I therefore find that Petitioner’s copying of Respondent’s Whats app chats with the said Hector, without her consent, is a breach of her right to privacy. Those Whats app messages are ruled inadmissible. However, there were a set of Whats app conversations between Petitioner and Respondent, those are ruled admissible and marked as exhibit C series. Petitioner also exhibited a number of pictures taken off Respondent’s public Whats app status, there was nothing private about those Whats app statuses, I therefore find the pictures admissible and mark them as exhibit D series. Respondent tendered in the following documents as evidence  Exhibit 1- Marriage Certificate  Exhibit 2- Receipt of School Fees payment  Exhibit 3- Bill for payment of fees  Exhibit 4- Report  Exhibit 5- Medical Lab reports  Exhibit 6- Respondent’s pay slip  Exhibit 7- Receipt for payment of rent ISSUES FOR DETERMINATION Per section 1(2) of the Matrimonial Causes Act 1971, Act 367, the sole ground for the granting of a Petition for dissolution shall be that the marriage has broken down beyond reconciliation. Based on this finding, the Court goes ahead to deal with other ancillary reliefs. The following issues below should lead to a resolution of this matter and they are 1. Whether or not the Marriage celebrated by the parties is broken down beyond reconciliation 2. Whether or not Petitioner or the Respondent is entitled to custody of the issue of the marriage? 3. Whether or not Respondent is entitled to alimony of GHS100,000 4. Whether or not Toyota Corolla with registration number GE 1992-21 is a gift from Petitioner to Respondent ANALYSIS OF THE EVIDENCE LED The general rule is that he who asserts must prove. He must prove the essential issues central to his case on the preponderance of probabilities which is the standard of proof in a civil matter. Section 12(2) of the Evidence Act, NRCD 323 defines proof on the preponderance of probabilities to be ‘The degree of certainty of belief in the mind of the tribunal of fact or the court by which it is convinced that the existence of a fact is more probable/likely than its nonexistence’. In this case in which there is a Petition and a Cross- Petition for dissolution, I must say that the parties both bear the same burden which is to produce sufficient evidence to avoid a ruling on the issues against them on their individual claims. The first issue to consider is whether or not the marriage celebrated by the parties is broken down beyond reconciliation. Section 2 of Act 367 provides the grounds which when proven would lead the Court to this conclusion. And it provides as follows (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 such adultery the Petitioner finds it intolerable to live with the Respondent or (b) That the Respondent has behaved in such a way that the Petitioner cannot reasonably be expected to live with the Respondent or (c) That the Respondent has deserted the Petitioner for a continuous period of at least two years immediately preceding the presentation of the petition, or (d) That the parties to the marriage have not lived as man and wife for continuous period of at least two years immediately preceding the presentation of the petition and the Respondent consents to the grant of a decree; provided that such consent shall not be unreasonably withheld, and where, the Court is satisfied that it has so been withheld, the Court may grant a petition for divorce under this paragraph notwithstanding the refusal or (e) That the parties to the marriage have not lived as man 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. From the evidence led by the parties I surmise that this petition is brought primarily under section 2(1)(b) of Act 367. Both parties have accused themselves of unreasonable behaviour. Unreasonable behaviour can take the form of either an act or omission and can include severe issues of physical or emotional violence or more even milder incidents. However, the conduct complained of must be severe and higher than the ordinary wear and tear of married lie. It was held in the case of Knusden vrs. Knusden (1976) 1 GLR 204 CA on the test of unreasonable behaviour that ‘The behavior of a party which will lead to this conclusion would range over a wide variety of acts. It may consist of one act if it is of sufficient gravity of a persistent course of conduct or series of acts of differing kinds none of which by itself may justify a conclusion that the person seeking the divorce cannot reasonably be expected to live with the spouse, but the cumulative effect of all taken together would do so‛ In his book, The Law on Family Relations in Ghana, the learned author W. C. Ekow Daniels made the following statement on the test of unreasonable behaviour, he writes at page 308 ‘All that a Petitioner is required to do in this context is to give particulars (emphasis mine) or the extent of the behaviour of the Respondent which has necessitated the presentation of the petition. Thereafter he is required to establish that as a result of that particular behaviour he cannot reasonably be expected to live with the respondent.’ In the case of Hughes vs Hughes (1973) 2 GLR 342, Sarkodee J in his judgment said ‘To succeed the petitioner must show that the respondent’s conduct reached a certain degree of severity. It must be such that no reasonable person would tolerate’. Has the Petitioner’s evidence met this threshold? The fair answer, I believe is yes. Petitioner has provided sufficient evidence of consistent unreasonable behaviour by the Respondent, right from the night of the honeymoon when Respondent started regretting that she had gotten married to Petitioner, to the incidences with food at Burma Camp and Asanka Locals. Respondent has not provided any serious challenge or denials to these allegations by Petitioner. Petitioner has also testified about Respondent consistently disrespecting him and verbally abusing him. Exhibit C series, the whats app exchanges between the parties where Respondent calls Petitioner stupid and even accuses her mother in law of having married Petitioner is a case in point. I find that Petitioner has proved on the preponderance of probabilities, Respondent’s unreasonable behaviour in the course of the marriage for which reason he cannot be expected to live with her. Respondent also alleges that Petitioner has also been unreasonable and her accusation against Petitioner is that he physically assaults her. However, apart from these mere averments, Respondent has not led any concrete evidence to show that these incidences she alleges indeed took place. Respondent has not led any evidence to show the nature of these assaults, the venues, the incidents which triggered them and most importantly whether she reported Petitioner to family or friends or even the authorities. According to Respondent these incidences were so severe that she actually feared for her life. Interestingly, both parties have testified to the fact that cumulatively, they have not lived together as a couple for more than a month. I find Respondent’s allegations not proved, her cross-petition for dissolution is dismissed whilst Petitioner’s is granted. I find that the marriage is broken down beyond reconciliation and I accordingly dissolve it. The next issue to determine is Whether or not Petitioner or the Respondent is entitled to custody of the issue of the marriage? Section 22 of the Matrimonial Causes Act 1971 (Act 367) gives this Court powers to make orders concerning the custody of children of a marriage. It provides as follows (1) ‘in all proceedings under this Act, it shall be the duty of the court to enquire whether there are any children of the household’ (2) the court may either on its own initiative or on application by a party to any proceedings under this Act make any order concerning a child of the household which it thinks reasonable and for the benefit of the child. Subsection 3 of 22 lists the heads under which such orders can be made and they are in relation to    the award of custody of the child to any person the regulation of the right of access of any person to the child the provision for the education and maintenance of the child The guiding principle of this Court in such matters is provided in section 2 of the Children’s Act 1998, (Act 560), it provides that the best interest of the child shall be the primary consideration of any court, person, institution or other body in any matter concerning a child. The uncontroverted evidence is that the child has lived a greater part of her life with her grandmother in Akatsi, Volta Region, by the agreement of the parties. At present, the child resides with her mother, the Respondent, in Accra and has even started school here. This is the status quo which I am convinced in the best interest of the child should remain. The Petitioner due to the nature of his work, is not stable. He may be called upon to undertake peace keeping duties or courses at any time without much notice and this could affect the emotional and educational stability of the young child. It is also always better for a young girl child to be raised by her mother unless the circumstances dictate otherwise or the character of the mother has been seriously impeached. I therefore grant custody of the young child to Respondent. Petitioner is to be allowed reasonable access on school vacations and statutory holidays. Respondent has also prayed the Court to order Petitioner to maintain the child, pay school fees and medical bills of the child. Section 47(1) of the Children’s Act 1998 (Act 560) provides that a parent is under a duty to supply the necessaries of health, life, basic education and reasonable shelter for the child. It is also to be emphasized that maintenance of a child is the primary responsibility of both parents. To ensure that a Court’s orders are reasonably obeyed, a Court is enjoined to consider the following when making maintenance orders under section 49(1) of the Children’s Act 1998 (Act 560). a. The income and wealth of both parents of the child or the person legally liable to maintain the child b. An impairment in the earning capacity of the person with a duty to maintain the child c. The financial responsibility of that person with respect to the maintenance other children d. The cost of living in the area where the child is resident e. The rights of the child under this Act f. And any other matters that the family tribunal considers relevant. Counsel for Respondent has rightly drawn this Court’s attention to the earning capacities of both parties. It has also always been the traditional role of a father to pay his children’s school fees. Petitioner is hereby ordered to maintain the child with a monthly allowance of 700 and also to pay her school fees. In support, Respondent should pay the medical bills of the young child and provide other necessaries of life for her as and when they fall due. The next issue to consider is Whether or not Respondent is entitled to alimony of GHS100,000. Alimony is loosely defined as financial support that a person is ordered by a Court to give to their spouse during separation or following divorce in order to allow the recipient to maintain the lifestyle they had during marriage. Some of the factors a Court will usually take into consideration when deciding on an appropriate amount is the standard of living established during the marriage, duration of the marriage, financial resources of either party, contribution of each party to the marriage etc. The reason is for the Court to do equity and justice between the parties. This Court is entitled under section 20 of Act 367 to order that a spouse should make lump sum payments to another spouse. (1) The court may order either party to the marriage to pay to the other party such 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 thinks just and equitable. Counsel for Petitioner reminds the Court in her written address that even though the Courts have discretion to make such an award, the overriding principle is that it must be just and equitable. Counsel for Petitioner also submits that in the case of this Respondent, she is not entitled to any such financial provision because the parties lived together less than a month cumulatively as husband and wife. Respondent has therefore not provided any comfort or support to Petitioner such as is described by Dotse JSC in the case of Gladys Mensah vs Stephen Mensah, Civil Appeal Division J4/20/11. Counsel also refers to the shabby and contemptuous treatment meted out to Petitioner by Respondent during the pendency of the marriage. As a result of all these set out above, Counsel for Petitioner concludes that Respondent is not entitled to the payment of any alimony, much more the quantum of GHS100,000. Counsel for Respondent, in his written submissions, urges the case of Aikins vs Aikins (1979) GLR 223-233 on the Court, to the extent that the Court ought not to take into account the conduct of either the wife or the husband but must look at the realities and take into account the standard of living to which the wife is accustomed to during the marriage and make such provision accordingly. The circumstances of this suit, reminded me of a statement made by Appau JSC in the case of Peter Adjei vs Margaret Adjei, Civil Appeal No J4/06/2021, 21st April, 2021. He referred to the decisions of the Supreme Court in cases such as Mensah vs Mensah, Quartson vs Quartson and Arthur vs Arthur and states ‚The rationale behind this position was that the duties performed by the wife in the home like cooking for the family, cleaning and nurturing of the children of the marriage etc which go a long way to create an enabling atmosphere for the other spouse to work in peace towards the acquisition of the properties concerned was enough contribution that should merit the wife a share in the said properties. It must be emphasized however, that it is not every wife to a marriage who diligently performs this marital role that the courts, since the days of Rimmer vs Rimmer (1952)1 QB page 73 per Denning LJ have talked so much about. I would say without equivocation that the evidence places the Respondent squarely in the category of women who have not carried out their marital role with much diligence. For example, in the case of the child of the marriage, her upbringing was “outsourced” to Respondent’s mother. There is also no evidence led that whilst they were both stationed in the Northern Region, Respondent was catering for her husband, the Petitioner by cooking him meals or even doing his laundry. Respondent’s contribution to this marriage has been next to nothing and she has indeed been on a frolic of her own all these eight years or so of this marriage. There has not been much evidence led on the standard of living of the parties, who from the facts are just a young couple who set out on this matrimonial journey and have not even acquired any property together. Respondent in her Answer and evidence has not complained of neglect in the marriage, I note that rent initially was paid by Petitioner, until the infamous episode when Respondent had to leave and rent another place, even in that circumstance, Petitioner paid half of the new rent. The evidence which was also not challenged was that Petitioner sometimes left his ATM card for Respondent to use in his absence. In remembering my duty to make a fair, just and equitable award, I would order Petitioner to pay an amount of Twenty Thousand Ghana cedis (GHS20,000) to Respondent as alimony. I have considered the fact that Respondent is gainfully employed and not totally dependent on Respondent. In addition to this award, I order Petitioner to rent suitable accommodation for Respondent and the child for a period of two years or alternatively pay Respondent’s rent for two years, after which period Respondent should reasonably have found her feet. The final issue to consider is Whether or not the 2015 Toyota Corolla with registration number GE 1992-21 is a gift from Petitioner to Respondent. Petitioner’s evidence is that in October, 2020, upon his return from peacekeeping duties, he purchased the said Toyota Corolla and left it in the care of Respondent when he went back to his unit in the Northern Region to report. However, upon his return, Respondent had registered the car in her name without his consent. Petitioner testified that prior to buying the car, Respondent was using his old car which he had promised to sell and buy a much smaller car for her to use. However, for the Toyota Corolla, he had informed Respondent that he purchased it purposely to sell to engage in some business. Despite being apprised of Petitioner’s reason for purchasing the car, Respondent still went ahead to register the car in her name under the guise that she feared armed robbers would snatch it from her. Respondent testified that the parties had a few times of peace in the relationship, and during one of such moments Petitioner gifted her the said Toyota Corolla. This was on his return from peace keeping duties. Respondent gave evidence that despite misunderstandings in the marriage during this period, which led to Petitioner perpetrating violence on her, somehow, he still managed to leave the documents of the unregistered Toyota Corolla with her to register in her name. Respondent says she is stunned by Petitioner claiming this vehicle was not a gift to her because Petitioner has never objected to the vehicle being in her name. Petitioner in his written address notes that an enquiry from DVLA into the registration of the vehicle, shows that Respondent acted fraudulently. This is because she brought different persons to impersonate the real owner of the vehicle who was supposedly making the transfer to her. Petitioner submits that the circumstances under which he left the matrimonial home was unceremonious. Petitioner left his documents when Respondent threw him out with his belongings and he had to rent out a hotel for the night until he left for his station the next day. Petitioner submits in his written address that the law is that a declaration of intention to make a gift must be clear and unequivocal. It is Respondent’s case that Petitioner voluntarily threw these car documents at her when he was leaving the matrimonial home. Respondent, however fell short of testifying that Petitioner clearly told her to register the vehicle in her name or that he bought the vehicle for her as a gift. I do not find the authorities relied on by Mr Anku Tsede to be appropriate because they are about cases in which the property or alleged gift was bought in the name of the recipient. No evidence has been led to show that the vehicle was purchased in the name of Respondent. Respondent has also not led any evidence of a promise made by Petitioner to buy her a car. In fact there is no corroboration for Respondent’s story, even though she claims there a text messages to prove that the car is a gift. The question is where are those text messages? Indeed if they were available, Respondent would not have hesitated to produce them. The learned author, WC Ekow Daniels in his book ‚The Law on Family Relations in Ghana‛ at page 199 under the subheading, The Prerequisites of a Valid Gift Intervivos stated ‘Between husband and wife just as between strangers, the donor of the gift must have an intention of making an outright change of ownership and it must be a present intention, not a mere future intent. The declaration of intention to make the gift from the husband to the wife, must be clear and unequivocal’. From the evidence led, I find nothing clear and unequivocal about the alleged gift of the vehicle to Respondent. Petitioner did not evince such an intention and it follows that the vehicle was never gifted to Respondent. I order Respondent to transfer the vehicle into the Petitioner’s name within twenty one (21) days of this judgment. DECISION In conclusion, I find that the marriage celebrated by the parties on the 8th September, 2014 at the Offices of the Principal Registrar of Marriages Office, Accra is broken down beyond reconciliation. The marriage is accordingly dissolved. I hereby make the following orders a. I award custody of the child to Respondent with reasonable access to Petitioner on school vacations and statutory holidays. b. Petitioner is ordered to pay an amount of Twenty Thousand Ghana cedis (GHS20,000) as alimony to Respondent. c. Petitioner is ordered to rent suitable accommodation for Respondent for a period of two years or alternatively pay her rent for two years. d. I declare that the Toyota Corolla registered as GE 1992-21 is not a gift to Respondent. She is ordered to transfer the vehicle to Petitioner within 21 days of today. e. Parties are to bear their own costs. (SGD) H/L ROSEMARY BAAH TOSU (MRS) HIGH COURT JUDGE SITTING AS AN ADDITIONAL CIRCUIT COURT JUDGE REPRESENTATION Petitioner absent Respondent present Racheal McCarthy for Petitioner present Victor Anku-Tsede for Respondent absent 14