JACOB OSAFO BOAKYE VRS DORIS ANN-ASOBYIRE (C5/324/2020) [2023] GHACC 1074 (17 March 2023)

IN THE CIRCUIT COURT OF GHANA HELD IN ACCRA ON FRIDAY, 17TH DAY OF MARCH 2023 BEFORE HIS HONOUR KWABENA KODUA OBIRI-YEBOAH, CIRCUIT COURT JUDGE. SUIT No: C5/324/2020 JACOB OSAFO BOAKYE PETITIONER RAILWAYS POLICE BARRACKS ACCRA V DORIS ANN-ASOBAYIRE RESPONDENT RAILWAYS POLICE BARRACKS, ACCRA JUDGEMENT The Petitioner issued the Petition from the Registry of this Court seeking the following reliefs: 1. That the marriage celebrated in fact between the Petitioner and the Respondent de dissolved. 2. That this Honourable court should give custody of the three (3) children to the Respondent with the Petitioner having reasonable access to them The Respondent cross petitioned and sought the following reliefs: 1. That the marriage celebrated in fact between the parties be dissolved. 2. That custody of the children be granted to the Respondent with reasonable access to the Petitioner. 3. An order for the Petitioner to maintain the issues of the marriage, including but not limited to the payment of school fees and medical bills, 4. An order for the equitable distribution of the underlisted properties: a. Two-bedroom self-contained house at North Kaneshie. b. Four-bedroom uncompleted house at Bortianor on the Accra Kasoa Road. 5. Lump sum financial settlement. After the close of pleadings, the Petition was set down for trial and parties were ordered to file their witness statement as required by the law in addition to pretrial check list. Case Management was later conducted, and the case afterwards was ripped for hearing. The Petitioner giving his evidence said the marriage was celebrated at Navrongo in the Upper East Region under the customary law. There are three issues of the marriage who are: 1. Reina Akomeah Boakye age 18 years 2. Lorna Twumwaah Boakye age 15 years 3. Terry Ansah Boakye age 11 years. Petitioner per his evidence indicated that the marriage has broken down beyond reconciliation as attempt by family and friends at reconciliation have proved futile. The Petitioner testified that a piece of land at North Kaneshie was conveyed to him and the sister by their father as a gift to be used for a particular purpose and exhibited the deed of gift as exhibit which interestingly is only in his name as the donee. The Petitioner said the 2-bedroom building on the said land together with the fixtures and fittings were solely built by him with no financial support whatsoever from the respondent as she claimed. The Petitioner said the Respondent does not have any equitable share in the said North Kaneshie property. The Petitioner went further to testify that there is a 4-bedroom house in Bortianor and that also the Respondent does not have any equitable share in it and that the court should declare same as a Trust Property for the benefit of the three children until they attain the age of majority, and he ended by saying, since that has been his sole reason for erecting the said building. The Petitioner said that the Respondent is not entitled to any lump sum financial settlement since she hardly contributed anything to the marriage and that even though she was gainfully employed with side business, she never even for once, paid utility bills or spend any money of hers in the matrimonial home but only stressed out the Petitioner in more ways than one. The Petitioner tendered various exhibits before the court which were labelled as exhibits A-A5, B and C - C13. The Petitioner closed his case after he was cross examined. The Respondent afterwards opened her case and said that the Petitioner had abandoned her and the children in the matrimonial home for some time before issuing the petition from the registry of the court. The Respondent said that after the marriage the parties cohabited at Odumasi Krobo and Accra and not just in Accra. Respondent also agrees to the breakdown of the marriage, but she says it is as a result of the Petitioner’s refusal to remain married to her. The Respondent said I have been living with the Petitioner for the past 17 years, and now that will be almost 20 years since the witness statement was filed in 2020, the Respondent says without a problem until the Petitioner rekindled his romance relationship with his ex-girlfriend by name Joyce. The Respondent said he is seriously traumatized by the behaviour of the Petitioner to lay false claims against her in the petition. The Respondent said she has treated Petitioner with respect and decency he deserves as husband. Respondent said she has provided the right atmosphere to leave in peace in the barracks and she has a humble attitude, and she is the Magagia (women supervisor) in the barracks and she is responsible for organizing women in the entire barracks. The Respondent also testifies of how supportive she has been which has enabled them to jointly acquired properties at Bortianor – Kasoa Road, and the North Kaneshie, Accra and also enabled the Petitioner to further his education at the University of Ghana. The Respondent testified of the property at Bortianor and North Kaneshie are jointly acquired by the parties and testified of her various contributions to the acquisition of the properties. The Respondent concluded her testimony and asked for compensation with a lump sum of GHC 100,000 and the reliefs sought per her cross petition. The Respondent also tendered exhibits 1-7 but exhibits 2 – 7 were admitted as exhibits before the court and the 1 series were rejected by the court as they were objected to by the counsel for the Petitioner and the objection was upheld. From the pleadings and the proceedings before the court, the parties agree to the dissolution of the marriage and clearly is not in dispute. In matrimonial causes, the duty of the Court is to find out if the marriage has broken down beyond reconciliation. And in determining that the law provides under section 2 of the MATRIMONIAL CAUSES ACT, 1971 ACT 367 with the heading “proof of breakdown of marriage” indicates the various scenarios that when they happen, the court can conclude that the marriage has broken down beyond reconciliation. From the pleadings and the proceedings before the court it is not in doubt that these scenarios have occurred, and marriage has broken down beyond reconciliation. The parties in their pleadings and their evidence before the court also agree to the dissolution of the marriage as the parties have been separated for a while now. The Petitioner during cross examination was asked: Q8. How long has it been since you left the children and the mother to go live at North Kaneshie. A. Over two years. It is also clear from the evidence that the parties have not had sexual intercourse since that time. Therefore, the dissolution of the marriage is not in contention by the parties and also custody of the issues of the marriage is also not in contention as the Petitioner in his reliefs did not ask for custody but rather asked the custody to be giving to the Respondent and he having reasonable access to the issues of the marriage. And it is only the Respondent who asked for the custody of the children of the marriage and accordingly custody will be granted to the Respondent. ANCILLARY RELIEFS From the evidence before the court, there are two landed properties which were acquired during the pendency of the marriage. One on which the property was built was acquired and another the land was a gift to the Petitioner from the father. During cross examination of the Petitioner, these were his answers. Q28. When did your father gift the land to you. A. 2018 Q35. You will agree with me further that the deed of gift is for the land and not the property. A. Yes, it is mainly for the land. And this is the North Kaneshie 2-bedroom property and that is where the Petitioner is living and has been living for the past two years after abandoning the Respondent and the issues in the matrimonial home. The Petitioner started building somewhere 2018 or 2019 and this means that the property was built during the pendency of the marriage. From the evidence before the court, the Respondent gave evidence of her contribution to the 2-bedroom property at North Kaneshie. She also testified of her contribution to the property at Bortianor but in all these the Petitioner denied all and refused to acknowledge the contribution of the Petitioner. Article 22 clause 2 and 3 (a) and (b) of the 1992 Constitution provides that: 2 Parliament shall, as soon as practicable after coming into force of this constitution, enact legislation regarding the property right of the spouses. 3. With a view achieving the full realization of the rights referred to in 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. The Supreme Court in furtherance of these provisions held in Mensah v Mensah (1997- 98) 2 GLR 193, that the property acquired during the subsistence of a marriage became joint property and upon dissolution is to be shared equally, as the ordinary incidence of commerce had no application in marital relationship where the parties jointly acquire property during marriage. The aforementioned clause 3 (b) enjoins the court to distribute jointly acquired properties equitably to the parties upon dissolution of the marriage. This principle of equitable sharing of joint property on divorce had been given statutory expression as well in the provision of section 20(1) of the Matrimonial Causes Act 1971 Act 367) which empowered the court in a divorce case to settle proprietary right of the parties on just and equitable basis. The section 20(1) provides: “The Court may order either party to the marriage to pay to the other party a sum of money or convey to the other party movable or immovable property as settlement of property rights or in lieu thereof or as part of financial provision that the Court thinks just and equitable”. And it must be stated clearly that it is the property which is jointly acquired during the pendency of the marriage which becomes the subject of distribution and not any property acquired during the pendency of the marriage. 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. See Fynn v Fynn & Osei [2013-2014] 1 SCGLR 727. Fynn v Fynn & Osei makes it clear that parties in marriage can acquire their personal properties independent of each other even during the pendency of the marriage. And from the evidence, before the court, that is not the case in the marriage before this court. From the totality of the evidence, parties lived their life jointly with the aspiration of enjoying the properties they acquire together. That is why the respondent said in paragraph 11 that “I have been living with the petitioner for the past 17 years without any problem until the Petitioner rekindled his romance relationship with his ex-girlfriend by name Joyce…”. Counsel for the Petitioner asked over 100 questions during cross examination, but this piece of evidence was not challenged at all during cross examination. The property acquired during the pendency of marriage is presumed to be marital property and jointly acquired by the parties. From the evidence even though the North Kaneshie property, the land was a gift, the property itself was built during the pendency of the marriage and hence same will be considered as jointly acquired matrimonial property as well as the Bortianor property also acquired during the pendency of the marriage. From the evidence and the submission of Counsel for the Petitioner, the Respondent cannot show any contribution to the acquisition of the property. I must say the Respondent gave evidence of her contribution, some of which were challenged during cross examination by the Petitioner. However, the position of the law is that the Respondent does not need to show her contribution . She must show that she has been married to the Petitioner all these years and the properties were acquired during the subsistence of the marriage and her contribution which can be in different forms, direct, pecuniary or substantial which the Respondent did in the evidence before the court. See Boafo v Boafo (2005-2006) SCGLR 705, Mensah v Mensah (2012) 1 SCGLR 391, Quartson v Quartson (2012) 2 SCGLR 1077, Arthur v Arthur (No.1) (2013-2014) SCGLR 543, PETER ADJEI vs. MARGARET ADJEI [2021] DLSC10156. Specifically in the case of Mensah v Mensah (2012) 1 SCGLR 391 this is what the court had to say under the heading “Applicable guidelines on sharing marital properties” paragraph 3, “We believe that, common sense, and principles of general fundamental human rights requires that a person who is married to another, and performs various household chores for the other partner like keeping the home, washing and keeping the laundry generally clean, cooking and taking care of the partner’s catering needs as well as those of visitors, raising up of the children in a congenial atmosphere and generally supervising the home such that the other partner, has a free hand to engage in economic activities must not be discriminated against in the distribution of properties acquired during the marriage when the marriage is dissolved. This is so because it can safely be argued that the acquisition of the properties were facilitated by the massive assistance that the other spouse derived from the other. In such circumstances, it will not only be inequitable, but also unconstitutional as we have just discussed to state that because of the principle of substantial contribution which had been the principle used to determine the distribution of marital property upon dissolution of marriage in the earlier cases decided by the law courts, then the spouse will be denied any share in marital property, when it is ascertained that he or she did not make any substantial contributions thereof.” In this case the Respondent has been married to the Petitioner for almost 20 years now and within the period, he has provided the petitioner the comfort, the love and care he needs to help him go about the various economic activities to make money to acquire the properties. The Respondent has also provided a home and taken care of the three issues of marriage all these years and since the past two years that the Petitioner abandoned the Respondent and the children. During cross examination the Respondent was asked these questions by counsel for the petitioner: Q37. When the Petitioner was on peacekeeping did you have access to his salary account. A. No Q38. How many children did you have then. A. One Q39. How old was she? A. 6 months. So, during this period when the Petitioner was out of the jurisdiction, it was the Petitioner who took care of this child to give the Petitioner the peace of mind wherever he was as he was assured, the Respondent was back home doing the hard work of taking care of this infant so he can concentrate on his operational activities and duties. Even this applies since the Petitioner returned and they have had two additional children, who are like three years interval and now all grown up, who have been taking care of by the Respondent doing domestic chores and the daily routine of taking care of these children. See Mensah v Mensah (2012) 1 SCGLR 391 This care, support role played by the Respondent has not only improved the economic status of the Petitioner but has also allowed the Petitioner to develop himself and enhance his status of education and same cannot be said of the Respondent all these years from the evidence before the court. The Petitioner again was asked these questions under cross-examination. Q42. At the time of marriage to the Respondent what was your level of education. A. I was holding an A level certificate. Q43. What is your level of education now. A I hold a degree now. From all these evidence before the court I am of the humble opinion that it will be unfair and the highest form of injustice to say that because the Respondent cannot demonstrate monetary contribution, per the argument of the Petitioner, she is not entitled to any property acquired during the tenure of the marriage and she is not entitled to any payment of a lump sum. Even that is not the case as the Petitioner exhibited various receipts and other documents of her contribution. From the evidence before the court even though the Petitioner claim in his witness statement that the Respondent picked quarrels with almost all the co-tenants including senior officers living in the barracks and the behaviour of the Respondent cost him his job, it is the Petitioner who has left the Respondent in the barracks with the children whiles he is comfortably living in a cozy environment at the new plush house at North Kaneshie. The Respondent has been living at the barracks these two years and she is still living there, and the Petitioner is still working with the Ghana Police Service, and it has not caused his job. I am therefore inclined to believe the story of the Respondent that she is the magagia providing leadership to the women in the barracks. The petitioner after leaving the matrimonial home this past two years must have settled in his new environment and enjoying his new home which from the picture which was tendered as an exhibit is fully complete and beautiful. The Petitioner in his relief asked that custody should be granted to the Respondent and the question is where the Respondent should go and leave with these children as the Respondent will have to look for accommodation to start her life afresh in a new location or community. The petitioner propose that the property in Bortianor should be declared Trust property for the benefit of the three children. I am of the humble opinion that the Petitioner is not convinced of his own argument and that is why he will rather be comfortable with the Bortianor property declared as a trust for the children. This is because if his argument is carried through, he knows the Respondent will live there with the children, but the Respondent will not be the owner. Once again, I am of the humble opinion that in matrimonial cases, properties acquired by the parties must be distributed, according to law, such that parties who are owners of the properties can determine what they do with their portion. Therefore, in distributing these jointly acquired properties, the Petitioner will continue to have the North Kaneshie that he is in occupation and the 4-bedroom uncompleted property at Bortianor will be granted to the respondent. And it must be noted that the said property, from the picture exhibit before the court, is still far from completion and a lot of work will have to go in before it will become habitable for the Respondent and the children to move in unlike the North Kaneshie property, which is fully completed, and the Petitioner is already in occupation. Further, I am of the humble opinion that the Respondent is also entitled to financial provision. The petitioner will be ordered to pay a lump sum of GHC 70,000 to the Respondent. The petitioner is ordered to pay monthly maintenance of GHC 2500 which should be paid on the 28th of every month and will be increase 20% annually. Petitioner will also take care of the educational needs of the children and parties to share in the health care needs of the children. In conclusion the marriage of the parties is dissolved in favour of the Petitioner as same is broken down beyond reconciliation. Custody is granted to the Respondent with reasonable access to the Petitioner. The orders of the court are as stated above. The cost of GHC 10,000 will be awarded in favour of the Respondent. SGD HIS HONOUR KWABENA KODUA OBIRI-YEBOAH, CIRCUIT COURT JUDGE. 12