Nyarko Vrs Osumanu [2023] GHADC 205 (1 March 2023)

IN THE DISTRICT MAGISTRATE COURT HELD AT NEW TAFO-AKIM ON WEDNESDAY 01-03-2023 BEFORE HER WORSHIP JOSEPHINE SARFO (MRS.) SUIT NO: A4/01/22 DORA NYARKO NEW-TAFO-AKIM PETITIONER VRS HABIB OSUMANU KUKURANTUMI RESPONDENT PARTIES - PRESENT JUDGMENT The Petitioner herein was lawfully married to the Respondent herein under the Marriage Ordinance (Cap 127) on 26th October, 2014 at the Christ Apostolic Church International, New Tafo-Akim. After the celebration of the marriage the parties cohabited at New Tafo- Akim. They have one issue, Raphael Osman who was aged 4 years at the time the Petition was filed. The Petitioner contends that the marriage has broken down beyond reconciliation as the Respondent has left the matrimonial home to live with another woman for the past 3 years to the extent that the Petitioner cannot reasonably be expected to live with him. The Petitioner therefore caused to be issued this instant Petition for the following reliefs: a. Twenty Thousand Ghana Cedis (GHC 20,000.00) as compensation. b. Settlement of fifty percent (50%) of the 2 chamber and hall self-contain and 2 bedrooms and hall. c. Order of the Court compelling Respondent to find suitable accommodation for Petitioner and her child and also to pay for the school fees, medical bills and Five Hundred Ghana Cedis (GHC 500.00) as maintenance per month for the child. To the Petitioner’s Petition, the Respondent filed an Answer on 25/08/21. The Petitioner’s case is that the marriage between the parties has broken down beyond reconciliation on account of the Respondent emotionally torturing her and causing her pain. She contends that she lives in the matrimonial home alone as the Respondent has left the matrimonial home for the past three years to live with another woman. That they put up a house i.e. two chamber and hall self-contain and two bedroom and hall apartment. She informed the Respondent that she had wanted to move in to live in the house they have put up as the rent to the matrimonial home had expired however upon informing the Respondent of her intention, he became furious and came to her shop to insult her and also made her aware that he was no more interested in the marriage. The Respondent’s case on the other hand is that it was due to the attitude put up by the Petitioner that caused him to leave the matrimonial home about one and half years ago and not three years to live with a friend. He contends that they each had a son with different partners before their marriage and despite being receptive to the presence of the Petitioner’s son in the matrimonial home, the Petitioner was hostile and unaccommodating to his son such that he had to limit his son’s visit to the matrimonial home due to the Petitioner’s attitude. That he set up the Petitioner in a container shop with a loan he contracted for her to run her hairdressing business and never once requested her to render accounts to him. That the Petitioner went to his mother’s house to invoke curses on him that he would suffer in life and would not prosper. According to the Respondent he also contracted loan to put up the house Petitioner is laying claim to without any monetary contribution from the Petitioner. That he once asked Petitioner to give him GHC 150.00 to buy cement but she refused with the excuse that the Respondent was putting up the house for his son whom he had with another woman before their marriage. The Respondent asserts that the property in question is uncompleted and he caused a caretaker to move into same to take care of some crops he had cultivated on a portion of the land. That upon the expiration of the tenancy of their matrimonial home he asked the Petitioner to look for an alternative place for him to pay for same. At the trial, the Petitioner gave evidence and called two other witnesses in support of her case. The Respondent also gave evidence but called no other witness in support of his case. The Petitioner told the court in her evidence in chief that after her marriage to the Respondent on 26th October, 2014, they both cohabited at New Tafo, Akim and have one issue by name Raphael Osman-4 years. According to the Petitioner, the Respondent has left the matrimonial home since 16th November 2019 to live with another woman at Kukurantumi. For the past three years, the Respondent has refused to have sexual intercourse with her with the claim that he is no longer interested in the marriage. That after moving out of the matrimonial home, the Respondent moved into their newly constructed house with another woman and when she complained of same, she was threatened by the Respondent not to come anywhere close to the house. The Respondent also packed and left with all the things in the matrimonial home including gas oven, television, wardrobe leaving behind only a two seater sofa. She now lives in a rented apartment with the only child of the marriage. The Respondent also abused her verbally and physically leading to her admission at the hospital on one of such occasions. The Petitioner stated that she reported the behavior of the Respondent to his family and some well-meaning friends however the Respondent maintained that he was not interested in the marriage. The Petitioner asserted that Respondent by his action has made it reasonably unbearable for her to continue with the marriage. The Petitioner told the Court during cross-examination that for the past seven years the Respondent has been giving her a monthly maintenance of GHC 200.00. It was this amount of GHC 200.00 which she used in cooking for the Respondent, their son and herself. She contended that despite not contributing money to put up the house, she supported the Respondent in various ways such as sending her apprentices to fetch water for the labourers on site and also taking care of their son when he was an infant as the Respondent made her to believe that he was putting up the house for the benefit of their son. She also supported the maintenance of the home by paying part of the utility bills. She conceded that the Respondent also helped set her up in hairdressing vocation by opening a shop for her. The Petitioner’s first witness, Keziah Nyarko, informed the Court that she is a sister to the Petitioner and that the parties lived together from 2005 until they got married under the ordinance in the year 2014. She asserted that the Petitioner took care of Respondent who was then unemployed from 2005 to 2008 till the Respondent had a contract job with the Cocoa Research Institute of Ghana. She stated that the Respondent has moved out of the matrimonial home to live with another woman in the house put up by the parties. That all attempts at reconciling the parties proved futile as the Respondent insisted he was no longer interested in the marriage. She conceded during cross-examination that the Respondent set up a cosmetic shop for the Petitioner and subsequently moved her hairdressing salon from a kiosk to a container. The Petitioner’s second witness, Boateng Adarkwah Kwabena, informed the Court that he is an elder at the Christ Apostolic Church International, New Tafo, Akim. That there was an attempt by the elders of the Church and family of both parties to reconcile the parties which proved futile. The Respondent in his evidence in chief stated that he lived together with the Petitioner for some years before they contracted the ordinance marriage. According to him, the Petitioner has been exhibiting some behavior which made it difficult for him to continue with the marriage. That they each had a child from their previous relationships before their marriage. The Petitioner has been very hostile and unreceptive to the presence of his son who is also invalid in the matrimonial home with the excuse that the Respondent’s son stands to inherit the house the parties have put up together to the consternation of the Respondent. The Petitioner invokes curses on him at the slightest provocation and once cursed him that he will be stricken with a disease and become bedridden. According to the Respondent, the in-laws of Petitioner have also been at the receiving end of Petitioner’s incessant invocation of curses as she once went Respondent’s mother’s house to invoke curses on the Respondent. The Respondent contended that their marital issues escalated in the last two years however their families made attempt at resolving some of these issues all to no avail. He left the matrimonial home close to a year now and now lives with a friend due to the negative attitude of the Petitioner. According to the Respondent, Petitioner never heeded to any of his advice to exercise financial frugality to save part of her earnings to inject into the expansion of her hairdressing business. The Respondent contended that he has lost interest in the marriage because the Petitioner failed to disclose a relationship she had in the past with one of his colleagues from work by name Prosper Daglo prior to the celebration of their marriage. That it was only until recently that the Petitioner disclosed that she used to be in a relationship with that colleague and the constant thought of the fact his colleague has had sexual intercourse with the Petitioner caused him to lose interest in having any form of intimacy with the Petitioner. The Respondent during cross-examination stated he left the matrimonial home about two and half years ago and that the house was also built after the parties got married. ISSUES Emanating from the pleadings and facts of this case, the following issues were set down by the Court for trial: 1. Whether or not the marriage between the parties has broken down beyond reconciliation? 2. Whether or not all properties identified by the parties were acquired during the subsistence of the marriage and whichever way how to distribute the said properties? 3. Whether or not the Petitioner is entitled to be granted a lump sum payment of GHC 20,000.00 as alimony for the divorce? 4. Whether or not the Petitioner ought to be granted custody of the only child of the marriage, Raphael Osman? 5. Whether or not the Respondent ought to be ordered to pay a monthly sum of GHC 500.00 to the Petitioner as maintenance for the only child of the marriage? 6. Whether or not the Respondent ought to be ordered to pay all educational and medical expenses in relation to the only child of the marriage? 7. Whether or not the Respondent ought to be ordered to provide a suitable accommodation for the Petitioner and the only child of the marriage? Sections 10,11 and 14 of the Evidence Act, 1975 (NRCD 323) puts the burden of proof for the resolution of the issues on the Petitioner. A person who makes an averment or assertion has the burden to establish that his averment or assertion is true. He does not discharge this burden unless he leads admissible and credible evidence from which the fact or facts he asserts can properly and safely be inferred. See Mojolagbe v Larbi [1959] GLR 190. The sole ground for granting a petition for divorce shall be that the marriage has broken down beyond reconciliation. Under Section 1(2) of the Matrimonial Causes Act, 1971, (hereinafter called Act 367) the Petitioner would have to satisfy the Court that the marriage has broken down beyond reconciliation. Section 2 of Act 367 provides that, “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 Respondent consents to the grant of a decree of divorce provided that such 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 notwithstanding the refusal; 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; f) That the parties to the marriage have after diligent effort, been unable to reconcile their differences”. The evidence before this Court has established that the parties have not lived together as husband and wife for more than two years now. Each of them has accused the other of serious harassment and I can easily gather from their respective case that there is a serious friction in the marriage such that the continuity of the union will not augur well for either party. More so, the evidence before this Court establishes that all efforts to reconcile the parties have proved futile. I hereby declare the marriage as having broken down beyond reconciliation. I accordingly decree the dissolution of the ordinance marriage contracted between the parties on 26/10/2014. Having come to the conclusion that the marriage between the parties has broken down beyond reconciliation, the Court will now consider the distribution of the property acquired during the marriage. In MENSAH V MENSAH [1998-99] SCGLR 350, the Supreme Court speaking through Bamford Addo JSC (as she then was) at page 355 held: “the principle that property jointly acquired during marriage becomes joint property of the parties applies and such property should be shared equally on divorce; because the ordinary incidence of commerce has no application in marital relations between husband and wife who jointly acquired property during marriage.” The Petitioner in this case is praying the Court for a fifty percent share in the house (two chamber and hall self-contain and 2bedroom and hall). This house the Respondent conceded was built during the subsistence of the marriage and thus becomes a joint property of the parties which must be shared equally on divorce per the decision in Mensah v Mensah supra. The Respondent contended that the Petitioner is not entitled to any share since she did not contribute financially towards the construction. The Petitioner on the other hand asserted that based upon an agreement between the parties she used her money to take care of the home whilst the Respondent injected his money into the construction of the building. She also contended that together with her apprentices they fetched water for the labourers during the construction. The Respondent contended that the apprentices fetched water on only one occasion and they were paid for their service which assertion the Petitioner denied. The foregoing notwithstanding, the properties in question were acquired during the subsistence of the marriage, the Petitioner would be entitled to a share of same unless the Respondent was able to prove separate ownership. The Supreme Court in the case of ARTHUR V ARTHUR (No.1)[2013-2014] SCGLR 543 held that properties acquired during the subsistence of marriage is presumed to be jointly acquired property. However, the presumption is rebutted under certain instances, particularly where the other spouse acquired the property by gift or through succession. In the same vein, where a party takes a loan to develop his self-acquired plot during the subsistence of the marriage, the property shall not be considered a family property until the loan is repaid. The Respondent contended that he acquired a loan to put up the properties in contention. The Respondent did not adduce any evidence to prove that indeed he took a loan to put up the properties under contention which could have shifted the evidential burden onto the Petitioner to introduce any evidence of her contribution to the acquisition of the properties. In the absence of any such evidence proving separate ownership of the properties, it is the view of the Court that the duties performed by the Petitioner during the marriage such as cooking for the family, cleaning and nurturing the child of the marriage are enough contribution that should merit her a share in the properties acquired during the subsistence of the marriage. I am however of the opinion that Petitioner is not entitled to an absolute fifty percent and accordingly, I order that one chamber and hall self-contained or the value of it in monetary form be settled in favour of the Petitioner. PAYMENT OF COMPENSATION The Petitioner has prayed the Court for GHC 20,000.00 as alimony for the divorce. Section 19 of Act 367 states that, “the Court may, whenever it thinks just and equitable award maintenance pending suit or financial provision to either party to the marriage, but no order pending suit or financial provision shall be made until the court has considered the standard of living of the parties and their circumstances”. Factors to be considered in awarding financial provision include the following: the income earning capacity, property and other financial resources which each of the parties has or is likely to have in the forseeable future; the financial needs, obligations, and responsibilities each of the parties has or is likely to have in the forseeable future; and the standard of living enjoyed by the family before the breakdown of the marriage. The age and duration of the marriage and the existence of children. The Court must also take into consideration the ability of the spouse who will be required to make the payment. The evidence led has established that both parties have been supportive of each other and has each benefited from the services of the other. The Petitioner filed her affidavit of means and averred that she earns GHC 300.00 monthly with an expenditure of GHC 250.00. The Respondent also deposed to in his affidavit of means that earns GHC 2000.00 with a monthly expenditure of GHC 1,436.00. Between the two parties, the Respondent is better positioned to provide financial provision for the Petitioner. The Court is however of the opinion that the sum of GHC 20,000.00 being demanded by the Petitioner is on the high especially having regard to the present and future responsibilities of the Respondent. In his affidavit of means, he deposed to the fact in addition to payment of maintenance, he also pays for the transport, and feeding fee of the only child of the marriage. These are all recurring responsibilities the Respondent would have to perform till the child attains the age of majority or completes the post-secondary school education. I thus deem it fair and just to award the Petitioner a lump sum of GHC 5,000.00 as alimony for the divorce. CUSTODY OF THE CHILD Section 22 of Act 367 empowers the Court to make any orders consequential to the child’s welfare which relates to custody, right of access, education and maintenance. Section 2 of The Children’s Act, 1998 (Act 560) also provides that the best interest of the child shall be the primary consideration by any Court, person, institution or any other body in a matter concerned with the child. In deciding what is in the best interest of the child, the conduct of the parents and in this case the pattern of life set up by them during cohabitation are some of the important factors to be considered. The evidence before the Court shows that Respondent left the matrimonial home two years ago and the Petitioner lives with the only child of the marriage in an apartment rented by the Respondent. Considering the age of the child who will be about 6 years old now and the fact that the Respondent has not cross- petitioned for his custody, I award custody of Raphael Osman to the Petitioner with reasonable access given to the Respondent. By this, it is ordered that the parties shall arrange for the child to visit the Respondent during weekends and vacation periods. On the issue of maintenance, the Petitioner has prayed the Court for an order of maintenance of GHC 500.00 monthly to be paid by the Respondent to the Petitioner for the maintenance of the only child of the marriage. From the evidence before this Court which was not controverted by the Petitioner, the Respondent presently has an educational policy for the child. He pays the feeding fees and transport for the child. The child is also due to undergo a surgical procedure due to a medical condition which cost will be solely borne by the Respondent. Considering the present liabilities of the Respondent and the fact that these are recurring, I will order for a monthly maintenance of GHC 350.00 subject to periodic review to be paid by the Respondent to the Petitioner for the only child of the marriage instead of the GHC 500.00 Petitioner prayed for. In addition, the Respondent is ordered to pay all educational and medical expenses in relation to the only child of the marriage. On the issue of accommodation, since the marriage has been dissolved, it is not the responsibility of the Respondent to provide accommodation for the Petitioner. It is however, the responsibility of the Respondent to provide accommodation for the only child of the marriage until he attains the age of 18 years. The child is about 6 years old and therefore cannot be on his own, custody has been granted to the Petitioner. In view of that, a decent accommodation ought to be provided for the Petitioner and the child by the Respondent until the child attains the age of 18 years when he will be capable of deciding where he wants to be. Consequently, the Respondent is ordered to provide a chamber and hall self-contained accommodation for the Petitioner and the child until the child attains the age of 18 years. DECISION I find from the evidence led before this Court that the marriage between the parties has broken down beyond reconciliation. I therefore decree that the marriage celebrated between the parties on 26/10/14 be dissolved. The marriage between the parties is hereby dissolved. I proceed to make the following consequential orders: 1. One chamber and hall self-contained or the value of it in monetary form be settled in favour of the Petitioner by the Respondent. 2. The Respondent is to pay to the Petitioner GHC 5,000.00 as alimony. 3. Custody of Raphael Osman is awarded to Petitioner with reasonable access granted to the Respondent. 4. The Respondent shall maintain the child with GHC 350.00 per month which shall be reviewed upwards on yearly basis in addition to his educational and medical expenses. 5. The Respondent shall provide for the benefit of the Petitioner and the child a chamber and hall self-contained accommodation until the child attains the age of 18 years. 6. I will make no order as to costs. Each party to bear the own costs. H/W JOSEPHINE SARFO (MRS.) SGD 13