Tunde Vrs Abankwa [2023] GHADC 46 (27 March 2023)

CORAM: HER WORSHIP MRS. ROSEMARY EDITH HAYFORD, SITTING AS DISTRICT MAGISTRATE, DISTRICT COURT “B”, SEKONDI ON THE 27TH MARCH, 2023 __________________________________________________________________ SUIT NUMBER A4/9/2023 MAJEED ISSAH TUNDE V EUNICE A. ABANKWA - - PETITIONER RESPONDENT ------------------------------------------------------------------------------------------------------------- TIME: 09.12 AM PETITIONER RESPONDENT - - PRESENT PRESENT PETITIONER UNREPRESENTED RESPONDENT REPRESENTED BY ARABA SIKA ABAIDOO ___________________________________________________________________ JUDGMENT The Petitioner filed the instant petition against the Respondent on 13/9/2022. He prayed for the dissolution of the marriage celebrated between the parties on the 27th of August, 2018 at the Tema Community 5 Kingdom Hall. The Petitioner says the marriage has broken down beyond reconciliation as a result of the unreasonable behaviour of the Respondent. The Respondent filed an Answer on 06/10/2022 and admitted that the said marriage has indeed broken down beyond reconciliation but rather because of Petitioner’s unreasonable behaviour. She cross petitioned as follows: 1. Dissolution of the ordinance marriage celebrated between the parties on 11th August 2018 2. An order for the partitioning of matrimonial property acquired during the pendency of the marriage 3. The Petitioner be made to provide reasonable financial provision for the Respondent 4. Petitioner be mulcted in cost of the litigation. THE CASE OF THE PETITIONER The petitioner avers that the parties have been married for the past four (4) years and that after the said marriage they cohabitated at Inchaban. There are no issues of the said marriage. It is the case of the Petitioner that the Respondent is fond of leaving the matrimonial home at the slightest provocation and has currently left the matrimonial home for about nine (9) months now. Petitioner says the Respondent has often requested a divorce from him and has for a long time denied him sex. According to the Petitioner, the Respondent has severally threatened to report Petitioner to the police even at the slightest provocation. It is the case of the Petitioner that the Respondent does not respect his mother and all interventions to resolve their differences have proved futile. THE CASE OF THE RESPONDENT The Respondent on the other hand says that it is rather the behaviour of the Petitioner that makes her leave the matrimonial home. Respondent says the Petitioner developed a habit of criticizing and picking up quarrels with her and verbally abusing her and on one occasion collected the key of the matrimonial home from her and told her to go and learn sense. Respondent avers further that because of the constant arguments, criticisms and verbal abuse she began to fear and panic whenever the Petitioner arrived home from work and this affected her mental health. According to the Respondent their church elders tried to resolve the matter. The Petitioner apologized, changed for a while but went back to his old ways and even stopped eating the food prepared by the Respondent. He asked the Respondent to stop washing his clothes, slept in the sitting room which affected their sexual relationship. It is the case of the Respondent that the Petitioner resorted to going out and staying for days without coming home and would also travel without informing her. He would rather suddenly return at night or early in the morning, shower and go out again. That the Petitioner resorted to threatening her whenever she tried to wash his clothes, iron or cook for him. Respondent says that the situation affected her negatively as a result she had to leave the matrimonial home. Respondent prays for the dissolution of the marriage. Respondent avers that during the subsistence of the marriage the parties acquired two different properties at Ntaamakrom and Fijai and therefore she is entitled to half share of the said properties. The issues for determination at the end of the trial thus are 1. Whether or not the marriage between the parties has broken down beyond reconciliation 2. Whether or not the plots of Land situate at Ntaamakrom and Fijai are matrimonial Properties Under section 1(2) of the Matrimonial Causes Act, 1971 (Act 367) the sole ground for the grant of a decree of divorce is that the marriage has broken down beyond reconciliation. Section 2(1) specifies facts, one or more of which the Petitioner must establish for the purposes of showing that the marriage has broken down beyond reconciliation. For the purposes of this judgement, only the relevant section will be reproduced, that is, paragraph (b) of s. 2(1) of Act 367: - “(b) that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent; “ In his book “Family Law in Ghana” at page 228, William E. Offei explained thus:- “To obtain a divorce on the ground of cruelty (now termed ‘unreasonable behaviour’ under s. 2(1) (b) of Act 367’ – emphasis mine) it must be proved that one partner in the marriage, however mindless of the consequences, has behaved in a way which the other spouse could not in the circumstances be called upon to endure” In Mensah v Mensah [1972] 2 GLR.198, Hayfron Benjamin J held that; “The Act does not require that the behaviour should be aimed at the petitioner, or that it should cause her injury; it only requires that it should be such as to justify a finding that the petitioner cannot reasonably be expected to live with the respondent”. The evidence of the Petitioner does not differ materially from his pleadings. Petitioner says that the Respondent leaves the matrimonial home at the least “provocation” and has even been away for the past 9 months. In his witness statement Petitioner also stated the following “the Respondent is fond of leaving the matrimonial home at the slightest quarrel”. Respondent on the other hand admits that indeed she left the matrimonial home on about 3 occasions, the longest period is this current one and all the occurrences were caused by the Petitioner. On one occasion the Petitioner verbally abused her, took away their house key and told her to go to her family to learn some sense. Petitioner went to apologize later on and she came back to the matrimonial home. However, she had to leave again because the Petitioner had not changed his attitude of persistently criticizing and verbally abusing her. I wish to state exactly what the Respondent stated in paragraphs 14, 15, and 16 of her witness statement below “14. From around May 2021, the Petitioner stopped talking to me even though we lived in the same house. He stopped eating my food and asked me not to touch his clothes. He also slept in the sitting room and sexual relations between us became strained. 15. The Petitioner rather resorted to going out and staying for days without coming home and would also travel without informing me. He usually returned suddenly at night or early morning and by morning, he would be gone. 16. He would often refuse to pick my calls or call me when he travelled so I resorted to sending him text messages when he failed to pick my calls and even these, he would often refuse to respond. Attached as Exhibit 1 are image of some of these text messages sent in 2021 while we were still living together 17. During this period, the Petitioner resorted to threatening me whenever I tried to wash his clothes, iron or cook for him.” The averments above were never denied or challenged by the Respondent. A clear indication of their admission. Furthermore, during the cross-examination of the Respondent on the 10th of February 2023 the following ensued and again the Petitioner failed to challenge the Respondent on same. Q. On the 17th of February 2020 you left the matrimonial home and came back on 3/3/2020 not so A. That is not correct Q. That was the period you said you needed space, and it was at the point of settlement at the Kingdom Hall. A. It is not true, the first time I left the matrimonial home was in 2019 between June/July/August because you sacked me from the house. You also collected the keys to the house from me and my Auntie invited you and she settled the matter and she begged me to go back to the matrimonial home. Q. You abandoned the matrimonial home in August, 2020 same is recorded in your witness statement exhibit one A. That is correct – I left as a result of your behaviour / character, I was really suffering in the marriage – your utterances were bad, you use to say we are not compatible or I don’t befit you. You told me that it was because of your cousin that you got married to me else you would not have married me and sometimes the slightest thing I do results in a meeting between us and you use that to rebuke me and you lifted your land and asked me “how do I think” and you also insulted me that I am a stupid girl. Whatever I do for you, be it washing, cooking, ironing, you find fault with them” The Respondent makes very crucial averments regarding issues in their marriage that border on unreasonable behaviour yet the Petitioner did not challenge or contradict same. The effect is that he acknowledges and accepts same. In Quagraine V Adams [1981] GLR 599, CA, it was held that “where a party makes an averment and his opponent fails to cross-examine on it, the opponent will be deemed to have acknowledged, sub silentio, that averment by the failure to cross-examine”. See also Browne V Dunn (1894) 6 R 67, HLK. In TAKORADI FLOUR MIILS VRS SAMIR (2005-2006) SCGLR 882 it was held that “in law where evidence is led by a party and that evidence is not challenged by the opponent in cross-examination and the opponent did not also tender evidence to the contrary, the fact deposed to in the evidence is deemed admitted by the party against whom it is admitted and ought to be accepted by the court”. Also see IBRAHIM VRS ABUBAKARI (2001-2001)1 GLR 540. Applying the authorities above to the facts of the case, the failure of the Respondent to cross examination the Respondent on the litany of events numerated above as the evidence of the Respondent means the Petitioner acknowledges and accepts that those events actually took place. From the evidence, the Petitioner constantly verbally abused the Respondent by using unpalatable words like “stupid girl” on his own wife. The utterances that he married her because of her cousin and the fact the he said she does not befit him are quite sensitive words that can be demeaning. Petitioner even resorted to threatening the Respondent whenever she tried to wash his clothes, iron or cook. Respondent says all these affected her mental health and made her depressed and made it impossible for her to continue to stay in the matrimonial home hence her decision to leave the matrimonial home. To my mind any person going through that can take it up to a point and might lose it. I find on the evidence that it was rather the Petitioner who acted unreasonably. In Hughes v Hughes [,1973] 2 GLR 342, Sarkodee 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”. The learned Jurist William E. Offei, in his book “Family Law in Ghana”, 3rd Edition @ page 229 states that “Threat of actual personal violence may constitute cruelty. The court does not wait until such threats are carried into effect. Offensive language or false accusations of adultery or incestuous adultery, or unnatural practices may amount of cruelty”. He further states that “In the past, cruelty was a ground for divorce. However, under Act 367 it has been subsumed under “unreasonable behaviour” which is one of the grounds for divorce. On the totality of the evidence, I find that the Petitioner has behaved in such a way that the Respondent cannot reasonably be expected to live with the Respondent. In terms of not having sex, the Petitioner accuses the Respondent of using same as a weapon. This was vehemently denied by the Respondent who said that it was rather the Petitioner who refused to have sex with her as a result of which for over two years he never approached the Respondent for sex. This averment actually confirms the averment of the Respondent that she has always been the one who initiated sex. Petitioner indicated that the Respondent forced him to be wearing condoms when they married. Respondent again denied same. What actually bothers the court is that the Petitioner is 51 years old now and at the time of the marriage, he was about 47 years. Respondent on the other hand is now 39 years and was also between 35-36 years old. They both say they wanted children why then would there be the suggestion of wearing condoms if they were so desirous to have children? The Respondent says that it was only during the time she had enrolled at the university that she pleaded with the Petitioner to allow her to settle in before they start making babies and so the use of condoms was discussed. According to the Respondent, the Petitioner understood same. The Petitioner vehemently denied this claim. Both parties have given their evidence on oath. Of the two pieces of evidence, which is preferred by the court? I would find that of the Petitioner credible. This is so because the Respondent did the course for two (2) years and it is likely that, from the onset she made education take priority over everything else which was why she suggested the wearing of condoms. As regards reconciliation, both parties have testified that the elders of their church have tried on numerous occasions to resolve the parties’ differences but to no avail. In the circumstances, having inquired into the matter, it is my humble view that the marriage celebrated between the parties has broken down beyond reconciliation and that same ought to be dissolved. Whether or not the plots of Land situate at Ntaamakrom and Fijai are matrimonial Properties The Respondent in her answer and evidence stated that during the subsistence of the marriage, the parties acquired two plots of land at Eshiem and a plot at Fijai. Respondent claims they are matrimonial properties and prays for same to be partitioned. The petitioner, on the other hand, confirms that indeed there are properties, however, the property at Eshiem was acquired before the parties’ marriage. In respect of the Fijai land, it was acquired in 2021. Exhibit 4, the Indenture covering the land at Ntaamakrom (Eshiem) was tendered through the Petitioner. It can be seen from Exhibit 4 that the said land at Ntaamakrom was acquired on 20th June, 2012 way before the parties’ marriage in 2018. That being the case, it cannot be said to be a matrimonial property since it was not acquired during the subsistence of the marriage and I so find. In respect of the Fijai land, Exhibit 5 was also tendered through the Petitioner. This is in the name of the Petitioner but it was acquired during the pendency of marriage in 2021, whereas the couple’s marriage was contracted in 2018. Is the Respondent therefore entitled to a share of the matrimonial property? In the case of MENSAH v. MENSAH (2012) SCGLR 391, the Court held per Dotse JSC that “Common sense and principles of general fundamental human right would require that a person who was married to another and had performed various household chores for the other partner like keeping the home, washing and keeping dirty laundry generally clean, cooking and taking care of 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 had 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. The reason was that the acquisition of the properties had been facilitated by massive assistance that the one spouse had derived from the other.” This principle was reiterated in ARTHUR v ARTHUR (2013) SCGLR where the Supreme Court per Date Bah JSC emphasized the equality is equity principle and stated as follows: “It must be emphasized that, in the light of the ratio decidendi in MENSAH v MENSAH, it is no longer essential for a spouse to prove a contribution to the acquisition of matrimonial property. It is sufficient if the property was acquired during the subsistence of the marriage.” Thus, the Respondent need not contribute financially towards the acquisition of the marital property. The contribution could be in kind. What is important, from the authorities quoted above, is that the property in question was acquired during the subsistence of the marriage. I find from the evidence that the contribution of the Respondent was not financial but in kind. During this period the Respondent cooked, washed, and performed her duties as a wife until their issues cropped up. On the evidence, I find that the land situated at Fijai was acquired 3 years after the marriage, that was in 2021 and the marriage was contracted in 2018, clearly same was acquired during the subsistence of the marriage therefore the said property is considered matrimonial property and I so hold. Section 20 of Act 367 states as follows: ‘(1) The Court may order either party to the marriage to pay 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.’ (2) ‘Payments and conveyances under this Section may be ordered to be made in gross or instalments.’ In determining property settlement and or financial provision for a party, the Court is enjoined to be “equitable and just”. It has been held in OBENG v OBENG (2013) GMJ that what is equitable and just is a question of fact. The present and future earning capacities of the respective parties, their ages, their standard of living, and the duration of the marriage as well as the peculiar circumstances of the case are some of the factors to be taken into account of. The Petitioner is a 51-year-old part-time lecturer at Accra Technical University and the Respondent is a 39 years temporary worker serving as agent for the receiver for First Allied Bank. They have been married for over four (4) years. Having found that the Fijai property was acquired during the subsistence of the marriage and the Petitioner having contributed in kind, that is, performing her duties as wife including cooking, washing, satisfying the Respondent sexually until their issues cropped up, I find that the matrimonial property is joint property. Having regard to all the circumstances of this case I settle 50% of the matrimonial property on the respondent. The parties are however at liberty to decide on how they want the equal distribution to be done. I further make the following orders: DECISION 1. The marriage contracted between the parties herein on the 18th of August, 2018 at Tema Community 5 Kingdom Hall has broken down beyond reconciliation and the same be and is hereby dissolved. It is ordered that a decree of divorce be granted; the marriage certificate with registration number JW/TC5/01/2013 pursuant to licence No. TMA/RM/927/2018 is hereby cancelled. 2. The Fijai property is a jointly acquired matrimonial property. The Respondent is entitled to 50% of the said matrimonial property. The parties are however at liberty to decide how 3. 4. 5. they want the equal distribution to be done The Ntaamafkrom property is not a matrimonial property The Petitioner is ordered to pay the Respondent financial provision of GH₵5,000.00 Parties to bear their own costs. (SGD) H/W ROSEMARY EDITH HAYFORD (MRS) MAGISTRATE 13