Asante Vrs Asante [2023] GHACC 217 (20 April 2023)

IN THE CIRCUIT COURT HELD AT AGONA SWEDRU ON THURSDAY THE 20TH DAY OF APRIL, 2023 BEFORE HIS HON. JONATHAN D. NUNOO ESQ., CIRCUIT JUDGE. MARY ASANTE VS. SAMUEL K. ASANTE Parties present. SUIT NO: A4/03/21 PETITIONER RESPONDENT JUDGMENT The Petitioner by her amended petition is seeking the following reliefs in her petition to this Court: i. An order of the dissolving the marriage on 26th day of July 2020. ii. That the Petitioner be granted custody of the child Victoria Akua Asante with reasonable access to the Respondent. iii. An order for a lump sum of GHC30,000.00 in favour of the Petitioner as alimony. iv. An order for the valuation of all structures on the land acquired by the parties comprising the matrimonial home and the uncompleted structures for Judicial Sale and the proceeds divided between the parties on 50-50 basis. The central averments that the Petitioner has stated in the petition for the above reliefs are as follows: That the marriage between the parties has broken down beyond reconciliation. That the Respondent had behaved unreasonably. The particulars of unreasonable behaviour are: a. That the Respondent has on several occasions informed the Petitioner that he is no longer interested in their marriage and on many occasions has requested the Petitioner to pack her belongings and leave the matrimonial house. b. That the behaviour of the Respondent towards the Petitioner has changed ever since they came to Ghana. c. That on 13th July, 2019 the Respondent threatened the Petitioner that she should signed her death warrant if she does set foot in the matrimonial house. d. That the Petitioner reported the matter to the police at Agona Swedru, the Respondent was subsequently arrested but his uncle withdrew the matter to settle it amicably at home. e. That for fear of her life, Petitioner has parked her belongings from the matrimonial home f. That the Respondent made it clear to his uncle that he is no more interested in the marriage and that he is prepared for divorce since Petitioner has attained her menopausal age. g. The Respondent has ceased to eat from. (Sic) h. That the Petitioner finds it unreasonably to live with the Respondent as husband and wife. i. That during the subsistence of the marriage, parties acquired a plot of land at Yabeem in the vicinity of Agona Swedru and put up two chamber and hall and adjacent to the matrimonial home three stores chamber and hall self-contain. j. That all efforts by both families of the parties particularly from the family of the Petitioner’s had proofed futile for the parties to reconcile their differences. The Respondent filed an answer and cross Petition. The Respondent admitted to the averments of the Petitioner from paragraphs 1 to 7 and denied the rest of the averments. In paragraph 2 he stated that there has not been any serious issues which has broken down the marriage beyond reconciliation as alleged by the Petitioner. The Respondent stated in paragraph 4 of his answer that if the situation has been so bad as alleged by the Petitioner the couple would not have stayed together in Ghana from 2010 to date, she would have gone back to Nigeria after realising Respondent’s change in behaviour; all that Petitioner is saying is an afterthought. Respondent stated in paragraph 5 that there has not been any dispute which could not be settled as alleged and that the couple have lived under the same roof in Ghana for the past 10 years. In paragraph 8 the Respondent avers that the compensation from the Government of Nigeria was made in respect of the two separate apartments and the Petitioner being a Nigerian used her home advantage to force Respondent to share the money equally between the parties. In paragraph 9 the Respondent further avers that he became afraid of her and rushed home in 2010 to protect his side of the money and invested in the building she is referring to while the Petitioner stayed back in Nigeria and joined the Respondent in later part of 2010 after which she completely wasted all her part of the compensation. In paragraph 10 he has stated that he is a good man to have accepted Petitioner back in his house and that she has no share in the present property. The Respondent has indicated in paragraph 11 that he has not misconducted himself in anyway and that he has been very responsible throughout his marital life and as a result, he has taken good care of all the 5 issues of the marriage as all of him are working now except the last one who is SHS 3. The Respondent in paragraph 12 states that the Petitioner has brainwashed all the adult children to her side and they have secretly built a house for her in Accra where she currently lives with them. In paragraph 13 the Respondent states that he has no intention to divorce his wife and that she should come home with the children. But should Respondent fail to convince the court to dismiss Petitioner’s claim then the Respondent will have no option to cross Petitioner. The Respondent stated in paragraph 14 that it is the Petitioner who has strangely deserted the matrimonial house for no apparent reasons to go and settle with the children in Accra in a secret location. In paragraph 15 the Respondent indicates that he had to sell his private vehicle to fly one of the children abroad to seek greener pastures but now that he has nothing, Petitioner has managed to brain wash them all to her advantage and as if that is not enough she drags Respondent to Court for the sharing of his only property he has. In Paragraph 16, Respondent alleges that the Petitioner has denied him sex for a year now before deserting the matrimonial home on grounds that the daughter Elizabeth Ama Asantewaa who is in abroad has issued a visa for Petitioner to join her so she will not sleep with Respondent to soil her medical records. In paragraph 17 the Respondent further alleges that it is Petitioner who should rather compensate him for disserting the matrimonial home without justification. In paragraph 18 the Respondent states that Petitioner is not entitled to any share of the disputed property because she has already had her share and misused the money way back in Nigeria. The Respondent claims the following reliefs: a. An order for the dissolution of the marriage. b. Custody of the last issue, Victoria Akua Asantewaa who is still under the care of the Respondent. c. Alimony of GHC30,000.00. The Petitioner filed another long reply to the answer to the Petition and cross Petition. She stated in paragraph 1 that she denies paragraph 2 of the answer and will say that since the parties occupied that self-acquired matrimonial home. The said marriage had been bedevilled with problems. That in response to paragraph 3 of the answer she repeats paragraph 3 of the Petition. Petitioner denies paragraph 4 of the answer and will say such problems had been to WAJU (DOVSU) on three occasions and it is out of love for the children I had to stay in the marriage. In response to paragraph 12, 13, 14 and 15 of the answer will repeat paragraph 12, 13, 14 and 15 and will say the threats were so intense that she had to leave the matrimonial home at night for her own safety. In paragraphs 5 the Petitioner say the Respondent for 2 years had ceased to eat food prepared by her, does not stay home often and when he does come in the night. In paragraph 6, Petitioner denies paragraph 8 of the answer and will say that the separation of the compensation came about when the parties agreed that the ownership of the house must be split so that parties will have more compensation paid to them. In paragraph 7 the Petitioner alleges that after the compensation was paid in December 2009 and the Respondent had his share, he travelled to Ghana to prepare the grounds for the family to relocate to Ghana. In paragraph 8, the Petitioner will say that two months later Petitioner and he rest of the children came to Ghana to find an empty rented room where Petitioner had to release part of her share of the compensation to furnish the room and used the remaining monies to start trading, meanwhile Respondent’s share had been spent on unknown reasons. In paragraph 9 Petitioner denies paragraph 9 of the answer and will say two months after Respondent had left Nigeria with the first born, the petitioner in or about February 2010 joined the Respondent and the rest of the children with her Compensation intact. In paragraph 10 she denies paragraph 10 of the answer and will say parties lived in rented house in the vicinity of Pipe Tank Agona Swedru for a period of two years but then the matrimonial home had not been built. Petitioner in paragraph 11 say that the land for which the matrimonial property is situate on was acquired on 15th day of March 2011, 13 months after the Petitioner and the children had re-located to Ghana. Petitioner in paragraph 12 denies paragraphs 11 and 13 of the answer. Petitioner in paragraph 13 denies paragraph 13 and will say the chamber and hall and uncompleted storey building were built with my financial and physical support. In paragraph 14 the Petitioner further denied paragraph 13 will say that our adult children also supported with funds in putting up the storey building. In paragraph 15 the Petitioner will say that the said child went to abroad solely sponsored by husband of the child and that this child is always in constant communication with the parties herein. The law is that to enable a court to decide a case one way or the other, each party to the suit must adduce evidence on the issues to the prescribed standard as provided by statute. This position is buttressed by various provisions of the evidence Act 1975 (NRCD 323). Section 14 of the Act provides that “Except as otherwise provided by law, unless and until it is shifted a party has the burden of persuasion as to each fact the existence or non- existence of which is essential to the claim or defence he is asserting” the claim or defence he is asserting” The burden of providing evidence as well as burden of persuasion is on both parties and the standard required to discharge the burden of persuasion is “preponderance of probabilities” see Section 12 (1) of the Act. Section 12 (2) of the same Act defines “preponderance of probabilities” to mean degree of certainty of belief in mind of the tribunal of fact or the court by which it is convinced that the existence of a fact is more probable than its non-existence”. Section 11 (4) of evidence Act (NRCD323) provides that a burden of providing evidence is discharge when a party provides sufficient evidence, so that on all the evidence a reasonable mind could conclude that the existence of a fact is more probable than its non- existence. The position of the Defendant had been more appropriately described by Brobbey JSC in the case of IN RE ASHALLEY BOTWE LANDS: ADJETEY AGBOSU & ORS. VRS. KOTEY & ORS. [2003 – 2004] SCGLR 420. In his supporting opinion Brobbey JSC stated of a Defendant at a trial in Holding 5 as follows: “The effect of Sections 11(1) and 14 and similar Sections in the Evidence Decree 1975 may be described as follows: A litigant who is a Defendant in a civil case does not need to prove anything. The Plaintiff who took the Defendant to court has to prove what he claims he is entitled to from the Defendant. At the same time if the court has to make a determination of a fact or of an issue, and that determination depends on evaluation of facts and evidence, the Defendant must realize that the determination cannot be made on nothing. If the Defendant desires the determination to be made in his favour then he has the duty to help his own cause or case by adducing before the court such facts or evidence that will induce the determination to be made in his favour. The logical sequel to this is that if he leads no such facts or evidence, the court will be left with no choice but to evaluate the entire case on the basis of the evidence before the court, which may turn out to be only the evidence of the Plaintiff. If the court chooses to believe the only evidence on record, the Plaintiff may win and the Defendant may lose…” The case of the Petitioner is that the marriage has broken down beyond reconciliation and that the Respondent has in several occasions told her he is no longer interested in the marriage and has many occasions requested her to pack her belongings and leave the matrimonial home. She claimed that ever since they arrived in Ghana the behaviour of the Respondent has changed for the worse towards her and that on 13th July 2019 she was threatened by the Respondent telling her to sign her death warrant if she dare set foot in the matrimonial home and she reported the matter to the police where he was arrested but his uncle prevailed on her to withdraw the matter for amicable settlement. She stated the threats were repeated and she packed her belongs from the house because she fears for her life. Subsequently the Respondent made it clear to his uncle that he is no longer interested in the marriage and that he is prepared for divorce since she has attained her menopausal age. It her case that Respondent has cease eating her food so she finds it unreasonable to live with the Respondent as husband and wife. She stated further that they have acquired plot of land at Yabem, Agona Swedru and they have put up two chamber and hall as matrimonial home and adjacent to the matrimonial home they have three other stores and another self-container structure. She concluded he case all efforts by both families to resolve the issues has proved futile. The gist of the Respondent case is that he met the Petitioner in Nigeria and he had put up two (2) chamber and hall which was pulled down by the government of Nigeria and compensation paid to them which was shared equally by them and he brought his share to Ghana and put up the building. According to him the Petitioner said she will not come to Ghana but when she squandered her share of the compensation she joined him with the rest of the children. The Respondent said he looked after the family when they came but the Petitioner deserted the matrimonial home without apparent reasons. The Petitioner called one witness who testified for her. The Respondent filed a witness statement for one Sikiratu Raji but was not called to testify and no reason was assigned for her absence. The petitioner tendered an indenture and the Respondent tendered two Exhibits, two receipts, one for the money he received from their daughter in Cyprus and the other receipt a photocopy of money collected from him by one Kwame Ocran GHC2,300.00 being part payment of half plot of Seth Kwame Ocran’s land. The issues in this matter are whether or not the marriage has broken down beyond reconciliation and whether the building was acquired during the subsistence of the marriage and whether the Petitioner is entitled to her reliefs. Whether or not the Respondent is entitled to his reliefs. I will deal with the issues in the manner they appear starting with whether or not the marriage has broken down beyond reconciliation? Section 1 of Matrimonial Causes Act (Act 371) provides as follows: A petition for divorce may be presented to the court by either party to a marriage. Section (2) provides that the sole ground for granting a petition for divorce shall be that the marriage has broken down beyond reconciliation. 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 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; 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. On a petition for divorce it shall be the duty of the court to inquire, so far as is reasonable, into the facts alleged by the petitioner and the respondent. Notwithstanding that the court finds the existence of one or more of the facts specified in subsection (1), the court shall not grant a petition for divorce unless it is satisfied, on all the evidence that the marriage has broken down beyond reconciliation Marriage can only be dissolved only when the court conclude that the marriage has broken down beyond reasonable reconciliation per the provisions in the Matrimonial Causes Act referred to supra. In this case the Petitioner has left the matrimonial home and there is evidence that they have been having issue in the marriage. The parties agreed that they have come to the District Court with issues in the marriage. Whilst the Petitioner states that the Respondent has been assaulting her and has been hospitalised. The Respondent denies the assault and alleges that it is the Petitioner who is violent and whenever there is any least misunderstanding the Petitioner can throw anything she could lay hands on at him. The Petitioner said she has caused the arrest of the Respondent due to the threat Respondent made on her life and Respondent’s uncle prevailed on her to withdraw the case to be settle at home. The Petitioner did not tender any police report to buttress her claim, neither did she tender any hospital report in evidence of her hospitalisation. She did not call the uncle of the Respondent also to testify. PW1 did not testify about any assault or threat of death but stated that the couple are always quarrelling and they always intervene in settling the matter between them. Under cross examination Pw1 she advice the Petitioner not to leave the marriage. The Petitioner also said under cross examination that the Respondent has been going after small girls and that her children are aware of that but in her evidence in chief, she did say any of the things she said under cross examination and she did not plead any of them. The only thing she said is that the Respondent issued a threat that she should sign her death warrant if she dare set foot in the matrimonial home and the threat was repeated. She also said the Respondent has not eaten her food in the past two (2) years. There is nowhere in the petition and reply that the Petitioner stated that the Respondent assaulted her and was hospitalized thrice in three different hospitals. She claim her family came down from Nigeria to settle their differences but the Respondent did not make himself available and that the Respondent has repeatedly told her and his uncle that he is no longer interested in the marriage but as I have said she did not call the uncle to testify. The Respondent was the one who has been consistent that he wants to save the marriage and I believe him because of way the Petitioner went about this issue. The Petitioner said the Respondent has suggested that they use one of their children for money rituals but she did not leave such a person but rather followed him to Ghana Agona Swedru and live with him for over ten years. This is a serious allegation and she should be afraid of the Petitioner this and other things that the Petitioner said made me not to believe any of her stories that the Respondent is the cause of the breakdown of the marriage but rather she for reasons best known to her want to terminate the marriage. There is evidence of lack of sex between the parties and the Respondent not eating from the Petitioner. I would not have brought this piece of evidence in but both parties are seeking monetary compensation of GHC30,000 and they must establish why they should be granted such relief or not. Such relief if to be granted in my view should be premised on who caused the marriage to collapse. Stated differently whose conduct brought the marriage to its knees since the marriage is a contract. It does appear to me that the Petitioner want to opt out of the marriage as I have said I am not saying that there is no issues in the marriage but she just want to leave the marriage. The respondent though his lawyer have tried to let the petitioner change her stand but she has been so adamant yet she was not able to establish any of the serious allegation she made against the Respondent. Pw1 is a friend of the Petitioner so if she has been assaulted and hospitalized she should be aware of it. It my respectful conclusion in applying the law to the facts and the evidence adduced that that the parties to the marriage have, after diligent effort, been unable to reconcile their differences.and the marriage has therefore broken down beyond reconciliation and it is dissolved Having dismissed the Petitioner’s relief Ghc30,000.00 against the Respondent the as a necessary course is to see whether the Respondent’s claim of GHC30,000.00 against the Petitioner in the cross petition is justified but it appears to me that there is no cogent evidence adduced by the Respondent also to warrant that relief, if he was not doing anything untoward I do not think they will be here. He admitted that the Petitioner has been throwing missiles at him at the least misunderstanding. The question is what brings about the misunderstanding complained of? If I understand the Respondent, the Petitioner when provoked is difficult to appease but left to him alone they could patch up their differences From the evidence adduced I do not think the Respondent is serious about his relief of Ghc30,000.00 he is seeking I am of the firm belief that she put up that claim because the Petitioner has stated that relief in her petition. I can see that he only put the same amount on his cross petition for the sake of it, Both parties did not even speak about this relief in their evidence in chief. It is the Petitioner who attempted to give evidence in that regard under cross examination. if counsel for Respondent has not touched on it, I do not think the Petitioner would have said anything about it since that did not find space in her evidence in chief. The respondent claim of GHc30.000.00 is also dismissed The relief of GHC30,000.00 being claimed by the parties against each other is also dismissed because they have failed to justify their claims. In respect of the custody of the last child, that question has become moot because the child is more than 19 years at the time of the judgment and she can decide for herself which of the parties she want to be with. I will at this stage also touch on the evidence that the Petitioner has brainwashed the children and they do not want to have anything to do with their father. These children are all adults and well educated and they are to be blamed for their actions and inactions what they do and not do for the Respondent should not be attributed to the Petitioner. Now I will turn my attention to the property in issue. The law is that properties acquired during the subsistence of the marriage are matrimonial property and must be shared in either equal bases or on equitable grounds depending on the case before the court. It is stated by Date-Bah JSC in Patience Arthur V Mosses Arthur civil Appeal No J4/19/2013 dated 26th July, 2013, affirming the principle enunciated in the case of Mensah V Mensah [2012] 46 GMJ2 that marital property to be understood as property acquired by the spouses during the marriage irrespective of whether the spouse has made contribution to its acquisition. Arthur V Arthur supra accordingly, states that in the light of the ratio decidendi in Mensah V Mensah supra it is no longer essential for a spouse to prove a contribution to the acquisition of marital property. It is sufficient if the property was acquired during the subsistence of the marriage. Article 22 (2) (b) of the 1992 constitution provides that: (b) Assets which are jointly acquired during marriage shall be distributed equitably between the spouses upon dissolution of the marriage. It has been held by Date –Bah JSC in Boafo v. Boafo [2005-2006] SCGLR that equality principle laid down in Mensah v Mensah [1998-99] SCGLR may be waived if in the circumstances of a particular case, the equities if the case would demand otherwise. See also Christiana Quartson V Pious Pope Quartson supra. See also the majority decision in Agyei v. Agyei J4 6 of 2021 (2021) GHASC 5 21 April 2021). In the case of Majolagbe V Larbi 1959 GLR 190 at 192 the court stated as follows; Proof in law is the establishment of facts by proper legal means, when a party makes an averment capable of proof in some positive way e.g. by producing document description of thing reference to other facts instances or circumstances and his averment is denied, he does not prove it by merely going into the witness box and repeating the averments on oath or having it repeated on oath by his witness. He proves it by producing other evidence of facts and circumstance, from which the court can be satisfied that what he avers is true”. It is also stated in Christiana Quartson V Pious Pope Quartson Civil Appeal No JA/8/2012 dated 31st October, 2012 by Ansah JSC that the institution of marriage is not one to which the ordinary incidents of commerce would apply. According Black’s law Dictionary 8th Edition equitable distribution Family Law. The division of marital property by a court in divorce proceedings under statutory guidelines that provide for a fair but not necessarily equal, allocation of the property between the spouses. With equitable distribution when marriage ends in divorce, property acquired during the marriage is divided equitably between the spouses regardless of who holds title to the property. The courts consider many factors in awarding property, including a spouse‘s monetary contribution, nonmonetary assistance to a spouse’s career or earning potential, the efforts of each spouse during the marriage and the length of the marriage. The court may take into account the relative earning capacity of the spouses. In this case the property was acquired during the subsistence of the marriage but the question is whether it is fair equitable and just to share the properties between the parties in order words can the court declare this property as marital property and share it between the parties in the light of the evidence adduced and the facts of the case The evidence adduced which are not in doubt or challenge were that the parties domiciled in Lagos Nigerian and they had property in Nigeria which was affected by a demolition exercise and compensation paid and money was shared by the parties equally and in fact the money was paid into individual account of the parties. The Respondent said it is the Petitioner who was able to influence the payment of the compensation separately because she is a Nigerian to quote him she used home advantage but the Petitioner says that the splitting of the property into their respective names was for them to get more compensation. The Respondent said he used his share to put up the building and that the Petitioner sat back in Nigeria and squandered her money before she came down to Ghana and that she was a good person to have even accepted the petition back. The evidence in respect of the documents covering the land is in the name of the children, they signed as purchasers of the land and the Petitioner signed as a witness. I do not know how this came about but the Respondent said he bought the land and was putting up the building but he used the children names because he intended the property to be for his children. The Petitioner claimed she was instrumental in the acquisition of the land and the building and that she contributed financially and physically. She has stated in her reply that the adult children also contributed financially and physically to the acquisition of the storey building. These averment can be found in paragraph 12 and 14 of the reply. The Petitioner said that she came to Ghana with her compensation intact and met a rented empty room and she released part of her money to be used to furnish the room and she started business with what was left According to her it is the Respondent who can tell what he used his share of the compensation for, under cross examination she said the Respondent used his money to gamble. If what the Petitioner is saying is true, then she is telling the court that the building under contention was put up from the profits she made from her business because she said the Respondent has squandered all his compensation. Since she is the making the assertion that the Respondent used all his compensation gambling and on girls and her own share was used to furnish an empty room and used what was left in business she bears the onus to proof that because as I said her evidence seem to suggest that the Respondent had nothing when she came to Ghana with one of the children. The Respondent denied the assertion of the Petitioner and equally said the Petitioner came with nothing and he even stood as a guarantor for loan for the Petitioner to start her business. This pieces of evidence adduced by the parties is all against oath because none of the parties was able to call any witness to corroborate their assertion, DW1 did not speak about how the building was acquired. She only said that the couple came to Ghana in 2010 and the matrimonial home began two years after the parties had settled in Ghana. The evidence suggest that it is only the matrimonial home that has been completed, the storey building and three stores as well as what was said to be structures are uncompleted. The deed of transfer is in the name of the Respondent and there is a receipt of payment of GHC2,300.00 to one Seth Kwame Ocran by the Respondent which is payment of the land in dispute the said Seth Kwame Ocran was the one who was the transferor and the Respondent a transferee in the deed of transfer. The deed of transfer was made in 15th March 2011 and the payment of the GHC2,300.00 was made 9th November 2009. The Respondent said he came to Ghana and Petitioner called him when the compensation was ready and he went for it. He said he bought the land and started the building and by five days’ time he has taken the building to lintel level. So how is this court able to tell know which of the rival stories of the parties is true? None of the parties was able to convince the court by the evidence they adduced that the compensation they got went into the acquisition of the building under contention. The Respondent said he bought the land and started the building and that the Petitioner knows nothing about the building but there is evidence that the building is still on going. Could it be that when the Petitioner came the Respondent has started the building and when she started her business with what was left (after furnishing the room) she started making profits and there after started to contribute toward the project? If that was her case it would have learnt credence to her claims but that is not what she said. She painted a gloomy picture of the Respondent. She said the Respondent rented the room on the day they were supposed to come to Ghana and when they came the Respondent asked her of her compensation and she gave it to the Respondent and when she ask the Respondent of his own share the answer she got is she asking him. The Petitioner’s story is no doubt hard to believe and I will demonstrate shortly. I have said that if her case was that when she came the Respondent has started the building project and when she started working, she contributed to the project financially and physically that would have made sense to me or that is was when she came that the project started as she had claimed and that through her work she contributed towards the project that will be appealing. The case of the Respondent was that the Petitioner did not bring any money to Ghana and that she squandered her share of the compensation in Nigeria before she came to Ghana so she has no share in this property because she had already benefited from the property they both had in Nigeria. The evidence adduced suggest to me that if the Petitioner did not even bring anything to Ghana she started working in Ghana with the support of the Respondent who guarantee a loan for her”. This is a fact born out of the evidence. The document that the Petitioner said she signed with her children covering the land was not tendered but there is admission by the Respondent that the Petitioner signed the document as a witness and her children signed as purchasers I do not know whether this particular document was made at the time that the land was being acquired but it seems to me that the Respondent might have acquired the land with the knowledge of the Petitioner and her children that was why he made them as purchasers of the land. The evidence adduced by the Petitioner did not indicate that it was her share of the compensation she put in the acquisition of the building in question but it seems to me from the evidence that she contributed to the acquisition of the property when she came to Ghana though the Respondent has paid for the land before she came because the receipt of payment precedes the preparation of the indenture she relied on. The Petitioner tried to demonstrate how the land was acquired but I am tempted not to believe her because of the contradictions in her evidence and the documents covering the land. She only took advantage of the indenture bearing her signature as a witness and the children as purchasers to claim that she knew how the land was acquired but she did not call in any serious evidence to buttress that claim. The evidence as I have stated is to the effect that even if the Petitioner come to Ghana with nothing when she settled she started working. I must say that the Petitioner embellished he her case to show that she indeed contributed to the acquisition of the property that made her to say so many things to make her case flourish but some of the things she said rather undermined her case it did not help her at all. I have laboured to show how this case was fought but it seems to me that the Petitioner was under the impression that since the Respondent has raised the issue of compensation that they shared in Nigeria and to say she does not have a share in the property in issue, then she must at all cost give evidence by hook or crook that will link to the property to get a share by linking the compensation she got in Nigeria directly to the acquisition of the building and when she went on that tangent, she failed miserably because she exposed herself through the evidence she gave under cross examination. By what the Petitioner did she appeared to the court as someone who was desperate and doing everything possible to associate herself to a trophy she did not contributed to. I will mentioned some of the things she said under cross examination.to illustrate the point I have made above. The Petitioner said that when she came to Ghana at a point things became so hard that they lived on the benevolence of Ghanaians and that these Ghanaian women who helped them, the Respondent said she should not associate herself with them and that they kill their husbands and that she will also kill him. She said the Respondent took her to Kumasi to a fetish and the Respondent made her swear with his manhood that she will not allow anyone to have sex with her and I have already mention her assertion elsewhere in this opinion that the she claimed Respondent told her that they should use their child for money rituals and with all these damning allegations about such a man she was able to live with him and had five (5) children with him. She even allowed the Respondent to come to Ghana with one of their children before she followed later. The Petitioner was asked under cross examination that she should tell the court what she did with her compensation and she gave a lecture for answer. This was what she said “when the compensation was paid to us it was paid into our separate accounts my share was paid unto my own account. We were given six months to vacate the place, then I had a big shop that I trade in Nigeria very big shop, I sell provisions wholesale so my husband stayed in Nigeria for two (2) months after the compensation. He was using his share of the compensation staking lotto when I asked him whether he is not going back to Ghana because he has said to me that we are going to Ghana to stay but he said I should wait and that he is going to “BLOW” that is winning a huge amount of money before we move to Ghana in addition to the compensation, when he realised he was not succeeding in his endeavour after two months he decided to move to Ghana. When he was leaving we agreed that he should come with our first daughter Elizabeth. She was admitted in Wisconsin University. I stayed behind because of my business because I could not have left it just like that and travel. When they came to Ghana I have been communicating with him asking him whether he has gotten a place for us because he told my father he is going to buy a house at Accra my daughter Elizabeth calls to tell me the Respondent is staking lotto with the money that I should leave that business and come to Ghana before the Respondent squander the money. I called the Respondent immediately and I asked him whether he has gotten a place for us and he said we should come and that when we come we will look for place. So we arranged and I came with the rest of the children when we arrived at Swedru according to him the landlady said he has rented the place that day and he is bringing his family but did not tell her he had a family on the way coming. We entered the premises it was the first question the Respondent asked me was where is my money and I handed over the money to him then he went to Melcom and bought all that we needed for the house. I asked him where is his money too that he was given and what he did with it. He asked me in a tone of harsh voice whether I am asking him I was shocked so I kept mute as a stranger who does not want to look for trouble. At another time I asked him and he slapped me that is the initial fight I had with him after two (2) weeks of our arrival. The cross examination continued Q: I suggest to you that the Respondent has to go to SNAPPI ABA to borrow money to enable you trade in Ghana but you refused. A: That is not true when we came back from Nigeria after two (2) months the suffering started after spending all the money I brought on the children in taking them to school nothing was left for our feeding so the Respondent went to SNAPPI ABA to source for the loan and use part of the money to buy the land by which time we have bought the land already and I went with him to SNAPPI ABA to take the money I was by then hawking liquid soap. With this answer the court did not get what the Petitioner was saying so she foe clarification thus-; you said the Respondent went to SNAPPI ABA to take a loan now you are saying that you went with him to borrow the money at SNAPPI ABA but you have bought the land already. The Petitioner response was that, that is not what she is saying and that what counsel for Respondent is saying is not true. But she was the one answering the question so she was the one to tell the court what her story is and when she was ask whether what she has said should be cancelled and she answered affirmatively. At this stage it can be gleaned from the conduct of the Petitioner that she was either being economical with the truth or she was being evasive. The Counsel proceeded with his questions Q: The Respondent borrowed the money for you to trade in Ghana as he was using his money to put up the building, I suggest that to you. A: That is not true. Q: It was after a long persuasion that you allowed the Respondent and the first child to come to Ghana I suggest that to you? A: It is not true, we had an agreement… when they live at Tema, my daughter called to tell me that one sister Abla his auntie was chasing them out of the house because the Respondent was not giving money for food and always out to stake lotto that is why he came to Swedru with my daughter before my daughter went to school, they were living with Respondent’s younger brother in chamber and hall. If the Respondent collected all the compensation the Petitioner brought to Ghana and used some to buy the things they need in the house from Melcom, how did she get the money she said she used in trading? Then again she said she used the money to pay the school fees of her the children and that to feed herself was difficult to come by. When she was caught pants down that the Respondent obtained loan for her to start her business, she admitted and started fumbling and want the court to expunge that piece of evidence that has given her away as her answer Bur her own witness Pw1 admitted that the Respondent guaranteed the loan for her. Pw1 said she encouraged the Petitioner not to feel shy to hawk the Liquid soap. The case of the Respondent is that the Petitioner did not bring any money to Ghana let alone contribute either financially or physically towards the acquisition of the property and that she has squandered her own share of the money she got from the property they acquired in Nigeria so she has no interest in this very property, I am of the view that, that was why she also said all the things she said about the Respondent and tried show that she contributed financially and physically to the acquisition of the property in order to get a share of the property used her . I must say that if the case of the Respondent was as simple as that the Petitioner would not have been entitled to any share of the disputed property but that is not the situation in this case. I say so because the parties were still married when they came to Ghana and there was no agreement between them that each one is taking his or her own share of the compensation they had in Nigeria exclusive. In order words if the Petitioner has not come to court to seek for dissolution of the marriage the Respondent would not have said that she has already gotten what she will get in the marriage because of the compensation they have shared so in the absence of any express agreement to that effect the Petitioner cannot go empty handed. The Respondent is making this argument because he felt the Respondent has no business talking about the property because they have shared the compensation paid to them in respect of a building and she has used her own the way she want and she is coming now to fight over his but that is not the case. This is marriage and the law is that properties acquired during marriage is to be declared marital property and once there is no clear agreement between the parties that the money they got from the building in Nigeria should be what they will keep as individual properties and they cannot benefit from the other’s share. In my view even if the Respondent’s case was that at the time the Petitioner and the children came he has completed his building, if the Petitioner is leaving the marriage the court must consider petitioner’s interest since property was acquired during the subsistence of the marriage except as I said there a clear agreement or understanding by the parties that each party should old on his or her compensation and use it exclusively but that was not what occurred in this case. When the Petitioner and the rest of the children came they continued as usual and no one raise any issue in respect of the compensation until they came to court. Even if they had issue about that they are divorcing because of what each party did with his or her compensation. It is in evidence that when the Petitioner and the children came the property or the building has not been completed and the Petitioner came to work and the development is ongoing until the Petitioner brought her petition. The Petitioner and the children have been in Ghana almost ten years and as we speak the building is still not completed so the Petitioner is supposed to be entitled to a share if the law is applied to the facts of this case but the question how much should be her share? From the evidence the Petitioner did not bring any money to Ghana to inject into the and it was the Respondent who stood as a guarantor to secure a loan for her to start her liquid soap business. The equities of the case demands that the Petitioner is entitled to a share of the building acquired during the subsistence of the marriage but since she failed to show what she used her compensation she had in the property that they acquired in Nigeria I think it is will be just and equitable to grant her twenty percent (20%) share in the property for the Respondent to take eighty percent (80%) The property should be valued for the parties to know the value of the building for them to know who gets what. If the valuation is done the Respondent is granted the first option to buy the Petitioner since he is living in the property and if the Respondent is not in the position to buy the Petitioner out the Petitioner should buy the Respondent out but in the event that they both cannot buy each other out then the property should be sold for the parties to share the proceeds in the manner stated above. The marriage between the parties has broken down beyond reconciliation and it dissolved. The claim of the amount of the GHc30,000.00 by the parties is dismissed and custody also declared moot since the child involved is not a minor. No order as to cost. Kojo Annan for the Respondent. (SGD) H/H JONATHAND D. NUNOO ESQ. (CIRCUIT JUDGE).