Arthur Vrs Kutin [2023] GHACC 194 (7 June 2023)

IN THE CIRCUIT COURT HELD AT AGONA SWEDRU ON WEDNESDAY THE 7TH DAY OF JUNE, 2023. BEFORE HIS HON. JONATHAN DESMOND NUNOO ESQ. CIRCUIT JUDGE. SUIT NO: A4/15/21 BEATRICE ARTHUR PETITIONER VS. FRANCIS KUTIN RESPONDENT JUDGEMENT The Petitioner is in Court seeking these reliefs: a. An order for the dissolution of the marriage between the Petitioner and Respondent, contracted on 4th day of August 2018. b. Custody of the child. c. An order for: i. ii. iii. iv. v. Maintenance of child. Payment of school fees. Payment of hospital bills Clothing for the child Provisions for other necessaries of life. d. An order declaring ownership of the uncompleted residential property located at Agona Duakwa to Petitioner and child of the marriage. e. Alimony of GHC40,000.00. f. Cost including legal fees. The Petitioner’s averments for the breakdown of the marriage beyond reconciliation are that the parties lived happily until the Respondent employed a lady by name Anema as a store assistant Petitioner is unaware of the engagement of the lady until the Petitioner chanced on the said lady comfortably seated behind the store counter. Upon inquiry Respondent intimated that he had employed the said young lady. Petitioner objected to the engagement of the young lady. The Petitioner states further that the Respondent spends time with the said store assistant and regularly returns home very (Sic). Respondent has since stopped the petitioner from entering the drug store. The Petitioner claims that at a family meeting to resolve the concerns raised by the Petitioner, the Respondent openly told the Petitioner’s family that nobody could convince him to do away with the said store assistant. She further stated that at a subsequent meeting at the palace of Nifahene and chief of Duakwa the Respondent stuck to his gun that he could not let the said store assistant go. The Respondent has since 2020 vacated the matrimonial home and cohabiting with the said store assistant in a rented room near the Presbyterian Primary School at Duakwa. Petitioner averred that the Respondent maintains the Petitioner and child GHC20.00 daily. Even that remittance is not regular. That the Petitioner and Respondent have jointly developed an uncompleted self-contained residential property located at Duakwa during the pendency of the marriage. The Petitioner further asserts that her the Respondent has behaved unreasonably in such a manner that the Petitioner finds it unreasonable to live with the Respondent. Particulars of unreasonable behavior are as follows: (a) That the Respondent has banned the Petitioner from entering into the drug store registered in the names of the parties i.e. B. F. Kutin. (b) The Petitioner has vacated the matrimonial home since March 2020 and warms another lady’s bed (SIC). (c) The Petitioner no longer shows love and affection expected of a husband to the Respondent (Sic). (d) The Respondent cohabits with the said store assistant at a rented room in the same town thus exposing the Petitioner to public ridicule. (e) The Petitioner is emotionally disturbed and cannot concentrate on life. The Petitioner contends that by the reason of the behavior of the Respondent outlined above, the Petitioner cannot reasonably be expected to live with the Respondent. The Respondent filed an answer to the petition and averred as follows: He admits paragraphs 1,2,3,4 and 5 of the petitions, paragraph 6 is denied and the Respondent says the said drug store had been in existence and precedes the marriage contract of the parties. Respondent in further denied to paragraph 5 says that the name B. F Kutin does not in any way reflect the first name of the parties as Petitioners seem to be making the Court to believe. In an answer to paragraph 7, 8 and 9, the Respondent states that the parties consented to hiring the service of the store assistant as Petitioner was to manage the store Respondent established for the Petitioner. Paragraph 10 is denied and in further denial will say that there is a fixed time for closing hours which does not go beyond 9:00 pm. Respondent denies paragraph 11. Respondent denies paragraph 12 and 13 and will say that those meeting were held at the instance of the Respondent to resolve complaints that Petitioner receives and makes calls at odd hours of the night at hall, kitchen and bathroom. Respondent denies paragraphs 14, 15 the will say of paragraph 16 that the building plot was acquired and the house put up to lintel before the marriage was contracted. Paragraph 17 and 18 are denied. The Respondent says Petitioner is not entitled to any of the prayers in paragraph 20. The Petitioner filed a reply to the answer in which she denied all the averments in the answer and said she will put the Respondent to strict proof. The Petitioner maintains her averments as a response to paragraph 3 of the answer and in response to paragraph 4 of the answer that they both agreed on the name. She repeated paragraph 11 of her Petition as a response to paragraph 7 of the answer and paragraphs 12 and 13 as a reply to paragraphs 8 of the answer. Both parties filed their witness statement which were accepted as evidence in chief. The Petitioner called her father as a witness but when he mounted the witness box he said the witness statement is not his so it was not accepted and so he did not testify. I must say that counsel for petitioner as expected was surprised at this development. The Respondent did not call any witness. 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”. 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. In the case of Ababio V Akwan III (1994-95) GBR 774 the Supreme Court reiterated the point at page 777, Akins JSC delivered the lead opinion of the court thus; The general principle of law is that it is the duty of the plaintiff to prove his case he must prove what he alleges, in other words, it is a party who raises in his pleadings an issue essential to his case who assumes the burden of proving it. The burden only shift to the defence to lead sufficient evidence to tip the scale in his favour when on particular issue the plaintiff leads some evidence to prove his claim. If the defendant succeeds in doing this he wins, if not he loses on that particular issue. 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” Petitioner’s case is that they were leaving happily until the Respondent engaged a store assistant to work in their drug store which they have jointly acquired and named B and F Kutin the B representing the initial of her first name Beatrice and F for Francis the initial of the first name of the Respondent. She objected to the employment of this female store assistance when she saw her and ask the Respondent to fire her but the Respondent refused, she lodged a complaint about that to his uncle but the Respondent will not budge and issue was sent to the Nifahene and chief of Duakwa but the Respondent stuck to his gun that he cannot allow the store assistant to leave. It is Petitioner’s claim that it is the engagement of this store assistant that brought issues between them when she noticed the Respondent was spending more time with the young lady. The closing hours changed and the Respondent returned home late than usual and when she drew the attention of the Respondent to that he stopped her from coming to the drug store. She continued that Respondent then vacated the matrimonial home since March 2020 and he is cohabiting with the said store assistant in a rented room near the Presbyterian Primary School at Duakwa. In respect of maintenance the Petitioner said the Respondent gives her GHC20.00 a day which was not regular and he no longer shows love and affection expected of a husband to her and their child and she has by that conduct of the Respondent exposed her to public ridicule because the Respondent and the store assistant are cohabiting and walk to and from their abode to the store and they are seen by the indigenes of the town and that she is emotionally disturbed and cannot lead normal life and as a result of the behavior of the Respondent she cannot reasonably be expected to live with the Respondent. She said that during the marriage, they raised a residential property to lintel level. She said that apart from housekeeping money the Respondent denied her essentials of life and she also took care of the child’s clothing and Respondent explanation is that they are putting up a house. The case of the Respondent is that the drug store has been in existence and precedes their marriage and the name B. F Kutin does not reflect the name of the parties but rather B.is for Botwey and F representing the initial of his first name Francis and that the drugs sold in the shop are obtained in the name B. B. and Associates and attached Exhibit 1to that effect. He said changes to take over the shop from his uncle was done long ago before he got married to the Petitioner in August 2018 and that the arrangement with his uncle to use the shop as an associate defines why all drugs to be sold are obtained in the business operating name of his uncle Botwey and shortened as B. B and Associates. He stated that statutory declaration, a prerequisite validity requirement in securing operational license and subsequent filing of his application for over the Counter Medicine Seller’s License were all done on 20th September 2017. The Respondent claim that the Petitioner consented to hiring of the services of the store assistant as Petitioner was to manage the store Respondent establish for the Petitioner and that the closing time at the drug store does not go beyond the time of 9.00 pm. It is his case further that the Petitioner was all the time busy at her shop established for her by the Respondent and never had time to visit the drug store and that it is not true that he stopped her from coming to the shop and that the Petitioner rather mismanaged the shop which collapsed eventually. According to him meeting held was at his instance to resolve complaints that the Petitioner receives and makes calls at odd hours of the night at hall, kitchen and bathroom. He asserted that the building plot was acquired in 30th May 2016 and the building put up to lintel level. That he has not in any way demonstrated or put up any overt acts which constitute unreasonable behavior and that she has constructively deserted him because of the nagging and verbal abuse from Petitioner and having reported the conduct of the Petitioner to the parents, family members for the sake of peace advice that he stay away for the matter to be looked into. He concluded that he has taken care of the Petitioner and the child and the Petitioner does not deserve any sum as alimony for the security of the child. Issues raising at the end of the proceeding are as follows: (1) whether or not the marriage has broken down beyond reconciliation (2) whether the B and F represents Beatrice and Francis and whether the drugs store was established by the parties (3) whether the Petitioner’s entitled to GHC40,000.00 (4) whether the building was put up doing the substance of the marriage. Analysis or determination of the issues are as follows: Issue (1) and (3) whether the marriage has broken down beyond reconciliation and whether the Petitioner is entitled to GHc40,000 will be taken together ? Section 1 of Matrimonial Causes Act 1971 (Act 367) provides that either party to a marriage may present petition for divorce to the court and that the sole ground for granting a petition for divorce shall be that the marriage has broken down beyond reconciliation . Section 2 of the same Act provides that for the purposes of showing that the marriage has broken down beyond reconciliation the petitioner shall satisfy the court of one or more of the following facts: 2(1) (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 be reasonably be expected to live with the respondent (c) that the respondent have deserted the petitioner for a continuous period of at least two years immediately preceding the presentation of the petition; or (d) that the parties to the marriage have not lived as man and wife for continuous period of at least two years immediately preceding the presentation of the petition and the respondent consents to the grant of a decree of divorce; provided that such consent shall not be unreasonably withheld…; or (e) that the parties to the marriage have not lived as man and wife for a continuous period of five years immediately preceding the presentation of the petition; or (f) that the parties to the marriage have, after diligent effort, have been unable to reconcile their differences. From the evidence adduced and the law this court can safely conclude that the marriage has broken down beyond reconciliation. The Petitioner’s says that their marriage started having issues when the Respondent hired a female store attendant to manage their drug store and she was not in favour with it because the conduct of the Respondent changed so she demanded that the store attendant be shown the door but the Respondent refused and all her efforts to get chiefs and elders and family members to prevail upon the Respondent to let go of the store keeper did not yield any positive results and the Respondent has even moved from the matrimonial home and living with the store keeper openly. The Respondent said it was the behaviour of the Petitioner that made her to leave the matrimonial home and that the Petitioner makes calls at ungodly hours and he reported the case to elders and he told to leave the Petitioner for the sake of peace for them to look into the matter. Under cross examination of the petitioner by counsel for Respondent this was the excerpts of the evidenced elicited from her. Q: When you collapsed this particular business and you were engaged in the water company and things became difficult for the respondent you came to court to dissolve the marriage, is that not the case? A: That is not true, I did not come to court because of the collapse of the shop but it was because of one Afua Ahema whom the the respondent employed to work with at the drug store. I realised he was dating the said Afua Ahema and I confronted him and it became an issue and elders sat on the matter. We took the matter to the chief of Agona Duakwa and the chief said that he should dispense with the services of the lady because I was making my case about the girl. Again the Respondent was not eating my food. He has a rented room at Swedru where he sometimes stay when I visit him there I see the belongings of the said lady the matter was deliberated on thrice, Nfahene palace, Abradze palace and my own father’s house all the elders said that he should let go Afua Ahema but he said he will not and that if I cannot tolerate that then I should rather leave. By then he has vacated the matrimonial home and was leaving in the rented place at Agona Swedru, we were staying at Agona Duakwa. Before I filed the Petition, I went to him to plead with him to let go all that has taken place, so that he returns home but he said he is not ready to live with me and that he is not prepared to pay a dime to me and that if I like I should go to Court for divorce, I am in Court because he has left me for the past two years. Q: In your witness statement of 14th July 2021 and your Petition you never stated that the Respondent rented a room at Agona Swedru that you found dresses of another woman in the room that the Respondent does not eat your food, that there was three sittings by elders in respect of an alleged friendship between the Respondent and this lady and also you did not say that the matter was referred to Abradze family and finally that you went to the Respondent for reconciliation which he declined, I am suggesting that to you? A: Yes, I did not. Q: I am then suggesting to you that all that you have said is a figment of your imagination in the witness box. A: That is never true. … Q: I am suggesting to you that the Respondent has not sacked you from the matrimonial home? A: I am still in the matrimonial home; he moved out to rent another place but I pay for the rent. Q: The Respondent deserted the matrimonial home because of your conduct? A: That is not true. Q: And some of the unreasonable behavior which made the Respondent desert you is a midnight calls made to a persons whom the Respondent does not know, upon persistent warning that made the Respondent leave the home for you so that you can make your calls. A: That is not true. Q: The calls you run out to make in the midnight also disturbs the Respondent emotionally that made the Respondent leave the home I suggest that is to you? A: That is not true. Q: Again you do not respect the Respondent that was why he left you? A: That is not true. Q: Again you sometimes lie to the Respondent that you are at work when you are not at work? A: That is also not true. Q: That you return home so gratified that you do not want to have sex with the Respondent I suggest that to you? A: That cannot happen it is not true. Q: You unnecessarily incurred cost for the Respondent to pay especially at your work place as a cashier? A: On one occasion I made loss and he paid. Q: The cumulative effect of these unreasonable behaviour made the Respondent to desert the matrimonial home, I suggest that to you? A: That is not true, it because of another girl he had that was why he left. Q: With the Respondent incurring all these cost which are not incidental to the marriage, you are not entitled to any alimony? A. That is not true Because the Petitioner objected to the hiring of the store assistant and the Petitioner asked the Respondent to fire her and the Respondent refused that was what led to the issues that the parties started having in their marriage in my opinion and not that the Respondent reported any ungodly hours the Petitioner receives and makes in the kitchen, bathroom and hall. In any case when the Respondent requested the acts of the Petitioner as he claim and he was advised to stay away from the Petitioner until the matter was looked into. If that is the case, what has been the outcome of that issue, are the elders still looking into the matter? If they are, what is the state of affairs? Under cross examination, counsel for Respondent sought to suggest that the Petitioner was having extra marital affairs with other men and that is serious allegation to make in case such as this without an iota of proof whatsoever. The Respondent did not say this anywhere in his answer and evidence in chief so where did counsel get this information from? Obviously from the Respondent. The Respondent also said the Petitioner makes calls at ungodly hours in the hall, what did he do to stop her? All he did was to complain to elders and said the advice he got from the elders was that he should leave his wife and that they are looking into matter and he did not follow up for the matter to be dealt with till the Petitioner came to Court. He left the house in March, 2020 and he still lives outside the matrimonial home. As stated, the Petitioner said her complaint to the chief and elders and her family was about what was going on between the Respondent and the store attendant and the Respondent said he will not fire her. If there was nothing going on between them at least here in Court the Respondent can call the store attendant to come and testify that nothing is going on between them if he did not call the Shop Attendant at the meetings held at the family level and at Nifahene and the chief of Dwakwa’s palace. More so that the Respondent claims that the petitioner consented to the hiring of the store attendant if she has become uncomfortable and she requested for release why should the Respondent not give a listening here if he indeed want the marriage? Though the Petitioner also failed to join the said store attendant to the petition, it did not hurt her case in my view due to the allegation made against her under cross examination which I said was damning. The Petitioner passes to me as credible witness and I believe her story regarding how their peaceful marriage started developing cracks as compared to that what the Respondent has said. The Petitioner is entitled to some compensation because of how the Respondent has treated her and left her. The Respondent deserted the Petitioner because she was complaining about the affairs between him and the shop assistant. In any case if he loves the Petitioner, he could have fired the shop assistant to save his marriage as I have said because what he said about the Petitioner making calls at night cannot be a ground to leave the house. If the Petitioner was insulting him because of the complaints he made he should have gone back to report to the elders and not simply leave the matrimonial home. If the Petitioner has not filed this petition, she will be waiting in perpetuity when the Respondent has made up his mind not to marry her again. The Respondent did not only is not leaving the Petitioner but to add insult to injury here in court he is calling her unfaithful wife who have been having sex with other men without an iota of evidence. I will decree that from the evidence and application of the law the marriage has broken down beyond reconciliation because the parties have not able to reconcile their differences after diligent efforts and it must be dissolved and it is dissolved and I will grant the Petitioner GHC10,000.00 as compensation. Now to the issues of whether the drug store bears the initials of the parties and whether they own the store and whether the building was acquired during the subsistence of the marriage will be taken together. With the issue of the building the Respondent position is that he put up the building before they got married The Let me make this observation. The evidence adduced in this case is that parties were already in concubinage and they have announced to the world that they are husband and wife and they have co habited and the in the course of their preparation for the marriage rights to be performed she took seed and the ceremony was postponed. The settled law is that if the court finds the evidence adduced as a fact the parties in such a union will be deemed as married couple and equity will come in to assist the court to distribute any property that the parties may have acquired during the period of concubinage. I am of the view that prior to the parties wedding in this case they have demonstrated to the whole world that they are a husband and wife by living together in fact. Again, both families of the parties know of this relationship and the parties have cohabited together under one roof resulting in having one child before their wedding ceremony which I believe formalised their union which can therefore in my view be considered in this case to be superfluous. The evidence adduced shows that the parties as I have said would have been deemed marriage couple if the suit was fought in that direction. See Essilfie and Anr v Quarcoo (1992) 1GLR 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 of 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). This This were excerpts of the evidence adduced by the petitioner under cross examination Q: You were once a student at Gomoa Secondary Technical senior High School at Dawurampong Gomoa, correct? A: Correct. Q: And you dropped out of School, correct? A: Not correct. Q: So you completed Gomoa Dawurapong Secondary Technical, Correct? A: Correct. Q: Can you show your certificate if you are given the opportunity? A: Yes. Q: You said you will call one Prince Arthur as a witness on your behalf correct? A: Correct. Q: The said Prince Arthur is your father, correct? A: Yes. Q: Is that same Prince Arthur who was a leader of a loan group of Nyarkrom Rural Bank, correct? A: Yes. Q: He was the one who contracted loan amounting to GHC2000.00 to start the drug store of the respondent, correct? A: that is correct, that amount was given to us to assist us and the Respondent added that money to his capital to buy drugs but we were paying the money as loans. Q: So when exactly was the loan given by the bank, I am talking about GHC2000.00? A: It was given to me and I gave it to the respondent. Q: So it is your case that you contracted the loan and you gave it to The respondent? A: That is so. Q: You signed documents to take the facility? A: No the reason was that my father takes huge amount and gave us GHC2000.00 so there was no document to that effect because we pay our loan to my father and he pays it. Q: When was that loan taken? A: Long time ago. Q: But I believe the money was taken during the subsistence of the marriage? A: No it was given to us before we got married. Q: I am suggesting to you that you never took a loan to help the Respondent to operate a drug store? A: That is not true. … Q: The marriage was contracted on 4th August 2018, correct? A: Correct. Q: Before you got married on 14th August 2018 the The respondent was already operating the drug store I suggest That to you? A: That is correct but the respondent and I were already in a relationship and we had one child before we got married. The respondent brought my (head drink) and we were staying under one roof as husband and wife for many years before we got married formally. When the respondent provided the drink to my parent and we decided to open the drug store that was when he ask me to tell my father to assist us. Q: Is it your case that you had a child with the respondent before 4th August 2018 when you got married? A: Yes. Q: If you had given birth prior to 4th August 2018 when you got married as you claim the child would be more than three and half years as you have stated? A: That is not true, I delivered on 12th November 2017 so the child will be five years November 2022. Q: Even per the date you have said if you had consummated the Marriage on 4th August 2018 and you had conceived on the same day 4th August 2018, the child will be more than three and half years you have stated in your paragraph 3 of your witness statement. A: At the time I filed the Petition the child was three and half years old. Q: Throughout your Petition, your witness statement and that of PW1 Prince Arthur no where did you state that you were in concubinage with the Respondent before 4th August 2018, I suggest that to you. A: I did not state that. Q: I am suggesting to you that the child was born after 4th August 2018. A: That is not true the child was delivered in 12th November 2017, before I gave birth the Respondent has sent a drink to my parents and has been given the list for the marriage and we had bought everything for the marriage so when I delivered we decided to conduct the wedding and the naming ceremony, the child was named a week after the wedding when the baby was ten month old. Q: Before you came into this marriage the Respondent was already operating a vibrant drug store and every one in that environment comes to the drug store for their prescription. A: That is not true, when I met the Respondent he was not operating the drug store we put our money to rent the store for the drug store, the one who painted the store is my colleague at where I was working so when we met, he was not operating the drug store. We plan together to open the drug store and we executed same. The drug store B and F Kutin chemical store, the B initial of Beatrice and F for his Francis. Q: Is your case that the two of you put your resources together to rent the store correct? A: Correct. Q: Have a look at paragraph 3 of the witness statement of PW1 Prince Arthur and read to the hearing of the court? Q: So for paragraph 3 of the witness statement of PW1 that you just read to the court, you are not being truthful when you say you and the respondent put your money together to rent the store for the drug store, I am suggesting that to you? A: I paid the rent myself; the money was from both of us, the owner of the store is dead but her daughter was present when I paid the money to her mother. In further Cross Examination of Petitioner this was what took place Q: You were ordered by the Court to produce your SHS certificate; do you have it? A: Yes, it is with my lawyer. Q: With aggregate 9 in maths, English, integrated science, biology and general knowledge in arts, have you taken any exams to make your results better? A: I have written Nov-Dec for the purpose of making the results better. Q: Could you produce that results in Court? A: Yes, I wrote the exams with a school in Takoradi for the results and by next week I will do that. Q: Could two (2) weeks be enough to produce that results? A: I cannot tell whether I can get the results that very day. I will go because I was asked to submit a passport picture endorsed and Identity card. Q: Could it be right to say that by the end of this matter if you have not produced that result, it will be safe to say that all your certificate is the one you have shown to the Court which bears grade 9.? A: Yes. Q: The results of the exams dated in May-June WASSCE 2009 contains grades that could not put you any productive formal employment? A: When I applied for the work, I am doing I was not asked for my results. Q: Your employer never requested for your certificate because job or position does not require half of secondary education to play or perform that role, I suggest that to you? A: I applied for sales girl and when I send my application, they did not ask me of any certificate and they employed me. I am a cashier at pioneer water company. Q: How much do you earn at the end of the month? A: GHC500.00 Q: Is after all deduction have been made such as SSNIT? A: No Q: Tell the court your net salary? A: GHC430.00 Q: Do you have your pay slip or you can produce it? A: My salary do not go through the bank, I receive it at the work place so I cannot produce some. Q: Are you paid on table? A: Yes. Q: Are you saying that your company does not have a pay voucher? A: Yes. Q: I am suggesting to you that from what you have said that is why the company did not require your certificate because the company is not a serious one? A: I am not the only one who receives the salary like that, about forty workers are paid like that on the table? Q: Look at exhibit E series of the respondent. A: I have seen it. Q: Who are the individuals in the picture? A: My husband and I. Q: Where were you having the leisure when you took the pictures. A: We took the pictures in the shop we jointly put up but the shop is no more. Q: You recklessly mismanaged this very shop and it collapsed, I am suggesting that to you. A: That is not true, he was the one who collected the proceeds from the shop and the shop collapsed. Q: Did you keep books in connection of sales in that shop? A: No. Q: Why were you displaying money in the shop? A: I was by then going to do some purchases in the morning when I was checking my money and he took out his phone to take picture and I was happy so I displayed the money. Q: From what you have told the court, it means you and the Respondent have had a good time before when money was flowing? A: Correct we have had a good time before. Q: When you collapsed this particular business and you were engaged in the water company and things became difficult for the respondent you came to court to dissolve the marriage is than not the case? A: That is not true, I did not come to court because of the collapse of the shop but it was because of one Afua Ahema whom the the respondent employed to work with at the drug store… Q: You got married on 4th August 2018, correct? A: Correct. Q: By which time the respondent acquired a land and put up the structure to lintel level, I suggest that to you? A: That is correct, we bought the land before he performed the marriage rites. Q: When was the said land bought? A: Between 2015-2016. Q: How much was the said land bought? A: GHC2500.00. Q: Because you knew nothing about the acquisition of the land, that that is why you mentioned the cost of land to be GHC2500.00. I suggest that to you? A: He told me that he has seen a land and the price is GHC2500.00. Q: That is to say you came to know when the marriage was contracted that is why you have given that answer. A: That is not it. Q: For the purpose of knowing in addition to information that the respondent has told you, the price that the respondent mentioned to you is GHC2200.00 as the purchase price? A: He mentioned the amount to me to be GHC2500.00 but if the amount he paid is GHC2200.00 he was the one who mentioned the GHC2500.00 as the price of the land. He mentioned GHC2500.00 and I even paid part of the money. Q: For clarification of doubt and uncertainty in your mind for non participation in the acquisition of the land the document or indenture covering the land has 2016 as the year the land was purchased? A: That was the year the document was made Q: Being part of the acquisition, what is the approximate size of the land? A: One plot. Q: For the purpose of clarification and uncertainty for your non participation of the acquisition of the land, the size of the land is approximately 0:28 acres or 0:12 hectres, I suggest that to you? A: When he informed me that someone has offered the land for sale And that we should buy it, he told me the land is one plot. Q: Who were the witness of the vendor if indeed you were part of of the acquisition? A: I know the vendor. Q: You uncertainty responding to acquisition of the land by you is as a result that you did not participate in the acquisition and you did not contributed a penny to the acquisition of the land. I suggest that to you? A: I paid part of the money. Q: Respondent had to stop the building project and mobilize money to establish a store for you that is why the structure is at the lintel level I suggest that to you? A: That is not true. Q: When you came into the marriage the respondent had then put up the building to a lintel level. I suggest that to you? A: That is not true, the respondent and I molded the blocks, I bought the sand and he bought cement and we molded the blocks with it so it is not true that he put up the building before he married me, in molding the blocks it was my siblings who fetched water to make the blocks. Q: I am suggesting to you that any income generating venture you had ever entered into besides your current employment had been the store which the respondent has to stop his building and establish for you when you got married on 4th August 2018? A: When we got married he has not started putting up the building, we had by then molded the blocks but he had not started the building. Q: You have also never participated in the establishing the drug store by way of contribution? A: I participated deeply when we rented the store, for the drug store i paid part of the rent. Q: Are you aware that technically, the respondent does not have a license for operating the drug store? A: I am aware of that when I was with him, he has been travelling to Cape coast for that. Q: And that the reapplication for the over the counter sellers license dated 20th September 2017 and signed by the regional manager pharmacy counsel one Mr. Appiah Kwasi Baffoe which is part of exhibit C of the respondent case does not authorize the respondent to commence business. I suggest that to you? A: He did not tell me anything about that. Q: The drug store had been in existence and operated under the license of Ben Botwe who happened to be the uncle of the respondent. I suggest that to you? A: Ben Botwe who is the uncle was operating a drug store which collapsed and was not in existence that is why we rented the store and started the drug store. Q: I suggest to you that, the acquisition of drugs to fill the store was being acquired in the name of Ben Botwe and associate? A: Because Ben Botwe had operated the drug before when he decided to operate the drug store and he went to his uncle Ben Botwe to seek permission from him to enable him to procure the drugs with his license. The drug store is registered in the name of the respondent and I but the drugs was procured with the license of Ben Botwe. Q: The respondent and a cousin Kwasi Appiah had been shop attendant of Ben Botwe and Associate or B. B Associate drug store. I suggest that to you? A: What I know is that Ben Botwe (his uncle) was operating that drug store which he stopped operating for so many years? Q: When Ben Botwe became visually impaired, he passed on the operation of the store first to Kwasi Appiah whom respondent worked with as store attendant? A: That is not true. Q: That being a family business the mantle or baton was handed over to the respondent to continue with the operation of the business I suggest that to you? A: That is not true. Q: And again when Respondent took over, he changed the name to reflect that of his uncle and his own name that change to B. F. Kutin, I suggest that to you? A: That is not true the Respondent and I started the store, he gave me the money to pay the rent, he gave me part of the rent and I added my portion and went to pay the rent, a colleague of mine at work painted the store for us. The Respondent said that if he uses the name of his uncle Ben Botwey the family members will keep their eyes on it so he used my name and his name for the business. Q: Are you now aware that you have not registered and opened a drug store with the Respondent as you have stated in paragraph 4 of your witness statement given that document to open same and operate a drug store has not been granted by Pharmacy Council, So you do not have a drug store with the Respondent. A: The Respondent was travelling to Cape Coast for the license when I left him or separated from him. I do not know whether he has been granted the license or not because he does not discuss that with me anymore. Q: I am suggesting to you that the said drug store has been in existence and operating before the Respondent took over and change the name to B. F. Kutin because he has not registered any drugs store? A: That is not true, the store was not operating by then. Q: B. F. Kutin representing Botwey “F” representing the first initial of the Respondent for the Respondent to find solace or Association with his uncle Botwey who registered and had the license to operate the drug store and he added his sir name Kutin to it, I suggest that to you? A: That is not true the “B” in the name does not represent Botwey it represents my first name Beatrice it because we are in Court that is why he is trying to use the Botwey to represent my name Beatrice. Q: If you had read the answer to your Petition and that of the Respondent witness statement very well you would have realised that the B. F Kutin was not concocted by the Respondent when he came to Court, I suggest that to you? A: B. F. represent Beatrice and Francis. Q: And interchangeably drugs are acquired in B. B. and Associates and Kutin Francis respectively, I suggest that to you? A: What I know is that he uses the name of his uncle B. B and Associates but the drugs store is not for his uncle. Q: Again midyear socialization for National Chemical sellers Association fees are all paid in the name of B. B. and Associate, I suggest that to you? A: Because he has not received his license that is why he uses the name of his uncle to pay. … This was the evidence Respondent gave under cross examination Q: You will agree with me that generally we buy land before development commences? A: That is correct. Q: You have a son called Aseda with the Petitioner? A: Correct. Q: In which year was Aseda born? A: In the year 2018. Q: Aseda your son was born in 2017 not 2018? A: Yes, He was born on 12th November 2017. Q: You filed Exhibit D an indenture, correct? A: Correct. Q: And the Petitioner signed as a witness to the indenture? A: That is true but I have explanation, the land is for me I bought it but when I was doing the document, before then I was using my grantor’s document, my grantor was the Church of Christ and it will take a long time for me to have my own document since it is a Church that granted me the land. It took about three (3) years for my own documents to be ready and submitted to me. When the documents was brought the persons who were close to me were my wife and one Kwesi Bekoe because these people were close to me and I know them that is why I made them sign as my witnesses but they do not own the land. Q: You were cohabiting with the Petitioner before you conducted the wedding. A: That is not true. Q: But you had a child with the Petitioner in 2017. A: Correct. Q: When did you have your wedding? A: It was in 8th August 2018 but I am not good at keeping dates. Q: You will agree with me that it takes about (9) nine months for a woman to deliver? A: Yes. Q: You will therefore agree with me that you had lived or cohabited with the Petitioner for a minimum of (9) nine months before she delivered? A: That is not true, the Petitioner was staying at her father’s house at Duakwa and I was residing at Swedru here at Pipe Tank. When she became pregnant I visited her once in a while and give her money and see to it that she is alright. Q: I am suggesting to you that before you impregnated the Petitioner you had performed the customary rights? A: That is not true, when she delivered, her father did not allow me to get close to the child to enable me named him because at the time I had not performed the customary rites. Q: I am suggesting to you that you well knew the Petitioner before the 2016? A: That is true but she was not my wife by then. Q: I am also suggesting to you that you have not exhibited any document that showed that you were on the land of the church before the execution of this indenture Exhibit D? A: That is so but I have told the Court that it took three (3) years before the church prepared my documents for me. Q: You have not tell the Court why it took three years before exhibit D was prepared for you? A: The land belongs to me so I do not owe any one explanation. Q: I am suggesting to you that the impression you want to create in this Court that you fully developed the land before you met the Petitioner is not true? A: It is true. Q: Your wife contributed cement and sand for the foundation of the building, I suggest that to you? A: That is not true if what you are saying is true she would have tendered her receipts. Q: The building is at a lintel level now, correct? A: Correct. Q: And you have not exhibited cements and other building material in your name as you stand in the witness box? A: That is correct, the document covering the land are in my possession because the land and the building belongs to me that is why I have tendered the indenture Exhibit D. Q: What is your area of specialization at the University of Winneba? A: Bachelor in education. Q: You will agree with me that Petitioner had worked briefly with Lucky Herbal Clinic? A: I do not know about that. Q: I suggest to you that the Petitioner had worked briefly with Lucky Herbal Clinic? A: I am not aware of that. Q: I am also suggesting to you that it was the Petitioner who conceived the idea of the drug business? A: That is not true she did not know anything about the drug store the drug store had been in existence for several years. My uncle called Ben Botwey who established the drug store initially. After Ben Botwey, several family members have operated the drug store. When Kwesi Appiah who was operating the drug store became blind I took over. Q: I am suggesting to you that reading from the same paragraph 4 of your witness statement. When your uncle became blind and you took over as an associate, you used the name B. F. Kutin to reflect “B” being BOTWE “F” being my first name FRANCIS. There is no such name as Kwasi Appiah I suggest that to you. A: That is not correct is you who have pointed out Ben Botwey was the chairman for pharmacy council and also head of department at pharmacy department, University of Ghana, he has prepared his certificate in such a way that any of his family members can use it that is why Kwesi Appiah managed the drug store before me. Q: I am suggesting to you that there is only one standard certificate from pharmacy council and there is no open certificate if for your family? A: That is not true, the Duakwa drug store is an associate pharmacy shop. Q: Associate of what? A: Associate of Ben Botwey and Associates. Q: You have not exhibited any certificate showing that Ben Botwey and Associates has been registered? A: What you are saying is not I have exhibited receipts and invoices or purchase order which shows Ben Botwey and Associates name that I operate. Q: Do you have a bank account for the business you are doing? A: I do not have an account for the business but I have my own personal account. Q: Why do you not have an account for this company because the company is with associate? A: The business is not for me so I cannot go and open account for it. Q: So why did you name the business B & B and Associates? A: The business is for my uncle and I came to continue and I want to be limited in a scope that is why I named the business B. F. Kutin. Q: Look at your paragraph 6 of your witness statement Read paragraph to the hearing of the Court. A: “I further say that the arrangement with my uncle to use the shop as an associates defines why all drug meant to be sold are obtained in the business operating name of my uncle Ben Botwey and shortened as B. B. and Associates. …”. Q: How do you reconcile your own statement in paragraph 4 and paragraph 6 of your witness statement. A: That is not true. Q: Look at your exhibit C it is a statutory declaration, read paragraph 4. A: “That I propose to open a chemical shop at Agona Duakwa”. Q: If you were operating as an associate, why do you make this declaration to open a new chemical shop? A: Because the one that I am operating is not mine. Q: If it is not yours why do you operate it with the name B & F Kutin which is Francis and Beatrice Kutin? A: I have not said in Court that B & F represent Beatrice and Francis but rather it is Botwey and Francis. Q: If it is Botwey and Francis why do you have B & B in your paragraph 6 of your witness statement? A: The name of the owner of the Business is called Ben Botwey so when opened the Agona Duakwa branch then he named it Ben Botwey and Associates. Q: I am suggesting to you that if you maintain the business name B & B Associate then you cannot maintain an account of the entity in your personal name per the company’s Act? A: I have not said that I have opened an account for the business in my name, what I said was that I have my personal account. Q: Your exhibit B is a proforma invoice from classfarm pharmacy Limited Agona Swedru in the name of B & B Associates why do you buy drugs in the name of B & B Associates? A: The business belongs to him that is why I buy drugs in his name. Q: I am suggesting to you that you cohabited with the Petitioner in Swedru at a place called Pipe Tank? A: That is not true. Q: I am putting it to you that you are very untruthful witness and you have been untruthful in your testimony you have given to this Court? A: I am a very truthful person it is the Petitioner who did not tell you the truth that is why you are saying that. Q: I am putting it to you that the uncompleted building in issue was started during the subsistence of the marriage between you and the Petitioner through the earnings of the operation of the chemical store and the first store you opened earlier which you have exhibit the photograph labeled exhibit G. A: That is not true, when I met the Petitioner I had then put up the buildings up to lintel level because she was not gainfully employed and was at home, I put a stop to the development of the building and used that money to open cold store for her and the drug store. The Respondent was just being economical with the truth if he was not with the Petitioner before the land was acquired, how come the Petitioner signed the document as q witness, was it by coincidence? I do not think so. He claimed it took three years before he got his own document so he could have called his vendor to at least come and testify to that issue but he said he owes no one explanation. That is too bad for him because in court we deal with evidence. If he bought the land from the church all the church need to do is to transfer the property in his name and if he says it took him three years before he got his documents he could have also tendered the document of the church or show a receipt of the payment but as said he was bold to say he owes no one explanation. he said the documents bears his name and it was in his custody and that if the Petitioner has bought any cement as being suggested then she should have attached her receipt which is justifiable but he was also a culprit and a worse one as that because he did not also tender in evidence any receipt for the materials he bought for the building at least if he has done so the court would have been able to tell when the building project started. The Respondent does not pass as a credible witness to me and this view of him will manifest strongly when the issue regarding the drug store is address It is stated In Majorlagbe v Larbi (1959) GLR 190 as follows-: “… a person who makes an averment or assertion which is denied by his opponent has the burden to establish that his averment or assertion is true. And 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. The nature of each averment or assertion determines the degree and nature of that burden” From the evidence the fact and the law the building at lintel level were acquired the substance of the marriage before the marriage was formalised the parties were already in concubine and having their child, their wedding therefore was just a formal ceremony. In respect of the drug store I believe the story of the Petitioner that they established it together and used their initials and the sir name of the Respondent. The firm B. B and Associate was in existence but only in the books before the parties decided to establish their own drug store and operate it under the BF Kutin and the name BB and Associates was used to buy the drugs for BF Kutin so the Respondent was operating the business as BF Kutin and not BB and Associates. If the Respondent he was conducting the business in the name of BB and Associate he cannot change the name to B. F. Kutin. He did not change any name he was operating under his name and he was buying the drugs in the name of BB and Associates waiting patiently for his own license. He claimed someone operated BB and Associates before him, why did the person not changed the name his name if it was that easy? The Respondent did not say he is now in partnership with his uncle and that is why he added his name to reflect the new partnership. How can his uncle obtained an open license for his family members to be using as and when they want? It is clear from the evidence that BF Kutin was only relying on BB and Associates for its supplies and not that and BB Associates is existence and was active as the Respondent want the court to believe. The Respondent cannot be believed, all that he said was an afterthought and he is just trying to deprive the petitioner of her due in the properties they acquired including the drug store The evidence of the Respondent as I said exposes him as unworthy witness. I therefore hold that the building at lintel level and the drug store are joint properties since they were acquired during the subsistence of the marriage and as said they are to be shared between the parties. The Petitioner gets 40% of both properties, the drugs in the store should be valued as well as the building and the proceeds share in the manner as follows: the Petitioner gets 40% and he Respondent gets 60%. The Respondent is to buy the Petitioner out in respect of the building and if not the Petitioner gets the option to buy the Respondent alternatively the property the building be sold and the proceeds share in that manner. The drugs in the store be valued and expenses deducted from the total valuation and the difference share in the manner described above. The Respondent is to pay the Petitioner what is due her after the valuation that is the 40% out of the cost of the drugs minus any expenses to made. The Petitioner is granted the custody of the child and the Respondent is to pay GHC300.00 monthly allowance, pay the school fess and provide health care and other necessaries of life as well as education bills, such as stationary. The Petitioner is to care of the school uniforms and other cloths for school. The parties are to be responsible for the house dresses of the child and occasional cloths. No order as to cost. (SGD) JONATHAN D. NUNOO ESQ. CIRCUIT JUDGE