Mensah Vrs Amegavie [2023] GHAHC 77 (7 June 2023)

IN THE SUPERIOR COURT OF JUDICATURE IN THE HIGH COURT OF JUSTICE HELD IN TEMA ON WEDNESDAY THE 7TH DAY OF JUNE 2023 BEFORE HER LADYSHIP JUSTICE RITA AGYEMAN-BUDU (MRS) Time: 9:17 am SUIT No: E5/24/2020 ISAAC MENSAH … PETITIONER VRS EUEGENIA AMEGAVIE … RESPONDENT ================================ PARTIES Petitioner – Present. Respondent – Absent. LEGAL REPRESENTATION Ms. Naa Ayorkor Cato-Browne holding brief for Mr. Stephen Sowah Charway for the Petitioner – Present. Mr. Senam Kalitsi holding brief for Mr. Eddie Yao Harvey for the Respondent – Present 1 |E5/24/2020 ============= JUDGMENT ============= By a Petition filed on the 20th of January, 2020, the Petitioner herein, Isaac Mensah is seeking the dissolution of the marriage between him and Respondent Eugenia Amegavie who has also filed an Answer to the Petition and has also Cross-petitioned for certain reliefs. This was filed on 27th April, 2020. The reliefs being sought by parties are as follows: Petitioner in his Petition filed on 20th January, 2020 is seeking the following reliefs: 1) That the marriage celebrated in fact between the parties in 2006 be dissolved. 2) That the two (2) plots of land located at Oyibi Accra be settled on the Respondent. 3) That the property numbered BAG38/30 situate at Baatsona Community 18 be settled on the Petitioner 4) That the Renault Scenic with Registration No. GR-9690-13 be settled on the Respondent. 5) That the Toyota Corolla with Registration No. GN-5953-16 be settled on the Petitioner. 6) That the Petitioner shall pay a lump sum of Ten Thousand Ghana Cedis (GH¢10,000.00) to the Respondent. Respondent in her Answer to the Petition and Cross-Petition also seeks the following reliefs: 1) An order for the parties’ Matrimonial home on the Spintex Road at Community 18 Baatsona in Accra be valued and sold and the proceeds distributed among the parties herein or alternatively the Petitioner be made to pay Respondent fifty percent (50%) of the total value of the Matrimonial home failing which the aforesaid property be sold and the Respondent be paid her portion forthwith. 2 |E5/24/2020 2) Alternatively, an Order vesting the two (2) plots of land at Oyibi near Accra and which only the Petitioner knows of in the Petition and for the Respondent to be vested with the Matrimonial home on the Spintex Road at Community 18, Baatsona Accra. 3) That the Petitioner be ordered to make financial provision toward the upkeep of the Respondent during the pendency of the suit and a further Order for alimony in the sum of One Hundred Thousand Ghana Cedis (GH¢100,000.00) to be provided the Respondent by the Petitioner. 4) Perpetual Injunction restraining the Petitioner, his agents, servants and or assigns and that includes any person taking instructions from the aforesaid Petition from dealing in any way with the parties’ Matrimonial home in Accra which is detrimental to the interest to the Respondent and a further Order for the preservation of the aforesaid property The Facts Petitioner’s case; Per his Witness Statement filed on the 17th of September, 2020 with Exhibits attached which same was relied upon by Petitioner herein Isaac Mensah as his evidence-in- chief, it is Petitioner’s case that he and Respondent Eugenia Amegavie married under Customary law in November 2006. Prior to the marriage, they had known each other as friends and working colleagues. Parties then lived together in his (Petitioner’s) self-acquired property at Baatsona, community 18, Tema. It is Petitioner’s case that the marriage between him and the Respondent has broken down beyond reconciliation and that they have been living separately since 2015. All attempts to salvage the marriage have proved futile. 3 |E5/24/2020 Petitioner in his Witness Statement gave a narration of events which occurred whilst they were living together as husband and wife which he deem same as unreasonable behavior on the part of the Respondent and that he cannot be expected to live with as husband and wife. According to Petitioner, Respondent has exhibited certain behavior such as unprovoked attacks on him and also splashing blood on the bathroom tiles and also in front of his door. He attached Exhibit A, B and B1 which are photographs of traces of blood. Exhibit C is also a Police Report on Assault case, which same was reported by Petitioner against Respondent on 21st July 2017. Petitioner also avers that there has not been any intimate or physical or sexual relationship between parties since he moved out the house he described as self-acquired property sometime in 2018. In respect of the matrimonial home, the Petitioner contends that, he built this property in 1996 at which time he was not married to the Respondent. Respondent however also contends that, she co-habited with the Petitioner for some number of years before their union customarily in 2004. According to Respondent it was during this period of co-habitation and subsequent marriage that she and the Petitioner developed the said property. This property however was gutted by fire and was subsequently reconstructed which reconstruction, Respondent claimed she contributed to. Respondent’s Case It is Respondent’s case that she is a Housewife and occasionally operates Catering services. She avers that she had been customarily married to the Petitioner in the year 2004 but prior to the marriage, they co-habited for eight (8) years. It is Respondent’s case that Petitioner had married another woman and has two (2) children with her. 4 |E5/24/2020 She further avers that, Community 18 Baatsona House which she refers to in Paragraph 21 as “ Our initial Matrimonial home” was razed down in 2014 by fire and they had to renovate the entire house again. She avers in Paragraph 22 that; “I have to say that this second construction was heavily financed by my husband as he was gainfully employed and I also played a supportive role and contributed a lot in putting up that house, I have attached Exhibit 5 Series as some of the contribution, I had to make in re-building our present Matrimonial home”. Respondent further avers that she is not aware of any two (2) plots of land at Oyibi in Accra. In respect of the Renault Scenic Vehicle with Registration No. GR-9690-13, same has broken down since 2013 and Petitioner has refused to fix it. In respect of the Toyota Corolla with Registration No. GN5953-16, it is the Petitioner who drives it. Respondent by the averment is not contesting the dissolution of their marriage. After the full trial with parties calling Witnesses in the case of Petitioner (PW1) Sarah Afua Mensah and PW2 Solomon Ayitey Mensah. In respect of the Respondent: Paul Adjeivi and Joyce Oforiwaa Cofie. The main issue that came up for determination were; 1) Whether or not the marriage between parties herein broken down beyond reconciliation. 2) Whether or not Property numbered H/No. BAE 38/30 situate at Baatsona Community 18 Tema is a jointly acquired property. 3) Whether or not parties are entitled to their respective reliefs sought. 1) On the issue of whether or not the marriage between parties herein has broken down beyond reconciliation, I will refer to Section 1(2) and 2 of Act 367; 5 |E5/24/2020 Section 1 of the Matrimonial Causes Act provides: Petition for Divorce: 1) A petition for Divorce may be presented to the Court by either party to a marriage. 2) The sole ground for granting a Petition for Divorce shall be that the marriage has broken down beyond reconciliation. Section 2 (1) of the Matrimonial Causes Act (Act 367) provides: 2)Proof of breakdown of marriage: 1) 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 6 |E5/24/2020 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. For the purposes of Section 2 (1) (d) and (e), in determining whether the period for which the parties to a marriage have not lived as husband and wife has been continuous, the Court shall disregard any period or periods not exceeding six months in the aggregate during which the parties resumed living as husband and wife. In the instant Petition, the undisputed fact is that per the evidence adduced Parties herein have not lived together as husband and wife since 2017 which is a period exceeding five (5) years: Thus Section 2(1) (d) suffices. Again per the evidence adduced, I do not have any iota of doubt in my mind that the Respondent has behaved in a way that the Petitioner cannot reasonably be expected to live with her. Thus Section 2(1) (b) suffices. It is my considered opinion therefore that the Petitioner has been able to satisfy the Court that since there is no evidence on record that since 2017 to date parties at a point resumed marital relationship thus they have not lived together as husband and wife, Petitioner has satisfied the Court that the marriage between him and the Respondent has broken down beyond reconciliation. 7 |E5/24/2020 I hereby find that the Customary marriage between parties herein; Petitioner Isaac Mensah and Respondent Eugenia Amegavie in the year 2004 has broken down beyond reconciliation and same is dissolved. 2) On the issue of whether or not the Matrimonial home of parties is a jointly acquired property. I find that from the evidence adduced during this trial, the said house was already built by the Petitioner even before the said marriage between the parties. As at the time of their marriage in 2004, the house was already habitable and parties moved in after their marriage. The period which Respondent says she was in relationship with the Petitioner prior to the marriage was when Petitioner was married to his previous wife, Iris Tagoe. This fact came out in the course of the trial. Respondent did not rebut this fact. Respondent is relying on the Principle in Mensah and Mensah to establish that she was in relationship with the Petitioner at the time the said house was being constructed thus, she is the joint owner of the said property which fact the Petitioner has denied. Respondent has not given any cogent evidence as to her contribution towards the acquisition of the said house. What she is saying basically is that she was playing wifely duties at the time the said house was razed down by fire and was being reconstructed. She however does not deny the fact that it was Petitioner who financed the reconstruction. Subsequent to Mensah and Mensah’s Principle of Equity is Equality, other authorities emerged bordering on the fact that there is the need for a spouse to adduce evidence of actual contribution made towards acquisition of marital property. I will refer to the following statutes and case laws; 8 |E5/24/2020 On the issue of distribution of spousal property upon the dissolution of marriage, the Supreme Court by plethora of decisions over the years has outlined and defined the principles that should guide the courts in their determination of what a spouse should be entitled to when it comes to the distribution of properties acquired during the subsistence of a marriage. Some of the cases that serve as the guiding authorities of the distribution of spousal property are Mensah vs Mensah (1998-1999) SCGLR 350, Boafo v Boafo (2005-2006) SCGLR 705, Fynn vrs Fynn (2013-2014)SCGLR 727, Arthur vrs Arthur (2013-2014) SCGLR 543 and Mensah vrs Mensah (2012) 1 SCGLR 391, Quartson vrs Quartson (2012) 2 SCGLR 1077. These principles laid down by the Supreme Court were largely influenced by the provisions on spousal rights to property in the 1992 Constitution. For instance, Article 22 (2) and 3(a) & (b) of the 1992 Constitution provides as follows: “(2) Parliament shall as soon as practicable with the coming into force of this constitution, enact legislation regulating the property rights of spouses. (3) With a view to achieving the full realization of the rights referred to in clause (2) of this article- (a) spouses shall have equal access to property jointly acquired during marriage. 9 |E5/24/2020 (b) assets which are jointly acquired during marriage shall be distributed equitably between the spouses upon dissolution of the marriage." The combined effect of the provisions in the Constitution quoted above and the decisions of the Supreme Court in the cases outlined above is that any property that is acquired during the subsistence of a marriage is presumed to have been jointly acquired by the couple and upon divorce should be shared between them on the equality is equity principle. However, as was held by the Supreme Court at holding 3 (page 546) of the Arthur case cited above, this presumption of joint ownership is rebuttable upon the adduction of evidence to the contrary by one of the spouses. In the instant petition, evidence has been added that, the said property cannot be described as jointly owned by parties. Furthermore, in the recent case of Peter Adjei vrs Margaret Adjei (2021) DLSC 10156, the Supreme Court per Appau JSC further clarified the position of the law on the issue of joint ownership and held that: "What this means in effect is that it is not every property acquired single handedly by any of the spouses during the subsistence of the marriage that can be termed as "jointly acquired" property to be distributed at all costs on the equality is equity principle. Rather, it is property that has been shown from the evidence adduced during the trial to have been jointly acquired." 10 |E5/24/2020 In the Adjei case sited above, His Lordship went further to clarify that: "it is sufficient if the property was acquired during the subsistence of the marriage. However, where such evidence exists, it is necessary that a spouse alleging such contribution must render or offer it to quantify his/her share or portion in the property so acquired on the equity principle." In the instant Petition, I am of the considered opinion that “equality is equity” principle is not applicable. On issue 3 which is, 3) Whether or not parties are entitled to their reliefs; I grant the following reliefs in favour of the Petitioner; 1) The Property numbered H/No. BAE38/30 situate at Baatsona Community 18 be settled on the Petitioner. 2) In respect of the Two (2) plots of land which Respondent is denying their existence, and the Petitioner has not adduced any cogent evidence thereon, I will not address same. 3) The Renault Scenic car with Registration No. GR-96-90-13 is to be settled on Respondent. 4) The Toyota Corolla car with Registration No. GN-5953-16 be settled on the Petitioner. 5) In respect of financial settlement, I will order that the Petitioner pays an amount of Thirty Thousand Ghana Cedis (GH¢30,000.00) to the Respondent. This should be within twelve (12) months. 11 |E5/24/2020 In respect of Respondents “relief (1)” which is “ an order for the parties’ Matrimonial home on the Spintex Road at Community 18 Baatsona in Accra be valued and sold and the proceeds distributed among the parties herein or alternatively the Petitioner be made to pay Respondent fifty percent (50%) of the total value of the Matrimonial home failing which the aforesaid property be sold and the Respondent be paid her portion forthwith”. I do not find Respondent entitled to this relief therefore same is dismissed In respect of (Relief 2) which is an “an Order vesting the two (2) plots of land at Oyibi near Accra and which only the Petitioner knows of in the Petition and for the Respondent to be vested with the Matrimonial home on the Spintex Road at Community 18, Baatsona Accra” also fails and same is dismissed. No cogent evidence has been led as to the existence of it so I will not address same. Respondent has not been able to prove the means of Petitioner for the Court to make an assessment. In respect of (relief 3) which is the Petitioner be ordered to make financial provision toward the upkeep of the Respondent during the pendency of the suit and a further Order for alimony in the sum of One Hundred Thousand Ghana Cedis (GH¢100,000.00) to be provided the Respondent by the Petitioner is dismissed. In respect of ( relief 4) which is the perpetual Injunction restraining the Petitioner, his agents, servants and or assigns and that includes any person taking instructions from the aforesaid Petitioner from dealing in any way with the parties’ Matrimonial home in Accra which is detrimental to the interest of the Respondent and a further Order for the preservation of the aforesaid property is dismissed. 12 |E5/24/2020 H/L: RITA AGYEMAN-BUDU (MRS) (JUSTICE OF THE HIGH COURT). sb.a 13 |E5/24/2020