Takyiwaa Vrs Abbion [2023] GHADC 280 (2 June 2023)

IN THE DISTRICT COURT SITTING AT ASAMANKESE ON THE 2ND DAY OF JUNE, 2023, BEFORE HIS WORHIP GEORGE DAVIS KWASI OFORI (MR) - DISTRICT MAGISTRATE SUIT No: A2/53/23 GRACE TAKYIWAA ………. PLAINTIFF VRS. KWAME ABBION ……….. DEFENDANT J U D G E M E N T CLAIM: The plaintiff’s claims against the defendant are: a) Recovery of cash, the sum of Gh¢6,000.00 being arbitration award of financial settlement for the dissolution of marriage which the defendant promised to pay in or before April, 2022, but has refused to do so despite repeated demands. b) An order upon the defendant to allow the plaintiff to remove he personal belongings which the plaintiff has seized from October, 2021 to April, 2022. c) An order to pay maintenance arrears from October, 2021 to April, 2022. SUMMARY OF PLAINTIFF'S EVIDENCE: It is her case that about twenty six (26) years before this action, the defendant proposed love to her, and later presented a bottle of schnapps to the plaintiff’s relatives. That some customs were performed and the defendant was given a list of items to buy and later perform the remaining customary rites for their marriage. That she was married to the defendant for 25 years and cohabited with him for that period, but about 4 years before this action, she fell sick, where the defendant told him to go to her parents to seek treatment, which she did . That ever since she went to live with her parents, the defendant never visited her nor provide for her financially. That the defendant removed her belongings from their home and sent them to one Papa Oyede’s houses, and that she reported this matter to the police, Asamankese. That there was an arbitration to settle the differences between her and the defendant in 2021 where the panel ruled that the defendant compensates her with an amount of Gh¢3,000.00 for medical care and alimony respectively, making a total of Gh¢6,000.00, but the defendant has refused to pay the money. That the defendant also agreed to send her personal belongings to her in Asamankese, failed to do so. Hence this action seeking for the reliefs endorsed on her writ of summons. The plaintiff called two witnesses to support her case. SUMMARY OF DEFENDANT’S CASE: It is his case that in 1990, he proposed love to the plaintiff who accepted. That they began an amorous relationship which he thought would lead to marriage. That all attempts to perform the marriage rites to marry the plaintiff proved futile, with the plaintiff telling him that marriage is like joining an association and hence it was her right to join or not. That he did everything possible to marry the plaintiff but she refused and so he did not marry her. That during their concubinage and cohabitation, he assisted the plaintiff to put up her house to roofing level. That he took care of the plaintiff’s 4 children and in appreciation they bought a cloth for him but the plaintiff took it away from him. That when he met with the plaintiff’s family in 2021, he was told to pay alimony as send of to the plaintiff, but when he sought counsel from his family they objected to it. The defendant called one witness to support his case. ISSUES FOR DETERMINATION: From all the evidence before me, the issues that came up for determination are: a) Whether or not a customary marriage existed between the parties for same to be dissolved in the first place: b) Whether or not there was a valid customary arbitration between the parties where a customary marriage between them was dissolved and award published; and c) Whether or not the plaintiff is entitled to any form of compensation from the defendant. To be successful, the onus lies on the plaintiff, to lead sufficient evidence to prove that on a balance of probabilities, her case is more reasonably probable than the defendant’s on material issues, and this is trite hearing. See Sections 10, 11 and 12 of the Evidence Act 1975 (NRCD 323), and also the cases of Adwubeng vrs. Domfeh [1996-1975] SCGLR 660 and Fosua and Adupoku vrs. Adu Poku Mensah [2009] SCGLR 310. With respect to the first issue the plaintiff stated at paragraphs 2 and 3 of her witness statement that the defendant approached or met her parents and later presented a bottle of schnapps to her relatives. That the defendant was given a list of items to buy to later perform all the remaining customary rites of marriage. What the plaintiff did not add is that the defendant came to perform the remaining customary rites or not. At paragraph 4 of her witness statement, the plaintiff stated that she married the defendant for 25 years. The defendant on his part stated in his witness statement that when they lived in a concubinage relationship, he did every thing to marry the Plaintiff but the plaintiff prevented him from marrying her, telling him that marriage is an association which one joins at will. First of all, living together in a concubinage for a period of 25 years or 26 years, doing things together as husband and wife is enough to create an impression in the minds of the people in the community where they lived that, they where married, which I would describe as a presumption of marriage, which is rebuttable. The plaintiff is an Akwapim. Generally, the essentials of a valid customary marriage by the Akwapims include: a) Agreement by the parties to live as husband and wife. b) Consent of the families of both parties c) Presentation of drinks and a token of money by the man to the woman’s family which is described as ‘knocking” or “Kokooko”. d) The marriage rites proper or “ayeforo” or Awaregye” e) Consumation of the marriage. Se Re Caveat by Clara Sackitey [1962]1 GLR 180. See also page 49 of William E Offei’s book “Family Law In Ghana (third Edition), Badu vrs. Boakye [1975]1 GLR 283, HC. In the case of Badu vrs Boakye (supra) Osei-Hwere J as he then was said” where a man lives with a woman not as a real wife but only as a concubine, with the consent of the woman’s parents, the association cannot be translated into a valid customary marriage because the man and woman are reputed to live as a man and wife. Even though the defendant freely described the plaintiff as his wife, and also described their association as marriage, this was no more than another emphemism for concubine and concubinage respectively”. From the evidence of the plaintiff, one important ceremony (essential) for their union to be described as customary marriage was not performed, and that is the marriage celebration proper or “Awaregye”. According to her, the defendant was given a list to go and prepare for the marriage, she did not state that he came back to perform the marriage by providing the items listed on the marriage list. In my candid opinion, what the man did was just “knocking” and not marriage. Therefore, in my opinion, there was no valid customary marriage between the parties . By deduction therefore, once there was no valid customary marriage between the parties in the first place, there could therefore not be any dissolution of same. In my opinion, the type of relationship that existed between the parties was a concubinage, or what I would describe as a consensual symbiotic relationship, with each deriving benefits from the other. With respect to the 2nd issue, Ollem J, (as he then was) enumerated the essentials of a valid customary arbitration in the case of Budu vrs Caesar [1959] GLR 410 as follows: a) Voluntary submission of the dispute by the parties to the arbitration; b) Prior agreement of the parties to accept the award of arbitrators, I.e a prior agreement by the parties to accept the outcome of the arbitration or be bound by the out come of the arbitration; c) Due observation of the rules of natural justice, ie the rule against bias or rules of fair hearing; d) Compliance with the rules of jurisdiction, e) Publication of the award. See also Paul vrs. Kokoo [1962]2 GLR 213, SC. In her evidence, the plaintiff did not mention that they both voluntarily agreed to attend the arbitration. There is no evidence that both made a prior agreement to accept the out come of the arbitration. Again, there is no publication of the out come of the arbitration, neither are there any proceedings of the said customary arbitration filed. Clearly, all the essentials stated in the case of Budu vrs. Caesar (supra) are missing and therefore in my opinion, there was no valid customary arbitration to dissolve any marriage, between the parties (which I have already ruled that there was none) What happened between them was a settlement, and not a customary arbitration. With respect to the 3rd issue, it is uncontroverted that the parties lived together for a long period of time, about 26 years, during which period some properties were acquired. The plaintiff stated that she assisted the defendant to acquire a four acre cocoa farm as well as assisted him to build a house. The defendant also stated that when the plaintiff was living with him and selling charcoal, he was assisting her in the charcoal business, from where the defendant got money to build her house which also assisted her to build. The defendant denied that the plaintiff assisted him to acquire or cultivate the cocoa farm and stated that she did not even know the location of the farm. In my opinion, it would be absurd to reason that the plaintiff never made any contribution towards the cultivation of the farm after living together for a period of over 26 years during which period the farm was acquired It is evidently clear that during the pendency of their concubinage, both acquired separate houses, and it would again be absurd to assume that neither assisted the other in the acquisition of those houses. In my opinion, at the time of the construction of those houses, they knew that the houses belonged to them together. It is their break up that has brought about the diversion of interests. Again, the plaintiff did not deny the fact that when she cohabited with the defendant, she had four children whom the defendant assisted her to raise. Therefore, it is my opinion that they both benefited from each other in their symbiotic concubinage. Be that as it may, the plaintiff fell sick while living with the defendant and therefore it was only morally right that he assisted in her treatment. From all the evidence before me and my evaluation of same, I find as a fact that no marriage existed between the parties and as such there would not have been a dissolution of same. I also find as a fact that they lived in concubinage for over 26 years, with each benefiting from the other. It is also a fact that the plaintiff fell ill while cohabiting with the defendant On the totality of the evidence before me and my evaluation of same, and these findings, the plaintiff could not prove her case, as on a balance of probabilities, the defendant’s evidence carries more weight than the plaintiff's. As such, I am unable to enter judgment for the plaintiff with respect to claims (a) and (c ) because they were not married in the first place, for them to have divorced. The plaintiff is not entitled to any alimony because alimony is financial support that a person is ordered by a Court to give to their spouse during separation or divorce. The plaintiff was not a spouse to the defendant. For the same reason, the plaintiff is not entitled to maintenance. Be that as it may, I order the defendant to pay an equitable compensation of Gh¢2,500.00 to the plaintiff to defray the cost of her treatment. The plaintiff is enjoined to enforce claim (b) which the defendant pleaded liable to, and for which consent judgment had already been entered. Costs of that consent judgment is assessed at Gh¢500.00 which the Court failed to award when the plea was taken. No further orders as to costs. (SGD) H/W GEORGE DAVIS KWASI OFORI (MAGISTRATE) 2/6/23 9