Addison Vrs Bassaw [2023] GHACC 377 (12 July 2023)

Benjamin Ato Addison v Doreen Maame Araba Bassaw IN THE GENDER-BASED VIOLENCE CIRCUIT COURT AT SEKONDI W/R HELD ON WEDNESDAY, 12TH JULY 2023 BEFORE H/H NAA AMERLEY AKOWUAH (MRS.) ……………………………………………………………………………….………… C4/04/2022 BENJAMIN ATO ADDISON PETITIONER V DOREEN MAAME ARABA BASSAW RESPONDENT ------------------------------------------------------------------------------------------------------------ PARTIES: PRESENT C/PT.: VICTOR OWUSU, Esq. C/RES.: BEN SAMSON-EPHRAIM, Esq. JUDGMENT In support of a rather simple one-line claim for dissolution of his marriage to Respondent, the subsequent hearing of evidence in support was long, protracted and convoluted. This was due, in the main, to the claims in Respondent’s Answer where she cross-petitioned for dissolution of the marriage, an order for the Petitioner to make financial provision for her commensurate with her health condition and standard of living, an order directed at Petitioner to pay for a 3-bedroom accommodation in Accra for 3 years for her use subsequent to dissolution of the marriage and distribution of an uncompleted storey at West Anaji, a Toyota Land Cruiser V8 with registration number GT-7557-18 and Toyota Tundra registered as GR 3677-20. Page 1 of 15 Benjamin Ato Addison v Doreen Maame Araba Bassaw Considering that the better part of the hearing centered on the properties mentioned, I find it expedient to commence this judgment on the issue of whether or not the disputed properties are matrimonial properties and ought to be distributed. The second part of this judgment will then be on the issue of whether or not the marriage has indeed broken down beyond reconciliation. ISSUE 1 whether or not the disputed properties are matrimonial properties and ought to be distributed “Matrimonial property”, for purposes of distribution after a divorce, has been defined to include property acquired during the marriage. Article 22 (3) of the Constitution, 1992 states that; “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 (b) Assets which are jointly acquired during marriage shall be distributed equitably between the spouses upon dissolution of the marriage In the recent case of Peter Adjei v Margaret Adjei (Civil Appeal No. J4/06/2021 delivered on 21/04/2021) which referenced the cases of Mensah v Mensah [2012] 1SCGLR 391 and Arthur (No. 1) v Arthur (No. 1) [Civil Appeal No. JA/19/2013 dated 26/07/2013 it was held that unless rebutted, all properties acquired during the subsistence of a marriage are presumed to have been jointly acquired by the couple. Property acquired before marriage continues to belong to the spouse who owned it before the marriage unless in the course of marriage, the other spouse adds substantial value to the property, the spouse who added substantial value acquires a beneficial interest in it. Page 2 of 15 Benjamin Ato Addison v Doreen Maame Araba Bassaw In respect of the uncompleted building at West Anaji, Respondent’s case in paragraphs 34 of her testimony was that same was acquired during the subsistence of the marriage and that entitled her to a fair share. Under cross-examination, her assertion of the West Anaji property being treated as a subject of distribution was challenged by Petitioner, as follows; Q: Reference paragraph 34 of your Witness Statement It is not true that both of you acquired an uncompleted building situate at Anaji A: It is true. That said property when he took me there it was just a foundation with just 4 blocks laid and since we got married, he has done it to the lentel level Q: Your testimony that the building was at the foundation level and currently at the lentel level is so not true A: It is true what I said Q: Reference Exhibit F series That is the Anaji properties that you are talking about, not so A: Yes Q: You can confirm from the pictures that they have various developments at every point in time A: Yes, but the one I am referring to is “Exhibit F1” (1st August, 2015) and that is what I said he has gotten to the lentel level. …. Q: And those 4 plots of land were all acquired before the 2 of you got married A: Yes, it is true. When we got married, those 4 plots had already been acquired Page 3 of 15 Benjamin Ato Addison v Doreen Maame Araba Bassaw … Q: And these plots were acquired in 2011 A: Yes, I confirm that but I am saying that one of the projects he built in the course of the marriage Q: The project that you are saying was acquired during the course of the marriage has not been completed and is not habitable A: Yes, it is not habitable but it is at the lentel level Q: You also agree with me that the funding for that house, i.e., the one at the lentel level as you claim, was solely provided by the Petitioner A: Yes, it is true but my health condition did not allow me to support financially but I supported as a wife At the end of hearing, Respondent’s answers admit of the fact that the land on which the disputed property is, including the three other plots of land, were acquired before the marriage was contracted. However, she argued that since Petitioner continued with construction during their marriage from the foundation and 4-course level which the property was when he took her there, she must have a share. In the same breath, Respondent admitted that she did not make any financial contribution to the continuation of construction of the said property but that was no fault of hers because she was unwell. As Counsel for Petitioner succinctly pointed out in his Address, since Respondent cross-petitioned, a substantive suit by itself, she carried the burden in s. 10(1) & 11(4) of the Evidence Act, 1973 (NRCD 323) to prove her claims. See the case of SumailaBielbiel v AdamuDramani& AG (No. 3) [2012] 1SCGLR 370@ 371. In this regard, Respondent’s testimony that she put forth which she said entitled her to a share of the West Anaji property, was the refrain ‘but I supported as a wife’. No particulars of Page 4 of 15 Benjamin Ato Addison v Doreen Maame Araba Bassaw this support were presented to the Court but it may be inferred as the succor, comfort, childcare and other unquantifiable contribution that wives, generally, give to their husbands, which are deemed to provide the opportunity and peace of mind for them to work, make money and acquire properties. In the instant case, it is on record that less than a week after the marriage celebration, Respondent suffered an ectopic pregnancy which required surgery and the result has been a continuous lack of energy to earn an income, as corroborated by RW1 & RW2, and inability to perform her roles as a wife to Petitioner, as was told on doctor’s advice. Indeed, from the very first weeks of their marriage, Respondent’s mother had to stay with the couple to cook, take care of Respondent’s child and supervise the domestic help living in their home. What then would be the basis to consider that despite not contributing financially to the said West Anaji property, Respondent supported Petitioner in other ways to continue with construction, a fact he has denied? I find none, not in the traditional sense of the duties of a wife or modern sense of financial contribution by a partner towards the joint acquisition of a matrimonial property. It is little wonder that Counsel for Respondent completely ignored the claim for a share of the Anaji property in his Written Address filed on 10/07/2023 and concentrated on the claim for the provision of suitable rental accommodation, a matter that will be dealt with later. On the basis of Exhibits B & C series, indentures covering plots numbers 37, 38, 39 & 40 dated in 2011,I find that the West Anaji property is not matrimonial property. It was the self-acquired property of Petitioner and cannot be the subject of distribution upon divorce under s. 20 of the Matrimonial Causes Act, 1971 (Act 367). The two vehicles; a Land Cruiser and Tundra are the next subjects for determination. Similar to her submissions in respect of the West Anaji property, Respondent claimed joint ownership of the two because they were acquired during the pendency of the marriage. Reference paragraphs 12 & 34 of her Answer and evidence in chief, Page 5 of 15 Benjamin Ato Addison v Doreen Maame Araba Bassaw respectively. To support her claim, she tendered Exh. 4 series, a DVLA Form C used to effect transfer of ownership, a letter from Petitioner addressed to the DVLA notifying it of the transfer of ownership of the Land Cruiser from the company African Prestige Co. Ltd. (APCL) to Petitioner and a letter from Ahantaman Rural Bank Ltd. dated January 2019 to the DVLA, Tema informing it of the change of ownership of the vehicle to APCL, from joint ownership to sole ownership, after the latter liquidated the loan it procured for the purchase of the vehicle. Exh. 4G, a customs clearance form dated 27/09/2017, showed that Toyota Ghana Ltd., the company which imported the Land Cruiser on behalf of APCL &Ahantaman Rural Bank, bought the vehicle prior to the parties’ marriage contract. Under cross-examination, it appeared Respondent was unaware of the material details of her own exhibits which showed that the funds for and purchase of the Land Cruiser were organized and made before the parties were married on 18/11/2017. Her answers when this was pointed out to her were as follows; Q: In your own document that you attached to your Witness Statement i.e., the letter from Ahantaman Rural Bank to DVLA Tema asking for Change of Ownership (reference Exhibit 4c) dated 2nd January 2019 are you aware A: Yes, from the exhibit it was in the name of the Ahantaman Rural Bank but now it is in the name of my husband Q: But that car, the negotiations with Ahantaman Rural Bank and subsequent purchase, you played no part in it at all A: It is not true that I did not because he told me that he was going to buy the car and I supported him and it was during the time that I had the surgery that he bought it. So financially, I did not support him because I was not in a position to because of my health condition Page 6 of 15 Benjamin Ato Addison v Doreen Maame Araba Bassaw … Q: This Land Cruiser was acquired before you got married because even the loan application was dated 18th September, 2017 as seen in “Exhibit E” A: It is not true. We started the relationship on 1st January, 2017 so we were together till he applied for the loan and got the car. Q: But this loan was approved by Ahantaman Rural Bank and African Prestige Company Ltd. on 17th October, 2017 as shown in “Exhibit E4” A: I do not know that it was approved on that set date. We were in courtship and we got married and that is all I can say Q: This Land Cruiser was officially dispatched by Toyota GH. Ltd. to Africa Prestige Company Ltd. and Ahantaman Rural Bank on 31st October, 2017 from “Exhibit E5” A: On that set date, my husband called me because I was in Accra. Yes, I know the car was dispatched on that day. Per her own oral evidence given in court, Exhs. 4 series, as well as Petitioner’s Exh. E series, variously dated in September 2017, October 2017 & 1/11/2017 before the parties were married, I find that the Land Cruiser is not matrimonial property. Of the Tundra, Respondent carried the burden to produce sufficient and persuasive evidence to support her claim that it is a matrimonial property as required by s. 11(4) & 12 of the Evidence Act, 1975 (NRCD 323), reiterated in the time-held Zabramavrs. Segbedzi (1991) 2 GLR 221@223. This was imperative particularly because it has a registration number in 2020, almost 3 years after their marriage celebration. However, she failed to lead cogent evidence to support her claim, rather admitting under cross- examination that same belonged to APCL and Petitioner, by virtue of him being a Page 7 of 15 Benjamin Ato Addison v Doreen Maame Araba Bassaw director of the former. Reference is made to pages 39-40 of the Record of Proceedings as follows; Q: The Tundra in question is not even owned by the Petitioner A: It is true it is not owned by the Petitioner but my husband as a Director of African Prestige Company Ltd. applied for the car loan in the course of his marriage Q: This Tundra is currently in the names of both APCL and ARB, are you aware? A: Yes The interaction above was confirmed by Exh. D3-D12 tendered by Petitioner, constituting the Board resolution of APCL to contract a loan facility for the purchase of an excavator and Toyota Pick Up, the loan application letter together with the loan forms in that regard, supporting documents, etc. The law is trite that where a party’s assertion is corroborated by the evidence of his opponent, he need not lead evidence to support same. In Linda Akoto v Bright Kwasi Manu (Civil Appeal No. J4/30/2021 delivered on 26/01/2022) the Supreme Court held that where a party makes an allegation and fails to give evidence on it, the evidence of the other party, without more, will be accepted by the court, especially if it were the only evidence on the matter on record. Of significance from an examination of Exh. D series is the fact that Petitioner’s self- acquired property, which served as the parties’ matrimonial home, was used as a guarantee to the loan used to purchase the Tundra. All the evidence on record, and admitted to, shows that despite the purchase of the Tundra in 2020 during the pendency of the marriage, same was acquired by APCL through its director, the Petitioner. In his Written Address, counsel for Respondent submitted that the vehicles, particularly the Tundra, should be treated as matrimonial property although same was Page 8 of 15 Benjamin Ato Addison v Doreen Maame Araba Bassaw not in his name and Respondent did not contribute financially towards its acquisition because, in his own words; “Your Honour, the defence of the Petitioner is that the Respondent contributed nothing to the purchase of the vehicle [which] in our view is erroneous. The Respondent cooked for the Petitioner, maintained the home and washed for him among other things. The contribution of the Respondent’s mother to the upkeep of the marital home also inures to the benefit of the Respondent”. In other words, Counsel for Respondent indirectly acknowledged that Respondent did not personally carry out these wifely duties, which he invited the Court to quantify as her contribution towards the acquisition of property. However, in his opinion, RWI mother of Respondent’s assistance to the parties, which included the care of Respondent’s biological daughter, should be perceived as having been done by the Respondent herself and credited to her as contribution. I acknowledge the novelty of this argument as a consideration for arriving at a spouse’s contribution to the acquisition of property during a marriage, but I am of the opinion that same would be stretching the factors set out in the old cases of Arthur v Arthur [Civil Appeal No. JA/19/2013 dated 26/07/2013], Mensah v Mensah [[2012] 1SCGLR 391], etc. Indeed, I very much doubt that vicarious contribution benefit would be accepted by the Superior Courts as a contribution, so-called. I reference the case of Benjamin Awuku Martinson v Sarah Martinson (2022) JELR 109 H1/102/2020, 27th Jan. 2022cited by Petitioner’s counsel in his Written Address, where it was held that; “As a matter of law, the presumption of joint acquisition is rebuttable upon evidence to the contrary. In the words of Appau JSC as stated in Adjei v Adjei (supra): ‘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 a jointly acquired property to be distributed at all costs on this equality is equity principle”. Page 9 of 15 Benjamin Ato Addison v Doreen Maame Araba Bassaw From the evidence before me, I find that the Tundra is the property of APCL, not Petitioner, and this is solidly supported by the tenets of separate legal entity in company law settled in the hallowed case of Salomon v Salomon [1973] Vol. V No. 3 RGL 187-196, echoed in Morkor v Kuma (No. 1) [1999-2000] 1GLR 721 and Ago Sai &Ors. V KpobiTettehTsuru III [2010] SCGLR 762. The APCL is a separate and distinct entity from its managers, shareholders or directors, including Petitioner and so the properties of the company, although acquired through the actions of its officers, in this case Petitioner, are deemed to be owned by the company. The position of the law aside, I find that Respondent failed to lead any evidence of interests in, co-ownership or shares vested in her in APCL as required by the Companies Act, … (Act 992) to entitle her to interest(s) in the Tundra. Any orders in her favour in that regard will be unsupported in law and fact. Respondent prayed the Court for financial provision to be made in her favour. Her lawyer submitted that s. 20 of Act 367 together with the relevant holdings in Oparebea v Mensah [1993-94] 1GLR 61-75, Aikins v Aikins [1979] GLR 223-233 and Ribeiro v Ribeiro [1989-90]2 GLR 109 gave a court the authority to “order either party to the marriage to pay to the other party such sum of money or convey to the other party such movable or immovable property as settlement of property rights or in lieu thereof or as part of financial provision as the court thinks just and equitable”. The referenced cases further set out the guiding considerations that go into making orders for financial provision for a spouse, which should not be based on the contributions of the party making the claim but on the needs of the parties. I must quickly point out that the authorities cited mainly dealt with settlement of immovable property in a party’s favour. In the case of Yaa Amponsah v Kofi Adarkwah [Suit No. DM 0309/2016 dated 23/03/2020] the court listed some of the considerations for making financial provision under s. 20 of Act 367. These include circumstances of the parties, duration of the marriage, need for resettlement of Page 10 of 15 Benjamin Ato Addison v Doreen Maame Araba Bassaw either party and standard of living of the parties. In the instant case, by August 2021 almost 4 years after their marriage, Petitioner filed the instant petition for divorce. The evidence on record is that as at November 2022, the parties were living apart with sexual relations having ceased sometime in 2021. As stated earlier somewhere in this marriage, for the entire lifespan of the marriage, Respondent could not carry out her work as a caterer, and I reject the argument of her lawyer that this was Petitioner’s fault because if he had not impregnated her and she had not suffered an ectopic pregnancy, Respondent would have worked and made sufficient income as she used to before marrying Petitioner. On the other hand, Petitioner is on record to be in active employment, despite recent financial challenges. Also, that during the period the parties lived together, he was primarily responsible for maintaining Respondent, her then 6-year-old daughter, including paying her school fees, Respondent’s mother and footing her medical bills until they separated. The ratio of financial and other contribution by each party was obviously high on Petitioner’s end and quite low on Respondent’s. As guided by the authorities, as much as Respondent is currently not gainfully employed and has medical reviews to access, it would not be fair to disregard Petitioner’s role as a husband and father to her and her daughter, the number of years of the marriage and other factors set out above. In my considered opinion, an award of financial provision cannot be used as a means for one party to set himself or herself up for life, inasmuch as the other party has the means to pay. On the subject of accommodation, Counsel for Respondent argued that Petitioner should be made to rent suitable accommodation for her because “she was renting a 3- bedroom house with two out houses and with a lot of space at no mean a place than Awudome Estates”. Besides, Counsel further argued, she left her Awudome accommodation at Petitioner’s insistence and so now that the marriage was literally over, he should be made to provide her with commensurate living premises. Page 11 of 15 Benjamin Ato Addison v Doreen Maame Araba Bassaw As much as sympathies go to the Respondent, I find no merit in the arguments advanced to support the claim for accommodation. Act 367 has no provision for a party to provide shelter for his/her partner upon dissolution of the marriage. What the law provides is for the payment of maintenance and financial provision for a spouse, pending suit under s. 19 of Act 367, and as final orders in s. 20 where same may be ordered under ‘property settlement’. Under s. 22, Act 367, a party may be ordered to make financial provision for children of a marriage, which sensibly, will include accommodation where custody is given to the other spouse. In this case, the parties have no child (ren) together for Petitioner to be under compulsion to provide shelter for them as required under the Children’s Act, 1998 (Act 560). I cannot accept that Petitioner should provide accommodation for Respondent because she moved in with him into their matrimonial home; that is the reasonable expectation of marriage for the parties to live together and so Respondent moving from Accra, was not an act of sacrifice or a favour for which she has to be compensated for. ISSUE 2 Respondent joined issue with Petitioner’s assertion that the marriage has indeed broken down, although in her opinion, due to Petitioner’s unreasonable behavior particularized as intemperate and uncaring behavior towards her after her surgery, being prone to anger, refusing to talk to her for several days after a misunderstanding, failing & or refusing to have sexual intercourse with her, etc. Reference paragraphs 10, 11, 15-20 & 21of her evidence-in-chief. Mirror allegations were similarly made in paragraphs 9(i-vi)- 11 & 6-8 by the Petitioner in his Pleadings and evidence-in-chief, mainly that the Respondent was often rude and disrespectful to him, a behavior he cannot put up with. The elements, consequences, test for and proof of “unreasonable behavior” as set out in s. 2(1)(b) of Act 367 has been discussed time without end. Reference chapter 13 of William E. Offei’s book “Family Law in Ghana” (5th Ed.) and Frederica Ahwireng-Obeng’s book Page 12 of 15 Benjamin Ato Addison v Doreen Maame Araba Bassaw “Contemporary Principles of Family Law in Ghana” as well as the case of Audrey Addo Mensah v Isaac Otti Yeboah [High Court, Suit No. DM0041/2016, 20th October 2016]. From the evidence before me, I come to the conclusion that neither party satisfied me on their allegations of unreasonable behavior, not even with the corroborative testimony of RW1, Respondent’s mother, in accordance with s. 10 & 11 of NRCD 323. Indeed, it was my observation, from the fact that the entire lifespan of the marriage has witnessed Respondent being unwell and almost incapable of contributing meaningfully to the marriage, coupled with the ill-luck of not enjoying each other’s companionship from the word go, put a strain on the chances of the success of the marriage. Losing a pregnancy days after one’s wedding and falling sick subsequently, was sure to take the shine out of a newly-minted marriage. Under the circumstances, it was not surprising that the typical minor issues became matters that the parties could not settle on, leading to irreconcilable differences. I find support in Respondent’s and RW1’s attempts to explain the otherwise inexplicable behavior of Respondent and attribute same to side effects of certain medications that she was on. Further, the one-off instances of disagreements, misunderstandings and arguments that occurred cannot be concluded to be unreasonable behavior on either party’s part. As such, I hold that the bases of both parties’ complaints of the breakdown of the marriage is proof of irreconcilable differences under s. 2(1) (f), Act 367 which states that; (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: (f) that the parties to the marriage have, after diligent effort, been unable to reconcile their differences At page 132 of “Contemporary Principles of Family Law in Ghana”, the author noted that “when a petitioner is able to establish that he/she is unable to agree with his/her husband or Page 13 of 15 Benjamin Ato Addison v Doreen Maame Araba Bassaw wife on a particular issue or issues, the court will order a dissolution if it has led to a breakdown of the marriage beyond reconciliation”. It is obvious that communication, personal likes, dislikes, quirks, and idiosyncrasies coupled with other otherwise trivial matters have been the subjects of disagreement between the parties and have led to a breakdown of the marriage and I so find. See the case of Yaa Benewa Appiah v Nash Appiah (2016) HC Suit No. BDMC179/2015, 20 Dec. 2016 and Mensah v Mensah [1972] 2GLR.198 DECISION On the foregoing, I hereby grant the petition for divorce on the finding that the marriage between the parties has broken down beyond reconciliation on the basis of s. 2 (1)(f) of Act 367. Being satisfied from the evidence adduced, I proceed under s. 42 (1) (b) of the Courts Act, 1993 (Act 459) to decree that the Ordinance Marriage between Benjamin Ato Addison and Doreen Maame Araba Bassaw celebrated on 17/11/2017 at the STMA, Sekondi is hereby dissolved. ANCILLARY ORDERS 1. Petitioner is ordered to pay an amount of GHC30,000 to Respondent as financial settlement on the authority of s. 20, Act 367 to be paid in 6 monthly instalments effective July 2023 in accordance with s. 20(2) of Act 367. 2. The claim for the provision of accommodation for Respondent is dismissed as unmeritorious 3. The claim for distribution of an uncompleted property at West Anaji, a Toyota Land Cruiser (GT 7557-18) and Toyota Tundra (GR 3677-20) is dismissed 4. The Registrar of this court shall issue a divorce certificate accordingly. 5. Each party to bear his/her costs. Page 14 of 15 Benjamin Ato Addison v Doreen Maame Araba Bassaw .................................................................. H/H NAA AMERLEY AKOWUAH (MRS.) Page 15 of 15