Obiri Vrs Obiri [2023] GHADC 286 (20 July 2023)

1 IN THE DISTRICT COURT AGONA SWEDRU - A. D. 2023 BEFORE HIS HONOUR ISAAC APEATU Civil Suit No A4/178/2023 20th July, 2023 JULIET OBIRI … Petitioner VERSUS RANSFORD AYETE OBIRI … Respondent JUDGMENT This petition for dissolution of marriage was filed by the petitioner-wife to the marriage. From the content of her petition, the marriage between herself and the respondent was celebrated on the 16th day of April, 2011 at the Presbyterian Church of Ghana, Agona Nsaba. And after the marriage, they cohabited variously at Nsaba, Hill City and presently at Kwansakrom. That there are four issues in the marriage whose names were given as Oswald Nana Obiri aged 16 years, Emmanuel Amoah Bampoe Obiri aged 12 years, Samuel Asare Obiri aged 8 years and Solomon Sarpah Obiri aged 6 years. Having married for over ten years, the Petitioner alleges in her petition that the marriage has broken down beyond reconciliation. She therefore filed this petition to, among others, have the marriage dissolved. The District Court rules, C. I. 59 mandate that where a petition was filed by a party, the party must state concisely the grounds upon which the petition was brought. In accordance with the rules as contained in the C. I. 59, specifically, Order 18 rule 1(3) thereof, the Petitioner filed her petition stating the grounds on which she based her claim for dissolution of the marriage. The Petitioner averred in proof of her assertion that the marriage between her and the respondent has broken down beyond reconciliation to the effect that from the past six years, she noticed some changes in the attitude of the Respondent. She alleged that the Respondent has neglected her and does not eat the food she cooks. That he likes making a lot of calls and hides it from her. That when she approached him, Respondent [reacted] angrily and ignored her. That Respondent has been denying her of sex and has been sleeping on the floor. That the Respondent has repeatedly been saying that he was no more interested in the marriage. That when things became difficult for them, Respondent accused her of the being the cause and told her that he had consulted different Pastors and confirmed that she was the cause and that she has even planted juju in her family house. Petitioner averred that her family upon receiving this piece of information called the Respondent to enable them to solve the problem. However, the Respondent confronted her family that he was not interested in the marriage. Petitioner averred that both parties entered the marriage with nothing but with the ideas and support from her as a wife, they acquired two plots of land in which one is lying and situated at Pipe Tank and the other one at Otabilkrom. Petitioner averred that she has contributed in the marriage by cooking food, washing and supporting the Respondent. That she had no complications in giving birth. However, Respondent convinced her [to allow] for the Doctor to sterilize her womb after their fourth child was born because Respondent did not want to have more children. Petitioner quizzed whether she would be able to conceive if she were to marry again now that the Respondent is leaving her. She averred that she trusted the Petitioner that he would stay with her for the rest of her life and this has caused a great pain and harm to her. Petitioner averred that the respondent’s behaviour has caused her too much emotional stress and that she cannot reasonably be expected to live with the Respondent. Petitioner therefore prayed for the following reliefs: a. That the marriage be dissolved b. A fair share [of] the two plots of land being one at Pipe Tank and one at Otabilkrom because she has sacrificed and contributed a lot in the marriage. c. Petitioner prays to the Court for an alimony of GH¢50,000.00 for the sacrifice, contributions and damages caused by the Respondent to her. d. An order compelling the Respondent to maintain the four children with the sum of GH¢300.00 per child pending the dissolution of the marriage and after the dissolution of the marriage. e. Cost f. Any other Orders as this Honourable Court may deem fit. The petition together with all attached documents was duly served on the Respondent in accordance with procedure. On receipt of the processes, the respondent filed an Answer to the petition and admitted that the marriage has broken down beyond reconciliation. Respondent denied petitioner’s claim that his attitude has changed alleging that it is rather the Petitioner whose attitude has changed and exhibits her desire to leave the marriage. Respondent further averred that Petitioner’s complaints for instance, that he likes making a lot of calls and hides it from her is most unreasonable. On the acquisition of the two plots, respondent averred that he bought the two plots with loans that he took from banks. That he has since sold both plots of land to repay some of his debts which have mounted beyond the extent that he can carry. Respondent averred that he toiled to put food on the table for the family and it was always the responsibility of the petitioner to do the little she could to support the family. Respondent denied that he convinced the petitioner to conduct a sterilization claiming that the sterilization was done upon the advice of their Doctor after the birth of their fourth and last child and because of the possibility of operating her or having a caesarean section which was detrimental to Petitioner’s own health. Respondent denied that he caused the breakdown of the marriage insisting that it was rather the petitioner who has caused the breakdown of the marriage by her unreasonable attitude and behaviour. Respondent therefore urged the court to disregard the relief as claimed by the petitioner. Respondent then cross-petitioned for the following reliefs: i. ii. iii. Dissolution of the marriage Custody of the four (4) children of the marriage In the alternative, Reasonable access for the Respondent to the children at specifically determined periods and times as determined by the court. The cases of the parties stated above, I shall consider which of the parties the burden of proof lay in this case? It is a general rule of law that the court was under a statutory and positive duty to inquire so far as it reasonably could, into the charges and counter charges alleged by parties in a divorce suit as this one. But the onus of proof is on the petitioner to prove all allegations made against any such respondent and where a respondent made a counter allegation, he/she in accordance with section 14 of NRCD 323, bears the onus of proof to establish those allegations. And in discharging the onus on the petitioner, it was immaterial that the respondent had not contested the petition; he/she must prove the charges and, flowing from all the evidence before the court, the court must be satisfied that the marriage had irretrievably broken down. See Danquah v. Danquah [1979] G. L. R. 371; Donkor v Donkor [1982-83] GLR 1158. The onus therefore, of producing evidence of a particular fact, as in civil cases, is on the party against whom a finding of fact would be made in the absence of further proof: see Section 17(a) and (b) of NRCD 323. The authorities are also in harmony that matters that are capable of proof must be proved by producing sufficient evidence so that, on all the evidence, a reasonable mind could conclude that the existence of a fact is more reasonable than its non-existence. This is the requirement of the law on evidence under sections 10 (1) and (2) and 11(1) and (4) of the Evidence Act, 1975 (NRCD 323). The burden of producing evidence has thus been defined in Section 11 (1) of NRCD 323 as follows; “11 (1) For the purpose of this Act, the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling on the issue against that party”. And it bears chipping in that the burden of proof is also not static but could shift from party to party at various stages of the trial depending on the obligation that is put on that party on an issue. This provision on the shifting of the burden of proof is contained in Section 14 of NRCD 323 as follows: “14 Except as otherwise provided by law, unless 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 that party is asserting”. Thus, in accordance with the general rules of procedure and the rules of evidence, the Petitioner had the burden of proving all the averments she made against the respondent on a preponderance of probabilities. If she succeeds in establishing her averments by evidence, the onus will then shift to the Respondent to lead some evidence to rebut same failing which a ruling shall be made against him on that particular issue. Petitions for dissolution of marriage in this country are governed by the Matrimonial Causes Act, 1971 (Act 367). Section 1(2) of Act 367 stipulates that a Court shall not grant a petition for divorce unless the marriage is proven to have broken down beyond reconciliation. And under Section 2(1) of Act 367, for the purposes of showing that the marriage has broken down beyond reconciliation, a petitioner for divorce shall satisfy the Court of one or more of the following facts: a. that the respondent has committed adultery and that by reason of the adultery the petitioner finds it intolerable to live with the respondent; b. that the respondent has behaved in a way that the petitioner cannot reasonably be expected to live with the respondent; c. that the respondent has deserted the petitioner for a continuous period of at least two years immediately preceding the presentation of the petition; d. that the parties to the marriage have not lived as husband 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; e. that the parties to the marriage have not lived as husband 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. It bears reemphasizing that the Matrimonial Causes Act (supra) does not permit spouses married under the Marriage Ordinance, Cap. 127 (1951 Rev.), to come to court and pray for the dissolution of their marriage just for the asking. There is a requirement for a petitioner in such a case for dissolution of marriage to first satisfy the court of any one or more of those facts set out in section 2 (1) of the Act (above), not only by pleading them but also by proof for the purpose of showing that the marriage had broken down beyond reconciliation. This has been the principle laid down in a line of cases including Donkor v Donkor [supra]. The court in the Donkor v Donkor case explained further that Section 2 (3) of the Act, provided that even if the court found the existence of one or more of those facts it should not grant a petition for divorce unless it was satisfied that the marriage had broken down beyond reconciliation. I have stated briefly the law on dissolution of marriages above. The law requires that the petitioner leads evidence to prove breakdown of the marriage. Now, the question is, what did the petitioner do to prove that the marriage has broken down beyond reconciliation? The Petitioner gave evidence in a bid to prove break down of the marriage. She then called one witness in proof of her case. The nub of petitioner’s case is to the effect that the love, peace and joy expected in the marriage has eluded them since Respondent always accused her that she was the cause of his difficulties in the marriage and even to the extent that she has planted juju in her family house. That both she and the respondent entered into the marriage with nothing but with her ideas and support as a wife, they acquired two plots of land one of which is lying and situate at Pipe Tank and the other one at Otabilkrom. That she has contributed a lot in the marriage by supporting the Respondent in terms of needs, cooking food and washing. That she had no complications in giving birth but after the birth of their fourth child, Respondent convinced her to undergo a sterilization procedure where her womb was removed because Respondent did not want to have more children. That this has really caused harm to her because she cannot have children any more if she wants to. That the marriage has broken down beyond reconciliation because the Respondent has already packed out and sleeping elsewhere. She thus prayed the Court to dissolve the marriage without any further delay and further prayed for an equitable share of the landed properties in which one is at Pipe Tank and the other one at Otabilkrom. Petitioner further prayed for an order to compel the Respondent to pay alimony of GH¢50,000.00 for the sacrifice, contribution and emotional stress that she has gone through. Her witness who identified himself as her father, corroborated in large measure, the allegations made by the petitioner against the respondent. He alleged that petitioner had informed him about respondent’s accusation that she was the cause of his financial difficulties and that if he did not leave the marriage, he was going to die. He said he questioned the respondent who confirmed that he had indeed told the petitioner that. After the petitioner had closed her case, the Respondent was called to give evidence in accordance with procedure. He gave evidence on his own behalf but did not call any witnesses. The respondent stated to the effect that there have been several arbitrations at his and his family’s instance but to no avail. He admitted that the marriage between them has broken down beyond reconciliation for the past six years. Respondent alleged that the Petitioner has behaved in such a way that he cannot reasonably be expected to live with her as she has also caused him much anxiety, distress and embarrassment. According to the respondent, the petitioner accuse him of having a baby elsewhere, and also of having numerous girlfriends. That they are incompatible as a result of which they are unable to share ideas, solve problems, and discuss their future. On the matter of the Petitioner’s sterilization, he stated that it was done upon the advice of the Doctor and that the Petitioner herself consented by writing a consent form which was duly signed by both of them. He alleged that the Petitioner has a copy of that consent form. That he bore all expenses in enrolling the petitioner in the university to upgrade herself in order to acquire a job. Respondent claimed that the properties acquired within the marriage period have been sold out to pay some of his debts. That in spite of the huge debts on him, he still takes care of the family, be it the provision of shelter, food, clothing, payment of fees and other utility bills. That Petitioner has gone to hire a room for herself, where she sleeps there alone. Having stated the various cases presented by the parties, what are the issues that the court has tabled for resolution in this case? Considering as I stated above that the sole ground for the dissolution of a marriage under the ordinance is that the marriage has broken down beyond reconciliation, I think that the issues which call for determination in this case are: 1. Whether or not the marriage between the parties has broken down beyond reconciliation. 2. Whether or not the respondent behaved unreasonably that the petitioner cannot be expected to continue to live with him 3. Whether or not the petitioner is entitled to alimony of GH¢50,000. 4. Whether or not the petitioner proved that the parties acquired two plots of land at Pipe tank and Otabilkrom. 5. Whether or not the petitioner is entitled to a share of the said two plots of land at Pipe tank and Otabilkrom. 6. Whether or not the petitioner was able to prove the claims on her petition. 7. Whether or not the respondent was able to prove his cross-petition. As an addendum to the law already stated above, it has been settled that in a petition for divorce, any other established fact has to support a finding that the marriage has broken down beyond reconciliation. And any of the grounds upon which divorce is founded as laid down under section 2(1) of Act 367 must only go to prove breakdown beyond reconciliation. So was the evidence led by the petitioner in proof of her assertions able to establish the omnibus ground? From the highlights of the evidence of the petitioner as relayed above, I am able to decipher a plethora of facts upon which she seeks dissolution of this marriage. She made a lot of allegations against the respondent chief among which is that the respondent convinced her to conduct a sterilization by which her womb was removed. That due to that, she is unable to give birth. That the respondent has told her that he was no longer interested in the marriage and has been sleeping on the floor. That the respondent has denied her of sex. That now that the respondent intends to leave the marriage, if she wants to give birth again, she cannot do so. That respondent does not eat her food and hides calls from her. These are the facts based on which the petitioner sought to prove her allegation of unreasonable behaviour against the respondent. On its face, these facts amount to unreasonable behaviour which is a valid ground to seek dissolution of the marriage. Now, even though the petitioner made the above allegations, the respondent denied most of them. As already stated above, in his answer to the allegations and in cross- examination, the respondent denied that he had been sleeping on the floor, and that he had told the petitioner that he was no longer interested in the marriage. He denied that he convinced the petitioner to sterilize her womb insisting that the sterilization was done in accordance with doctors’ advice. He denied denying the petitioner of sex and the other range of allegations. However, petitioner did not lead further evidence in proof of her allegations which had been denied. The respondent cross-petitioned for dissolution of the marriage. Just as the petitioner, he also failed to substantiate his allegations based on which he sought the dissolution of the marriage. So, on the evidence led by the parties, there was not enough the court have grounded a dissolution of the marriage on. Be that as it may, there is an abundance of evidence to show that the parties did not gel well as married couples. It is clear to see that all was not well in the marriage. As I have stated above, the petitioner made a plethora of allegations against the respondent including open expression of disinterest in the marriage, being the cause of his financial difficulties, voodooism, etc. It was not surprising that the respondent came up with his own allegations. He also alleged that the petitioner was the cause of the marital problems as a result of her unreasonable behaviour, they being incompatible etc. He made a lot of allegations himself against the petitioner. Despite the fact that the petitioner failed to lead further evidence in proof of her allegations which default equally applies to the respondent, what clearly appears from the facts in evidence is that there are irreconcilable differences that exist between the parties to this marriage. Their differences are so manifest to such an extent that it is more likely than not that they cannot continue to live as husband and wife. As I stated above, the parties have been married for well over 12 years. However, I find that there are real differences between the parties which from the pieces of evidence, exist despite their relatively long period in the marriage. These differences which I find from the evidence, has been the cause of their seemingly inability to coexist as couple. Both do not appear to trust each other. As I have already stated above, a party could ground a petition for dissolution of marriage by proving the fact that there exist irreconcilable differences between them and that the parties to the marriage have, after diligent effort, been unable to reconcile their differences as provided in section 2 (1) (f) of the Act. It was held in the case of Mensah v Mensah [1972] 2 GLR 198 that in order to establish this head or guide line three things are requisite: (a) There should exist differences between the parties. (b) They should have made diligent efforts to reconcile these differences, (c) They should have been unable to effect the reconciliation of the differences. It was further held by the same court that section 2 (1) (f) of the Act did not require that there should be disputes between the parties; it only required that there should be differences. It explained that a dispute is a difference but not all differences are disputes and that the inability of a spouse to have an issue is not a difference even though there may be a difference between the spouses as to how to remedy the situation. The court went on to state that the differences must be between the parties and that a litigation between the wife’s family and the husband’s family would not be a difference between the wife and the husband, although it may lead to one. The fact that the husband belonged to the Justice Party while the wife supported the Progress Party did not mean that there were irreconcilable differences. It again stated that the differences should be such as would make it impossible for the marriage to subsist. It should be remembered, that evidence of the differences is being proffered to show the breakdown of the marriage. Differences which cannot possibly affect the subsistence of the marriage are not sufficient. Evidence of petty quarrels and minor bickering which are but evidence of that frailty which all humanity is heir to is not sufficient. The differences must be real and not imaginary; they should be so deep as to make it impossible for the parties to continue a normal marital relationship with each other. Are there such differences envisaged in the cases in the instant marriage? In this case, I find that there are serious differences between the parties in the marriage. I find from the evidence that the parties have been unable to come to an agreement on anything. They virtually do not understand each other. There is the general admission that the atmosphere that existed in the home was not too cozy. They fought a lot. The petitioner has relocated from the matrimonial home with the consent of the respondent. Indeed as succinctly put by the petitioner, “love, peace and joy expected in the marriage has eluded us since respondent always accused me that I am the cause of the problem when things became difficult in the marriage and to the extent that we have planted juju in his family house”. In such a situation of mistrust, chaos and rancor, I do not think that the court ought to attempt to reconcile what cannot be reconciled. It is not worth the effort to want to reconcile these parties as husband and wife. There is no love between the two. The upshot of the above is that the differences between the Respondent and the petitioner have been widened the more that the parties to the marriage have, after diligent effort, been unable to reconcile their differences. And that is a valid ground to grant their request for dissolution of the marriage. I have read carefully the evidence as presented by the parties. I am of the firm conviction that the Petitioner was able to prove breakdown of the marriage based on section 2(1) (f) of Act 367. There are irreconcilable differences between the respondent and the petitioner which militate against any thought of reconciling the two. On the totality of the evidence on record, I am satisfied that the marriage has broken down beyond reconciliation. I will therefore grant the prayer for dissolution on account of the petitioner and pronounce a dissolution of the marriage between the respondent and the petitioner. The marriage between the parties is hereby dissolved. The Petitioner made a claim for the payment of a lump sum of GH¢50,000 by the respondent as alimony. The legal framework for the payment of lump sum to a spouse upon dissolution of marriage is provided for in the Matrimonial Causes Act, 1971 (Act 367). Section 19 of the Act reads as follows: 19. Financial provision for spouse The Court may, whenever it thinks just and equitable, award maintenance pending suit or financial provision to either party to the marriage, but an order for maintenance pending suit or financial provision shall not be made until the Court has considered the standard of living of the parties and their circumstances. When read together with section 20 of the same Act, a court may award financial provision for either party to the suit upon consideration of these conditions: a. The standard of living of the parties b. The circumstances of the parties c. Just and equitable principles The Act uses the term “financial provision”. This expression “financial provision” is defined in section 43 to include “Maintenance and all other forms of financial support to be provided by one spouse to the other or to any child of the household.” So even though in practice, various terms such as maintenance, alimony, lump sum etc. are used, these are mere exercise in semantics. In fact, there is no distinction between maintenance, alimony and periodical or lump sum payment. They are all described as ‘financial provision’ in the Act. Alimony or lump sum is thus to be understood to be a legal obligation on a person to provide financial support to their spouse before or after marital separation or divorce. Alimony is not child support where after divorce one party is required to contribute to the support of a child of the marriage. With the modern liberalized divorce laws such as ours, alimony has come to be linked to the concept of fault in the divorce. Thus alimony to a wife was paid because it was assumed that the marriage, and the wife’s right to support, would have continued but for the misconduct or misbehavior of the husband. On the reverse, if the wife committed the misconduct, she was considered to have forfeited any claim to ongoing support. The misconduct of one of the parties to the marriage was therefore a factor in determining alimony in divorces. However, it has been held that even though a wife may have, by her conduct contributed to the breakdown of the marriage, that should not be a ground to deprive her of what is due her. In the case of Wachtel v Wachtel [1973] Fam. 72 at 90, CA, the English Court of Appeal went to great lengths to clarify the issue. Lord Denning stated thus: “It has been suggested that there should be a ‘discount’ or ‘reduction’ in what the wife is to receive because of her supposed misconduct, guilt or blame (whatever word is used). We cannot accept this argument. In the vast majority of cases it is repugnant to the principles underlying the new legislation, and in particular the Act of 1969. There will be many cases in which a wife (though once considered guilty or blameworthy) will have cared for the home and looked after the family for very many years. Is she to be deprived of the benefit otherwise to be accorded to her…because she may share responsibility for the breakdown with her husband? There will no doubt be a residue of cases where the conduct of one of the parties is in the judge’s words . . . ‘both obvious and gross,’ so much so that to order one party to support another whose conduct falls into this category is repugnant to anyone’s sense of justice. In such a case the court remains free to decline to afford financial support or to reduce the support which it would otherwise have ordered.” And there is no gender bias in the award of alimony as males may be granted alimony after divorces. That is why under the Act the expression “either party to the marriage” is used to refer to a husband or a wife. So is the Petitioner entitled to the sum of GH¢50,000 which she claims as alimony? I have thoroughly considered the circumstances of this case. As I stated above, there does not appear to be much evidence to rest the cause of the dissolution of the marriage at the doorstep of either party. What appears most apparent is to say that the parties have had differences which resulted in them disagreeing most of the time. It is noted that the petitioner is living apart from the respondent. She stays in Swedru while the respondent is said to be staying in Accra. However, the parties have lived as husband and wife for a considerable length of time i.e. since 2011. During the course of this marriage, the Petitioner has given birth to four (4) children. The toil, pain and stress associated with child bearing cannot be overemphasized. More so, coming to think of the risk to her life anytime she conceived. I surmise that the petitioner has given a lot to the marriage which needs reckoning. Even though I do not know how old the Petitioner is, looking at the length of time spent in this marriage, she may be a bit advanced in age. That notwithstanding, I do not think that she may not get another man to marry. She may marry if she desires to. Though the prospects of her getting another man to marry have not been diminished in any way, I still think she needs to be compensated for her time, effort, sweat and sacrifices made in this marriage. Having given birth to no less than four children, most certainly her physique must have deteriorated in every way by virtue of that. One point which the petitioner seems to have argued with verve throughout the case is the fact that after she gave birth to her last child, the respondent convinced her to conduct a sterilization procedure by which her womb was removed with the lasting effect that she will not be able to give birth again. Respondent denied that he convinced her to do it since she did it of her free will and volition. My interest is not in whether it was the respondent who convinced her or not. The fact is that as a result of her marriage to the respondent with the concomitant child bearing, her womb has been removed. She cannot give birth again. The marriage between her and the respondent has broken down. If she decides to marry again, and her new husband demands a child from her, she cannot give him that child. That is petitioner’s concern which I share in. the situation illustrated above shows clearly how uncomfortable this dissolution is going to be for the petitioner. It also shows the sacrifices she has had to make towards the sustenance of the marriage. Furthermore, I take notice that petitioner works as a private school teacher. She did not disclose her monthly salary. However, judging from the economic trends in the country presently, I do not think that what she takes home each month as a private school teacher is anything to write about. As such, I think that it will not be far from right to say that her marriage to the respondent was another source of earning income. The respondent would have continued to maintain her as a wife had they continued to live as husband and wife in the marriage. Her ability to earn has hence been diminished by this divorce. She depended on the respondent as a wife for survival. Without it, she would have to find alternative means of maintaining herself at least for the time being. Even though it cannot be said that she is by any means incapacitated and cannot fully support herself to a large extent financially, I think that the dissolution of this marriage will have a financial toll or implication on her which has to be compensated for. I further take into account that her time has, if not to say wasted, been spent by these thirteen years of marriage to the respondent. I find as with all similar fact situations that if not for this marriage to the respondent, the petitioner would have gotten another man to marry and enjoyed a lasting relationship. As I mentioned above, there is a real prospect of her getting another man to marry. However, she has to be compensated for the sacrifices made and services rendered to this marriage with the Respondent. The prospect of her re-marriage is no ground to deny her payment of a lump sum by the Respondent or as a ground to reduce it. In the case of Aikins v. Aikins [1979] GLR 223 at 231, Sarkodie J stated regarding the circumstances under which alimony is paid in these words: “Such a sum when granted is not affected by subsequent remarriage and it is not reduced because a wife is likely to re-marry...” I take into account that the petitioner made the claim of GH¢50,000. I however think that an award of GH¢50,000 will be rather too high. Under the circumstances, and for the reasons given above, I shall award alimony of Thirty thousand Ghana Cedis (GH¢30,000.00) to the Petitioner. Next on the issues to be determined is the distribution of the properties. Per the endorsement on her petition, the Petitioner prays for a share of the two plots of land which locations have been given extensively in this judgment. According to her, they acquired the two plots jointly and prayed for a fair share of the properties. The law on distribution of property has seen some major advancements in recent years. Judicial pronouncement since the enactment of the Constitution of 1992 have brought some certainty into the area of post dissolution distribution of property even though judicial pronouncement on this matter keeps changing. There has been a marked shift in focus from what used to be the substantial contribution to equitable sharing. Indeed the Constitution, 1992 set the ball in motion when it provided in Article 22 (3) (a) and (b) that, with the view to achieving the full realization of the rights referred to in Clause 2 of this article; (a) “a spouse shall have equal access to property jointly acquired during marriage;” and that (b) “assets which are jointly acquired during marriage shall be distributed equitably between the spouses upon dissolution of the marriage.” This constitutional provision stated above gave backing to the existing law provided under Section 20(1) of the Matrimonial Causes Act (supra) which gave the court the legal backing to make appropriate provision for a spouse. The section reads as follows: “The Court may order either party to the marriage to pay the other such sum of money or convey to the other party such movable and immovable property as settlement of property in lieu thereof as part of a financial provision as the Court thinks just and equitable.” It is on the basis of this constitutional provision that when confronted with a question over property distribution, the Supreme Court in Mensah v. Mensah [2012] 1 SCGLR 391 held inter alia that; “The sharing as spousal property should no longer be dependent on the substantial contribution principle and that property acquired during marriage is a jointly acquired property even if the other spouse cannot show any contribution.” The Supreme Court went on to hold that: “…if a wife takes care of the children of the household, prepares food for the husband, does his laundry and takes care of the children of the household, property acquired by the husband will be shared equally upon divorce unless it will be inequitable to do so.” The Supreme Court expressed similar principle in the cases of Boafo v. Boafo [2005- 2006] SCGLR 505 where it reiterated the principle espoused in Mensah v. Mensah [1998-1999] SCGLR 350 that, “The principle of equality is equity is the preferred principle to be applied in the sharing of joint property unless in the circumstances of a particular case, the equities of the case would demand otherwise.” Then later in the case of Arthur v. Arthur (No. 1) [2013-2014] 1 SCGLR 543, the Supreme Court endorsed the jurisprudence of Equality principle in the sharing of marital property upon divorce. In that case, the Supreme Court per Date Bah JSC who read the judgment of the Court, endorsed the gradual settling principle as held in the previous cases such as Mensah v Mensah et al to the effect that marital property was no longer the sole property of the man and that a wife was entitled to an equal share of marital property upon divorce without the need to prove any form of contribution. The Court delivered itself in the judgment thus: “From Mensah v Mensah, therefore, the principle that is to be distilled is that there is a presumption in Ghanaian law in favour of the sharing of marital property on an equality basis in all appropriate cases between spouses after divorce...” The Court continued again in these words: “Marital property is thus to be understood as property acquired by the spouses during the marriage, irrespective of whether the other spouse has made a contribution to its acquisition…It should be emphasized that in the light of the ratio decidendi in Mensah v Mensah, 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.” {Emphasis added} But in the earlier decision of the Supreme Court in the case of Quartson v. Quartson [2012] SCGLR 1077, it was stated that it was not in all situations that a spouse of a marriage was entitled to an equal share of the property and that each case had to be determined on its peculiar circumstances. It stated as follows: “The Supreme court previous decision in Mensah v. Mensah…..is not to be taken as a blanket ruling that afford spouses unwarranted access to property when it is clear on the evidence that they are not so entitled. Its implication and effect will continue to be shaped and defined to cater for the specifics of each case. The decision, as we see it, should be applied on a case by case basis, with the view to achieving equality of marital property. Consequently, the facts of each case would determine the extent to which the decision in Mensah v Mensah…….. applies……. It must be noted that this Court has taken into account, the equality principle laid down in Mensah v. Mensah and Boafo v. Boafo…… However, as the Supreme Court (per Dr. Date-Bah) held in Boafo v. Boafo…… the equality principle might be waived if in the circumstances of a particular case, the equities of the case would demand otherwise.” Yet, in a recent decision of the Supreme Court in the unreported case of Peter Adjei v Margaret Adjei, Civil Appeal No. J4/06/2021 delivered on the 21st April, 2021, the Supreme Court held per Pwamang JSC that although the general presumption was that property acquired in the course of a marriage is presumed to be jointly acquired, that presumption is not stated by the constitutional provisions in Article 22 which is abundantly clear. And that being a judicially created presumption, it was rebuttable by the spouse whose ostensible property is in question. That the party disputing it must proffer evidence to the contrary in which event the presumption shall be rebutted. If the presumption is rebutted, the other party alleging that the property was jointly acquired ought to show what kind of contribution he/she made towards its acquisition failing which the property shall be declared personal property. The learned Justice of the Court delivered himself thus: “Article 22(2) (b) is the provision that governs cases of property distribution on divorce and it does not say “assets which are acquired during a marriage shall be distributed equitably between the spouses upon dissolution of the marriage”. It is explicit in referring to properties JOINTLY acquired so the impression should never be created that it is the 1992 Constitution that says that property acquired during a marriage is joint property. If the framers of the Constitution had wanted to cover all property acquired in the course of a marriage, they would have said so expressly. It is a judicially created presumption and as such it is a rule of evidence only and does not confer substantive rights as the trial judge sought to imply. Being an evidential presumption, it is rebuttable by the spouse whose ostensible property is in question or any person challenging the presumption by adducing evidence to prove that the other spouse contributed nothing in the acquisition of the property. The case in effect reaffirmed the principle laid down progressively in the cases cited above. So that if a spouse who claims that property acquired in a marriage was jointly acquired is able to adduce evidence to show that he/she in fact contributed, however insignificant, to the acquisition of the property, the presumption created in his/her favour is sustained and the property shall be deemed to be jointly acquired. In that event, such jointly acquired property shall be distributed equitably between the spouses upon dissolution of the marriage in conformity with Article 22 of the 1992 Constitution. Having laid down the legal principles in the distribution of property acquired during marriage, did the Respondent dispute the claim by the Petitioner that the property mentioned above was jointly acquired? If yes, did the Petitioner adduce evidence to prove that she contributed to the acquisition of the property? If yes, what evidence did the Respondent lead to rebut her claim? The Petitioner claimed that she contributed to the acquisition of the two plots of land and prayed for a fair share of them. She had stated that she came into the marriage with the respondent with nothing and that through her support, they were able to acquire the plots of land, one at pipe tank and the other at Otabilkrom. Respondent however, disputed the claim that the two plots were jointly acquired by the two. He alleged that the respondent did not contribute to the acquisition of the plots because he took loans to acquire them and was yet to complete payment. He also alleged that he sold the properties long ago to defray his piling debts. It is important to note that the respondent did not deny that such properties were acquired during the marriage. He however, stated that he has sold the two properties to settle his debts. I wish to place on record that the fact that the respondent claims that he has sold the two plots of land will have no effect on the mandate in the court to make orders for a fair share of marital property. If at the evaluation of the evidence, it is determined that the parties acquired the two plots jointly during the pendency of the marriage, it matters little that the respondent claims that he has sold them. He will be made to account for them. So long as the evidence would suggest that the properties were jointly acquired but the respondent sold them without the express consent of the petitioner, the court would be bound to make orders as the justice of the case would demand. I have stated the law on the distribution of marital property above. From the understanding I get from the law as stated, for a court to order for the equitable share of marital property, such property must have been acquired jointly and during the pendency of the marriage. From the evidence on record, the respondent appears to admit that the plots of land were acquired during the pendency of the marriage. He however insisted that he acquired the plots of land through loans he contracted and that he was yet to finish payment of. The admission by the respondent that the properties were acquired during the pendency of the marriage puts to rest the second element. Now, were the properties acquired jointly by the parties? As I have already stated above, the respondent denied that he acquired the properties jointly with the petitioner. He claimed that he took loans to buy the plots and insisted that he was still repaying the loans. Since it was the petitioner who asserted and prayed for a fair share of the plots of land, she bore the burden to prove that the plots of land were acquired jointly by them. The petitioner however, did not really lead any evidence in proof of her contribution to the acquisition of the plots of land save saying that both of them entered into the marriage with nothing and that with her 'ideas and support as a wife, we acquired two plots of land...’ I do not think that what the petitioner did by way of proof of contribution was enough to convince the court that she jointly acquired the properties with the respondent. What was required of her was to have shown positive acts of contribution to the acquisition of the properties. For instance, if her contribution was financial, she was expected to have given details of such financial contribution. Contribution to joint acquisition of property is not limited to only financial contribution. If she claims to have contributed in other ways, she ought to have given full details of it and if possible, lead some corroborative evidence in support of same. This is especially important where as in this case, the respondent denied her claims to have contributed to the acquisition of the plots of land. However, with all that the petitioner could have done to prove joint acquisition, she failed in that respect. She claimed that she washed the cloths and cooked for the respondent during the marriage. But the fact of cooking for the respondent alone cannot be a ground to assert joint acquisition of property. What she ought to have done was to have explained how her cooking for the respondent is linked to the acquisition of the property by the respondent. How did her cooking and other household chores aid the respondent in acquiring the properties? That would have helped her cause. But as it stands now, besides the mere assertion that she cooked and washed for the respondent being her husband, there is no way to determine how her cooking can be equated with joint acquisition of the properties. There was an admission made by the respondent in respect of the plots of land during his cross examination by the petitioner which I think ought to be digested. The petitioner insisted during the questioning that the respondent had promised to give her one of the plots of land as compensation for the dissolution of the marriage. In answer to this question, the respondent admitted that he had indeed promised to give one of the plots of land to the petitioner upon the dissolution of the marriage. There appears to be a contract made between the couple which may be enforceable at the instance of the petitioner. It is important however to note that the petitioner did not sue for enforcement of the promise made by the respondent to give one plot to her. Even though the respondent admitted that he had promised to give one of the plots to the petitioner for her to leave the marriage, I do not think that the court can hold the respondent to it. That left matters in the hands of the petitioner to prove joint acquisition which she failed to do. I hold that the petitioner failed to prove that the two plots of land at Pipe tank and Otabilkrom were jointly acquired properties. Her claim for an equitable share is thus dismissed. The petitioner had prayed for an order for the respondent to maintain the four children with an amount of GH¢300 per child upon dissolution of the marriage. It bears stating that the court had made an order for the respondent to maintain the children with an amount of GH¢600 pending the determination of the case. This order was made in February 2023. I do not think that the circumstances have changed so much that a much change ought to be made to the maintenance order. I think that a slight variation is needed taking into account the dire economic situation in the country. Taking account of the circumstances of the case, it is ordered that the Respondent shall maintain the four children of the marriage with an amount of GH¢800 each month subject to a 20% increment. This order for 20% increment shall take effect from February each year. In the result, and based on the available evidence assessed on a balance of probabilities and the relevant law, the petitioner succeeds in terms as follows: i. The marriage between the Petitioner and the Respondent contracted under the Marriages Act, 1884-1985, Cap 127 is dissolved on the petitioner’s account and the marriage certificate cancelled accordingly. ii. The respondent shall pay alimony of GH¢30,000.00 to the respondent for the sacrifices and services rendered to the respondent in the marriage and for her time spent in the marriage. iii. iv. The claim for a fair share of the two plots of land is dismissed as unproven. Respondent shall maintain the four children with an amount of GH¢800 each month with a 20% increment annually taking effect from February each year. Given the circumstances under which the parties lived in the marriage and how the marriage came to an end as is borne out by the evidence on record, I am not inclined to make any order for cost. Parties shall bear their own costs. (SGD) HIS HONOUR ISAAC APEATU DISTRICT MAGISTRATE