BOADU VRS AMADU (C5/122/2023) [2023] GHACC 1046 (13 October 2023)

IN THE CIRCUIT COURT ONE HELD AT ACCRA ON FRIDAY, 13TH OCTOBER 2023, BEFORE HER HONOUR AFIA OWUSUAA APPIAH (MRS), CIRCUIT COURT JUDGE SUIT NO: C5/122/2023 ERIC BOADU ENDERNICHER STR 16 BONN 53115 GERMANY PETITIONER VRS MAMATA AMADU ABLEKUMA RESPONDENT JUDGMENT On the 10th of August 2019, parties herein got married under the ordinance at the Presbyterian Church of Ghana, Ascension Chapel, Ablekuma. Parties thereafter cohabited in the family house of Petitioner at Ablekuma for 3 weeks after which Petitioner left Respondent in the matrimonial home for Germany. There is no issue of this marriage. Petitioner resides in Germany whilst Respondent resides in Ghana. Petitioner has petitioned this court for dissolution of his marriage with Respondent on grounds of unreasonable behaviour. According to Petitioner, the marriage has broken down beyond reconciliation. He stated in his petition that Respondent has an unreasonable and demanding attitude and insist her decisions with respect to where the matrimonial home must be situate is final, refuses suggestions from Petitioner, constantly threatens him with divource, moved out of the matrimonial home and put same under lock and keys without notifying him of same, falsely reporting him to Domestic Violence and Victims Unit (DOVVSU) for failing to maintain her when he has been maintaining her and her child from another relationship. He therefore prays the court for the following reliefs; a. an order for the dissolution of the marriage between the parties. b. Any relief the court may deem fit. Respondent in her answer and cross-petition denied having an unreasonable and demanding attitude nor threatened Petitioner with divource as claimed by Petitioner. According to her, she continued living with the family of Petitioner when he left for Germany three weeks after the marriage but was subjected to constant verbal and physical abuse from Petitioner’s relation’s son grounds that she comes from the Northern part of Ghana. She therefore thought it prudent to vacate the family house but Petitioner refused. Respondent stated that she bore the brunt of the abuse till it became unbearable. She stated that Petitioner asked her to move into the house of his mother’s caretaker one Queenster Sawyer. Respondent also stated that parties agreed that Respondent would use her income to maintain herself and her child whilst Respondent would top up the money meant for her up to purchase two plots of land at Kojo Ashong Otu Aple and after the purchase of the land refused to provide her with maintenance money. She cross- petitioned the court for the following reliefs; 1. An order that the marriage be dissolved. 2. An order that all interests in the two plots jointly acquired by the parties be transferred to her. 3. An order that petitioner pays to her an amount of GHC50,000 as settlement. 4. An order as to costs including legal fees. Upon perusal of the pleadings, following issues arise for determination by the court. Issues for determination 1. Whether or not Respondent has behaved in a manner that it would be unreasonable to expect the one to live with the other as husband and wife. 2. Whether or not the marriage has broken down beyond reconciliation. 3. Whether or not two plots of land was jointly acquired by the parties during the marriage. 4. Whether or not Petitioner is liable to pay GHc50,000 as settlement. 5. Any other issue Both parties per the pleading aver that the marriage celebrated between them has broken down beyond reconciliation and pray for dissolution of the marriage. Section 1 of the Matrimonial Causes Act, 1971 Act 367 provides that “ The sole ground for granting a petition for divorce shall be that the marriage has broken down beyond reconciliation”. Thus though both parties have averred in their pleadings that the marriage has broken down of the said marriage beyond reconciliation for a petition for dissolution would be granted. The standard of proof in civil case such as the present action is proof on the preponderance of probabilities. Section 12(2) of Evidence Act NRCD 323 defines preponderance of probabilities as “Preponderance of the probabilities” means that degree of certainty of belief in the mind of the tribunal of fact or the Court by which it is convinced that the existence of a fact is more probable than its non-existence.” In the case of ARYEH & AKAKPO V AYAA IDDRISU [2010] SCGLR 891, the Supreme Court unanimously held that a party who has counterclaimed bore the burden of proving his counterclaim on the preponderance of probabilities and would not win on that issue only because the original claim had failed. See the cases of Malm v Lutterodt [1963] 1 GLR SC & Apea v Asamoah [2003-2004] 1GLR SC 226, 246. Respondent therefore also must lead evidence to prove his assertions/ assertions. Both Petitioner and Respondent therefore assume the onus to lead sufficient evidence in support of their assertions and their reliefs. ISSUE 1-Whether or not Petitioner or Respondent has behaved in a manner that it would be unreasonable to expect the one to live with the other as husband and wife. Subsection (1) (b) of section 2 of the Matrimonial Causes Act, 1975, Act 367 provides that where the respondent has behaved in a way that the petitioner cannot reasonably be expected to live with the respondent same suffice as proof of break down of the marriage beyond reconciliation. Both parties in their respective petitions to the court allege unreasonable behaviour of the other spouse. Petitioner in his evidence in chief testified that Respondent has very unreasonable and demanding attitude insisting always that her decisions as to the location of the matrimonial home should be final without recourse to the finances of the parties. According to Petitioner, Respondent constantly harassed him to send money to rent a new place in Ghana for her to vacate the matrimonial home of the parties despite knowing he lost his job shorty after the marriage due to the corvid 19 pandemic. He stated that Respondent threatened him with divorce when he intimated to her to continue staying in the matrimonial home because he did not have sufficient funds at that time. Petitioner further testified that Petitioner further testified that Respondent surreptitiously vacated the matrimonial home without his knowledge and refused to communicate with him after she left the matrimonial leading to complete break down of communication. He further testified that Respondent upon hearing of his arrival in Ghana caused a Social Welfare Officer to summon him requesting he pays Gc1000,000 as settlement per her demands. Petitioner denied the allegations of abuse of Respondent by his family members. Respondent’s contrary evidence to the evidence of Petitioner is that Petitioner travelled to Italy three (3) weeks after the marriage and asked her to live with his family. According to her, life in that house was not easy as she was abused both physically and verbally, with insults rained on her on the basis that she is from `northern Ghana and had a child before she married Petitioner. She stated that she occasionally complained to Petitioner and requested he finds alternative living arrangement for her. According to her, she agreed with Petitioner to use her income for her upkeep and that of her child whilst the money Petitioner would send her was used to acquire two plots of land. She took employment as a house help to support herself and her child after the departure of Petitioner and due to the difficult financial situation she found herself, she lived with the insults of Petitioner’s family. Respondent contends that after the purchase of the land, Petitioner stopped communicating with her and stopped send her money. Upon hos return to Ghana, he informed her that he had found a German woman whom he intended to marry so he could regularize his documents. She stated that he subsequently went to her family with an envelop for dissolution of the marriage which was rejected by her family and also to her pastor. Sections of 14 Evidence Act, 1975, NRCD 323 provides that “ 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”. Section 17 (a) of NRCD 323 also provides that the burden of producing evidence of a particular fact is on the party against whom a finding on that fact would be required in the absence of further proof; What suffices as unreasonable behaviour has been discussed in the case of Mensah v Mensah [1972] 2 GLR 198. Hayfron- Benjamin held that “In determining whether a husband has behaved in such a way as to make it unreasonable to expect a wife to live with him, the court must consider all circumstances constituting such behavior including the history of the marriage. It is always a question of fact. The conduct complained of must be grave and weighty and mere trivialities will not suffice for Act 367 is not a Cassanova’s Charter. The test is objective”. Also in the case of Knudsen v Knudsen [1976] 1GLR 204, Amissah JA stated that “the question therefore is whether the Petitioner established that the Respondent behaved in such a way that he could not reasonably be expected to live with her. Behaviour of a party, which would lead to this conclusion, would range over a wide variety of acts. It may consist of one act if of sufficient gravity or of a persistent course of conduct or of a series of acts of differing kinds none of which by itself may justify a conclusion that the person seeking the divorce cannot reasonably be expected to live with the spouse, but the cumulative effect of all taken together would do so.” Respondent however having denied the alleged unreasonable behaviour and Petitioner also having denied the allegations of unreasonable behaviour leveled against her by Respondent, they both assumed the statutory burden of leading cogent evidence of same to the court to prove their claims. Kpegah, JA. (as he then was) in the Zabrama vs Segbedzi [1991] 2glr 221 case critically analysed the question of burden of proof in civil suits as stated in Mojalagbe vs Larbi & Others. In Zambrama’s case, his Lordship stated that “The correct proposition is that, a person who makes an averment or assertion, which is denied by his opponent, has the burden to establish that his averment or assertion is true. And he does not discharge this burden unless he leads admissible and credible evidence from which the fact or facts he asserts can properly and safely be inferred.” “proof in law is the establishment of facts by proper legal means. Where a party makes an averment capable of proof in some positive way, e.g. by producing documents, description of things, reference to other facts, instances, or circumstances, and his averment is denied, he does not prove it by merely going into the witness box and repeating that averment on oath, or having it repeated on oath by his witness. He proves by producing other evidence of facts and circumstances, from which the court can be satisfied that what he avers is true”, Both parties merely repeated their challenged averments of the alleged acts of their partners without any cogent evidence on same. Therefore the mere mounting of the witness box to repeat these averments is not sufficient proof of same. The court therefore is unable to find as a fact that any of the parties behaved in a manner that they reasonable cannot be expected to live with as husband and wife. ISSUE 2 - Whether or not the marriage has broken down beyond reconciliation. Notwithstanding that both parties failed to establish the alleged unreasonable behavior of the other, the parties have both intimated to the court that they are not interested in remaining married to each other. From the record, parties only lived as husband and wife for 3 weeks after celebration of the marriage and have since not lived together as husband and wife. Communication between the parties seized. Respondent alleges abuse by Petitioner’s family due to she being from the Northern region which is denied by Petitioner. Families of parties from the record have shown no interest in reconciling the parties herein. Social Welfare department has been unable to reconcile the parties. Parties clearly have serious differences they have been unable to settle. Section 2 (1) (f) of Act 367 provides that “where the parties after due diligence are unable to reconcile their differences, same suffice as proof that the marriage has broken down beyond reconciliation. In the case of KOTEI V KOTEI [1974] 2 GLR 172, Sarkodee J held as follows, “The sole ground for granting a petition for divorce is that the marriage has broken down beyond reconciliation. But the petitioner is also obliged to comply with section 2 (1) of the Matrimonial Causes Act, 1971 (Act 367), which requires him to establish at least one of the grounds set out in that section… Subsection (3) contains an important provision which brings into focus the general scheme of the Act, which is to encourage reconciliation as far as may be practicable. Thus section 8 enjoins the petitioner or his counsel to inform the court of all attempts made to effect a reconciliation and gives the court power to adjourn the proceedings at any stage to enable attempts at reconciliation to be made if there is a reasonable possibility of reconciliation. It is, however, wrong, in my view, to say that proof of total breakdown of the marriage and the possibility of reconciliation should be taken “disjunctively.” This, counsel for the respondent explained, meant that there is a burden to prove separately that the marriage has broken down and even when it is proved that it has broken down that there should be the further proof that it is beyond reconciliation. It is accepted that proof of one or more of the facts set out in section 2 (1) is essential and that proof of one of them shows the marriage has broken down beyond reconciliation. It is also conceded that notwithstanding proof the court can refuse to grant the decree of dissolution on the ground that the marriage has not broken down beyond reconciliation. It will be noted that the discretion given to the court is not a discretion to grant but to refuse a decree of dissolution. This means that once facts are proved bringing the case within any of the facts set out in section 2 (1) of Act 367 a decree of dissolution should be pronounced unless the court thinks otherwise. In other words, the burden is not on the petitioner to show that special grounds exist justifying the exercise of the court’s power.” The court from the totality of the evidence on record is satisfied Indeed the marriage between the parties have long broken down leaving an empty shell holding/binding them to each other as husband and wife. The court therefore finds that the marriage celebrated between the parties has broken down beyond reconciliation. It is hereby decreed that the said marriage celebrated between the parties on 10/8/2019 at the Presbyterian Church of Ghana Ascension Chapel Ablekuma be dissolved and same is dissolved this 13th day of October 23. ISSUE 3 - Whether or not two plots of land was jointly acquired by the parties during the marriage. Article 22 (2) of the 1992 constitution of the Republic of Ghana provides “Parliament shall, as soon as practicable after the coming into force of this Constitution, enact legislation regulating the property rights of spouses.” With a view to achieving the full realization of the rights referred in article 22 clause (2) of the 1992 constitution of Ghana which guarantees property rights of spouse, article 22 (3)(b) provides that Assets which are jointly acquired during marriage shall be distributed equitably between the spouses upon dissolution of the marriage. In Mensah v Mensah [1998-99] SCGLR 350, the court applied the equality is equity principle to determine which proportions the couple’s joint property would be shared. Bamford-Addo JSC held at 355 thus: “… the principle that property jointly acquired during marriage becomes joint property of the parties applies and such property should be shared equally on divorce;(emphasis mine) because the ordinary incidents of commerce has no application in marital relations between husband and wife who jointly acquired property during marriage.” This position of the law was further modified in the case of Mensah v Mensah (2012) SCGLR where Dotse JSC in delivering the unanimous decision of Supreme Court held “Why did the framers of the Constitution envisage a situation where spouses shall have equal access to property jointly acquired during marriage and also the principle of equitable distribution of assets acquired during marriage upon the dissolution of the marriage? We believe that, common sense, and principles of general fundamental human rights requires that a person who is married to another, and performs various household chores for the other partner like keeping the home, washing and keeping the laundry generally clean, cooking and taking care of the partner’s catering needs as well as those of visitors, raising up of the children in a congenial atmosphere and generally supervising the home such that the other partner, has a free hand to engage in economic activities must not be discriminated against in the distribution of properties acquired during the marriage when the marriage is dissolved. This is so because, it can safely be argued that, the acquisition of the properties was facilitated by the massive assistance that the other spouse derived from the other. In such circumstances, it will not only be inequitable, but also unconstitutional as we have just discussed to state that because of the principle of substantial contribution which had been the principle used to determine the distribution of marital property upon dissolution of marriage in the earlier cases decided by the law courts, then the spouse will be denied any share in marital property, when it is ascertained that he or she did not make any substantial contributions thereof.” In the latest Supreme Court case of PETER ADJEI vs. MARGARET ADJEI [2021] DLSC 10156, His Lordship Justice Appau delivering Majority decision held “We wish to emphasize that there is a reason behind the abandonment of the substantial contribution principle, which was hitherto used to determine the nature of property acquired during the subsistence of a marriage where it was established that only one spouse, particularly the male spouse, single-handedly did physically acquire the properties. It was buttressed on the understanding that the role of the wife in keeping the home by cooking for the family and preparing and performing other chores that enables the man to have a peace of mind to acquire the properties, is a form of contribution.” This presupposes that evidence of the type of contribution i.e financial or the spouse making that assertion must establish whatever services and support he or she may have contributed i.e domestic contribution to aid the acquisition of the said property. Respondent in her answer prays the court for the two plots of land purchased during the subsistence of the marriage to be settled on her. According to her, it was agreed between Petitioner and herself that she should use her income to take care of herself and her child whilst the monies sent to her by petitioner be used to purchase the land. She stated that she purchase two plots of land situate at Kojo Ashong Otu Aple and had given the documents on the land to the father of Petitioner on Petitioner’s instructions. She further testified that she had to sometimes add her money to the purchase money because she thought same was being acquired for their future together. Petitioner at paragraph 11 in his witness statement adopted as his evidence in chief prayed the court to equitably distribute the two plots of land acquired by him during the marriage. The court therefore finds the two plots of land situate at Kojo Ashong Out Aple acquired during the subsistence of the marriage is a jointly acquired property of parties and they hold same in equal ratio of 50:50. That Petitioner shall or cause to be transfer title in one plot of the two plots of land supra to Respondent within one month from date of judgment and shall yield vacant possession of the said land to Respondent. ISSUE 4 - Whether or not Petitioner is liable to pay GHc50,000 as settlement. Respondent in her cross-Petitioner prays the court for financial settlement of GHC50,000. Sections 19 and 20 of the Matrimonial Causes Act, 1971 (Act 367) provides 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. 20. Property settlement (1) The Court may order either party to the marriage to pay to the other party a sum of money or convey to the other party movable or immovable property as settlement of property rights or in lieu thereof or as part of financial provision that the Court thinks just and equitable. From the provisions above, an order under sections 19 and 20 of Act 367 is a discretionary jurisdiction that may be resorted to out of necessity, justice and equity. The grant of any financial provision being in itself discretionary, and this discretion, being borne out of statute, must not be resorted to arbitrarily, capriciously, with prejudice, bias or personal dislike. It must be exercised fairly and reasonably and in accordance with the statute granting the discretion. The court in considering factors governing an award of alimony had this to say in the case of Isaac Kwame Amoah Ahinful v Anne Marie Ahinful 2016 JELR 107733(HC); “The factors governing such an award for financial provision are varied. An important consideration is in my view the circumstances of the parties. In Aikins v Aikins 1979 [GLR] 223, the court realising among others, that the wife had no capital assets of her own, and had not worked for several years before the petition was issued, and also acknowledging that she indeed needed money to rent premises for herself and the children and set herself up as a dress maker, awarded the wife, a lump sum payment. In the supreme court case of Quartson v Quartson [2012] 2 SCGLR 1077, the Supreme Court granted the petitioner a lump sum financial provision on the basis that the petitioner needed to have some money to live on while she re organised her life. The court further said that the award of alimony or financial provision to a wife upon dissolution of a marriage, is therefore dependent on the circumstances of each case and must be just and equitable as required by section 20(1) of ACT 367,”. See also the case of Obeng v Obeng (2013) 63 GMJ at page 158 It is mandatory that a judge who exercises the discretion under sections 19 and 20 of Act 367 to award a party financial provision take into account the circumstances of the parties. These circumstances may include the financial standing of each party as borne out of the evidence led at trial, the ages of the parties and ability to remarry, the balance of dependence that existed among the parties during the marriage, the employment status and the professional standing of each party, the income earning capacity of each party, the duration of the marriage, the contribution of each party towards maintaining the marriage, sacrifices made or opportunities forgone due to the marriage, among others. From the evidence on record, the marriage between the parties lasted less than 4 months. Respondent is a cleaner whilst Petitioner is a factory worker in Germany. Respondent’s earning capacity is less than that of Petitioner. The court is therefore of the opinion that Respondent is entitled financial settlement to organize her life. Accordingly, the court awards to the Respondent the sum of GHc20,000.00 as financial settlement to be paid by Petitioner forthwith. CONCLUSION In conclusion, the court hold that the marriage celebrated between the parties herein at has broken down beyond reconciliation. I accordingly grant the Petition for divorce and enter judgment in the following terms; i. I hereby decree the said marriage celebrated between the parties `Presbyterian Church of Ghana Ascension chapel, Ablekuma on the 10/08/2019 Accra be and same dissolved today, the 13th day of October, 2023. ii. The two plots of land situate at Kojo Ashong Otu Aple, acquired during the subsistence of the marriage is a jointly acquired property of the parties held in the ratio 1:1. iii. That Petitioner shall or cause to be transfer title in one plot of the two plots of land supra to Respondent within one month from date of judgment and shall yield vacant possession of the said land to Respondent. iv. That Petitioner shall pay as financial settlement to Respondent the sum of GHC20,000 forthwith. v. There shall be no order as to cost. Parties to each bear their respective cost. PARTIES PRESENT AMAZING GRACE ADOMAH FOR PETITIONER PRESENT NANA NTSAFOR ASMAH FOR RESPONDENT PRESENT (SGD) H/H AFIA OWUSUAA APPIAH (MRS) (CIRCUIT COURT JUDGE) 16