MANU VRS MENSAH (G/WJ/DG/A4/55/23) [2023] GHADC 1040 (3 October 2023)

IN THE DISTRICT COURT HELD AT WEIJA, ACCRA ON TUESDAY THE 3RD DAY OF OCTOBER, 2023 BEFORE HER WORSHIP RUBY NTIRI OPOKU (MRS), DISTRICT MAGISTRATE. IVY BEKOE MANU PETITIONER SUIT NO. G/WJ/DG/A4/55/23 VRS MENSAH COSMOS WILLIAM RESPONDENT PARTIES ARE PRESENT AND SELF REPRESENTED. JUDGMENT BACKGROUND The petitioner, then a spinster engaged in the business of trading and the respondent, then a bachelor and a business man, both Ghanaians got married under customary law and converted same into a marriage under the ordinance on 22nd December 2002 at Freedom Chapel International at Odorkor Official Town presently known as the Lord’s Parliament. After the celebration of the marriage, parties cohabited at Nii Boye Town and Nyamekye, all in Accra and are blessed with two issues of the marriage namely Samuel Osei Ansong aged 17years and William Cosmos Mensah aged 12 years. On 8th February 2023, petitioner filed a petition at the registry of this court for the following reliefs; 1. Dissolution of the ordinance marriage between the parties 2. Custody of the children to be granted to petitioner with reasonable access to respondent and an order of maintenance directed at respondent 3. Lump sum compensation from respondent to petitioner, costs and any further orders the court may deem fit. The respondent filed an answer to the petition on 21st March 2023 and cross petitioned for the following reliefs; i. ii. An order for the dissolution of the marriage contracted between the parties An order for custody of the children of the marriage to the petitioner with reasonable access to the respondent especially on weekends and vacations iii. Any other orders this honourable court deems fit On 31st March 2023, the petitioner filed a reply to the answer and cross petition of the respondent. Pursuant to the orders of the court dated 11th April 2023, petitioner filed her witness statement on 3rd May 2023 whilst respondent filed his witness statement on 12th May 2023. Petitioner and respondent again filed affidavit of means on 31st July 2023 and 3rd August respectively in compliance with the orders of the court dated 11th July 2023. THE CASE OF THE PETITIONER It is the case of the petitioner that the parties’ marriage has broken down beyond reconciliation due to the bad conduct of the respondent and she cannot reasonably be expected to live with him as a wife. She particularised the conduct of the respondent to the extent that respondent has subjected her to severe beatings on seven occasions without any provocation whatsoever in spite of several warnings and pieces of advice by relatives. She averred that respondent has been having extra marital affairs with other women and has totally neglected her. She added that even though petitioner sold her taxi and container and used the proceeds to buy a piece of land, he decided not to give her a share in the property. She concluded by stating that the respondent packed her belongings and threw her out of the matrimonial home and has since refused to maintain her and the children. According to her, all attempts made by family and friends to reconcile parties have not yielded any fruits and as a result parties have been living separately for 4 years two months prior to the presentation of the petition. She therefore prayed the court to grant her reliefs. In support of her claims, she tendered the marriage certificate of the parties with licence number AMA 8517/2002 filed on 8th February 2023 as evidence of their ordinance marriage. Same was admitted in evidence without any objection and marked as Exhibit A. She again tendered five photographs of herself with marks of assault all over her body as evidence of assault meted out to her by the respondent. Same were admitted in evidence without objection and marked as exhibits B series. THE CASE OF THE RESPONDENT The respondent denied the assertions of the petitioner and pleaded that it is the petitioner who moved out of the matrimonial home in 2018 leaving behind the two issues of the marriage. He pleaded further that petitioner subsequently presented the customary drinks to his brother who refused to accept same. He added that the parties’ marriage has broken down irretrievably due to the conduct of the petitioner and he cannot reasonably be expected to live with her as a husband. He particularised the behaviour of the petitioner to the extent that she was having an extramarital affair with a married man. According to him, petitioner receives strange calls in the night and answers same secretly. He added that in the year 2018, petitioner exchanged nude photographs of herself with a male on her telephone which prompted him to confront the said man. He added that the man apologised to him and denied knowledge of the fact that petitioner was a married woman. Respondent pleaded that petitioner is wasteful because she has been unable to account for goods worth thousands of euros which he injected into her trading business and as a result, he is saddled with the burden of repaying monies to the supplier of the said goods. Respondent pleaded further that he used proceeds from the sale of his taxi and money given to him by his brother-in-law to purchase a piece of land at Pokuase Adusa also known as Mayera. He admitted that he sold a container which he had purchased for the petitioner with her consent as same was lying waste and the proceeds from the sale of the container was used to develop the land. He did not call any witness. ISSUES The following issues were set down for determination; 1. Whether or not the marriage of the parties has broken down beyond reconciliation 2. Whether or not custody of the issues of the marriage should be granted to the petitioner with reasonable access to the respondent. 3. Whether or not the land situate at Pokuase Mayera is property jointly acquired during the subsistence of the parties marriage 4. Whether or not the petitioner is entitled to financial settlement BURDEN OF PROOF In Bisi and Others v Tabiri alias Asare [1987-88] 1 G. L. R 360 – 413, Osei-Hwere J. A held as follows; “The standard of proof required of a plaintiff in a civil action is to lead such evidence as will tilt in his favour the balance of probabilities on the particular issue.” The burden of proof may shift from the party who bore the primary duty to the other. Section 14 of the Evidence Act, 1975 (NRCD 323) provides as follows; Except as otherwise provided, unless and until 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 he is asserting. In the case of Re Ashalley Botwe Lands; Adjetey Agbosu v Kotey [2003-2004] SCGLR 420, it was held as follows; “It is trite learning that by the statutory provisions of the Evidence Decree 1975 (NRCD 323) the burden of producing evidence in a given case is not fixed but shifts from party to party at various stages of the trial depending on the issue(s) asserted. ANALYSIS OF THE ISSUES AND DECISION OF THE COURT ISSUE ONE In divorce cases, section 1(2) 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. Section 2 (1) of Act 367 again provides that for the purpose of showing that the marriage has broken down beyond reconciliation, the petitioner shall satisfy the court of one or more of the following facts: (a) That the Respondent has committed adultery and that by reason of 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 provided that the consent shall not be unreasonably withheld and where the court is satisfied that it has been withheld the court may grant a petition for divorce under this paragraph despite the refusal (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 (f) That the parties after a diligent effort been unable to reconcile their differences. Section 2(3) provides that although the court finds the existence of one or more of the facts specified in (1), the court shall not grant a petition for divorce unless it is satisfied, on all the evidence that the marriage has broken down beyond reconciliation. His Lordship Dennis Adjei J. A reiterated the position of the law in the case of CHARLES AKPENE AMEKO V SAPHIRA KYEREMA AGBENU (2015) 99 GMJ 202, thus; “The combined effect of sections 1 and 2 of the Matrimonial Causes Act, 1971 (Act 367) is that for a court to dissolve a marriage, the court shall satisfy itself that it has been proven on the preponderance of probabilities that the marriage has broken down beyond reconciliation. That could be achieved after one or more of the grounds in Section 2 of the Act has been proved.” In ADJETEY V ADJETEY [1973] 1 GLR 216, it was held; “ On a proper construction of the Act, the court can still refuse to grant a divorce even when one or more of the facts set out in section 2(1) has been established. It is therefore incumbent on a court hearing a divorce petition to carefully consider all the evidence before it; for a mere assertion that the marriage has broken down will not be enough.” From the evidence, the Petitioner based her allegations for the breakdown of the marriage on unreasonable behaviour on the part of the Respondent. At pages 143 and 144 of the book “At a glance! Contemporary principles of family law in Ghana second edition” by Mrs. Frederica Ahwireng-Obeng, the learned writer on unreasonable behaviour stated as follows; “Section 2(1) (b) of the MCA states as follows; A petitioner may rely on the fact that the respondent has behaved in a way that the petitioner cannot reasonably be expected to live with respondent to prove that a marriage has broken down beyond reconciliation. The section implies that the petitioner must prove two things: The conduct constituting the unreasonable behaviour on the part of the respondent and the fact that he or she cannot reasonably be expected to live with the respondent as a result of the bad behaviour.” According to the learned author, the test to be applied to determine that the petitioner cannot reasonably be expected to live with the respondent is the objective test. Thus whether the petitioner cannot reasonably be expected to live with the respondent is a question of fact for the court to decide. During cross examination of the petitioner by the respondent, the following information was elicited; Q: Do you recall that the photos with the marks of assault on your body are related to an incident that happened in 2010 when you hit my head with a padlock? A: I never took any photos on that day because the two families sat and we resolved the issue. The photos before this court were taken a day after you assaulted me which compelled me to move out of the matrimonial home. Q: I put it to you that the photos before the court were related to an incident that occurred in 2010 A: These photos are not related to the 2010 incident. You have been assaulting me all the time and these photos were taken when I left the matrimonial home. From the above exchanges, respondent admitted that the marks of assault on the body of the petitioner as depicted in Exhibit A series were inflicted by him save that it was as a result of an incident that occurred in the year 2010 and not in recent times as the petitioner wants the court to believe. I find the conduct of the respondent to be reprehensible and I hold that the petitioner cannot reasonably be expected to live with him as a wife. Apart from the bare assertions of the respondent, he could not lead any evidence to show unreasonable behaviour on the part of the petitioner. I find from the totality of the evidence before this court that the ordinance marriage between the parties has broken down beyond reconciliation due to the unreasonable behaviour of the respondent and as a result parties have lived separately with no intention of resuming cohabitation for more than four years. I therefore proceed under Section 47 (1)(f) of the Courts Act 1993, (Act 459) to decree that the Ordinance Marriage between Ivy Bekoe Manu and Mensah Cosmos William celebrated at the Freedom Chapel International in Accra on 22nd December, 2002 is hereby dissolved. I hereby order the cancellation of the marriage certificate issued. A certificate of divorce is to be issued accordingly. ISSUE TWO From the facts of the case, respondent is not opposed to the grant of custody of the issues of the marriage to the petitioner. Custody of the two issues of the marriage is accordingly awarded to the petitioner with reasonable access to the respondent. Respondent is ordered to maintain the children of the marriage with the sum of GHC1, 000.00 monthly. Respondent is again ordered to pay the school fees and all items needed for the education of the children as well as their medical bills as and when payments fall due. ISSUE THREE It is provided by article 22(2) and (3) of the constitution1992 that: 22(2) Parliament shall as soon as practicable after the coming into force of this constitution, enact legislation regulating the property. (3) With a view to achieving the full realisation 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 the marriage shall be distributed equitably between the spouses upon dissolution of the marriage. It is also provided by section 20(1) of Act 367 that: 20(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. The issue of whether or not the land situate at Pokuase was property jointly acquired by the parties during the subsistence of their marriage was aptly answered by the respondent during cross examination as follows; Q: Do you recall that we have bought a land and we are developing the said land? A: I admit that I have bought a land and because we are married even though you did not contribute financially to the purchase of the land, the land belongs to both of us because you are my wife. From the above exchanges, the respondent has admitted that the land as Pokuase Mayera is a property jointly acquired during the subsistence of the parties’ marriage. In the case of In Re Asere Stool; Nikoi Olai Amontia IV (substituted by Tafo Amon II) v Akotia Oworsika III (Substituted by Laryea Ayiku III) [2005-2006] SCGLR 637, the Supreme Court held as follows; “Where your adversary has admitted a fact advantageous to your cause, what better evidence do you need to establish that fact than relying on his own admission?” I do find and hold that the land situate at Pokuase is the jointly acquired property of the parties and same is ordered to be shared on a 50-50 basis between the parties. ISSUE FOUR Section 20 of Act 367 allows the court to grant financial settlement to a party upon dissolution of a marriage. The court in doing so has to take into consideration certain factors such as the economic conditions of the parties. In the case of BARAKE V BARAKE [1993-1994] 1 GLR 635, the court held as follows; “Under section 20(1) of Act 367, the court had power to grant financial provision where married couples are divorced. The basic consideration was not based on proof of ownership or contribution towards acquisition of properties to be owned but on the needs of the parties.” The court can order a lump sum payment to be made to a spouse in addition to property settlement depending on the circumstances of the case. See Riebeiro v Riebeiro [1989-1990] GLR 109 at 115 to 116. Having considered the affidavit of means filed by the parties, I do hereby award the sum of GHC10, 000.00 as financial settlement in favour of the petitioner. DECISION 1. I find that the ordinance marriage between the parties has broken down beyond reconciliation due to the unreasonable behaviour of the respondent 2. Custody of the issues of the marriage is awarded to the petitioner with reasonable access to the respondent. Respondent is ordered to maintain the issues with the sum of GHC1, 000.00 per month. Respondent is again ordered to pay the school fees and medical bills of the children as and when payments fall due. 3. I declare that the land situate at Pokuase Mayera is property jointly acquired during the subsistence of this marriage. Same is ordered to be shared on a 50:50 basis between the parties. 4. I award the sum of GHC10, 000.00 as financial settlement in favour of the petitioner against the respondent. 5. I make no order as to costs. ………………(SGD)…………………. H/W RUBY NTIRI OPOKU (MRS) DISTRICT MAGISTRATE 12