BOI-SACKEY VRS SACKEY (C5/82/2023) [2023] GHACC 1048 (17 November 2023)

IN THE CIRCUIT COURT ONE HELD AT ACCRA ON FRIDAY, 17TH DAY OF NOVEMBER, 2023 BEFORE HER HONOUR AFIA OWUSUAA APPIAH (MRS) CIRCUIT COURT JUDGE SUIT NO.: C5/82/2023 PAUL TACKIE BOI-SACKEY PETITIONER V VERONICA BLEWUSHIE SACKEY RESPONDENT JUDGMENT On the 14th day of December 2010, Petitioner a widower then aged 80 years and Respondent a spinster then age 33 years got marriage under the Marriage Ordinance by the Registrar’s Department, Accra. They cohabited as husband and wife at Kotobabi in Accra after the marriage and later had the two sons of Respondent begat from another relationship living with them. There is no issue out of this union. Petitioner herein on 14th October 2022 caused his solicitor to issue the present petition for dissolution of his marriage to Respondent contending that same has broken down beyond reconciliation due to the unreasonable behaviour of Respondent in the marriage. he averred several behaviour allegedly exhibited by Respondent he considered unreasonable such as failing to concern herself with his welfare and cook for him since December 2021, poor human relations angry and quarrelsome nature of Respondent, parties leaving in different rooms without intimacy and disrespect from the two adult children of Respondent. He therefore prays the court for the following reliefs; a. Dissolution of the marriage celebrated between the Petitioner and the Respondent on the 14th day of December 2010 under the Marriage Ordinance at the Principal Registrar of Marriages Offices, Accra. b. That no financial provision be made for Respondent c. Any other orders that this Honourable Court may deem fit to make. Respondent in her answer to the Petition denied all allegations of unreasonableness and contends that it is Petitioner who keeps one of his ex- wives as a paramour and financially support her. She stated that stopped cooking for Petitioner to prevent food wastage as Petitioner on several occasions refused to eat the special meals she prepared for him untouched until it became putrid. She averred that at a scheduled meeting with their respective families, Petitioner accused her of not respecting him and intimated that he could no longer stay married to her. She further she can no longer stay as husband and wife with Petitioner due to his adulterous, cruel and disrespectful behaviour to her, which she believes, is driven by their huge age difference. She also cross-petitioned the court for the following relief; a) That the marriage celebrated between the parties on the 14th of December 2010 be dissolved. b) An order for the Petitioner to pay the Respondent a lump sum of Twenty Thousand Ghana Cedis(GHC200,000) c) That a further order directed at the Petitioner to find a decent two (2) bedroom accommodation for Respondent within a reasonable area. Petitioner in his reply denied the allegations of unreasonable behaviour as well and joined issues with Respondent on same. At the close of pleadings the following issues arose for determination by the court. i. Whether or not the marriage between the parties has broken down beyond reconciliation. ii. Whether or not Respondent is entitled to s lump sum of Twenty Thousand Ghana Cedis (GHC20,000). iii. Whether or not Petitioner is liable to rent a two (2) bedroom accommodation for Respondent. The standard of proof in matrimonial cases is just like in any civil action i.e 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/allegations. Both Petitioner and Respondent therefore assume the onus to lead sufficient evidence in support of their assertions and their relief(s). Issue one- whether or not the marriage has broken down beyond reconciliation. Petitioner evidence in chief in support of this issue is that parties have lives separately as strangers in the same house with Respondent not taking any responsibility towards the maintenance of the family. He stated that the last time Respondent cooked for him was in December 2021 and shows no concern for his welfare. According to Petitioner, Respondent has poor human relations, get angry without provocation and is quarrelsome to an unbearable extent thereby causing him emotional stress, humiliation, embarrassment and unhappiness. Further Respondent wears provocative dresses and goes out of the house for long hours without telling him her whereabouts. He stated that he has been compelled to rent accommodation in an adjoining property to the matrimonial home for the two adult children of Respondent sometime in 2022 for the sake of peace in his house because of their disrespectful and quarrelsome behaviour which had become a thorn in his flesh. He contended that he has always giving Respondent upkeep money until he fall ill. Petitioner however admitted that parties still have sexual intercourse as and when one party demands for it. Petitioner denied any extra marital relationship with an ex-wife or wanting to marry another woman under customary law hence this suit to dissolve the ordinance marriage with Respondent. Petitioner contends further that parties are unable to reconcile their difference despite attempts by family members, elders and pastors of their church, Church of Pentecost. Respondent on oath also testified that shortly after the marriage, she realized that Petitioner was keeping an ex-wife as a paramour and the said ex-wife has been cooking for the Petitioner and engaging in sexual activities with Petitioner. According to her, after she expressed her displeasure at his adulterous behaviour, Petitioner became so incensed and started talking rudely and derogatorily to her in a manner unbecoming of a husband leading to a strain on their marriage. She stated that in March 202, Petitioner moved out of the matrimonial home but returned in September 2022 and they have been having sexual intercourse since. Respondent testified further that Petitioner stopped giving her upkeep money several years prior to the institution of this petition but upon the filing of the suit started giving her GHc200 as monthly upkeep. She stated that she had to take care of herself and two children with the paltry sum of GHc450 she earns as a cleaner. There is only one ground for dissolution of a marriage under the laws of Ghana. Section 1(2) of the Matrimonial Causes Act, 1971 Act 367 states “The sole ground for granting a petition for divorce shall be that the marriage has broken down beyond reconciliation”. Under section 2(1) of Act 367, a petitioner must satisfy the court of one or more of the instances listed therein 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.” From the evidence on record, parties have had their fair share of normal challenges/ wear and tears of a marriage. Their challenges became serious in 2021 leading to parties leaving in separate rooms. Respondent does not cook petitioner’s food with counter reasons given by each party for same. Although parties had continued to have sexual intercourse even during the pendency of this suit, they both have petitioned the court for dissolution of the marriage. Marriage entails more than having sexual intercourse. It includes loving each other, supporting each other and sharing companionship. With the conduct and behaviour of both parties towards each other currently sour, and with parties praying the court for dissolution of the marriage and families of parties having failed to reconcile parties, the court is satisfied that the parties after diligent efforts are unable to reconcile their difference. Section 2(1f) of Act 367, where parties after diligent efforts are unable to reconcile their differences, same suffices as breakdown of the marriage. The court there finds per the evidence on record that the marriage celebrated between the parties herein has broken down due to parties failure to irreconcilable their difference after diligent effort. Accordingly the court decrees the said marriage celebrated between the parties herein at the Principal Registrar of Marriages, Accra on the 10th December 2010 to be and same dissolved today the 17th day of November, 2023. Issue two Respondent as part of the reliefs claimed from the court agaist Petitioner is for the court to award her GHC20,000. Sections 19 and 20 of the Act 367 governs the award of financial provision and property settlement. The said sections state 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. It is evident that financial provision contemplated in the provisions above is not gender restrictive, either party to a marriage may pray and be granted financial provisions whenever in the opinion of the Court, it is just and equitable to do so. The use of the phrase “financial provision to either party to the marriage” in section 19 is in itself an attestation of the fact that the legislator did not intend the provision to be an unswerving entitlement of a specific gender to the exclusion of the other. The provisions in sections 19 and 20 above are not to be resorted to in all instances, especially where the circumstances of the case do not warrant such a recourse. It 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 financial provision 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. Petitioner testifies that during the marriage, he opened a bank account for Respondent with at the Dzorwulu branch of Fidelity Bank and was making monthly payments into the said account but Respondent emptied the accounts by obtaining credit cards from the bankers in addition to the monthly housekeeping money he gave her. He stated further that in 2014 he started making payment for a plot of land at Kasoa in monthly instalment for under the auspices of the church of Pentecost until litigation stalled the purchase. Petitioner tendered receipts from 21st Century Construction Ltd- 2013 marked exhibits B, B1 and B2 respectively. He stated that presently he is unable to make payment because he is advanced in age i.e 92. He contended that he is currently not in a position to pay financial provision and find accommodation for Respondent since he has been on pension for several decades. He contended that Respondent is 43 years old and earning income and has several working years ahead of her. Respondent denied this fact contending the said land even if it was acquired in her name forms part of a subject matter of litigation. She contended that opened an account with Fidelity Bank only to help Petitioner’s daughter who worked at Fidelity to reach her target and that no monies were deposited into same and withdrawn by her as claimed by Petitioner. She contended that petitioner was in a position to settle her financially and also rent accommodation for her contending that she only earn GHC450 monthly as income. Exhibit B series discloses that between the period of 3/2/2014 and 25/05/2021 a total sum of GHc1,500 out of the purchase price of GHc4,500 has been paid to the 21st Century Construction Ltd in the name of Respondent for the purchase of a land From the cross-examination of Petitioner, is has been disclosed that the said land falls within a portion of land currently under litigation. The evidence before the court discloses that Petitioner is pensioner quite advanced in age i.e 92 years whilst Respondent is 43 years. Petitioner personal in his evidence in chief has testified that he has rented a room in an adjoining house for the children of Respondent just last year 2022. He further testified to having tenants in the house. Petitioner has a source of income as well and not a man of straw as he portrays to the court. The marriage lasted for 13 years. Respondent married Petitioner at the prime of her life and although relatively younger than Petitioner, the likelihood of Respondent getting married again is low. Respondent has housed under the roof of Petitioner for the past 13 years. Clearly, respondent would be worse off after the dissolution of the marriage and must be cushioned by financial provision and or property settlement. The court therefore finds it just and equitable takeing into consideration the conditions of the parties and orders the Petitioner to pay to Respondent the sum of GHc5,000 as financial provision. Same may be paid in 5 monthly instalment. In respect of the accomodoation, considering that for the past 13 years Respondnet has been roofed by Petitioner and her monthly income is GHc450, Petiioner is ordered to rent a one bedroom accommodation for her for a period of one year within which period Respondent would have organized herself and be in a stable position to cater for herself fully. Until the said accommodation is secured, Respondent shall remain in the matrimonial home. There shall be no order as to cost