COLEMAN VRS COLEMAN (C5/56/23) [2023] GHACC 626 (17 November 2023)

IN THE CIRCUIT COURT “A”, TEMA, HELD ON FRIDAY THE 17TH DAY OF NOVEMBER, 2023, BEFORE HER HONOUR AGNES OPOKU- BARNIEH, CIRCUIT COURT JUDGE SUIT NO. C5/56/23 NANA AMA COLEMAN ----- PETITIONER VRS. BENJAMIN TAWIAH COLEMAN ----- RESPONDENT PETITIONER PRESENT RESPONDENT ABSENT REPRESENTED BY CHARLES AGUURE PRESENT FLORA AGGREY-FYNN AMISSAH, ESQ. FOR THE PETITIONER PRESENT FACTS: JUDGMENT The petitioner got married to the respondent under Part III of the Marriages Act (1884- 1985) Cap 127, on 13th December, 1997 at the International Central Gospel Church (Calvary Temple) Sakumono. The petitioner is an Administrator by profession and the respondent is a professional Draftsman. There are two adopted children to the marriage namely; David Coleman aged 28 years and Danielle Coleman aged 22 years. The petitioner alleges that she solely adopted Ekow Djane Selby, aged 9 years. The parties, after the marriage cohabited at SSNIT Flat Community 3, Tema and later relocated to Ghana Ports and Harbours Authority Duty Post at Community 5, Tema. There has not been any proceeding concerning the marriage or children of the marriage. The petitioner, claiming that the marriage has broken down beyond reconciliation filed the instant petition for divorce claiming against the respondent the following reliefs; A. The marriage celebrated between the parties be dissolved forthwith. B. The petitioner be granted full custody of Ekow Djane Selby, 9 years old without access to the respondent. C. The respondent be ordered to pay alimony in the sum of GH₵200,000 in favour of the petitioner. D. That all properties acquired by the petitioner be settled in favour of her as follows; I. Land at Larteh II. Land for Events at Prampram, III. House at Community 25, Tema. IV. Toyota Rav 4 vehicle with registration number GC 3844-12 E. The respondent to pay the legal fees of the petitioner including costs. F. Any other Order/Orders the Honourable Court deems fit in favour of the petitioner. The petitioner accuses the respondent as having behaved in such a way that she cannot reasonably be expected to live with him as a result of the anxiety, distress, humiliation and embarrassment caused her by the respondent. The petitioner avers that the respondent has neglected to maintain the children of the marriage. Again, the petitioner alleges that the respondent sold two of her vehicles without her consent and kept the proceeds to himself. According to the petitioner, the respondent also took her USD$2,000 and 3,000 Pounds Sterling without her consent. The petitioner further accuses the respondent of taking her iPads, computer, cloths, food and washing detergents solely purchased by her without her authority to the extent that she had to lock her freezer on some occasions. Also, whilst she had travelled to London, the respondent went to her shop and under the pretext of moving the goods to another shop, sold and kept the proceeds without accounting for same to the petitioner. Again, that the respondent in the year 2009, left home without notice to the petitioner and returned home after nine years without giving the petitioner explanation for his absence or his whereabouts. The petitioner avers further that the petitioner is in the habit of borrowing money from people and refusing to pay back and the creditors demand money from her and call her names. She states that she acquired the properties listed in her reliefs between 2009 and 2018 when the respondent was absent from the matrimonial home. The petitioner further accuses the respondent of poisoning her food in the year 2021 causing her to fall sick for nearly a year after eating the food cooked and served to her by the respondent and the respondent refused to visit her at the hospital whilst on admission. The petitioner contends that she has at all times maintained herself and the children without any financial contribution from the respondent. The petitioner alleges that the respondent has indicated that the children are “bad luck” and have contributed to his inability to progress in life. Finally, the respondent has been absent from home since September, 2021 and his whereabouts remain unknown to the petitioner till date. The respondent entered appearance after the court granted leave for the processes to be served on him by substitution when personal service proved abortive. The respondent filed an answer to the petition in which he denied some of the claims of the petitioner and stated that some of the items he is alleged to have been stolen were given to him by the respondent. He states further that he had at all times been a responsible father. It is the case of the respondent that he is not opposed to the dissolution of the marriage and the reliefs sought by the petitioner save that he is entitled to access to the child. He further denies the claim of the petitioner for lump sum financial provision and further prays the court to order each party to bear their own costs. Based on the pleading and the evidence led, the court set down the following issues for determination. LEGAL ISSUES 1. Whether or not the marriage celebrated between the parties has broken down beyond reconciliation. 2. Whether or not the petitioner is entitled to custody of the minor child of the marriage without reasonable access to the respondent. 3. Whether or not the petitioner is entitled to a lump sum of GH₵200,000 as financial provision. BURDEN OF PROOF It is trite learning that he who alleges must prove. The burden on a party to prove his claim on a balance of probabilities remains the same even when the action is uncontested. In the case of Tei & Anor v. CEIBA Intercontinental [2017-2018] 2SCGLR 906 at 919, per Per Pwamang JSC stated as follows: “It must be remembered that the fact that defendant does not appear to contest a case does not mean that the Plaintiff would be granted all that he ask for by the court. The rule in civil cases is that he who alleges must prove on the balance of probabilities and the burden is not lightened by the absence of the defendant at the trial. The absence of the defendant will aid the plaintiff only where he introduces sufficient evidence to establish a prima facie case of entitlement to his claim.” Thus, the petitioner who petitioned for divorce and other ancillary reliefs must lead sufficient evidence to prove the allegations contained in the divorce petition on a balance of probabilities and the absence of the respondent at the trial does not relieve her of this obligation. ANALYSIS Under section 1 of the Matrimonial Causes Act, 1971 (Act 367), the sole ground for granting a petition for divorce is that the marriage has broken down beyond reconciliation. To prove that the marriage has broken down beyond reconciliation, the petitioner must plead and prove at least one of the six (6) facts set out in Section 2(1) of Act 367, adultery, unreasonable behaviour, desertion, failure to live as husband and wife for two years, failure to live as husband and wife for five years, irreconcilable differences. The policy of Act 367 is to promote reconciliation and the law mandates the petitioner or her counsel to inform the court about the various attempts made at promoting reconciliation. The court, upon hearing the petition for divorce is required to enquire into the circumstances alleged and shall refuse to grant a petition for divorce if there is reasonable possibility for reconciliation. See Section 2(3) of Act 367. The petitioner in the instant petition has set out to prove fact 2(b), namely, “that the respondent has behaved in a way that the petitioner cannot reasonably be expected to live with the respondent”. To succeed under section 2(1) (b) of Act 367, the petitioner must prove the conduct of the respondent constituting unreasonable behaviour, and the fact that the petitioner cannot reasonably be expected to live with him as a result of the behaviour. In the case of Mensah v. Mensah [1972] 2 GLR 198, the court held in its holding 3, 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 behaviour 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.” Here, the petitioner repeated her averments of the conducts of the respondent she deems unreasonable. The petitioner catalogued the alleged unreasonable behaviours to be the respondent’s failure to provide for the home, selling her vehicles without her consent and failing to account for the proceeds. The petitioner made allegations of stealing against the respondent without providing any evidence to prove same. It is trite learning that when a crime is alleged in a civil case, it must be proved beyond reasonable doubt. See the case of Sasu Bamfo v. Simtim [2012] SCGLR 985 SC in holding 5. The petitioner also alleged that the respondent poisoned her but did not lead a shred of evidence on this issue to prove the allegation of poisoning which is criminal in nature beyond reasonable doubt. The petitioner also testified that the respondent left home and returned after nine (9) years without any explanation as to where he had been. Again, she states that, they are no longer living together as husband and wife and that various attempts made to effect reconciliation between them have proved futile. The fact that the parties, since the year 2009 have not lived together as husband and wife is not controverted. The conduct and attitude of the parties towards the marriage shows that they each consider the marriage as at an end and they have clearly evinced an intention not to reconcile their differences to resume cohabitation as husband and wife. The evidence also indicates that various attempts made to reconcile the differences between the parties have proved futile and there is no possibility for reconciliation having regard to the matrimonial history of the parties. On the totality of the evidence led, I hold that the marriage celebrated between the parties has broken down beyond reconciliation. This brings me to the issue of properties acquired by the parties during the pendency of the suit. The petitioner listed the properties acquired by her during the pendency of the marriage through her individual sweat and efforts According to her, she acquired the properties during the period that the respondent disappeared from the matrimonial home. In support, the petitioner tendered in evidence Exhibit “B”, an indenture evidencing her acquisition of a piece of land at Larteh in the year 2007. In respect of the land located at Prampram, the respondent tendered in evidence Exhibit “C”, a site plan as proof of her sole ownership of the property. She also tendered in evidence Exhibits “C” and “D”, exhibiting her ownership of the land located at Community 25, Dawhyenya and Afienya Mateheko respectively. The petitioner also testified that she bought a Toyota Rav 4 vehicle with registration number GC 3844-12 with the help of her former employer and the vehicle is yet to be transferred into her name. The respondent, from the pleadings admits that the properties were acquired by the petitioner solely in her name and as such did not contest same. It is trite learning that admitted facts require no further proof. It will therefore be an exercise in futility and a waste of valuable judicial time to embark on an expansive discussion on the issue of the properties. I therefore declare the properties listed by the petitioner in the petition to have been solely acquired by her during the pendency of the marriage and I therefore settle same on her. Additionally, the petitioner prays for custody of the last adopted child of the marriage Ekow Diane Selby, now 10 years old without access to the respondent. In his answer to the petition, the respondent did not contest custody but prays the court for access. The petitioner claims that she solely adopted the last child of the marriage but led no evidence to that effect. The petitioner has not led any satisfactory evidence for the court to come to the conclusion that it will not be in the best interest of the child to deny the child access to the respondent. Under Act 367, this is a child of the household and the rules on custody and access apply to him. I must emphatically state that access is a right of the child and a privilege to a parent and feuding parties in the corridors of the court should not use the denial of access to a child as a weapon against another parent since it is a breach of the rights of the child. There is no legal justification for denying the respondent access to this child of the household. I therefore award custody of the minor to the petitioner with reasonable access to the respondent. The child shall spend part of his vacation period with the respondent. The parties shall continue to maintain the child and provide him with all the necessaries of life until he reaches the age of maturity. Furthermore, the petitioner claims an amount of GH₵200,000 as financial provision from the respondent. Section 20(1) of the Matrimonial Causes Act 1971 (Act 367) states that: " 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.” In the case of Aikins v. Aikins (1979) GLR 233, Sarkodee J (as he then was) held in holding 4 that: “In considering the amount payable as lump sum, the court should not take into account the conduct of either the husband or the wife but it must look at the realities and take into account the standard of living to which the wife was accustomed during the marriage…” The court, on an application for financial provision examines the needs of the parties and makes reasonable provision out of the money, goods or immovable property of the other spouse. See the case of Barake v. Barake [1993-1994] I GLR 635 at page 666. The purpose of financial provision therefore is not to punish one spouse at the expense of the other but to satisfy a genuine financial need. The provisions on the award of financial provision is gender neutral and can be made in favour of either spouse provided there is a genuine need which the court must satisfy. It is not intended to unjustly enrich one spouse at the expense of the other and a court will not sympathise with a party who makes no effort to look for employment but is content to subsist on the award of financial provision. See the case of Gamble v. Gamble [1963] 1GLR 416. The yardstick is that the order for the award of financial provision must be just and equitable by considering factors such as the income, earning capacity, property, other financial resources of each spouse presently and in the foreseeable future, the standard of living enjoyed by each spouse before the breakdown of the marriage, the respective ages of the parties and the duration of the marriage. See the case of Obeng v. Obeng [2013] 63 GMJ 158, CA. The petitioner testified that the respondent has not been a dutiful husband to her as expected and has wasted twenty-five years of her life which entitles her to the award of compensation. From the evidence on record, the petitioner is 62 years old and is retired. The parties have been married since the year 1997 but lived separately for most part of the marriage. The petitioner led no evidence on her incomes and on the evidence, the court has declared her owner of landed and movable properties. The respondent on his part failed to attend trial and sent a representative who informs the court that the respondent has been sick for sometime now. The petitioner has not led evidence to show properties or other financial resources of the respondent based on which the award can be made in her favour. Based on the evidence on record, I do not find it just and equitable to award financial provision in favour of the petitioner. The claim for financial provision is accordingly dismissed. CONCLUSION In sum, I hold that, the ordinance marriage celebrated between the petitioner and the respondent has broken down beyond reconciliation. Accordingly, I grant the petition for divorce and enter judgment for the petitioner in the following manner. 1. I hereby grant a decree for the dissolution of the ordinance marriage celebrated between the petitioner and the respondent on 13th December, 1997, at the International Central Gospel Church (Calvary Temple) Sakumono under Cap 127. 2. The petitioner shall present the original copy of the marriage certificate number ICGC/SAK/97004 to the Registrar of the Court for cancellation 3. I hereby grant custody of Ekow Djane Selby, 10 years old to the petitioner with reasonable access to the respondent. The child shall spend part of his vacation period with the respondent. The parties shall jointly provide for the maintenance and upkeep of the child. 4. The claim for financial provision is dismissed. 5. The following properties acquired solely by the petitioner during the subsistence of the marriage are settled in favour of the petitioner absolutely. I. Land at Larteh II. Land for Events at Prampram, III. House at Community 25, Tema. IV. Toyota Rav 4 vehicle with registration number GC 3844-12 6. I hereby award Costs of Five Thousand Ghana Cedis (GH₵5,000) in favour of the petitioner against the respondent. SGD. H/H AGNES OPOKU-BARNIEH (CIRCUIT COURT JUDGE) 9