OPONG VRS BOADU (AR/KD/DC/A4/13/2023) [2023] GHADC 805 (27 November 2023)

CORAM: IN THE DISTRICT COURT HELD AT KODIE IN THE ASHANTI REGION ON MONDAY THE 27TH DAY OF NOVEMBER, 2023 BEFORE HER WORSHIP CHRISTIANA ODARKOR BRUCE-ASHIRIFIE (MRS), THE DISTRICT MAGISTRATE. SUIT NO. AR/KD/DC/A4/13/2023 JULIET GYANEWAA OPONG ]-PETITIONER Monwire-Plot 1 Block-Kodie VRS ALBERT NTIM BOADU ]-RESPONDENT Monwire-Plot 1Block-Kodie TIME: 9:30AM JUDGMENT The parties herein got married under the Marriages Act 1884, CAP 127 on 30th of July, 2010 at the Kumasi Metropolitan Assembly, Kumasi. The Petitioner is a teacher and the Respondent is a Bio-Medical Laboratory Scientist. There are three (3) issues of the marriage who are Ten (10), seven (7) and five (5) years old respectively. CASE FOR THE PETITIONER On the 16th of January, 2023, the Petitioner, the wife, filed a Petition at the registry of the District Court, Prempeh Assembly Hall, at Kumasi praying the court for the relief of a 1 | P a g e decree of divorce. The basis of her petition is that the marriage between herself and the Respondent has broken down beyond reconciliation due to the unreasonable behavior of the Respondent. The suit was later transferred to this court as the parties live within the jurisdiction of the court. Per the petition and witness statement, the Petitioner asserted that the Respondent since the marriage has behaved in a manner that she the Petitioner cannot live with the Respondent as husband and wife. According to the Petitioner herein after their marriage, they lived separately for a year then she joined her husband who was then living and working at Bolgatanga. It is the case of the Petitioner that when she moved over to join the Respondent at Bolgatanga, she got to find out that the Respondent had been unfaithful in the first year of their marriage of which their church elders intervened and the Respondent apologized promising that it will not be repeated. According to the Petitioner she thereafter became pregnant and within that period whenever there is any little argument between them, the Respondent will lay his hands on her. She stated that the Respondent will hit her with a belt not less than four times, kick her forelegs unexpectedly for her to fall down, sat on her stomach and slap her consistently for not less than ten times. She averred that whilst beating her, their kids will be watching and even tell the Respondent to stop but he will tell them that “they should just watch their father discipline their mother”. She testified that her kids sometimes pleaded with the Respondent mostly whilst beating her to stop but he does not until she will scream at them to go and call their neighbour for help before he will stop the beatings. 2 | P a g e The Petitioner averred that the Respondent uses so many insolent words on her such as silly and useless woman even in front of their children and he tells them not to pay attention to their senseless mother. Continuing her assertions, the Petitioner averred that the Respondent has been womanizing and that even makes her feel embarrassed anytime he comes out of their house as some of the ladies he indulges in such acts live in and around their house. She made it clear that attempts by the elders of their church and family members to resolve their differences have proved futile and therefore prayed for the dissolution of the marriage. It is the case of the Petitioner that the land on which they built their matrimonial home was purchased by her from her accumulated salary paid by the Ghana Education Service in April, 2009. She stated that the total amount she paid for the acquisition of the land was GH¢2,595.00 and since she loved her husband who was then his fiancée she decided to add his name to the land documents but they both contributed equally in the building of their matrimonial home. The Petitioner therefore prayed for her fair share in the matrimonial home as well as the other property they acquired. She tendered into evidence the following Exhibits. Exhibit “A” – which is a receipt of plot of land acquired by the parties at Monwire Exhibit ‘B” - Police medical form evidencing assault on the Petitioner by Respondent Exhibit “C” – Extract from the Superintendent of Police confirming assault reported by the Petitioner Exhibit “D” – A damaged door Exhibit “E” - Statement of accounts of the Petitioner. 3 | P a g e CASE FOR THE RESPONDENT In the Respondent’s answer filed on the 3rd of February, 2023 and witness statement filed on the 14th of June, 2023, he admitted that their marriage has gone through difficulties and challenges but he does not believe that their marriage has broken down beyond reconciliation. He stated that he is not in support of the dissolution of their marriage. According to him, his wife has caused him much emotional, psychological, physical and mental trauma that he is currently on treatment for stress induced respiratory distress. He stated that it is difficult to have a meaningful conversation with the Petitioner as a wife. Continuing with his assertion, the Respondent stated that the Petitioner has been disrespectful to him, she takes money from his wallet without his approval some of it ends with the intervention of her father before she gives it back to him. He further averred that the Petitioner has on a number of occasion forcibly seized his phone in the middle of a call to find out whom the caller is. He added that sometimes she picks his call and at times calls some of the numbers on his contact list just to find out his relationship with them. He stated that the Petitioner becomes angry whenever she sees him talking to the opposite sex either on the phone or in person and sometimes confronts them among other things. It is the case of the Respondent that despite all the enumerated difficulties he has with his wife he still loves her but if there has to be divorce then he prays for the following reliefs 1. Equitable distribution of all the properties they have acquired. 4 | P a g e 2. Fair custody of the children not to separate them but to have equal duration of stay with them 3. Equal share of responsibility of the children. It is his case that they both contributed to the purchase of the plot at Monwire. He averred that he played a major role in the acquisition and registration of the said piece of land. He stated that per their own agreement the petitioner contributed GH¢1,400.00 and he added GH¢1,000.00 to make the full payment of the land which was GH¢2,400.00. He stated that after the acquisition of the land he made all the efforts in the registration and preparation of same with very little contribution from the Petitioner. He stated that the actual construction of the building from foundation, roofing through to the furnishing of it was essentially done by him and so prayed for the equitable distribution of same. He tendered into evidence Exhibit “1”, “2”, “3”, “4” and “5” which are copies of a receipt of allocation of building Plot, Allocation paper in the joint names of the parties at Monwire, a site plan, receipts of building permit application and a building permit on the plot at Monwire. Then Exhibits “6” and “7” are copies of a temporal receipt and site plan in the joint names of parties of a plot at a place called Adamrobe in the Greater Accra Region. Exhibits “8” a copy of a withdrawal letter of an Assault case at the Police Station. Exhibits “9”and “10” are copies of a child’s education policy with SIC life. Exhibit “11” a picture of the Respondent in a torn shirt Exhibit “12 to 12B” picture of the family. 5 | P a g e ISSUE At the end of the trial, the issue to be determined by the court are as follows: 1. Whether or not the Respondent has behaved in an unreasonable manner making it intolerable for the Petitioner to live with her as husband and wife. 2. Whether or not the marriage contracted by the parties has broken down beyond reconciliation EVALUATION OF THE EVIDENCE AND THE APPLICABLE LAW Generally, the Matrimonial Causes Act, 1971 (Act 367) governs the dissolution of a monogamous marriage such as contracted by the parties in this instant suit. Even though it primarily covers dissolution of marriages contracted under the ordnance, the law permits marriages contracted under the other forms to have their marriages dissolved under Act 367. Any party to the marriage may apply for a dissolution of the marriage but the party is required to prove that the marriage has broken down beyond reconciliation per Section 1(2) of the Act. A Petitioner must prove one or more of the facts provided under Section 2(1) of Act 367 which provides as follows: “(1) 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:— 6 | P a g e a. b. c. d. e. f. That the Respondent has committed adultery and the Petitioner finds it intolerable to live with the Respondent; That the Respondent has behaved in such a way that the Petitioner cannot reasonably be expected to live with the Respondent; That the Respondent has deserted the Petitioner for a continuous period of at least two years immediately preceding the presentation of the petition; That the parties to the marriage have lived apart for continuous period of at least two years immediately preceding the presentation of the petition and the Respondent consents to a decree being granted; That the parties to the marriage have lived apart for a continuous period of at least five years immediately preceding the presentation of the petition; That the parties to the marriage have, after diligent efforts been unable to reconcile their differences.” In this instant case the Petitioner founded his case on Section 2(1)(b) of the Act. Thus the burden of proof or persuasion is on the Petitioner to adduce sufficient, cogent and reliable evidence to support the allegations contained in her Petition in order for the court to arrive at the decision that the facts alleged exist rather than their non-existence. I am fortified to say so by reason of Section 11(4) and 12 of the Evidence Act, 1975 NRCD 323. Section 12 states as follows; 1) Except as otherwise provided by law, the burden of persuasion requires proof by a preponderance of the probabilities. 2) “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. 7 | P a g e In the case of GIHOC Refrigeration and Household Products Ltd vrs. Hanna Assi [2005- 2006] SCGLR 458, it was stated that “since the enactment of NRCD 323, therefore, except otherwise specified by statute, the standard of proof (the burden of persuasion) in all civil matters is by a preponderance of the probabilities based on a determination of whether or not the party with the burden of producing evidence on the issue has, on all the evidence, satisfied the judge of the probable existence of the fact in issue” I will now deal with the Petitioner’s allegations of the Respondent’s unreasonable behaviour which she asserts had contributed to the difficulties in their marriage. Under Sec 2 (1) (b) of MCA 1971, a Petitioner must prove that the Respondent has behaved in a way that the Petitioner cannot reasonably be expected to live with the Respondent, to prove that their marriage has broken down beyond reconciliation. The burden is on the party who alleges unreasonable behaviour to prove it. The Petitioner must prove two things: Firstly, the conduct constituting the unreasonable behaviour on the part of the Respondent, and secondly the fact that he cannot reasonably be expected to live with the respondent as a result of the bad behaviour, as espoused in the case of Andrew v. Andrew [1974] 3All ER 643 In such a case, the objective test is applied. Thus whether or not the Petitioner cannot reasonably be expected to live with the Respondent is a question of fact for the court to decide. I will now deal with the issues as set above. 1. Whether or not the Respondent has behaved in an unreasonable manner making it intolerable for the Petitioner to live with him as husband and wife. 8 | P a g e Unreasonable behaviour has been defined in English law as conduct that gives rise to injury to life, limb or health or conduct that gives rise to reasonable apprehension of such danger. Thus, actual injury does not have to be established but mere apprehension of such injury is enough so far as it has led to the break-down of the marriage beyond reconciliation. (Vide At a glance! Contemporary principles of Family Law in Ghana by Frederica Ahwireng-Obeng at page 111) In order to succeed on the ground of the alleged unreasonable behavior, it must be shown that the conduct reached a certain degree of severity. The conduct must be such that no reasonable person would tolerate such conduct or consider that the Petitioner should be called on to endure. See Hughes v. Hughes [1973] 2 GLR 342 In the case of Mensah vs Mensah [1972] 2GLR 198, the Court held that; “……the conduct complained of must be sufficiently grave and weighty enough to justify the finding that the Petitioner cannot reasonably be expected to live with the Respondent. Mere trivialities will not suffice. The parties must be expected to put up with what has been described as reasonable wear and tear of married life” See the case of Happee v. Happee and Another [1974] 2 GLR 186 in which it was held that the Respondent’s conduct was unreasonable and that the Petitioner was entitled to an order for dissolution of the marriage. Also, in the case of Riby-Williams v Riby-Williams (1964) GLR 538-545 the court stated that: “The conduct complained of must be grave and weighty and must go beyond the normal wear and tear of married life” It is to be noted that in all the cases cited the court came to that conclusion because detailed evidence was given to the specific several incidents that the Respondent had 9 | P a g e subjected the Petitioner to and vice versa. The Respondent herein did not cross-petition and so the burden is solely on the Petitioner to lead cogent and sufficient evidence to prove the unreasonable behaviours that she has levelled against the Respondent. The Petitioner’s pleadings and evidence before this court is that whenever there is any argument between them, the Respondent will both verbally and physically abuse her in the presence of their children. She averred that sometimes the children will plead with the Respondent to stop the beating but he will tell them that “they should just watch their father discipline their mother”. The Petitioner tendered into evidence “Exhibit ‘B” which is a Police medical form evidencing assault on her by the Respondent and Exhibit “C” which is an Extract from the Superintendent of Police confirming assault reported by the Petitioner. Again, the Petitioner testified that the Respondent had cheated on her during their marriage and his continuous womanizing conduct makes her feel embarrassed anytime she comes out of their house as some of the ladies he indulges in such acts live in their neighbourhood. It is important to sharply state here that these acts of unreasonable behaviours were admitted by the Respondent in his witness statement and under cross examination. This is what he said under cross examination. Q: Ever since we got married have you ever been unfaithful to me? A: Yes, please, twice, one was in 2010 and November 2019 and I told you about it. Q: Is it just twice? A: Yes 10 | P a g e Q: Recently you told me about a relationship between a lady and you in the house that we have built together. What about that? A: It is not true. For some time now you have always been accusing me of having extra marital affair to the extent that at times when I am making a call you come to seize the phone and look at the person I am talking to. You have in a number of occasions called my parents to tell then that you saw a message on my facebook wall of which my family called to ask me about it. In the course of this divorce issue and after the beatings I have pleaded with you of why our relationship must not end in divorce and you brought up these issues I am not aware of. In order not to drag the issue I just accepted it. Ever since 2019 I have not had extra marital affairs. Q: Are you one of the Jehovah’s Witnesses? A: Yes, but after the fight that ensued between the two of us they placed sanctions on me. Q; I put it to you that it was not a fight but it was a beating and that was why the sanctions were placed on you. A: It is true, I over reacted that day but you also raised your hand against me and it was not the first time. That is why I called it a ……… I agree that I over reacted. From the above, this court finds that it is an unreasonable behavior on the part of the Respondent to beat the Petitioner in the presence of their children. This will psychologically damage the children as they will grow up thinking that it right to beat your spouse in marriage in the name of disciplining them. I find that the Petitioner has led sufficient evidence to prove the unreasonable behaviors levelled against the Respondent. 11 | P a g e Whether or not the marriage has broken down beyond reconciliation. From the evidence led before me, it is evident that the marriage between the parties has been severely strained. Their relationship has turned sour and all attempt to resolve their differences have proven futile not to mention the allegations and counter-allegations before this court. More importantly all trust is lost in the relationship. It is indeed apparent that the parties have not found common ground to reconcile their differences not even the existence of three young children in the marriage. In such a circumstance this court cannot exercise its powers under the law to assist the parties to reconcile their differences nor order them to go back to their families to be reconciled and so I will not press the matter any further. I am satisfied that there is ample evidence that the marriage between the parties is broken down beyond reconciliation. I consequently hold that the marriage which was celebrated between the parties on the 30th of July, 2010 has broken down beyond reconciliation and same is hereby decreed as dissolved under Section 2(1)(b) and (f) of the Matrimonial Causes Act (Act 367). ANCILLARY RELIEFS The Petitioner apart from the dissolution of the marriage is praying the court for her fair share of the four-bedroom self-contained house at Monwire which served as their matrimonial home as well as her share of the land both parties acquired at Adamrobe near Oyibi in the Greater Accra Region. The law on Property acquired during marriage The Supreme Court of Ghana has stated in a number of cases that the equality is equity principle should apply in the distribution of spousal property unless the equities of a 12 | P a g e particular case will render its application unfair. See the cases of Boafo v Boafo [2005- 2006] SCGLR 705 and Mensah v. Mensah [1998-99] SCGLR 350. The Supreme Court in the case of Boafo vrs. Boafo Supra held that “The principle of equitable sharing of property jointly acquired by a married couple would ordinarily entail the equality principle, unless one spouse could prove separate proprietorship or agreement or a different proportion of ownership. That equal sharing should amount to a just and equitable sharing and that what is “equitable” in essence, is what is just, reasonable, and accords with common sense and fair play. It is a question of fact, dependent purely on the particular circumstances of each case. The proportions are therefore fixed in accordance with the equities of each particular case. The question of what is equitable, in essence what is just, reasonable and accords with common sense and fair play, is a pure question of fact dependent purely on the particular circumstances of each particular case” The court referred to Article 22(3)(a) of the 1992 Constitution to justify the application of the equality is equity principle. Article 22(1) states that “A spouse shall not be deprived of a reasonable provision out of the estate of a spouse whether or not the spouse died having made a will. (3) With a view to achieving the full realization of the rights referred to in clause (2) of this Article- Spouses shall have equal access to property jointly acquired during marriage. Assets which are jointly acquired during marriage shall be distributed equitably between the spouses upon dissolution of the marriage” Even though the Petitioner in her Petition and witness statement claimed that she solely acquired the land on which the matrimonial home was built she admitted that they both 13 | P a g e pulled their resources together and at a point both of them have to take loans to complete the building. This court therefore holds that it is a joint property and same should be shared equally upon the dissolution of their marriage. In order not to create any further confusion between parties herein who are having problems in their relationship, in the event that the parties cannot live in the property, I hereby make an order for the four-bedroom house at Monwire and the land at Adamrobe near Oyibi the parties acquired during the marriage to be valued and sold and the proceeds shared equally (fifty percent 50% share) amongst the parties. A party is at liberty to buy out the other if circumstances so allow. Per the evidence before this court the Petitioner solely acquired a plot at a place called Teacher Mante which she holds in trust for the children of the marriage. The Respondent admits that the Petitioner acquired same for the children and so that will not form part of the spousal property for same to be shared. Per the evidence before this court, the Respondent uses the vehicle acquired to drop the children at school sometimes and so I will not make an order for same to sold and shared. The Respondent is to keep it and use it to take the children to school. MAINTENANCE The Respondent also prayed the Court to compel the Respondent to maintain the children of the marriage. Section 1 of the Children’s Act, 1998 (Act 560) defines a child as follows: “a person below the age of eighteen years” Section 47 (1) of Act 560 also states that: 14 | P a g e 1. A parent or any other person who is legally liable to maintain a child or contribute towards the maintenance of the child is under a duty to supply the necessaries of health, life, education and reasonable shelter for the child. 2. For the purpose of this section, education means basic education. Maintaining and looking after the children is a shared responsibility and not solely the responsibility of the Petitioner but that of the Respondent also and therefore the Respondent is ordered to provide maintenance of Gh¢1,200.00 a month with an upward adjustment of twenty (20%) annually for the children. This is to take effect from the 1st of December, 2023. The parties shall equally be responsible for the payment of their children’s school fees, all the hospital expenses that may be incurred as well as all other educational costs as and when they fall due. CUSTODY OF THE CHILDREN OF THE MARRIAGE The Petitioner herein prayed the court to be given custody of the children of the marriage. In the case of Braun vrs. Mallet [1975] 1 GLR 81 the court stated that: “The welfare and happiness of an infant is of paramount consideration. In considering matters affecting the welfare of an infant, the courts must look at the facts from every angle and give due weight to every relevant material” It is also of importance to stress that the mother of young children has priority in respect of the grant of custody over any other person provided there is evidence that she affords the children the requisite care and control that is required of a mother. In the circumstances of this case and considering the evidence led before me, the Respondent is not contesting custody of the children being given to the Petitioner. It is 15 | P a g e clear that the Respondent is well aware of the capability of the Petitioner to take care of the children and thus has not challenged same. Indeed, this court cannot hold otherwise considering the ages of the children. However, the father must also have the benefit of developing a special relationship with them. Consequently, I hereby grant custody of the children of the marriage namely, Jubert Kweku Boadu, Alliet Anning-Bonsu Boadu and Jual Frimpong Boadu to the Petitioner with reasonable access given to the Respondent. Pursuant to the above, I further order that the Respondent shall have access to the children during the school holidays(vacations) and on the weekends. Or in the alternative: The parties are at will to have any arrangement they deem fit to enable the Respondent to have access to the children FINANCIAL PROVISION The Petitioner herein prayed for an alimony from the Respondent. A Court, before whom a petition is made, may make an order for financial provision in favour of either party and in doing so, the court must always bear in mind the relative earning abilities and/or the financial situations of the parties before coming to that decision. This is provided under Section 20 of Act 367 as follows: “the Court may order either party to the marriage to pay to the other party such sum of money or convey to the other party such movable and immovable property as settlement of property rights or in lieu therefore or as part of financial provision as the court thinks just and equitable” 16 | P a g e Furthermore, the Supreme Court per Dotse JSC. in the case of Mensah v Mensah (2012) 1 SCGLR 391, which was relied on by the Supreme Court in the case of Obeng v Obeng [2016] 99 GMJ183, SC. per Akamba JSC. (as he then was) reading the lead judgment stated that: “Ordinarily, a court should only order a lump sum payment when the husband has capital assets out of which to pay without crippling his earning power, when he has available assets sufficient for the purpose the court should not hesitate to order him to pay a lump sum…” I shall therefore be guided by these principles in making any orders. In this case, I know that both parties are government workers or public servants. The Petitioner is a teacher and the Respondent is a Bio-Medical Laboratory Scientist. In awarding financial provision, one must look at the purpose for doing so. In this case, I do not have any bases for making that order because none of the parties filed before this court an affidavit of means which would have guided me in coming to a decision. Doing so without that information would be most unfair to both parties and I would not have any justifiable bases for coming to any decision and so I would not make any order for financial provision in favour of either party. Each party is to bear his/her own costs. CHRISTIANA BRUCE-ASHIRIFIE, ESQ., (DISTRICT MAGISTRATE). PARTIES 17 | P a g e :PRESENT