AGBOLONYO VRS OFORI (C5/3/23) [2023] GHACC 902 (14 December 2023)

CORAM: HER HONOUR MRS ADWOA AKYAAMAA OFOSU, CIRCUIT COURT JUDGE SITTIING AT THE CIRCUIT COURT MPRAESO, EASTERN REGION ON THE 14TH OF DECEMBER, 2023 __________________________________________________________________ C5/3/23 VICTORIA AGBOLONYO V CHARLES OFORI ……………………………………………………………………………………………………… ………………………. TIME: 1:40 PARTIES: PRESENT PARTIES: SELF-REPRESENTED JUDGMENT The undisputed facts of this case are that the parties got married under customary law about seventeen years ago at Kwasi – Fanti near Maame Krobo. The petitioner is a trader whilst the Respondent is a mason. The marriage is blessed with three issues aged 15, 10 and 4 years. During the subsistence of the marriage the respondent had an extra marital affair that resulted in the birth of two children. P a g e 1 | 15 It is the case of the petitioner that the marriage between her and the respondent has broken down beyond reconciliation and thus filed the instant petition on the 30th of January, 2023 seeking the following reliefs: a. The customary marriage between both parties be dissolved b. Custody of the children and be given the house both parties built at Kwasi Fanti to the petitioner and children c. Respondent be made to pay alimony of GH₵20,000.00 d. Maintenance of GH₵1,000.00 for the children and pay their school fees and hospital expenses as well e. Costs The gravamen of the petitioner’s case is that they were living at Kwasi Fanti as one family where they built a chamber and hall with two store rooms and they built another house at Nkawkaw. That when their first child attained five years the respondent started misbehaving to the extent that he would beat her at the slightest fault. The petitioner started engaging in extra marital affairs with one Akua with whom he has two children and as a result the respondent has neglected his responsibility as a husband and a father. According to the petitioner, one day she went to the farm to harvest some ground nuts. Whiles there, the respondent also came to the farm and greeted her but she did not respond. Due to that, the respondent became furious and chased her with a cutlass so she ran to take refuge at her pastor’s house and told her what had happened. The Pastor invited the respondent and he admitted chasing her with a cutlass. The pastor settled the matter between them and they lived together and had their 2nd and 3rd children. The petitioner further says that the petitioner’s behaviour of maltreating and beating her became worse. The petitioner now lives with the said Akua and has neglected the petitioner and the children without giving them housekeeping money for the past three P a g e 2 | 15 years. She therefore reported the matter to both families for the matter to be settled amicably but to no avail because the respondent insisted that he no longer loved her and so the marriage should be dissolved. That her father asked the respondent to pay the petitioner alimony but he refused. The petitioner thus concludes that the respondent has behaved in a manner that he cannot reasonably be expected to live with him. The respondent filed an answer to the petition on the 15th of February 2023. He denies the claim of the petitioner and avers that the parties are still living together at Kwasi Fante with their three children and he only comes to Nkawkaw when he is called to one of his masonry jobs. That he has only one house at Kwasi Fante and has no house at Nkawkaw. Further to this, the respondent avers that he solely built the house with his money and sweat and without the petitioner contributing even a cedi to the house simply because she said she was also building her house so each person should contribute to their respective projects. The respondent admits having extra marital affairs resulting in the birth of two children but says that it was the petitioner’s action towards him that led him into it. He avers that about four years into the marriage, the petitioner’s attitude changed drastically towards him. He says that the petitioner refused to have sexual intercourse with him and she would cook for him only when she felt like doing so although he gave her money every day. The respondent avers that when he complained about the petitioner’s attitude to his family, the petitioner insulted any member of the respondent’s family who came to ask of the reason for her change in attitude and till date, the petitioner is at logger heads with the respondent’s family members. The respondent further says that the petitioner was angered by the fact that he reported the matter to his family members and so on one occasion when he went to his farm which shares boundaries with the petitioner’s farm land, he greeted the petitioner but the petitioner did not respond. He then told the petitioner that if she would continue to disrespect him then she should not farm on the P a g e 3 | 15 land because if anything happened to her on the farm, he would be the one to carry her to safety. That he did not even have a cutlass on him. The respondent further avers that when the elder called him, he explained everything to him and the elder advised both of them and they went home peacefully. After they had their 2nd and 3rd children the petitioner’s attitude worsened at home. The petitioner would rain insults on him at home and would come to the farm to continue with the insults and curses saying that he will never prosper in life. That the petitioner made life unbearable for him and so he had no choice than to leave home and settle at a place where he would get his peace of mind. The respondent says that she maintains the petitioner and the children adequately and caters for all their educational and health expenses. The respondent further avers that the petitioner told one elder in the community called Opanin Frimpong that she had cursed the respondent to never prosper in life and that the he will die a pathetic death. When the elder asked the petitioner which stream or river she used to curse the respondent she refused to tell him. He reported the matter to both families and when she was asked again, she refused to tell the family which stream she used to curse the respondent. The respondent further avers that based on the above, the respondent told the family that he cannot continue to marry a woman who curses him with suffering and death at the slightest issue since it had already happened many times in the past, denies him access to her body and also refuses to cook for him. That the petitioner told the respondent and their families that the respondent does not even befit her so the marriage should be dissolved because she will get somebody better than the respondent to marry her. The respondent concludes that he does not want to die a premature death or become poverty stricken or lose his sanity and be unable to take care of his children because of the petitioner. He therefore cross-petitioned and sought the following reliefs: P a g e 4 | 15 1. That the customary marriage should be speedily dissolved as being (sic) broken down beyond reconciliation. 2. That custody of the two older children Patricia Berko, 15 years and Enoch Amoafo 10 years be given to the respondent with the exception of the last child Samuel Ofori, 4 years because he is too young. This is because the respondent does not want the older children to learn the bad ways of their mother as all she does is to insult and curse people with the slightest opportunity. 3. That the petitioner does not deserve any alimony as it was her intention to maltreat the respondent till the respondent asks for divorce; and when the respondent did not divorce her she made up stories as a petition to disgrace the respondent and make unbefitting claims. 4. That the house at Kwasi Fante should not be given to the petitioner as she did not contribute a cedi to it with the reason that she is also building her own house which indeed she has and even started building her second house. 5. That the respondent will continue to maintain the last child after the dissolution of the marriage according to his earning ; as he is only a farmer and that the honourable court should disregard the claim of GH₵1,000.00 as maintenance that the petitioner wants to make for her own benefit 6. Any order or orders as the court may deem fit. The parties gave oral evidence and did not call any witnesses. From the pleadings and evidence of the parties, the issues that the court set down to determine are: 1. Whether or not the customary marriage between the parties has broken down beyond reconciliation P a g e 5 | 15 2. Whether or not custody of the two older children should be granted the petitioner or the respondent 3. Whether or not the petitioner is entitled to a share of the matrimonial home 4. Whether or not the petitioner is entitled to alimony of GH₵20,000.00 ISSUE 1 Whether or not the customary marriage between the parties has broken down beyond reconciliation It is trite law that in civil cases the burden of proof is on the party who asserts the affirmative of his or her case and the standard of proof is proof by a preponderance of probabilities as provided for under section 12(1) of the Evidence Act 1975, (NRCD 323). Section 12(2) NRCD 323 explains ‘preponderance of probabilities’ as “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” . This standard is achieved when the party produces sufficient evidence thus in Sarkodie v FKA Company Limited [2007] SCGLR, Wood JSC as she then was stated that: “the burden of producing evidence requires a party to produce sufficient evidence so that on all the evidence a reasonable mind could conclude that the existence of fact was more probable than its non- existence” The petitioner therefore had the legal burden to prove all her assertions to the required standard of proof and the burden only shifts unto the respondent after the petitioner has discharged her burden of proof. P a g e 6 | 15 The parties herein are married under customary law. Section 41 of the Matrimonial Causes Act 1971 (Act 367) which is the law that regulates dissolution of Marriages in Ghana provides that: (1) This Act shall apply to all monogamous marriage (2) On application by a party to a marriage other than a monogamous marriage, the court shall apply the provisions of this act to that marriage and in so doing, subject to the requirement s of justice, equity and good conscience, the court may a. Have regard to the peculiar incidents of that marriage in determining appropriate relief, financial provision and custody arrangements b. Grant any form of relief recognised by the personal law of the of the parties to the proceedings either in addition to or in substitution for the matrimonial reliefs afforded by this act (3) In the application of section 2(1) of this Act to a marriage other than monogamous marriage, the court shall consider the facts recognised by the personal law of the parties as sufficient to justify a divorce including in the case of a customary law marriage, but without prejudice to the foregoing the following: • Wilful neglect to maintain a wife or a child • Impotence • Barrenness or sterility • Intercourse prohibited under that personal law on account of consanguinity, affinity or other relationship • Persistent allegations of infidelity by one spouse against the other Provided that this subsection shall have effect subject to the requirements of justice, equity and good conscience. P a g e 7 | 15 From the above provisions therefore, it is my understanding that section 1(2) of Act 367 (supra) which provides for the sole ground for the dissolution of marriage and section 2(1) of Act 367 which provides for the facts that need to be proved in order to establish the ground for the dissolution of the marriage are applicable to customary law marriages in addition to those enumerated under section 41(3). That said, section 1(2) of Act 367 which is the law that governs the dissolution of marriages in Ghana provides that: The sole ground for the dissolution of marriage in Ghana shall be that the marriage has broken down beyond reconciliation. To enable the court come to this conclusion, the law per section 2(1) further requires the petitioner who has brought the petition before the court to lead evidence to the satisfaction of the court that one or more of the facts enumerated therein have occurred in the marriage. The said section thus provides that: “(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:— a. That the Respondent has committed adultery and the Petitioner finds it intolerable to live with the Respondent; b. That the Respondent has behaved in such 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 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. P a g e 8 | 15 e. 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. f. That the parties to the marriage have, after diligent efforts been unable to reconcile their differences.” Both parties made several allegations of conducts that amount to unreasonable behaviour against each other. Since the respondent cross-petitioned, both parties had the burden to prove what they allege against each other. Both parties however repeated their averments on oath and did not call any witnesses meanwhile the evidence of the parties shows that family members, pastors and elders of the church and some respectable members of the community have been involved in trying to resolve the differences between the parties all to no avail. None of these persons was called as a witness in the case. The evidence however shows that both the respondent and the petitioner have been insulting and raining curses on each other and have generally not been at peace with each other for some time now. Indeed the evidence shows that the respondent has been engaged in extra marital affairs resulting in the birth of two children outside the marriage. It is however noted that the marriage between the parties is customary marriage which is potentially polygamous and while a woman can be considered as having committed adultery in a customary law marriage, a man cannot be considered as having committed adultery and therefore the fact that he respondent has two children with another woman cannot be considered as unreasonable behaviour on the part of the respondent under section 2 of Act 376 or a ground for divorce under customary law. The petitioner also alleged that the respondent has neglected his responsibility as a father and husband yet provided no evidence in support. P a g e 9 | 15 The above notwithstanding, it is clear from the totality of the evidence that the parties have irreconcilable differences which they have not been able to resolve after diligent efforts. I am therefore satisfied that the marriage between the parties has broken down beyond reconciliation. ISSUE 2 Whether or not custody of the two older children should be granted the petitioner or the respondent The petitioner herein prays for custody of the three children whilst the respondent prays for custody of the two older children On the issue of custody of children, the guiding principle is the welfare principle which is provided under section 2 of the Children’s Act, 1998, (Act 560). The said section enacts that: (1) The best interest of the child shall be paramount in any matter concerning the child (2) The best interest of the child shall be the primary consideration by any court, person, institution or other body in any matter concerned with a child Thus in Braun v Mallet [1975] 1GLR at page 82, the court held that: “in the question of custody, it was well settled that the welfare and happiness of the infant was of paramount consideration of the court in the exercise of its powers in relation to children” Furthermore, section 45 of Act 560 supra provides that: (1) A Family Tribunal shall consider the best interest of the child and the importance of the young child being with his mother when making an order for custody or access P a g e 10 | 15 (2) Subject to subsection (1) a family tribunal shall also consider (a) the age of the child (b) That it is preferable for a child to be with his parents except if his rights are persistently being abused by his parents (c) The views of the child if the views have been independently given (d) That it is desirable to keep siblings together (e) The need for continuity in the care and control of the child; and (f) Any other matter that the Family Tribunal may consider relevant In the instant case, all the children have lived with the petitioner throughout their lives and there is no evidence that the children’s welfare will be compromised in any way if custody of the three children is granted the petitioner and granting custody to the petitioner will ensure continuity in their care and control as stipulated by section 45(2)(e). Besides, the respondent’s claim for custody of the two older children whilst the petitioner is granted custody of the younger child does not find favour with the law as per section 45(2)(d) it is desirable to keep siblings together. On the basis of the foregoing, it is my view that the interest of the children will be best served if custody is granted the petitioner with reasonable access to the respondent. ISSUE 3 Whether or not the petitioner is entitled to a share of the matrimonial home P a g e 11 | 15 The evidence is that the parties acquired their matrimonial home during the subsistence of the marriage, it is the contention of the respondent however that he put up the matrimonial home solely without any contribution from the petitioner. Article 22(3) of the 1992 Constitution of Ghana which provides that: With the view to achieving the full realization of the right referred to in clause 2 of this article, (a) Spouses shall have equal rights to property jointly acquired during marriage (b) Assets which are jointly acquired during marriage shall be distributed equitably between the spouses upon dissolution of the marriage In giving effect to the above provision the Supreme Court over the years in a plethora of cases developed the law to guide the courts in the distribution of jointly acquired properties by married couples upon divorce. The principle adopted is the equality is equity principle and it does not matter whether a spouse contributed financially or even substantially in the acquisition of the property unless there is evidence to show that a party intended to own the property exclusively. See: Mensah v Mensah [2012 1SCGLR 391 Quartson v Quartson [2012] 2 SCGLR 1077 Arthur (No.1) v Arthur (No. 1) [2013-2014 SCGLR Fynn v Fynn& Osei [2013-2014] 1 SCGLR 727 P a g e 12 | 15 Here the evidence is that the matrimonial home was acquired during the subsistence of the marriage. There is no evidence that the respondent intended to own the property exclusively. In this circumstance, it will be affair and just to use the equality is equitable principle to distribute the matrimonial home between the parties. I therefore hold that the petitioner is entitled to a half share of the matrimonial property. Even though the petitioner alleged that she assisted the respondent to acquire a house it Nkawkaw, she led no evidence in support of that claim. The court can therefore not make any findings in respect of that alleged property. ISSUE 4 Whether or not the petitioner is entitled to alimony of GH₵ 20,000.00 The petitioner herein claims an alimony of GH₵20,000.00 from the respondent. Section 20(1) of Act 367 (supra) provides that: “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 or immovable property as settlement of property rights or in lieu thereof or as part of financial provision as the court thinks just and equitable” The above provision in my view calls for the judge’s discretion upon consideration of all the evidence and decide which of the parties is entitled to financial provision. Thus it is not as of right that a woman is entitled to alimony or financial settlement in any instance of divorce. P a g e 13 | 15 In the instant case I am unable to attribute the breakdown of the marriage to the respondent. However, it is my view that under customary law, the respondent ought to have compensated the respondent when he went in for another woman with whom he had two children. It is for this reason that I hold that the petitioner is entitled to alimony, the amount of which will be determined by the court. CONCLUSION In conclusion the petition succeeds and judgment is entered as follows: 1. It is hereby decreed that the customary marriage between the parties be and same is hereby dissolved. 2. Custody of the three children is granted the petitioner with reasonable access to the respondent 3. The respondent shall maintain the children with an amount of GH₵1,000.00 a month. 4. The respondent shall be responsible for the school fees and medical bills of the children as and when they fall due 5. I hereby declare the matrimonial house being a hall and chamber with two stores located at Lwasi Fante in the Affram Plains District in the Eastern Region of the Republic of Ghana of the parties as a jointly acquired property by the parties. The parties shall agree to appoint a valuer to value the property, sell same and share the proceeds equally. In the event that the parties are unable to agree, a court appointed valuer shall value the property for the parties to trade between themselves. The respondent shall have the right of first refusal to be exercised within three months from the date of valuation. The cost of valuation shall be borne equally by the parties. P a g e 14 | 15 6. The parties shall agree to appoint a valuer to value the property, sell same and share the proceeds equally. In the event that the parties are unable to agree, a court appointed valuer shall value the property for the parties to trade the property among themselves. The respondent shall have the right of first refusal to be exercised within three months from the date of the valuation. The cost of valuation shall be borne equally by the parties. 7. The respondent shall pay an amount of GH₵10,000.00 to the petitioner as alimony 8. No order as to costs. H/H ADWOA AKYAAMAA OFOSU (MRS) CIRCUIT COURT JUDGE P a g e 15 | 15